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June 8, 2022

SCOTUS limits reach of Bivens actions against federal government in Egbert v. Boule

Via a vote on usual "partisan" lines, the Supreme Court this morning in Egbert v. Boule, No. 21-147 (S. Ct. June 8, 2022) (available here), reversed a lower court ruling allowing a Bivens suit to move forward against a Border Patrol agent.  Though not exactly about sentencing, I suspect criminal justice fans may be interested in what was the only opinion handed down by SCOTUS today.  Here is how Justice Thomas's opinion for the Court begins:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment.  Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.  See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012); Ziglar v. Abbasi, 582 U.S. ___ (2017); Hernández v. Mesa, 589 U S. ___ (2020).  Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim.  Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.

The rulings comes with an interesting short concurrence that seems to call for overturning Bivens. And Justice Sotomayor, joined by Justices Breyer and Kagan, issues a partial dissent that starts this way:

Respondent Robert Boule alleges that petitioner Erik Egbert, a U. S. Customs and Border Patrol agent, violated the Fourth Amendment by entering Boule’s property without a warrant and assaulting him. Existing precedent permits Boule to seek compensation for his injuries in federal court. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Ziglar v. Abbasi, 582 U.S. 120 (2017).  The Court goes to extraordinary lengths to avoid this result: It rewrites a legal standard it established just five years ago, stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists. T he Court’s innovations, taken together, enable it to close the door to Boule’s claim and, presumably, to others that fall squarely within Bivens’ ambit.

Today’s decision does not overrule Bivens.  It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.  I therefore dissent from the Court’s disposition of Boule’s Fourth Amendment claim.  I concur in the Court’s judgment that Boule’s First Amendment retaliation claim may not proceed under Bivens, but for reasons grounded in precedent rather than this Court’s newly announced test.

June 8, 2022 at 10:15 AM | Permalink


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