In Egbert v. v. Boule, No. 21-147 (June 8, 2022), the Court held that the authority of a court to imply a cause of action under Bivens does not extend to Robert Boule’s Fourth Amendment excessive-force claim or his First Amendment retaliation claim.
Respondent Robert Boule is a U.S. Citizen who owns and operates the Smuggler’s Inn, a bed and breakfast close to the Canadian border in Blaine, Washington. He also drives a car with a SMUGGLER vanity plate and is an informant for the U.S. Customs and Border Patrol. Petitioner Eric Egbert is a Border Patrol agent who attempted to speak with one of Mr. Boule’s guests, newly arrived from Turkey, outside of the Inn. When Boule objected and asked Egbert to leave, Egbert refused, became violent, and threw Boule first against the a vehicle and then to the ground. Egbert then checked the Turkish guest’s immigration paperwork and left after finding everything in order.
After Boule filed a grievance with Egbert’s supervisors, Egbert contacted the IRS and state agencies, prompting a tax audit and investigations of Boule’s activities. Border Patrol took no action against Egbert. Boule then sued Egbert in federal district court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment unlawful retaliation claim. he district court denied Boule’s argument to recognize a damages action for the constitutional violations, but the Ninth Circuit reversed.
The Supreme Court reversed with Justice Thomas delivering the opinion, joined by Chief Justice Roberts, and Justices Alito, Kavanaugh and Barrett. The opinion started this way:
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations. See Chappell v. Wallace, 462 U. S. 296 (1983); Bush v. Lucas, 462 U. S. 367 (1983); United States v. Stanley, 483 U. S. 669 (1987); Schweiker v. Chilicky, 487 U. S. 412 (1988); FDIC v. Meyer, 510 U. S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001); Wilkie v. Robbins, 551 U. S. 537 (2007); Hui v. Castaneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565 U. S. 118 (2012); Ziglar v. Abbasi, 582 U. S. ___ (2017); Hernández v. Mesa, 589 U. S. ___ (2020). Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim. Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.
Justice Gorsuch wrote a separate concurrence, suggesting that the Court should overturn Bivens.
Justice Sotomayor, joined by Justices Breyer and Kagan, concurred and in part and dissented in part, stating:
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.