Egbert v. Boule

LII note: the oral arguments in Egbert v. Boule are now available from Oyez. The U.S. Supreme Court has now decided Egbert v. Boule.


Does a plaintiff have a Bivens implied right of action against a federal officer under either the First Amendment or under the Fourth Amendment when the officer is engaged in immigration enforcement functions?

Oral argument: 
March 2, 2022

This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations.

Questions as Framed for the Court by the Parties 

1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.


Robert Boule is the owner of a bed and breakfast in Blaine, Washington. Boule v. Egbert at 1312. Boule’s property directly adjoins the United States-Canada border. Id. In March 2014, Boule encountered Erik Egbert, a Customs and Border Protection (“CBP”) agent. Id. Egbert asked Boule about guests staying at Boule’s inn. Id. Boule informed Egbert that he was expecting a New York guest who was originally from Turkey. Id. Later that day, Egbert waited in his car near the inn to question the guest. Id. The expected guest pulled up soon thereafter, prompting Egbert to exit his vehicle and approach him. Id. Egbert urged Boule to leave, and Egbert twice refused Boule’s request. Id. Egbert then engaged Boule in a physical altercation. Id. Boule next called the police and Egbert questioned the guest. Id. Shortly afterwards, Egbert, his supervisor, and another agent determined that the guest was lawfully present, and the three left Boule’s inn. Id.

Boule complained to CBP about Egbert’s actions, which led Egbert to retaliate by asking the Internal Revenue Service (“IRS”) to investigate Boule. Id. Relying on Bivens v. Six Unknown Federal Narcotics Agents, Boule sued in the United States District Court for the Western District of Washington, claiming that alleged First and Fourth Amendment rights violations entitled him to damages. Id. at 1312–13. The district court disagreed and granted summary judgment in favor of Egbert after it determined that Bivens does not extend to Boule’s right for damages claims. Id. at 1313. Boule then appealed to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”). Id.

Reviewing the claims de novo, the Ninth Circuit referenced a two-part test from the Supreme Court’s decisions in Ziglar v. Abbasi and Hernandez v. Mesa. Id. Consistent with the test, the Ninth Circuit first asked whether Boule’s claims arise in a new context—i.e., one that differs from prior Bivens cases. Id. The Ninth Circuit determined that Boule’s Fourth Amendment claim arises in a new context because, unlike the contexts of prior Bivens cases involving Federal Bureau of Investigation (“FBI”) agents, here the officer at issue engages in immigration enforcement. Id. Further, the Ninth Circuit added that the new context claim finds support in the Supreme Court having never extended a Bivens right to a First Amendment violation. Id. at 1315–16.

The second part of the Bivens test requires courts to consider whether any “special factors” counsel against extending the protection to Boule’s claims. Id. at 1313. According to the Ninth Circuit, Egbert’s immigration enforcement officer status does not constitute a “special factor” under the two-part Bivens test. Id. at 1315. On Boule’s First Amendment claim, the Ninth Circuit similarly concluded that there were no special factors at play by raising a new right not previously recognized under the Bivens framework. Id. at 1316. Lastly, the Ninth Circuit considered whether any alternative remedies, beyond a Bivens remedy, existed for the pursuit of Boule’s claims. Id. Ultimately, the Ninth Circuit found that no adequate alternative remedies existed. Id. at 1317. Therefore, courts could only grant the protection under the Bivens framework. Id. Hence, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of Egbert. Id.

Egbert appealed, and on November 5, 2021, the United States Supreme Court granted certiorari to hear this case.



Erik Egbert contends that because courts generally disfavor extending the Bivens framework beyond its initial application to unconstitutional searches and seizures, no cause of action exists for Boule’s retaliation claims under the First Amendment. Brief for Petitioner, Erik Egbert at 14–15. Specifically, Egbert notes that circuit courts that considered the issue always denied applying Bivens to the First Amendment context. Id. at 26. Citing the new standard from Nestlé USA, Inc. v. Doe, Egbert maintains that if courts have reason to doubt that Congress would support a private right of action, courts must refrain from creating the right themselves. Id. at 18. Moreover, Egbert argues that Congress’s general grant of federal question jurisdiction to federal courts does not allow courts to create new causes of action without specific congressional intent. Id. at 16. Egbert also posits that Boule’s claims present “special factors” that warrant hesitation, and therefore do not meet the Court’s high standard for extending Bivens as first discussed in Carlson v. Green. Id. at 25–26. For example, Egbert lists a “special consideration” that extending Bivens will expand the number and variety of potential defendants well beyond traditional law-enforcement officers, leading to increased litigation. Id. at 27. Thus, Egbert contends that courts would then have to analyze the subjective thoughts of these new potential defendants to assess retaliatory motives, creating an untenable situation for courts. Id. at 28.

Robert Boule responds that his claim does not present a new Bivens context because the Court assumed a similar First Amendment claim against federal Postal Service officers for “inducing prosecution in retaliation for speech” in Hartman v. Moore, thus making any would-be Bivens claim redundant here. Brief for Respondent, Robert Boule at 41. Moreover, Boule claims that the First Amendment manifestly bars law enforcement officers from retaliating against individuals based on speech claims. Id. Thus, Boule asserts that extending the Bivens framework here protects a fundamental constitutional right. Id. But even if his First Amendment claim presented a new context, Boule insists the claim still passes the Bivens analysis because no special factors exist here to warrant hesitation. Id. at 42. Boule also objects to Egbert’s concern that extension of the right will force courts to engage with subjective thought analysis to evaluate retaliation claims. Id. at 43. Boule notes that the Court extended Bivens to Fifth Amendment discrimination cases—which involve subjective determinations of intent—and found the requisite analysis straightforward, and the damages remedy judicially workable. Id. at 43–44. Boule similarly responds that Egbert exaggerates the concern about increasing the range of potential defendants for First Amendment claims. Id. at 44. Rather, Boule suggests that extending Bivens to the First Amendment context here applies only to retaliation claims by federal officers. Id.


Egbert argues that despite Bivens’s normal application to Fourth Amendment issues, the Court should not extend the implied right of action here because doing so prevents CBP agents from enforcing immigration laws, which protect national security interests. Brief for Petitioner at 37. Egbert claims that CBP agents serve a fundamentally different purpose than local police officers. Id. Hence, Egbert argues, Title 8 of the United States Code (“Title 8”) accords them more authority to interrogate suspects and conduct warrantless searches. Id. Given their unique responsibilities, Egbert maintains that courts should not expose CBP agents to potential damages for mishandling a search or engaging with suspected illegal aliens. Id. at 38. Further, Egbert suggests that creating a cause of action here amounts to judicial overreach because the Constitution entrusts national security interests to the political branches. Id. at 29–30. Finally, Egbert adds that extending Bivens to this context defies legislative intent because Congress intentionally decided against creating any Title 8 damages actions against CBP agents Id. at 39.

Boule counters that the Bivens claim in this case does not involve immigration matters, and therefore the Court should extend Bivens because Egbert knew Boule was a U.S. citizen but assaulted him anyway on private property on American soil. Brief for Respondent at 31. Boule argues that when Egbert violated Boule’s Fourth Amendment rights, he did so while performing duties analogous to those of local law enforcement officers. Id. at 30–31. Therefore, Boule contends that the situation resembles other excessive force claims, for which courts routinely grant relief under Bivens. Id. at 30. Moreover, Boule contests Egbert’s claim that investigating personal property within the United States borders implicates a national security interest. Id. at 33. Because Egbert was not patrolling the border to prevent illegal immigration when the incident occurred, Boule claims that Egbert’s use of force did nothing to further national security. Id. at 34. Therefore, Boule urges that the Court deny Egbert deferential protection against a Bivens action. Id. Lastly, Boule adds that many U.S. citizens live near areas supervised by CBP agents, and therefore denying a Bivens action here would unfairly prevent those citizens from accessing the best form of constitutional redress available. Id.


Egbert explains that numerous alternative judicial and administrative remedies exist for citizens like Boule who claim injuries caused by retaliation or assault, thereby mitigating the need to extend Bivens beyond its narrow scope to either of his claims. Brief for Petitioner at 32. Egbert claims that state tort laws provide an adequate remedy for aggrieved parties. Id. at 33. In the First Amendment context, Egbert suggests that recognized state tort actions like defamation or interference with business operations would similarly redress Boule’s injuries. Id. at 33. For Boule’s Fourth Amendment claim, Egbert posits that Boule can seek an adequate administrative remedy directly from the Department of Homeland Security (“DHS”) for excessive use of force by one of the department’s employees. Id. at 40. Egbert also alleges that other federal statutes—such as the Privacy Act or the Federal Tort Claims Act (“FTCA”)—provide alternative damage remedies for retaliation and excessive use of force claims. Id. at 34. Ultimately, Egbert claims that other well-established legal mechanisms for redressing the injuries at issue here provide equally valid options for the Court, meaning that the Court need not extend Bivens to cover Boule’s injury. Id. at 32.

Boule counters that Egbert’s suggested administrative and legal remedies are either insufficient or unavailable, therefore necessitating that the Court retain Bivens and permit a cause of action for damages in this case. Brief for Respondent at 37, 44. Specifically, Boule responds that state tort actions do not obviate the need for Bivens because the Westfall Act (“Act”) bars his particular tort claim. Id. at 45. Boule asserts the Act bars his claim because Egbert was “acting within the scope of [his] employment.” Id. Boule further notes that DHS cannot offer an adequate administrative remedy because DHS’s regulations do not provide for a right or benefit to the victim, therefore leaving Bivens as the only remedy available. Id. at 40. Moreover, Boule contends that the FTCA cannot replace a Bivens action because the FTCA purposefully fails to provide a remedy for constitutional violations by government employees. Id. at 38. Boule argues that Congress deliberately rejected amending the FTCA to replace individual law enforcement officers with the government in actions alleging constitutional violations because Congress desired to maintain Bivens. Id. Boule concludes that neither the FTCA’s language nor its legislative history suggest that Congress meant to preclude the Bivens remedy in a parallel context, and thus, a Bivens action should be available here. Id. By denying a Bivens right of action, Boule claims that his injuries cannot be adequately redressed. Id. at 37, 44.



United States Attorneys General (“Attorneys General”), in support of Egbert, argue that extending Bivens to immigration enforcement endangers national security because of the unique role immigration officers play. Brief of Amici Curiae Former U.S. Attorneys General John D. Ashcroft et al., in Support of Petitioner at 13–15. Specifically, the Attorneys General assert that immigration officers must routinely make immediate decisions. Id. at 15. In extending Bivens, the Attorneys General warn, courts would thus undermine the necessary legal discretion these officers need to execute their assignments effectively by expending precious time on litigation. Id. Hence, the Attorneys General argue this decision would hamper immigration officers’ overall effectiveness and reduce Americans’ safety. Id.

The National Border Patrol Council (“NBPC”), also in support of Egbert, argues that extending Bivens endangers national security by impermissibly blurring the line between non-immigration federal officers and immigration officers, whose duties are uniquely distinguishable. Brief of Amicus Curiae The National Border Patrol Council, in Support of Petitioner at 9. For example, NBPC contends that because immigration enforcement officers interact with many people daily, they are disproportionately susceptible to liability risks because of the high number of parties they deal with. Id. at 17–18. Accordingly, NBPC emphasizes that the threat of added litigation unduly jeopardizes the safety of both immigration enforcement officers and other involved parties, restraining the scope of their duties. Id. at 18.

The DKT Liberty Project et al. (“DKT Liberty”), in support of Boule, counters that there is no evidence that extending Bivens will inhibit federal officers’ day-to-day decision making and compromise national security interests. Brief of Amici Curiae The DKT Liberty Project et al., in Support of Respondent at 18. DKT Liberty contests NBPC’s risk of liability claim with a study that shows that out of nearly 200 Bivens cases with damages awarded, fewer than ten officers individually compensated a plaintiff. Id. at 18–19. Instead, DKT Liberty notes that law enforcement officers are routinely indemnified by their employer in civil suits. See id. Thus, DKT Liberty asserts that this demonstrates that NBPC overplays the litigation risk—a fact that equally applies to immigration enforcement officers. Id. Accordingly, DKT Liberty concludes that the fear that personal liability will prevent officers from effectively carrying out their duties rests on an unsupported claim about who compensates their lawsuits. Id. at 19.

The American Civil Liberties Union et al. (“ACLU”), also in support of Boule, counters that courts should check immigration enforcement officers with Bivens liability to curtail abuses of their significant responsibilities and power. Brief of Amici Curiae The American Civil Liberties Union et al., in Support of Respondent at 18–20. The ACLU underscores that CBP officers have broad authority to conduct warrantless searches and arrests near borders, which increases the likelihood that officers might use excessive force or other unlawful tactics. Id. at 19–20. Hence, the ACLU argues that because of the special role of immigration enforcement officers, courts should exact greater oversight upon them, which would improve the national security interest in turn. Id. at 20.


The National ICE Council (“ICE Council”), in support of Egbert, argues that extending Bivens here is unnecessary because there are sufficient legal remedies already in place to ensure that immigration enforcement officers respect civil liberties. Brief of Amicus Curiae The National ICE Council, in Support of Petitioner at 13–16. For instance, the ICE Council notes that DHS of which CBP is a component, maintains strict standards of conduct for employees and provides a process for investigating alleged wrongdoing. Id. at 14. The ICE Council insists that, unlike the judicially-sanctioned Bivens remedy, DHS oversight falls squarely under the Executive Branch, which the Constitution specifically designates as responsible for immigration enforcement. See id. at 16. Hence, the National ICE Council concludes that current organizational procedures adequately ensure the protection of civil liberties already. See id.

The Foundation for Individual Rights in Education (“Foundation”), in support of Boule, counters that failure to extend Bivens here will leave many individuals without a process for claiming their civil liberties. Brief of Amicus Curiae The Foundation for Individual Rights in Education, in Support of Respondent at 3. The Foundation focuses on extending Bivens to Boule’s First Amendment claim and argues that this extension is essential to protecting constitutional guarantees of speech and of the press. Id. Specifically, the Foundation posits that federal officials commonly retaliate against individuals who exercise speech and press rights as part of their vocations, such as journalists, thereby greatly burdening their civil liberties. Id. at 6. Accordingly, the Foundation asserts that, lacking the Bivens remedy, courts would further erode precious liberties of those who hold contrary views from federal law enforcement officials. Id.


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