SCOTUS’ Terrible Decision for Federal Civil Rights Actions in Egbert v. Boule
On June 8, 2022, the Supreme Court of the United States (“SCOTUS”) rendered its opinion in Egbert v. Boule. SCOTUS in Egbert narrowed, but did not expressly eliminate, private civil damages actions for constitutional violations by federal officials under Bivens v. Six Unknown Named Agents. Justice Clarence Thomas wrote for a five-justice majority; Justice Neil Gorsuch concurred in the judgment; Justice Sonia Sotomayor concurred in the judgment in part and dissented in part for Justices Stephen Breyer and Elena Kagan.
Respondent Robert Boule is a U.S. citizen who owns and runs the Smuggler’s Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington; drives a car with a SMUGLER license plate; and worked as a confidential informant for the Customs and Border Patrol. Petitioner Erik Egbert, a Border Patrol agent, attempted to speak with a guest, newly arrived from Turkey via New York, outside the inn. When Boule asked Egbert to leave his property and attempted to intervene, Egbert shoved him to the ground; when Boule complained to Egbert’s superiors, Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boule’s activities.
The majority’s opinion is not surprising to those that have followed federal civil rights actions under Bivens because SCOTUS has rejected every claim under that case since 1980.
There are six important parts to the SCOTUS’ opinion. First, although not relevant to the analysis, SCOTUS highlights the not-so-good sides of Boule’s business. These include drug seizures at the inn, Boule’s role as a paid government informant, and his Canadian conviction for human trafficking. It also discusses his practice of providing shuttle services for up to $150 per hour, requiring guests to pay for a night at the inn even if not staying there, and refusing to provide refunds to guests arrested at the inn on Boule’s tips to law enforcement. The opinion includes a photograph of the inn’s sparse lodgings “for which Boule’s Turkish guest would have traveled more than 7,500 miles.”
Second, the court recites the two-step inquiry established and applied in Ziglar v. Abbasi and Hernandez v. Mesa. Whether the case involves and “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and if so, whether “special factors … counsel hesitation about granting the extension.” However, “those steps often resolve into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”
Third, the special-factors analysis must be conducted at a general level. The court must ask broadly whether judicial intrusion into a “given field” is inappropriate. The question in this case is not whether to imply an action against Egbert on the unique facts of this case, but against Border Patrol agents generally. Neither the factual similarities of this case to Bivens nor its factual distinctions from Hernandez — U.S. citizen plaintiff, actions on the U.S. side of the border rather than straddling the border, injury within the U.S. — made a difference.
Fourth, SCOTUS identifies an adequate alternative remedy (a special factor) in the Border Patrol’s internal grievance processes. The process does not entitle the complainant to participate, is not subject to judicial review, and does not provide an individual remedy to the complainant, focusing on disciplining the officer misconduct. However, SCOTUS notes that Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations, and thus, similar conduct by other agents.
Fifth, the court holds that no Bivens claim is available for First Amendment retaliation, because for “many reasons” Congress, not the court, is better suited to authorize such a damages remedy. Allowing First Amendment damages claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs. The court rejects Boule’s argument that a First Amendment retaliation claim is similar to the employment-discrimination claim the court allowed in Davis v. Passman — both turn on the defendant’s motive. But Davis predates the court’s new approach. Moreover, that a new right is parallel to a recognized right is insufficient to extend the Bivens right of action.
Finally, Thomas closes the opinion by citing dissents and concurrences by Bivens dissenters, including himself (as it would be not surprise to those that know Thomas way of writing), and stating the court would decline to recognize any cause of action under the Constitution if writing on a clean slate. SCOTUS failed to prevent similar future federal rights violations by way of this opinion.
What is most surprising about SCOTUS’ approach is its lack to acknowledge that SCOTUS’ job, and thus the courts, is to interpret the constitution and to determine whether there are any violations of such. It is inherent in a court’s power to adjudicate cases for the parties before it. This SCOTUS decision is the result of years of conservative-minded judges and justices that fail to recognize that our courts are the sole entity that can adjudicate civil lawsuits, especially those of constitutional violations.
