June 08, 2022

Supreme Court Decides Egbert v. Boule

On June 8, 2022, the U.S. Supreme Court decided Egbert v. Boule, No. 21-147, declining to recognize a cause of action for damages against a federal border agent for either a Fourth Amendment excessive-force claim or a First Amendment retaliation claim, citing concerns that broadening the legal liability of such agents could negatively impact national security and comity between the branches of government.

Individuals may file civil rights lawsuits in federal court against state and local officials under 42 U.S.C. § 1983, but the law does not extend to federal law enforcement. Rather, claims against federal agents may be recognized under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Recognizing causes of action under Bivens is “disfavored judicial activity.”

Respondent Robert Boule is a U.S. citizen who owns a bed-and-breakfast near the U.S.-Canada border in Washington. In 2014, he hosted a guest who had recently arrived in the United States from Turkey. Boule alerted Border Patrol agent Erik Egbert that he had scheduled transportation for the guest. Later that day, Egbert observed Boule’s SUV with a license plate “SMUGLER” returning to the Inn and drove onto Boule’s property suspecting the guest was a passenger. Boule asked Egbert to leave, and Egbert allegedly responded by shoving Boule against the car and throwing him to the ground. Egbert reviewed the guest’s immigration papers and then left. That night, the Turkish national unlawfully entered Canada. Boule later complained about the federal agent’s conduct to Egbert’s supervisor and filed an administrative claim with Border Patrol under the Federal Tort Claims Act (FTCA), after which Egbert allegedly retaliated against Boule during this administrative process by reporting his license plate as referencing illegal activity and by contacting the Internal Revenue Service and prompting an audit of tax returns. Border Patrol took no action against Egbert and the FTCA claim was denied.

Boule later sued Egbert in his individual capacity, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. He invoked Bivens and asked the district court to recognize a damages action for each alleged constitutional violation. The district court declined to extend a Bivens remedy to Boule’s claims and entered judgment in favor of Egbert. The Ninth Circuit reversed, holding that Bivens actions are available for such claims, and then denied rehearing en banc over the dissents of twelve judges.

The Supreme Court reversed. Though the Court refrained from overturning Bivens, it found — for the twelfth time since 1971 — that the doctrine did not apply to the facts at hand. The Court’s “cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts,” it observed. With respect to Boule’s Fourth Amendment claim, the Court explained that the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” The Court also noted that the availability of an alternative remedy for aggrieved parties — namely the statutory obligation to supervise employees and the grievance process, which had been invoked — independently foreclosed the extension of Bivens in this case. The Court likewise declined to extend Bivens to the First Amendment retaliation claim, reasoning that Boule’s claim would pose an acute “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties” and that Congress is in a better position to decide whether the public interest would be best served by imposing a damages action in this context.

Justice Thomas delivered the opinion of the Court. Justice Gorsuch filed an opinion concurring in the judgment. Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Breyer and Kagan joined.

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