Egbert v. Boule

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

EGBERT v. BOULE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 21–147. Argued March 2, 2022—Decided June 8, 2022

Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s

Inn—in Blaine, Washington. The inn abuts the international border

between Canada and the United States. Boule at times helped federal

agents identify and apprehend persons engaged in unlawful cross-bor-

der activity on or near his property. But Boule also would provide

transportation and lodging to illegal border crossers. Often, Boule

would agree to help illegal border crossers enter or exit the United

States, only to later call federal agents to report the unlawful activity.

In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa-

trol agent, that a Turkish national, arriving in Seattle by way of New

York, had scheduled transportation to Smuggler’s Inn. When Agent

Egbert observed one of Boule’s vehicles returning to the inn, he sus-

pected that the Turkish national was a passenger and followed the ve-

hicle to the inn. On Boule’s account, Boule asked Egbert to leave, but

Egbert refused, became violent, and threw Boule first against the ve-

hicle and then to the ground. Egbert then checked the immigration

paperwork for Boule’s guest and left after finding everything in order.

The Turkish guest unlawfully entered Canada later that evening.

Boule filed a grievance with Agent Egbert’s supervisors and an ad-

ministrative claim with Border Patrol pursuant to the Federal Tort

Claims Act (FTCA). Egbert allegedly retaliated against Boule by re-

porting Boule’s “SMUGLER” license plate to the Washington Depart-

ment of Licensing for referencing illegal activity, and by contacting the

Internal Revenue Service and prompting an audit of Boule’s tax re-

turns. Boule’s FTCA claim was ultimately denied, and Border Patrol

took no action against Egbert for his use of force or alleged acts of re-

taliation. Boule then sued Egbert in Federal District Court, alleging

a Fourth Amendment violation for excessive use of force and a First

2 EGBERT v. BOULE

Syllabus

Amendment violation for unlawful retaliation. Invoking Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis-

trict Court to recognize a damages action for each alleged constitu-

tional violation. The District Court declined to extend Bivens as re-

quested, but the Court of Appeals reversed.

Held: Bivens does not extend to create causes of action for Boule’s Fourth

Amendment excessive-force claim and First Amendment retaliation

claim. Pp. 5–17.

(a) In Bivens, the Court held that it had authority to create a dam-

ages action against federal agents for violating the plaintiff’s Fourth

Amendment rights. Over the next decade, the Court also fashioned

new causes of action under the Fifth Amendment, see Davis v. Pass-

man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green,

446 U. S. 14. Since then, however, the Court has come “to appreciate

more fully the tension between” judicially created causes of action and

“the Constitution’s separation of legislative and judicial power,” Her-

nández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply

a similar cause of action for other alleged constitutional violations, see,

e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367.

Rather than dispense with Bivens, the Court now emphasizes that rec-

ognizing a Bivens cause of action is “a disfavored judicial activity.”

Ziglar v. Abbasi, 582 U. S. ___, ___.

The analysis of a proposed Bivens claim proceeds in two steps: A

court asks first whether the case presents “a new Bivens context”—i.e.,

is it “meaningfully different from the three cases in which the Court

has implied a damages action,” Ziglar, 582 U. S., at ___, and, second,

even if so, do “special factors” indicate that the Judiciary is at least

arguably less equipped than Congress to “weigh the costs and benefits

of allowing a damages action to proceed.” Id., at ___. This two-step

inquiry often resolves to a single question: whether there is any reason

to think that Congress might be better equipped to create a damages

remedy. Further, under the Court’s precedents, a court may not fash-

ion a Bivens remedy if Congress already has provided, or has author-

ized the Executive to provide, “an alternative remedial structure.”

Ziglar, 582 U. S., at ___. Pp. 5–8.

(b) The Court of Appeals conceded that Boule’s Fourth Amendment

claim presented a new Bivens context, but its conclusion that there

was no reason to hesitate before recognizing a cause of action against

Agent Egbert was incorrect for two independent reasons. Pp. 9–13.

(1) First, the “risk of undermining border security provides reason

to hesitate before extending Bivens into this field.” Hernández, 589

U. S., at ___. In Hernández, the Court declined to create a damages

remedy for an excessive-force claim against a Border Patrol agent be-

cause “regulating the conduct of agents at the border unquestionably

Cite as: 596 U. S. ____ (2022) 3

Syllabus

has national security implications.” Id., at ___. That reasoning applies

with full force here. The Court of Appeals disagreed because it viewed

Boule’s Fourth Amendment claim as akin to a “conventional” exces-

sive-force claim, as in Bivens, and less like the cross-border shooting

in Hernández. But that does not bear on the relevant point: Permitting

suit against a Border Patrol agent presents national security concerns

that foreclose Bivens relief. Further, the Court of Appeals’ analysis

betrays the pitfalls of applying the special-factors analysis at too gran-

ular a level. A court should not inquire whether Bivens relief is appro-

priate in light of the balance of circumstances in the “particular case.”

United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask

“[m]ore broadly” whether there is any reason to think that “judicial

intrusion” into a given field might be “harmful” or “inappropriate,” id.,

at 681. The proper inquiry here is whether a court is competent to

authorize a damages action not just against Agent Egbert, but against

Border Patrol agents generally. The answer is no. Pp. 9–12.

(2) Second, Congress has provided alternative remedies for ag-

grieved parties in Boule’s position that independently foreclose a

Bivens action here. By regulation, Border Patrol must investigate

“[a]lleged violations” and accept grievances from “[a]ny persons.” 8

CFR §§287.10(a)–(b). Boule claims that this regulatory grievance pro-

cedure was inadequate, but this Court has never held that a Bivens

alternative must afford rights such as judicial review of an adverse

determination. Bivens “is concerned solely with deterring the uncon-

stitutional acts of individual officers.” Correctional Services Corp. v.

Malesko, 534 U. S. 61, 71. And, regardless, the question whether a

given remedy is adequate is a legislative determination. As in Her-

nández, this Court has no warrant to doubt that the consideration of

Boule’s grievance secured adequate deterrence and afforded Boule an

alternative remedy. See 589 U. S., at ___. Pp. 12–13.

(c) There is no Bivens cause of action for Boule’s First Amendment

retaliation claim. That claim presents a new Bivens context, and there

are many reasons to think that Congress is better suited to authorize

a damages remedy. Extending Bivens to alleged First Amendment vi-

olations would pose an acute “risk that fear of personal monetary lia-

bility and harassing litigation will unduly inhibit officials in the dis-

charge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In

light of these costs, “Congress is in a better position to decide whether

or not the public interest would be served” by imposing a damages ac-

tion. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for ex-

tending Bivens in this context—that retaliation claims are “well-estab-

lished” and that Boule alleges that Agent Egbert “was not carrying out

official duties” when the retaliation occurred—lack merit. Also lacking

4 EGBERT v. BOULE

Syllabus

merit is Boule’s claim that this Court identified a Bivens cause of ac-

tion under allegedly similar circumstances in Passman. Even assum-

ing factual parallels, Passman carries little weight because it predates

the Court’s current approach to implied causes of action. A plaintiff

cannot justify a Bivens extension based on “parallel circumstances”

with Bivens, Passman, or Carlson—the three cases in which the Court

has implied a damages action—unless the plaintiff also satisfies the

prevailing “analytic framework” prescribed by the last four decades of

intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16.

998 F. 3d 370, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an

opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con-

curring in the judgment in part and dissenting in part, in which BREYER

and KAGAN, JJ., joined.

Cite as: 596 U. S. ____ (2022) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 21–147

_________________

ERIK EGBERT, PETITIONER v. ROBERT BOULE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 8, 2022]

JUSTICE THOMAS delivered the opinion of the Court.

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 de-

clined 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. Cas-

taneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565 U. S.

118 (2012); Ziglar v. Abbasi, 582 U. S. ___ (2017); Hernán-

dez v. Mesa, 589 U. S. ___ (2020). Nevertheless, the Court

of Appeals permitted not one, but two constitutional dam-

ages 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.

2 EGBERT v. BOULE

Opinion of the Court

I

Blaine, Washington, is the last town in the United States

along U. S. Interstate Highway 5 before reaching the Cana-

dian border. Respondent Robert Boule is a longtime Blaine

resident. The rear of his property abuts the Canadian bor-

der at “0 Avenue,” a Canadian street. Boule’s property line

actually extends five feet into Canada. Several years ago,

Boule placed a line of small stones on his property to mark

the international boundary. As shown below, any person

could easily enter the United States or Canada through or

near Boule’s property. See App. 100.

Boule markets his home as a bed-and-breakfast aptly

named “Smuggler’s Inn.” The area surrounding the Inn “is

a hotspot for cross-border smuggling of people, drugs, illicit

money, and items of significance to criminal organizations.”

Id., at 91. “On numerous occasions,” U. S. Border Patrol

agents “have observed persons come south across the bor-

der and walk into Smuggler’s Inn through the back door.”

Id., at 101. Federal agents also have seized from the Inn

shipments of cocaine, methamphetamine, ecstasy, and

other narcotics. For a time, Boule served as a confidential

Cite as: 596 U. S. ____ (2022) 3

Opinion of the Court

informant who would help federal agents identify and ap-

prehend persons engaged in unlawful cross-border activity

on or near his property. Boule claims that the Government

has paid him upwards of $60,000 for his services.

Ever the entrepreneur, Boule saw his relationship with

Border Patrol as a business opportunity. Boule would host

persons who unlawfully entered the United States as

“guests” at the Inn and offer to drive them to Seattle or else-

where. He also would pick up Canada-bound guests

throughout the State and drive them north to his property

along the border. Either way, Boule would charge $100–

$150 per hour for his shuttle service and require guests to

pay for a night of lodging even if they never intended to stay

at the Inn. Meanwhile, Boule would inform federal law en-

forcement if he was scheduled to lodge or transport persons

of interest. In short order, Border Patrol agents would ar-

rive to arrest the guests, often within a few blocks of the

Inn. Boule would decline to offer his erstwhile customers a

refund. In his view, this practice was “nothing any different

than [the] normal policies of any hotel/motel.” Id., at 120.1

In light of Boule’s business model, local Border Patrol

agents, including petitioner Erik Egbert, were well ac-

quainted with Smuggler’s Inn and the criminal activity that

attended it. On March 20, 2014, Boule informed Agent Eg-

bert that a Turkish national, arriving in Seattle by way of

New York, had scheduled transportation to Smuggler’s Inn

later that day. Agent Egbert grew suspicious, as he could

think of “no legitimate reason a person would travel from

Turkey to stay at a rundown bed-and-breakfast on the bor-

der in Blaine.” Id., at 104. The photograph below displays

the amenities for which Boule’s Turkish guest would have

——————

1 Notwithstanding his defense of the Inn’s policies, Boule was recently

convicted in Canadian court for engaging in human trafficking. In De-

cember 2021, he pleaded guilty to trafficking 11 Afghanis and Syrians

into Canada. He billed each foreign national between $200 and $700 for

the trip. See Regina v. Boule, 2021 BCSC 2561, ¶¶7–11.

4 EGBERT v. BOULE

Opinion of the Court

traveled more than 7,500 miles. See id., at 102.

Later that afternoon, Agent Egbert observed one of

Boule’s vehicles—a black SUV with the license plate

“SMUGLER”—returning to the Inn. Agent Egbert sus-

pected that Boule’s Turkish guest was a passenger and fol-

lowed the SUV into the driveway so he could check the

guest’s immigration status. On Boule’s account, the situa-

tion escalated from there. Boule instructed Agent Egbert

to leave his property, but Agent Egbert declined. Instead,

Boule claims, Agent Egbert lifted him off the ground and

threw him against the SUV. After Boule collected himself,

Agent Egbert allegedly threw him to the ground. Agent Eg-

bert then checked the guest’s immigration paperwork, con-

cluded that everything was in order, and left. Later that

evening, Boule’s Turkish guest unlawfully entered Canada

from Smuggler’s Inn.

Boule lodged a grievance with Agent Egbert’s supervi-

sors, alleging that Agent Egbert had used excessive force

and caused him physical injury. Boule also filed an admin-

istrative claim with Border Patrol pursuant to the Federal

Tort Claims Act (FTCA). See 28 U. S. C. §2675(a). Accord-

ing to Boule, Agent Egbert retaliated against him while

Cite as: 596 U. S. ____ (2022) 5

Opinion of the Court

those claims were pending by reporting Boule’s

“SMUGLER” license plate to the Washington Department

of Licensing for referencing illegal conduct, and by contact-

ing the Internal Revenue Service and prompting an audit

of Boule’s tax returns. Ultimately, Boule’s FTCA claim was

denied and, after a year-long investigation, Border Patrol

took no action against Agent Egbert for his alleged use of

force or acts of retaliation. Thereafter, Agent Egbert con-

tinued to serve as an active-duty Border Patrol agent.

In January 2017, Boule sued Agent Egbert in his individ-

ual capacity in Federal District Court, alleging a Fourth

Amendment violation for excessive use of force and a First

Amendment violation for unlawful retaliation. Boule in-

voked Bivens and asked the District Court to recognize a

damages action for each alleged constitutional violation.

The District Court declined to extend a Bivens remedy to

Boule’s claims and entered judgment for Agent Egbert. The

Court of Appeals reversed. See 998 F. 3d 370, 385 (CA9

2021). Twelve judges dissented from the denial of rehear-

ing en banc. See id., at 373 (Bumatay, J., dissenting); id.,

at 384 (Owens, J., dissenting); ibid. (Bress, J., dissenting).

We granted certiorari. 595 U. S. ___ (2021).

II

In Bivens, the Court held that it had authority to create

“a cause of action under the Fourth Amendment” against

federal agents who allegedly manacled the plaintiff and

threatened his family while arresting him for narcotics vio-

lations. 403 U. S., at 397. Although “the Fourth Amend-

ment does not in so many words provide for its enforcement

by an award of money damages,” id., at 396, the Court “held

that it could authorize a remedy under general principles of

federal jurisdiction,” Ziglar, 582 U. S., at ___ (slip op., at 7)

(citing Bivens, 403 U. S., at 392). Over the following decade,

the Court twice again fashioned new causes of action under

the Constitution—first, for a former congressional staffer’s

6 EGBERT v. BOULE

Opinion of the Court

Fifth Amendment sex-discrimination claim, see Davis v.

Passman, 442 U. S. 228 (1979); and second, for a federal

prisoner’s inadequate-care claim under the Eighth Amend-

ment, see Carlson v. Green, 446 U. S. 14 (1980).

Since these cases, the Court has not implied additional

causes of action under the Constitution. Now long past “the

heady days in which this Court assumed common-law pow-

ers to create causes of action,” Malesko, 534 U. S., at 75

(Scalia, J., concurring), we have come “to appreciate more

fully the tension between” judicially created causes of ac-

tion and “the Constitution’s separation of legislative and ju-

dicial power,” Hernández, 589 U. S., at ___ (slip op., at 5).

At bottom, creating a cause of action is a legislative en-

deavor. Courts engaged in that unenviable task must eval-

uate a “range of policy considerations . . . at least as broad

as the range . . . a legislature would consider.” Bivens, 403

U. S., at 407 (Harlan, J., concurring in judgment); see also

post, at 2 (GORSUCH, J., concurring in judgment). Those

factors include “economic and governmental concerns,” “ad-

ministrative costs,” and the “impact on governmental oper-

ations systemwide.” Ziglar, 582 U. S., at ___, ___ (slip op.,

at 10, 13). Unsurprisingly, Congress is “far more competent

than the Judiciary” to weigh such policy considerations.

Schweiker, 487 U. S., at 423. And the Judiciary’s authority

to do so at all is, at best, uncertain. See, e.g., Hernández,

589 U. S., at ___ (slip op., at 6).

Nonetheless, rather than dispense with Bivens alto-

gether, we have emphasized that recognizing a cause of ac-

tion under Bivens is “a disfavored judicial activity.” Ziglar,

582 U. S., at ___ (slip op., at 11) (internal quotation marks

omitted); Hernández, 589 U. S., at ___ (slip op., at 7) (inter-

nal quotation marks omitted). When asked to imply a

Bivens action, “our watchword is caution.” Id., at ___ (slip

op., at 6). “[I]f there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages rem-

edy[,] the courts must refrain from creating [it].” Ziglar,

Cite as: 596 U. S. ____ (2022) 7

Opinion of the Court

582 U. S., at ___ (slip op., at 13). “[E]ven a single sound

reason to defer to Congress” is enough to require a court to

refrain from creating such a remedy. Nestlé USA, Inc. v.

Doe, 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at

6). Put another way, “the most important question is who

should decide whether to provide for a damages remedy,

Congress or the courts?” Hernández, 589 U. S., at ___–___

(slip op., at 19–20) (internal quotation marks omitted). If

there is a rational reason to think that the answer is “Con-

gress”—as it will be in most every case, see Ziglar, 582

U. S., at ___ (slip op., at 12)—no Bivens action may lie. Our

cases instruct that, absent utmost deference to Congress’

preeminent authority in this area, the courts “arrogat[e]

legislative power.” Hernández, 589 U. S., at ___ (slip op., at

5).

To inform a court’s analysis of a proposed Bivens claim,

our cases have framed the inquiry as proceeding in two

steps. See Hernández, 589 U. S., at ___ (slip op., at 7).

First, we ask whether the case presents “a new Bivens con-

text”—i.e., is it “meaningful[ly]” different from the three

cases in which the Court has implied a damages action.

Ziglar, 582 U. S., at ___ (slip op., at 16). Second, if a claim

arises in a new context, a Bivens remedy is unavailable if

there are “special factors” indicating that the Judiciary is

at least arguably less equipped than Congress to “weigh the

costs and benefits of allowing a damages action to proceed.”

Ziglar, 582 U. S., at ___ (slip op., at 12) (internal quotation

marks omitted). If there is even a single “reason to pause

before applying Bivens in a new context,” a court may not

recognize a Bivens remedy. Hernández, 589 U. S., at ___

(slip op., at 7).

While our cases describe two steps, those steps often re-

solve to a single question: whether there is any reason to

think that Congress might be better equipped to create a

damages remedy. For example, we have explained that a

new context arises when there are “potential special factors

8 EGBERT v. BOULE

Opinion of the Court

that previous Bivens cases did not consider.” Ziglar, 582

U. S., at ___ (slip op., at 16). And we have identified several

examples of new contexts—e.g., a case that involves a “new

category of defendants,” Malesko, 534 U. S., at 68; see also

Ziglar, 582 U. S., at ___ (slip op., at 11)—largely because

they represent situations in which a court is not undoubt-

edly better positioned than Congress to create a damages

action. We have never offered an “exhaustive” accounting

of such scenarios, however, because no court could forecast

every factor that might “counse[l] hesitation.” Id., at ___

(slip op., at 16). Even in a particular case, a court likely

cannot predict the “systemwide” consequences of recogniz-

ing a cause of action under Bivens. Ziglar, 582 U. S., at ___

(slip op., at 13). That uncertainty alone is a special factor

that forecloses relief. See Hernández v. Mesa, 885 F. 3d

811, 818 (CA5 2018) (en banc) (“The newness of this ‘new

context’ should alone require dismissal”).

Finally, our cases hold that a court may not fashion a

Bivens remedy if Congress already has provided, or has au-

thorized the Executive to provide, “an alternative remedial

structure.” Ziglar, 582 U. S., at ___ (slip op., at 14); see also

Schweicker, 487 U. S., at 425. If there are alternative re-

medial structures in place, “that alone,” like any special fac-

tor, is reason enough to “limit the power of the Judiciary to

infer a new Bivens cause of action.” Ziglar, 582 U. S., at ___

(slip op., at 14).2 Importantly, the relevant question is not

whether a Bivens action would “disrup[t]” a remedial

scheme, Schweicker, 487 U. S., at 426, or whether the court

“should provide for a wrong that would otherwise go unre-

dressed,” Bush, 462 U. S., at 388. Nor does it matter that

——————

2 Congress also may preclude a claim under Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U. S. 388 (1971), against federal officers if it

affirmatively forecloses one. “Even in circumstances in which a Bivens

remedy is generally available, an action under Bivens will be defeated if

the defendant is immune from suit,” Hui v. Castaneda, 559 U. S. 799,

807 (2010), and Congress may grant such immunity as it sees fit.

Cite as: 596 U. S. ____ (2022) 9

Opinion of the Court

“existing remedies do not provide complete relief.” Ibid.

Rather, the court must ask only whether it, rather than the

political branches, is better equipped to decide whether ex-

isting remedies “should be augmented by the creation of a

new judicial remedy.” Ibid; see also id., at 380 (“the ques-

tion [is] who should decide”).

III

Applying the foregoing principles, the Court of Appeals

plainly erred when it created causes of action for Boule’s

Fourth Amendment excessive-force claim and First Amend-

ment retaliation claim.

A

The Court of Appeals conceded that Boule’s Fourth

Amendment claim presented a new context for Bivens pur-

poses, yet it concluded there was no reason to hesitate be-

fore recognizing a cause of action against Agent Egbert. See

998 F. 3d, at 387. That conclusion was incorrect for two in-

dependent reasons: Congress is better positioned to create

remedies in the border-security context, and the Govern-

ment already has provided alternative remedies that pro-

tect plaintiffs like Boule. We address each in turn.

1

In Hernández, we declined to create a damages remedy

for an excessive-force claim against a Border Patrol agent

who shot and killed a 15-year-old Mexican national across

the border in Mexico. See 589 U. S., at ___–___ (slip op., at

1–2). We did not recognize a Bivens action there because

“regulating the conduct of agents at the border unquestion-

ably has national security implications,” and the “risk of

undermining border security provides reason to hesitate be-

fore extending Bivens into this field.” Hernández, 589 U. S.,

at ___ (slip op., at 14). This reasoning applies here with full

force. During the alleged altercation with Boule, Agent Eg-

10 EGBERT v. BOULE

Opinion of the Court

bert was carrying out Border Patrol’s mandate to “inter-

dic[t] persons attempting to illegally enter or exit the

United States or goods being illegally imported into or ex-

ported from the United States.” 6 U. S. C. §211(e)(3)(A).

Because “[m]atters intimately related to foreign policy and

national security are rarely proper subjects for judicial in-

tervention,” Haig v. Agee, 453 U. S. 280, 292 (1981), we re-

affirm that a Bivens cause of action may not lie where, as

here, national security is at issue.

The Court of Appeals thought otherwise. In its view,

Boule’s Fourth Amendment claim is “conventional,” 998

F. 3d, at 387; see also post, at 8, 12 (SOTOMAYOR, J., concur-

ring in judgment in part and dissenting in part) (same),

and, though it arises in a new context, this Court has not

“ ‘cast doubt’ ” on extending Bivens within the “ ‘common and

recurrent sphere of law enforcement’ ” in which it arose, 998

F. 3d, at 389 (quoting Ziglar, 582 U. S., at ___ (slip op., at

11)). While Bivens and this case do involve similar allega-

tions of excessive force and thus arguably present “almost

parallel circumstances” or a similar “mechanism of injury,”

Ziglar, 582 U. S., at ___ (slip op., at 15), these superficial

similarities are not enough to support the judicial creation

of a cause of action. The special-factors inquiry—which

Bivens never meaningfully undertook, see Stanley, 483

U. S., at 678—shows here, no less than in Hernández, that

the Judiciary is not undoubtedly better positioned than

Congress to authorize a damages action in this national-se-

curity context. That this case does not involve a cross-bor-

der shooting, as in Hernández, but rather a more “conven-

tional” excessive-force claim, as in Bivens, does not bear on

the relevant point. Either way, the Judiciary is compara-

tively ill suited to decide whether a damages remedy

against any Border Patrol agent is appropriate.

The Court of Appeals downplayed the national-security

risk from imposing Bivens liability because Agent Egbert

was not “literally ‘at the border,’ ” and Boule’s guest already

Cite as: 596 U. S. ____ (2022) 11

Opinion of the Court

had cleared customs in New York. 998 F. 3d, at 388; see

also post, at 11–12, 18 (opinion of SOTOMAYOR, J.) (same).

The court also found that Boule had a weightier interest in

Bivens relief than the parents of the deceased Mexican

teenager in Hernández, because Boule “is a United States

citizen, complaining of harm suffered on his own property

in the United States.” 998 F. 3d, at 388; see also post, at 12,

18 (opinion of SOTOMAYOR, J.) (same). Finding that “any

costs imposed by allowing a Bivens claim to proceed are out-

weighed by compelling interests in favor of protecting

United States citizens on their own property in the United

States,” the court extended Bivens to Boule’s case. 998

F. 3d, at 389.

This analysis is deeply flawed. The Bivens inquiry does

not invite federal courts to independently assess the costs

and benefits of implying a cause of action. A court faces

only one question: 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 pro-

ceed.” Ziglar, 582 U. S., at ___ (slip op., at 12). Thus, a

court should not inquire, as the Court of Appeals did here,

whether Bivens relief is appropriate in light of the balance

of circumstances in the “particular case.” Stanley, 483

U. S., at 683. A court inevitably will “impai[r]” governmen-

tal interests, and thereby frustrate Congress’ policymaking

role, if it applies the “ ‘special factors’ analysis” at such a

narrow “leve[l] of generality.” Id., at 681. Rather, under

the proper approach, a court must ask “[m]ore broadly” if

there is any reason to think that “judicial intrusion” into a

given field might be “harmful” or “inappropriate.” Ibid. If

so, or even if there is the “potential” for such consequences,

a court cannot afford a plaintiff a Bivens remedy. Ziglar,

582 U. S., at ___, ___ (slip op., at 16, 25) (emphasis added).

As in Hernández, then, we ask here whether a court is com-

petent to authorize a damages action not just against Agent

12 EGBERT v. BOULE

Opinion of the Court

Egbert but against Border Patrol agents generally. The an-

swer, plainly, is no. See Hernández, 589 U. S., at ___ (slip

op., at 14) (refusing to extend Bivens into the “field” of “bor-

der security”).

The Court of Appeals’ analysis betrays the pitfalls of ap-

plying the special-factors analysis at too granular a level.

The court rested on three irrelevant distinctions from Her-

nández. First, Agent Egbert was several feet from (rather

than straddling) the border, but cross-border security is ob-

viously implicated in either event. Second, Boule’s guest

arrived in Seattle from New York rather than abroad, but

an alien’s port of entry does not make him less likely to be

a national-security threat. And third, Agent Egbert inves-

tigated immigration violations on our side of the border, not

Canada’s, but immigration investigations in this country

are perhaps more likely to impact the national security of

the United States. In short, the Court of Appeals offered no

plausible basis to permit a Fourth Amendment Bivens

claim against Agent Egbert to proceed.

2

Second, Congress has provided alternative remedies for

aggrieved parties in Boule’s position that independently

foreclose a Bivens action here. In Hernández, we declined

to authorize a Bivens remedy, in part, because the Execu-

tive Branch already had investigated alleged misconduct by

the defendant Border Patrol agent. See 589 U. S., at ___–

___, ___ (slip op., at 9–10, 14). In Malesko, we explained

that Bivens relief was unavailable because federal prison-

ers could, among other options, file grievances through an

“Administrative Remedy Program.” 534 U. S., at 74. Both

kinds of remedies are available here. The U. S. Border Pa-

trol is statutorily obligated to “control, direc[t], and super-

vis[e] . . . all employees.” 8 U. S. C. §1103(a)(2). And, by

regulation, Border Patrol must investigate “[a]lleged viola-

tions of the standards for enforcement activities” and accept

Cite as: 596 U. S. ____ (2022) 13

Opinion of the Court

grievances from “[a]ny persons wishing to lodge a com-

plaint.” 8 CFR §§287.10(a)–(b). As noted, Boule took ad-

vantage of this grievance procedure, prompting a year-long

internal investigation into Agent Egbert’s conduct. See su-

pra, at 4–5.

Boule nonetheless contends that Border Patrol’s griev-

ance process is inadequate because he is not entitled to par-

ticipate and has no right to judicial review of an adverse

determination.3 But we have never held that a Bivens al-

ternative must afford rights to participation or appeal.

That is so because Bivens “is concerned solely with deter-

ring the unconstitutional acts of individual officers”—i.e.,

the focus is whether the Government has put in place safe-

guards to “preven[t]” constitutional violations “from recur-

ring.” Malesko, 534 U. S., at 71, 74; see also Meyer, 510

U. S., at 485. And, again, the question whether a given

remedy is adequate is a legislative determination that must

be left to Congress, not the federal courts. So long as Con-

gress 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 superim-

posing a Bivens remedy. That is true even if a court inde-

pendently concludes that the Government’s procedures are

“not as effective as an individual damages remedy.” Bush,

——————

3 Boule also argues that Agent Egbert forfeited any argument about

Border Patrol’s grievance process because he did not raise the issue in

the Court of Appeals. We disagree. Because recognizing a Bivens cause

of action “is an extraordinary act that places great stress on the separa-

tion of powers,” Nestlé USA, Inc. v. Doe, 593 U. S. ___, ___ (2021) (plural-

ity opinion) (slip op., at 7), we have “a concomitant responsibility” to eval-

uate any grounds that counsel against Bivens relief, Oliva v. Nivar, 973

F. 3d 438, 443, n. 2 (CA5 2020); see also Elhady v. Unidentified CBP

Agents, 18 F. 4th 880, 884 (CA6 2021). And, in any event, Agent Egbert

has consistently claimed that alternative remedies foreclose applying

Bivens in this case. Thus, under our precedents, he is “not limited to the

precise arguments [he] made below.” Yee v. Escondido, 503 U. S. 519,

534 (1992).

14 EGBERT v. BOULE

Opinion of the Court

462 U. S., at 372. Thus here, as in Hernández, we have no

warrant to doubt that the consideration of Boule’s grievance

against Agent Egbert secured adequate deterrence and af-

forded Boule an alternative remedy. See 589 U. S., at ___

(slip op., at 10).

B

We also conclude that there is no Bivens cause of action

for Boule’s First Amendment retaliation claim. While we

have assumed that such a damages action might be availa-

ble, see, e.g., Hartman v. Moore, 547 U. S. 250, 252 (2006),

“[w]e have never held that Bivens extends to First Amend-

ment claims,” Reichle v. Howards, 566 U. S. 658, 663, n. 4

(2012). Because a new context arises when there is a new

“constitutional right at issue,” Ziglar, 582 U. S., at ___ (slip

op., at 16), the Court of Appeals correctly held that Boule’s

First Amendment claim presents a new Bivens context. See

998 F. 3d, at 390. Now presented with the question

whether to extend Bivens to this context, we hold that there

is no Bivens action for First Amendment retaliation. There

are many reasons to think that Congress, not the courts, is

better suited to authorize such a damages remedy.

Recognizing any new Bivens action “entail[s] substantial

social costs, including the risk that fear of personal mone-

tary liability and harassing litigation will unduly inhibit of-

ficials in the discharge of their duties.” Anderson v.

Creighton, 483 U. S. 635, 638 (1987). Extending Bivens to

alleged First Amendment violations would pose an acute

risk of increasing such costs. A plaintiff can turn practically

any adverse action into grounds for a retaliation claim.

And, “[b]ecause an official’s state of mind is easy to allege

and hard to disprove, insubstantial claims that turn on [re-

taliatory] intent may be less amenable to summary disposi-

tion.” Crawford-El v. Britton, 523 U. S. 574, 584–585

(1998) (internal quotation marks omitted). Even a frivolous

Cite as: 596 U. S. ____ (2022) 15

Opinion of the Court

retaliation claim “threaten[s] to set off broad-ranging dis-

covery in which there is often no clear end to the relevant

evidence.” Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (slip

op., at 11) (internal quotation marks omitted).

“[U]ndoubtedly,” then, the “prospect of personal liability”

under the First Amendment would lead “to new difficulties

and expense.” Schweiker, 487 U. S., at 425. Federal em-

ployees “face[d with] the added risk of personal liability for

decisions that they believe to be a correct response to im-

proper [activity] would be deterred from” carrying out their

duties. Bush, 462 U. S., at 389. We are therefore “con-

vinced” that, in light of these costs, “Congress is in a better

position to decide whether or not the public interest would

be served” by imposing a damages action. Id., at 390.

The Court of Appeals nonetheless extended Bivens to the

First Amendment because, in its view, retaliation claims

are “well-established,” and Boule alleges that Agent Egbert

“was not carrying out official duties” when he retaliated

against him. 998 F. 3d, at 391. Neither rationale has merit.

First, just because plaintiffs often plead unlawful retalia-

tion to establish a First Amendment violation is not a rea-

son to afford them a cause of action to sue federal officers

for money damages. If anything, that retaliation claims are

common, and therefore more likely to impose “a significant

expansion of Government liability,” Meyer, 510 U. S., at

486, counsels against permitting Bivens relief.

Second, the Court of Appeals’ scope-of-duty observation

does not meaningfully limit the number of potential Bivens

claims or otherwise undermine the reasons for hesitation

stated above. It is easy to allege that federal employees

acted beyond the scope of their authority when claiming a

constitutional violation. And, regardless, granting Bivens

relief because a federal agent supposedly did not act pursu-

ant to his law-enforcement mission “misses the point.” Her-

nández, 589 U. S., at ___ (slip op., at 14). “The question is

not whether national security,” or some other governmental

16 EGBERT v. BOULE

Opinion of the Court

interest, actually “requires [the defendant’s] conduct.” Ibid.

Instead, we “ask whether the Judiciary should alter the

framework established by the political branches for ad-

dressing” any such conduct that allegedly violates the Con-

stitution. Ibid. With respect to that question, the foregoing

discussion shows that the Judiciary is ill equipped to alter

that framework generally, and especially so when it comes

to First Amendment claims.

Boule responds that any hesitation is unwarranted be-

cause this Court in Passman already identified a Bivens

cause of action under allegedly similar circumstances.

There, the Court permitted a congressional staffer to sue a

congressman for sex discrimination under the Fifth Amend-

ment. See 442 U. S., at 231. In Boule’s view, Passman, like

this case, permitted a damages action to proceed even

though it required the factfinder to probe a federal official’s

motives for taking an adverse action against the plaintiff.

Even assuming the factual parallels are as close as Boule

claims, Passman carries little weight because it predates

our current approach to implied causes of action and di-

verges from the prevailing framework in three important

ways. First, the Passman Court concluded that a Bivens

action must be available if there is “no effective means other

than the judiciary to vindicate” the purported Fifth Amend-

ment right. 442 U. S., at 243; see also Carlson, 446 U. S.,

at 18–19 (Congress can foreclose Bivens relief by

“provid[ing] an alternative remedy which it explicitly de-

clared to be a substitute for recovery directly under the Con-

stitution and viewed as equally effective”). Since then, how-

ever, we have explained that the absence of relief “does not

by any means necessarily imply that courts should award

money damages.” Schweiker, 487 U. S., at 421. Second,

Passman indicated that a damages remedy is appropriate

unless Congress “explicit[ly]” declares that a claimant “may

not recover money damages.” 442 U. S., at 246–247 (inter-

nal quotation marks omitted; emphasis deleted). Now,

Cite as: 596 U. S. ____ (2022) 17

Opinion of the Court

though, we defer to “congressional inaction” if “the design

of a Government program suggests that Congress has pro-

vided what it considers adequate remedial mechanisms.”

Schweiker, 487 U. S., at 423; see also Ziglar, 582 U. S., at

___ (slip op., at 14). Third, when assessing the “special fac-

tors,” Passman asked whether a court is competent to cal-

culate damages “without difficult questions of valuation or

causation.” 442 U. S., at 245. But today, we do not ask

whether a court can determine a damages amount. Rather,

we ask whether “there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy”

at all. Ziglar, 582 U. S., at ___ (slip op., at 13).

In short, as we explained in Ziglar, a plaintiff cannot jus-

tify a Bivens extension based on “parallel circumstances”

with Bivens, Passman, or Carlson unless he also satisfies

the “analytic framework” prescribed by the last four dec-

ades of intervening case law. 582 U. S., at ___–___ (slip op.,

at 15–16). Boule has failed to do so.

IV

Since it was decided, Bivens has had no shortage of de-

tractors. See, e.g., Bivens, 403 U. S., at 411 (Burger, C. J.,

dissenting); id., at 427 (Black, J., dissenting); id., at 430

(Blackmun, J., dissenting); Carlson, 446 U. S., at 31

(Rehnquist, J., dissenting); Malesko, 534 U. S., at 75

(Scalia, J., concurring); Hernández, 589 U. S., at ___

(THOMAS, J., concurring) (slip op., at 1); post, at 1–3 (opin-

ion of GORSUCH, J.). And, more recently, we have indicated

that if we were called to decide Bivens today, we would de-

cline to discover any implied causes of action in the Consti-

tution. See Ziglar, 582 U. S., at ___ (slip op., at 11). But, to

decide the case before us, we need not reconsider Bivens it-

self. Accordingly, we reverse the judgment of the Court of

Appeals.

It is so ordered.

Cite as: 596 U. S. ____ (2022) 1

GORSUCH

GORSUCH , J., concurring

, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 21–147

_________________

ERIK EGBERT, PETITIONER v. ROBERT BOULE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 8, 2022]

JUSTICE GORSUCH, concurring in the judgment.

Our Constitution’s separation of powers prohibits federal

courts from assuming legislative authority. As the Court

today acknowledges, Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U. S. 388 (1971), crossed that line by

“impl[ying]” a new set of private rights and liabilities Con-

gress never ordained. Ante, at 5–6; see also Alexander v.

Sandoval, 532 U. S. 275, 286 (2001); Nestlé USA, Inc. v.

Doe, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concur-

ring) (slip op., at 4–7).

Recognizing its misstep, this Court has struggled for dec-

ades to find its way back. Initially, the Court told lower

courts to follow a “two ste[p]” inquiry before applying

Bivens to any new situation. Ante, at 7. At the first step, a

court had to ask whether the case before it presented a “new

context” meaningfully different from Bivens. Ante, at 7. At

the second, a court had to consider whether “ ‘special fac-

tors’ ” counseled hesitation before recognizing a new cause

of action. Ibid. But these tests soon produced their own set

of questions: What distinguishes the first step from the sec-

ond? What makes a context “new” or a factor “special”?

And, most fundamentally, on what authority may courts

recognize new causes of action even under these standards?

Today, the Court helpfully answers some of these linger-

ing questions. It recognizes that our two-step inquiry really

boils down to a “single question”: Is there “any reason to

2 EGBERT v. BOULE

GORSUCH, J., concurring in judgment

think Congress might be better equipped” than a court to

“ ‘weigh the costs and benefits of allowing a damages action

to proceed’ ”? Ante, at 7–8; see Ziglar v. Abbasi, 582 U. S.

120, ___–___ (2017) (slip op., at 13–14). But, respectfully,

resolving that much only serves to highlight the larger re-

maining question: When might a court ever be “better

equipped” than the people’s elected representatives to

weigh the “costs and benefits” of creating a cause of action?

It seems to me that to ask the question is to answer it. To

create a new cause of action is to assign new private rights

and liabilities—a power that is in every meaningful sense

an act of legislation. See Sandoval, 532 U. S., at 286–287;

Nestlé, 593 U. S., at ___ (GORSUCH, J., concurring) (slip op.,

at 5); Jesner v. Arab Bank, PLC, 584 U. S. ___, ___ (2018)

(GORSUCH, J., concurring in part and concurring in judg-

ment) (slip op., at 3). If exercising that sort of authority

may once have been a “ ‘proper function for common-law

courts’ ” in England, it is no longer generally appropriate

“ ‘for federal tribunals’ ” in a republic where the people elect

representatives to make the rules that govern them. Sand-

oval, 532 U. S., at 287. Weighing the costs and benefits of

new laws is the bread and butter of legislative committees.

It has no place in federal courts charged with deciding cases

and controversies under existing law.

Instead of saying as much explicitly, however, the Court

proceeds on to conduct a case-specific analysis. And there I

confess difficulties. The plaintiff is an American citizen

who argues that a federal law enforcement officer violated

the Fourth Amendment in searching the curtilage of his

home. Candidly, I struggle to see how this set of facts dif-

fers meaningfully from those in Bivens itself. To be sure, as

the Court emphasizes, the episode here took place near an

international border and the officer’s search focused on vio-

lations of the immigration laws. But why does that matter?

The Court suggests that Fourth Amendment violations

Cite as: 596 U. S. ____ (2022) 3

GORSUCH, J., concurring in judgment

matter less in this context because of “likely” national-secu-

rity risks. Ante, at 11–12. So once more, we tote up for

ourselves the costs and benefits of a private right of action

in this or that setting and reach a legislative judgment. To

atone for Bivens, it seems we continue repeating its most

basic mistake.

Of course, the Court’s real messages run deeper than its

case-specific analysis. If the costs and benefits do not jus-

tify a new Bivens action on facts so analogous to Bivens it-

self, it’s hard to see how they ever could. And if the only

question is whether a court is “better equipped” than Con-

gress to weigh the value of a new cause of action, surely the

right answer will always be no. Doubtless, these are the

lessons the Court seeks to convey. I would only take the

next step and acknowledge explicitly what the Court leaves

barely implicit. Sometimes, it seems, “this Court leaves a

door ajar and holds out the possibility that someone, some-

day might walk through it” even as it devises a rule that

ensures “no one . . . ever will.” Edwards v. Vannoy, 593

U. S. ___, ___ (2021) (GORSUCH, J., concurring) (slip op.,

at 1). In fairness to future litigants and our lower court col-

leagues, we should not hold out that kind of false hope, and

in the process invite still more “protracted litigation des-

tined to yield nothing.” Nestlé, 593 U. S., at ___ (GORSUCH,

J., concurring) (slip op., at 7). Instead, we should exercise

“the truer modesty of ceding an ill-gotten gain,” ibid., and

forthrightly return the power to create new causes of action

to the people’s representatives in Congress.

Cite as: 596 U. S. ____ (2022) 1

S

Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 21–147

_________________

ERIK EGBERT, PETITIONER v. ROBERT BOULE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 8, 2022]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and

JUSTICE KAGAN join, concurring in the judgment in part

and dissenting in part.

Respondent Robert Boule alleges that petitioner Erik Eg-

bert, 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 neverthe-

less contravenes precedent and will strip many more indi-

viduals who suffer injuries at the hands of other federal of-

ficers, 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

2 EGBERT v. BOULE

S

Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

may not proceed under Bivens, but for reasons grounded in

precedent rather than this Court’s newly announced test.

I

This case comes to the Court following the District

Court’s grant of summary judgment to Agent Egbert. The

Court is therefore bound to draw all reasonable factual in-

ferences in favor of Boule. See Tolan v. Cotton, 572 U. S.

650, 656–657 (2014) (per curiam). Because the Court fails

to do so, the factual record is described below in some detail,

in the light our precedent requires.

A

Boule is a U. S. citizen who owns, operates, and lives in a

small bed-and-breakfast called the Smuggler’s Inn in

Blaine, Washington. The property line of the land on which

the inn is located touches the U. S.-Canada border. Shortly

after purchasing the property in 2000, Boule became aware

that people used his property to cross the border illegally in

both directions. Boule began serving as a paid, confidential

informant for Customs and Border Protection (CBP) in

2003 and for Immigration and Customs Enforcement (ICE)

in 2008. At the time of the events at issue in this case,

Boule was still serving as an informant for ICE. ICE would

coordinate with CBP and other agencies based on the infor-

mation Boule provided. Over the years, Boule provided in-

formation leading to numerous arrests.

On the morning of March 20, 2014, petitioner Erik Eg-

bert, 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 previ-

ously 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

Cite as: 596 U. S. ____ (2022) 3

S

Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

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 fol-

lowed 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 re-

mained 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 Eg-

bert 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 Asses-

sor’s Office, asking them to investigate Boule’s business.

These agencies did so, but none found that Boule had done

4 EGBERT v. BOULE

S

Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

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 in-

vestigators and “demonstrated lack of integrity,” serious of-

fenses that warranted his removal. Rev. Redacted App.

184.

B

Boule sued Agent Egbert in Federal District Court, seek-

ing 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 mod-

est 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 per-

missible area for Bivens claims.” 998 F. 3d 370, 389 (CA9

2021) (quoting Ziglar, 582 U. S., at ___ (slip op., at 11)). The

court separately held that Boule’s First Amendment claim

could proceed under Bivens.

This Court granted certiorari. 595 U. S. ___ (2021).

II

A

In Bivens, the plaintiff alleged that Federal Bureau of

Narcotics agents unlawfully entered his apartment in New

York City and used constitutionally unreasonable force to

arrest him. 403 U. S., at 389. This Court observed that an

“agent acting—albeit unconstitutionally—in the name of

Cite as: 596 U. S. ____ (2022) 5

S

Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

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 au-

thority.” 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 hesita-

tion,” 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 pro-

cess claim for sex discrimination, see Davis v. Passman, 442

U. S. 228 (1979), and then to an Eighth Amendment delib-

erate indifference claim for failure to provide proper medi-

cal attention, see Carlson v. Green, 446 U. S. 14 (1980). In

Davis, Carlson, and subsequent cases, the Court built on

——————

1 For example, an individual “may bar the door against an unwelcome

private intruder, or call the police if he persists in seeking entrance” and

may seek damages under state law “for any consequent trespass.”

Bivens, 403 U. S., at 394. By contrast, “[t]he mere invocation of federal

power by a federal law enforcement official will normally render futile

any attempt to resist an unlawful entry or arrest by resort to the local

police; and a claim of authority to enter is likely to unlock the door as

well.” Ibid.

6 EGBERT v. BOULE

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, J.

Bivens’ inquiry to develop a two-step test for determining

whether a Bivens cause of action may be “defeated.” Carl-

son, 446 U. S., at 18. First, the Court considered whether,

under the circumstances of a particular case, special factors

counseled hesitation in allowing a private right of action to

proceed. See, e.g., Bivens, 403 U. S., at 396; Davis, 442

U. S., at 246; Carlson, 446 U. S., at 18; Bush v. Lucas, 462

U. S. 367, 377–380 (1983). Second, the Court considered

whether “Congress has provided an alternative remedy

which it explicitly declared to be a substitute for recovery

directly under the Constitution and viewed as equally effec-

tive.” Carlson, 446 U. S., at 18–19; see also, e.g., Davis, 442

U. S., at 246–247; Bush, 462 U. S., at 377–378; Wilkie v.

Robbins, 551 U. S. 537, 550 (2007) (describing this two-step

test). Where, for example, Congress crafted an “elaborate

remedial system that has been constructed step by step,

with careful attention to conflicting policy considerations,”

Bush, 462 U. S., at 388, this Court concluded that “it would

be inappropriate . . . to supplement that regulatory scheme

with a new judicial remedy,” id., at 368; accord, Schweiker

v. Chilicky, 487 U. S. 412, 414 (1988). Applying this two-

step test, the Court has declined to extend Bivens beyond

situations like those addressed in Davis, Carlson, and

Bivens itself. See ante, at 1.

In Ziglar v. Abbasi, 582 U. S. 120, the Court not only de-

clined to extend Bivens but also revised and narrowed its

two-step analytic framework. The Ziglar Court set forth a

new inquiry requiring courts considering a Bivens claim

first to ask whether a case “is different in a meaningful way

from previous Bivens cases decided by this Court” and

therefore arises in a “new . . . context.” 582 U. S., at ___

(slip op., at 16); see also Hernández v. Mesa, 589 U. S. ___,

___ (2020) (slip op., at 7). The Ziglar Court offered a laun-

dry 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

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, J.

extent of judicial guidance as to how an officer should re-

spond 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 Judi-

ciary 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 triv-

ial that they will not suffice to create a new Bivens context.”

Id., at ___ (slip op., at 26).

If the differences are in fact “meaningful ones,” ibid.,

“then the context is new,” id., at ___ (slip op., at 16), and a

court “proceed[s] to the second step” of the analysis, Her-

nández, 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 de-

manding 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 enforce-

ment 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 recog-

nized that “individual instances of discrimination or law en-

forcement overreach” are, by their nature, “difficult to ad-

dress except by way of damages actions after the fact.” Id.,

at ___ (slip op., at 21).

8 EGBERT v. BOULE

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, J.

B

Ziglar and Hernández control here. Applying the two-

step framework set forth in those cases, the Court of Ap-

peals’ determination that Boule’s Fourth Amendment claim

is cognizable under Bivens should be affirmed for two inde-

pendent reasons. First, Boule’s claim does not present a

new context. Second, even if it did, no special factors would

counsel hesitation.

1

Boule’s Fourth Amendment claim does not arise in a new

context. Bivens itself involved a U. S. citizen bringing a

Fourth Amendment claim against individual, rank-and-file

federal law enforcement officers who allegedly violated his

constitutional rights within the United States by entering

his property without a warrant and using excessive force.

Those are precisely the facts of Boule’s complaint.

The only arguably salient difference in “context” between

this case and Bivens is that the defendants in Bivens were

employed at the time by the (now-defunct) Federal Bureau

of Narcotics, while Agent Egbert was employed by CBP. As

discussed, however, this Court’s precedent instructs that

some differences are too “trivial . . . to create a new Bivens

context.” Ziglar, 582 U. S., at ___ (slip op., at 26).2 That it

was a CBP agent rather than a Federal Bureau of Narcotics

agent who unlawfully entered Boule’s property and used

constitutionally excessive force against him plainly is not

the sort of “meaningful” distinction that our new-context in-

quiry is designed to weed out. Ibid.

——————

2 Egbert argues in passing that the fact that he was operating under a

“ ‘statutory . . . mandate’ not invoked in prior cases,” standing alone,

“dooms [Boule’s] no-new-context argument.” Reply Brief 19 (quoting

Ziglar, 582 U. S., at ___ (slip op., at 16)). Not so. Egbert fails to show

that any difference in statutory mandates as between CBP agents and

other law enforcement officers is “meaningful,” which our precedents re-

quire him to do. Id., at ___ (slip op., at 16).

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, J.

It is of course well established that a Bivens suit involv-

ing 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, be-

cause the Federal Bureau of Narcotics no longer exists. See

National Archives, Records of the Drug Enforcement Admin-

istration [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 de-

cision in Correctional Services Corp. v. Malesko, 534 U. S.

61, 68 (2001). That case involved an Eighth Amendment

claim brought by a federal prisoner against a private corpo-

ration under contract with the federal Bureau of Prisons.

The Court observed that “the threat of suit against an indi-

vidual’s employer,” rather than “the individual directly re-

sponsible for the alleged injury,” “was not the kind of deter-

rence contemplated by Bivens.” Id., at 70–71. Applying

Bivens to a corporate defendant would amount to a “marked

extension of Bivens . . . to contexts that would not advance

Bivens’ core purpose of deterring individual officers from

engaging in unconstitutional wrongdoing.” Malesko, 534

U. S., at 74; see also FDIC v. Meyer, 510 U. S. 471, 485

(1994) (declining to allow a Bivens claim to proceed against

a federal agency for similar reasons). Here, by contrast,

Boule’s suit against Agent Egbert directly advances that

core purpose.

10 EGBERT v. BOULE

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, J.

At bottom, Boule’s claim is materially indistinguishable

from the claim brought in Bivens. His case therefore does

not present a new context for the purposes of assessing

whether a Bivens remedy is available.

2

Even assuming that this case presents a new context, no

special factors warrant foreclosing a Bivens action.

The Court “has not defined the phrase ‘special factors

counselling hesitation,’ ” but it has recognized that the “in-

quiry must concentrate on whether the Judiciary is well

suited, absent congressional action or instruction, to con-

sider and weigh the costs and benefits of allowing a dam-

ages 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 sensi-

tive functions of the Executive Branch,” recognizing a

Bivens action may be inappropriate. Ziglar, 582 U. S., at

___–___ (slip op., at 17–18); see also, e.g., Chappell v. Wal-

lace, 462 U. S. 296, 300 (1983) (declining to extend Bivens

where military personnel sought damages from superior of-

ficers, citing concerns about “tamper[ing] with the estab-

lished relationship between enlisted military personnel and

their superior officers,” which lies “at the heart of the nec-

essarily unique structure of the Military Establishment”).

Precedent thus establishes that “separation-of-powers prin-

ciples . . . 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 prop-

erty abuts an international border. Boule’s case, however,

is a far cry from others in which the Court declined to ex-

tend Bivens for reasons of national security or foreign rela-

tions. In Hernández, for example, a CBP agent shot and

killed a Mexican child across the U. S.-Mexico border. 589

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, J.

U. S., at ___ (slip op., at 2). The Mexican Government un-

successfully sought extradition of the agent to Mexico, and

after an investigation, the U. S. Department of Justice de-

clined to bring charges against the agent. Ibid. The par-

ents of the deceased child attempted to bring a Bivens ac-

tion against the CBP agent, but this Court held that several

“warning flags” counseled caution, including a “potential ef-

fect on foreign relations.” Hernández, 589 U. S., at ___ (slip

op., at 9). The Court observed that “[a] cross-border shoot-

ing is by definition an international incident,” and that both

the United States and Mexico had “legitimate and im-

portant 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 secu-

rity 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 “in-

ternational 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 pre-

vent illegal entry”; it was “[f]or th[i]s reaso[n],” among oth-

ers, 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 ille-

gal 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

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, J.

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 unlaw-

fully 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 pro-

ceed 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 ex-

plained, “high officers who face personal liability for dam-

ages might refrain from taking urgent and lawful action in

a time of crisis,” and “the costs and difficulties of later liti-

gation might intrude upon and interfere with the proper ex-

ercise 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). Al-

lowing his claim to proceed would not require courts to in-

trude into “the discussion and deliberations that led to the

formation” of any policy or national-security decision or in-

terest. Id., at ___ (slip op., at 18). Agent Egbert, a line of-

ficer, was engaged in a run-of-the-mill inquiry into the sta-

tus 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

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, J.

discrimination or law enforcement overreach,” which lends

itself to a Bivens action, from a challenge to “large-scale pol-

icy decisions,” which does not). No special factors counsel

against allowing Boule’s Bivens action to proceed.

C

Boule also argues that his First Amendment retaliatory-

investigation claim is cognizable under Bivens. I concur in

the Court’s judgment that it is not, but I arrive at that con-

clusion by following precedent rather than by applying the

Court’s new, single-step inquiry. Ante, at 7; see infra, at

15–17.

This Court has repeatedly assumed without deciding that

Bivens extends to First Amendment claims, see Wood v.

Moss, 572 U. S. 744, 757 (2014), but has never squarely held

as much, see Reichle v. Howards, 566 U. S. 658, 663, n. 4

(2012). Accordingly, Boule’s First Amendment retaliation

presents a new context for the purpose of the Bivens analy-

sis. 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 cog-

nizable under Bivens).

Moving to the second step of the Bivens inquiry, unlike

Boule’s Fourth Amendment claim, there is “reason to

pause” before extending Bivens to Boule’s First Amendment

claim. Hernández, 589 U. S., at ___ (slip op., at 7). In par-

ticular, his First Amendment claim raises line-drawing con-

cerns 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 ac-

cused 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

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, J.

claims in every sphere of legitimate governmental action af-

fecting 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. Be-

cause 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 rem-

edy, id., at 562.

Boule’s First Amendment retaliation claim raises similar

concerns. Unlike the constitutional rights this Court has

recognized as cognizable under Bivens, First Amendment

retaliation claims could potentially be brought against

many different federal officers, stretching substantially be-

yond the “common and recurrent sphere of law enforce-

ment” 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 ser-

vice is a task for Congress, not the courts. Wilkie, 551 U. S.,

at 562; see also Ziglar, 582 U. S., at ___ (slip op., at 13). I

therefore concur in the judgment as to the Court’s reversal

of the Court of Appeals’ conclusion that Boule’s First

Amendment Bivens action may proceed, not for the reasons

the Court identifies, ante, at 13–16, but because precedent

requires it.

III

If the legal standard the Court articulates to reject

Boule’s Fourth Amendment claim sounds unfamiliar, that

is because it is. Just five years after circumscribing the

standard for allowing Bivens claims to proceed, a restless

and newly constituted Court sees fit to refashion the stand-

ard anew to foreclose remedies in yet more cases. The

measures the Court takes to ensure Boule’s claim is dis-

missed are inconsistent with governing precedent.

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, J.

A

Two Terms ago, this Court reiterated and reaffirmed

Ziglar’s two-step test for assessing whether a claim may be

brought as a Bivens action. See Hernández, 589 U. S., at

___ (slip op., at 7) (“When asked to extend Bivens, we en-

gage 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 de-

signed to constrict Bivens. Ante, at 7 (acknowledging this

Court’s previous “two ste[p]” standard but insisting that

“those steps often resolve to a single question: whether

there is any reason to think that Congress might be better

equipped to create a damages remedy”); ante, at 8 (positing

that “[t]he newness of [some] ‘new context[s]’ should alone

require dismissal” (some internal quotation marks omit-

ted)). The Court goes so far as to announce that “[t]he

Bivens inquiry does not invite federal courts to inde-

pendently 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 bene-

fits of allowing a damages action to proceed,’ ” ibid. (quoting

Ziglar, 582 U. S., at ___ (slip op., at 12)).

That approach contrasts starkly with the standard the

Court announced in Ziglar and applied in Hernández. This

Court regularly has considered whether courts are “well

suited . . . to consider and weigh the costs and benefits of

allowing a damages action to proceed,” Ziglar, 582 U. S., at

___ (slip op., at 12), and have never held that such weighing

is categorically impermissible, contrary to the Court’s anal-

ysis 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-

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, J.

ard as if it were always the rule. The Court’s repeated cita-

tion to United States v. Stanley, 483 U. S. 669 (1987), is just

one example. The Court cites Stanley for, among other

things, the proposition that the special-factors analysis

must be conducted at a very broad level of generality. Ante,

at 11. Stanley, however, cautioned against a case-specific

special-factors analysis in the narrow context of “judicial in-

trusion 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 de-

cisionmaking,” id., at 682. The Court therefore determined

that in the military sphere, the special-factors analysis

should be applied somewhat more broadly than the re-

spondent urged. Id., at 681. Stanley, in other words, re-

flected 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 go-

ing forward.

The Court further declares that “a plaintiff cannot justify

a Bivens extension based on ‘parallel circumstances’ ” with

previous cases that have recognized a Bivens remedy. Ante,

at 17. To the extent these statements suggest an exacting

new-context inquiry, they are in serious tension with the

Court’s longstanding rule that trivial differences alone do

not create a new Bivens context. See Ziglar, 582 U. S., at

___ (slip op., at 26); see also ante, at 2 (GORSUCH, J., concur-

ring 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

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, J.

involving facts substantially identical to those in Bivens it-

self. Supra, at 8–9.3

B

The Court’s application of its new standard to Boule’s

Fourth Amendment claim underscores just how novel that

standard is. Even assuming the claim presents a new con-

text, the Court’s insistence that national-security concerns

bar the claim directly contravenes Ziglar. Moreover, the

Court’s holding that a nonbinding administrative investi-

gation process, internal to the agency and offering no mean-

ingful protection of the constitutional interests at stake,

constitutes an alternative remedy that forecloses Bivens re-

lief blinks reality.

1

The Court acknowledges the force of the Court of Appeals’

conclusion that Bivens and this case present “ ‘almost par-

allel circumstances,’ ” but it nonetheless concludes that a

most unlikely special factor counsels hesitation: the

“national-security context.” Ante, at 10. By the Court’s tell-

ing, Hernández declined to recognize a Bivens action “be-

cause ‘regulating the conduct of agents at the border un-

questionably has national security implications,’ and the

‘risk of undermining border security provides reason to hes-

itate before extending Bivens into this field.’ ” Ante, at 9

——————

3 The Court supports its decision not to recognize an action under

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), by

observing that we have declined to recognize a Bivens-style cause of ac-

tion for other constitutional violations. Ante, at 1. What the Court fails

to acknowledge, however, is that each of those cases presented a mean-

ingfully new context and/or raised special factors counseling hesitation

that are not present in this case. See supra, at 6, 9–10, 13–14, 15–16;

infra, at 21–22. The one exception is Hui v. Castaneda, 559 U. S. 799,

808 (2010), in which the Court did not have to conduct this analysis be-

cause it held the FTCA’s comprehensive remedial scheme, which pro-

vided both a cause of action and an exclusive damages remedy for the

claim at issue, clearly precluded a Bivens claim.

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, J.

(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 con-

clusion that this case, which involves a physical assault by

a federal officer against a U. S. citizen on U. S. soil, raises

“national security” concerns does exactly what this Court

counseled against just four years ago. Back then, the Court

advised that “national-security concerns must not become a

talisman to use to ward off inconvenient claims—a ‘label’

used to ‘cover a multitude of sins.’ ” Ziglar, 582 U. S., at ___

(slip op., at 20) (quoting Mitchell v. Forsyth, 472 U. S. 511,

523 (1985)). It explained that this “danger of abuse is even

more heightened given the difficulty of defining the security

interest in domestic cases.” Ziglar, 582 U. S., at ___ (slip

op., at 20) (internal quotation marks omitted). This case

does not remotely implicate national security. The Court

may wish it were otherwise, but on the facts of this case, its

effort to raise the specter of national security is mere sleight

of hand.

Nor is there any indication that Congress acted to deny a

Bivens remedy for a case like this, which otherwise might

counsel hesitation. See Bush, 462 U. S., at 368 (declining

to “supplement” Congress’ existing scheme “with a new ju-

dicial remedy”). Congress has not provided that federal law

enforcement officers may enter private property near a bor-

der at any time or for any purpose. Quite the contrary: Con-

gress 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.” 66 Stat. 233, 8 U. S. C. §1357(a)(3). This allowance

is itself subject to exceptions: Officers cannot enter a

“dwellin[g]” for immigration enforcement purposes without

a warrant. Ibid. Mere proximity to a border, in other

words, did not give Agent Egbert greater license to enter

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, J.

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 unques-

tionably 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 extraor-

dinary and gratuitous conclusion contradicts decades of

precedent requiring a context-specific determination of

whether a particular claim presents special factors counsel-

ing hesitation. See supra, at 6–8.4

The consequences of the Court’s drive-by, categorical as-

sertion 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 vio-

lations by CBP’s nearly 20,000 Border Patrol agents, in-

cluding those engaged in ordinary law enforcement activi-

ties, 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 hypothet-

ical: 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

——————

4 Any concerns that a case-specific Bivens inquiry in cases involving

CBP or ICE agents would pose administrability problems is misplaced.

See Brief for American Civil Liberties Union et al. as Amici Curiae 14–

18 (citing lower court cases that have applied this approach to suits

against CBP and ICE agents).

20 EGBERT v. BOULE

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Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

§287.1(a)(2) (2021). The Court’s choice to foreclose liability

for constitutional violations that occur in the course of such

activities, based on even the most tenuous and hypothetical

connection to the border (and thereby, to the “national-

security context”), betrays the context-specific nature of

Bivens and shrinks Bivens in the core Fourth Amendment

law enforcement sphere where it is needed most. See

Ziglar, 582 U. S., at ___ (slip op., at 11).5

2

The Court further proclaims that Congress has provided

alternative remedies that “independently foreclose” a

Bivens action in this case. Ante, at 12. The administrative

remedy the Court perceives, however, is no remedy whatso-

ever.

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, di-

rection, 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 employ-

ees. See 8 CFR §§287.10(a)–(b).6 The Court sees fit to defer

——————

5 To the extent the Court’s decision may be motivated by fears that al-

lowing this Bivens action to proceed will open the floodgates to countless

claims in the future, cf. ante, at 15, that concern is overblown. The doc-

trine of qualified immunity will continue to protect government officials

from liability for damages unless a plaintiff “ ‘pleads facts showing (1)

that the official violated a statutory or constitutional right, and (2) that

the right was “clearly established” at the time of the challenged con-

duct.’ ” Wood v. Moss, 572 U. S. 744, 757 (2014) (quoting Ashcroft v. al-

Kidd, 563 U. S. 731, 735 (2011)).

6 The regulations require any investigative report regarding excessive

force to “be referred promptly for appropriate action in accordance with

the policies and procedures of the Department [of Homeland Security].”

8 CFR §287.10(c). Those policies and procedures, in turn, explicitly es-

tablish no “right or benefit, substantive or procedural, enforceable at law

Cite as: 596 U. S. ____ (2022) 21

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Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

to this procedure, even while acknowledging that complain-

ants 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 ade-

quate remedy by insisting that “we have never held that a

Bivens alternative must afford rights to participation or ap-

peal.” Ante, at 13. In the Court’s view, “[s]o long as Con-

gress 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 superim-

posing a Bivens remedy.” Ibid. (emphasis added).

This analysis drains the concept of “remedy” of all mean-

ing. To be sure, the Court has previously deemed Bivens

claims foreclosed by “substantive” remedies to claimants

that are in significant part administrative. Bush, 462 U. S.,

at 385; see also, e.g., Schweiker, 487 U. S., at 424–425. The

Court also has recognized that existing remedies need not

“provide complete relief for the plaintiff,” Bush, 462 U. S.,

at 388, including loss due to emotional distress or mental

anguish, or attorney’s fees, Schweiker, 487 U. S., at 424–

425. Until today, however, this Court has never held that

a threadbare disciplinary review process, expressly confer-

ring 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 individ-

ual whose constitutional rights have been violated are “ad-

equate” 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 oppor-

tunity for judicial review, and the potential to secure at

least some meaningful relief. See, e.g., Minneci v. Pollard,

565 U. S. 118, 127 (2012) (state tort law); Ziglar, 582 U. S.,

——————

or in equity.” Dept. of Homeland Security, Dept. Policy on the Use of

Force, §X, Policy Statement 044–05 (Sept. 7, 2018).

22 EGBERT v. BOULE

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Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

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 ac-

tion may be inappropriate where “Congress has provided an

alternative remedy which it explicitly declared to be a sub-

stitute 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 conjunc-

tion 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 So-

cial Security disability program “suggests that Congress

has provided what it considers adequate remedial mecha-

nisms 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

——————

7 Aside from CBP’s internal grievance procedure, Agent Egbert con-

tends that the FTCA offers an alternative remedy for claims like Boule’s.

This Court does not endorse this argument, and for good reason. This

Court repeatedly has observed that the FTCA does not cover claims

against Government employees for “violation[s] of the Constitution of the

United States.” 28 U. S. C. §2679(b)(2)(A); see Wilkie v. Robbins, 551

U. S. 537, 553 (2007); Carlson v. Green, 446 U. S. 14, 20 (1980) (“Con-

gress views FTCA and Bivens as parallel, complementary causes of ac-

tion”); Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001)

(noting that it was “crystal clear” that “Congress intended the FTCA and

Bivens to serve as parallel and complementary sources of liability” (in-

ternal quotation marks omitted)). Just two Terms ago, the Court reaf-

firmed that by carving out claims “ ‘brought for . . . violation[s] of the

Constitution’ ” from the FTCA’s “ ‘exclusive remedy for most claims

against Government employees arising out of their official conduct,’ ”

“Congress made clear that it was not attempting to abrogate Bivens” and

instead “simply left Bivens where it found it,” Hernández v. Mesa, 589

U. S. ___, ___–___,

֪ and n. 9 (2020) (slip op., at 16–17, and n. 9) (quoting

Hui, 559 U. S., at 806; §2679(b)(2)(A)).

Cite as: 596 U. S. ____ (2022) 23

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Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

that could be had under Bivens”); Minneci, 565 U. S., at 120

(rejecting Bivens action for Eighth Amendment violations

against employees of a privately operated federal prison be-

cause “state tort law authorizes adequate alternative dam-

ages actions—actions that provide both significant deter-

rence 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 an-

other erosion of Bivens’ deterrent function in the law en-

forcement sphere.8

C

The Court thinly veils its disapproval of Bivens, ending

its opinion by citing a string of dissenting opinions and

single-Member concurrences by various Members of this

Court expressing criticisms of Bivens. Ante, at 16–17. But

the Court unmistakably stops short of overruling Bivens

and its progeny, and appropriately so. Even while declining

to extend Bivens to new contexts, this Court has reaffirmed

that it did “not inten[d] to cast doubt on the continued force,

or even the necessity, of Bivens in the search-and-seizure

context in which it arose.” Ziglar, 582 U. S., at ___ (slip op.,

at 11). Although today’s opinion will make it harder for

plaintiffs to bring a successful Bivens claim, even in the

Fourth Amendment context, the lower courts should not

read it to render Bivens a dead letter.

That said, the Court plainly modifies the Bivens standard

in a manner that forecloses Boule’s claims and others like

them that should be permitted under this Court’s Bivens

——————

8 Even beyond its doctrinal innovations on the merits, the Court also

fashions a brand new, Bivens-specific procedural rule under which it ex-

cuses Egbert’s forfeiture of his argument that CBP’s administrative pro-

cess suffices as an alternative remedy. Ante, at 12, n. 3.

24 EGBERT v. BOULE

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Opinion of S, OTOMAYOR

OTOMAYOR J., dissenting

, J.

precedents. That choice is in tension with the Court’s in-

sistence that “prescribing a cause of action is a job for Con-

gress, 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 whit-

tling down the number of claims that remain viable, the

Court itself is making a policy choice for Congress. What-

ever 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 treat-

ment of Boule’s Fourth Amendment claim.