The Distinction Between Failure to Extend a Precedent and Cutting Back on it -- A Comment on Egbert v. Boule
by Michael C. Dorf
Wednesday's SCOTUS oral argument in Egbert v. Boule presented the question whether a Bivens action is available to challenge alleged excessive force in violation of the Fourth Amendment and alleged retaliation in violation of the First Amendment by a Customs and Border Patrol agent who came onto the plaintiff's property--a bed-and-breakfast unfortunately named "Smuggler's Inn that sits on the border between Washington State and British Columbia--to investigate the immigration status of a Turkish guest.
Readers may recall that Bivens was a 1971 Supreme Court opinion that allowed a cause of action for damages due to Fourth Amendment violations by federal drug enforcement officers. It provides a judge-made analogue to the statutory cause of action against state and local officers that Congress enacted during Reconstruction and is currently codified at 42 U.S.C. §1983. For some years, it appeared that Bivens might function as the equivalent of §1983 for federal defendants, but after a time, and especially in recent years, the Supreme Court has signaled that a Bivens action is often unavailable where a §1983 action against state or local officers would be available. The cutback--reflected most dramatically in cases like Ziglar v. Abbasi in 2017 and Hernandez v. Mesa in 2020--suggests pretty clearly that the current Court is not prepared to overrule Bivens but also will not allow its substantial extension.
But what's an extension versus an application? Under the current precedents, courts are supposed to first determine whether the plaintiff's claims arise in a "new context" or involve a "new category of defendants." If not, then Bivens applies. If so, then Bivens can still apply unless there are "special factors that counsel hesitation." In Egbert, the Ninth Circuit found that both the Fourth and First Amendment claims arose in a new context but that there were not special factors, and so allowed the case to go forward. I doubt that the Supreme Court granted certiorari to give the Ninth Circuit a medal, so it seems likely that the Court will agree that the case arises in a new context but disagree about special factors, and thus disallow the Bivens action.
Bivens itself was a Fourth Amendment case, so one might wonder how Egbert arises in a new context. That objection itself is problematic, however, because Hernandez was also a Fourth Amendment case. The particular civil rights violation at issue isn't key, the Court said. Rather, because Hernandez was a case that arose at the southern border, it implicated immigration and foreign policy in a way that both created a new context and counseled hesitation. This case too arises at the border (albeit with Canada rather than with Mexico), so the defendant and the U.S. government argue that it's more like Hernandez than like Bivens.
Much of the oral argument in Egbert focused on whether the facts only adventitiously implicate border control. Yes, Smuggler's Inn sits right at the border, but the facts aren't as dramatic as in Hernandez, which involved a cross-border shooting. Officer Egbert or one of the thousands of other law enforcement officers employed by any of the 83 federal agencies that carry out law enforcement duties could have investigated a foreign national's immigration status on property anywhere in the United States. Moreover, the First Amendment retaliation claim bears no necessary connection to border security; respondent Boule complained to Egbert's supervisor about his rough handling and then, Boule alleges, Egbert retaliated by asking the IRS to investigate Boule's tax status. So even acknowledging (as the Ninth Circuit did) that First Amendment claims are a new context because the Supreme Court hasn't previously recognized a Bivens action for them, there do not appear to be any immigration/foreign-policy-related special factors applicable to those.
There are ambiguities in the law governing what counts as a "special factor" and whether special factors get defined categorically or as-applied. And the Court has not offered an exhaustive list of what counts as a special factor. National security counts. So do foreign relations. The underlying concern, as articulated in Hernandez and other cases, seems rooted in separation of powers. Is there reason to worry that the courts lack competence to weigh the costs and benefits of a cause of action so that the issue should be left for Congress?
To my mind, that's question begging. Recognizing or not recognizing a Bivens action leaves the issue for Congress in the sense that Bivens is federal common law that Congress can supersede one way or the other. By saying that the presence of special factors entails no Bivens action, the Court's cases assume that Congress would prefer whatever countervailing considerations are present over the robust protection of civil rights. Maybe that's right, but it seems as much a normative judgment by the Court as it is a gauge of congressional sentiment. Given the difficulty of overcoming congressional inertia, it's likely that whatever the courts do in any of these cases will be a very sticky default principle. Congress is highly unlikely to reverse a decision either allowing or rejecting a Bivens action in any particular setting.
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