This Report summarizes cases granted review on October 29 and November 5, 2021 (Part I).

Cases Granted Review: Egbert v. Boule, 21-147

Egbert v. Boule, 21-147. The Court limited the grant of certiorari to the first two questions, which ask: (1) “Whether a cause of action exists under Bivens 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.” (The Court declined to grant certiorari on the third question presented, which asked the Court to consider overruling Bivens.) Respondent Robert Boule operates a Bed & Breakfast steps away from the Canadian border in Blaine, Washington. The B&B is known as “Smuggler’s Inn,” and is “a notorious site for illegal border crossing.” The Inn also attracts drug traffickers; “[l]arge shipments of cocaine, methamphetamine, ecstasy, and opiates” have been seized on site. On March 20, 2014, petitioner, U.S. Border Patrol Agent Erik Egbert, was on patrol and learned from Boule that a Turkish national was arriving at the Smuggler’s Inn later that day. Agent Egbert suspected the Turkish national might cross into Canada or meet with associates entering the United States from Canada for a criminal purpose. Agent Egbert therefore waited for Boule’s employees to drive the Turkish national to the Smuggler’s Inn. Once they arrived, Agent Egbert followed them up the Inn’s driveway and parked behind Boule’s vehicle. The driver exited; the Turkish national remained in the car. Boule told Agent Egbert to leave the premises, but Agent Egbert declined. Boule responded by stepping between Agent Egbert and the car with the Turkish national. Agent Egbert allegedly pushed Boule aside, asked the Turkish national about his immigration status, and confirmed his lawful presence. Boule later sought medical treatment for a back injury that Agent Egbert allegedly caused. Boule complained to Agent Egbert’s superiors. Boule alleges that Agent Egbert retaliated by siccing the IRS and other federal agencies on him.  Boule sued Agent Egbert in federal district court, asserting two causes of action under Bivens. He alleged that Agent Egbert (1) retaliated against Boule in violation of the First Amendment, and (2) violated Boule’s Fourth Amendment rights by entering his property, refusing to leave, and pushing him to the ground. The district court granted summary judgment to Agent Egbert on both claims. A panel of the Ninth Circuit reversed and held that both Bivens claims were viable. 998 F.3d 370 (amended opinion). Twelve judges dissented from the denial of rehearing en banc.

Under recent Supreme Court precedents, resolving whether a Bivens claim is available is a two-step process. The first step asks whether the claim arises in a context different from what the Court has previously recognized. If so, the next step considers whether any special factors counsel hesitation before expanding Bivens to that new context. See Hernandez v. Mesa, 140 S. Ct. 735 (2020). With respect to Boule’s First Amendment claim, the Ninth Circuit panel reasoned that Hartman v. Moore, 547 U.S. 250 (2006), “explicitly stated . . . that such a [Bivens] claim may be brought,” even if “the [Supreme] Court has not expressly so held.” The Ninth Circuit then found “no special factors that make it inadvisable to find a cognizable Bivens claim in this new context.” As to Boule’s Fourth Amendment claim, the Ninth Circuit panel reasoned that extending Bivens to Border Patrol agents was a “modest extension” that would not entail “improper intrusion by the judiciary into the sphere of the other branches.” The panel deemed Boule’s excessive-force claim “indistinguishable from Fourth Amendment excessive force claims that are routinely brought under Bivens against F.B.I. agents.”

Agent Egbert argues in his petition that “six circuits to consider the availability of First Amendment retaliation claims under Bivens have rejected them. And three circuits have refused to recognize Fourth Amendment Bivens claims in factually analogous circumstances involving immigration enforcement.” On the First Amendment claim, Egbert says that other circuits reject the Ninth Circuit’s reading of Hartman, finding that in Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), and Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012), the Court expressly disavowed recognizing any First Amendment Bivens claims. And on both the First and Fourth Amendment claims, Egbert asserts many special factors counseling hesitation in expanding Bivens to these new contexts: “Th[e] Court’s unwillingness to extend Bivens”; “[o]ther circuits’ uniform refusal to entertain claims in these contexts”; “Hernandez’s instruction that ‘[s]ince regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field’”; “[t]he risk that exposing Border Patrol agents to new personal liability for money damages would impede the effectiveness of their decisionmaking when discharging sensitive responsibilities”; and “[t]he existence of alternative remedies, including administrative processes, Privacy Act claims, and the Federal Tort Claims Act.”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]