Robert Boule v. Erik Egbert

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BOULE, No. 18-35789
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00106-
RSM
ERIK EGBERT; JANE DOE EGBERT,
and their marital community,
Defendants-Appellees. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted October 7, 2020
Seattle, Washington
Filed November 20, 2020
Amended May 20, 2021
Before: Susan P. Graber and William A. Fletcher, Circuit
Judges, and Nancy D. Freudenthal,* District Judge.
*
The Honorable Nancy D. Freudenthal, United States District Judge
for the District of Wyoming, sitting by designation.
2 BOULE V. EGBERT
Order;
Dissent to Order by Judge Bumatay;
Dissent to Order by Judge Owens;
Dissent to Order by Judge Bress;
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel amended its opinion filed on November 20,
2020, ordered the amended opinion to be filed concurrently
with the panel’s order, and denied a petition for rehearing en
banc after the matter failed to receive a majority of the votes
of the non-recused active judges in favor of en banc
consideration.
In the amended opinion, the panel reversed the district
court’s summary judgment for defendants in an action
brought pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) by a
United States citizen who alleged that a border patrol agent,
acting on plaintiff’s property within the United States,
violated plaintiff’s rights under the First and Fourth
Amendments.
Plaintiff owns, operates and lives in a bed and breakfast
in the state of Washington, on land which touches the United
States-Canada border. Plaintiff alleged that a border patrol
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOULE V. EGBERT 3
agent entered the driveway of plaintiff’s property to question
arriving guests; used excessive force against plaintiff, and
then, in response to plaintiff's complaints, retaliated against
plaintiff by, among other things, contacting the Internal
Revenue Service, asking the agency to look into plaintiff’s
tax status. The district court granted summary judgment to
defendants on plaintiff’s Fourth and First Amendment claims,
holding that claims were impermissible extensions of Bivens.
The panel held that Bivens remedies were available in the
circumstances of this case, where a United States citizen
claimed that a border patrol agent violated the Fourth
Amendment by using excessive force while carrying out
official duties within the United States and violated the First
Amendment by engaging in retaliation for protected speech.
Addressing the Fourth Amendment claim, the panel
agreed with the district court that it presented an extension of
previous Bivens cases in that Agent Egbert was an agent of
the border patrol rather than of the F.B.I. But it was a modest
extension, in that border patrol and F.B.I. agents are both
federal law enforcement officials, and in that plaintiff’s
Fourth Amendment excessive force claim was
indistinguishable from Fourth Amendment excessive force
claims that are routinely brought under Bivens against F.B.I.
agents. The panel did not find that special factors counseled
hesitation such that a Bivens action in this new context was
foreclosed. Plaintiff, a United States citizen, brought a
conventional Fourth Amendment excessive force claim
arising out of actions by a rank-and-file border patrol agent
on plaintiff’s own property in the United States. This context
was a far cry from the contexts in Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017), and Hernandez v. Mesa, 140 S. Ct. 735,
743 (2020), where the Supreme Court found that special
4 BOULE V. EGBERT
factors counseled against a Bivens action. The panel held that
any costs imposed by allowing a Bivens claim to proceed
were outweighed by compelling interests in favor of
protecting United States citizens on their own property in the
United States from unconstitutional activity by federal agents.
Addressing the First Amendment claim, the panel noted
that although the Supreme Court wrote in Hartman v. Moore,
547 U.S. 250 (2006), that Bivens extends to First Amendment
retaliation claims when federal law enforcement officials
have no innocent motives for their action, the panel
recognized that the Supreme Court has not expressly so held.
The panel therefore concluded that plaintiff’s First
Amendment retaliation claim arose in a new context.
However, the panel found no special factors that made it
inadvisable to find a cognizable Bivens claim. The panel first
noted that in Gibson v. United States, 781 F.2d 1334 (9th Cir.
1986), this court upheld a Bivens claim against federal
officers who sought to curb plaintiff’s protected First
Amendment speech. Second, although the panel recognized
that the Supreme Court declined to recognize a Bivens action
in Bush v. Lucas, 462 U.S. 367 (1983), that case involved a
very different context, arising out of an employment
relationship that was governed by comprehensive procedural
and substantive provisions giving meaningful remedies
against the United States. Third, there was even less reason
to hesitate in extending Bivens to plaintiff’s First Amendment
retaliation claim than there was to his Fourth Amendment
excessive force claim given that Agent Egbert was not
carrying out his official duties when he contacted the Internal
Revenue Service and other agencies asking for investigation
of plaintiff.
BOULE V. EGBERT 5
The panel rejected the suggestion that plaintiff had
alternative remedies that would defeat a Bivens claim. The
panel first noted that in Carlson v. Green, 446 U.S. 14 (1980),
the Supreme Court held that the existence of a remedy under
the Federal Torts Claim Act, 28 U.S.C. § 2680(h) did not
foreclose a Bivens action. Second, a state-law trespass claim
against Agent Egbert in his individual capacity was barred by
the Westfall Act. Finally, injunctive relief was an inadequate
remedy, for plaintiff was seeking damages rather than
protection against some future act.
Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges Callahan, Ikuta, Bennett,
R. Nelson, Lee and VanDyke, stated that the court had
extended Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) to two new
contexts: one involving the First Amendment and another
involving the Fourth Amendment at the border. By avoiding
the Constitution’s limits on the judicial power, the court had
become an outlier among its fellow circuit courts, established
itself as a quasi-legislature and improperly disregarded the
Supreme Court’s precedents. Judge Bumatay wrote that the
court could not respond to executive transgression of the
Constitution with its own judicial overreach; it was not within
the power of federal judges to create a cause of action for
plaintiff, no matter how convinced they were that he deserved
one.
Dissenting from the denial of rehearing en banc, Judge
Owens, referring to a law review article he wrote in 1997,
John B. Owens, Note, Judge Baer and the Politics of the
Fourth Amendment: An Alternative to Bad Man
Jurisprudence, 8 Stan. L. & Pol’y Rev. 189 (1997) (pointing
out the limitations of Bivens actions and setting forth some
6 BOULE V. EGBERT
admittedly pie in the sky solutions), stated that he continues
to believe that new legislation that permits plaintiffs to
vindicate their rights is better than the current jurisprudential
word jumble.
Dissenting from the denial of rehearing en banc, Judge
Bress, joined by Judges Bade, Collins and Hunsaker, stated
that the panel opinion in this case recognized two novel
implied rights of action under Bivens. In so doing, the panel
decision was significantly out of step with modern Supreme
Court cases emphasizing that the Bivens remedy is not to be
lightly extended. Judge Bress stated that there were many
reasons counseling hesitation in devising court-created First
and Fourth Amendment damages remedies against a federal
agent for actions relating to his investigation of an
international traveler near the international border.
COUNSEL
Breean L. Beggs (argued), Paukert & Troppmann PLLC,
Spokane; Gregory Donald Boos, W. Scott Railton, and Halley
Carlson Fisher, Cascadia Cross-Border Law, Bellingham,
Washington; for Plaintiff-Appellant.
Geoff Grindeland (argued) and Nikki Carsley, Seamark Law
Group PLLC, Bainbridge Island, Washington, for
Defendants-Appellees.
Matt Adams (argued), Northwest Immigrant Rights Project,
Seattle, Washington; Mary Kenney, American Immigration
Council, Washington, D.C.; Trina Realmuto, American
Immigration Council, Brookline, Massachusetts; for Amici
BOULE V. EGBERT 7
Curiae American Immigration Council and Northwest
Immigrant Rights Project.
ORDER
The opinion filed on November 20, 2020, and reported at
Boule v. Egbert, 980 F.3d 1309 (9th Cir. 2020), is amended,
and the amended opinion is filed concurrently with this order.
An active judge of this court sua sponte requested a vote
on whether to rehear this case en banc. A vote was taken and
the matter failed to receive a majority of the votes of the non-
recused active judges in favor of en banc consideration. See
Fed. R. App. P. 35(f). Rehearing en banc is DENIED.
Judge Bumatay’s, Judge Owens’s, and Judge Bress’s
dissents from the denial of rehearing en banc are attached and
filed concurrently with this order.
BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA,
BENNETT, R. NELSON, LEE, and VANDYKE, Circuit
Judges, dissenting from the denial of rehearing en banc:
Contrary to common belief, the Constitution’s “radical
innovation” is not its various enumerated rights—as
cherished and fundamental as they are.1 It is the
Constitution’s design for the separation of powers that has
become among the “most important contributions to human
1
Neil Gorsuch, A Republic, If You Can Keep It 40 (2019).
8 BOULE V. EGBERT
liberty.”2 Having “lived among the ruins of a system of
intermingled legislative and judicial powers,” our Founders
sensed the “sharp necessity to separate the legislative from
the judicial power.” Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 219, 221 (1995). The result is the clear division of
authorities between Congress’s “legislative powers” and the
Judiciary’s “judicial Power.” U.S. Const. art. I, § 1; id. art.
III, § 1.
In this case, we are asked to decide which branch of
government may create the legal remedies available to the
people for constitutional violations. From the ratification of
the Bill of Rights until 1971, the Judiciary has rightfully
respected the separation of powers and deferred to Congress
and the States to provide remedies for such violations. That
all changed when the Supreme Court for the first time read an
implied cause of action into the Constitution for violation of
the Fourth Amendment. See Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The Court, of course, did not ground such a ruling in the text
or history of the Constitution, but relied on the amorphous
belief that federal courts have the authority to “make good the
wrong done.” Id. at 396.
Since then, however, the Court has seemingly shown
buyer’s remorse— recognizing Bivens as a judicial usurpation
of the legislative function and blocking its expansion to any
new amendments, contexts, or defendants. In consequence,
the judicial practice of creating constitutional causes of action
is widely considered disfavored—if not a dead letter.
2
Id.BOULE V. EGBERT 9
Against this current, our court charges ahead, resurrecting
Bivens in spite of the Court’s clear instructions. Here, we
extend Bivens to two new contexts: one involving the First
Amendment and another involving the Fourth Amendment at
the border. Never mind that the Court has never extended
Bivens to the First Amendment. And never mind that it has
never extended Bivens to any case with national security
implications.
By avoiding the Constitution’s limits on the “judicial
Power,” we become an outlier among our fellow circuit
courts and establish ourselves as a quasi-legislature. Because
we far exceeded our limited judicial role and improperly
disregarded the Court’s precedents in this case, I respectfully
dissent from the denial of rehearing en banc.
I.
Robert Boule operates a bed and breakfast located directly
adjacent to the border with Canada, in Blaine, Washington.
Boule v. Egbert, 980 F.3d 1309, 1312 (9th Cir. 2020). The
B&B is aptly called “Smuggler’s Inn,” because it’s a
notorious site for illegal border crossing.3 Large shipments
of cocaine, methamphetamine, ecstasy, and opiates have
previously been intercepted at Smuggler’s Inn. U.S. Border
Patrol Agent Erik Egbert knew about this history. In fact, as
a Border Patrol Agent investigating counterterrorism and
cross-border crimes, Agent Egbert had been to Smuggler’s
Inn many times while on patrol and had apprehended persons
who had illegally crossed the border at the spot.
3
Boule has since been arrested by Canadian authorities and charged
with human trafficking.
10 BOULE V. EGBERT
While on duty, Agent Egbert encountered Boule in town.
To Egbert’s recollection, Boule told him that a Turkish
national would be arriving at Smuggler’s Inn that day. Boule
said that two of his employees went to the airport to pick up
the individual. Agent Egbert decided to investigate the
Turkish national’s arrival.
Later that day, Agent Egbert waited in his patrol car near
Smuggler’s Inn for the Turkish guest. When the vehicle
transporting the guest arrived, Agent Egbert followed it into
the Inn’s driveway. As Egbert approached, Boule asked the
agent to leave. Agent Egbert refused, so Boule stepped
between Egbert and the vehicle. Agent Egbert responded by
pushing him to the ground, which later caused him to seek
medical treatment. Agent Egbert then determined that the
Turkish guest was lawfully in the country. Afterward, Boule
complained to Egbert’s superiors about the incident. In
retaliation, Boule says, Agent Egbert contacted the Internal
Revenue Service (asking it to investigate Boule’s tax status)
and various other government agencies.
Boule then brought this suit—filing Bivens claims for
damages under the First and Fourth Amendment. First, Boule
asserts that Agent Egbert violated his First Amendment rights
by retaliating against him for complaining to the agent’s
superiors about the incident. Second, Boule contends that
Agent Egbert violated his Fourth Amendment rights when he
came onto his property, refused to leave, and pushed him to
the ground.
The district court granted summary judgment in favor of
Agent Egbert, refusing to extend Bivens under either
amendment. Boule appealed, and the panel reversed. That
was error.
BOULE V. EGBERT 11
II.
The text of the Constitution provides for no express cause
of action for damages against federal officials for violations
of its provisions. And for almost 200 years, no implied cause
of action existed under the Constitution either. That did not
mean that remedies were unavailable for constitutional
infringements by federal officials. Indeed, it was considered
axiomatic at the Founding that for every “legal right, there is
also a legal remedy.” Marbury v. Madison, 5 U.S. 137, 163
(1803) (discussing 3 William Blackstone, Commentaries
*23). But Founding-era courts did not fashion their own
damages remedy under the Constitution.
Instead, from “the beginning of the nation’s history,”
federal courts have recognized that federal officials were
subject to “common law suits,” which served as the remedy
to their legal violations “as if they were private individuals.”
Carlos M. Vázquez & Stephen I. Vladeck, State Law, the
Westfall Act, and the Nature of the Bivens Question, 161 U.
Pa. L. Rev. 509, 531 (2013). Thus, at our Founding, “only
state law . . . furnished any redress for . . . unconstitutional
conduct by federal officials.” Akhil Reed Amar, Of
Sovereignty and Federalism, 96 Yale L.J. 1425, 1506 (1987)
(describing the remedy for the unconstitutional search of
one’s home).
The Supreme Court’s “early adopted” rule was that a
“government agent [was] personally liable for the breach of
any duty imposed by the common law or by statute unless”
the action was authorized by federal law. Note,
Developments in the Law: Remedies Against the United
States and Its Officials, 70 Harv. L. Rev. 827, 831–32 (1957).
Under that rule, if the plaintiff could establish that the
12 BOULE V. EGBERT
official’s conduct violated the Constitution, the “defendant’s
shield of federal power would dissolve, and he would stand
as a naked [state-law] tortfeasor.” Amar, supra, at 1506–07.
An early example of this remedial framework occurred
during the Quasi-War between the United States and France
in the administration of President John Adams. See Little v.
Barreme, 6 U.S. 170 (1804). At the time, a federal statute
authorized the President to order navy officers to seize ships
sailing to France. Id. at 170–73. But in the case, the
commander of an American warship had seized a Danish
cargo ship sailing from France. Id. The ship’s owner sued
for trespass damages. Id. at 179. The Supreme Court upheld
the naval officer’s liability to suit because federal law did not
warrant the capture of the ship. Id. at 176. As Chief Justice
Marshall explained, a federal officer acting under federal law
does so “at his peril;” if the officer’s actions “are not strictly
warranted by law[,] he is answerable in damages to any
person injured by [the action’s] execution.” Id. at 170.
This view persisted through the Civil War, when tort suits
were used against alleged federal government excesses.
Andrew Kent, Are Damages Different?: Bivens and National
Security, 87 S. Cal. L. Rev. 1123, 1163–64 (2014) (describing
how “thousands of tort suits were filed against Union soldiers
and civilian executive officials” during the Civil War).
The Supreme Court continued to adhere to this framework
through most of the 20th century. In 1963, the Court still
recognized that “[w]hen it comes to suits for damages for
abuse of power, federal officials are usually governed by
local law.” Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963).
In the Court’s view, “[f]ederal law” may “suppl[y] the
defense, if the conduct complained of was done pursuant to
BOULE V. EGBERT 13
a federally imposed duty or immunity from suit.” Id.(simplified). But it saw no occasion to create constitutional
causes of action. In that case, a plaintiff sought to sue federal
officers for serving a subpoena in violation of the Fourth
Amendment. Id. at 649. Acknowledging the central role of
the legislative branch in fashioning such a claim, the Court
held that Congress had passed “no general statute making
federal officers liable for acts committed ‘under color,’ but in
violation, of their federal authority.” Id. at 652. “Congress
could, of course, provide otherwise, but it has not done so.”
Id.Less than a decade later, however, the Court altered this
framework. In 1971, the Supreme Court concluded for the
first time that the violation of a constitutional protection—in
this case, the Fourth Amendment—could give rise to a cause
of action for money damages against federal agents. Bivens,
403 U.S. at 392, 397. While the Court conceded that the
Fourth Amendment’s text did not authorize such damages, it
relied on the lack of any “explicit congressional declaration”
foreclosing money damages and reasoned that no “special
factors” counseled the Court to “hesitat[e]” to create a
remedy in the absence of affirmative action by Congress. Id.at 396–97.
In the ten years following Bivens, the Court went on to
accept implied causes of action for constitutional violations
in only two additional cases. In 1979, the Court held that a
federal employee could sue a congressman for gender
discrimination under the Fifth Amendment’s Due Process
Clause. See Davis v. Passman, 442 U.S. 228 (1979). One
year later, the Court held that a prisoner could sue federal
prison officials for failing to adequately treat his medical
conditions under the Eighth Amendment’s Cruel and Unusual
14 BOULE V. EGBERT
Punishments Clause. See Carlson v. Green, 446 U.S. 14(1980). This was the last time the Court has recognized a
new Bivens claim.
Since then, the Court has backtracked on its adoption of
implied rights of action under the Constitution. In fact, the
Court has repeatedly refused to extend Bivens liability at
all—not to any other amendment, new context, or category of
defendants. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68
(2001). By one count, the Court has expressly refused to
extend Bivens on ten separate occasions. See Loumiet v.
United States, 948 F.3d 376, 381 (D.C. Cir. 2020).4 Instead,
Bivens and its progeny have been cast as a “relic” of the
“heady days in which [the] Court assumed common-law
powers to create causes of action.” Corr. Servs. Corp.,
534 U.S. at 75 (Scalia, J., concurring); see also Hernandez v.
Mesa, 140 S. Ct. 735, 750 (2020) (Thomas, J., concurring)
(“The foundation for Bivens—the practice of creating implied
causes of action in the statutory context—has already been
abandoned.”).
What brought about this change in the Court’s
jurisprudence? Well, since the 1980s, the Court has come to
“appreciate more fully the tension between this practice [of
creating causes of action] and the Constitution’s separation of
legislative and judicial power.” Hernandez, 140 S. Ct. at 741.
As the Court recognized, it is “a significant step under
4
Three times due to the availability of alternative remedies; three
times due to its national security or military context; and three times
because of the involvement of new categories of defendants, such as
private individuals, private corporations, and federal agencies. Loumiet,
948 F.3d at 381 (collecting cases). And once, simply because the Court
decided that Congress is in a better position to craft a remedy for alleged
retaliation by federal officials. Id.
BOULE V. EGBERT 15
separation-of-powers principles for a court to determine that
it has the authority, under the judicial power, to create and
enforce a cause of action for damages against federal officials
in order to remedy a constitutional violation.” Ziglar v.
Abbasi, 137 S. Ct. 1843, 1856 (2017). Such action “risks
arrogating legislative power.” Hernandez, 140 S. Ct. at 741.
Fundamentally, “Congress is best positioned to evaluate
whether, and the extent to which, monetary and other
liabilities should be imposed upon individual officers and
employees of the Federal Government based on constitutional
torts.” Id. at 742 (simplified). Thus, the Court has made
clear that the expansion of Bivens is a “‘disfavored’ judicial
activity.” Abbasi, 137 S. Ct. at 1857 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)).
For that reason, the Court has adopted a two-step process
to limit the recognition of new constitutional remedies. See
Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The first
question asks whether the claim arises in a context different
from what the Court has previously recognized. Hernandez,
140 S. Ct. at 743. If so, the next question considers whether
any special factors counsel hesitation before expanding
Bivens to that new context. Id.
To decide whether any “special factors” bar the extension
of Bivens, the inquiry focuses on “who should decide whether
to provide for a damages remedy.” Abbasi, 137 S. Ct. at 1857
(simplified). This analysis includes consideration of “the risk
of interfering with the authority of the other branches,”
“whether there are sound reasons to think Congress might
doubt the efficacy or necessity of a damages remedy,” and
“whether the Judiciary is well suited . . . to consider and
16 BOULE V. EGBERT
weigh the costs and benefits of allowing a damages action to
proceed.” Hernandez, 140 S. Ct. at 743 (simplified).
The threshold for what constitutes a “special factor”
counseling hesitation is “remarkably low.” Arar v. Ashcroft,
585 F.3d 559, 574 (2d Cir. 2009). Hesitation is counseled
whenever “thoughtful discretion” would cause us to pause to
even “consider” recognizing a new context. Id. If any
special factors do exist, “then courts must refrain from
creating an implied cause of action in that case.” Canada v.
United States, 950 F.3d 299, 309 (5th Cir. 2020) (simplified).
In other words, “if [the court has] reason to pause before
applying Bivens in a new context or to a new class of
defendants—[the court must] reject the request.” Hernandez,
140 S. Ct. at 743. The lesson from the Court is, thus, a strong
presumption against expanding Bivens. When answering the
ultimate question of who should decide on the creation of a
new cause of action, the answer is almost always Congress.
Against this legal backdrop, the court clearly erred in
extending Bivens to two new contexts in this case.
III.
At bottom, this case distills down to the question of who
should decide whether a right of action should exist for
alleged violations of the First Amendment and of the Fourth
Amendment in the border enforcement context. This court’s
answer: Judges. Rather than deferring to Congress, we
casually craft for Boule new causes of action for his
constitutional claims. This flies in the face of everything the
Court has told us over the last 20 years and ignores our
Constitution’s core separation-of-powers concern. We should
have corrected this error on en banc review.
BOULE V. EGBERT 17
A.
In summary fashion, the panel found no reason to pause
before extending Bivens to Boule’s First Amendment claim.
See Boule, 980 F.3d at 1316. It reasoned that retaliation is a
well-known claim against government officials and that
Agent Egbert’s alleged retaliatory conduct was not related to
his official duties as a Border Patrol agent. Id. The panel
also did not think any alternative remedies existed for Boule.
Id. at 1316–17. In its amended opinion, the panel newly
relies on dictum from Hartman v. Moore, 547 U.S. 250, 256
(2006).
While the panel could think of no reasons to hesitate,
there are at least four: (1) congressional silence, (2) Supreme
Court precedent, (3) the precedent of our fellow circuits, and
(4) the various potential alternative remedies available to
Boule.
1.
Most fundamentally, the panel should not have created a
new First Amendment cause of action because that is the
business of Congress, not the courts.
Liberty, Hamilton famously warned, has “every thing to
fear” from the union of these two powers. The Federalist No.
78 (Alexander Hamilton). But, he explained, “the general
liberty of the people can never be endangered . . . so long as
the judiciary remains truly distinct” from the legislature. Id.In 1625, Francis Bacon similarly cautioned that “[j]udges
ought to remember that their office is jus dicere, and not jus
dare; to interpret law, and not to make law, or give law.”
Francis Bacon, The Essays of Francis Bacon 251, 251 (Mary
18 BOULE V. EGBERT
Augusta Scott, ed. 1908). So, as federal judges, our limited
role is “to say what the law is,” and nothing more. Marbury,
5 U.S. at 177. Conversely, it is “the exclusive province of the
Congress” to craft legislation. Tenn. Valley Auth. v. Hill,
437 U.S. 153, 194 (1978).
The panel dispensed with these principles when it created
a cause of action against federal officers for retaliation under
the First Amendment. The text of that amendment is, of
course, not amenable to this construction: it prescribes only
that “Congress shall make no law . . . abridging the freedom
of speech.” U.S. Const. amend. I. Indisputably, this provision
does not create a private cause of action. Rather, it sets out a
“fundamental law, limiting the powers of the Legislature, and
with which every exercise of those powers must, necessarily,
be compared.”5
Neither can Congress’s failure to create such a remedy be
characterized as accidental or unknowing. In 1946, Congress
passed the Federal Tort Claims Act, “which waived the
sovereign immunity of the United States for certain torts
committed by federal employees.” Brownback v. King,
141 S. Ct. 740, 746 (2021) (quoting F.D.I.C. v. Meyer,
510 U.S. 471, 475 (1994)); see 28 U.S.C. §§ 1346(b)(1),
2674. Congress has also created a right of action for
constitutional violations by state actors. See 42 U.S.C.
§ 1983. But insofar as Congress, through the FTCA and
§ 1983, has not provided a remedy to Boule for his retaliation
claim, the separation of powers commands that we must
respect that silence. See Oliva v. Nivar, 973 F.3d 438, 444
5
Letter from James Iredell to Richard Spaight (Aug. 26, 1787), in
Gordon Wood, The Creation of the American Republic 1776–1787, at 461
(1969).
BOULE V. EGBERT 19
(5th Cir. 2020) (the “silence of Congress” is a special factor
counseling hesitation) (quoting Abbasi, 137 S. Ct. at 1862).
Especially because, as the FTCA and § 1983 demonstrate,
“Congress . . . knows how to create a cause of action to
recover damages for constitutional violations when it wishes
to do so.” Hernandez, 140 S. Ct. at 752 (Thomas, J.,
concurring).
2.
We also should have hesitated because the Supreme Court
has expressly declined to extend Bivens to the First
Amendment context. Back in 1983, even during the heyday
of Bivens expansions, the Court refused to allow a federal
employee to sue his supervisor for retaliatory demotion under
the First Amendment. See Bush v. Lucas, 462 U.S. 367(1983). The Court assumed that the federal agency violated
his First Amendment right but still declined to create a new
Bivens remedy for the employee. Id. at 372, 390. In doing
so, the Court declined to say whether it was “good policy to
permit a federal employee to recover damages from a
supervisor who has improperly disciplined him for exercising
his First Amendment rights.” Id. at 390. Instead, the Court
concluded that “Congress is in a better position to decide
whether or not the public interest would be served by creating
it.” Id. Since then, the Court’s position has not changed. See
Iqbal, 556 U.S. at 675 (“Indeed, we have declined to extend
Bivens to a claim sounding in the First Amendment.”);
Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have
never held that Bivens extends to First Amendment claims.”).
The amended opinion now justifies its holding based on
dictum in Hartman. See Am. Op. 41–44. There, the Court
resolved the narrow issue of whether a plaintiff must plead
20 BOULE V. EGBERT
and show a lack of probable cause to bring a First
Amendment retaliatory prosecution claim under Bivens.
Hartman, 547 U.S. at 256. But rather than holding such a
Bivens remedy exists, the Court appeared to assume it did. In
doing so, the Court offered a single line that the panel now
touts: “[w]hen the vengeful officer is federal, he is subject to
an action for damages on the authority of Bivens.” Id. It is
clear this line was not part of the Court’s analysis since it
later qualified that its holding was limited to the
“requirement[s] of causation, which [the plaintiff] must plead
and prove in order to win, and our holding does not go
beyond a definition of an element of the tort.” Id. at 257 n.5.
As the panel concedes, the line’s status as dictum is
confirmed by the later Court cases confirming that it has
never extended Bivens to the First Amendment.
By relying on this stray line, we are again an outlier
among our sister courts. Several circuit courts have expressly
declined to read Hartman the way that our court does. See
Bistrian v. Levi, 912 F.3d 79, 95–96 (3d Cir. 2018)
(repudiating the Third Circuit’s earlier reliance on Hartman
to extend Bivens to the First Amendment claim); Johnson v.
Burden, 781 F. App’x 833, 836–37 (11th Cir. 2019)
(explaining that “the Hartman language was mere dicta”);
Storms v. Shinseki, 319 F. Supp. 3d 348, 354 (D.D.C. 2018)
(calling reliance on Hartman an “understandable mistake”
and explaining that “[d]ecisions since Hartman have
consistently said that the Supreme Court has not approved a
First Amendment Bivens claim”), aff’d, 777 F. App’x 522
(D.C. Cir. 2019).
At the end of the day, the Supreme Court’s reluctance to
expand Bivens in the same context is itself a factor that
counsels hesitation here.
BOULE V. EGBERT 21
3.
The panel’s Bivens extension puts us out of step with our
sister courts, too. Since the adoption of the “counsels
hesitation” test in 2007, circuit courts have nearly uniformly
refused to extend Bivens to the First Amendment. The
Second, Fourth, Sixth, and D.C. Circuits have all refused to
extend the doctrine to the First Amendment.6 Even courts
that have not expressly made such a ruling have nonetheless
expressed skepticism that Bivens could be expanded to the
First Amendment.7
To be sure, the Third Circuit has recognized a First
Amendment Bivens claim in more recent times. See Mack v.
Warden Loretto FCI, 839 F.3d 286, 296–97 (3d Cir. 2016).
But importantly, the Third Circuit later backtracked on that
6
See, e.g., Davis v. Billington, 681 F.3d 377, 388 (D.C. Cir. 2012);
Turkmen v. Hasty, 789 F.3d 218, 236 (2d Cir. 2015); Doe v. Meron,
929 F.3d 153, 169 (4th Cir. 2019); Callahan v. Fed. Bureau of Prisons,
965 F.3d 520, 523–24 (6th Cir. 2020). The D.C. Circuit recognized a First
Amendment Bivens claim in Haynesworth v. Miller, 820 F.2d 1245, 1255
(D.C. Cir. 1987), and Moore v. Valder, 65 F.3d 189, 196 n.12 (D.C. Cir.
1995), but has since held that those cases “have been overtaken by
Abbasi[.]” Loumiet, 948 F.3d at 382.
7
See Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35 (1st Cir. 2011)
(noting that it is “questionable whether Bivens extends to cases asserting
a violation of First Amendment rights or retaliation for the exercise of
those rights”); Walden v. Ctrs. for Disease Control & Prevention,
669 F.3d 1277, 1284 n.3 (11th Cir. 2012) (declining to decide whether
Bivens reaches the First Amendment, but noting that “the Court has
repeatedly declined to imply a Bivens remedy in a variety of contexts”);
Pahls v. Thomas, 718 F.3d 1210, 1226 n.6 (10th Cir. 2013) (“[T]he Court
has never held that a Bivens action is available against federal officials for
a claim based upon the First Amendment.”); Brunson v. Nichols, 875 F.3d
275, 279 n.3 (5th Cir. 2017).
22 BOULE V. EGBERT
decision, explaining that recent Supreme Court precedent
“clearly communicates that expanding Bivens beyond those
contexts already recognized by the Supreme Court is
disfavored” and that it is Court precedent, “not our own prior
precedent, that must guide us now.” Bistrian, 912 F.3d at 95.
The panel’s decision also creates a conflict within our
own court. Although we had long ago recognized a First
Amendment Bivens claim, see Gibson v. United States,
781 F.2d 1334, 1342 (9th Cir. 1986), we recently refused to
find an implied cause of action to assert such a claim against
private prison officials, see Vega v. United States, 881 F.3d
1146 (9th Cir. 2018). In declining to extend Bivens, we
looked to the remedies available to the plaintiff under
administrative procedures, federal regulations, state law, and
the FTCA. Id. at 1154. We held that “[e]xpanding Bivens in
this context . . . seems imprudent given the Court’s
admonition that ‘any alternative, existing process for
protecting the interest amounts to a convincing reason for the
Judicial Branch to refrain from providing a new and
freestanding remedy in damages.’” Id. at 1155 (quoting
Wilkie, 551 U.S. at 550).
At the end of the day, we are the only federal appellate
court in the nation trying to resurrect Bivens against the
weight of the Court’s precedents. This also counsels
hesitation on our part.
4.
As we did in Vega, we should have looked at the potential
for alternative remedies before casually expanding Bivens to
Boule’s new First Amendment context. An alternative
remedy is sufficient to foreclose a Bivens extension even if it
BOULE V. EGBERT 23
does “not provide complete relief,” Bush, 462 U.S. at 388, so
“long as Congress’ failure to provide money damages, or
other significant relief, has not been inadvertent, courts
should defer to its judgment,” Berry v. Hollander, 925 F.2d
311, 314 (9th Cir. 1991) (simplified). Under this low bar, we
had ample reason to deny a Bivens extension.
To make his First Amendment claim, Boule asserts that
Agent Egbert contacted the Internal Revenue Service and
asked it to investigate Boule’s tax status in retaliation for
Boule’s complaints of the agent’s misconduct. He also
alleges that Agent Egbert made unjustified complaints to
various other regulatory agencies.
To the extent that Boule alleges that Egbert unlawfully
disclosed sensitive information about him, and that Egbert did
so using information available to him because of his position
with Border Patrol, he appears to be raising a Privacy Act
violation. The Privacy Act requires agencies (such as the
U.S. Border Patrol) to establish safeguards “to insure the
security and confidentiality of records” and protect against
disclosures that “could result in substantial harm,
embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.” 5 U.S.C.
§ 552a(e)(10). Congress gave that mandate teeth by enacting
civil remedies to enforce it. Id. § 552a(g)(1). As a result, a
plaintiff may bring a civil action against an agency whenever
it fails to comply with the Privacy Act’s requirements “in
such a way as to have an adverse effect on an individual.” Id.
§ 552a(g)(1)(D).
Second, Boule may have an alternative remedy under the
tax laws. If Boule alleges that Agent Egbert or someone at
the IRS revealed confidential tax information, he might have
24 BOULE V. EGBERT
considered bringing a suit under 26 U.S.C. § 6103. That
section provides that no “officer or employee of the United
States” may “disclose any return or return information
obtained by him in any manner in connection with his service
as such an officer or an employee or otherwise.” Id.Third, Boule has a variety of state law claims at his
disposal. For instance, Washington courts recognize the tort
of outrage for when a defendant engages in “extreme and
outrageous conduct.” See Spicer v. Patnode, 9 Wash. App.
2d 283, 292 (2019). Or he might have availed himself of one
of the several privacy torts that Washington recognizes. See
Eastwood v. Cascade Broad. Co., 106 Wash. 2d 466, 469
(1986) (“The protectable interest in privacy is generally held
to involve four distinct types of invasion: intrusion,
disclosure, false light and appropriation.”). Washington also
has an anti-harassment statute meant to address “invasions of
a person’s privacy by acts and words showing a pattern of
harassment designed to coerce, intimidate, or humiliate the
victim.” Wash. Rev. Code Ann. § 10.14.010. If Boule
alleges that Egbert was lying about him, then Boule could
have a claim for defamation. See Seaquist v. Caldier,
8 Wash. App. 2d 556, 564 (2019) (“A prima facie defamation
claim requires a plaintiff to prove falsity, an unprivileged
communication, fault, and damages.”).8
8
The panel summarily concluded that the Westfall Act would bar any
state law remedies to redress Boule’s First Amendment claim. Boule, 980
F.3d at 1316. But this appears to be incorrect. The Westfall Act only
applies when the Attorney General certifies that “the employee was acting
within the scope of his office or employment at the time of the incident out
of which the claim arose.” Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 420 (1995) (simplified). Here, the panel found Agent Egbert’s
alleged retaliation “had no relation to, or justification based on, his duties
as a border patrol agent,” Boule, 980 F.3d at 1316, and so the Westfall Act
BOULE V. EGBERT 25
The panel was, accordingly, wrong to suggest that Boule
had no avenue for relief for his First Amendment claim. That
Boule had several potential remedies is a “convincing reason
. . . to refrain from providing a new and freestanding remedy
in damages.” Wilkie, 551 U.S. at 550. Indeed, the existence
of just one alternative remedy is generally the end of the
inquiry, Ziglar, 137 S. Ct. at 1865—even if that remedy is not
“perfect,” Adams v. Johnson, 355 F.3d 1179, 1185 n.3 (9th
Cir. 2004).
* * *
All in all, our court today ignores several reasons to
hesitate before extending Bivens to a First Amendment
retaliation claim. Congress’s silence is evidence that it would
question the propriety of the remedy we draft, especially
given the other statutory means for redress. The Court has
also expressly refused to extend Bivens to the First
Amendment; our fellow circuits have uniformly followed
suit. And finally, Boule has alternative remedies available
thanks to both Congress and the state of Washington.
B.
Turning to Boule’s Fourth Amendment claim for
excessive force and unlawful search, given the national
security implications of that claim, the panel should have also
declined to extend Bivens to this new context.
would not apply. The amended opinion similarly concedes that Egbert
“was not carrying out official duties” when he allegedly retaliated against
Boule. Am. Op. at 44.
26 BOULE V. EGBERT
Frankly, this should have been an easy call. The Court
has very clearly laid out its instructions regarding Bivens
expansions in the border enforcement context, which
implicates an “element of national security.” Hernandez,
140 S. Ct. at 746. The Court first recognized the Executive’s
prerogative to “protect[] this country . . . by attempting to
control the movement of people and goods across the border.”
Id. Included in this responsibility is the need to combat
illegal cross-border traffic and powerful criminal
organizations operating on both sides of the border. Id. The
Court also acknowledged that Border Patrol agents are
charged with the enormous task of responding to “terrorists,
drug smugglers and traffickers, human smugglers and
traffickers, and other persons who may undermine the
security of the United States.” Id. (quoting 6 U.S.C.
§ 211(c)(5)).
The Court thus firmly concluded that judges should
refrain from extending Bivens when doing so would interfere
with border enforcement. Id. at 747. “Since regulating the
conduct of agents at the border unquestionably has national
security implications, the risk of undermining border security
provides reason to hesitate before extending Bivens into this
field.” Id. Decisions about our national security are
“delicate, complex, and involve large elements of prophecy
for which the Judiciary has neither aptitude, facilities, nor
responsibility.” Id. at 749 (simplified). The judicial intrusion
into the border enforcement space is even more acute given
that the “risk of personal damages liability” may “cause an
official to second-guess difficult but necessary decisions
concerning national-security policy.” Abbasi, 137 S. Ct.
at 1861. In other words, national security, and specifically,
the conduct of agents at the border, is a red light to Bivens
extensions.
BOULE V. EGBERT 27
Here, Agent Egbert is assigned to a unit that patrols the
U.S.-Canadian Border and focuses on counterterrorism,
cross-border crime, and drug and human trafficking.
Smuggler’s Inn is a notorious site of illegal border crossing,
where the smuggling of people, drugs, illicit money, and
other criminal objects frequently occurs. It also sits directly
adjacent to Canada; if it were any closer, the property would
be straddling the border.
On the date of the incident, while patrolling the area near
Smuggler’s Inn, Boule informed Agent Egbert that he would
have a guest arriving from Turkey. While the exact details of
the exchange between Boule and Agent Egbert are disputed,
it is uncontested that Agent Egbert considered the information
he received from Boule significant enough to investigate the
arrival of the Turkish national. Agent Egbert became
concerned that the Turkish national was planning to cross the
border north into Canada or meet up with persons coming
south into the United States for a criminal purpose. Based on
this concern, Agent Egbert entered Boule’s property, which
led to the incidents at issue in the Fourth Amendment claim.
Thus, the subject of this litigation is a Border Patrol
agent’s conduct during an on-duty investigation of a foreign
national, at a property known for smuggling activity, adjacent
to an international border. Our hesitation to legislate in this
area should have been uncontroversial. Given the national
security implications of this case, we should have deferred to
Congress to determine if a cause of action should lie with
Fourth Amendment claims like Boule’s.
Moreover, judicially crafting a Bivens action here could
lead to a slew of unintended consequences, which we are not
competent to evaluate. As the district court forewarned,
28 BOULE V. EGBERT
[T]he risk of personal liability would cause
Border Patrol agents to hesitate and second
guess their daily decisions about whether and
how to investigate suspicious activities near
the border, paralyzing their important border-
security mission. Likewise, . . . Congress is in
the best position to evaluate the costs and
benefits of a new legal remedy, particularly
when it has already granted Border Patrol
broad authority to secure the international
border without providing a damages remedy
for claims arising in that context.
Boule v. Egbert, No. C17-0106 RSM, 2018 WL 4078852,
at *4 (W.D. Wash. Aug. 24, 2018) (citations omitted).
Finally, the panel plowed forward even though Boule has
already availed himself of a congressionally enacted remedy.
The record reveals that Boule filed a tort claim with Customs
and Border Protection for injuries arising out of the incident
with Agent Egbert. He was able to do so because of the
administrative remedy provided by the FTCA.9 Even if the
FTCA remedy does not provide the “exact same kind of
relief” as Bivens, the mere existence of such an alternative is
reason to hesitate here. Oliva, 973 F.3d at 444.
We should have corrected this Bivens error on en banc
review.
9
See 28 C.F.R. § 14.2; 28 U.S.C. § 2401; see also David C. Sarnacki,
Filing an Administrative Claim Under the Federal Tort Claims Act, Wis.
B. Bull. (Sept. 1988); see also Claims for property damages or loss, or
personal injury, or death, U.S. Customs and Border Protection,
https://help.cbp.gov/s/article/Article-178.
BOULE V. EGBERT 29
IV.
The Constitution is a document of remarkable importance.
Carefully following its commands is all that keeps us a
government of laws and not of men. It is thus a matter of
great seriousness when federal officials violate the Bill of
Rights.
Yet, that same reverence for the Constitution leads me
unambiguously to my conclusion today. We cannot respond
to executive transgression of the Constitution with our own
judicial overreach. As federal judges, it is not within our
power to create a cause of action for Robert Boule, no matter
how convinced we are that he deserves one.
Today, our court sanctions judicial legislation against the
clear weight of Supreme Court precedent. And against the
clear text of the Constitution. With respect, I dissent.
OWENS, Circuit Judge, dissenting from the denial of
rehearing en banc:
Congress didn’t care what I thought back in 1997 when I
was 25 years old, and it probably cares less now as I approach
50. And though hopefully I’ve improved with age, our
Bivens jurisprudence has not. I continue to believe that new
legislation that permits plaintiffs to vindicate their rights is
better than our current jurisprudential word jumble. See John
B. Owens, Note, Judge Baer and the Politics of the Fourth
Amendment: An Alternative to Bad Man Jurisprudence,
8 Stan. L. & Pol’y Rev. 189 (1997) (pointing out the
30 BOULE V. EGBERT
limitations of Bivens actions and setting forth some
admittedly pie in the sky solutions).
BRESS, Circuit Judge, joined by BADE, COLLINS, and
HUNSAKER, Circuit Judges, dissenting from the denial of
rehearing en banc:
The panel opinion in this case recognizes two novel
implied rights of action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In so doing, the panel decision is significantly out of step with
modern Supreme Court cases emphasizing that the Bivens
remedy is not to be lightly extended. See, e.g., Hernandez v.
Mesa, 140 S. Ct. 735, 742–43 (2020); Ziglar v. Abbasi, 137 S.
Ct. 1843, 1857–58 (2017).
The causes of action that the panel fashioned arise in a
decidedly new context from those few previous cases in
which a Bivens remedy was permitted. See Hernandez,
140 S. Ct. at 743–44. And while the panel discerned no
“special factors counseling hesitation” in creating two new
Bivens causes of action, Abbasi, 137 S. Ct. at 1857, I think it
self-evident that there are many reasons counseling hesitation
in devising court-created First and Fourth Amendment
damages remedies against a federal agent for actions relating
to his investigation of an international traveler near the
international border. Judge Bumatay’s separate dissent
forcefully highlights some of these reasons.
BOULE V. EGBERT 31
Because the panel decision is inconsistent with the
Supreme Court’s directives on Bivens remedies, I respectfully
dissent from the denial of rehearing en banc.
OPINION
W. FLETCHER, Circuit Judge:
The Supreme Court first recognized an implied right of
action for damages against federal officers in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). The Court held that damages were
recoverable directly under the Fourth Amendment when
federal officers arrested and searched the plaintiff without a
warrant or probable cause, and when they employed
unreasonable force in making the arrest. Id. at 389, 395–96.
In the years after Bivens, the Court also has recognized
implied rights of action for damages under the Fifth and
Eighth Amendments. See Davis v. Passman, 442 U.S. 228(1979) (recognizing a damages remedy for a gender
discrimination claim against a United States Congressman
under the equal protection component of the Fifth
Amendment Due Process Clause); Carlson v. Green,
446 U.S. 14 (1980) (recognizing a damages remedy against
federal prison officials for failure to provide adequate
medical treatment under the Eighth Amendment’s Cruel and
Unusual Punishment Clause).
We are asked to decide whether a Bivens damages remedy
is available to a United States citizen plaintiff who contends
that a border patrol agent, acting on the plaintiff’s property
within the United States, violated his rights under the First
32 BOULE V. EGBERT
and Fourth Amendments. Although the Supreme Court has
made clear that “expanding the Bivens remedy is now a
disfavored judicial activity,” a Bivens remedy is still available
in appropriate cases and there are “powerful reasons” to
retain it in its “common and recurrent sphere of law
enforcement.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)
(internal quotation marks omitted).
In considering possible extensions of Bivens, we engage
in a “two-step inquiry,” “first inquir[ing] whether the request
involves a claim that arises in a ‘new context’ or involves a
‘new category of defendants’” and then “ask[ing] whether
there are any ‘special factors that counsel hesitation.’”
Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020) (citing Abbasi,
137 S.Ct. at 1859). Applying this framework, we reverse the
district court and hold that Boule may pursue a Bivens
remedy for his First and Fourth Amendment claims.
I. Background
Because this case comes before us on an appeal of a grant
of summary judgment for Defendant, we draw all reasonable
factual inferences in favor of Plaintiff, Robert Boule. Tolan
v. Cotton, 572 U.S. 650, 656–57 (2014). We recite the facts
viewed through that lens.
Boule is a United States citizen. He owns, operates, and
lives in a small bed and breakfast inn in Whatcom County, in
the city of Blaine, Washington. The back property line of the
land on which the inn is located touches the United States-
Canada border. At the time of the events in question, Boule
was a paid informant for the government. He had been an
informant for the Border Patrol beginning in about 2003 and
for Immigration and Customs Enforcement beginning in
BOULE V. EGBERT 33
about 2008. Information provided by Boule about guests at
his inn had resulted in numerous arrests.
On March 20, 2014, Border Patrol Agent Erik Egbert
stopped Boule while he was running errands “in town” and
asked him about guests staying at the inn. Boule told Egbert
that he had a guest arriving that day from New York who had
flown in from Turkey the day before. Boule told him that
two of his employees were en route to pick up the guest at
Seattle-Tacoma (“Sea-Tac”) International Airport, about 125
miles south of Blaine. Later that day, Egbert waited in his
border patrol vehicle near the inn. The entrance to the inn is
on a road at the front of the property. When the guest arrived,
Egbert followed the car carrying the arriving guest into the
driveway of the inn.
Agent Egbert got out of his vehicle and approached the
car. From the front porch of the inn, Boule asked Egbert to
leave. When Egbert refused, Boule stepped between Egbert
and the car and again asked him to leave. Egbert then shoved
Boule against the car. When Boule did not move away from
the car, Egbert grabbed him and pushed him aside and onto
the ground.
Agent Egbert then opened the car door and asked the
guest about his immigration status. Boule made a 911 call to
request a supervisor. Egbert also relayed the request over
dispatch. A supervisor and another agent arrived in response.
After concluding that the guest was lawfully in the country,
the three officers departed. Boule later sought medical
treatment for injuries to his back.
After Boule complained to Agent Egbert’s superiors
about the incident, Egbert retaliated against Boule. Egbert
34 BOULE V. EGBERT
contacted the Internal Revenue Service, asking the agency to
look into Boule’s tax status. The Service conducted an audit
of several years of Boule’s tax returns, and Boule paid over
$5,000 to his accountant to assist him in responding to the
audit. Egbert also contacted the Social Security
Administration, the Washington State Department of
Licensing, and the Whatcom County Assessor’s Office, each
of which then conducted formal inquiries into Boule’s
business activities.
Boule filed a complaint against Agent Egbert in federal
district court, seeking damages under Bivens for a violation
of Fourth and First Amendment rights. The district court
granted summary judgment to Egbert on Boule’s Fourth and
First Amendment claims, holding that they were
impermissible extensions of Bivens. Boule timely appealed.
II. Discussion
We review de novo a district court’s decision on summary
judgment. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990,
995 (9th Cir. 2017). We address Boule’s Fourth and First
Amendment claims in turn, applying the framework
established in Abbasi, 137 S.Ct. at 1859, and relied on in
Hernandez, 140 S.Ct. at 743. We ask whether Boule’s claims
arise in a new context and, if so, whether any special factors
counsel hesitation in finding a viable Bivens claim. Id.
The Supreme Court’s understanding of a “new context”
in a Bivens analysis is “broad.” A context is “‘new’ if it is
‘different in a meaningful way from previous Bivens cases
decided by this Court.’” Id. (citing Abbasi, 137 S.Ct.
at 1859). The Court wrote in Abbasi:
BOULE V. EGBERT 35
Without endeavoring to create an exhaustive
list of differences that are meaningful enough
to make a given context a new one . . . [:] A
case might differ in a meaningful way because
of the rank of the officers involved; the
constitutional right at issue; the generality or
specificity of the official action; the extent of
judicial guidance as to how an officer should
respond to the problem or emergency to be
confronted; the statutory or other legal
mandate under which the officer was
operating; the risk of disruptive intrusion by
the Judiciary into the functioning of other
branches; or the presence of potential special
factors that previous Bivens cases did not
consider.
137 S. Ct. 1859–60. The Court cautioned that “even a modest
extension is still an extension.” Id. at 1864.
If we conclude that a claim arises in a new context, we
ask “whether there are any special factors that counsel
hesitation about granting the extension.” Hernandez, 140 S.
Ct. at 743 (citing Abbasi, 137 S. Ct. at 1857). The Court
acknowledged in Abbasi that it has not defined “special
factors,” but noted that
the inquiry must 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. Thus, to be a special factor
counselling hesitation, a factor must cause a
36 BOULE V. EGBERT
court to hesitate before answering that
question in the affirmative.
137 S. Ct. at 1857–58 (internal quotation marks omitted).
The Court wrote in Hernandez that a court should “consider
the risk of interfering with the authority of the other
branches” and should “ask whether there are sound reasons to
think Congress might doubt the efficacy or necessity of a
damages remedy and 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.” Hernandez, 140 S. Ct. at 743 (internal citations
and quotation marks omitted).
A. Fourth Amendment
The district court assumed that Boule’s Fourth
Amendment excessive force claim is a “modest extension” in
a new context. We agree that it is an extension, in that Agent
Egbert is an agent of the border patrol rather than of the F.B.I.
But it is a modest extension, in that border patrol and F.B.I.
agents are both federal law enforcement officials, and in that
Boule’s Fourth Amendment excessive force claim is
indistinguishable from Fourth Amendment excessive force
claims that are routinely brought under Bivens against F.B.I.
agents. However, we do not find that special factors “counsel
hesitation” such that a Bivens action in this new context is
foreclosed. Boule, a United States citizen, is bringing a
conventional Fourth Amendment excessive force claim
arising out of actions by a rank-and-file border patrol agent
on Boule’s own property in the United States. This context
is a far cry from the contexts in Abbasi and Hernandez, where
the Court found that special factors counseled against a
Bivens action.
BOULE V. EGBERT 37
In Abbasi, the plaintiffs were foreign nationals who had
been unlawfully present in the United States. Following the
terrorist attacks on September 11, 2001, the F.B.I. designated
plaintiffs as persons “of interest” in the post-attack
investigation, and plaintiffs were incarcerated in harsh
conditions. 137 S. Ct. at 1852–53. After plaintiffs were
released and removed from the United States, they brought a
Bivens action against federal executive officials and detention
facility wardens, seeking damages based on the decisions that
had led to their incarceration and based on the conditions of
their confinement. Id. at 1851–52. The Court refused to
allow a Bivens action, holding that special factors counseled
hesitation in extending Bivens in this new context. Id.
at 1859–61. The Court emphasized that the plaintiffs’ claims
challenged high-level Executive Branch decisions involving
issues of national security. Id. at 1860–62.
In Hernandez, the plaintiffs were Mexican nationals
whose child had been killed by a United States border patrol
agent. 140 S. Ct. at 740. The agent had been on the United
States side of the border, the child had been on the Mexico
side, and the agent had shot at the child across the border. Id.
The Mexican government had unsuccessfully sought
extradition of the agent to Mexico. The U.S. Department of
Justice had conducted an investigation and declined to bring
charges against the agent. Id. The Court held that the
parents’ claims arose in a new context and were precluded by
special factors. Id. at 744, 749. The Court noted several
“warning flags,” including the effect on foreign relations, the
implications for national security, and the fact that the harm
occurred in another country. Id. at 744, 746, 747.
The only aspects of the claim now before us that touch
even tangentially on the concerns raised in Abbasi and
38 BOULE V. EGBERT
Hernandez are that Boule’s inn is at the United States-Canada
border and that Agent Egbert was investigating the status of
a foreign guest who was arriving at the inn. In finding special
factors in Hernandez, the Court wrote: “[S]ome [border patrol
agents] are stationed right at the border and have the
responsibility of attempting to prevent illegal entry. For these
reasons, the conduct of agents positioned at the border has a
clear and strong connection to national security.” 140 S. Ct.
at 746. The contrast between Hernandez and the case before
us is self-evident. The agent in Hernandez was literally “at
the border,” tasked with policing the border and preventing
illegal entry of goods and people. See id. As Egbert had
already been informed by Boule, the arriving guest in whom
Egbert was interested had been driven from Sea-Tac airport
after arriving on a flight from New York. Further, the
plaintiffs in Hernandez were foreign nationals, complaining
of a harm suffered in Mexico. Boule is a United States
citizen, complaining of harm suffered on his own property in
the United States. Finally, the claim in Hernandez was
extremely unusual. The claim against Egbert is a
conventional Fourth Amendment excessive force claim,
indistinguishable from countless such claims brought against
federal, state, and local law enforcement officials, except for
the fact that Egbert is a border patrol agent. As we noted
above, excessive force Fourth Amendment claims are
routinely brought against F.B.I. agents under Bivens. See,
e.g., Ganek v. Leibowitz, 874 F.3d 73 (2d Cir. 2017); Soto-
Torres v. Fraticelli, 654 F.3d 153 (1st Cir. 2011); Harris v.
Roderick, 126 F.3d 1189 (9th Cir. 1997).
The fact that Agent Egbert is a border patrol agent,
standing alone, does not preclude a Bivens action. Courts in
our circuit and others have allowed various Bivens actions
against border patrol agents under the Fourth Amendment.
BOULE V. EGBERT 39
See, e.g., Morales v. Chadbourne, 793 F.3d 208 (1st Cir.
2015) (Bivens claim by American citizen of Guatemalan
descent against Immigration and Customs Enforcement
officials for detention without probable cause in violation of
the Fourth Amendment); Chavez v. United States, 683 F.3d
1102 (9th Cir. 2012) (Bivens claim by American citizens for
repeated traffic stops by border patrol agents in violation of
the Fourth Amendment); Martinez-Aguero v. Gonzalez,
459 F.3d 618 (5th Cir. 2006) (Bivens claim by Mexican
citizen against a border patrol agent for excessive force at a
port of entry in violation of the Fourth Amendment).
The Supreme Court cautioned in Abbasi that “national-
security concerns must not become a talisman used to ward
off inconvenient claims — a label used to cover a multitude
of sins.” 137 S. Ct. at 1862 (internal quotation marks
omitted). After the Court’s decision in Abbasi, we allowed an
immigrant to pursue a Bivens action against an Immigration
and Customs Enforcement attorney who had forged a
document in order to prevent his adjustment of status to
lawful permanent resident. Lanuza v. Love, 899 F.3d 1019,
1021 (9th Cir. 2018). We wrote that although “the Supreme
Court has made clear that expanding the Bivens remedy is
now a disfavored judicial activity,” a Bivens remedy remains
available in appropriate circumstances. Id. (internal
quotation marks omitted). We distinguished Abbasi, noting
that, like Boule in the case before us, the plaintiff did not
“challenge high-level executive action” and did not
“challenge or seek to alter the policy of the political
branches.” Id. at 1028, 1029. In a “run-of-the-mill
immigration proceeding” where the alien had no ties to
terrorism, the case was “unrelated to any other national
security decision or interest.” Id. at 1030. We held that
“compelling interests that favor extending a Bivens remedy
40 BOULE V. EGBERT
. . . outweigh the costs of allowing this narrow claim to
proceed against federal officials.” Id. at 1033. Similarly, in
the “run-of-the-mill” Fourth Amendment case now before us,
we hold that any costs imposed by allowing a Bivens claim to
proceed are outweighed by compelling interests in favor of
protecting United States citizens on their own property in the
United States from unconstitutional activity by federal agents.
In Bivens itself, the Fourth Amendment claim was not an
improper intrusion by the judiciary into the sphere of
authority of other branches. Nor is the Fourth Amendment
claim here such an intrusion. Boule’s Fourth Amendment
excessive force claim is part and parcel of the “common and
recurrent sphere of law enforcement” which, under Abbasi, is
a permissible area for Bivens claims. Abbasi, 137 S. Ct. at
1857; id. at 1856 (“[I]t must be understood that this opinion
is not intended to cast doubt on the continued force, or even
the necessity, of Bivens in the search-and-seizure context in
which it arose.”). We therefore conclude that Boule’s
excessive force Fourth Amendment claim may proceed as a
Bivens damages claim.
B. First Amendment
Boule also presented evidence that Agent Egbert
retaliated against him for exercising his First Amendment
right to complain to Egbert’s superiors about his conduct at
the inn. As recounted above, Egbert contacted the Internal
Revenue Service, the Social Security Administration, the
Washington State Department of Licensing, and the Whatcom
County Assessor’s Office, asking each of them to investigate
Boule.
BOULE V. EGBERT 41
In Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012), the
Supreme Court wrote that it had “never held that Bivens
extends to First Amendment claims.” It is true that the Court
has never actually held that a First Amendment retaliation
claim may be brought under Bivens. But in Hartman v.
Moore, 547 U.S. 250 (2006), the Court explicitly stated, as
part of its reasoning during the course of a Bivens analysis,
that such a claim may be brought.
It has long been the law that federal officials violate the
First Amendment when they retaliate for protected speech.
See, e.g., Crawford-El v. Britton, 523 U.S. 574, 592 (1998)
(“[T]he general rule has long been clearly established” that
“the First Amendment bars retaliation for protected speech
. . .”). In Hartman, plaintiffs sought to bring a Bivens action,
alleging that federal prosecutors had prosecuted them in
retaliation for protected speech. The Court held that a Bivens
action was unavailable, but only because probable cause
supported the prosecution. The Court wrote that in the
absence of probable cause — that is, in the absence of an
innocent motive — a Bivens action would have been
available:
Official reprisal for protected speech “offends
the Constitution [because] it threatens to
inhibit exercise of the protected right,”
Crawford-El v. Britton, 523 U.S. 574, 588,
n.10 (1998), and the law is settled that as a
general matter the First Amendment prohibits
government officials from subjecting an
individual to retaliatory actions, including
criminal prosecutions, for speaking out, id.,
at 592[.] Some official actions adverse to
such a speaker might well be unexceptionable
42 BOULE V. EGBERT
if taken on other grounds, but when
nonretaliatory grounds are in fact insufficient
to provoke the adverse consequences, we have
held that retaliation is subject to recovery as
the but-for cause of official action offending
the Constitution. See Crawford-El, supra,
at 593[.] When the vengeful officer is federal,
he is subject to an action for damages on the
authority of Bivens. See 403 U.S., at 397.
Hartman, 547 U.S. at 256 (emphasis added) (some citations
omitted).
Although the Supreme Court wrote in Hartman that
Bivens extends to First Amendment retaliation claims when
federal law enforcement officials have no innocent motive for
their actions, we recognize that the Court has not expressly so
held. See Reichle, 566 U.S. at 663 n.4. We therefore
conclude that Boule’s First Amendment retaliation claim
arises in a new context.
However, we find no special factors that make it
inadvisable to find a cognizable Bivens claim in this new
context. First, we have already upheld a Bivens claim in a
different First Amendment context. In Gibson v. United
States, 781 F.2d 1334 (9th Cir. 1986), we upheld a Bivens
claim against federal officers who sought to “curb” plaintiff’s
protected First Amendment speech through a campaign of
defamation, illegal wiretapping, intimidation, burglary and
arson.
Second, the Supreme Court declined to recognize a
Bivens action in Bush v. Lucas, 462 U.S. 367 (1983), but in a
very different context. Plaintiff in Bush was a federal
BOULE V. EGBERT 43
employee who had complained about his superior. The Court
declined to recognize a Bivens action in this context
“[b]ecause such claims arise out of an employment
relationship that is governed by comprehensive procedural
and substantive provisions giving meaningful remedies
against the United States.” Id. at 368. Boule’s claim is quite
unlike the claim in Bush, where the employment relationship
was key. Boule’s claim is instead on all fours with the First
Amendment retaliation claim described in Hartman, where
the Court wrote that “[w]hen the vengeful officer is federal,
he is subject to an action for damages on the authority of
Bivens.” Hartman, 457 U.S. at 256.
Third, there is even less reason to hesitate in extending
Bivens to Boule’s First Amendment retaliation claim than
there is in his Fourth Amendment excessive force claim. Just
as excessive force is a well-established Fourth Amendment
claim, retaliation is a well-established First Amendment
claim. See Hartman, 547 U.S. at 256 (“the First Amendment
prohibits government officials from subjecting an individual
to retaliatory actions . . . for speaking out”); Lanuza, 899 F.3d
at 1033 (recognizing a Bivens action where “[t]he legal
standards for adjudicating [it] are well established and
administrable”). Boule’s First Amendment retaliation claim
presents an even stronger case for recognition as a Bivens
claim. With respect to Boule’s excessive force claim, Agent
Egbert’s actions, even if illegal, were taken during the
performance of his official duties. The same is not true for
Boule’s retaliation claim. Though Egbert identified himself
as a border patrol agent when he contacted the Internal
Revenue Service, and may have done so when he contacted
the Social Security Administration, the Washington State
Department of Licensing, and the Whatcom County
44 BOULE V. EGBERT
Assessor’s Office, he was not carrying out official duties in
asking for investigations of Boule.
C. Existence of Alternative Remedies
Finally, we consider whether there are available
alternative remedies. When there are available alternative
remedies sufficient to protect a plaintiff’s interests, “a Bivens
remedy usually is not” available. Abbasi, 137 S. Ct. at 1863;
see Fazaga v. Federal Bureau of Investigation, 965 F.3d
1015, 1057 (9th Cir. 2020). The availability of alternative
remedies “raises the inference that Congress expected the
Judiciary to stay its Bivens hand and refrain from providing
a new and freestanding remedy in damages.” Id. (internal
quotation marks omitted). “Alternative remedial structures
can take many forms, including administrative, statutory,
equitable, and state law remedies.” Vega v. United States,
881 F.3d 1146, 1154 (9th Cir. 2018) (internal quotation marks
omitted). “[A]n alternative remedy need not be perfectly
congruent with Bivens or perfectly comprehensive, [but] it
still must be adequate.” Rodriguez v. Swartz, 899 F.3d 719,
739 (9th Cir. 2018) (internal quotation marks omitted),
vacated on other grounds, 140 S. Ct. 1258.
The district court assumed without deciding that there was
no adequate alternative remedy that would preclude a Bivens
claim. On appeal, Agent Egbert suggests three alternative
remedies: “intentional-tort claims under the Federal Tort
Claims Act, see 28 U.S.C. § 2680(h), a trespass claim against
Agent Egbert, or injunctive relief.” None of these suggested
remedies defeats a Bivens action.
First, § 2680(h) of the FTCA, cited by Agent Egbert,
includes the so-called law enforcement proviso, which allows
BOULE V. EGBERT 45
damage suits against federal law enforcement officials for
“any claim arising . . . out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution.” In Carlson v. Green, 446 U.S. 14 (1980), the
Supreme Court held that a Bivens action was available against
federal prison officials for the death of a prisoner due to
improper medical treatment in violation of the Eighth
Amendment. The Court specifically addressed the
relationship between Bivens and § 2680(h), holding that the
existence of a remedy under § 2680(h) does not foreclose a
Bivens action:
[W]hen Congress amended FTCA in 1974 to
create a cause of action against the United
States for intentional torts committed by
federal law enforcement officers, 28 U.S.C.
§ 2680(h), the congressional comments
accompanying that amendment made it crystal
clear that Congress views FTCA and Bivens
as parallel, complementary causes of
action. . . . In the absence of a contrary
expression from Congress, § 2680(h) thus
contemplates that victims of the kind of
intentional wrongdoing alleged in this
complaint shall have an action under FTCA
against the United States as well as a Bivens
action against the individual officials alleged
to have infringed their constitutional rights.
Id. at 19–20.
Moreover, in 1988, when Congress amended the FTCA
in the Westfall Act to provide that the FTCA remedy is
generally exclusive, it made an “explicit exception for Bivens
46 BOULE V. EGBERT
claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). The
Westfall Act provides that the exclusive remedy for common
law tort claims committed by federal employees is against the
United States, and that plaintiffs are precluded from bringing
suit against the employees in their individual capacity. See
28 U.S.C. § 2679(b)(1). But the exclusiveness of the FTCA
remedy was not extended to constitutional torts such as
Fourth Amendment excessive force claims. See id.§ 2679(b)(2)(A). A contemporaneous House Report
explained:
Since the Supreme Court's decision in Bivens,
supra, the courts have identified this type of
tort as a more serious intrusion of the rights of
an individual that merits special attention.
Consequently, H.R. 4612 would not affect the
ability of victims of constitutional torts to
seek personal redress from Federal employees
who allegedly violate their Constitutional
rights.
H.R. REP. NO. 100-700, at 6 (1988), as reprinted in 1988
U.S.C.C.A.N. 5945, 5950.
Second, a state-law trespass claim against Agent Egbert
in his individual capacity is barred by the Westfall Act. See
28 U.S.C. § 2679(d)(1) (generally barring individual capacity
suits against a federal employee when the employee is “acting
within the scope of his office or employment at the time of
the incident out of which the claim arose”). Further, Egbert’s
entry onto the publicly accessible driveway of Boule’s inn,
undertaken as part of his official duties, was almost certainly
a privileged entry under state law.
BOULE V. EGBERT 47
Finally, injunctive relief is an inadequate remedy, for
Boule is seeking damages for Agent Egbert’s completed
actions rather than protection against some future act.
Conclusion
We conclude that Bivens remedies are available in the
circumstances of this case, where a United States citizen
claims that a border patrol agent violated the Fourth
Amendment by using excessive force while carrying out
official duties within the United States, and violated the First
Amendment by engaging in retaliation entirely unconnected
to his official duties. We reverse and remand for further
proceedings.
REVERSED and REMANDED.