Supreme Court Narrows Lawsuits Against Federal Employees in Personal Capacity
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.
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The U.S. Supreme Court in Egbert v. Boule further narrowed the kinds of Bivens lawsuits that can proceed in federal courts, and forecast that it may in the future reverse Bivens and end those kinds of lawsuits altogether.
In 1972, the Supreme Court in Bivens v. Six Unknown Named Agents held that plaintiffs could sue to hold federal employees personally financially liable for violating the plaintiff’s Fourth Amendment rights. Since then, the Court has reigned in lower court attempts to allow plaintiffs to sue under Bivens theory for other kinds of alleged constitutional violations.
In 2017, the Supreme Court laid out a two-step test for federal courts to apply when deciding whether a Bivens action could proceed. Now in Egbert v. Boule, the Supreme Court has clarified “those two steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy” for a new kind of Bivens claim than the federal judiciary. If there is any reason for a court to think Congress is “better equipped to create a damages remedy,” the court should not allow a Bivens claim to proceed.
At the end of the majority’s opinion, they suggest they may in the future reverse Bivens altogether. And in his concurring opinion, Justice Gorsuch criticized the majority for not taking that final step in Egbert v. Boule to put an end to all Bivens actions.
As FEDagent previously reported, Egbert v. Boule arose from a conflict between Robert Boule, the owner of “Smuggler’s Inn,” a bed-and-breakfast on the U.S./Canada border, and U.S. Border Patrol Agent Erik Egbert.
In March 2014, Boule told Agent Egbert that a Turkish national was flying in from New York to arrive at Smuggler’s Inn later that day. Suspecting the Turkish national might cross into Canada or meet with associates entering the United States from Canada for a criminal purpose, Agent Egbert waited him to arrive at the Inn. Once arrived, Agent Egbert followed the Inn’s shuttle vehicle up the Inn’s driveway and parked.
Boule told Agent Egbert to leave the premises, the agent allegedly pushed Boule aside. Agent Egbert then asked the Turkish national about his immigration status, confirmed his lawful presence, and left. Boule later complained to Agent Egbert’s superiors that he believed the agent had reported him to the IRS in retaliation for telling the agent to leave the Inn’s property.
Boule then filed a Bivens lawsuit Agent Egbert in the U.S. District Court for the Western District of Washington, alleging the agent: (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. The District Court dismissed both claims for failing to satisfy the Supreme Court’s two-step Bivens test.
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.
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.
Writing for a five-member Supreme Court majority, Justice Thomas reversed the Ninth Circuit’s decision because “[a]t bottom, creating a cause of action is a legislative endeavor” into which the Ninth Circuit improperly intruded. The majority emphasized that “even a single sound reason to defer to Congress is enough to require a court to refrain” from allowing new kinds of Bivens lawsuits to proceed.
In Boule’s case, a majority of the Supreme Court held that establishing precedent to allow his First Amendment claims to proceed could have exposed federal employees across government to new kinds of liability. That potential consequence alone was reason enough for the majority to reverse the Ninth Circuit’s decision on the First Amendment claim. The majority also held that Congress by statute had already created a remedial process for Boule to complain to Agent Egbert’s superiors about his allegedly unconstitutional conduct. The majority held that congressional action pre-empted any judicial ability to extend Bivens to allow any of Boule’s claims to move forward, even though that complaint process was designed only to deter bad conduct rather than to compensate people who were harmed.
This sweeping decision is poised to foreclose almost any new kinds of Bivens claims against federal employees, and may be setting up the Supreme Court to overturn Bivens altogether. As the majority commented at the end of its decision that “if we were called to decide Bivens today,” they would not have allowed the case to proceed against the federal employee defendants. But because that determination was not necessary to reverse the Ninth Circuit’s decision in Egbert v. Boule, the majority left the question of potentially reversing Bivens to be decided in a future case.
Read the full Egbert v. Boule decision 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.