SUPREME COURT OF THE UNITED STATES
_________________
No. 21–147
_________________
ERIK EGBERT, PETITIONER
v. ROBERT
BOULE
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 8, 2022]
Justice Sotomayor, with whom Justice Breyer
and Justice Kagan join, concurring in the judgment in part and
dissenting in part.
Respondent Robert Boule alleges that petitioner
Erik Egbert, a U. S. Customs and Border Patrol agent, violated
the Fourth Amendment by entering Boule’s property without a warrant
and assaulting him. Existing precedent permits Boule to seek
compensation for his injuries in federal court. See
Bivens
v.
Six Unknown Fed. Narcotics Agents,
403 U.S.
388 (1971);
Ziglar v.
Abbasi, 582 U.S. 120
(2017). The Court goes to extraordinary lengths to avoid this
result: It rewrites a legal standard it established just five years
ago, stretches national-security concerns beyond recognition, and
discerns an alternative remedial structure where none exists. The
Court’s innovations, taken together, enable it to close the door to
Boule’s claim and, presumably, to others that fall squarely within
Bivens’ ambit.
Today’s decision does not overrule
Bivens. It nevertheless contravenes precedent and will strip
many more individuals who suffer injuries at the hands of other
federal officers, and whose circumstances are materially
indistinguishable from those in
Bivens, of an important
remedy. I therefore dissent from the Court’s disposition of Boule’s
Fourth Amendment claim. I concur in the Court’s judgment that
Boule’s First Amendment retaliation claim may not proceed under
Bivens, but for reasons grounded in precedent rather than
this Court’s newly announced test.
I
This case comes to the Court following the
District Court’s grant of summary judgment to Agent Egbert. The
Court is therefore bound to draw all reasonable factual inferences
in favor of Boule. See
Tolan v.
Cotton,
572 U.S.
650, 656–657 (2014) (
per curiam). Because the Court
fails to do so, the factual record is described below in some
detail, in the light our precedent requires.
A
Boule is a U. S. citizen who owns,
operates, and lives in a small bed-and-breakfast called the
Smuggler’s Inn in Blaine, Washington. The property line of the land
on which the inn is located touches the U. S.-Canada border.
Shortly after purchasing the property in 2000, Boule became aware
that people used his property to cross the border illegally in both
directions. Boule began serving as a paid, confidential informant
for Customs and Border Protection (CBP) in 2003 and for Immigration
and Customs Enforcement (ICE) in 2008. At the time of the events at
issue in this case, Boule was still serving as an informant for
ICE. ICE would coordinate with CBP and other agencies based on the
information Boule provided. Over the years, Boule provided
information leading to numerous arrests.
On the morning of March 20, 2014, petitioner
Erik Egbert, a CBP agent, twice stopped Boule while Boule was
running errands in town. Agent Egbert knew that Boule was a
long-time informant for ICE and that he had previously worked as an
informant for CBP. Agent Egbert asked Boule about guests at the
inn, and Boule advised him of a guest he expected to arrive that
day from New York who had flown in from Turkey the day before.
Boule explained that two of his employees were en route to pick the
guest up at the Seattle-Tacoma International Airport. Agent Egbert
continued patrolling in his CBP vehicle for the rest of the morning
but stayed near the inn so he would see when the car carrying the
guest returned. When it arrived, he followed the car into the
driveway of the inn, passing a “no trespassing” sign. Agent Egbert
parked his vehicle behind the arriving car in the driveway
immediately adjacent to the inn.
Agent Egbert exited his patrol vehicle and
approached the car. Boule’s employee also exited the car; the guest
remained inside. From the front porch of his inn, Boule asked Agent
Egbert to leave. When Agent Egbert refused, Boule stepped off the
porch, positioned himself between Agent Egbert and the vehicle, and
explained that the person in the car was a guest who had come from
New York to Seattle and who had been through security at the
airport. Boule again asked Agent Egbert to leave. Agent Egbert
grabbed Boule by his chest, lifted him up, and shoved him against
the vehicle and then threw him to the ground. Boule landed on his
hip and shoulder.
Agent Egbert opened the car door and asked the
guest about his immigration status. Boule called 911 to request a
supervisor; Agent Egbert relayed the same request over his radio.
Several minutes later, a supervisor and another agent arrived at
the inn. After concluding that the guest was lawfully in the
country (just as Boule had previously informed Agent Egbert), the
three officers departed. Boule later sought medical treatment for
his injuries.
Boule complained to Agent Egbert’s superiors
about the incident and filed an administrative claim with CBP,
which allegedly prompted Agent Egbert to retaliate against Boule.
Agent Egbert contacted the Internal Revenue Service (IRS), the
Social Security Administration, the Washington State Department of
Licensing, and the Whatcom County Assessor’s Office, asking them to
investigate Boule’s business. These agencies did so, but none found
that Boule had done anything wrong. Boule paid over $5,000 to his
accountant to assist him in responding to the IRS’ tax audit. Boule
also filed claims pursuant to the Federal Tort Claims Act (FTCA),
which were denied. CBP’s investigation of Agent Egbert concluded
that he failed to be forthcoming with investigators and
“demonstrated lack of integrity,” serious offenses that warranted
his removal. Rev. Redacted App. 184.
B
Boule sued Agent Egbert in Federal District
Court, seeking damages under
Bivens v.
Six Unknown Fed.
Narcotics Agents,
403 U.S.
388, for violation of Boule’s First and Fourth Amendment
rights. The District Court granted summary judgment to Agent Egbert
on both claims. The Court of Appeals reversed, concluding that both
claims were cognizable under
Bivens. In the Court of
Appeals’ view, Boule’s Fourth Amendment claim constituted a modest
extension of
Bivens. Even so, the court explained, no
special factors counseled hesitation such that this extension
should be foreclosed; rather, “Boule’s Fourth Amendment excessive
force claim is part and parcel of the ‘common and recurrent sphere
of law enforcement’ ” that remained “a permissible area for
Bivens claims.” 998 F.3d 370, 389 (CA9 2021) (quoting
Ziglar, 582 U. S., at ___ (slip op., at 11)). The court
separately held that Boule’s First Amendment claim could proceed
under
Bivens.
This Court granted certiorari. 595 U. S.
___ (2021).
II
A
In
Bivens, the plaintiff alleged that
Federal Bureau of Narcotics agents unlawfully entered his apartment
in New York City and used constitutionally unreasonable force to
arrest him. 403 U. S., at 389. This Court observed that an
“agent acting—albeit unconstitutionally—in the name of the United
States possesses a far greater capacity for harm than an individual
trespasser exercising no authority other than his own.”
Id.,
at 392. The Fourth Amendment, the Court explained, “guarantees to
citizens of the United States the absolute right to be free from
unreasonable searches and seizures carried out by virtue of federal
authority.”
Ibid.
The Court ultimately held that a “violation of
[the Fourth Amendment] by a federal agent acting under color of his
authority gives rise to a cause of action for damages.”
Id.,
at 389. In doing so, the Court observed that existing state-law
causes of action were no substitute for a federal cause of action
because “[t]he interests protected by state laws regulating
trespass and the invasion of privacy” and those protected by the
Fourth Amendment “may be inconsistent or even hostile.”
Id.,
at 394; see also
id., at 410 (Harlan, J., concurring in
judgment) (“For people in Bivens’ shoes, it is damages or
nothing”).[
1] The Court also
noted that the case before it “involve[d] no special factors
counselling hesitation,” such as a question concerning federal
fiscal policy.
Id., at 396.
This Court has twice extended the cause of
action first articulated in
Bivens: first to a Fifth
Amendment due process claim for sex discrimination, see
Davis v.
Passman,
442 U.S.
228 (1979), and then to an Eighth Amendment deliberate
indifference claim for failure to provide proper medical attention,
see
Carlson v.
Green,
446 U.S.
14 (1980). In
Davis,
Carlson, and subsequent
cases, the Court built on
Bivens’ inquiry to develop a
two-step test for determining whether a
Bivens cause of
action may be “defeated.”
Carlson, 446 U. S., at 18.
First, the Court considered whether, under the circumstances of a
particular case, special factors counseled hesitation in allowing a
private right of action to proceed. See,
e.g.,
Bivens, 403 U. S., at 396;
Davis, 442
U. S., at 246;
Carlson, 446 U. S., at 18;
Bush v.
Lucas,
462 U.S.
367, 377–380 (1983). Second, the Court considered whether
“Congress has provided an alternative remedy which it explicitly
declared to be a
substitute for recovery directly under the
Constitution and viewed as equally effective.”
Carlson, 446
U. S., at 18–19; see also,
e.g.,
Davis, 442
U. S., at 246–247;
Bush, 462 U. S., at 377–378;
Wilkie v.
Robbins,
551
U.S. 537, 550 (2007) (describing this two-step test). Where,
for example, Congress crafted an “elaborate remedial system that
has been constructed step by step, with careful attention to
conflicting policy considerations,”
Bush, 462 U. S., at
388, this Court concluded that “it would be inappropriate
. . . to supplement that regulatory scheme with a new
judicial remedy,”
id., at 368; accord,
Schweiker v.
Chilicky,
487 U.S.
412, 414 (1988). Applying this two-step test, the Court has
declined to extend
Bivens beyond situations like those
addressed in
Davis,
Carlson, and
Bivens
itself. See
ante, at 1.
In
Ziglar v.
Abbasi, 582 U.S. 120,
the Court not only declined to extend
Bivens but also
revised and narrowed its two-step analytic framework. The
Ziglar Court set forth a new inquiry requiring courts
considering a
Bivens claim first to ask whether a case “is
different in a meaningful way from previous
Bivens cases
decided by this Court” and therefore arises in a “new
. . . context.” 582 U. S., at ___ (slip op., at 16);
see also
Hernández v.
Mesa, 589 U. S. ___, ___
(2020) (slip op., at 7). The
Ziglar Court offered a laundry
list of differences that “might” be meaningful, including “the rank
of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other legal
mandate under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential special factors that
previous
Bivens cases did not consider.” 582 U. S., at
___ (slip op., at 16). The Court recognized, however, that some
differences “will be so trivial that they will not suffice to
create a new
Bivens context.”
Id., at ___ (slip op.,
at 26).
If the differences are in fact “meaningful
ones,”
ibid., “then the context is new,”
id., at ___
(slip op., at 16), and a court “proceed[s] to the second step” of
the analysis,
Hernández, 589 U. S., at ___ (slip op.,
at 7). The second step requires courts to consider whether special
factors counsel hesitation in recognizing a
Bivens remedy in
a new context.
Ziglar, 582 U. S., at ___ (slip op., at
12);
Hernández, 589 U. S., at ___ (slip op., at 7).
Importantly, even as the
Ziglar Court
grafted a more demanding new-context inquiry onto the traditional
Bivens framework, the Court emphasized that its opinion was
“not intended to cast doubt on the continued force, or even the
necessity, of
Bivens in the search-and-seizure context in
which it arose.” 582 U. S., at ___ (slip op., at 11). Quite
the opposite: The Court recognized that
Bivens “vindicate[s]
the Constitution by allowing some redress for injuries” and
“provides instruction and guidance to federal law enforcement
officers going forward.” 582 U. S., at ___ (slip op., at 11).
Accordingly, the Court explained, there are “powerful reasons to
retain [
Bivens]” in the “common and recurrent sphere of law
enforcement.”
Ibid. The Court further recognized that
“individual instances of discrimination or law enforcement
overreach” are, by their nature, “difficult to address except by
way of damages actions after the fact.”
Id., at ___ (slip
op., at 21).
B
Ziglar and
Hernández control
here. Applying the two-step framework set forth in those cases, the
Court of Appeals’ determination that Boule’s Fourth Amendment claim
is cognizable under
Bivens should be affirmed for two
independent reasons. First, Boule’s claim does not present a new
context. Second, even if it did, no special factors would counsel
hesitation.
1
Boule’s Fourth Amendment claim does not arise
in a new context.
Bivens itself involved a U. S.
citizen bringing a Fourth Amendment claim against individual,
rank-and-file federal law enforcement officers who allegedly
violated his constitutional rights within the United States by
entering his property without a warrant and using excessive force.
Those are precisely the facts of Boule’s complaint.
The only arguably salient difference in
“context” between this case and
Bivens is that the
defendants in
Bivens were employed at the time by the
(now-defunct) Federal Bureau of Narcotics, while Agent Egbert was
employed by CBP. As discussed, however, this Court’s precedent
instructs that some differences are too “trivial . . . to
create a new
Bivens context.”
Ziglar, 582 U. S.,
at ___ (slip op., at 26).[
2]
That it was a CBP agent rather than a Federal Bureau of Narcotics
agent who unlawfully entered Boule’s property and used
constitutionally excessive force against him plainly is not the
sort of “meaningful” distinction that our new-context inquiry is
designed to weed out.
Ibid.
It is of course well established that a
Bivens suit involving an entirely “ ‘new category of
defendants’ ” arises in a “ ‘new context.’ ”
Ziglar, 582 U. S., at ___ (slip op., at 11); see also
Hernández, 589 U. S., at ___ (slip op., at 7). The
Court, however, has never relied on this principle to draw
artificial distinctions between line-level officers of the 83
different federal law enforcement agencies with authority to make
arrests and provide police protection. See Dept. of Justice, C.
Brooks, Federal Law Enforcement Officers, 2016—Statistical Tables
(NCJ 251922, Oct. 2019),
https://bjs.ojp.gov/content/pub/pdf/fleo16st.pdf. Indeed, if the
“new context” inquiry were defined at such a fine level of
granularity, every case would raise a new context, because the
Federal Bureau of Narcotics no longer exists. See National
Archives, Records of the Drug Enforcement Administration [DEA]
(Aug. 15, 2016), https://www.archives.gov/
research/guide-fed-records/groups/170.html.
Moreover, the “new category of defendants”
language traces back to a different concern raised in the Court’s
decision in
Correctional Services Corp. v.
Malesko,
534 U.S.
61, 68 (2001). That case involved an Eighth Amendment claim
brought by a federal prisoner against a private corporation under
contract with the federal Bureau of Prisons. The Court observed
that “the threat of suit against an individual’s employer,” rather
than “the individual directly responsible for the alleged injury,”
“was not the kind of deterrence contemplated by
Bivens.”
Id., at 70–71. Applying
Bivens to a corporate
defendant would amount to a “marked extension of
Bivens
. . . to contexts that would not advance
Bivens’
core purpose of deterring individual officers from engaging in
unconstitutional wrongdoing.”
Malesko, 534 U. S., at
74; see also
FDIC v.
Meyer,
510
U.S. 471, 485 (1994) (declining to allow a
Bivens claim
to proceed against a federal agency for similar reasons). Here, by
contrast, Boule’s suit against Agent Egbert directly advances that
core purpose.
At bottom, Boule’s claim is materially
indistinguishable from the claim brought in
Bivens. His case
therefore does not present a new context for the purposes of
assessing whether a
Bivens remedy is available.
2
Even assuming that this case presents a new
context, no special factors warrant foreclosing a
Bivens
action.
The Court “has not defined the phrase ‘special
factors counselling hesitation,’ ” but it has recognized that
the “inquiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action to
proceed.”
Ziglar, 582 U. S., at ___ (slip op., at 12);
see also
Hernández, 589 U. S., at ___–___ (slip op., at
7–8). For example, where a claim “would call into question the
formulation and implementation of a general policy” or “require
courts to interfere in an intrusive way with sensitive functions of
the Executive Branch,” recognizing a
Bivens action may be
inappropriate.
Ziglar, 582 U. S., at ___–___ (slip op.,
at 17–18); see also,
e.g.,
Chappell v.
Wallace,
462 U.S.
296, 300 (1983) (declining to extend
Bivens where
military personnel sought damages from superior officers, citing
concerns about “tamper[ing] with the established relationship
between enlisted military personnel and their superior officers,”
which lies “at the heart of the necessarily unique structure of the
Military Establishment”). Precedent thus establishes that
“separation-of-powers principles . . . should be central
to the [special-factors] analysis.”
Ziglar, 582 U. S.,
at ___ (slip op., at 12).
Here, the only possible special factor is that
Boule’s property abuts an international border. Boule’s case,
however, is a far cry from others in which the Court declined to
extend
Bivens for reasons of national security or foreign
relations. In
Hernández, for example, a CBP agent shot and
killed a Mexican child across the U. S.-Mexico border. 589
U. S., at ___ (slip op., at 2). The Mexican Government
unsuccessfully sought extradition of the agent to Mexico, and after
an investigation, the U. S. Department of Justice declined to
bring charges against the agent.
Ibid. The parents of the
deceased child attempted to bring a
Bivens action against
the CBP agent, but this Court held that several “warning flags”
counseled caution, including a “potential effect on foreign
relations.”
Hernández, 589 U. S., at ___ (slip op., at
9). The Court observed that “[a] cross-border shooting is by
definition an international incident,” and that both the United
States and Mexico had “legitimate and important interests that may
be affected by the way in which this matter is handled.”
Id., at ___, ___ (slip op., at 9, 11). The Court concluded
that because “regulating the conduct of agents at the border
unquestionably has national security implications, the risk of
undermining border security provides reason to hesitate before
extending
Bivens into this field.”
Id., at ___ (slip
op., at 14).
The conduct here took place near an
international border and involved a CBP agent. That, however, is
where the similarities with
Hernández begin and end. The
conduct occurred exclusively on U. S. soil, and the injury was
to a U. S. citizen. This case therefore does not present an
“international incident” that might affect diplomatic relations,
unlike the cross-border killing of a foreign-national child. As for
national-security concerns, the Court in
Hernández
emphasized that “some [CBP agents] are stationed right at the
border and have the responsibility of attempting to prevent illegal
entry”; it was “[f]or th[i]s reaso[n],” among others, that their
conduct had “a clear and strong connection to national security.”
Id., at ___ (slip op., at 13). Here, by contrast, Agent
Egbert was not “attempting to prevent illegal entry” or otherwise
engaged in activities with a “strong connection to national
security.”
Ibid. Agent Egbert was aware (because Boule had
told him earlier in the day and again at the scene) that the
foreign national arriving at the inn had already entered the United
States by airplane and had been processed by U. S. customs at
the airport in New York the previous day.
Nor does this case present special factors
similar to those that deterred the Court from recognizing a
Bivens action in
Ziglar. In that case, foreign
nationals who had been unlawfully present in the United States
brought a
Bivens action against three “high executive
officers in the Department of Justice” and two wardens of the
facility where they had been held.
Ziglar, 582 U. S.,
at ___ (slip op., at 2). The Court reasoned that allowing the
plaintiffs’ claims to proceed against the executive officers “would
call into question the formulation and implementation of a general
policy,” and that the discovery and litigation process would
“border upon or directly implicate the discussion and deliberations
that led to the formation of the policy in question,” thereby
implicating sensitive national-security functions entrusted to
Congress and the President.
Id., at ___–___ (slip op., at
17–18). If
Bivens liability were imposed, the Court
explained, “high officers who face personal liability for damages
might refrain from taking urgent and lawful action in a time of
crisis,” and “the costs and difficulties of later litigation might
intrude upon and interfere with the proper exercise of their
office.”
Ziglar, 582 U. S., at ___ (slip op., at
22).
Here, Boule plainly does not seek to challenge
or alter “high-level executive policy.”
Id., at ___ (slip
op., at 16). Allowing his claim to proceed would not require courts
to intrude into “the discussion and deliberations that led to the
formation” of any policy or national-security decision or interest.
Id., at ___ (slip op., at 18). Agent Egbert, a line officer,
was engaged in a run-of-the-mill inquiry into the status of a
foreign national on U. S. soil who had no actual or suggested
ties to terrorism, and who recently had been through U. S.
customs to boot. See
id., at ___ (slip op., at 21)
(distinguishing a challenge to “individual instances of
discrimination or law enforcement overreach,” which lends itself to
a
Bivens action, from a challenge to “large-scale policy
decisions,” which does not). No special factors counsel against
allowing Boule’s
Bivens action to proceed.
C
Boule also argues that his First Amendment
retaliatory-investigation claim is cognizable under
Bivens.
I concur in the Court’s judgment that it is not, but I arrive at
that conclusion by following precedent rather than by applying the
Court’s new, single-step inquiry.
Ante, at 7; see
infra, at 15–17.
This Court has repeatedly assumed without
deciding that
Bivens extends to First Amendment claims, see
Wood v.
Moss,
572 U.S.
744, 757 (2014), but has never squarely held as much, see
Reichle v.
Howards,
566 U.S.
658, 663, n. 4 (2012). Accordingly, Boule’s First
Amendment retaliation presents a new context for the purpose of the
Bivens analysis. See
Ziglar, 582 U. S., at ___
(slip op., at 24) (noting that a case can present a new context if
it implicates a different constitutional right than those already
recognized as cognizable under
Bivens).
Moving to the second step of the
Bivens
inquiry, unlike Boule’s Fourth Amendment claim, there is “reason to
pause” before extending
Bivens to Boule’s First Amendment
claim.
Hernández, 589 U. S., at ___ (slip op., at 7).
In particular, his First Amendment claim raises line-drawing
concerns similar to those this Court identified in
Wilkie,
551 U.S.
537. In
Wilkie, a landowner sought to bring a
Bivens action against federal officials whom the landowner
accused of harassment and intimidation meant to extract an easement
across his property. 551 U. S., at 541. The Court observed
that “defining a workable cause of action” for such a claim was
“difficul[t].”
Id., at 555; see also
id., at 557.
Recognizing a
Bivens action to redress retaliation under
such circumstances would, in the Court’s view, “invite claims in
every sphere of legitimate governmental action affecting property
interests” and “across this enormous swath of potential litigation
would hover the difficulty of devising a . . . standard
that could guide an employee’s conduct and a judicial factfinder’s
conclusion.” 551 U. S., at 561. Because of the “elusiveness of
a limiting principle” for claims like the landowner’s,
id.,
at 561, n. 11, the Court decided that courts were ill equipped
to tailor an appropriate remedy,
id., at 562.
Boule’s First Amendment retaliation claim raises
similar concerns. Unlike the constitutional rights this Court has
recognized as cognizable under
Bivens, First Amendment
retaliation claims could potentially be brought against many
different federal officers, stretching substantially beyond the
“common and recurrent sphere of law enforcement” to reach virtually
all federal employees.
Ziglar, 582 U. S., at ___ (slip
op., at 11). Under such circumstances, this Court’s precedent holds
that “ ‘evaluat[ing] the impact of a new species of
litigation’ ” on the efficiency of civil service is a task for
Congress, not the courts.
Wilkie, 551 U. S., at 562;
see also
Ziglar, 582 U. S., at ___ (slip op., at 13). I
therefore concur in the judgment as to the Court’s reversal of the
Court of Appeals’ conclusion that Boule’s First Amendment
Bivens action may proceed, not for the reasons the Court
identifies,
ante, at 13–16, but because precedent requires
it.
III
If the legal standard the Court articulates to
reject Boule’s Fourth Amendment claim sounds unfamiliar, that is
because it is. Just five years after circumscribing the standard
for allowing
Bivens claims to proceed, a restless and newly
constituted Court sees fit to refashion the standard anew to
foreclose remedies in yet more cases. The measures the Court takes
to ensure Boule’s claim is dismissed are inconsistent with
governing precedent.
A
Two Terms ago, this Court reiterated and
reaffirmed
Ziglar’s two-step test for assessing whether a
claim may be brought as a
Bivens action. See
Hernández, 589 U. S., at ___ (slip op., at 7) (“When
asked to extend
Bivens, we engage in a two-step inquiry”).
Today, however, the Court pays lip service to the test set out in
our precedents, but effectively replaces it with a new single-step
inquiry designed to constrict
Bivens.
Ante, at 7
(acknowledging this Court’s previous “two ste[p]” standard but
insisting that “those steps often resolve to a single question:
whether there is any reason to think that Congress might be better
equipped to create a damages remedy”);
ante, at 8 (positing
that “[t]he newness of [some] ‘new context[s]’ should alone require
dismissal” (some internal quotation marks omitted)). The Court goes
so far as to announce that “[t]he
Bivens inquiry does not
invite federal courts to independently assess the costs and
benefits of implying a cause of action,”
ante, at 11;
instead, courts must “only” decide “whether there is
any
rational reason (even one) to think that
Congress is better
suited to ‘weigh the costs and benefits of allowing a damages
action to proceed,’ ”
ibid. (quoting
Ziglar, 582
U. S., at ___ (slip op., at 12)).
That approach contrasts starkly with the
standard the Court announced in
Ziglar and applied in
Hernández. This Court regularly has considered whether
courts are “well suited . . . to consider and weigh the
costs and benefits of allowing a damages action to proceed,”
Ziglar, 582 U. S., at ___ (slip op., at 12), and have
never held that such weighing is categorically impermissible,
contrary to the Court’s analysis today. See also
Wilkie, 551
U. S., at 554 (noting that the
Bivens inquiry asks
courts to “weig[h] reasons for and against the creation of a new
cause of action”).
The Court justifies its innovations by
selectively quoting our precedents and presenting its newly
announced stand-ard as if it were always the rule. The Court’s
repeated citation to
United States v.
Stanley,
483 U.S.
669 (1987), is just one example. The Court cites
Stanley
for, among other things, the proposition that the special-factors
analysis must be conducted at a very broad level of generality.
Ante, at 11.
Stanley, however, cautioned against a
case-specific special-factors analysis in the narrow context of
“judicial intrusion upon military discipline.” 483 U. S., at
681. As it had in previous cases seeking to raise
Bivens
actions in the military context, the
Stanley Court
emphasized the need to be “protective of military concerns,” 483
U. S., at 681, and to avoid “call[ing] into question military
discipline and decisionmaking,”
id., at 682. The Court
therefore determined that in the military sphere, the
special-factors analysis should be applied somewhat more broadly
than the respondent urged.
Id., at 681.
Stanley, in
other words, reflected the Court’s longstanding approach to
Bivens cases: considering the facts and the substantive
context of each case and determining whether special factors
counseled hesitation.
Stanley did not purport to articulate
a special-factors framework that should apply to all
Bivens
cases going forward.
The Court further declares that “a plaintiff
cannot justify a
Bivens extension based on ‘parallel
circumstances’ ” with previous cases that have recognized a
Bivens remedy.
Ante, at 17. To the extent these
statements suggest an exacting new-context inquiry, they are in
serious tension with the Court’s longstanding rule that trivial
differences alone do not create a new
Bivens context. See
Ziglar, 582 U. S., at ___ (slip op., at 26); see also
ante, at 2 (Gorsuch, J., concurring in judgment) (“Candidly,
I struggle to see how this set of facts differs meaningfully from
those in
Bivens itself ”). Indeed, until today, the
Court has never so much as hinted that courts should refuse to
permit a
Bivens action in a case involving facts
substantially identical to those in
Bivens itself.
Supra, at 8–9.[
3]
B
The Court’s application of its new standard to
Boule’s Fourth Amendment claim underscores just how novel that
standard is. Even assuming the claim presents a new context, the
Court’s insistence that national-security concerns bar the claim
directly contravenes
Ziglar. Moreover, the Court’s holding
that a nonbinding administrative investigation process, internal to
the agency and offering no meaningful protection of the
constitutional interests at stake, constitutes an alternative
remedy that forecloses
Bivens relief blinks reality.
1
The Court acknowledges the force of the Court
of Appeals’ conclusion that
Bivens and this case present
“ ‘almost parallel circumstances,’ ” but it nonetheless
concludes that a most unlikely special factor counsels hesitation:
the “national-security context.”
Ante, at 10. By the Court’s
telling,
Hernández declined to recognize a
Bivens
action “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.’ ”
Ante, at 9
(quoting
Hernández, 589 U. S., at ___ (slip op., at
14)). That reasoning, the Court concludes, “applies here with full
force” because “national security is at issue.”
Ante, at
9–10.
This is sheer hyperbole. Most obviously, the
Court’s conclusion that this case, which involves a physical
assault by a federal officer against a U. S. citizen on
U. S. soil, raises “national security” concerns does exactly
what this Court counseled against just four years ago. Back then,
the Court advised that “national-security concerns must not become
a talisman to use to ward off inconvenient claims—a ‘label’ used to
‘cover a multitude of sins.’ ”
Ziglar, 582 U. S.,
at ___ (slip op., at 20) (quoting
Mitchell v.
Forsyth,
472 U.S.
511, 523 (1985)). It explained that this “danger of abuse is
even more heightened given the difficulty of defining the security
interest in domestic cases.”
Ziglar, 582 U. S., at ___
(slip op., at 20) (internal quotation marks omitted). This case
does not remotely implicate national security. The Court may wish
it were otherwise, but on the facts of this case, its effort to
raise the specter of national security is mere sleight of hand.
Nor is there any indication that Congress acted
to deny a
Bivens remedy for a case like this, which
otherwise might counsel hesitation. See
Bush, 462
U. S., at 368 (declining to “supplement” Congress’ existing
scheme “with a new judicial remedy”). Congress has not provided
that federal law enforcement officers may enter private property
near a border at any time or for any purpose. Quite the contrary:
Congress has determined that immigration officers may enter
“private lands” within 25 miles of an international border without
a warrant only “for the purpose of patrolling the border to prevent
the illegal entry of aliens into the United States.” 66Stat. 233, 8
U. S. C. §1357(a)(3). This allowance is itself subject to
exceptions: Officers cannot enter a “dwellin[g]” for immigration
enforcement purposes without a warrant.
Ibid. Mere proximity
to a border, in other words, did not give Agent Egbert greater
license to enter Boule’s property. Nor does it diminish or call
into question the remedies for constitutional violations that a
plaintiff may pursue, particularly where, as here, an agent
unquestionably was not acting “for the purpose of patrolling the
border to prevent the illegal entry of aliens into the United
States.”
Ibid.
Remarkably, the Court goes beyond invoking its
national-security talisman in this case alone. In keeping with the
unprecedented level of generality the Court imports into the
special-factors analysis, the Court holds that courts are not
“competent to authorize a damages action . . . against
Border Patrol agents generally.”
Ante, at 11
. This
extraordinary and gratuitous conclusion contradicts decades of
precedent requiring a context-specific determination of whether a
particular claim presents special factors counseling hesitation.
See
supra, at 6–8.[
4]
The consequences of the Court’s drive-by,
categorical assertion will be severe. 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. That will preclude redress under
Bivens for injuries resulting from constitutional violations
by CBP’s nearly 20,000 Border Patrol agents, including those
engaged in ordinary law enforcement activities, like traffic stops,
far removed from the border. U. S. Customs and Border
Protection, On a Typical Day in Fiscal Year 2021, CBP
. . . (2022), https://www.cbp.gov/
newsroom/stats/typical-day-fy2021. This is no hypothetical: Certain
CBP agents exercise broad authority to make warrantless arrests and
search vehicles up to 100 miles away from the border. See 8
U. S. C. §1357(a); 8 CFR §287.1(a)(2) (2021). The Court’s
choice to foreclose liability for constitutional violations that
occur in the course of such activities, based on even the most
tenuous and hypothetical connection to the border (and thereby, to
the “national- security context”), betrays the context-specific
nature of
Bivens and shrinks
Bivens in the core
Fourth Amendment law enforcement sphere where it is needed most.
See
Ziglar, 582 U. S., at ___ (slip op., at
11).[
5]
2
The Court further proclaims that Congress has
provided alternative remedies that “independently foreclose” a
Bivens action in this case.
Ante, at 12. The
administrative remedy the Court perceives, however, is no remedy
whatsoever.
The sole “remedy” the Court cites is an
administrative grievance procedure that does not provide Boule with
any relief. The statute on which the Court relies provides: The
“Secretary of Homeland Security . . . shall have control,
direction, and supervision of all employees and of all the files
and records of [CBP].” 8 U. S. C. §1103(a)(2); see
ante, at 12. Administrative regulations direct CBP to
investigate alleged violations of its own standards by its own
employees. See 8 CFR §§287.10(a)–(b).[
6] The Court sees fit to defer to this procedure, even
while acknowledging that complainants in Boule’s position have no
right to participate in the proceedings or to seek judicial review
of any determination.
Ante, at 12. The Court supports its
conclusion that CBP’s internal administrative grievance procedure
offers an adequate remedy by insisting that “we have never held
that a
Bivens alternative must afford rights to
participation or appeal.”
Ante, at 13. In the Court’s view,
“[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.”
Ibid.
(emphasis added).
This analysis drains the concept of “remedy” of
all meaning. To be sure, the Court has previously deemed
Bivens claims foreclosed by “substantive” remedies to
claimants that are in significant part administrative.
Bush,
462 U. S., at 385; see also,
e.g.,
Schweiker,
487 U. S., at 424–425. The Court also has recognized that
existing remedies need not “provide complete relief for the
plaintiff,”
Bush, 462 U. S., at 388, including loss due
to emotional distress or mental anguish, or attorney’s fees,
Schweiker, 487 U. S., at 424–425. Until today, however,
this Court has never held that a threadbare disciplinary review
process, expressly conferring no substantive rights, “secure[s]
adequate deterrence and afford[s] . . . an alternative
remedy.”
Ante, at 14. Nor has it held that remedies
providing no relief to the individual whose constitutional rights
have been violated are “adequate” for the purpose of foreclosing a
Bivens action. To the contrary, each of the alternative
remedies the Court has recognized has afforded participatory
rights, an opportunity for judicial review, and the potential to
secure at least some meaningful relief. See,
e.g.,
Minneci v.
Pollard,
565 U.S.
118, 127 (2012) (state tort law);
Ziglar, 582
U. S., at ___ (slip op., at 25) (petition for writ of habeas
corpus or injunctive relief );
Bush, 462 U. S., at
385.[
7]
The Court previously has emphasized that a
Bivens action may be inappropriate where “Congress has
provided an alternative remedy which it explicitly declared to be a
substitute for recovery directly under the Constitution and viewed
as equally effective.”
Carlson, 446 U. S., at 18–19
(emphasis deleted). Thus, our cases declining to extend
Bivens have done so where Congress, sometimes in conjunction
with the Executive Branch, provided “comprehensive” and meaningful
remedies.
Bush, 462 U. S., at 388; see also
Schweiker, 487 U. S., at 414, 423, 428 (emphasizing
that the “design” of the “elaborate remedial scheme” in the Social
Security disability program “suggests that Congress has provided
what it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administration”);
Malesko, 534 U. S., at 72 (noting that remedies
available to the plaintiff were “at least as great, and in many
respects greater, than anything that could be had under
Bivens”);
Minneci, 565 U. S., at 120 (rejecting
Bivens action for Eighth Amendment violations against
employees of a privately operated federal prison because “state
tort law authorizes adequate alternative damages actions—actions
that provide both significant deterrence and compensation”). By the
Court’s logic, however, the existence of any disciplinary
framework, even if crafted by the Executive Branch rather than
Congress, and even if wholly nonparticipatory and lacking any
judicial review, is sufficient to bar a court from recognizing a
Bivens remedy. That reasoning, as disturbing as it is wrong,
marks yet another erosion of
Bivens’ deterrent function in
the law enforcement sphere.[
8]
C
The Court thinly veils its disapproval of
Bivens, ending its opinion by citing a string of dissenting
opinions and single-Member concurrences by various Members of this
Court expressing criticisms of
Bivens.
Ante, at
16–17. But the Court unmistakably stops short of overruling
Bivens and its progeny, and appropriately so. Even while
declining to extend
Bivens to new contexts, this Court has
reaffirmed that it did “not inten[d] to cast doubt on the continued
force, or even the necessity, of
Bivens in the
search-and-seizure context in which it arose.”
Ziglar, 582
U. S., at ___ (slip op., at 11). Although today’s opinion will
make it harder for plaintiffs to bring a successful
Bivens
claim, even in the Fourth Amendment context, the lower courts
should not read it to render
Bivens a dead letter.
That said, the Court plainly modifies the
Bivens standard in a manner that forecloses Boule’s claims
and others like them that should be permitted under this Court’s
Bivens precedents. That choice is in tension with the
Court’s insistence that “prescribing a cause of action is a job for
Congress, not the courts.”
Ante, at 1; see
ante, at
11 (cautioning against “frustrat[ing] Congress’s policymaking role”
when considering whether special factors counsel hesitation).
Faithful adherence to this logic counsels maintaining
Bivens
in its current scope, but does not support changing the status quo
to constrict
Bivens, as the Court does today. Congress,
after all, has recognized and relied on the
Bivens cause of
action in creating and amending other remedies, including the FTCA.
By nevertheless repeatedly amending the legal standard that applies
to
Bivens claims and whittling down the number of claims
that remain viable, the Court itself is making a policy choice for
Congress. Whatever the merits of that choice, the Court’s decision
today is no exercise in judicial modesty.
* * *
This Court’s 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 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. I
respectfully dissent from the Court’s treatment of Boule’s Fourth
Amendment claim.