• Civil Lawsuits Against Federal Officers
• Bivens v. Six Unknown Fed. Narcotics Agents

Bivens-based civil suits are not to be extended beyond what has already been decided absent meeting some very stringent case law requirements. 

Plaintiff Robert Boule—a U.S. Citizen—owns, operates, and lives in a small bed and breakfast, called “Smuggler’s Inn,” in Blaine, Washington.  Blaine is the last town in the United States along U. S. Interstate Highway 5 before reaching the Canadian border.  Boule’s property backs right up to the U.S.-Canadian border, and in fact extends some five feet into Canada itself. You can literally walk out the Smuggler’s Inn’s back door and, in a few more feet, walk into Canada. The area surrounding the Inn “(i)s a hotspot for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations.”  On March 20, 2014, Boule was expecting a guest who, although flying in from New York, was originally from Turkey.  While Boule was running errands in town, Customs and Border Patrol Agent Erik Egbert contacted him and asked him about guests staying at his inn.  Boule 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.  Telling the Border Patrol about such guests was not unusual in that playing both ends against the middle, Boule would both charge individuals wanting to use his Inn to sneak into Canada, or vice versa, and then inform the Border Patrol about their presence.   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, intending to check his immigration status.  Boule, for reasons not explained, interceded, telling the agent to leave his property.  When Agent Egbert ignored him, Boule stepped between the agent and the car, asking him again to leave.  Per Boule’s version of the facts, Agent Egbert then shoved him up against the car.  When Boule refused to move away from the car, Agent Egbert grabbed him and pushed him aside and onto the ground, allegedly injuring his (Boule’s) back.  It was subsequently determined that the guest was in fact in the country legally (although he later entered Canada illegally, passing out Boule’s back door and over the border).  Boule later filed a formal complaint with Agent Egbert’s superiors about the incident.  In alleged retaliation, Agent Egbert contacted the Internal Revenue Service (IRS), the Social Security Administration, the Washington State Department of Licensing, and the Whatcom County Assessor’s Office, asking them to investigate Boule’s business. Despite any of these agencies being find anything that Boule had done wrong, it still cost him over $5,000 in accountants’ fees for handling the resulting IRS tax audit. Boule also filed claims pursuant to the Federal Tort Claims Act (FTCA).  Ultimately, Boule’s FTCA claim was denied and, after a year-long investigation, the Border Patrol took no action against Agent Egbert for his alleged use of force or acts of retaliation, leaving him to continue to serve as an active-duty Border Patrol agent.  Not having received any satisfaction, Boule then sued Agent Egbert in federal court, seeking damages for a violation of his Fourth (excessive force) and First (unlawful retaliation) Amendment rights.  Because 42 U.S.C. § 1983 does not apply to alleged misconduct by federal officers, Boule invoked the Supreme Court’s Bivens decision as his authority for filing this lawsuit.  (See Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388 [91 S.Ct. 1999; 29 L.Ed.2nd 619], and discussion below.) The District Court declined to extend a Bivens remedy to Boule’s claims and entered judgment for Agent Egbert, dismissing the case.  Boule appealed.  The Ninth Circuit Court of Appeal reversed. (Boule v. Egbert (9th Cir. Nov. 20, 2020) 980 F.3rd 1309; see Legal Update, Vol. 26, #5, Apr. 18, 2021.)  The United States Supreme Court granted certiorari.

The U.S. Supreme Court, in a 6-to-3 split decision wherein the majority agreed with the trial court as to the non-applicability of a Bivens remedy to the situation in this case, reversed the Ninth Circuit.  As noted above, Title 42 U.S.C. § 1983 does not provide authority for a lawsuit against a federal officer who is alleged to have violated a plaintiff’s civil rights.  Section 1983 is statutorily limited to lawsuits against state officers only.  There are no similar statutory remedies for when the person sued is a federal officer.  The Supreme Court, therefore, sought to fill this statutory void by authorizing a case-law remedy, deciding the case of Bivens v. Six Unknown Fed. Narcotics Agents in 1971.  In the Bivens decision itself, the Supreme Court ruled that it had the authority to create “a cause of action under the Fourth Amendment” against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for a narcotics violation.  Since Bivens, the High Court has held that similar authority applied in a Fifth Amendment sex-discrimination case (Davis v. Passman (1979) 442 U.S. 228.) and a federal prisoner’s “inadequate-care” claim under the Eighth Amendment’s cruel and unusual punishment clause. (Carlson v. Green (1980) 446 U.S. 14.).  But that’s it.  The Ninth Circuit in this new case sought to extend Bivens to Boule’s Fourth Amendment excessive force claim and his First Amendment unlawful retaliation claim.  But since Davis and Carlson, the Supreme Court has determined that a cause of action under Bivens is “a disfavored judicial activity.” (Ziglar v. Abbasi (2017) 582 U.S. __, 137 S.Ct. 1843, 1857.)  From here, the Court goes into a long dissertation concerning the wisdom (or lack thereof) of the Bivens decision, ultimately asking itself whether there is any reason to think that the courts might be better equipped than the Legislature to create a damages remedy.  Generally, the rule is now “that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive (Branch) to provide, ‘an alternative remedial structure.’”  (Quoting Ziglar v. Abbasi, supra.)  Apply this rule (as vague as it is) to Boule’s Fourth and First Amendments claims, the Court here held that “the (Ninth Circuit) Court of Appeals plainly erred when it created causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim.”  As for the Fourth Amendment claim, the Court held that the Ninth Circuit errored in failing to find that (1) Congress is in fact better positioned to create remedies in the border-security context, and (2) the Government already provides alternative remedies that protect plaintiffs like Boule.  As to the first conclusion, the Court noted that it had already determined that when border issues are the concern, Congress is better suited to handle it though appropriate legislation.  (See Hernández v. Mesa (2020) 589 U.S. __, __, 140 S.Ct. 735, involving a Border Patrol agent who shot and killed a 15-year-old Mexican national across the border in Mexico.)  The Ninth Circuit ignored this Supreme Court precedent.  As for the second, Boule had available to him an internal grievance procedure. The U. S. Border Patrol is statutorily obligated to “control, direc[t], and supervis[e] . . . all employees.” (8 U. S. C. §1103(a)(2)). Also, by regulation, Border Patrol must investigate “[a]lleged violations of the standards for enforcement activities” and accept grievances from “[a]ny persons wishing to lodge a complaint.” (8 CFR §§287.10(a)-(b))  The fact that these procedures may not be as effective or thorough as a civil suit, or that they did not turn out as Boule had wanted, is irrelevant, per the Court.  (See Correctional Services Corp v. Malesko (2001) 534 U.S. 61.)  As for Boule’s First Amendment retaliation claim, the Court held that “(t)here are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.”  For instance, the Court considered the relative costs—financial and social—involved in seeking a judicial remedy, noting that “any new Bivens action ‘entail[s] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.’”  (Quoting Anderson v. Creghton (1987) 483 U.S. 635.) Extending Bivens to alleged First Amendment violations would pose an acute risk of increasing such costs in that a plaintiff can turn practically any adverse action into grounds for a retaliation claim. Also, “[b]ecause an official’s state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may be less amenable to summary disposition.”  (Quoting Crawford-El v. Britton (1998) 523 U. S. 574, 584-585.) “Even a frivolous retaliation claim ‘threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence.’” (Quoting Nieves v. Bartlett (2019) 587 U.S. __, __, 139 S. Ct. 1715, 1725.)  For these reasons, the Court concluded that the Ninth Circuit erred in attempting to bring this case under the umbrella of a Bivens action.  The Ninth Circuit decision was therefore reversed.

I’ve often argued that any court, on any given day, can (and often does) justify any given result should it choose to do so, merely by injecting a lot of legal mumbo jumbo into its decision, tossing in a pile of random case law. It seems that the longer the case decision, the more likely the court had to struggle in reaching the conclusion it wanted.  The U.S. Supreme Court is no exception.  This case, as published in the United States Supreme Court Lawyer’s Edition version (abbreviated as “L.Ed.2nd;” the only publisher yet providing a citation for this case), gives us a 28-page majority opinion.  But basically the majority of the Court here is telling us that Bivens was probably a mistake, and they’re not going to extend it any further.  The concurring opinion—written by Justice Neil Gorsuch—all but advocates that Bivens be over-turned, referring to Bivens as a “misstep,” and asking: “When might a court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of creating a cause of action ” (Italics in original) You might, therefore, look at this case as one pronouncing the death of Bivens v. Six Unknown Fed. Narcotics Agents.  So it’s time for Congress to get busy and give us some legislation similar to 42 U.S.C. § 1983 (which, as noted above, provides a civil remedy for lawsuits against state and local peace officers), thus allowing persons wronged by federal officers to air their grievances in a consistent, organized, statutorily approved fashion.  It will save everyone—such as an allegedly wronged private citizen as well as the involved federal officers—a lot of time, money, and effort.