SUPREME COURT OF THE UNITED STATES
ERIK EGBERT, PETITIONER v.
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
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
Today’s decision does not overrule Bivens
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.
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
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.
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.
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).
, 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
442 U.S. 228
(1979), and then to an
Eighth Amendment deliberate indifference claim for failure to provide proper medical attention, see Carlson
446 U.S. 14
(1980). In Davis
, 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.
, 403 U. S., at 396; Davis
, 442 U. S., at 246; Carlson
, 446 U. S., at 18; Bush
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.
, 442 U. S., at 246–247; Bush
, 462 U. S., at 377–378; Wilkie
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
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
, and Bivens
itself. See ante
, at 1.
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
, 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
, 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).
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.
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
, 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.
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
, 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
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.
Even assuming that this case presents a new context, no special factors warrant foreclosing a Bivens
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.
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.
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
First Amendment claims, see Wood
572 U.S. 744
, 757 (2014), but has never squarely held as much, see Reichle
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
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.
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.
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.
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
, 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.
, 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
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
, 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
, at 8–9.[3
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.
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
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.”
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
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
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.
, 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.
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
, 565 U. S., at 120 (rejecting Bivens
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
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
, 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.