Plaintiffs cannot bring “Bivens actions” for damages for Fourth Amendment violations at the U.S. border, or for First Amendment retaliation, the U.S. Supreme Court held June 8 in Egbert v. Boule.
Plaintiffs cannot bring “Bivens actions” for damages for Fourth Amendment violations at the U.S. border, or for First Amendment retaliation, the U.S. Supreme Court held June 8 in Egbert v. Boule.
The Court suggested that Bivens itself should be overruled in a future case.
Facts
Robert Boule operated the Smuggler’s Inn near Blaine, Washington. The Inn’s property sits on the U.S.-Canadian border.
U.S. Border Patrol agents, in the past, had seen people cross the border illegally and enter the Inn. They also had seized many drugs from the Inn.
Boule, at various times, served as a paid informant for the Border Patrol, and would notify the Patrol to arrest people at the Inn.
In the incident that led to the lawsuit, Boule informed Border Patrol Agent Egbert of a Turkish national who was scheduled to come to the Inn.
When Egbert went to investigate, Egbert and Boule got into an argument, and Egbert threw Boule to the ground.
Boule filed an administrative claim against Egbert, alleging Egbert had used excessive force and injured Boule. According to Boule, while this claim was pending, Egbert retaliated against Boule by reporting Boule’s “SMUGLER” license plate to Washington licensing officials for referencing illegal conduct, and by contacting the Internal Revenue Service to audit Boule.
When the administrative claim was unsuccessful, Boule sued Egbert, alleging a Fourth Amendment excessive force claim and a First Amendment violation for unlawful retaliation.
The District Court dismissed Boule’s claims, but the Ninth Circuit reversed.
Holding
The Supreme Court, in a 6-3 opinion, ruled Boule’s claims could not proceed.
In Bivens v. Six Unknown Federal Narcotics Agents, the Court, in 1971, authorized a damages action against federal officials for alleged violations of the Fourth Amendment.
“Over the past 42 years, however, we have declined 11 times imply a similar cause of action for other alleged constitutional violations,” the Court said.
“Now long past the heady days in which this Court assumed common-law powers to create causes of action … we have come to appreciate more fully the tension between judicially created causes of action and the Constitution’s separation of legislative and judicial power,” the Court said. “At bottom, creating a cause of action is a legislative endeavor.”
In determining whether to extend Bivens, the essential question is “whether there is any reason to think that Congress might be better equipped to create a damages remedy.”
Although Boule’s excessive force claims is facially similar to Bivens, the fact that the claim arises along the border implicates national security interests, the Court said.
“[T]he Judiciary is not undoubtedly better positioned than Congress to authorize a damages action in this national-security context,” the Court said.
And “the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol Agent is appropriate.”
“[W]e ask here whether a court is competent to authorize a damages remedy not just against Agent Egbert but against Border Patrol agents generally,” the Court said. “The answer, plainly, is no.”
Not only is Congress better equipped to authorize such a remedy, but Congress has already provided alternative administrative remedies “that independently foreclose a Bivens action here,” the Court said.
Even though Boule contends that his administrative remedy was inadequate because it did not give him a right to participate or appeal, “[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy,” the Court said. “That is true even if a court independently concludes that the Government’s procedures are not as effective as an individual damages remedy.”
The Court also rejected Boule’s First Amendment claims.
“[W]e have never held that Bivens extends to First Amendment claims,” the Court said. “[W]e hold that there is no Bivens action for First Amendment retaliation.”
“There are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.”
Lastly, the Court hinted that it may be willing to overrule Bivens.
“[R]ecently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution, the Court concluded. “But, to decide the case before us, we need not reconsider Bivens itself.”
Dissenting opinion
Justice Sotomayor, joined by Justices Breyer and Kagan, dissented, in part.
Sotomayor would have allowed Boule’s Fourth Amendment claim to proceed, but not his First Amendment claim.
Sotomayor warned the Court’s opinion will preclude many Bivens actions.
“Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury,” she said.
“The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents,” she said.