Supreme Court Rejects Request to Reverse Bivens
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.
The U.S. Supreme Court rejected certiorari on Petitioner Erik Egbert’s request for the Court to reverse Bivens, the 1971 case that allows federal employees to be sued in their personal capacities for violating certain constitutional rights.
As FEDagent previously reported, Egbert is a U.S. Border Patrol agent whose petition argues the U.S. Court of Appeals for the Ninth Circuit went too far by expanding Bivens to new First Amendment retaliation and Fourth Amendment contexts, and presents the ideal vehicle for the Supreme Court to overturn Bivens and eliminate all potential future Bivens claims.
The Supreme Court recently accepted Agent Egbert’s first two issues and will address this Court term whether to extend Bivens to allow First Amendment retaliation claims and Fourth Amendment claims against federal officers engaged in immigration related functions. But, the Court rejected Egbert’s third argument, to reverse Bivens altogether.
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 two questions the Supreme Court has accepted for adjudication. 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.
Now that the Supreme Court has accepted Agent Egbert’s first two issues for adjudication, it will order the parties to fully brief those issues and then schedule the case for oral argument. FEDagent will update on this case after oral argument.
You can 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.