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BIVENS IS BARELY ALIVE AFTER SUPREME COURT MAULING

Rejecting 4th Amendment excessive force and 1st Amendment retaliation damages claims against a Border Patrol agent, the Supreme Court last week brought the venerable Bivens claim to the brink of extinction.

Federal law (42 USC § 1983) permits private citizens to sue state and local officials for violation of constitutional rights. But Section 1983 does not apply to federal officials and employees, and Congress has never passed a law similar to Section 1983 authorizing such actions against the feds.

However, back in 1971, the Supreme Court held that the right to file such an action should be presumed from the constitution, letting a 4th Amendment unlawful search and seizure claim go forward under “general principles of federal jurisdiction” in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Since Bivens, SCOTUS has been trying to limit the holding, in fact turning down every Bivens claim since 1980. Last week, the Court adopted a test that just about assures that Bivens will not be usable for any claim other than unlawful search and seizure and 8th Amendment claims.

Last week’s case arose when a Border Patrol agent allegedly entered the driveways at Smuggler’s Inn, a bed-and-breakfast sort of place in Blaine, Washington. The Inn’s backyard property line is the Canadian border, with nothing but some warning signs to stop people from coming and going.  According to the decision, the facility is both Spartan and pricey, appealing only to a clientele that wants to sneak north or sneak south.

Because of that, the Border Patrol has a special love for the place. The Egbert case arose when a Border Patrol agent followed the Inn’s van into the driveway, suspecting the passenger – a man who had just arrived from Turkey – of immigration shenanigans. When the Inn’s owner told the officer to leave, the border cop allegedly roughed him up. When the owner complained about the agent’s conduct, the Border Patrol allegedly began a campaign of harassment.

The Inn’s owner sued under Bivens for alleged 4th Amendment excessive force and 1st Amendment retaliation violations. But last week, the Supreme Court stopped him in his tracks.

“[R]ather than dispense with Bivens altogether,” Justice Clarence Thomas wrote on behalf of the majority, “we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Yet, while it kept Bivens alive, the Court make it clear that Bivens remains on thin ice, warning “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

Writing for a 5-4 majority, Thomas applied the two-step inquiry established in prior Bivens cases — whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and whether “special factors… counsel hesitation about granting the extension.”

For the “special-factors” analysis, the Court asks broadly whether judicial intrusion into a “given field” is inappropriate. Here, Thomas wrote, the question was whether it was appropriate to imply a Bivens action should apply to Border Patrol agents generally. Because border protection implicates national security, the Court ruled, it was more appropriate to leave the authorization of any remedy to Congress.

The opinion thus reduces the two-step analysis “into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

Here, the Court said, it also matters that a citizen has an adequate alternative remedy in the Border Patrol’s internal grievance process. This is despite the fact that that process does not entitle a complainant to participate in the proceeding, is not subject to judicial review, and does not provide a money damages remedy to the complainant. But because Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations, the Court said, that’s enough.

Bivens cannot be used for 1st Amendment retaliation claims under any circumstances, the Court said. Allowing such “claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs.”

The good news, if there is any, is that the Court acknowledged that a Bivens action still exists “for a federal prisoner’s inadequate-care claim under the 8th Amendment.” But it’s pretty clear for federal prisoners that, except for that “deliberate indifference” claim, Bivens is dead.

Egbert v. Boule, Case No. 21-147, 596 U.S. —, 2022 U.S. LEXIS 2829 (June 8, 2022)

SCOTUSBlog, Court constricts, even if it does not quite eliminate, damages actions under Bivens (June 8, 2022)

Interrogating Justice, SCOTUS Says Doing Nothing Deters Fourth Amendment Violations (June 9, 2022)

– Thomas L. Root