Robert Boule v. Erik Egbert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT BOULE, No. 18-35789

Plaintiff-Appellant,

D.C. No.

v. 2:17-cv-00106-

RSM

ERIK EGBERT; JANE DOE EGBERT,

and their marital community,

Defendants-Appellees. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted October 7, 2020

Seattle, Washington

Filed November 20, 2020

Amended May 20, 2021

Before: Susan P. Graber and William A. Fletcher, Circuit

Judges, and Nancy D. Freudenthal,* District Judge.

*

The Honorable Nancy D. Freudenthal, United States District Judge

for the District of Wyoming, sitting by designation.

2 BOULE V. EGBERT

Order;

Dissent to Order by Judge Bumatay;

Dissent to Order by Judge Owens;

Dissent to Order by Judge Bress;

Opinion by Judge W. Fletcher

SUMMARY**

Civil Rights

The panel amended its opinion filed on November 20,

2020, ordered the amended opinion to be filed concurrently

with the panel’s order, and denied a petition for rehearing en

banc after the matter failed to receive a majority of the votes

of the non-recused active judges in favor of en banc

consideration.

In the amended opinion, the panel reversed the district

court’s summary judgment for defendants in an action

brought pursuant to Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971) by a

United States citizen who alleged that a border patrol agent,

acting on plaintiff’s property within the United States,

violated plaintiff’s rights under the First and Fourth

Amendments.

Plaintiff owns, operates and lives in a bed and breakfast

in the state of Washington, on land which touches the United

States-Canada border. Plaintiff alleged that a border patrol

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BOULE V. EGBERT 3

agent entered the driveway of plaintiff’s property to question

arriving guests; used excessive force against plaintiff, and

then, in response to plaintiff's complaints, retaliated against

plaintiff by, among other things, contacting the Internal

Revenue Service, asking the agency to look into plaintiff’s

tax status. The district court granted summary judgment to

defendants on plaintiff’s Fourth and First Amendment claims,

holding that claims were impermissible extensions of Bivens.

The panel held that Bivens remedies were available in the

circumstances of this case, where a United States citizen

claimed that a border patrol agent violated the Fourth

Amendment by using excessive force while carrying out

official duties within the United States and violated the First

Amendment by engaging in retaliation for protected speech.

Addressing the Fourth Amendment claim, the panel

agreed with the district court that it presented an extension of

previous Bivens cases in that Agent Egbert was an agent of

the border patrol rather than of the F.B.I. But it was a modest

extension, in that border patrol and F.B.I. agents are both

federal law enforcement officials, and in that plaintiff’s

Fourth Amendment excessive force claim was

indistinguishable from Fourth Amendment excessive force

claims that are routinely brought under Bivens against F.B.I.

agents. The panel did not find that special factors counseled

hesitation such that a Bivens action in this new context was

foreclosed. Plaintiff, a United States citizen, brought a

conventional Fourth Amendment excessive force claim

arising out of actions by a rank-and-file border patrol agent

on plaintiff’s own property in the United States. This context

was a far cry from the contexts in Ziglar v. Abbasi, 137 S. Ct.

1843, 1857 (2017), and Hernandez v. Mesa, 140 S. Ct. 735,

743 (2020), where the Supreme Court found that special

4 BOULE V. EGBERT

factors counseled against a Bivens action. The panel held that

any costs imposed by allowing a Bivens claim to proceed

were outweighed by compelling interests in favor of

protecting United States citizens on their own property in the

United States from unconstitutional activity by federal agents.

Addressing the First Amendment claim, the panel noted

that although the Supreme Court wrote in Hartman v. Moore,

547 U.S. 250 (2006), that Bivens extends to First Amendment

retaliation claims when federal law enforcement officials

have no innocent motives for their action, the panel

recognized that the Supreme Court has not expressly so held.

The panel therefore concluded that plaintiff’s First

Amendment retaliation claim arose in a new context.

However, the panel found no special factors that made it

inadvisable to find a cognizable Bivens claim. The panel first

noted that in Gibson v. United States, 781 F.2d 1334 (9th Cir.

1986), this court upheld a Bivens claim against federal

officers who sought to curb plaintiff’s protected First

Amendment speech. Second, although the panel recognized

that the Supreme Court declined to recognize a Bivens action

in Bush v. Lucas, 462 U.S. 367 (1983), that case involved a

very different context, arising out of an employment

relationship that was governed by comprehensive procedural

and substantive provisions giving meaningful remedies

against the United States. Third, there was even less reason

to hesitate in extending Bivens to plaintiff’s First Amendment

retaliation claim than there was to his Fourth Amendment

excessive force claim given that Agent Egbert was not

carrying out his official duties when he contacted the Internal

Revenue Service and other agencies asking for investigation

of plaintiff.

BOULE V. EGBERT 5

The panel rejected the suggestion that plaintiff had

alternative remedies that would defeat a Bivens claim. The

panel first noted that in Carlson v. Green, 446 U.S. 14 (1980),

the Supreme Court held that the existence of a remedy under

the Federal Torts Claim Act, 28 U.S.C. § 2680(h) did not

foreclose a Bivens action. Second, a state-law trespass claim

against Agent Egbert in his individual capacity was barred by

the Westfall Act. Finally, injunctive relief was an inadequate

remedy, for plaintiff was seeking damages rather than

protection against some future act.

Dissenting from the denial of rehearing en banc, Judge

Bumatay, joined by Judges Callahan, Ikuta, Bennett,

R. Nelson, Lee and VanDyke, stated that the court had

extended Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) to two new

contexts: one involving the First Amendment and another

involving the Fourth Amendment at the border. By avoiding

the Constitution’s limits on the judicial power, the court had

become an outlier among its fellow circuit courts, established

itself as a quasi-legislature and improperly disregarded the

Supreme Court’s precedents. Judge Bumatay wrote that the

court could not respond to executive transgression of the

Constitution with its own judicial overreach; it was not within

the power of federal judges to create a cause of action for

plaintiff, no matter how convinced they were that he deserved

one.

Dissenting from the denial of rehearing en banc, Judge

Owens, referring to a law review article he wrote in 1997,

John B. Owens, Note, Judge Baer and the Politics of the

Fourth Amendment: An Alternative to Bad Man

Jurisprudence, 8 Stan. L. & Pol’y Rev. 189 (1997) (pointing

out the limitations of Bivens actions and setting forth some

6 BOULE V. EGBERT

admittedly pie in the sky solutions), stated that he continues

to believe that new legislation that permits plaintiffs to

vindicate their rights is better than the current jurisprudential

word jumble.

Dissenting from the denial of rehearing en banc, Judge

Bress, joined by Judges Bade, Collins and Hunsaker, stated

that the panel opinion in this case recognized two novel

implied rights of action under Bivens. In so doing, the panel

decision was significantly out of step with modern Supreme

Court cases emphasizing that the Bivens remedy is not to be

lightly extended. Judge Bress stated that there were many

reasons counseling hesitation in devising court-created First

and Fourth Amendment damages remedies against a federal

agent for actions relating to his investigation of an

international traveler near the international border.

COUNSEL

Breean L. Beggs (argued), Paukert & Troppmann PLLC,

Spokane; Gregory Donald Boos, W. Scott Railton, and Halley

Carlson Fisher, Cascadia Cross-Border Law, Bellingham,

Washington; for Plaintiff-Appellant.

Geoff Grindeland (argued) and Nikki Carsley, Seamark Law

Group PLLC, Bainbridge Island, Washington, for

Defendants-Appellees.

Matt Adams (argued), Northwest Immigrant Rights Project,

Seattle, Washington; Mary Kenney, American Immigration

Council, Washington, D.C.; Trina Realmuto, American

Immigration Council, Brookline, Massachusetts; for Amici

BOULE V. EGBERT 7

Curiae American Immigration Council and Northwest

Immigrant Rights Project.

ORDER

The opinion filed on November 20, 2020, and reported at

Boule v. Egbert, 980 F.3d 1309 (9th Cir. 2020), is amended,

and the amended opinion is filed concurrently with this order.

An active judge of this court sua sponte requested a vote

on whether to rehear this case en banc. A vote was taken and

the matter failed to receive a majority of the votes of the non-

recused active judges in favor of en banc consideration. See

Fed. R. App. P. 35(f). Rehearing en banc is DENIED.

Judge Bumatay’s, Judge Owens’s, and Judge Bress’s

dissents from the denial of rehearing en banc are attached and

filed concurrently with this order.

BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA,

BENNETT, R. NELSON, LEE, and VANDYKE, Circuit

Judges, dissenting from the denial of rehearing en banc:

Contrary to common belief, the Constitution’s “radical

innovation” is not its various enumerated rights—as

cherished and fundamental as they are.1 It is the

Constitution’s design for the separation of powers that has

become among the “most important contributions to human

1

Neil Gorsuch, A Republic, If You Can Keep It 40 (2019).

8 BOULE V. EGBERT

liberty.”2 Having “lived among the ruins of a system of

intermingled legislative and judicial powers,” our Founders

sensed the “sharp necessity to separate the legislative from

the judicial power.” Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 219, 221 (1995). The result is the clear division of

authorities between Congress’s “legislative powers” and the

Judiciary’s “judicial Power.” U.S. Const. art. I, § 1; id. art.

III, § 1.

In this case, we are asked to decide which branch of

government may create the legal remedies available to the

people for constitutional violations. From the ratification of

the Bill of Rights until 1971, the Judiciary has rightfully

respected the separation of powers and deferred to Congress

and the States to provide remedies for such violations. That

all changed when the Supreme Court for the first time read an

implied cause of action into the Constitution for violation of

the Fourth Amendment. See Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The Court, of course, did not ground such a ruling in the text

or history of the Constitution, but relied on the amorphous

belief that federal courts have the authority to “make good the

wrong done.” Id. at 396.

Since then, however, the Court has seemingly shown

buyer’s remorse— recognizing Bivens as a judicial usurpation

of the legislative function and blocking its expansion to any

new amendments, contexts, or defendants. In consequence,

the judicial practice of creating constitutional causes of action

is widely considered disfavored—if not a dead letter.

2

Id.

BOULE V. EGBERT 9

Against this current, our court charges ahead, resurrecting

Bivens in spite of the Court’s clear instructions. Here, we

extend Bivens to two new contexts: one involving the First

Amendment and another involving the Fourth Amendment at

the border. Never mind that the Court has never extended

Bivens to the First Amendment. And never mind that it has

never extended Bivens to any case with national security

implications.

By avoiding the Constitution’s limits on the “judicial

Power,” we become an outlier among our fellow circuit

courts and establish ourselves as a quasi-legislature. Because

we far exceeded our limited judicial role and improperly

disregarded the Court’s precedents in this case, I respectfully

dissent from the denial of rehearing en banc.

I.

Robert Boule operates a bed and breakfast located directly

adjacent to the border with Canada, in Blaine, Washington.

Boule v. Egbert, 980 F.3d 1309, 1312 (9th Cir. 2020). The

B&B is aptly called “Smuggler’s Inn,” because it’s a

notorious site for illegal border crossing.3 Large shipments

of cocaine, methamphetamine, ecstasy, and opiates have

previously been intercepted at Smuggler’s Inn. U.S. Border

Patrol Agent Erik Egbert knew about this history. In fact, as

a Border Patrol Agent investigating counterterrorism and

cross-border crimes, Agent Egbert had been to Smuggler’s

Inn many times while on patrol and had apprehended persons

who had illegally crossed the border at the spot.

3

Boule has since been arrested by Canadian authorities and charged

with human trafficking.

10 BOULE V. EGBERT

While on duty, Agent Egbert encountered Boule in town.

To Egbert’s recollection, Boule told him that a Turkish

national would be arriving at Smuggler’s Inn that day. Boule

said that two of his employees went to the airport to pick up

the individual. Agent Egbert decided to investigate the

Turkish national’s arrival.

Later that day, Agent Egbert waited in his patrol car near

Smuggler’s Inn for the Turkish guest. When the vehicle

transporting the guest arrived, Agent Egbert followed it into

the Inn’s driveway. As Egbert approached, Boule asked the

agent to leave. Agent Egbert refused, so Boule stepped

between Egbert and the vehicle. Agent Egbert responded by

pushing him to the ground, which later caused him to seek

medical treatment. Agent Egbert then determined that the

Turkish guest was lawfully in the country. Afterward, Boule

complained to Egbert’s superiors about the incident. In

retaliation, Boule says, Agent Egbert contacted the Internal

Revenue Service (asking it to investigate Boule’s tax status)

and various other government agencies.

Boule then brought this suit—filing Bivens claims for

damages under the First and Fourth Amendment. First, Boule

asserts that Agent Egbert violated his First Amendment rights

by retaliating against him for complaining to the agent’s

superiors about the incident. Second, Boule contends that

Agent Egbert violated his Fourth Amendment rights when he

came onto his property, refused to leave, and pushed him to

the ground.

The district court granted summary judgment in favor of

Agent Egbert, refusing to extend Bivens under either

amendment. Boule appealed, and the panel reversed. That

was error.

BOULE V. EGBERT 11

II.

The text of the Constitution provides for no express cause

of action for damages against federal officials for violations

of its provisions. And for almost 200 years, no implied cause

of action existed under the Constitution either. That did not

mean that remedies were unavailable for constitutional

infringements by federal officials. Indeed, it was considered

axiomatic at the Founding that for every “legal right, there is

also a legal remedy.” Marbury v. Madison, 5 U.S. 137, 163

(1803) (discussing 3 William Blackstone, Commentaries

*23). But Founding-era courts did not fashion their own

damages remedy under the Constitution.

Instead, from “the beginning of the nation’s history,”

federal courts have recognized that federal officials were

subject to “common law suits,” which served as the remedy

to their legal violations “as if they were private individuals.”

Carlos M. Vázquez & Stephen I. Vladeck, State Law, the

Westfall Act, and the Nature of the Bivens Question, 161 U.

Pa. L. Rev. 509, 531 (2013). Thus, at our Founding, “only

state law . . . furnished any redress for . . . unconstitutional

conduct by federal officials.” Akhil Reed Amar, Of

Sovereignty and Federalism, 96 Yale L.J. 1425, 1506 (1987)

(describing the remedy for the unconstitutional search of

one’s home).

The Supreme Court’s “early adopted” rule was that a

“government agent [was] personally liable for the breach of

any duty imposed by the common law or by statute unless”

the action was authorized by federal law. Note,

Developments in the Law: Remedies Against the United

States and Its Officials, 70 Harv. L. Rev. 827, 831–32 (1957).

Under that rule, if the plaintiff could establish that the

12 BOULE V. EGBERT

official’s conduct violated the Constitution, the “defendant’s

shield of federal power would dissolve, and he would stand

as a naked [state-law] tortfeasor.” Amar, supra, at 1506–07.

An early example of this remedial framework occurred

during the Quasi-War between the United States and France

in the administration of President John Adams. See Little v.

Barreme, 6 U.S. 170 (1804). At the time, a federal statute

authorized the President to order navy officers to seize ships

sailing to France. Id. at 170–73. But in the case, the

commander of an American warship had seized a Danish

cargo ship sailing from France. Id. The ship’s owner sued

for trespass damages. Id. at 179. The Supreme Court upheld

the naval officer’s liability to suit because federal law did not

warrant the capture of the ship. Id. at 176. As Chief Justice

Marshall explained, a federal officer acting under federal law

does so “at his peril;” if the officer’s actions “are not strictly

warranted by law[,] he is answerable in damages to any

person injured by [the action’s] execution.” Id. at 170.

This view persisted through the Civil War, when tort suits

were used against alleged federal government excesses.

Andrew Kent, Are Damages Different?: Bivens and National

Security, 87 S. Cal. L. Rev. 1123, 1163–64 (2014) (describing

how “thousands of tort suits were filed against Union soldiers

and civilian executive officials” during the Civil War).

The Supreme Court continued to adhere to this framework

through most of the 20th century. In 1963, the Court still

recognized that “[w]hen it comes to suits for damages for

abuse of power, federal officials are usually governed by

local law.” Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963).

In the Court’s view, “[f]ederal law” may “suppl[y] the

defense, if the conduct complained of was done pursuant to

BOULE V. EGBERT 13

a federally imposed duty or immunity from suit.” Id.

(simplified). But it saw no occasion to create constitutional

causes of action. In that case, a plaintiff sought to sue federal

officers for serving a subpoena in violation of the Fourth

Amendment. Id. at 649. Acknowledging the central role of

the legislative branch in fashioning such a claim, the Court

held that Congress had passed “no general statute making

federal officers liable for acts committed ‘under color,’ but in

violation, of their federal authority.” Id. at 652. “Congress

could, of course, provide otherwise, but it has not done so.”

Id.

Less than a decade later, however, the Court altered this

framework. In 1971, the Supreme Court concluded for the

first time that the violation of a constitutional protection—in

this case, the Fourth Amendment—could give rise to a cause

of action for money damages against federal agents. Bivens,

403 U.S. at 392, 397. While the Court conceded that the

Fourth Amendment’s text did not authorize such damages, it

relied on the lack of any “explicit congressional declaration”

foreclosing money damages and reasoned that no “special

factors” counseled the Court to “hesitat[e]” to create a

remedy in the absence of affirmative action by Congress. Id.

at 396–97.

In the ten years following Bivens, the Court went on to

accept implied causes of action for constitutional violations

in only two additional cases. In 1979, the Court held that a

federal employee could sue a congressman for gender

discrimination under the Fifth Amendment’s Due Process

Clause. See Davis v. Passman, 442 U.S. 228 (1979). One

year later, the Court held that a prisoner could sue federal

prison officials for failing to adequately treat his medical

conditions under the Eighth Amendment’s Cruel and Unusual

14 BOULE V. EGBERT

Punishments Clause. See Carlson v. Green, 446 U.S. 14

(1980). This was the last time the Court has recognized a

new Bivens claim.

Since then, the Court has backtracked on its adoption of

implied rights of action under the Constitution. In fact, the

Court has repeatedly refused to extend Bivens liability at

all—not to any other amendment, new context, or category of

defendants. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68

(2001). By one count, the Court has expressly refused to

extend Bivens on ten separate occasions. See Loumiet v.

United States, 948 F.3d 376, 381 (D.C. Cir. 2020).4 Instead,

Bivens and its progeny have been cast as a “relic” of the

“heady days in which [the] Court assumed common-law

powers to create causes of action.” Corr. Servs. Corp.,

534 U.S. at 75 (Scalia, J., concurring); see also Hernandez v.

Mesa, 140 S. Ct. 735, 750 (2020) (Thomas, J., concurring)

(“The foundation for Bivens—the practice of creating implied

causes of action in the statutory context—has already been

abandoned.”).

What brought about this change in the Court’s

jurisprudence? Well, since the 1980s, the Court has come to

“appreciate more fully the tension between this practice [of

creating causes of action] and the Constitution’s separation of

legislative and judicial power.” Hernandez, 140 S. Ct. at 741.

As the Court recognized, it is “a significant step under

4

Three times due to the availability of alternative remedies; three

times due to its national security or military context; and three times

because of the involvement of new categories of defendants, such as

private individuals, private corporations, and federal agencies. Loumiet,

948 F.3d at 381 (collecting cases). And once, simply because the Court

decided that Congress is in a better position to craft a remedy for alleged

retaliation by federal officials. Id.

BOULE V. EGBERT 15

separation-of-powers principles for a court to determine that

it has the authority, under the judicial power, to create and

enforce a cause of action for damages against federal officials

in order to remedy a constitutional violation.” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1856 (2017). Such action “risks

arrogating legislative power.” Hernandez, 140 S. Ct. at 741.

Fundamentally, “Congress is best positioned to evaluate

whether, and the extent to which, monetary and other

liabilities should be imposed upon individual officers and

employees of the Federal Government based on constitutional

torts.” Id. at 742 (simplified). Thus, the Court has made

clear that the expansion of Bivens is a “‘disfavored’ judicial

activity.” Abbasi, 137 S. Ct. at 1857 (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 675 (2009)).

For that reason, the Court has adopted a two-step process

to limit the recognition of new constitutional remedies. See

Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The first

question asks whether the claim arises in a context different

from what the Court has previously recognized. Hernandez,

140 S. Ct. at 743. If so, the next question considers whether

any special factors counsel hesitation before expanding

Bivens to that new context. Id.

To decide whether any “special factors” bar the extension

of Bivens, the inquiry focuses on “who should decide whether

to provide for a damages remedy.” Abbasi, 137 S. Ct. at 1857

(simplified). This analysis includes consideration of “the risk

of interfering with the authority of the other branches,”

“whether there are sound reasons to think Congress might

doubt the efficacy or necessity of a damages remedy,” and

“whether the Judiciary is well suited . . . to consider and

16 BOULE V. EGBERT

weigh the costs and benefits of allowing a damages action to

proceed.” Hernandez, 140 S. Ct. at 743 (simplified).

The threshold for what constitutes a “special factor”

counseling hesitation is “remarkably low.” Arar v. Ashcroft,

585 F.3d 559, 574 (2d Cir. 2009). Hesitation is counseled

whenever “thoughtful discretion” would cause us to pause to

even “consider” recognizing a new context. Id. If any

special factors do exist, “then courts must refrain from

creating an implied cause of action in that case.” Canada v.

United States, 950 F.3d 299, 309 (5th Cir. 2020) (simplified).

In other words, “if [the court has] reason to pause before

applying Bivens in a new context or to a new class of

defendants—[the court must] reject the request.” Hernandez,

140 S. Ct. at 743. The lesson from the Court is, thus, a strong

presumption against expanding Bivens. When answering the

ultimate question of who should decide on the creation of a

new cause of action, the answer is almost always Congress.

Against this legal backdrop, the court clearly erred in

extending Bivens to two new contexts in this case.

III.

At bottom, this case distills down to the question of who

should decide whether a right of action should exist for

alleged violations of the First Amendment and of the Fourth

Amendment in the border enforcement context. This court’s

answer: Judges. Rather than deferring to Congress, we

casually craft for Boule new causes of action for his

constitutional claims. This flies in the face of everything the

Court has told us over the last 20 years and ignores our

Constitution’s core separation-of-powers concern. We should

have corrected this error on en banc review.

BOULE V. EGBERT 17

A.

In summary fashion, the panel found no reason to pause

before extending Bivens to Boule’s First Amendment claim.

See Boule, 980 F.3d at 1316. It reasoned that retaliation is a

well-known claim against government officials and that

Agent Egbert’s alleged retaliatory conduct was not related to

his official duties as a Border Patrol agent. Id. The panel

also did not think any alternative remedies existed for Boule.

Id. at 1316–17. In its amended opinion, the panel newly

relies on dictum from Hartman v. Moore, 547 U.S. 250, 256

(2006).

While the panel could think of no reasons to hesitate,

there are at least four: (1) congressional silence, (2) Supreme

Court precedent, (3) the precedent of our fellow circuits, and

(4) the various potential alternative remedies available to

Boule.

1.

Most fundamentally, the panel should not have created a

new First Amendment cause of action because that is the

business of Congress, not the courts.

Liberty, Hamilton famously warned, has “every thing to

fear” from the union of these two powers. The Federalist No.

78 (Alexander Hamilton). But, he explained, “the general

liberty of the people can never be endangered . . . so long as

the judiciary remains truly distinct” from the legislature. Id.

In 1625, Francis Bacon similarly cautioned that “[j]udges

ought to remember that their office is jus dicere, and not jus

dare; to interpret law, and not to make law, or give law.”

Francis Bacon, The Essays of Francis Bacon 251, 251 (Mary

18 BOULE V. EGBERT

Augusta Scott, ed. 1908). So, as federal judges, our limited

role is “to say what the law is,” and nothing more. Marbury,

5 U.S. at 177. Conversely, it is “the exclusive province of the

Congress” to craft legislation. Tenn. Valley Auth. v. Hill,

437 U.S. 153, 194 (1978).

The panel dispensed with these principles when it created

a cause of action against federal officers for retaliation under

the First Amendment. The text of that amendment is, of

course, not amenable to this construction: it prescribes only

that “Congress shall make no law . . . abridging the freedom

of speech.” U.S. Const. amend. I. Indisputably, this provision

does not create a private cause of action. Rather, it sets out a

“fundamental law, limiting the powers of the Legislature, and

with which every exercise of those powers must, necessarily,

be compared.”5

Neither can Congress’s failure to create such a remedy be

characterized as accidental or unknowing. In 1946, Congress

passed the Federal Tort Claims Act, “which waived the

sovereign immunity of the United States for certain torts

committed by federal employees.” Brownback v. King,

141 S. Ct. 740, 746 (2021) (quoting F.D.I.C. v. Meyer,

510 U.S. 471, 475 (1994)); see 28 U.S.C. §§ 1346(b)(1),

2674. Congress has also created a right of action for

constitutional violations by state actors. See 42 U.S.C.

§ 1983. But insofar as Congress, through the FTCA and

§ 1983, has not provided a remedy to Boule for his retaliation

claim, the separation of powers commands that we must

respect that silence. See Oliva v. Nivar, 973 F.3d 438, 444

5

Letter from James Iredell to Richard Spaight (Aug. 26, 1787), in

Gordon Wood, The Creation of the American Republic 1776–1787, at 461

(1969).

BOULE V. EGBERT 19

(5th Cir. 2020) (the “silence of Congress” is a special factor

counseling hesitation) (quoting Abbasi, 137 S. Ct. at 1862).

Especially because, as the FTCA and § 1983 demonstrate,

“Congress . . . knows how to create a cause of action to

recover damages for constitutional violations when it wishes

to do so.” Hernandez, 140 S. Ct. at 752 (Thomas, J.,

concurring).

2.

We also should have hesitated because the Supreme Court

has expressly declined to extend Bivens to the First

Amendment context. Back in 1983, even during the heyday

of Bivens expansions, the Court refused to allow a federal

employee to sue his supervisor for retaliatory demotion under

the First Amendment. See Bush v. Lucas, 462 U.S. 367

(1983). The Court assumed that the federal agency violated

his First Amendment right but still declined to create a new

Bivens remedy for the employee. Id. at 372, 390. In doing

so, the Court declined to say whether it was “good policy to

permit a federal employee to recover damages from a

supervisor who has improperly disciplined him for exercising

his First Amendment rights.” Id. at 390. Instead, the Court

concluded that “Congress is in a better position to decide

whether or not the public interest would be served by creating

it.” Id. Since then, the Court’s position has not changed. See

Iqbal, 556 U.S. at 675 (“Indeed, we have declined to extend

Bivens to a claim sounding in the First Amendment.”);

Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have

never held that Bivens extends to First Amendment claims.”).

The amended opinion now justifies its holding based on

dictum in Hartman. See Am. Op. 41–44. There, the Court

resolved the narrow issue of whether a plaintiff must plead

20 BOULE V. EGBERT

and show a lack of probable cause to bring a First

Amendment retaliatory prosecution claim under Bivens.

Hartman, 547 U.S. at 256. But rather than holding such a

Bivens remedy exists, the Court appeared to assume it did. In

doing so, the Court offered a single line that the panel now

touts: “[w]hen the vengeful officer is federal, he is subject to

an action for damages on the authority of Bivens.” Id. It is

clear this line was not part of the Court’s analysis since it

later qualified that its holding was limited to the

“requirement[s] of causation, which [the plaintiff] must plead

and prove in order to win, and our holding does not go

beyond a definition of an element of the tort.” Id. at 257 n.5.

As the panel concedes, the line’s status as dictum is

confirmed by the later Court cases confirming that it has

never extended Bivens to the First Amendment.

By relying on this stray line, we are again an outlier

among our sister courts. Several circuit courts have expressly

declined to read Hartman the way that our court does. See

Bistrian v. Levi, 912 F.3d 79, 95–96 (3d Cir. 2018)

(repudiating the Third Circuit’s earlier reliance on Hartman

to extend Bivens to the First Amendment claim); Johnson v.

Burden, 781 F. App’x 833, 836–37 (11th Cir. 2019)

(explaining that “the Hartman language was mere dicta”);

Storms v. Shinseki, 319 F. Supp. 3d 348, 354 (D.D.C. 2018)

(calling reliance on Hartman an “understandable mistake”

and explaining that “[d]ecisions since Hartman have

consistently said that the Supreme Court has not approved a

First Amendment Bivens claim”), aff’d, 777 F. App’x 522

(D.C. Cir. 2019).

At the end of the day, the Supreme Court’s reluctance to

expand Bivens in the same context is itself a factor that

counsels hesitation here.

BOULE V. EGBERT 21

3.

The panel’s Bivens extension puts us out of step with our

sister courts, too. Since the adoption of the “counsels

hesitation” test in 2007, circuit courts have nearly uniformly

refused to extend Bivens to the First Amendment. The

Second, Fourth, Sixth, and D.C. Circuits have all refused to

extend the doctrine to the First Amendment.6 Even courts

that have not expressly made such a ruling have nonetheless

expressed skepticism that Bivens could be expanded to the

First Amendment.7

To be sure, the Third Circuit has recognized a First

Amendment Bivens claim in more recent times. See Mack v.

Warden Loretto FCI, 839 F.3d 286, 296–97 (3d Cir. 2016).

But importantly, the Third Circuit later backtracked on that

6

See, e.g., Davis v. Billington, 681 F.3d 377, 388 (D.C. Cir. 2012);

Turkmen v. Hasty, 789 F.3d 218, 236 (2d Cir. 2015); Doe v. Meron,

929 F.3d 153, 169 (4th Cir. 2019); Callahan v. Fed. Bureau of Prisons,

965 F.3d 520, 523–24 (6th Cir. 2020). The D.C. Circuit recognized a First

Amendment Bivens claim in Haynesworth v. Miller, 820 F.2d 1245, 1255

(D.C. Cir. 1987), and Moore v. Valder, 65 F.3d 189, 196 n.12 (D.C. Cir.

1995), but has since held that those cases “have been overtaken by

Abbasi[.]” Loumiet, 948 F.3d at 382.

7

See Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35 (1st Cir. 2011)

(noting that it is “questionable whether Bivens extends to cases asserting

a violation of First Amendment rights or retaliation for the exercise of

those rights”); Walden v. Ctrs. for Disease Control & Prevention,

669 F.3d 1277, 1284 n.3 (11th Cir. 2012) (declining to decide whether

Bivens reaches the First Amendment, but noting that “the Court has

repeatedly declined to imply a Bivens remedy in a variety of contexts”);

Pahls v. Thomas, 718 F.3d 1210, 1226 n.6 (10th Cir. 2013) (“[T]he Court

has never held that a Bivens action is available against federal officials for

a claim based upon the First Amendment.”); Brunson v. Nichols, 875 F.3d

275, 279 n.3 (5th Cir. 2017).

22 BOULE V. EGBERT

decision, explaining that recent Supreme Court precedent

“clearly communicates that expanding Bivens beyond those

contexts already recognized by the Supreme Court is

disfavored” and that it is Court precedent, “not our own prior

precedent, that must guide us now.” Bistrian, 912 F.3d at 95.

The panel’s decision also creates a conflict within our

own court. Although we had long ago recognized a First

Amendment Bivens claim, see Gibson v. United States,

781 F.2d 1334, 1342 (9th Cir. 1986), we recently refused to

find an implied cause of action to assert such a claim against

private prison officials, see Vega v. United States, 881 F.3d

1146 (9th Cir. 2018). In declining to extend Bivens, we

looked to the remedies available to the plaintiff under

administrative procedures, federal regulations, state law, and

the FTCA. Id. at 1154. We held that “[e]xpanding Bivens in

this context . . . seems imprudent given the Court’s

admonition that ‘any alternative, existing process for

protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and

freestanding remedy in damages.’” Id. at 1155 (quoting

Wilkie, 551 U.S. at 550).

At the end of the day, we are the only federal appellate

court in the nation trying to resurrect Bivens against the

weight of the Court’s precedents. This also counsels

hesitation on our part.

4.

As we did in Vega, we should have looked at the potential

for alternative remedies before casually expanding Bivens to

Boule’s new First Amendment context. An alternative

remedy is sufficient to foreclose a Bivens extension even if it

BOULE V. EGBERT 23

does “not provide complete relief,” Bush, 462 U.S. at 388, so

“long as Congress’ failure to provide money damages, or

other significant relief, has not been inadvertent, courts

should defer to its judgment,” Berry v. Hollander, 925 F.2d

311, 314 (9th Cir. 1991) (simplified). Under this low bar, we

had ample reason to deny a Bivens extension.

To make his First Amendment claim, Boule asserts that

Agent Egbert contacted the Internal Revenue Service and

asked it to investigate Boule’s tax status in retaliation for

Boule’s complaints of the agent’s misconduct. He also

alleges that Agent Egbert made unjustified complaints to

various other regulatory agencies.

To the extent that Boule alleges that Egbert unlawfully

disclosed sensitive information about him, and that Egbert did

so using information available to him because of his position

with Border Patrol, he appears to be raising a Privacy Act

violation. The Privacy Act requires agencies (such as the

U.S. Border Patrol) to establish safeguards “to insure the

security and confidentiality of records” and protect against

disclosures that “could result in substantial harm,

embarrassment, inconvenience, or unfairness to any

individual on whom information is maintained.” 5 U.S.C.

§ 552a(e)(10). Congress gave that mandate teeth by enacting

civil remedies to enforce it. Id. § 552a(g)(1). As a result, a

plaintiff may bring a civil action against an agency whenever

it fails to comply with the Privacy Act’s requirements “in

such a way as to have an adverse effect on an individual.” Id.

§ 552a(g)(1)(D).

Second, Boule may have an alternative remedy under the

tax laws. If Boule alleges that Agent Egbert or someone at

the IRS revealed confidential tax information, he might have

24 BOULE V. EGBERT

considered bringing a suit under 26 U.S.C. § 6103. That

section provides that no “officer or employee of the United

States” may “disclose any return or return information

obtained by him in any manner in connection with his service

as such an officer or an employee or otherwise.” Id.

Third, Boule has a variety of state law claims at his

disposal. For instance, Washington courts recognize the tort

of outrage for when a defendant engages in “extreme and

outrageous conduct.” See Spicer v. Patnode, 9 Wash. App.

2d 283, 292 (2019). Or he might have availed himself of one

of the several privacy torts that Washington recognizes. See

Eastwood v. Cascade Broad. Co., 106 Wash. 2d 466, 469

(1986) (“The protectable interest in privacy is generally held

to involve four distinct types of invasion: intrusion,

disclosure, false light and appropriation.”). Washington also

has an anti-harassment statute meant to address “invasions of

a person’s privacy by acts and words showing a pattern of

harassment designed to coerce, intimidate, or humiliate the

victim.” Wash. Rev. Code Ann. § 10.14.010. If Boule

alleges that Egbert was lying about him, then Boule could

have a claim for defamation. See Seaquist v. Caldier,

8 Wash. App. 2d 556, 564 (2019) (“A prima facie defamation

claim requires a plaintiff to prove falsity, an unprivileged

communication, fault, and damages.”).8

8

The panel summarily concluded that the Westfall Act would bar any

state law remedies to redress Boule’s First Amendment claim. Boule, 980

F.3d at 1316. But this appears to be incorrect. The Westfall Act only

applies when the Attorney General certifies that “the employee was acting

within the scope of his office or employment at the time of the incident out

of which the claim arose.” Gutierrez de Martinez v. Lamagno, 515 U.S.

417, 420 (1995) (simplified). Here, the panel found Agent Egbert’s

alleged retaliation “had no relation to, or justification based on, his duties

as a border patrol agent,” Boule, 980 F.3d at 1316, and so the Westfall Act

BOULE V. EGBERT 25

The panel was, accordingly, wrong to suggest that Boule

had no avenue for relief for his First Amendment claim. That

Boule had several potential remedies is a “convincing reason

. . . to refrain from providing a new and freestanding remedy

in damages.” Wilkie, 551 U.S. at 550. Indeed, the existence

of just one alternative remedy is generally the end of the

inquiry, Ziglar, 137 S. Ct. at 1865—even if that remedy is not

“perfect,” Adams v. Johnson, 355 F.3d 1179, 1185 n.3 (9th

Cir. 2004).

* * *

All in all, our court today ignores several reasons to

hesitate before extending Bivens to a First Amendment

retaliation claim. Congress’s silence is evidence that it would

question the propriety of the remedy we draft, especially

given the other statutory means for redress. The Court has

also expressly refused to extend Bivens to the First

Amendment; our fellow circuits have uniformly followed

suit. And finally, Boule has alternative remedies available

thanks to both Congress and the state of Washington.

B.

Turning to Boule’s Fourth Amendment claim for

excessive force and unlawful search, given the national

security implications of that claim, the panel should have also

declined to extend Bivens to this new context.

would not apply. The amended opinion similarly concedes that Egbert

“was not carrying out official duties” when he allegedly retaliated against

Boule. Am. Op. at 44.

26 BOULE V. EGBERT

Frankly, this should have been an easy call. The Court

has very clearly laid out its instructions regarding Bivens

expansions in the border enforcement context, which

implicates an “element of national security.” Hernandez,

140 S. Ct. at 746. The Court first recognized the Executive’s

prerogative to “protect[] this country . . . by attempting to

control the movement of people and goods across the border.”

Id. Included in this responsibility is the need to combat

illegal cross-border traffic and powerful criminal

organizations operating on both sides of the border. Id. The

Court also acknowledged that Border Patrol agents are

charged with the enormous task of responding to “terrorists,

drug smugglers and traffickers, human smugglers and

traffickers, and other persons who may undermine the

security of the United States.” Id. (quoting 6 U.S.C.

§ 211(c)(5)).

The Court thus firmly concluded that judges should

refrain from extending Bivens when doing so would interfere

with border enforcement. Id. at 747. “Since 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. Decisions about our national security are

“delicate, complex, and involve large elements of prophecy

for which the Judiciary has neither aptitude, facilities, nor

responsibility.” Id. at 749 (simplified). The judicial intrusion

into the border enforcement space is even more acute given

that the “risk of personal damages liability” may “cause an

official to second-guess difficult but necessary decisions

concerning national-security policy.” Abbasi, 137 S. Ct.

at 1861. In other words, national security, and specifically,

the conduct of agents at the border, is a red light to Bivens

extensions.

BOULE V. EGBERT 27

Here, Agent Egbert is assigned to a unit that patrols the

U.S.-Canadian Border and focuses on counterterrorism,

cross-border crime, and drug and human trafficking.

Smuggler’s Inn is a notorious site of illegal border crossing,

where the smuggling of people, drugs, illicit money, and

other criminal objects frequently occurs. It also sits directly

adjacent to Canada; if it were any closer, the property would

be straddling the border.

On the date of the incident, while patrolling the area near

Smuggler’s Inn, Boule informed Agent Egbert that he would

have a guest arriving from Turkey. While the exact details of

the exchange between Boule and Agent Egbert are disputed,

it is uncontested that Agent Egbert considered the information

he received from Boule significant enough to investigate the

arrival of the Turkish national. Agent Egbert became

concerned that the Turkish national was planning to cross the

border north into Canada or meet up with persons coming

south into the United States for a criminal purpose. Based on

this concern, Agent Egbert entered Boule’s property, which

led to the incidents at issue in the Fourth Amendment claim.

Thus, the subject of this litigation is a Border Patrol

agent’s conduct during an on-duty investigation of a foreign

national, at a property known for smuggling activity, adjacent

to an international border. Our hesitation to legislate in this

area should have been uncontroversial. Given the national

security implications of this case, we should have deferred to

Congress to determine if a cause of action should lie with

Fourth Amendment claims like Boule’s.

Moreover, judicially crafting a Bivens action here could

lead to a slew of unintended consequences, which we are not

competent to evaluate. As the district court forewarned,

28 BOULE V. EGBERT

[T]he risk of personal liability would cause

Border Patrol agents to hesitate and second

guess their daily decisions about whether and

how to investigate suspicious activities near

the border, paralyzing their important border-

security mission. Likewise, . . . Congress is in

the best position to evaluate the costs and

benefits of a new legal remedy, particularly

when it has already granted Border Patrol

broad authority to secure the international

border without providing a damages remedy

for claims arising in that context.

Boule v. Egbert, No. C17-0106 RSM, 2018 WL 4078852,

at *4 (W.D. Wash. Aug. 24, 2018) (citations omitted).

Finally, the panel plowed forward even though Boule has

already availed himself of a congressionally enacted remedy.

The record reveals that Boule filed a tort claim with Customs

and Border Protection for injuries arising out of the incident

with Agent Egbert. He was able to do so because of the

administrative remedy provided by the FTCA.9 Even if the

FTCA remedy does not provide the “exact same kind of

relief” as Bivens, the mere existence of such an alternative is

reason to hesitate here. Oliva, 973 F.3d at 444.

We should have corrected this Bivens error on en banc

review.

9

See 28 C.F.R. § 14.2; 28 U.S.C. § 2401; see also David C. Sarnacki,

Filing an Administrative Claim Under the Federal Tort Claims Act, Wis.

B. Bull. (Sept. 1988); see also Claims for property damages or loss, or

personal injury, or death, U.S. Customs and Border Protection,

https://help.cbp.gov/s/article/Article-178.

BOULE V. EGBERT 29

IV.

The Constitution is a document of remarkable importance.

Carefully following its commands is all that keeps us a

government of laws and not of men. It is thus a matter of

great seriousness when federal officials violate the Bill of

Rights.

Yet, that same reverence for the Constitution leads me

unambiguously to my conclusion today. We cannot respond

to executive transgression of the Constitution with our own

judicial overreach. As federal judges, it is not within our

power to create a cause of action for Robert Boule, no matter

how convinced we are that he deserves one.

Today, our court sanctions judicial legislation against the

clear weight of Supreme Court precedent. And against the

clear text of the Constitution. With respect, I dissent.

OWENS, Circuit Judge, dissenting from the denial of

rehearing en banc:

Congress didn’t care what I thought back in 1997 when I

was 25 years old, and it probably cares less now as I approach

50. And though hopefully I’ve improved with age, our

Bivens jurisprudence has not. I continue to believe that new

legislation that permits plaintiffs to vindicate their rights is

better than our current jurisprudential word jumble. See John

B. Owens, Note, Judge Baer and the Politics of the Fourth

Amendment: An Alternative to Bad Man Jurisprudence,

8 Stan. L. & Pol’y Rev. 189 (1997) (pointing out the

30 BOULE V. EGBERT

limitations of Bivens actions and setting forth some

admittedly pie in the sky solutions).

BRESS, Circuit Judge, joined by BADE, COLLINS, and

HUNSAKER, Circuit Judges, dissenting from the denial of

rehearing en banc:

The panel opinion in this case recognizes two novel

implied rights of action under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

In so doing, the panel decision is significantly out of step with

modern Supreme Court cases emphasizing that the Bivens

remedy is not to be lightly extended. See, e.g., Hernandez v.

Mesa, 140 S. Ct. 735, 742–43 (2020); Ziglar v. Abbasi, 137 S.

Ct. 1843, 1857–58 (2017).

The causes of action that the panel fashioned arise in a

decidedly new context from those few previous cases in

which a Bivens remedy was permitted. See Hernandez,

140 S. Ct. at 743–44. And while the panel discerned no

“special factors counseling hesitation” in creating two new

Bivens causes of action, Abbasi, 137 S. Ct. at 1857, I think it

self-evident that there are many reasons counseling hesitation

in devising court-created First and Fourth Amendment

damages remedies against a federal agent for actions relating

to his investigation of an international traveler near the

international border. Judge Bumatay’s separate dissent

forcefully highlights some of these reasons.

BOULE V. EGBERT 31

Because the panel decision is inconsistent with the

Supreme Court’s directives on Bivens remedies, I respectfully

dissent from the denial of rehearing en banc.

OPINION

W. FLETCHER, Circuit Judge:

The Supreme Court first recognized an implied right of

action for damages against federal officers in Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). The Court held that damages were

recoverable directly under the Fourth Amendment when

federal officers arrested and searched the plaintiff without a

warrant or probable cause, and when they employed

unreasonable force in making the arrest. Id. at 389, 395–96.

In the years after Bivens, the Court also has recognized

implied rights of action for damages under the Fifth and

Eighth Amendments. See Davis v. Passman, 442 U.S. 228

(1979) (recognizing a damages remedy for a gender

discrimination claim against a United States Congressman

under the equal protection component of the Fifth

Amendment Due Process Clause); Carlson v. Green,

446 U.S. 14 (1980) (recognizing a damages remedy against

federal prison officials for failure to provide adequate

medical treatment under the Eighth Amendment’s Cruel and

Unusual Punishment Clause).

We are asked to decide whether a Bivens damages remedy

is available to a United States citizen plaintiff who contends

that a border patrol agent, acting on the plaintiff’s property

within the United States, violated his rights under the First

32 BOULE V. EGBERT

and Fourth Amendments. Although the Supreme Court has

made clear that “expanding the Bivens remedy is now a

disfavored judicial activity,” a Bivens remedy is still available

in appropriate cases and there are “powerful reasons” to

retain it in its “common and recurrent sphere of law

enforcement.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)

(internal quotation marks omitted).

In considering possible extensions of Bivens, we engage

in a “two-step inquiry,” “first inquir[ing] whether the request

involves a claim that arises in a ‘new context’ or involves a

‘new category of defendants’” and then “ask[ing] whether

there are any ‘special factors that counsel hesitation.’”

Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020) (citing Abbasi,

137 S.Ct. at 1859). Applying this framework, we reverse the

district court and hold that Boule may pursue a Bivens

remedy for his First and Fourth Amendment claims.

I. Background

Because this case comes before us on an appeal of a grant

of summary judgment for Defendant, we draw all reasonable

factual inferences in favor of Plaintiff, Robert Boule. Tolan

v. Cotton, 572 U.S. 650, 656–57 (2014). We recite the facts

viewed through that lens.

Boule is a United States citizen. He owns, operates, and

lives in a small bed and breakfast inn in Whatcom County, in

the city of Blaine, Washington. The back property line of the

land on which the inn is located touches the United States-

Canada border. At the time of the events in question, Boule

was a paid informant for the government. He had been an

informant for the Border Patrol beginning in about 2003 and

for Immigration and Customs Enforcement beginning in

BOULE V. EGBERT 33

about 2008. Information provided by Boule about guests at

his inn had resulted in numerous arrests.

On March 20, 2014, Border Patrol Agent Erik Egbert

stopped Boule while he was running errands “in town” and

asked him about guests staying at the inn. Boule told Egbert

that he had a guest arriving that day from New York who had

flown in from Turkey the day before. Boule told him that

two of his employees were en route to pick up the guest at

Seattle-Tacoma (“Sea-Tac”) International Airport, about 125

miles south of Blaine. Later that day, Egbert waited in his

border patrol vehicle near the inn. The entrance to the inn is

on a road at the front of the property. When the guest arrived,

Egbert followed the car carrying the arriving guest into the

driveway of the inn.

Agent Egbert got out of his vehicle and approached the

car. From the front porch of the inn, Boule asked Egbert to

leave. When Egbert refused, Boule stepped between Egbert

and the car and again asked him to leave. Egbert then shoved

Boule against the car. When Boule did not move away from

the car, Egbert grabbed him and pushed him aside and onto

the ground.

Agent Egbert then opened the car door and asked the

guest about his immigration status. Boule made a 911 call to

request a supervisor. Egbert also relayed the request over

dispatch. A supervisor and another agent arrived in response.

After concluding that the guest was lawfully in the country,

the three officers departed. Boule later sought medical

treatment for injuries to his back.

After Boule complained to Agent Egbert’s superiors

about the incident, Egbert retaliated against Boule. Egbert

34 BOULE V. EGBERT

contacted the Internal Revenue Service, asking the agency to

look into Boule’s tax status. The Service conducted an audit

of several years of Boule’s tax returns, and Boule paid over

$5,000 to his accountant to assist him in responding to the

audit. Egbert also contacted the Social Security

Administration, the Washington State Department of

Licensing, and the Whatcom County Assessor’s Office, each

of which then conducted formal inquiries into Boule’s

business activities.

Boule filed a complaint against Agent Egbert in federal

district court, seeking damages under Bivens for a violation

of Fourth and First Amendment rights. The district court

granted summary judgment to Egbert on Boule’s Fourth and

First Amendment claims, holding that they were

impermissible extensions of Bivens. Boule timely appealed.

II. Discussion

We review de novo a district court’s decision on summary

judgment. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990,

995 (9th Cir. 2017). We address Boule’s Fourth and First

Amendment claims in turn, applying the framework

established in Abbasi, 137 S.Ct. at 1859, and relied on in

Hernandez, 140 S.Ct. at 743. We ask whether Boule’s claims

arise in a new context and, if so, whether any special factors

counsel hesitation in finding a viable Bivens claim. Id.

The Supreme Court’s understanding of a “new context”

in a Bivens analysis is “broad.” A context is “‘new’ if it is

‘different in a meaningful way from previous Bivens cases

decided by this Court.’” Id. (citing Abbasi, 137 S.Ct.

at 1859). The Court wrote in Abbasi:

BOULE V. EGBERT 35

Without endeavoring to create an exhaustive

list of differences that are meaningful enough

to make a given context a new one . . . [:] A

case might differ in a meaningful way because

of 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.

137 S. Ct. 1859–60. The Court cautioned that “even a modest

extension is still an extension.” Id. at 1864.

If we conclude that a claim arises in a new context, we

ask “whether there are any special factors that counsel

hesitation about granting the extension.” Hernandez, 140 S.

Ct. at 743 (citing Abbasi, 137 S. Ct. at 1857). The Court

acknowledged in Abbasi that it has not defined “special

factors,” but noted 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. Thus, to be a special factor

counselling hesitation, a factor must cause a

36 BOULE V. EGBERT

court to hesitate before answering that

question in the affirmative.

137 S. Ct. at 1857–58 (internal quotation marks omitted).

The Court wrote in Hernandez that a court should “consider

the risk of interfering with the authority of the other

branches” and should “ask whether there are sound reasons to

think Congress might doubt the efficacy or necessity of a

damages remedy and 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.” Hernandez, 140 S. Ct. at 743 (internal citations

and quotation marks omitted).

A. Fourth Amendment

The district court assumed that Boule’s Fourth

Amendment excessive force claim is a “modest extension” in

a new context. We agree that it is an extension, in that Agent

Egbert is an agent of the border patrol rather than of the F.B.I.

But it is a modest extension, in that border patrol and F.B.I.

agents are both federal law enforcement officials, and in that

Boule’s Fourth Amendment excessive force claim is

indistinguishable from Fourth Amendment excessive force

claims that are routinely brought under Bivens against F.B.I.

agents. However, we do not find that special factors “counsel

hesitation” such that a Bivens action in this new context is

foreclosed. Boule, a United States citizen, is bringing a

conventional Fourth Amendment excessive force claim

arising out of actions by a rank-and-file border patrol agent

on Boule’s own property in the United States. This context

is a far cry from the contexts in Abbasi and Hernandez, where

the Court found that special factors counseled against a

Bivens action.

BOULE V. EGBERT 37

In Abbasi, the plaintiffs were foreign nationals who had

been unlawfully present in the United States. Following the

terrorist attacks on September 11, 2001, the F.B.I. designated

plaintiffs as persons “of interest” in the post-attack

investigation, and plaintiffs were incarcerated in harsh

conditions. 137 S. Ct. at 1852–53. After plaintiffs were

released and removed from the United States, they brought a

Bivens action against federal executive officials and detention

facility wardens, seeking damages based on the decisions that

had led to their incarceration and based on the conditions of

their confinement. Id. at 1851–52. The Court refused to

allow a Bivens action, holding that special factors counseled

hesitation in extending Bivens in this new context. Id.

at 1859–61. The Court emphasized that the plaintiffs’ claims

challenged high-level Executive Branch decisions involving

issues of national security. Id. at 1860–62.

In Hernandez, the plaintiffs were Mexican nationals

whose child had been killed by a United States border patrol

agent. 140 S. Ct. at 740. The agent had been on the United

States side of the border, the child had been on the Mexico

side, and the agent had shot at the child across the border. Id.

The Mexican government had unsuccessfully sought

extradition of the agent to Mexico. The U.S. Department of

Justice had conducted an investigation and declined to bring

charges against the agent. Id. The Court held that the

parents’ claims arose in a new context and were precluded by

special factors. Id. at 744, 749. The Court noted several

“warning flags,” including the effect on foreign relations, the

implications for national security, and the fact that the harm

occurred in another country. Id. at 744, 746, 747.

The only aspects of the claim now before us that touch

even tangentially on the concerns raised in Abbasi and

38 BOULE V. EGBERT

Hernandez are that Boule’s inn is at the United States-Canada

border and that Agent Egbert was investigating the status of

a foreign guest who was arriving at the inn. In finding special

factors in Hernandez, the Court wrote: “[S]ome [border patrol

agents] are stationed right at the border and have the

responsibility of attempting to prevent illegal entry. For these

reasons, the conduct of agents positioned at the border has a

clear and strong connection to national security.” 140 S. Ct.

at 746. The contrast between Hernandez and the case before

us is self-evident. The agent in Hernandez was literally “at

the border,” tasked with policing the border and preventing

illegal entry of goods and people. See id. As Egbert had

already been informed by Boule, the arriving guest in whom

Egbert was interested had been driven from Sea-Tac airport

after arriving on a flight from New York. Further, the

plaintiffs in Hernandez were foreign nationals, complaining

of a harm suffered in Mexico. Boule is a United States

citizen, complaining of harm suffered on his own property in

the United States. Finally, the claim in Hernandez was

extremely unusual. The claim against Egbert is a

conventional Fourth Amendment excessive force claim,

indistinguishable from countless such claims brought against

federal, state, and local law enforcement officials, except for

the fact that Egbert is a border patrol agent. As we noted

above, excessive force Fourth Amendment claims are

routinely brought against F.B.I. agents under Bivens. See,

e.g., Ganek v. Leibowitz, 874 F.3d 73 (2d Cir. 2017); Soto-

Torres v. Fraticelli, 654 F.3d 153 (1st Cir. 2011); Harris v.

Roderick, 126 F.3d 1189 (9th Cir. 1997).

The fact that Agent Egbert is a border patrol agent,

standing alone, does not preclude a Bivens action. Courts in

our circuit and others have allowed various Bivens actions

against border patrol agents under the Fourth Amendment.

BOULE V. EGBERT 39

See, e.g., Morales v. Chadbourne, 793 F.3d 208 (1st Cir.

2015) (Bivens claim by American citizen of Guatemalan

descent against Immigration and Customs Enforcement

officials for detention without probable cause in violation of

the Fourth Amendment); Chavez v. United States, 683 F.3d

1102 (9th Cir. 2012) (Bivens claim by American citizens for

repeated traffic stops by border patrol agents in violation of

the Fourth Amendment); Martinez-Aguero v. Gonzalez,

459 F.3d 618 (5th Cir. 2006) (Bivens claim by Mexican

citizen against a border patrol agent for excessive force at a

port of entry in violation of the Fourth Amendment).

The Supreme Court cautioned in Abbasi that “national-

security concerns must not become a talisman used to ward

off inconvenient claims — a label used to cover a multitude

of sins.” 137 S. Ct. at 1862 (internal quotation marks

omitted). After the Court’s decision in Abbasi, we allowed an

immigrant to pursue a Bivens action against an Immigration

and Customs Enforcement attorney who had forged a

document in order to prevent his adjustment of status to

lawful permanent resident. Lanuza v. Love, 899 F.3d 1019,

1021 (9th Cir. 2018). We wrote that although “the Supreme

Court has made clear that expanding the Bivens remedy is

now a disfavored judicial activity,” a Bivens remedy remains

available in appropriate circumstances. Id. (internal

quotation marks omitted). We distinguished Abbasi, noting

that, like Boule in the case before us, the plaintiff did not

“challenge high-level executive action” and did not

“challenge or seek to alter the policy of the political

branches.” Id. at 1028, 1029. In a “run-of-the-mill

immigration proceeding” where the alien had no ties to

terrorism, the case was “unrelated to any other national

security decision or interest.” Id. at 1030. We held that

“compelling interests that favor extending a Bivens remedy

40 BOULE V. EGBERT

. . . outweigh the costs of allowing this narrow claim to

proceed against federal officials.” Id. at 1033. Similarly, in

the “run-of-the-mill” Fourth Amendment case now before us,

we hold that any costs imposed by allowing a Bivens claim to

proceed are outweighed by compelling interests in favor of

protecting United States citizens on their own property in the

United States from unconstitutional activity by federal agents.

In Bivens itself, the Fourth Amendment claim was not an

improper intrusion by the judiciary into the sphere of

authority of other branches. Nor is the Fourth Amendment

claim here such an intrusion. Boule’s Fourth Amendment

excessive force claim is part and parcel of the “common and

recurrent sphere of law enforcement” which, under Abbasi, is

a permissible area for Bivens claims. Abbasi, 137 S. Ct. at

1857; id. at 1856 (“[I]t must be understood that this opinion

is 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.”). We therefore conclude that Boule’s

excessive force Fourth Amendment claim may proceed as a

Bivens damages claim.

B. First Amendment

Boule also presented evidence that Agent Egbert

retaliated against him for exercising his First Amendment

right to complain to Egbert’s superiors about his conduct at

the inn. As recounted above, Egbert contacted the Internal

Revenue Service, the Social Security Administration, the

Washington State Department of Licensing, and the Whatcom

County Assessor’s Office, asking each of them to investigate

Boule.

BOULE V. EGBERT 41

In Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012), the

Supreme Court wrote that it had “never held that Bivens

extends to First Amendment claims.” It is true that the Court

has never actually held that a First Amendment retaliation

claim may be brought under Bivens. But in Hartman v.

Moore, 547 U.S. 250 (2006), the Court explicitly stated, as

part of its reasoning during the course of a Bivens analysis,

that such a claim may be brought.

It has long been the law that federal officials violate the

First Amendment when they retaliate for protected speech.

See, e.g., Crawford-El v. Britton, 523 U.S. 574, 592 (1998)

(“[T]he general rule has long been clearly established” that

“the First Amendment bars retaliation for protected speech

. . .”). In Hartman, plaintiffs sought to bring a Bivens action,

alleging that federal prosecutors had prosecuted them in

retaliation for protected speech. The Court held that a Bivens

action was unavailable, but only because probable cause

supported the prosecution. The Court wrote that in the

absence of probable cause — that is, in the absence of an

innocent motive — a Bivens action would have been

available:

Official reprisal for protected speech “offends

the Constitution [because] it threatens to

inhibit exercise of the protected right,”

Crawford-El v. Britton, 523 U.S. 574, 588,

n.10 (1998), and the law is settled that as a

general matter the First Amendment prohibits

government officials from subjecting an

individual to retaliatory actions, including

criminal prosecutions, for speaking out, id.,

at 592[.] Some official actions adverse to

such a speaker might well be unexceptionable

42 BOULE V. EGBERT

if taken on other grounds, but when

nonretaliatory grounds are in fact insufficient

to provoke the adverse consequences, we have

held that retaliation is subject to recovery as

the but-for cause of official action offending

the Constitution. See Crawford-El, supra,

at 593[.] When the vengeful officer is federal,

he is subject to an action for damages on the

authority of Bivens. See 403 U.S., at 397.

Hartman, 547 U.S. at 256 (emphasis added) (some citations

omitted).

Although the Supreme Court wrote in Hartman that

Bivens extends to First Amendment retaliation claims when

federal law enforcement officials have no innocent motive for

their actions, we recognize that the Court has not expressly so

held. See Reichle, 566 U.S. at 663 n.4. We therefore

conclude that Boule’s First Amendment retaliation claim

arises in a new context.

However, we find no special factors that make it

inadvisable to find a cognizable Bivens claim in this new

context. First, we have already upheld a Bivens claim in a

different First Amendment context. In Gibson v. United

States, 781 F.2d 1334 (9th Cir. 1986), we upheld a Bivens

claim against federal officers who sought to “curb” plaintiff’s

protected First Amendment speech through a campaign of

defamation, illegal wiretapping, intimidation, burglary and

arson.

Second, the Supreme Court declined to recognize a

Bivens action in Bush v. Lucas, 462 U.S. 367 (1983), but in a

very different context. Plaintiff in Bush was a federal

BOULE V. EGBERT 43

employee who had complained about his superior. The Court

declined to recognize a Bivens action in this context

“[b]ecause such claims arise out of an employment

relationship that is governed by comprehensive procedural

and substantive provisions giving meaningful remedies

against the United States.” Id. at 368. Boule’s claim is quite

unlike the claim in Bush, where the employment relationship

was key. Boule’s claim is instead on all fours with the First

Amendment retaliation claim described in Hartman, where

the Court wrote that “[w]hen the vengeful officer is federal,

he is subject to an action for damages on the authority of

Bivens.” Hartman, 457 U.S. at 256.

Third, there is even less reason to hesitate in extending

Bivens to Boule’s First Amendment retaliation claim than

there is in his Fourth Amendment excessive force claim. Just

as excessive force is a well-established Fourth Amendment

claim, retaliation is a well-established First Amendment

claim. See Hartman, 547 U.S. at 256 (“the First Amendment

prohibits government officials from subjecting an individual

to retaliatory actions . . . for speaking out”); Lanuza, 899 F.3d

at 1033 (recognizing a Bivens action where “[t]he legal

standards for adjudicating [it] are well established and

administrable”). Boule’s First Amendment retaliation claim

presents an even stronger case for recognition as a Bivens

claim. With respect to Boule’s excessive force claim, Agent

Egbert’s actions, even if illegal, were taken during the

performance of his official duties. The same is not true for

Boule’s retaliation claim. Though Egbert identified himself

as a border patrol agent when he contacted the Internal

Revenue Service, and may have done so when he contacted

the Social Security Administration, the Washington State

Department of Licensing, and the Whatcom County

44 BOULE V. EGBERT

Assessor’s Office, he was not carrying out official duties in

asking for investigations of Boule.

C. Existence of Alternative Remedies

Finally, we consider whether there are available

alternative remedies. When there are available alternative

remedies sufficient to protect a plaintiff’s interests, “a Bivens

remedy usually is not” available. Abbasi, 137 S. Ct. at 1863;

see Fazaga v. Federal Bureau of Investigation, 965 F.3d

1015, 1057 (9th Cir. 2020). The availability of alternative

remedies “raises the inference that Congress expected the

Judiciary to stay its Bivens hand and refrain from providing

a new and freestanding remedy in damages.” Id. (internal

quotation marks omitted). “Alternative remedial structures

can take many forms, including administrative, statutory,

equitable, and state law remedies.” Vega v. United States,

881 F.3d 1146, 1154 (9th Cir. 2018) (internal quotation marks

omitted). “[A]n alternative remedy need not be perfectly

congruent with Bivens or perfectly comprehensive, [but] it

still must be adequate.” Rodriguez v. Swartz, 899 F.3d 719,

739 (9th Cir. 2018) (internal quotation marks omitted),

vacated on other grounds, 140 S. Ct. 1258.

The district court assumed without deciding that there was

no adequate alternative remedy that would preclude a Bivens

claim. On appeal, Agent Egbert suggests three alternative

remedies: “intentional-tort claims under the Federal Tort

Claims Act, see 28 U.S.C. § 2680(h), a trespass claim against

Agent Egbert, or injunctive relief.” None of these suggested

remedies defeats a Bivens action.

First, § 2680(h) of the FTCA, cited by Agent Egbert,

includes the so-called law enforcement proviso, which allows

BOULE V. EGBERT 45

damage suits against federal law enforcement officials for

“any claim arising . . . out of assault, battery, false

imprisonment, false arrest, abuse of process, or malicious

prosecution.” In Carlson v. Green, 446 U.S. 14 (1980), the

Supreme Court held that a Bivens action was available against

federal prison officials for the death of a prisoner due to

improper medical treatment in violation of the Eighth

Amendment. The Court specifically addressed the

relationship between Bivens and § 2680(h), holding that the

existence of a remedy under § 2680(h) does not foreclose a

Bivens action:

[W]hen Congress amended FTCA in 1974 to

create a cause of action against the United

States for intentional torts committed by

federal law enforcement officers, 28 U.S.C.

§ 2680(h), the congressional comments

accompanying that amendment made it crystal

clear that Congress views FTCA and Bivens

as parallel, complementary causes of

action. . . . In the absence of a contrary

expression from Congress, § 2680(h) thus

contemplates that victims of the kind of

intentional wrongdoing alleged in this

complaint shall have an action under FTCA

against the United States as well as a Bivens

action against the individual officials alleged

to have infringed their constitutional rights.

Id. at 19–20.

Moreover, in 1988, when Congress amended the FTCA

in the Westfall Act to provide that the FTCA remedy is

generally exclusive, it made an “explicit exception for Bivens

46 BOULE V. EGBERT

claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). The

Westfall Act provides that the exclusive remedy for common

law tort claims committed by federal employees is against the

United States, and that plaintiffs are precluded from bringing

suit against the employees in their individual capacity. See

28 U.S.C. § 2679(b)(1). But the exclusiveness of the FTCA

remedy was not extended to constitutional torts such as

Fourth Amendment excessive force claims. See id.

§ 2679(b)(2)(A). A contemporaneous House Report

explained:

Since the Supreme Court's decision in Bivens,

supra, the courts have identified this type of

tort as a more serious intrusion of the rights of

an individual that merits special attention.

Consequently, H.R. 4612 would not affect the

ability of victims of constitutional torts to

seek personal redress from Federal employees

who allegedly violate their Constitutional

rights.

H.R. REP. NO. 100-700, at 6 (1988), as reprinted in 1988

U.S.C.C.A.N. 5945, 5950.

Second, a state-law trespass claim against Agent Egbert

in his individual capacity is barred by the Westfall Act. See

28 U.S.C. § 2679(d)(1) (generally barring individual capacity

suits against a federal employee when the employee is “acting

within the scope of his office or employment at the time of

the incident out of which the claim arose”). Further, Egbert’s

entry onto the publicly accessible driveway of Boule’s inn,

undertaken as part of his official duties, was almost certainly

a privileged entry under state law.

BOULE V. EGBERT 47

Finally, injunctive relief is an inadequate remedy, for

Boule is seeking damages for Agent Egbert’s completed

actions rather than protection against some future act.

Conclusion

We conclude that Bivens remedies are available in the

circumstances of this case, where a United States citizen

claims that a border patrol agent violated the Fourth

Amendment by using excessive force while carrying out

official duties within the United States, and violated the First

Amendment by engaging in retaliation entirely unconnected

to his official duties. We reverse and remand for further

proceedings.

REVERSED and REMANDED.