• Federal Officers’ Civil Liability under a Bivens Action
• Fourth Amendment Use of Force and a Bivens Action
• Fifth Amendment Retaliation and a Bivens Action

The U.S. Supreme Court case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics provides a non-statutory civil remedy to a U.S. citizen who alleges that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States.  Bivens also provides a remedy for a violation of the First Amendment when a border patrol agent engages in retaliation entirely unconnected to his official duties.

Plaintiff Robert Boule—a U.S. Citizen—owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington.  His property backs up right to the U.S.-Canadian border.  On March 20, 2014, he was expecting a guest who, although flying in from New York, was originally from Turkey.  While Plaintiff was running errands in town, Customs and Border Patrol Agent Erik Egbert contacted him and asked him about guests staying at his inn.  Plaintiff told him about the Turkish guest who, at that moment, was being picked up by an employee of the inn at the Seattle-Tacoma International Airport, some 125 miles south of Blaine.  Interested in checking this new guest out, Agent Egbert stationed himself at the entrance to the inn, waiting for him to arrive.  When he did, Agent Egbert followed the car up plaintiff’s driveway and attempted to contact the Turkish guest.  Plaintiff interceded, however, telling the agent to leave.  When Agent Egbert ignored him, plaintiff stepped between the agent and the car, asking him again to leave.  Per plaintiff’s version of the facts, Agent Egbert then shoved him up against the car.  When plaintiff refused to move away from the car, Agent Egbert grabbed him and pushed him aside and onto the ground, injuring his back.  It was subsequently determined that the guest was in fact in the country legally.  Plaintiff later filed a formal complaint with Agent Egbert’s superiors about the incident.  In alleged retaliation, Agent Egbert contacted the Internal Revenue Service, asking them to look into plaintiff’s tax status.  (Not cool!)  Plaintiff sued Agent Egbert in federal court, seeking damages for a violation of his Fourth and First Amendment rights.  The district (trial) court granted Agent Egbert’s summary judgment motion, dismissing the lawsuit.  Plaintiff appealed.

The Ninth Circuit Court of Appeal reversed.  Plaintiff filed his lawsuit pursuant to what’s known as a “Bivens action.”  A “Bivens action” refers to the U.S. Supreme Court case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388.  Bivens held that despite the lack of an authorizing statute, damages were recoverable directly under the Fourth Amendment.  In a civil action alleging a Fourth Amendment violation by a state officer, as opposed to a federal officer, 42 U.S.C. § 1983 would have been available.  (See Note, below.)  Despite there being no such statute for similar actions by federal officers, the Supreme Court in Bivens “implied” potential civil liability in such a case.  But Bivens is limited to its circumstances, i.e., in a case where federal officers were alleged to have arrested and searched the plaintiff without a warrant or probable cause, and where it was alleged that the officers used unreasonable force in making the arrest.  So every new case has to be individually evaluated, looking to see whether, on its facts, it is an extension of the Bivens theory of liability.   The Supreme Court, however, has since counseled against over-using a Bivens theory of liability absent congressional action or instruction, concentrating on the costs and benefits of allowing such a damages action to proceed.  (Ziglar v. Abbasi (2017) 137 S.Ct. 1843, 1848-1849.) The Supreme Court made it clear in Ziglar that “expanding the Bivens remedy is now a disfavored judicial activity,” although such a remedy is still available in appropriate cases where there are “powerful reasons” to retain it in its “common and recurrent sphere of law enforcement.”  (Id., at 137 S.Ct. at p. 1857.)  The district (trial) court held here that plaintiff Boule’s claims did not warrant an extension of the Bivens theory of liability.  In reversing the district court’s ruling on this issue, the Ninth Circuit held to the contrary. 

(1) Fourth Amendment:  Whether or not the Bivens theory should be expanded to include this particular case depends upon whether or not plaintiff’s claims arise in a “new context,” and if so, whether any “special factors” counsel hesitation in finding a viable Bivens claim. (Hernandez v. Mesa (2020) 140 S.Ct. 735.) As for plaintiff’s Fourth Amendment claims, the Court found only a “modest extension” into a new context; the “new context” being limited to the fact that defendant is an agent of the border patrol “rather than the F.B.I.” (sic; probably meaning the Federal Bureau of Narcotics.)  As for finding “special factors counsel(ing) hesitation,” the Court noted that “the inquiry is to concentrate on 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.” A court should also “consider the risk of interfering with the authority of the other branches,” such as the Legislature. (Ziglar v. Abbasi, supra.) In this case, the Court found no such “special factors.”  The Court, finding this to be a “run-of-the-mill” Fourth Amendment case, therefore, held that plaintiff was entitled to seek a Bivens remedy.  

(2)  First Amendment:  In considering plaintiff’s First Amendment retaliation claim, on the “new context” issue, the Court noted that despite the Ninth Circuit having previously found Bivens actions appropriate in such a First Amendment case (see Gibson v. United States (9th 1986) 781 F.2nd 1334.), the U.S. Supreme Court has never considered the issue.  But despite the lack of Supreme Court guidance, the Court could find no special factors that might counsel hesitation in extending a Bivens remedy into this new context.  To the contrary, the Court found retaliation allegations, available against governmental officers in general, to be a well-established First Amendment claim.  A Bivens action was therefore held to be justified where the alleged retaliation involved a border patrol agent turning the I.R.S. onto the plaintiff, such an action bearing no relation to, or justification under, his duties as an agent of the border patrol.