https://www.supremecourt.gov/opinions/21pdf/21-147_g31h.pdf
Syllabus by Court staff:
EGBERT v. BOULE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21â147. Argued March 2, 2022âDecided June 8, 2022
Respondent Robert Boule owns a bed-and-breakfastâthe Smugglerâs Innâin Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross-bor- der activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers. Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity.
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa- trol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smugglerâs Inn. When Agent Egbert observed one of Bouleâs vehicles returning to the inn, he sus- pected that the Turkish national was a passenger and followed the ve- hicle to the inn. On Bouleâs account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the ve- hicle and then to the ground. Egbert then checked the immigration paperwork for Bouleâs guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.
Boule filed a grievance with Agent Egbertâs supervisors and an ad- ministrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by re- porting Bouleâs âSMUGLERâ license plate to the Washington Depart- ment of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Bouleâs tax re- turns. Bouleâs FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of re- taliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis- trict Court to recognize a damages action for each alleged constitu- tional violation. The District Court declined to extend Bivens as re- quested, but the Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Bouleâs Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 5â17.
(a) In Bivens, the Court held that it had authority to create a dam- ages action against federal agents for violating the plaintiffâs Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Pass- man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come âto appreciate more fully the tension betweenâ judicially created causes of action and âthe Constitutionâs separation of legislative and judicial power,â Her- nĂĄndez v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that rec- ognizing a Bivens cause of action is âa disfavored judicial activity.â Ziglar v. Abbasi, 582 U. S. ___, ___.
The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents âa new Bivens contextââi.e., is it âmeaningfully different from the three cases in which the Court has implied a damages action,â Ziglar, 582 U. S., at ___, and, second, even if so, do âspecial factorsâ indicate that the Judiciary is at least arguably less equipped than Congress to âweigh the costs and benefits of allowing a damages action to proceed.â Id., at ___. This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Courtâs precedents, a court may not fash- ion a Bivens remedy if Congress already has provided, or has author- ized the Executive to provide, âan alternative remedial structure.â Ziglar, 582 U. S., at ___. Pp. 5â8.
(b) The Court of Appeals conceded that Bouleâs Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 9â13.
(1) First, the ârisk of undermining border security provides reason to hesitate before extending Bivens into this field.â HernĂĄndez, 589 U. S., at ___. In HernĂĄndez, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent be- cause âregulating the conduct of agents at the border unquestionably has national security implications.â Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Bouleâs Fourth Amendment claim as akin to a âconventionalâ exces- sive-force claim, as in Bivens, and less like the cross-border shooting in HernĂĄndez. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appealsâ analysis betrays the pitfalls of applying the special-factors analysis at too gran- ular a level. A court should not inquire whether Bivens relief is appro- priate in light of the balance of circumstances in the âparticular case.â United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask â[m]ore broadlyâ whether there is any reason to think that âjudicial intrusionâ into a given field might be âharmfulâ or âinappropriate,â id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 9â12.
(2) Second, Congress has provided alternative remedies for ag- grieved parties in Bouleâs position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate â[a]lleged violationsâ and accept grievances from â[a]ny persons.â 8 CFR §§287.10(a)â(b). Boule claims that this regulatory grievance pro- cedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens âis concerned solely with deterring the uncon- stitutional acts of individual officers.â Correctional Services Corp. v. Malesko, 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Her- nĂĄndez, this Court has no warrant to doubt that the consideration of Bouleâs grievance secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___. Pp. 12â13.
(c) There is no Bivens cause of action for Bouleâs First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment vi- olations would pose an acute ârisk that fear of personal monetary lia- bility and harassing litigation will unduly inhibit officials in the dis- charge of their duties.â Anderson v. Creighton, 483 U. S. 635, 638. In light of these costs, âCongress is in a better position to decide whether or not the public interest would be servedâ by imposing a damages ac- tion. Bush, 462 U. S., at 389. The Court of Appealsâ reasons for ex- tending Bivens in this contextâthat retaliation claims are âwell-estab- lishedâ and that Boule alleges that Agent Egbert âwas not carrying out official dutiesâ when the retaliation occurredâlack merit. Also lacking merit is Bouleâs claim that this Court identified a Bivens cause of ac- tion under allegedly similar circumstances in Passman. Even assum- ing factual parallels, Passman carries little weight because it predates the Courtâs current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on âparallel circumstancesâ with Bivens, Passman, or Carlsonâthe three cases in which the Court has implied a damages actionâunless the plaintiff also satisfies the prevailing âanalytic frameworkâ prescribed by the last four decades of intervening case law. Ziglar, 582 U. S., at ___â___. Pp. 13â16.
998 F. 3d 370, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con- curring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.
KEY QUOTE FROM JUSTICE SOTOMAYORâS CONCURRENCE DISSENT (joined by Justices Breyer and Kagan):
This Courtâs precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Courtâs 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. I respectfully dissent from the Courtâs treat- ment of Bouleâs Fourth Amendment claim.
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Thus, the Border Patrol is free to egregiously violate Constitutional rights of citizens and other âpersonsâ in the U.S. without meaningful accountability. But, I suppose itâs what one might expect from a right-majority Court that generally views rights of corporations and guns as fundamental while treating most individual rights of persons in the U.S. as expendable.
As for Justice Thomasâs ludicrous suggestion that filing a complaint with the CBP hierarchy is a âremedyâ for wrongdoing? Thatâs in the âsick jokeâ category as anyone who has actually tried to file such a complaint would know. See, e.g., https://www.nbcnews.com/politics/immigration/aclu-asks-dhs-take-action-complaints-abuse-misconduct-u-s-n1259657. Clearly, Thomas and his colleagues live in a privileged âparallel universeâ where they have never had to rely on the DHSâs internal bureaucracy for redress of Constitutional violations!
As cogently pointed out by Justice Sotomayor, the majority’s intentional misuse and mischaracterization of the “national security fiction” to immunize government conduct from meaningful review in a case that actually has little or nothing to do with national security or foreign relations should also be of grave concern to all of us. Right-wing judges’ propensity to use “fictions” and “pretexts” to mask their real intent and to arrive at preconceived results is a major exercise in intellectual dishonesty!
It also reinforces my observation that it is wrong to keep appointing Justices who lack personal experience with representing individuals within our broken, dysfunctional, and often lawless immigration bureaucracy, which currently includes the U.S. Immigration âCourtsâ at EOIR. In many professions and occupations, the “future movers and shakers” are required to “start at the retail level” — like the rest of us — so that they understand their “customers'” needs, wants, expectations, problems, and concerns. Why do we exempt our most powerful judges from this “basic training” in delivering justice to human beings at the “retail level” of our justice system?
While many folks are too blind to see it, the lack of informed judicial oversight of the Constitutional performance of DHS, DOJ, DHS, DOS, DOL and the rest of the often underperforming USG immigration bureaucracy undermines the Constitutional rights of everyone in America, including citizens!Â
Life-tenured Federal Judges might act as if they are âimmunizedâ and âabove the frayâ (also, to a disturbing extent, above the law and our Constitution, particularly where migrants are concerned). Meanwhile, itâs âthe people’s rightsâ that are on the chopping block with an unprincipled âout of touchâ far-right judiciary too often wielding the ax!
đşđ¸ Due Process Forever!
PWS
06-09-22