Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule

No. 21-147

In The

Supreme Court of the United States

___________

ERIK EGBERT,

Petitioner,

v.

ROBERT BOULE,

___________

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

___________

BRIEF OF INDEPENDENT WOMEN’S

LAW CENTER AS AMICUS CURIAE

SUPPORTING PETITIONER

___________

JOHN M. MASSLON II

Counsel of Record

PO Box 2062

Arlington, VA 22202

(703) 791-9483

john@johnmasslon.com

December 27, 2021

QUESTIONS PRESENTED

1. Whether a cause of action exists under Bivens v.

Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), for First Amendment

retaliation claims.

2. Whether a cause of action exists under Bivens

for claims against federal officers engaged in

immigration-related functions for allegedly violating

a plaintiff’s Fourth Amendment rights.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... v

INTRODUCTION AND INTEREST

OF AMICUS CURIAE ............................................. 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 4

I.

THE COURT SHOULD NOT EXTEND BIVENS

BEYOND THE THREE CATEGORIES OF CLAIMS

IT HAS RECOGNIZED ........................................... 4

A. Bivens Was Decided During An Era

That Misunderstood Separation-ofPowers Issues ......................................... 4

B. Bivens Violates Core Separation-OfPowers Principles ................................... 5

C. Courts Would Struggle To Limit Any

New Category Of Bivens Actions.......... 10

iv

TABLE OF CONTENTS

(continued)

Page

II. THE NINTH CIRCUIT ERRED BY EXPANDING

BIVENS IN THESE TWO NEW CONTEXTS ............ 13

A. The Ninth Circuit Ignored The

Security Concerns Inherent With

Creating Bivens Claims Against

Border Patrol Agents ............................ 13

B. This Court’s Precedent Forecloses

Bivens Claims For First Amendment

Retaliation Claims ................................ 17

CONCLUSION ....................................................... 19

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................. 8

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) ............................2, 4, 6, 7, 12

Callahan v. Fed. Bureau of Prisons,

965 F.3d 520 (6th Cir. 2020)............................. 18

Carlson v. Green,

446 U.S. 14 (1980) ............................................... 5

Chappell v. Wallace,

462 U.S. 296 (1983) ..................................... 12, 16

Comcast Corp. v. Nat’l Ass’n

of Afr. Am.-Owned Media,

140 S. Ct. 1009 (2020)......................................... 7

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ............................................. 12

Davis v. Passman,

442 U.S. 228 (1979) ......................................... 4, 5

Elhady v. Unidentified CBP Agents,

18 F.4th 880 (6th Cir. 2021) ................... 6, 14, 15

FDIC v. Meyer,

510 U.S. 471 (1994) ........................................... 12

Hernandez v. Mesa,

140 S. Ct. 735 (2020)................8, 9, 12, 15, 16, 17

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Hui v. Castaneda,

559 U.S. 799 (2010) ..................................... 10, 11

Loumiet v. United States,

948 F.3d 376 (D.C. Cir. 2020) ........................... 17

Minneci v. Pollard,

565 U.S. 118 (2012) ..................................... 11, 12

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018)......................................... 5

Nestlé USA, Inc. v. Doe,

141 S. Ct. 1931 (2021)......................................... 8

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020)......................... 6, 17

Schweiker v. Chilicky,

487 U.S. 412 (1988) ........................................... 11

Tun-Cos v. Perrotte,

922 F.3d 514 (4th Cir. 2019)............................. 14

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ............................................. 6

United States v. Stanley,

483 U.S. 669 (1987) ..................................... 12, 16

Vanderklok v. United States,

868 F.3d 189 (3d Cir. 2017) .............................. 18

Wheeldin v. Wheeler,

373 U.S. 647 (1963) ............................................. 7

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Wilkie v. Robbins,

551 U.S. 537 (2007) ................................. 5, 11, 17

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)..................5, 6, 7, 8, 12, 16

Constitutional Provisions

U.S. Const. art. I

§ 1 ........................................................................ 5

§ 5 cl. 2................................................................. 7

§ 8 cl. 1................................................................. 6

§ 8 cl. 2................................................................. 6

U.S. Const. art. III, § 1 ............................................. 5

Statutes

5 U.S.C. § 552a(g)(1)(D) ......................................... 17

26 U.S.C. § 6103 ..................................................... 17

42 U.S.C. § 233(a)................................................... 11

Other Authority

John F. Manning, Textualism and the

Equity of the Statute,

101 COLUM. L. REV. 1 (2001)............................... 7

INTRODUCTION AND

INTEREST OF AMICUS CURIAE*

Thousands of brave men and women risk their

lives daily to protect America’s borders. Facing

threats from terrorists, gangs, and others trying to

smuggle goods or traffic people into the United States,

Customs and Border Protection agents risk it all for

their fellow Americans.

Like all Americans, Border Patrol agents must

comply with the Constitution and federal law. They

do a remarkable job of fulfilling that duty under

extreme conditions. But they are humans. And

humans make mistakes. That does not mean,

however, that Border Patrol agents are personally

liable when people allege that they violated the

Constitution. Rather, as with any area of law,

plaintiffs can sue for damages only when Congress or

the Court has created a cause of action.

Independent Women’s Law Center is a project of

Independent Women’s Forum, a nonprofit, nonpartisan 501(c)(3) organization founded by women to

foster education and debate about legal, social, and

economic issues. IWF promotes policies that advance

women’s

interests

by

expanding

freedom,

encouraging personal responsibility, and limiting the

reach of government. IWLC supports this mission by

advocating—in the courts, before administrative

agencies, in Congress, and in the media—for

* No party’s counsel authored any part of this brief. No

person or entity, other than amicus and its counsel, paid for the

brief’s preparation or submission. All parties consented to

IWLC’s filing this brief.

2

individual liberty, equal opportunity, and respect for

the American constitutional order.

For decades, this Court has declined to create new

damages actions from thin air. And for good reason.

After a brief foray into making law—the “bad old”

days—this Court realized that judge-made damages

actions violate core separation-of-powers principles.

In short, this Court no longer believes that federal

courts have unilateral authority to “make good the

wrong done.” Bivens v. Six Unknown Named Agents,

403 U.S. 388, 396 (1971) (quotation omitted).

The Ninth Circuit, however, stubbornly has

declined to follow this Court’s lead, finding new

implied cause of action after new implied cause of

action. When possible, it drapes the veil of precedent

over what is in reality a newly created cause of action.

That is the tack it took here by holding that Boule’s

claims fit within this Court’s precedent. They do not.

The Ninth Circuit’s refusal to heed this Court’s

warnings about creating new damages actions

warrants reversal.

SUMMARY OF ARGUMENT

I.A. The Court has extended Bivens only twice

since 1971—both times in the decade following that

case. Over the past forty years, the Court has not

created a single cause of action for money damages

under the Constitution. Although this Court declined

to consider overturning Bivens here, the problems

with Bivens counsel against extending it in any case.

B. One special factor that the Court has long

considered is separation-of-powers principles. And

the failure to recognize new Bivens actions is

grounded in these concerns. For over thirty years, the

Court has recognized that it deviated from the proper

3

judicial role in the mid-20th century. By implying

damages actions under the Constitution, the Court

violated key separation-of-powers principles. Since

then, the Court has returned to its proper function of

interpreting—not making—laws.

C. Separation-of-powers concerns are not the only

special factor that counsels against expanding Bivens

further. Lower courts have proven incapable of

deciding when a specific factual scenario arises in a

new context. Some activist judges—particularly in

the Ninth Circuit—try to shoehorn every case

possible into an existing Bivens category. Thus, the

Court should not expand the Bivens remedy further.

II.A. The national security concerns that inhere in

keeping our borders safe preclude any expansion of

Bivens here. Boule’s argument that this case does not

involve border security or national security is

laughable. Border Patrol agents are charged with one

task—protecting our nation’s ports of entry and

borders. And if the case did not involve these sensitive

areas, Boule would not have filed a heavily redacted

brief in opposition.

At least four times, the Court has declined to

create new Bivens-type actions or refused to apply

such an action to a new context because of security

concerns. The security concerns that inhere in finding

constitutional causes of action against Border Patrol

agents protecting our nation’s borders are even more

serious. Bivens claims are unavailable in cases

raising security concerns.

B. The First Amendment is particularly inapt for

Bivens remedies. Allowing Bivens claims for First

Amendment violations could thus lead to a flood of

4

lawsuits against government officials acting in good

faith. The Court should not open this Pandora’s Box.

ARGUMENT

I.

THIS COURT SHOULD NOT EXTEND BIVENS

BEYOND THE THREE CATEGORIES OF CLAIMS

IT HAS RECOGNIZED.

Egbert’s petition asked this Court to reconsider

Bivens. Pet. i. This Court demurred and granted

certiorari only on whether to expand Bivens to two

new contexts. But the concerns that Egbert and IWLC

raised at the certiorari stage should still play a role in

how the Court decides the two questions presented

because those concerns establish that Bivens actions

should be sharply limited to the three contexts in

which this Court has previously recognized them.

A.

Bivens Was Decided During An Era

That Misunderstood Separation-OfPowers Issues.

It was 1971 and a much different time when this

Court created the first implied cause of action under

the Constitution. See Bivens, 403 U.S. at 391-97.

There, the Court found that an individual could sue

Federal Bureau of Narcotics agents for violating his

Fourth Amendment right to be free from

unreasonable searches and seizures because there

was no “explicit congressional declaration” barring

claims for money damages. Id. at 397.

About ten years later, the Court implied two

similar causes of action under the Constitution. First,

it created a cause of action under the Fifth

Amendment for a congressman’s sex discrimination

against a federal employee. See generally Davis v.

Passman, 442 U.S. 228 (1979). Second, it created a

cause of action under the Eighth Amendment for

5

failing to provide prisoners appropriate medical care.

See generally Carlson v. Green, 446 U.S. 14 (1980). In

both cases, the Court created the causes of action

because Congress had failed to bar them. Davis, 442

U.S. at 246-47 (citation omitted); Carlson, 446 U.S. at

19.

Yet for the past forty years, the Court has refused

to create any other cause of action under the

Constitution. See Ziglar v. Abbasi, 137 S. Ct. 1843,

1857 (2017). This is not for lack of trying by pro se

prisoners and the creative plaintiffs’ bar. At least

eleven times, the Court has considered whether to

create a new cause of action under the Constitution.

Each time, it declined.

When considering extending Bivens to a new

context, the Court looks at whether there are “any

special factors” showing that Congress might not

want a Bivens remedy in that context. See Wilkie v.

Robbins, 551 U.S. 537, 550 (2007). This includes an

inquiry into “whether any alternative, existing

process for protecting the interest amounts to a

convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in

damages.” Id. (citation omitted). If there is any reason

to think Congress may not want a Bivens remedy, the

Court will not create one.

B.

Bivens Violates Core Separation-OfPowers Principles.

The Constitution vests “[a]ll legislative Powers”

with Congress. U.S. Const. art. I, § 1; see Murphy v.

Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 147576 (2018). The Judiciary, on the other hand, exercises

judicial power. U.S. Const. art. III, § 1. The distinction

between the legislative power and the judicial power

6

disappears when courts imply damages actions that

Congress did not create.

1. “[T]he separation of powers is itself a special

factor” that counsels against extending Bivens. Oliva

v. Nivar, 973 F.3d 438, 444 (5th Cir. 2020) (citing

Abbasi, 137 S. Ct. at 1862). And this factor alone

counsels in favor of limiting Bivens actions to the

specific and limited circumstances in which this court

has already implied constitutional causes of action.

By considering special factors, the Court ensures

that there are no collateral effects from implying a

cause of action for money damages under the

Constitution. See Elhady v. Unidentified CBP Agents,

18 F.4th 880, 883 (6th Cir. 2021) (citing Abbasi, 137

S. Ct. at 1857-58). Although it may have ultimately

made the wrong decision, the Bivens Court itself

considered separation-of-powers principles as a

special factor.

The Bivens Court held that one special factor that

would counsel against implying a cause of action for

money damages was if the issue involved “federal

fiscal policy.” Bivens, 403 U.S. at 396 (quotation

omitted). The Court explained that it is inappropriate

to imply causes of action in those cases. See id. (citing

United States v. Standard Oil Co., 332 U.S. 301, 311

(1947)). As the Court recognized, the Constitution

leaves questions about fiscal policy to the political

branches. E.g., U.S. Const. art. I, § 8 cls. 1, 2. In other

words, the Court recognized that the separation of

powers is a special factor that courts must consider

before implying a cause of action for money damages

under the Constitution.

That was not the only separation-of-power concern

that the Bivens Court considered as a special factor

7

when deciding whether to imply a cause of action. It

stated that it is improper to allow suits for

congressmen exceeding the authority delegated to

them by Congress. Bivens, 403 U.S. at 396-97 (citing

Wheeldin v. Wheeler, 373 U.S. 647 (1963)). Allowing

those suits would infringe on Congress’s authority to

sanction its members. See U.S. Const. art. I, § 5 cl. 2.

So the Court in Bivens had the right idea. It

considered whether recognizing a cause of action for

money damages under the Constitution violates the

separation of powers. If it does, that is a special factor

that should foreclose suit. The only thing that has

changed is the Court’s understanding of separationof-powers principles. Now, the Court better

understands how the Judiciary can also violate those

principles by taking from Congress the duty to create

damages actions. This understanding precludes any

further expansion of Bivens.

2. The “Constitution explicitly disconnects federal

judges from the legislative power and, in doing so,

undercuts any judicial claim to derivative lawmaking

authority.” John F. Manning, Textualism and the

Equity of the Statute, 101 COLUM. L. REV. 1, 59 (2001).

This “sharp separation of legislative and judicial

powers was designed, in large measure, to limit

judicial discretion—and thus to promote governance

according to known and established laws.” Id. at 61.

But for a brief time last century, the Court

assumed it was “a proper judicial function to provide

such remedies as are necessary to make effective a

statute’s purpose.” Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020)

(cleaned up). “[T]he Court would imply causes of

action not explicit in the statutory text itself.” Abbasi,

137 S. Ct. at 1855 (citations omitted).

8

The Court has since abandoned that “ancien

regime[] and ha[s] not returned to it since.” Alexander

v. Sandoval, 532 U.S. 275, 287 (2001). Now the Court

charts a “far more cautious course before finding

implied causes of action.” Abbasi, 137 S. Ct. at 1855.

This change is grounded in the Constitution.

“When a party seeks to assert an implied cause of

action * * * separation-of-powers principles” must “be

central to the analysis.” Abbasi, 137 S. Ct. at 1857.

The Court’s old practice of recognizing implied causes

of action created “tension” with “the Constitution’s

separation of legislative and judicial power.” Nestlé

USA, Inc. v. Doe, 141 S. Ct. 1931, 1938 (2021)

(plurality) (quotation omitted).

3. Unfortunately, the Court did not stop at

implying damages actions under federal statutes. For

the first time in the 180-year history of our nation, in

Bivens the Court recognized an implied cause of

action for money damages under the Constitution.

And then twice in the next decade, the Court extended

Bivens to new contexts.

Since then, the Court has emphasized that, like

with statutes, when creating new causes of action

under the Constitution, “‘central to [the] analysis’ are

‘separation-of-powers principles.’” Hernandez v.

Mesa, 140 S. Ct. 735, 743 (2020) (quoting Abbasi, 137

S. Ct. at 1857). The Court therefore “consider[s] the

risk of interfering with the authority of the other

branches” when asking “whether ‘there are sound

reasons to think Congress might doubt the efficacy or

necessity of a damages remedy.’” Id. (quoting Abbasi,

137 S. Ct. at 1858).

If anything, the Court should be warier of

implying causes of action under the Constitution than

9

it is of implying damages actions under statutes.

When Congress passes a statute, it recognizes that

plaintiffs should sometimes recover damages.

Although the Court interferes with Congress’s power

when it implies a cause of action under a statute, it is

at least doing so in an area where Congress has

created a right.

When courts imply a cause of action under the

Constitution, Congress has not recognized plaintiffs’

right to recover. So rather than extending a cause of

action that Congress created, courts are creating

causes of action with no congressional direction. And

they do so despite Congress having over 230 years to

pass laws creating damages actions for constitutional

violations. This creation of damages actions under the

Constitution thus raises grave separation-of-powers

concerns.

4. Congress chose not to create a cause of action

for Boule’s claims. It may think that allowing such

suits would lead to increased drug and human

trafficking across the border. Or it may think that it

would make it easier for terrorists to infiltrate

America. Either way, Congress has made a policy

decision.

Yet the Ninth Circuit disapproved of that policy

decision and read causes of action into the

Constitution. If the Ninth Circuit was trying to

“exercise[] a degree of lawmaking authority” as a

common-law court, that attempt fails because there is

no federal common law. Hernandez, 140 S. Ct. at 742

(citations omitted).

The best way to reaffirm core separation-of-powers

principles is to reject further expansion of Bivens.

Whenever the Court implies a cause of action for

10

money damages under the Constitution, it infringes

on Congress’s and the President’s constitutional

authority. That is a special factor that strongly

cautions against extending Bivens. By extending

Bivens, a ruling for Boule would chip away at the

foundations of our constitutional republic. Thus, the

Court should limit Bivens’s scope to the three specific

categories of cases that the Court recognized over

forty years ago.

C.

Courts Would Struggle To Limit Any

New Category Of Bivens Actions.

Courts struggle to limit Bivens. Lower courts

frequently use Bivens to create new damages actions

whenever they think that plaintiffs deserve recourse

for constitutional violations.

The Ninth Circuit, for example, “could think of no

reasons to hesitate” before creating these causes of

action. Pet. App. 17a (Bumatay, J., dissenting). There

are at least five: “(1) congressional silence, (2) [this]

Court[’s] precedent, (3) the precedent of [other]

circuits, [] (4) the various potential alternative

remedies available to Boule,” and (5) security

concerns. Id. The disconnect between the Ninth

Circuit’s decision and the dissent from denial from

rehearing en banc shows how courts struggle to apply

Bivens.

So too for the nine times lower courts have

(erroneously) allowed Bivens suits in new contexts

that this Court has reviewed. Each time the Court has

reviewed those decisions, it has found that the

plaintiffs could not bring Bivens suits.

Twice the Court reversed creation of an implied

constitutional cause of action because Congress had

provided other remedies. In Hui v. Castaneda, 559

11

U.S. 799 (2010), the Ninth Circuit found that, under

Bivens, a detained immigrant could sue a U.S. Public

Health Service doctor for ignoring his medical needs.

Reversing, this Court held that 42 U.S.C. § 233(a)

precluded the Bivens action because the Federal Tort

Claims Act was the exclusive cause of action against

PHS doctors. Hui, 559 U.S. at 805-07.

Although the Court used slightly different

reasoning, the result was the same in Schweiker v.

Chilicky, 487 U.S. 412 (1988). There, a claimant sued

Social Security officials for improperly revoking her

benefits. The Ninth Circuit created a claim for her

under the Fifth Amendment. This Court reversed

because the Social Security statute allowed her to

pursue remedies through the administrative process

and federal appeal. See id. at 424-29.

In other cases, the Court has been specific about

how lower courts ignored separation-of-powers

concerns when implying damages actions. In Wilkie,

a rancher alleged federal employees extorted him to

give the federal government an easement over his

land. The Court declined to find an implied cause of

action because “Congress is in a far better position

than a court to evaluate the effect of a new species of

litigation against those who act on the public’s

behalf.” Wilkie, 551 U.S. at 562 (cleaned up).

In three cases—two from the Ninth Circuit—the

Court reversed extending Bivens to new classes of

defendants. Most recently, in Minneci v. Pollard, 565

U.S. 118 (2012), a prisoner sued private individuals

for violating the Eighth Amendment by providing him

inadequate medical care. The Ninth Circuit created

an implied cause of action for Eighth Amendment

claims against non-government actors. This Court

12

reversed and held plaintiffs may not bring Bivens

suits against non-government workers. Id. at 126-31.

Similarly, in Corr. Servs. Corp. v. Malesko, 534

U.S. 61 (2001), a prisoner sued a halfway house

operator for allegedly violating his constitutional

rights. The Court held that plaintiffs cannot bring

Bivens actions against private corporations. Id. at 7074. And in FDIC v. Meyer, 510 U.S. 471 (1994), the

plaintiff sued a federal agency for allegedly infringing

his due-process rights. The Ninth Circuit found that

Bivens allowed such an implied cause of action. This

Court reversed because Bivens does not extend to

suits against federal agencies. See id. at 483-86.

Relevant here, the Court has declined to extend

Bivens actions because of security concerns.

Hernandez, 140 S. Ct. at 746, 749; Abbasi, 137 S. Ct.

at 1861; United States v. Stanley, 483 U.S. 669, 67886 (1987); Chappell v. Wallace, 462 U.S. 296, 298-305

(1983).

The gap between how the Court thought Bivens

would operate and the on-the-ground reality shows

that lower courts would struggle with applying a

ruling extending Bivens to two new contexts. The

Court has limited Bivens claims to three narrow

classes of cases and has instructed lower courts on

how to apply that precedent. Yet nine times over the

past several decades the Court has found that the

lower courts overstepped their bounds and

improperly expanded Bivens’s scope. It will face even

more of these erroneous decisions if it extend Bivens

in two new contexts.

13

II.

THE NINTH CIRCUIT ERRED BY EXPANDING

BIVENS IN THESE TWO NEW CONTEXTS.

Even if the Court declines to hold that Bivens

claims are limited to the three narrow circumstances

that it recognized decades ago, it should still reverse.

Extending Bivens to claims involving searches at the

border would harm our nation’s security. And Boule

has other remedies for his First Amendment claim.

A.

The Ninth Circuit Ignored The

Security Concerns Inherent With

Creating Bivens Claims Against

Border Patrol Agents.

Despite the veritable mountain of authority from

this Court that forbids the expansion of Bivens-type

actions, especially when doing so would pose grave

security risks, the Ninth Circuit created not one but

two such actions here. The lower court inferred a

Bivens-type action for alleged constitutional

violations of not only the First but also the Fourth

Amendment against Border Patrol agents.

1. In his cert-stage brief, Boule argues that this

case does not involve security concerns. BIO 15-17,

29-30. But the rest of the brief reveals the weakness

of the argument. Although Egbert filed an unredacted

public copy of the petition, Boule thought it necessary

to redact whole pages of his brief. Other parts of the

brief are also redacted in the public filing. Why? The

answer is clear: There are security concerns with

releasing some case details. There is no way to

reconcile the filing of such a heavily redacted brief

with the arguments the brief contains.

Boule’s argument also conflicts with the

overwhelming weight of authority from the courts of

appeals. These courts hold that any action by Border

14

Patrol agents that can reasonably be linked to

protecting our nation’s borders raises national

security concerns. For example, in Elhady the

plaintiff argued that he could bring a Bivens claim for

how Border Patrol agents treated him in a detention

cell. 18 F.4th at 881-82. Under Boule’s reasoning, that

claim would not raise national security concerns

because it didn’t happen while actively patrolling the

northern border. But the Sixth Circuit had no trouble

holding that the case implicated national security

concerns. Id. at 886-87.

The Fourth Circuit’s decision in Tun-Cos v.

Perrotte, 922 F.3d 514 (4th Cir. 2019), shows just how

far national security concerns extend. There, a group

of men who lived in Virginia—far from any border—

sued Immigration and Customs Enforcement agents

for allegedly violating their Fourth Amendment

rights. Id. at 517. Still, the Fourth Circuit held that

the claims raised national security concerns that

counseled against extending Bivens to that new

context. See id. at 525-26.

This case raises more direct national security

concerns than did Elhady or Tun-Cos. Egbert’s

actions happened near the nation’s northern border

while he was investigating illegal smuggling

activities. His work is unquestionably linked to

national security. Thus, the Court should brush aside

Boule’s specious arguments that this case does not

involve border security.

2. This Court’s precedent confirms the circuit

courts’ analysis about why affirming the Ninth

Circuit’s decision would raise serious security

concerns. “Since regulating conduct of agents at the

border unquestionably has national security

implications, the risk of undermining border security

15

provides reason to hesitate before extending Bivens

into this field.” Hernandez, 140 S. Ct. at 747. The

Court therefore declined to extend Bivens to the

context of a cross-border shooting because borderrelated issues are always national security issues. As

it explained, the “daunting task” of protecting our

nation’s borders “has a clear and strong connection to

national security.” Id. at 746; see Elhady, 18 F.4th at

885.

The Constitution leaves to Congress and the

President “delicate[ and] complex” national security

issues “for which the Judiciary has neither aptitude,

facilities, nor responsibility.” Hernandez, 140 S. Ct. at

749 (cleaned up). Permitting suits for money damages

would discourage agents from doing everything

possible—consistent with federal law—to protect our

nation’s borders. Personal liability would hang over

the heads of agents whose very job description

includes intercepting drugs, human smugglers, and

terrorists every day. Such liability would cause wellmeaning agents to err on the side of caution while

protecting our nation.

If Congress wants Border Patrol agents to err on

the side of caution, it can create a damages action for

constitutional violations. Yet, to date, it has declined

to enact such a law. The Ninth Circuit disagreed with

this policy decision. It declared itself a

superlegislature and created damages actions for

those constitutional violations. This it could not do.

Hernandez was just another in a line of cases

holding that security concerns counsel hesitancy

before extending Bivens. In Abbasi, the plaintiffs sued

for the treatment they received while detained after

the September 11 terrorist attacks. Even though the

plaintiffs’ case appeared to fit within the four corners

16

of Carlson, this Court found a Bivens action was

impermissible where such claims would interfere

with “sensitive issues of national security.” Abbasi,

137 S. Ct. at 1861.

Four years prior, in Chappell, the Ninth Circuit

had held that a seaman could sue Navy officers for

racial discrimination under Bivens. The Court

reversed because Congress heavily regulates military

affairs, which are key to national security. See

Chappell, 462 U.S. at 298-305; see also Stanley, 483

U.S. at 678-86 (miliary affairs key to national

security).

But the Ninth Circuit avoided these national

security concerns by creating causes of action for

Boule. The Ninth Circuit therefore failed to follow

four on-point decisions from this Court about when it

is appropriate to create new Bivens-type claims. See

Hernandez, 140 S. Ct. at 743 (“if [a court has] reason

to pause before applying Bivens in a new context” it

must “reject the request”). Despite this Court not

creating a new cause of action for the past four

decades, the Ninth Circuit created new causes of

action here.

The Ninth Circuit stubbornly continues to create

new causes of action for money damages under the

Constitution. This time, it once again waded into a

sensitive area—our nation’s border security. This

interference with Border Patrol agents’ ability to

protect Americans conflicts with this Court’s recent

Bivens decisions that decline to create Bivens-type

actions because of national security concerns. Thus,

the Court should reverse the Ninth Circuit’s decision.

17

B.

This Court’s Precedent Forecloses

Bivens Claims For First Amendment

Retaliation Claims.

Boule’s First Amendment Bivens claim is invalid

because he has other potential remedies. When

considering extending Bivens to a new context, the

Court reviews “whether any alternative, existing

process for protecting the interest amounts to a

convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in

damages.” Wilkie, 551 U.S. at 550. Boule has other

potential remedies for the First Amendment

retaliation claim. He could sue Customs and Border

Protection for a Privacy Act violation. See 5 U.S.C.

§ 552a(g)(1)(D). Or he could sue under 26 U.S.C.

§ 6103 for improperly disclosing tax information.

In his brief in opposition, Boule contends that

Egbert forfeited this argument. BIO 20. This

contention lacks merit. As the Fifth Circuit has

explained, a party cannot forfeit or waive an

argument that courts should not recognize a Bivens

claim. See Oliva, 973 F.3d at 444 n.2. This is because

the Court requires the inquiry before extending

Bivens. See Hernandez, 140 S. Ct. at 743.

Realizing the weakness of his argument, Boule

also argues that he could not successfully obtain relief

in these potential actions. BIO 20-21. But this

argument fares no better. As the D.C. Circuit has

explained, just because an individual cannot recover

under possible alternatives does not mean that those

alternatives are unavailable. See Loumiet v. United

States, 948 F.3d 376, 382-83 (D.C. Cir. 2020). Thus,

Boule cannot clear this hurdle to extending Bivens to

First Amendment retaliation claims.

18

But even if he could, the Court should still decline

to extend Bivens to First Amendment retaliation

claims because special factors counsel against

expansion. First, as noted above, the separation of

powers is one such concern. Security concerns are

another reason to hesitate before extending Bivens in

this especially sensitive context. Even in the First

Amendment context, CBP’s “role in securing public

safety is so significant that [courts] ought not create

a damages remedy in this context.” Vanderklok v.

United States, 868 F.3d 189, 209 (3d Cir. 2017).

The courts of appeals have recognized that First

Amendment retaliation claims are easy to make

against federal officers. See, e.g., Callahan v. Fed.

Bureau of Prisons, 965 F.3d 520, 533 (6th Cir. 2020).

This is particularly true in the rural areas that many

Border Patrol agents work. Unlike in the prison

context or normal search-and-seizure context, rarely

are other federal officers present to observe an

interaction. This means that plaintiffs like Boule can

file Bivens suits and survive a motion to dismiss and

motion for summary judgment as the case often turns

on credibility of the two parties.

So besides the normal difficulty deciding whether

a Bivens claim arises in a new context, see § 1.C supra,

First Amendment retaliation claims present their

own workability concerns. The claims will be difficult

to prove—and disprove. This is a special factor

counseling against expanding Bivens to this new

context.

*

*

*

Lower courts continue to ignore this Court’s

decisions limiting Bivens to three narrow classes of

cases. Some do their best to allow suits for money

damages anytime a federal officer allegedly violates

19

someone’s constitutional rights. This flouting of the

Court’s jurisprudence will continue unless the Court

stops extending Bivens.

This Court should make clear that Bivens actions

may not be extended beyond those three narrow

classes of cases. But even if the Court does not go that

far, it should reject extending the remedy to First and

Fourth Amendment violations at the border. Doing so

would have disastrous consequences for our nation’s

security.

CONCLUSION

This Court should reverse.

Respectfully submitted,

JOHN M. MASSLON II

Counsel of Record

PO Box 2062

Arlington, VA 22202

(703) 791-9483

john@johnmasslon.com

December 27, 2021