Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule
Supreme Court briefDec 23, 2021
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No. 21-147
In the Supreme Court of the United States
ERIK EGBERT, PETITIONER
v.
ROBERT BOULE
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Acting Assistant Attorney
General
CURTIS E. GANNON
Deputy Solicitor General
MICHAEL R. HUSTON
Assistant to the Solicitor
General
BARBARA L. HERWIG
JAYNIE LILLEY
MARY HAMPTON MASON
PAUL E. WERNER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the cause of action for damages for violations of the Constitution that was recognized in
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), should be
extended to a claim alleging that a law-enforcement
officer retaliated against a citizen’s speech, in violation
of the First Amendment, by reporting the citizen to
other state and federal agencies.
2. Whether Bivens should be extended to a claim
against an agent of U.S. Customs and Border Protection for allegedly using excessive force, in violation of
the Fourth Amendment, during the agent’s investigation of a foreign national at a property known for smuggling activity near the international border.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument:
The Bivens remedy should not be extended to these
novel contexts ....................................................................... 11
A. For 40 years, this Court has consistently
declined to extend Bivens to new contexts
where Congress is the more appropriate
body to craft any damages remedy ....................... 11
B. Respondent seeks to extend the Bivens
remedy to two new contexts ................................... 15
1. Respondent’s First Amendment
retaliation claim would extend Bivens
to a new context ................................................ 15
2. Respondent’s Fourth Amendment claim
challenging actions during a Border
Patrol agent’s investigation near the
border presents a new context ........................ 17
C. Congress is the appropriate body to decide
whether to provide a damages remedy in the
new contexts at issue here...................................... 19
1. Multiple special factors counsel against
extending the Bivens remedy to First
Amendment retaliation claims ........................ 19
2. Multiple special factors counsel against
extending Bivens to investigating
immigration violations and smuggling
at the border...................................................... 27
Conclusion ................................................................................... 34
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................... 16, 19, 20
Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018)........................ 21
Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics,
403 U.S. 388 (1971).......................................1, 2, 8, 11, 12, 13
Buenrostro v. Fajardo,
770 Fed. Appx. 807 (9th Cir. 2019) .................................... 21
Bush v. Lucas, 462 U.S. 367 (1983) ........... 9, 13, 20, 23, 24, 25
Carlson v. Green, 446 U.S. 14 (1980) ............................. 12, 33
Chappell v. Wallace, 462 U.S. 296 (1983) ...................... 13, 29
Correctional Servs. Corp. v. Malesko,
534 U.S. 61 (2001) ......................................................... 13, 14
Crawford-El v. Britton, 523 U.S. 574 (1998) ................... 9, 22
Davis v. Passman, 442 U.S. 228 (1979) ............................... 12
Doe v. Chao, 540 U.S. 614 (2004) .......................................... 25
Elhady v. Unidentified CBP Agents,
No. 20-1339, 2021 WL 5410758
(6th Cir. Nov. 19, 2021)....................................................... 30
FDIC v. Meyer, 510 U.S. 471 (1994) .................................... 13
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............... 18
Hartman v. Moore, 547 U.S. 250 (2006) ...........6, 8, 16, 22, 25
Hernández v. Mesa, 140 S. Ct. 735 (2020) ................. passim
Hudson Valley Black Press v. IRS,
409 F.3d 106 (2d Cir. 2005) ................................................ 25
J.I. Case Co. v. Borak, 377 U.S. 426 (1964) ......................... 13
Loumiet v. United States, 948 F.3d 376 (D.C. Cir.),
cert. denied, 141 S. Ct. 180 (2020) ..................................... 21
Mack v. Yost, 968 F.3d 311 (3d Cir. 2020) ........................... 21
V
Cases—Continued:
Page
Maria S. v. Garza, 912 F.3d 778 (5th Cir.),
cert. denied, 140 S. Ct. 81 (2019) ....................................... 30
Minneci v. Pollard, 565 U.S. 118 (2012) ....................... 13, 26
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021) ................. 15
Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............................ 22
Petzold v. Rostollan, 946 F.3d 242 (5th Cir. 2019) ............. 21
Reichle v. Howards, 566 U.S. 658 (2012)................. 17, 20, 23
Schweiker v. Chilicky, 487 U.S. 412 (1988) ....... 13, 24, 26, 27
Tanzin v. Tanvir, 141 S. Ct. 486 (2020) .............................. 23
Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019),
cert. denied, 140 S. Ct. 2565 (2020) ................................... 30
United States v. Delgado-Garcia,
374 F.3d 1337 (D.C. Cir. 2004),
cert. denied, 544 U.S. 950 (2005) ....................................... 28
United States v. Montoya de Hernandez,
473 U.S. 531 (1985).............................................................. 29
United States v. Stanley, 483 U.S. 669 (1987) .................... 13
Vanderklok v. United States,
868 F.3d 189 (3d Cir. 2017) .......................................... 21, 26
Wilkie v. Robbins, 551 U.S. 537 (2007) .............. 13, 21, 26, 27
Wood v. Moss, 572 U.S. 744 (2014) ................................ 20, 23
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ..................... passim
Constitution, statutes, and regulations:
U.S. Const.:
Amend. I .................................................................. passim
Amend. IV ............................................................... passim
Amend. V .......................................................................... 12
Amend. VIII..................................................................... 12
Federal Employees Liability Reform and Tort
Compensation Act of 1988 (Westfall Act),
Pub. L. No. 100-694, 102 Stat. 4563 .................................. 26
VI
Statutes and regulations—Continued:
Page
Federal Tort Claims Act:
28 U.S.C. 1346(b)(1) ....................................................... 33
28 U.S.C. 2675(a) ............................................................... 4
28 U.S.C. 2679(b)(1) ........................................................ 26
28 U.S.C. 2680(h) ............................................................. 33
Privacy Act of 1974,
Pub. L. No. 93-579, 88 Stat. 1896 (5 U.S.C. 552a)............ 25
§ 2(a)(5), 88 Stat. 1896 ..................................................... 25
5 U.S.C. 552a(a)(4)........................................................... 25
5 U.S.C. 552a(i)(1) ........................................................... 25
Religious Freedom Restoration Act of 1993,
42 U.S.C. 2000bb-2(1) ......................................................... 23
5 U.S.C. 7503 .......................................................................... 27
5 U.S.C. 7513 .......................................................................... 27
6 U.S.C. 111(b)(1)(A) ............................................................. 28
6 U.S.C. 111(b)(1)(E) ............................................................. 28
6 U.S.C. 211(c)(5) ................................................................... 28
6 U.S.C. 211(c)(8)(B).............................................................. 28
6 U.S.C. 211(e)(1) ................................................................... 29
6 U.S.C. 211(e)(3)(A) ............................................................. 29
6 U.S.C. 211(e)(3)(B) ............................................................. 29
8 U.S.C. 1357(a)(1)-(5) ........................................................... 29
18 U.S.C. 242 .......................................................................... 32
18 U.S.C. 3663(a)(1)(A) ......................................................... 32
42 U.S.C. 1983 ............................................................ 12, 16, 24
5 C.F.R.:
Section 2635.101(b)(1) ..................................................... 27
Section 2635.101(b)(5) ..................................................... 27
Section 2635.101(b)(8) ..................................................... 27
VII
Regulations—Continued:
Page
8 C.F.R.:
Section 287.5(a)-(d) ......................................................... 29
Section 287.8(a)(1)(ii) ...................................................... 32
Section 287.8(a)(1)(iii) ..................................................... 32
Section 287.10(a) .............................................................. 32
Miscellaneous:
U.S. Customs and Border Protection, Dep’t of
Homeland Security:
Blaine Sector Washington (Aug. 19, 2021),
https://go.usa.gov/xeMX2 ........................................... 2
CBP Use of Force - Administrative Guidelines
and Procedures Handbook (Jan. 2021),
https://go.usa.gov/xeM2H ......................................... 32
In the 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
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case concerns claims for damages under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against an agent of the
U.S. Border Patrol, a component of U.S. Customs and
Border Protection (CBP), arising from the agent’s allegedly unconstitutional search and seizure during an
investigation of a foreign national near the international
border, and from the agent’s subsequent alleged retaliation in response to a complaint to his supervisors. The
United States has a substantial interest in this matter.
Bivens suits are brought against federal officials and
have the potential to affect how they perform their
duties, including those involving national security and
immigration. And defendants in Bivens cases are often
represented by the Department of Justice. The federal
(1)
2
government has participated in many of this Court’s
Bivens cases as an amicus curiae or as counsel to a party,
including Hernández v. Mesa, 140 S. Ct. 735, 743 (2020),
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), and Bivens
itself.
STATEMENT
In Bivens, supra, this Court recognized a cause of
action for damages against federal drug-enforcement
officers who allegedly violated the Fourth Amendment
by conducting a warrantless search and arrest of a U.S.
citizen at his home in New York City. In this case, respondent seeks to invoke Bivens to recover damages
from petitioner, a Border Patrol agent, for injuries
allegedly arising from petitioner’s investigation near
the U.S.–Canada border of a foreign national who might
have been there to engage in illegal cross-border activities. Respondent also seeks damages for petitioner’s
act of reporting him to certain federal and state authorities, which respondent alleges was retaliation for respondent’s complaints about petitioner to Border Patrol
superiors. Respondent contends that the judicially created Bivens remedy should be extended to those alleged
violations of the First and Fourth Amendments.
1. Respondent owns, operates, and lives in a small
hotel called Smuggler’s Inn in Blaine, Washington. Pet.
App. 32a, 49a. Blaine is a small town on the Nation’s
northern border where cross-border smuggling activity
is common. See, e.g., CBP, Blaine Sector Washington
(Aug. 19, 2021), https://go.usa.gov/xeMX2. Smuggler’s
Inn itself is located right at the border: It abuts 0
Avenue—a two-lane road in Canada that marks the
international boundary. See J.A. 100-101, 112 (photos).
It is unlawful to cross the border at respondent’s property, but the area is nevertheless “known for cross-
3
border smuggling of people, drugs, illicit money[,] and
items of significance to criminal organizations.” Pet.
App. 49a; see Br. in Opp. 3. “Large shipments of cocaine,
methamphetamine, ecstasy, and opiates have previously
been intercepted” there. Pet. App. 9a (Bumatay, J., dissenting).
Owing to the prevalence of illegal activity at his property, respondent has had various interactions with law
enforcement. At times he has been “a paid informant”
for U.S. law enforcement—including at the time of the
events in this case—and has provided information
“about guests at his inn” that “resulted in numerous arrests.” Pet. App. 32a-33a. But respondent himself has
also been arrested by Canadian authorities and pleaded
guilty to aiding persons in unlawfully crossing the border into Canada. See id. at 9a & n.3 (Bumatay, J., dissenting); see also Br. in Opp. 11 n.3.
Petitioner Erik Egbert is a U.S. Border Patrol agent
who has “been to Smuggler’s Inn many times” as part
of his job duties and has “apprehended persons who had
illegally crossed the border” there. Pet. App. 9a (Bumatay, J., dissenting). On March 20, 2014, respondent told
Agent Egbert that a guest would be arriving at Smuggler’s Inn who had flown into the United States from
Turkey the previous night. Id. at 33a. Respondent reported that the Turkish guest had arrived in New York,
had flown to Seattle, and was presently being driven another 125 miles to Smuggler’s Inn. Ibid. Agent Egbert
considered that activity suspicious: he could think of
“no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine,” and he thought the Turkish guest might
attempt to cross illegally into Canada or else meet persons coming from Canada for illegal purposes. J.A. 104;
4
see Pet. App. 27a (Bumatay, J, dissenting). To investigate further, Agent Egbert went to Smuggler’s Inn and
awaited the guest’s arrival. Id. at 10a.
When the vehicle carrying the Turkish guest arrived,
Agent Egbert followed it onto the property, intending
to check the guest’s immigration status. Pet. App. 50a51a. Respondent, however, attempted to prevent that
check by accusing Agent Egbert of trespassing, telling
him to leave, and “mov[ing] between” him and the car
with the guest. Ibid. Respondent alleges that Agent
Egbert then shoved him against the car, grabbed him,
and pushed him to the ground, causing injuries to his
back for which he later sought medical treatment. Id.
at 33a. Agent Egbert performed an immigration check,
determined that the Turkish guest was lawfully present
in the United States, and departed. Ibid.
Respondent complained about the incident to Agent
Egbert’s Border Patrol supervisors. Pet. App. 33a. Respondent alleges that Agent Egbert then retaliated
against him by, among other things, making reports
about him and his business to various state and federal
agencies, including the Internal Revenue Service (IRS),
which initiated an audit of his tax returns. Id. at 33a34a. Respondent alleges that he paid an accountant over
$5000 to respond to the audit. Id. at 34a.
2. CBP has informed this Office that, after the
March 2014 episode, respondent filed an administrative
claim with CBP for $7348 in damages—as required
before bringing suit under the Federal Tort Claims Act
(FTCA), see 28 U.S.C. 2675(a)—asserting that Agent
Egbert had caused his back injury. See Pet. App. 28a
(Bumatay, J., dissenting). The agency denied the claim
in September 2014 after an investigation, “finding insufficient evidence of any wrongful or negligent act.”
5
CBP informed respondent that he could file an FTCA
action within six months, but respondent did not do so.
Instead, he waited until 2016 and then filed another administrative claim, this one for $295,000, alleging excessive force as well as retaliation. CBP denied that claim
as an untimely request for reconsideration.
Separately, in response to respondent’s allegations of
Agent Egbert’s misconduct, CBP’s Office of Internal
Affairs conducted an investigation. See J.A. 166, 177178. CBP thereafter charged Egbert in an internal disciplinary process with making unauthorized disclosures
and a failure to be forthcoming with investigators. The
unauthorized-disclosure charge was not sustained in
the disciplinary process, but the failure-to-be-forthcoming charge was sustained, and Egbert was disciplined as a result. See J.A. 182-184.
3. Respondent then brought this suit seeking damages from Agent Egbert under Bivens. The operative
complaint claims that Egbert violated the Fourth Amendment by entering respondent’s property without
permission and using excessive force against him while
performing the immigration check at Smuggler’s Inn,
and that Egbert later violated the First Amendment by
retaliating against him. See J.A. 84-85.
The district court granted summary judgment to
Agent Egbert, Pet. App. 48a-70a, finding that respondent’s claims would each require “an unwarranted extension of Bivens” into a “new context” where “Congress
is in the best position to evaluate the costs and benefits
of a new legal remedy.” Id. at 53a, 69a. The court further found that special factors counseled hesitation
about extending Bivens to either claim. The Fourth
Amendment claim would “raise significant separationof-powers concerns by implicating the other branches’
6
national-security policies.” Id. at 68a. In particular,
“the risk of personal liability” could “cause Border Patrol agents to hesitate and second guess their daily
decisions about whether and how to investigate suspicious activities near the border.” Id. at 68a-69a. The
court additionally observed that this Court “has never
implied a Bivens action under any clause of the First
Amendment.” Id. at 55a.
4. The court of appeals reversed and remanded. Pet.
App. 31a-47a (amended opinion). The court acknowledged that respondent’s First and Fourth Amendment
claims would both require extending Bivens into new
contexts, but it concluded that no special factors counseled hesitation about those extensions. Id. at 36a, 42a.
In the court of appeals’ view, respondent’s Fourth
Amendment claim would require only a “modest extension” of Bivens, because it is “a conventional Fourth
Amendment excessive force claim arising out of actions
by a rank-and-file border patrol agent on [respondent’s]
own property in the United States.” Pet. App. 36a-38a.
The court also found that there is “no adequate alternative remedy that would preclude a Bivens claim.” Id. at
44a-46a.
On the First Amendment claim, the court of appeals
found “even less reason to hesitate” before extending
Bivens. Pet. App. 43a. While acknowledging that this
Court “has never actually held that a First Amendment
retaliation claim may be brought under Bivens,” the
court of appeals reasoned that this Court “explicitly
stated * * * that such a claim may be brought” in Hartman v. Moore, 547 U.S. 250, 256 (2006). Pet. App. 41a42a. The court of appeals further stated that “retaliation is a well-established First Amendment claim,” and
7
Agent Egbert was not performing “official duties” when
he allegedly retaliated against respondent. Id. at 43a.
5. The court of appeals denied a petition for rehearing en banc over the dissent of 12 judges. Pet. App. 7a.
Judge Bumatay’s dissent, Pet. App. 7a-29a, joined by
six other judges, stated that the panel “clearly erred in
extending Bivens to two new contexts.” Id. at 16a.
Judge Bumatay found multiple reasons to hesitate before recognizing respondent’s First Amendment retaliation claim, including Congress’s failure to create any
damages remedy for federal-officer retaliation and the
existence of various potential alternative remedies. See
id. at 17a-25a. On the Fourth Amendment claim, Judge
Bumatay stated that declining to extend Bivens “should
have been an easy call,” id. at 26a, because “the subject
of this litigation is a Border Patrol agent’s conduct during an on-duty investigation of a foreign national, at a
property known for smuggling activity, adjacent to an
international border,” id. at 27a. He observed that this
Court has “firmly concluded that judges should refrain
from extending Bivens when doing so would interfere
with border enforcement,” “which implicates an ‘element of national security.’ ” Id. at 26a (quoting Hernández, 140 S. Ct. at 746).
Judge Owens dissented on the ground that legislative remedies are superior to judicially created causes
of action as a means of enabling citizens to vindicate
their constitutional rights. Pet. App. 29a-30a.
Judge Bress also dissented, joined by three other
judges, finding it “self-evident that there are many reasons counseling hesitation” against respondent’s expansions of Bivens and stating that “the panel decision is
significantly out of step with modern Supreme Court
cases.” Pet. App. 30a-31a.
8
SUMMARY OF ARGUMENT
The judicially created damages remedy that was recognized in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), for
an unconstitutional search and seizure during a federal
narcotics investigation at a home, should not be extended to the markedly different claims in this case.
A. When a plaintiff asserts a Bivens claim, a court
must apply a two-step inquiry that asks whether the
claim arises in a new context and considers whether
special factors counsel hesitation about extending
Bivens to the claim. See Hernández v. Mesa, 140 S. Ct.
735, 743 (2020). In applying that standard, this “Court
has made clear that expanding the Bivens remedy is
now a ‘disfavored’ judicial activity” in light of “the notable change in the Court’s approach to recognizing implied causes of action.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017) (citation omitted). For more than 40
years, the Court has “consistently refused to extend
Bivens to any new context or new category of defendants.” Ibid. (citation omitted). And the Court has admonished that, if there are “any ‘special factors that
counsel hesitation’ about” extending Bivens to a new
context, then courts must refrain from doing so out of
respect for Congress’s role in creating federal causes of
action. Hernández, 140 S. Ct. at 743 (brackets and citation omitted); see Abbassi, 137 S. Ct. at 1858.
B. The court of appeals extended Bivens to two contexts that it acknowledged were novel. This Court’s
cases recognizing a Bivens remedy did not involve First
Amendment claims. Contrary to the court of appeals’
suggestion that this Court endorsed a retaliation claim
like respondent’s in Hartman v. Moore, 547 U.S. 250
(2006), the Court’s holding there “d[id] not go beyond”
9
defining an element of a retaliatory prosecution claim,
id. at 257 n.5. And respondent’s Fourth Amendment
claim is meaningfully different from the claim in Bivens.
The altercation at issue here occurred when respondent
deliberately interfered with a Border Patrol agent’s investigation of a foreign national who the officer had reason to suspect had traveled to the border to engage in
illegal cross-border activities. Moreover, that investigation was taking place just steps from the international border. This Court has recognized the direct connection between policing the border and national security, and Fourth Amendment claims arising from such
policing “implicate[ ] an element of national security”
that was not at issue in Bivens. Hernández, 140
S. Ct. at 746.
C. Several special factors counsel against extending
the Bivens remedy to the new contexts presented here.
1. This Court should not extend Bivens to First
Amendment claims for alleged retaliation by lawenforcement officers. As the Court has explained, retaliation claims might adversely affect federal personnel in
the performance of their duties, and “Congress is in a
far better position than a court” to evaluate the costs
and benefits. Bush v. Lucas, 462 U.S. 367, 389 (1983).
This Court has further observed that retaliation
claims, which depend on an officer’s motive for acting,
are “easy to allege and hard to disprove.” Crawford-El
v. Britton, 523 U.S. 574, 584-585 (1998) (citation omitted). The vast range of governmental actions that could
give rise to retaliation claims, and the difficulties the
Court has noted in calibrating such claims to avoid
disrupting law-enforcement functions in particular, indicate that “Congress might doubt the efficacy or necessity of a damages remedy” in this setting. Hernán-
10
dez, 140 S. Ct. at 743 (citation omitted). Congress’s creation of various alternative remedial mechanisms for
protecting against retaliatory conduct is another “convincing reason” why the Judiciary should not create its
own damages remedy to address that misconduct. Abbasi, 137 S. Ct. at 1858 (citation omitted).
2. Nor should this Court extend Bivens to a Fourth
Amendment claim arising from a Border Patrol agent’s
investigation near the border of a foreign national for
potential immigration violations or smuggling activity.
This Court explained in Hernández that “the conduct of
agents positioned at the border has a clear and strong
connection to national security,” and “the risk of undermining border security provides reason to hesitate before extending Bivens into this field.” 140 S. Ct. at 746747. Decisions about national security are “ ‘delicate,
complex, and involve large elements of prophecy’ for
which ‘the Judiciary has neither aptitude, facilities, nor
responsibility.’ ” Id. at 749 (brackets and citation omitted). The court of appeals erred in suggesting that respondent has a conventional Fourth Amendment claim
because he is a U.S. citizen and the incident occurred on
his property. At an appropriate level of generality, the
facts alleged in the complaint concerning a Border Patrol agent’s investigation at the border plainly implicate
border security.
The Executive Branch uses various means to help
ensure that Border Patrol agents fulfill their mission
without unwarranted force, including CBP’s detailed
use-of-force policy, disciplinary investigations, and other
administrative tools. Any further remedies that would
hold Border Patrol agents personally liable in damages
for malfeasances in performing their important work
must be crafted by Congress.
11
ARGUMENT
THE BIVENS REMEDY SHOULD NOT BE EXTENDED TO
THESE NOVEL CONTEXTS
The court of appeals erred in expanding the cause of
action from Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), to the
two new contexts presented by respondent’s claims. To
be clear, the United States does not condone the conduct that respondent alleges here: If the government
determined that Agent Egbert used excessive force or
retaliated against a citizen for protected speech, then he
could and should have been subject to discipline. But
the court of appeals’ extensions of Bivens to respondent’s claims would have a substantial and detrimental
impact on the government and its employees, including
increased risks to national security. The decision below
is inconsistent with this Court’s precedent, especially
Hernández v. Mesa, 140 S. Ct. 735 (2020), and Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017).
A. For 40 Years, This Court Has Consistently Declined To
Extend Bivens To New Contexts Where Congress Is The
More Appropriate Body To Craft Any Damages Remedy
1. As this Court has recently recounted, its 1971 decision in Bivens “broke new ground by holding that a
person claiming to be the victim of an unlawful arrest
and search” at his home “could bring a Fourth Amendment claim for damages against the responsible [federal] agents even though no federal statute authorized
such a claim.” Hernández, 140 S. Ct. at 741. “[I]n the
100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal
Government.” Abbasi, 137 S. Ct. at 1854. Congress in
12
1871 allowed injured persons to sue officials acting under color of state law for deprivations of rights under
the Constitution and federal law, see 42 U.S.C. 1983, but
“Congress did not create an analogous statute for federal officials.” Abbasi, 137 S. Ct. at 1854. Instead, “the
traditional way in which civil litigation addressed abusive conduct by federal officers was by subjecting them
to liability for common-law torts.” Hernández, 140 S. Ct.
at 748.
Bivens followed a different approach. The Court
reasoned that, although “the Fourth Amendment does
not in so many words provide for its enforcement by an
award of money damages for the consequences of its
violation,” federal courts could infer that “particular remedial mechanism,” as they had done for claims alleging violations of various federal statutes. Bivens, 403
U.S. at 396-397. In creating that cause of action, however, the Court emphasized that the case presented “no
special factors counselling hesitation in the absence of
affirmative action by Congress.” Id. at 396.
Since deciding Bivens in 1971, this Court has extended its holding only twice. See Hernández, 140 S. Ct.
at 741. In Davis v. Passman, 442 U.S. 228 (1979), the
Court allowed a congressional employee to sue for sex
discrimination in violation of the Fifth Amendment. Id.
at 248-249. And in Carlson v. Green, 446 U.S. 14 (1980),
the Court allowed a suit against federal prison officials
for Eighth Amendment violations arising from a failure
to provide medical treatment that led to an inmate’s
death. Id. at 16, 19-23 & n.1. In each case, the Court
reiterated that it found “no special factors counselling
hesitation.” Id. at 19; see Davis, 442 U.S. at 245.
“After those decisions, however, the Court changed
course.” Hernández, 140 S. Ct. at 741. In the more than
13
40 years since Carlson, this Court has “consistently refused to extend Bivens to any new context or new category of defendants.” Abbasi, 137 S. Ct. at 1857 (citation
omitted). Ten decisions of this Court have squarely rejected efforts to extend Bivens. See Hernández, supra;
Abbasi, supra; Minneci v. Pollard, 565 U.S. 118 (2012);
Wilkie v. Robbins, 551 U.S. 537 (2007); Correctional
Servs. Corp. v. Malesko, 534 U.S. 61 (2001); FDIC v.
Meyer, 510 U.S. 471 (1994); Schweiker v. Chilicky, 487
U.S. 412 (1988); United States v. Stanley, 483 U.S. 669
(1987); Bush v. Lucas, 462 U.S. 367 (1983); Chappell v.
Wallace, 462 U.S. 296 (1983).
This Court’s refusal to extend Bivens in those cases
reflects its changed understanding of the scope of judicial authority to create private rights of action. See
Hernández, 140 S. Ct. at 741; Abbasi, 137 S. Ct. at 18551856. The reasoning of Bivens “rel[ied] largely on earlier decisions implying private damages actions into federal statutes.” Malesko, 534 U.S. at 67; see Bivens, 403
U.S. at 397 (citing J.I. Case Co. v. Borak, 377 U.S. 426
(1964)); Bivens, 403 U.S. at 402-403 & n.4 (Harlan, J.,
concurring in the judgment) (same). “Bivens, Davis, and
Carlson were [thus] the products of ” another “era”—an
“ ‘ancien regime’ ” under which “ ‘the Court assumed it
to be a proper judicial function “to provide such remedies as are necessary to make effective” a statute’s purpose’ ” and was therefore willing to infer “ ‘causes of
action not explicit in the statutory text itself.’ ” Hernández, 140 S. Ct. at 741 (quoting Abbasi, 137 S. Ct. at
1855).
The Court has since come “to appreciate more fully
the tension between this practice and the Constitution’s
separation of legislative and judicial power.” Hernández, 140 S. Ct. at 741. “[W]hen a court recognizes an
14
implied claim for damages on the ground that doing so
furthers the ‘purpose’ of the law, the court risks arrogating legislative power,” because “a lawmaking body
that enacts a provision that creates a right or prohibits
specified conduct may not wish to pursue the provision’s
purpose to the extent of authorizing private suits for
damages.” Id. at 741-742. A novel damages action implicates “a number of economic and governmental concerns,” including by “often creat[ing] substantial costs”
for “defense and indemnification,” as well as “the time
and administrative costs attendant upon intrusions resulting from the discovery and trial process.” Abbasi,
137 S. Ct. at 1856. An issue that requires such “a host
of considerations that must be weighed and appraised
* * * should be committed to those who write the laws
rather than those who interpret them.” Id. at 1857 (citation and internal quotation marks omitted). This
Court accordingly has “retreated from [its] previous
willingness to imply a cause of action where Congress
has not provided one,” Malesko, 534 U.S. at 67 n.3, and
has stated that “expanding the Bivens remedy is now a
‘disfavored’ judicial activity,” Abbasi, 137 S. Ct. at 1857
(citation omitted).
2. Against that backdrop, this Court has explained
that when a plaintiff asserts a Bivens claim, a court
must apply a “two-step inquiry” to determine whether
the claim can proceed. Hernández, 140 S. Ct. at 743.
The court first asks whether the claim “arises in a ‘new
context’ or involves a ‘new category of defendants’ ” different from those in Bivens, Davis, and Carlson. Ibid.
(quoting Malesko, 534 U.S. at 68). The court then considers “whether there are any ‘special factors that counsel hesitation’ about granting the extension.” Ibid.
(quoting Abbasi, 137 S. Ct. at 1880) (brackets omitted).
15
If there are—if there is “reason to pause”—then the
claim is not allowed. Ibid.; cf. Nestlé USA, Inc. v. Doe,
141 S. Ct. 1931, 1938-1939 (2021) (plurality opinion) (“A
court ‘must’ not create a private right of action if it can
identify even one ‘sound reaso[n] to think Congress
might doubt the efficacy or necessity of [the new] remedy.’ ”) (citation omitted). In asking whether special
factors counsel hesitation, the court gives important
weight to “ ‘separation-of-powers principles’ ” and “consider[s] the risk of interfering with the authority of the
other branches.” Hernández, 140 S. Ct. at 743 (quoting
Abbasi, 137 S. Ct. at 1857).
Under that standard, the court of appeals erred in
extending Bivens to two new contexts.
B. Respondent Seeks To Extend The Bivens Remedy To
Two New Contexts
Although the court of appeals ultimately erred in
allowing respondent’s claims to proceed, the court correctly observed (Pet. App. 36a, 42a) that those claims
would require extending Bivens to new contexts. This
Court’s “understanding of a ‘new context’ is broad”: a
case is “new” if it differs in “ ‘a meaningful way’ ” from
the cases in which this Court has recognized Bivens
remedies. Hernández, 140 S. Ct. at 743 (quoting Abbasi,
137 S. Ct. at 1859).
1. Respondent’s First Amendment retaliation claim
would extend Bivens to a new context
The claims in Bivens, Davis, and Carlson did not involve the First Amendment. “A claim may arise in a
new context” for purposes of the Bivens analysis “even
if it is based on the same constitutional provision as a
claim in a case in which a damages remedy was previously recognized.” Hernández, 140 S. Ct. at 743; see
16
Abbasi, 137 S. Ct. at 1859. But a claim that puts a new
“constitutional right at issue”—like respondent’s First
Amendment retaliation claim—is necessarily materially
different from those that have previously been accepted.
Abbasi, 137 S. Ct. at 1859-1860.
Respondent has contended (Br. in Opp. 18-19) that
this Court already “suggested” in Hartman v. Moore,
547 U.S. 250 (2006), that a First Amendment retaliation
claim like his “is cognizable under Bivens.” Cf. Pet.
App. 41a-42a (court of appeals reasoning that Hartman
“explicitly stated” that a First Amendment retaliation
claim “may be brought”). In Hartman, this Court recognized that “as a general matter the First Amendment
prohibits government officials from subjecting an individual to retaliatory actions * * * for speaking out,”
and then stated that “[w]hen the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens.” 547 U.S. at 256.
Respondent misreads Hartman. The Court was
clear that the only “issue before [it]” concerned what
elements must be pleaded and proved by “a plaintiff in
a retaliatory-prosecution action”—whether against federal officials under Bivens or state officials under
42 U.S.C. 1983. Hartman, 547 U.S. at 256-257; see id.
at 255-256 (describing the circuit conflict that prompted
the writ of certiorari); id. at 259 (referring interchangeably to “a Bivens (or § 1983) plaintiff ”). Thus, the
Court’s “holding d[id] not go beyond a definition of an
element of the tort.” Id. at 257 n.5. Any doubt about
Hartman’s meaning has since been obviated. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court explained
that “[t]he legal issue decided in Hartman concerned
the elements a plaintiff ‘must plead and prove in order
to win’ a First Amendment retaliation claim.” Id. at 673
17
(quoting 547 U.S. at 257 n.5). And in Reichle v. Howards, 566 U.S. 658 (2012), the Court observed that it has
“never held that Bivens extends to First Amendment
claims.” Id at 663 n.4.
2. Respondent’s Fourth Amendment claim challenging
actions during a Border Patrol agent’s investigation
near the border presents a new context
Respondent has asserted (Br. in Opp. 17-18) that his
Fourth Amendment claim is “within the original bounds
of Bivens” by characterizing the claim as “a common
Fourth Amendment claim against a line law enforcement officer based on the officer’s assault on a U.S. citizen.” Cf. Pet. App. 36a (court of appeals reasoning that
respondent’s claim would require only a “modest extension” of Bivens). That blinkered view of the context
here disregards Abbasi’s non-exhaustive list of “examples” of the several kinds of “differences” that may
make a context “new” at the first step of the Bivens
inquiry, including the “generality or specificity of the
official action; the extent of judicial guidance as to how
an officer should respond to the problem or emergency
to be confronted; [or] the statutory or other legal mandate under which the officer was operating.” 137 S. Ct.
at 1859-1860. Abbasi also mentioned “the risk of disruptive intrusion by the Judiciary into the functioning
of other branches; or the presence of potential special
factors that previous Bivens cases did not consider.” Id.
at 1860. And the Court observed that “even a modest
extension is still an extension.” Id. at 1864.
Judged in that light, respondent’s claim is meaningfully different from the claim recognized in Bivens in
multiple respects. For one thing, Agent Egbert was not
performing ordinary domestic law-enforcement functions like the investigation of narcotics violations in
18
Bivens. Cf. Br. in Opp. 18 (citing cases involving the
U.S. Marshals Service, U.S. Park Police, and U.S. Forest Service). He was a Border Patrol agent investigating a foreign national who might have been involved in
cross-border smuggling or immigration violations. See
pp. 2-4, supra. Respondent contends (Br. in Opp. 18)
that Agent Egbert’s specific mission “does not matter,”
but Abbasi recognized that a Bivens claim may be
meaningfully different because the officer “was operating” under a different “statutory or other legal mandate.” 137 S. Ct. at 1860. In addition, the allegedly unconstitutional actions here occurred during Agent Egbert’s attempt to conduct an immigration check, which
further increases the “risk of disruptive intrusion by the
Judiciary into the functioning of other branches.” Ibid.
This Court has long observed that the enforcement of
the immigration laws is committed to the Executive
Branch and that the government’s treatment of foreigners affects our Nation’s foreign relations. See, e.g.,
Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952)
(“[A]ny policy toward aliens is vitally and intricately
interwoven with contemporaneous policies in regard to
the conduct of foreign relations.”).
This case is also meaningfully different from Bivens
because the altercation occurred when respondent attempted to frustrate Agent Egbert’s investigation just
steps away from the international border, and specifically in an area known for illegal smuggling of persons,
drugs, and money. See pp. 2-4, supra. Respondent’s
claim thus “implicates an element of national security”
that was not present in prior Bivens cases, as “[o]ne of
the ways in which the Executive protects this country is
by attempting to control the movement of people and
goods across the border.” Hernández, 140 S. Ct. at 746;
19
see ibid. (describing CBP’s responsibility to detect
“ ‘drug smugglers and traffickers, human smugglers
and traffickers, and other persons who may undermine
the security of the United States’ ”) (citation omitted).
C. Congress Is The Appropriate Body To Decide Whether
To Provide A Damages Remedy In The New Contexts At
Issue Here
The court of appeals erred (Pet. App. 36a, 42a) in
concluding that no special factors counseled hesitation
before accepting respondent’s extensions of Bivens.
This Court’s special-factors analysis is guided by respect for the Constitution’s separation of powers: The
Court “ask[s] whether ‘there are sound reasons to think
Congress might doubt the efficacy or necessity of a
damages remedy,’ and ‘whether the Judiciary is well
suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action to proceed.’ ” Hernández, 140 S. Ct. at
743 (quoting Abbasi, 137 S. Ct. at 1858). The Court also
considers the presence of any “alternative remedial
structure,” which by itself “may limit the power of the
Judiciary to infer a new Bivens cause of action.” Abbasi, 137 S. Ct. at 1858. If any special factors are present, then “the courts must refrain from creating” the
new Bivens remedy “in order to respect the role of Congress.” Ibid. Several special factors counsel hesitation
before inferring a private damages remedy to address
the kinds of claims that respondent presents here.
1. Multiple special factors counsel against extending
the Bivens remedy to First Amendment retaliation
claims
a. This Court’s own previous “reluctance” to extend
Bivens to First Amendment claims, Iqbal, 556 U.S. at
20
675, is itself a sign that special factors counsel hesitation. See Pet. App. 19a (Bumatay, J., dissenting). Three
times, the Court has either suggested that Bivens may
not apply to First Amendment claims or paused to note
that the Court has never recognized such a claim, instead merely assuming arguendo that such claims were
cognizable while deciding other issues. See Wood v.
Moss, 572 U.S. 744, 757 (2014); Reichle, 566 U.S. at 663
n.4; Iqbal, 556 U.S. at 675. Those are strong indications
that extending Bivens to the First Amendment would
be no small matter.
Retaliation claims present particular reasons for
concern. In Bush, the Court expressly declined to recognize a First Amendment claim against federal employers for retaliation against employees’ protected
speech, observing that the decision whether to recognize such a remedy would require balancing sensitive
considerations. See 462 U.S. at 368-370, 388-390. The
prospect of individual suits for damages would make it
“quite probable” that some federal personnel “would be
deterred” from energetically performing their duties.
Id. at 389. But “Congress is in a far better position than
a court to evaluate the impact of a new species of litigation” against federal officials. Ibid.; see Abbasi, 137
S. Ct. at 1858 (“[T]he decision to recognize a damages
remedy requires an assessment of its impact on governmental operations systemwide,” “includ[ing] the burdens on Government employees who are sued personally, as well as the projected costs and consequences to
the Government itself.”). The same principles apply to
respondent’s claim here: Determining whether the possibility of retaliation suits against federal officers would
be more likely to advance the public interest, or instead
to deter officers’ vigorous performance of important
21
duties, is a judgment that should be made by Congress.
See Abbasi, 137 S. Ct. at 1856.
b. Other courts of appeals have also repeatedly expressed misgivings about extending Bivens to retaliation claims, especially since Abbasi. See, e.g., Loumiet
v. United States, 948 F.3d 376, 385 (D.C. Cir.) (refusing
Bivens remedy based on allegedly retaliatory administrative enforcement action), cert. denied, 141 S. Ct. 180
(2020); Mack v. Yost, 968 F.3d 311, 325 (3d Cir. 2020)
(refusing prisoner’s claim concerning allegedly retaliatory work assignment); Buenrostro v. Fajardo, 770
Fed. Appx. 807, 808 (9th Cir. 2019) (refusing prisoner’s
retaliation claim); Petzold v. Rostollan, 946 F.3d 242,
252 & n.46 (5th Cir. 2019) (finding it “unlikely” that
Bivens extends to prisoner’s claim of retaliatory placement in special housing unit); Bistrian v. Levi, 912 F.3d
79, 95 (3d Cir. 2018) (same); see also Pet. App. 21a-22a
& nn.6-7 (Bumatay, J., dissenting) (citing other cases).
In the “context of airport security screeners,” for example, the Third Circuit concluded that special factors, including national-security concerns, prevented it from
recognizing “a Bivens cause of action for First Amendment retaliation.” Vanderklok v. United States, 868
F.3d 189, 207, 209 (2017). The agreement of so many
courts before the decision below is further evidence that
ample grounds counsel hesitation before extending
Bivens to retaliation claims.
c. Retaliation claims against law-enforcement officers present special difficulty for courts trying to “weigh
the costs and benefits of allowing a damages action,”
Hernández, 140 S. Ct. at 743 (citation omitted), in part
because of the “difficulty of devising a workable cause
of action” for retaliation in that setting, Wilkie, 551 U.S.
22
at 562. That, too, counsels strongly against extending
Bivens to respondent’s First Amendment claim.
i. Any number of routine law-enforcement activities
can be challenged as retaliatory, and because the constitutional violation always turns on the officer’s motive,
such claims are notoriously “easy to allege and hard to
disprove.” Crawford-El v. Britton, 523 U.S. 574, 584585 (1998) (citation omitted). This Court has already
responded to that difficulty by limiting the scope of certain retaliation actions (sometimes by drawing on the
common law) so that “policing certain events like an unruly protest” does not “pose overwhelming litigation
risks,” and officers are not forced into burdensome discovery “based solely on allegations about” their “mental
state.” Nieves v. Bartlett, 139 S. Ct. 1715, 1725 (2019)
(retaliatory arrest claim); see Hartman, 547 U.S. at 256
(retaliatory prosecution claim). The vast range of governmental actions that can give rise to a retaliation
claim, and the recognized difficulties of calibrating such
claims to avoid impinging on law-enforcement functions, make it more than reasonable to think that “Congress might doubt the efficacy or necessity of a damages remedy” in this setting. Hernández, 140 S. Ct. at
743 (quoting Abbasi, 137 S. Ct. at 1858).
The need for legislative judgments about how to
weigh the costs and benefits of a First Amendment
Bivens claim would be particularly acute in a case like
this one, where respondent alleges that Agent Egbert
retaliated against him by communicating about him
with other agencies. See Pet. App. 33a-34a. Full and
prompt information sharing is often indispensable to
protecting national security and preventing and solving
crime. As a result, the risk that federal officers might
balk at sharing information about suspected law break-
23
ers with other agencies, lest that action prompt a personal damages suit for retaliation, would be a serious
cost of the new remedy that respondent seeks. Cf. Abbasi, 137 S. Ct. at 1861; Bush, 462 U.S. at 388-390.
ii. The court of appeals found (Pet. App. 43a) no reason to hesitate about respondent’s retaliation claim because he alleges that Agent Egbert “was not carrying
out official duties in asking for investigations of ” him.
But a similar assertion could be made in many Bivens
cases. Contrary to respondent’s suggestion (Br. in Opp.
14) that this Court can simply recognize a Bivens remedy that is “narrowly tailored” to law-enforcement
officers who act “outside of the scope of [their] official
duties,” plaintiffs would surely seize on that remedy to
sue many federal officers for allegedly exceeding the
scope of their duties with retaliatory motives. Cf. Wood,
572 U.S. at 747 (claim of “unconstitutional viewpointbased discrimination” at a protest); Reichle, 566 U.S.
at 660 (claim of retaliatory arrest by Secret Service
agents). The necessity and complexity of assessing the
outer boundaries of federal officers’ duties in each case
is another reason to hesitate over respondent’s retaliation claim.
Moreover, the court of appeals’ decision to limit its
new retaliation remedy to conduct that is allegedly outside the scope of a federal officer’s duties demonstrates
that the court was engaged in policy balancing. If Congress were to create a cause of action for retaliation, it
might reject an “official duties” standard and instead
permit damages for infringements of the freedom of
speech “under color of law,” as it did in the Religious
Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-2(1);
see Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020)—as well
as in the express cause of action for constitutional vio-
24
lations by state officials under 42 U.S.C. 1983. Which
line to draw is a decision that should be made by the
body to which the Constitution assigns the legislative
power. See Hernández, 140 S. Ct. at 741-742.
d. Various “alternative remedial structure[s]” also
exist that can deter and address the kinds of misconduct
that respondent alleges. Abbasi, 137 S. Ct. at 1858.
This Court has held that the existence of “any alternative, existing process for protecting the injured party’s
interest” can counsel hesitation, ibid. (brackets and
citation omitted), even when the alternatives may not
enable the particular plaintiff to obtain similarly effective relief. See, e.g., Bush, 462 U.S. at 372 (declining to
create a Bivens remedy even though alternative processes “were not as effective as an individual damages
remedy and did not fully compensate [the plaintiff ] for
the harm he suffered”) (footnote omitted); Schweiker,
487 U.S. at 427-428 (holding that Social Security appeal
procedures precluded a Bivens remedy even though
those procedures could not redress past due-process
violations). Here, a variety of procedures exist for protecting against retaliatory conduct.
First, insofar as respondent alleges that Agent Egbert improperly reported him to the IRS, federal tax
law contains provisions for preventing and addressing
wrongdoing by IRS employees in tax administration,
and the comprehensive character of the Internal Revenue Code weighs strongly against any new judicially
created remedy. This Court has explained that, “[w]hen
the design of a Government program suggests that Congress has provided what it considers adequate remedial
mechanisms for constitutional violations that may occur
in the course of its administration,” courts should “not
create[ ] additional Bivens remedies.” Schweiker, 487
25
U.S. at 423; see Bush, 462 U.S. at 388-389 (the comprehensive federal civil service laws supported rejecting a
new Bivens remedy for a First Amendment violation).
The tax code is just such a “complex and comprehensive
administrative scheme that provides various avenues of
relief for aggrieved taxpayers,” including provisions
specifically designed to prevent and remedy improper
audits. Hudson Valley Black Press v. IRS, 409 F.3d
106, 113 (2d Cir. 2005); see id. at 111-114. Courts should
not supplement that detailed framework by inferring a
damages remedy against non-IRS employees for inducing an audit with a retaliatory motive. If the tax code
would not enable respondent to obtain relief here because IRS employees determined that Agent Egbert’s
tip warranted an audit, then that only reinforces that a
judicially inferred retaliation claim should not go forward. Cf. Hartman, 547 U.S. at 261-263.
Second, insofar as respondent alleges that Agent
Egbert improperly disclosed private information about
him, the Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat.
1896, regulates the “ collection, maintenance, use, and
dissemination of information” about individuals by federal agencies. Doe v. Chao, 540 U.S. 614, 618 (2004)
(quoting Privacy Act § 2(a)(5), 88 Stat. 1896); see 5 U.S.C.
552a(a)(4) and (5) (describing the information protected
by the Privacy Act); see also Pet. App. 23a (Bumatay,
J., dissenting). The Act authorizes civil suits by persons
whose rights under the Act are infringed, and it permits
criminal penalties against federal officials who willfully
disclose a record in violation of the Act. See 5 U.S.C.
552a(i)(1). The Privacy Act demonstrates that Congress
has both considered the problem of unlawful disclosures
of personal information by federal officials and provided
the remedies that it deems appropriate.
26
Third, respondent might seek relief against Agent
Egbert through various causes of action under Washington state law. See Minneci, 565 U.S. at 125 (declining to recognize Bivens claim because “state tort law
provides an ‘alternative, existing process’ capable of
protecting the constitutional interests at stake”) (quoting Wilkie, 551 U.S. at 550). Judge Bumatay’s dissent
identified some state-law causes of action that might
have been available to respondent, see Pet. App. 24a,
and petitioner has identified still more, see Pet. Br. 33.
In the Federal Employees Liability Reform and Tort
Compensation Act of 1988 (Westfall Act), Pub. L. No.
100-694, 102 Stat. 4563, Congress precluded most statelaw claims against federal officials acting “within the
scope of [their] office or employment” by making the
FTCA’s remedy “exclusive.” 28 U.S.C. 2679(b)(1); see
Hernández, 140 S. Ct. at 748. But respondent contends
(and the court of appeals stated) that Agent Egbert was
not “carrying out official duties” when he allegedly
retaliated against respondent. Pet. App. 43a; see Br. in
Opp. 14. Courts have allowed state-law claims against
federal employees to go forward in cases of “egregious[ ]” misconduct outside the scope of their employment. Vanderklok, 868 F.3d at 204.
Fourth, other statutory and executive authorities
can also help deter and remedy unconstitutional retaliation by Border Patrol agents or other federal officers.
See Schweiker, 487 U.S. at 424 (considering the availability of administrative systems). Respondent invoked
CBP’s administrative-claim process to seek damages
for Agent Egbert’s alleged retaliation, though his second claim (the one asserting retaliation) was denied
for procedural reasons. See pp. 4-5, supra. Border Patrol agents, like other federal employees, can also be
27
subject to internal review and discipline for retaliatory
conduct. See, e.g., 5 U.S.C. 7503 and 7513; 5 C.F.R.
2635.101(b)(1), (5), and (8). And CBP takes reports of
misconduct seriously, as shown by the CBP Office of
Internal Affairs’ thorough investigation of respondent’s
allegations against Agent Egbert. See p. 5, supra.
Respondent has protested (Br. in Opp. 20-22) that
none of those alternative remedial structures will be
able to compensate his injury. Even if that proves to be
true, it would not justify the extension of Bivens to his
claim. This Court has explained that while the presence
of an alternative remedy may preclude an extension of
Bivens, the “absence of statutory relief for a constitutional violation * * * does not by any means necessarily
imply that courts should award money damages against
the officers responsible for the violation.” Schweiker,
487 U.S. at 421-422. Instead, Congress’s decisions to
provide certain remedies, but not others, that protect
against retaliation is a “convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages” for respondent’s First
Amendment claim. Abbasi, 137 S. Ct. at 1858 (quoting
Wilkie, 551 U.S. at 550).
2. Multiple special factors counsel against extending
Bivens to investigating immigration violations and
smuggling at the border
Several special factors also counsel against extending the Bivens remedy to respondent’s Fourth Amendment claim.
a. This Court has previously concluded that courts
should not extend Bivens to a claim that “implicates an
element of national security.” Heráandez, 140 S. Ct. at
746; see Abbasi, 137 S. Ct. at 1861-1862. That conclusion follows directly from this Court’s respect for the
28
Constitution’s separation of powers, Abbasi, 137 S. Ct.
at 1857, because “[n]ational-security policy is the prerogative of the Congress and [the] President,” id. at
1861. Decisions about national security are “ ‘delicate,
complex, and involve large elements of prophecy’ for
which ‘the Judiciary has neither aptitude, facilities, nor
responsibility.’ ” Hernández, 140 S. Ct. at 749 (brackets
and citation omitted).
A decision recognizing a Bivens remedy to challenge
the work of agents investigating immigration violations
and smuggling at the border would have significant
national-security implications. See United States v.
Delgado-Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004)
(“[T]his country’s border-control policies are of crucial
importance to the national security and foreign policy of
the United States.”), cert. denied, 544 U.S. 950 (2005).
Congress has charged the Department of Homeland Security (DHS) and its components, including CBP, with
“securing the homeland.” 6 U.S.C. 111(b)(1)(A) and (E).
One of CBP’s statutory duties is to “detect, respond to,
and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United
States, in cases in which such persons are entering, or
have recently entered, the United States.” 6 U.S.C.
211(c)(5) (emphasis added). CBP also enforces immigration laws, including “the detection [and] interdiction
* * * of persons unlawfully entering, or who have recently unlawfully entered, the United States.” 6 U.S.C.
211(c)(8)(B).
Within CBP, the U.S. Border Patrol is given “primary responsibility” for “interdicting persons attempting to illegally enter or exit the United States” and “deter[ring] and prevent[ing] the illegal entry of terrorists,
29
terrorist weapons, persons, and contraband.” 6 U.S.C.
211(e)(1), (3)(A) and (B). DHS officers, including Border Patrol agents, are specifically authorized, “without
warrant,” to “interrogate any alien or person believed
to be an alien as to his right to be or to remain in the
United States”; to “make arrests” for certain offenses;
and to “have access,” “within a distance of twenty-five
miles from any” international border, “to private lands,
but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United
States.” 8 U.S.C. 1357(a)(1)-(5); see 8 C.F.R. 287.5(a)(d); United States v. Montoya de Hernandez, 473 U.S.
531, 537 (1985) (“Since the founding of our Republic,
Congress has granted the Executive plenary authority
to conduct routine searches and seizures at the border,
without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.”).
Imposing damages liability on individual agents executing those essential national-security functions at the
border could chill the performance of their duties in circumstances where the stakes are often high. See Hernández, 140 S. Ct. at 745, 747; see also Abbasi, 137
S. Ct. at 1861 (“The risk of personal damages liability is
more likely to cause an official to second-guess difficult
but necessary decisions concerning national-security
policy.”); Chappell, 462 U.S. at 304 (refusing a Bivens
remedy in light of “the need for unhesitating and decisive action”). In short, as this Court explained in Hernández, “the conduct of agents positioned at the border
has a clear and strong connection to national security,”
and “the risk of undermining border security provides
reason to hesitate before extending Bivens into this
field.” 140 S. Ct. at 746-747. Multiple courts of appeals
30
have therefore refused to extend Bivens to officers’ actions investigating immigration, or other violations that
occur at the border. See, e.g., Elhady v. Unidentified
CBP Agents, No. 20-1339, 2021 WL 5410758, at *6 (6th
Cir. Nov. 19, 2021); Tun-Cos v. Perrotte, 922 F.3d 514,
528 (4th Cir. 2019), cert. denied, 140 S. Ct. 2565 (2020);
Maria S. v. Garza, 912 F.3d 778, 784 (5th Cir.), cert.
denied, 140 S. Ct. 81 (2019).
b. The decision below failed to recognize the important national-security interests at stake when it
countenanced private damages liability against Border
Patrol agents for their conduct in border-security investigations.
The court of appeals purported to distinguish Hernández on the ground that the Border Patrol agent at
issue there “was literally ‘at the border,’ ” whereas
Agent Egbert had been told by respondent that the
Turkish guest had already entered the United States
through an airport in New York. Pet. App. 38a (citation
omitted); see Br. in Opp. 16 (asserting that Agent Egbert knew the Turkish guest “had entered the country
via a lawful port of entry”). But as the court of appeals
itself recognized, Agent Egbert’s investigation took
place “at the United States-Canada border.” Pet. App.
37a; see p. 2, supra. And Agent Egbert had reason to
question whether the Turkish guest had traveled to
Smuggler’s Inn to engage in illegal cross-border activities. See pp. 2-4, supra.
Nor does it matter that the plaintiffs in Hernández
“were foreign nationals, complaining of a harm suffered
in Mexico,” whereas respondent is a U.S. citizen “complaining of a harm suffered on his own property in the
United States.” Pet. App. 38a; see Br. in Opp. 16. That
description omits the full context and the facts that bear
31
most directly on the separation of powers: Agent Egbert had an objectively reasonable basis for protecting
national security by investigating potential immigrationlaw violations and suspected smuggling when he entered respondent’s property at the border, and he then
allegedly pushed respondent aside when respondent attempted to thwart the investigation.
This case therefore does not present a “conventional
Fourth Amendment excessive force claim.” Contra Pet.
App. 38a. Considered at the appropriate level of generality, the facts alleged in the complaint directly implicate border security, which Congress and this Court
have linked to national security. If the prospect of personal suits for damages prompted Border Patrol agents
to hesitate in their duties, including by allowing citizens
to disrupt their investigations, then the Border Patrol’s
national-security mission could be compromised. Hernández, 140 S. Ct. at 746-747. And a failure by the United
States to do its part to prevent illegal cross-border
activity could also have “potential effect[s]” on our government’s “foreign relations” with Canada. Id. at 744.
Respondent asserts (Br. in Opp. 15) that “Agent Egbert was not securing the border or promoting national
security” when he allegedly “pushed [respondent] to the
ground.” But again, that second-by-second parsing
elides the features of the case that make it different
from Bivens: at the time of the altercation, respondent
was interfering with Agent Egbert’s investigation of a
foreign national who might have committed immigration violations or been involved in illegal cross-border
activities. See Pet. App. 27a (Bumatay, J., dissenting),
50a-51a (district court opinion). As in Hernández, respondent’s argument “misses the point”: “The question
is not whether national security requires” unwarranted
32
force by a Border Patrol agent—“of course, it does
not”—“but whether the Judiciary should alter the
framework established by the political branches for addressing cases in which it is alleged that * * * an agent
at the border” unlawfully used excessive force. 140
S. Ct. at 746. And as in Hernández, the Court should
not do so.
c. Finally, as with respondent’s First Amendment
claim, the existence of other statutes and regulations to
deter and remedy excessive force by Border Patrol
agents counsels against recognizing a new private damages remedy.
CBP’s officers and agents are trained to follow a
detailed use-of-force policy, under which “[t]he use of
excessive force * * * is strictly prohibited.” CBP, CBP
Use of Force - Administrative Guidelines and Procedures Handbook i (Jan. 2021), https://go.usa.gov/xeM2H
(Use of Force Handbook). Agents may use non-deadly
force only with “reasonable grounds to believe that such
force is necessary,” and they “shall always use the minimum non-deadly force necessary to accomplish [their]
mission.” 8 C.F.R. 287.8(a)(1)(ii) and (iii). Alleged violations of the use-of-force standards must be “investigated expeditiously,” 8 C.F.R. 287.10(a), and substantiated violations can “constitute grounds for disciplinary
action,” Use of Force Handbook i. In this case, as discussed above, respondent’s complaints about Agent Egbert’s use of force prompted an internal investigation.
See pp. 4-5, supra. In addition, Border Patrol agents
who willfully deprive any person of a constitutional
right can be criminally prosecuted by the Department
of Justice under 18 U.S.C. 242, and a successful prosecution can result in an order of restitution for the victim,
18 U.S.C. 3663(a)(1)(A). The Executive Branch uses all
33
of those tools to help ensure that Border Patrol agents
fulfill their mission without unwarranted force, and
those standards should not be supplemented by judicially crafted remedies.
Moreover, state tort law, as well as the FTCA
and related administrative claims, may provide a basis
to award damages to plaintiffs who are injured by
federal law-enforcement officers in certain circumstances, including an assault and battery that would be
actionable under state law. See 28 U.S.C. 1346(b)(1),
2680(h). As discussed above, respondent invoked CBP’s
administrative-claim process to seek damages. See
pp. 4-5, supra. Those remedial structures offer yet
more assurance that an implied damages remedy is not
necessary to prevent Border Patrol agents from persistent uses of unnecessary force in the performance of
their border-protection duties.
Respondent observes (Br. in Opp. 21) that this Court
in Carlson stated that Congress has treated the FTCA
and Bivens “as parallel, complementary causes of action.” 446 U.S. at 19-20. But that establishes only that
Congress did not displace a damages remedy in the contexts where one was recognized in Bivens, Davis, and
Carlson. Congress’s willingness to accept particular
judicially created remedies does not suggest that the
potential availability of an FTCA action should not
cause this Court to pause before devising a new damages remedy for a different context. If the public interest supports holding Border Patrol agents personally
liable for their work, then the decisions whether to recognize that remedy and on what terms must be made by
Congress.
34
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Acting Assistant Attorney
General
CURTIS E. GANNON
Deputy Solicitor General
MICHAEL R. HUSTON
Assistant to the Solicitor
General
BARBARA L. HERWIG
JAYNIE LILLEY
MARY HAMPTON MASON
PAUL E. WERNER
Attorneys
DECEMBER 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.