Supreme Court May Reconsider 'Bivens' this Term
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Bivens may be under reconsideration as the U.S. Supreme Court this week re-circulated a petition asking the high court to do just that. The petition argues the Ninth Circuit went too far by expanding Bivens to new First Amendment retaliation and Fourth Amendment contexts, and presents an ideal vehicle for the Supreme Court to overturn Bivens.
Petitioner Erik Egbert is a U.S. Border Patrol agency stationed in Blaine, Washington, on the Canadian border. Over time, Agent Egbert developed a rapport with Robert Boule, the owner of “Smuggler’s Inn,” a Blaine bed-and-breakfast on a property steps away from the Canadian border. According to Egbert, the Inn is a “notorious site for illegal border crossing.”
On March 20, 2014, Agent Egbert was on patrol and learned from Boule that a Turkish national was arriving at the Smuggler’s Inn later that day. Because Agent Egbert suspected the Turkish national might cross into Canada or meet with associates entering the United States from Canada for a criminal purpose, he waited for Boule’s employees to drive the Turkish national to the Inn. Once they arrived, Agent Egbert followed them up the Inn’s driveway and parked.
Once parked, the driver exited and the Turkish national stayed in the car. Boule told Agent Egbert to leave the premises and the agent declined. Boule then stepped between Agent Egbert and the car with the Turkish national. Agent Egbert then allegedly pushed Boule aside, asked the Turkish national about his immigration status, and confirmed his lawful presence. Boule later sought medical treatment for a back injury.
Later, Boule complained to Agent Egbert’s superiors. According to Boule, Agent Egbert then retaliated by reporting Boule to the IRS, which subsequently audited Boule’s tax returns.
Boule then sued Agent Egbert in the U.S. District Court for the Western District of Washington, under two causes of action, that Agent Egbert: (1) retaliated against Boule in violation of the First Amendment; and (2) violated Boule’s Fourth Amendment rights by entering his property, refusing to leave, and pushing him to the ground. In two judgements, District Court granted Agent Egbert summary judgment on both claims, emphasizing that the Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”
As to the first claim, the District Court noted that the Supreme Court has never implied a Bivens action under the First Amendment and that allowing such a claim would impermissibly expand Bivens to a new context. The District Court dispensed the second claim reasoning that Agent Egbert’s position as a U.S. Border Patrol Officer is not “a traditional law enforcement officer” and that case law prevented the court to extending Bivens to Boule’s claim.
Boule appealed to a three-judge panel of U.S. Court of Appeals for the Ninth Circuit, which reversed both judgments and held that his complaint stated valid Bivens causes of action. Regarding the First Amendment claim, the panel held that its own precedent from 2006, “explicitly stated…that such a [Bivens] claim may be brought” and that “no special factors…make it inadvisable” to allow the claim to proceed. And with respect to the Fourth Amendment claim, the panel held it was only a “modest extension” of Bivens to allow the claim to proceed against a U.S. Border Patrol Agent.
Agent Egbert requested the full Ninth Circuit re-hear his appeal and to reverse the panel decision. The full court denied the request, with twelve judges dissenting in three separate opinions. Agent Egbert then petitioned the Supreme Court for a writ of certiorari, to reverse the Ninth Circuit decision.
In his cert petition, Agent Egbert argues that “[b]oth of the Ninth Circuit’s groundbreaking Bivens expansions parted ways with all other circuits to consider the questions.” The petition explains that the other six circuits to consider First Amendment retaliation claims under Bivens have rejected them, and that three circuits have refused to accept Fourth Amendment Bivens claims involving immigration enforcement. It then argues that extending Bivens into these two new contexts will create a slippery slope for courts to expand Bivens into further new contexts.
The petition concludes by arguing that the Ninth Circuit’s decision illustrates why Bivens should be overruled. In sum, the petition states the Supreme Court has repeatedly cut back on Bivens and “disavowed its foundations,” and that the Ninth Circuit’s decision is the ideal vehicle for the Supreme Court to “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”
On October 13, 2021, the day after the petition was fully briefed, the Supreme Court circulated it for review. The Court this week again circulated the petition. If at least four justices vote to accept the petition, it will order more complete briefing and schedule the case for oral argument.
Read Agent Egbert’s full petition for a writ of certiorari here.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.