SCOTUS Refuses to Extend Bivens Remedy, Puts Onus on Congress to Provide Remedy for Border Patrol Agent`s Unconstitutional Conduct

The Supreme Court of the United States (SCOTUS) held on June 8, 2022, that a federal court may not extend the remedy it created over 50 years ago, which allows lawsuits for excessive force by federal agents, to claims of excessive force by Border Patrol agents, and that it was up to Congress to create a remedy for such constitutional violations.

The case was brought before the Court after Robert Boule, a U.S. Citizen, claimed a Customs and Border Patrol (CBP) agent used excessive force against him at the Canadian border on his private property in Washington State. He also claimed the agent, Erik Egbert, retaliated against him by reporting his driver license to the state for illegal activity, and by filing a complaint with the Internal Revenue Service that prompted an audit, in response to Boule`s complaints to CBP officials.

Boule had sued Egbert in federal court, under Bivens v. Six Unknown Fed. Agents, 403 U.S. 388 (1971), alleging a Fourth Amendment violation for the excessive force, and a First Amendment violation for the retaliation. The court declined to extend the Bivens remedy to Boule`s claims, but the Ninth Circuit reversed and held that Bivens applied. On the government`s motion for rehearing en banc, 12 judges from the entire court of appeals dissented over the court`s denial of rehearing, and SCOTUS agreed to hear the government`s appeal.

The Bivens Remedy

In Bivens, the Supreme Court created a remedy under the “federal jurisdiction” statute, 28 U.S.C. sec 1331, to allow Webster Bivens to sue federal agents who stormed his New York City apartment and detained him on suspicion of drugs. However, they had the wrong guy, and when Bivens tried to sue in federal court, no remedy existed to sue federal agents, only state agents under 28 U.S.C. sec 1983. SCOTUS found jurisdiction to hear his claim under sec 1331 and allowed the lawsuit to proceed.

In order for a court to hear a Bivens claim, SCOTUS has established a two-part test: “First, we ask whether the case presents a new Bivens context — i.e., is it meaningfully different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are special factors indicating that the judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Ziglar v. Abassi, 137 S. Ct. 1843 (2017).

In other words, the Court said, the question is “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” This analysis, though, applies only when faced with a Bivens claim in a “new context,” which the Court defined as a case with “potential special factors that previous Bivens cases did not consider.”

Boule`s case presented a new context for Bivens, so SCOTUS assessed whether Congress would be better suited to provide a remedy, rather than the courts.

Matters of National Security Belong to Congress

SCOTUS invoked “national security” as a reason that Bivens should not extend to Boule`s case. Citing its recent decision in Hernandez v. Mesa, 589 U.S. ___ (2020), which cited national security concerns and held that a Mexican mother could not sue CBP when an agent shot and killed her 15-year-old son on Mexican ground from across the border, the Court said national security foreclosed Bivens relief in Boule`s case.

We did not recognize a Bivens action there because regulating the conduct of agents at the border unquestionably has national security implications, and the risk of undermining border security provides reason to hesitate before extending Bivens into this field. This reasoning applies here with full force…. Because matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention, we reaffirm that a Bivens cause of action may not lie where, as here, national security is at issue.

Instead, it`s up to Congress to create a remedy for complaints against Border Patrol agents. The Court said that a federal court is “plainly” not “competent” to authorize a damages action that would affect all Border Patrol agents generally. The Court reiterated that a court focuses on only one question with a Bivens claim: “Whether there is any rational (even one) to think that Congress is better to weigh the costs and benefits of allowing a damages action to proceed.”

An Existing Remedy Forecloses a Bivens Remedy

In Boule`s case, the CBP provided a remedy for his complaints, so SCOTUS said that this foreclosed any Bivens remedy. The fact that this administrative remedy was unsuccessful, the Court said, did not provide a right to a remedy in federal court.

Under 8 U.S.C. sec 1103(a)(2), the CBP is required to “control, direct, and supervise all employees,” the Court said, and under 28 CFR sec 287.10, it is required to “investigate all alleged violations of the standards for enforcement activities and accept grievances from any persons wishing to lodge a complaint.” Since Bivens is concerned solely with “deterring” unconstitutional acts by federal agents, the focus is on whether the agency has safeguards to prevent “recurring” constitutional violations. SCOTUS said CBP`s policy did just this and foreclosed Bivens.

So 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.

No Bivens Remedy for First Amendment Claims

The Court also held that Bivens does not extend to First Amendment claims, like Boule`s retaliation claim. “We have never held that Bivens extends to First Amendment claims,” the Court said. “We hold that there is no Bivens action for First Amendment retaliation.”

The Court reasoned that the “fear of personal monetary liability” under Bivens would prevent federal employees from doing their jobs. This would lead to “substantial societal costs,” the Court said, because “federal employees faced with the added risk of personal liability for decisions that they believe to be a correct response to improper activity would be deterred from carrying out their duties.”

The Court concluded with this warning about Bivens: “If we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

SCOTUS therefore reversed the Ninth Circuit`s decision that granted Boule relief under Bivens. See: Egbert v. Boule, 596 U.S. ___, 142 S. Ct. 1793 (2022).

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a federal litigation consultant with the Zoukis Consulting Group. Follow his blog at and on Twitter at @zenlawguy.

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