Stine v. Merrell

Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 1 of 28 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mikeal Glenn Stine, No. CV-21-00422-TUC-DCB 10 Plaintiff, ORDER 11 v. 12 Unknown Merrell, et al., 13 Defendants. 14 15 IT IS ORDERED that for the reasons given in the Order (Doc. 54), the Motion to 16 Stay (Doc. 56) is DENIED. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall attach a copy of 18 Egbert v. Boule, 142 S. Ct. 1793 (2022) to this Order. 19 Dated this 23rd day of February, 2023. 20 21 22 23 24 25 26 27 28  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 2 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... 142 S.Ct. 1793 [3] there is no Bivens action for a federal official's Supreme Court of the United States. retaliation for exercising First Amendment rights. Erik EGBERT, Petitioner v. Court of Appeals reversed. Robert BOULE Justice Gorsuch filed an opinion concurring in the judgment. No. 21-147 | Justice Sotomayor filed an opinion concurring in the Argued March 2, 2022 judgment in part and dissenting in part, in which Justices | Breyer and Kagan joined. Decided June 8, 2022 Procedural Posture(s): Petition for Writ of Certiorari; On Synopsis Appeal; Motion for Summary Judgment. Background: Owner of bed-and-breakfast inn adjacent to United States-Canadian border brought Bivens action for West Headnotes (20) damages against United States Border Patrol agent and others, alleging that agent violated Fourth Amendment by using excessive force against owner, and violated First [1] Constitutional Law Creation of rights of Amendment protection against retaliation, after owner lodged action grievance with agent's supervisors and filed administrative claim with Border Patrol, by reporting owner's license plate to After the Supreme Court's decision in Bivens, Washington Department of Licensing for referencing illegal which implied a cause of action for damages conduct, and by contacting Internal Revenue Service (IRS) under the Fourth Amendment against federal and prompting an audit of owner's tax returns. The United officials who allegedly manacled a plaintiff States District Court for the Western District of Washington, and threatened his family while arresting him for narcotics violations, the Court has Ricardo S. Martinez, Chief Judge, 2018 WL 4078852, come to appreciate more fully the tension granted summary judgment to defendants. Owner appealed. between judicially created causes of action The United States Court of Appeals for the Ninth Circuit, and the Constitution's separation of legislative Fletcher, Circuit Judge, 980 F.3d 1309, reversed and and judicial power, at bottom, creating a cause of action is a legislative endeavor, and remanded, and rehearing en banc was denied, 998 F.3d courts engaged in that unenviable task must 370. Certiorari was granted. evaluate a range of policy considerations at least as broad as the range a legislature would consider, including economic and governmental Holdings: The Supreme Court, Justice Thomas, held that: concerns, administrative costs, and the impact on governmental operations systemwide, and [1] Congress was better positioned to create remedies in unsurprisingly, Congress is far more competent border-security context, as special factor counseling against than the Judiciary to weigh such policy considerations. U.S. Const. Amend. 4. implying a Bivens cause of action for Fourth Amendment excessive force violation; 15 Cases that cite this headnote [2] fact that Congress had already provided alternative remedies was special factor counseling against implying a [2] Constitutional Law Creation of rights of action Bivens cause of action for Fourth Amendment excessive force violation; and © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 3 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... When a court decides whether to imply a cause of 123 Cases that cite this headnote action under Bivens against a federal official, the most important question is who should decide whether to provide for a damages remedy, [5] United States Constitutional Violations; Congress or the courts, and if there is a rational Bivens Claims reason to think that the answer is Congress, A new context arises for a Bivens claim as it will be in most every case, no Bivens for damages against a federal official, for action may lie, because absent utmost deference purposes of determining whether a Bivens to Congress’ preeminent authority in this area, remedy should be implied by a court, when the courts arrogate legislative power. there are potential special factors, which counsel 31 Cases that cite this headnote against permitting Bivens relief, that previous Bivens cases did not consider. [3] Constitutional Law Creation of rights of action 42 Cases that cite this headnote Implying a cause of action for damages under [6] United States Constitutional Violations; Bivens, against a federal official, is a Bivens Claims disfavored judicial activity, and the Supreme Court's watchword is caution; if there are sound When a court determines whether to imply a reasons to think Congress might doubt the cause of action for damages under Bivens efficacy or necessity of a damages remedy, the against a federal official, even in a particular Court must refrain from creating it, and even case, a court likely cannot predict the systemwide a single sound reason to defer to Congress is consequences, and that uncertainty alone is a enough to require the Court to refrain from special factor that forecloses relief. creating such a remedy. 7 Cases that cite this headnote 28 Cases that cite this headnote [7] United States Existence and Exclusivity of [4] Constitutional Law Creation of rights of Other Remedies action United States Constitutional Violations; A court may not fashion a Bivens remedy for Bivens Claims damages against a federal official if Congress already has provided, or has authorized the A two-step inquiry informs a court's analysis of Executive to provide, an alternative remedial a proposed Bivens claim for damages against structure, and if there are alternative remedial a federal official: first, the court asks whether the structures in place, that alone, like any special case presents a new Bivens context, i.e., the factor counseling against permitting Bivens court asks whether it is meaningfully different relief, is reason enough to limit the power of from the three cases in which the Supreme Court the Judiciary to infer a new Bivens cause of has implied a damages action, and second, if action. a claim arises in a new context, a Bivens remedy is unavailable if there are special factors 43 Cases that cite this headnote indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs [8] Constitutional Law Creation of rights of and benefits of allowing a damages action to action proceed. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 4 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... Constitutional Law Particular Issues and from the United States. U.S. Const. Amend. 4; Applications 6 U.S.C.A. § 211(e)(3)(A). United States Constitutional Violations; Bivens Claims 9 Cases that cite this headnote The relevant question, when a court decides whether to imply a cause of action for damages [11] Constitutional Law Creation of rights of under Bivens against a federal official, is action United States Constitutional Violations; not whether a Bivens action would disrupt a Bivens Claims remedial scheme, or whether the court should provide for a wrong that would otherwise go The Bivens inquiry does not invite federal unredressed, nor does it matter that existing courts to independently assess the costs and remedies do not provide complete relief; rather, benefits of implying a cause of action for the court must ask only whether it, rather than the damages against a federal official, and a court political branches, is better equipped to decide faces only one question: whether there is any whether existing remedies should be augmented rational reason to think that Congress is better by the creation of a new judicial remedy. suited to weigh the costs and benefits of allowing a damages action to proceed. 17 Cases that cite this headnote 59 Cases that cite this headnote [9] United States Privilege or Immunity; Good Faith [12] Constitutional Law Creation of rights of action Even in circumstances in which a Bivens remedy for damages against a federal official is United States Constitutional Violations; Bivens Claims generally available, an action under Bivens In determining whether special factors counsel will be defeated if the defendant is immune from against implying a cause of action for damages suit, and Congress may grant such immunity as it sees fit. under Bivens against a federal official, a court inevitably will impair governmental interests, 6 Cases that cite this headnote and thereby frustrate Congress’ policymaking role, if it applies the special factors analysis at [10] United States Use of force a narrow level of generality that asks whether Congress was better positioned to create Bivens relief is appropriate in light of the remedies in border-security context, as special balance of circumstances in the particular case; rather, under the proper approach, a court must factor counseling against implying a Bivens ask more broadly if there is any reason to think cause of action for damages, against a that judicial intrusion into a given field might United States Border Patrol agent, for Fourth be harmful or inappropriate, and if so, or even Amendment excessive force violation alleged if there is the potential for such consequences, by owner of bed-and-breakfast inn adjacent to United States-Canadian border; regulating the a court cannot afford a plaintiff a Bivens conduct of agents at the border unquestionably remedy. had national security implications, and the Border Patrol agent, who was investigating a 5 Cases that cite this headnote guest at the inn, had been carrying out Border Patrol's mandate to interdict persons attempting [13] United States Particular remedies to illegally enter or exit the United States or goods being illegally imported into or exported © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 5 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... Fact that Congress had already provided and benefits of allowing a damages action to alternative remedies that protected plaintiffs, like proceed. the owner of a bed-and-breakfast inn adjacent to the United States-Canadian border, was a special 78 Cases that cite this headnote factor counseling against implying a Bivens cause of action for damages in a new context, i.e., [16] United States Particular Rights, Acts, and owner's proposed Fourth Amendment excessive Claims force claim against a United States Border Patrol There is no Bivens action, for damages, for agent; Border Patrol was statutorily obligated a federal official's retaliation for exercising First to control, direct, and supervise all employees, and by regulation, Border Patrol was required Amendment rights; extending Bivens to this to investigate alleged violations of standards new context would pose an acute risk that fear for enforcement activities and accept grievances of personal monetary liability and harassing from any persons wishing to lodge a complaint, litigation would unduly inhibit officials in the though owner was not entitled to participate in discharge of their duties. U.S. Const. Amend. 1. grievance process and owner had no right to 20 Cases that cite this headnote judicial review of an adverse determination. U.S. Const. Amend. 4; 8 U.S.C.A. § 1103(a)(2); 8 [17] United States Particular Rights, Acts, and C.F.R. § 287.10(a, b). Claims 13 Cases that cite this headnote Judicial recognition of any new Bivens action for damages against a federal official, for [14] Constitutional Law Creation of rights of retaliation in violation of the First Amendment, action entails substantial social costs, including the risk that fear of personal monetary liability and Because recognizing a Bivens cause of action harassing litigation will unduly inhibit officials for damages against a federal official is an in the discharge of their duties, because a plaintiff extraordinary act that places great stress on could turn practically any adverse action into the constitutional separation of powers, in that grounds for a retaliation claim, and because an creating a cause of action is at bottom a official's state of mind is easy to allege and hard legislative endeavor, courts have a concomitant to disprove, so that insubstantial claims that turn responsibility to evaluate any grounds that on retaliatory intent may be less amenable to counsel against Bivens relief, despite a party's summary disposition. U.S. Const. Amend. 1. possible forfeiture of an argument. 9 Cases that cite this headnote 4 Cases that cite this headnote [18] United States Constitutional Violations; [15] Constitutional Law Creation of rights of Bivens Claims action The absence of relief through an alternative When there is a new constitutional right at remedy created by Congress does not by any issue, a new context for implying a cause of means necessarily imply that courts should award money damages by implying a cause of action for damages under Bivens against action under Bivens against a federal official. a federal official arises, so that a Bivens remedy is unavailable if there are special factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs [19] United States Existence and Exclusivity of Other Remedies © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 6 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... When determining whether to imply a cause in order. The Turkish guest unlawfully entered Canada later that evening. of action for damages under Bivens against a federal official, courts defer to congressional Boule filed a grievance with Agent Egbert's supervisors inaction if the design of a Government program and an administrative claim with Border Patrol pursuant suggests that Congress has provided what it to the Federal Tort Claims Act (FTCA). Egbert allegedly considers adequate remedial mechanisms. retaliated against Boule by reporting Boule's “SMUGLER” 1 Case that cites this headnote license plate to the Washington Department of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule's tax [20] Constitutional Law Creation of rights of returns. Boule's FTCA claim was ultimately denied, and action Border Patrol took no action against Egbert for his use of In determining whether to imply a cause of force or alleged acts of retaliation. Boule then sued Egbert action for damages under Bivens against a in Federal District Court, alleging a Fourth Amendment federal official, a court does not ask whether violation for excessive use of force and a First Amendment it can determine a damages amount; rather, it violation for unlawful retaliation. Invoking Bivens v. Six asks whether there are sound reasons to think Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, Congress might doubt the efficacy or necessity 29 L.Ed.2d 619, Boule asked the District Court to recognize a of a damages remedy at all. damages action for each alleged constitutional violation. The 7 Cases that cite this headnote District Court declined to extend Bivens as requested, but the Court of Appeals reversed. Held: Bivens does not extend to create causes of action for Boule's Fourth Amendment excessive-force claim and First *1796 Syllabus * Amendment retaliation claim. Pp. 1802 - 1809. Respondent Robert Boule owns a bed-and-breakfast—the Smuggler's Inn—in Blaine, Washington. The inn abuts the (a) In Bivens, the Court held that it had authority to create international border between Canada and the United States. a damages action against federal agents for violating the Boule at times helped federal agents identify and apprehend plaintiff's Fourth Amendment rights. Over the next decade, persons *1797 engaged in unlawful cross-border activity the Court also fashioned new causes of action under the Fifth on or near his property. But Boule also would provide Amendment, see Davis v. Passman, 442 U.S. 228, 99 transportation and lodging to illegal border crossers. Often, S.Ct. 2264, 60 L.Ed.2d 846, and the Eighth Amendment, see Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d unlawful activity. 15. Since then, however, the Court has come “to appreciate more fully the tension between” judicially created causes of In 2014, Boule informed petitioner Erik Egbert, a U. S. Border action and “the Constitution's separation of legislative and Patrol agent, that a Turkish national, arriving in Seattle by judicial power,” Hernández v. Mesa, 589 U. S. ––––, ––––, way of New York, had scheduled transportation to Smuggler's 140 S.Ct. 735, 741, 206 L.Ed.2d 29, and has declined 11 Inn. When Agent Egbert observed one of Boule's vehicles times to imply a similar cause of action for other alleged returning to the inn, he suspected that the Turkish national was constitutional violations, see, e.g., Chappell v. Wallace, a passenger and followed the vehicle to the inn. On Boule's account, Boule asked Egbert to leave, but Egbert refused, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586; Bush v. became violent, and threw Boule first against the vehicle Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648. Rather and then to the ground. Egbert then checked the immigration than dispense with Bivens, the Court now emphasizes paperwork for Boule's guest and left after finding everything that recognizing a Bivens cause of action is “a disfavored © 2023 Thomson Reuters. No claim to original U.S. Government Works. 5  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 7 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... is appropriate in light of the balance of circumstances in the judicial activity.” Ziglar v. Abbasi, 582 U. S. ––––, ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290. “particular case.” United States v. Stanley, 483 U.S. 669, 683, 107 S.Ct. 3054, 97 L.Ed.2d 550. Rather, it should ask “[m]ore broadly” whether there is any reason to think that The analysis of a proposed Bivens claim proceeds in two “judicial intrusion” into a given field might be “harmful” or steps: A court asks first whether the case presents “a new “inappropriate,” id., at 681, 107 S.Ct. 3054. The proper Bivens context”—i.e., is it “meaningfully different from inquiry here is whether a court is competent to authorize a the three cases in which the Court has implied a damages damages action not just against Agent Egbert, but against action,” Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1855, and, Border Patrol agents generally. The answer is no. Pp. 1804 - second, even if so, do “special factors” *1798 indicate that 1806. the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action (2) Second, Congress has provided alternative remedies to proceed.” Id., at –––– – ––––, 137 S.Ct., at 1857–1858. for aggrieved parties in Boule's position that independently This two-step inquiry often resolves to a single question: foreclose a Bivens action here. By regulation, Border whether there is any reason to think that Congress might be Patrol must investigate “[a]lleged violations” and accept better equipped to create a damages remedy. Further, under grievances from “[a]ny persons.” 8 C.F.R. §§ 287.10(a)–(b). the Court's precedents, a court may not fashion a Bivens Boule claims that this regulatory grievance procedure was remedy if Congress already has provided, or has authorized inadequate, but this Court has never held that a Bivens the Executive to provide, “an alternative remedial structure.” alternative must afford rights such as judicial review of an Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858. Pp. 1802 - adverse determination. Bivens “is concerned solely with 1804. deterring the unconstitutional acts of individual officers.” Correctional Services Corp. v. Malesko, 534 U.S. 61, (b) The Court of Appeals conceded that Boule's Fourth 71, 122 S.Ct. 515, 151 L.Ed.2d 456. And, regardless, Amendment claim presented a new Bivens context, but the question whether a given remedy is adequate is a its conclusion that there was no reason to hesitate before legislative determination. As in Hernández, this Court has no recognizing a cause of action against Agent Egbert was warrant to doubt that the consideration of Boule's grievance incorrect for two independent reasons. Pp. 1804 - 1807. secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ––––, 140 S.Ct., at ––––. Pp. (1) First, the “risk of undermining border security provides 1806 - 1807. reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ––––, 140 S.Ct., at 747. In (c) There is no Bivens cause of action for Boule's First Hernández, the Court declined to create a damages remedy Amendment retaliation claim. That claim presents a new for an excessive-force claim against a Border Patrol agent because “regulating the conduct of agents at the border Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. unquestionably has national security implications.” Id., at ––––, 140 S.Ct., at 747. That reasoning applies with full Extending Bivens to alleged First Amendment violations force here. The Court of Appeals disagreed because it viewed would pose an acute “risk that fear of *1799 personal Boule's Fourth Amendment claim as akin to a “conventional” monetary liability and harassing litigation will unduly inhibit excessive-force claim, as in Bivens, and less like the cross- officials in the discharge of their duties.” Anderson v. border shooting in Hernández. But that does not bear on the Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d relevant point: Permitting suit against a Border Patrol agent 523. In light of these costs, “Congress is in a better position to decide whether or not the public interest would be served” presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the by imposing a damages action. Bush, 462 U.S. at 389, pitfalls of applying the special-factors analysis at too granular 103 S.Ct. 2404. The Court of Appeals’ reasons for extending a level. A court should not inquire whether Bivens relief Bivens in this context—that retaliation claims are “well- © 2023 Thomson Reuters. No claim to original U.S. Government Works. 6  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 8 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... established” and that Boule alleges that Agent Egbert “was Boos, W. Scott Railton, Halley Fisher, Cascadia Cross-Border not carrying out official duties” when the retaliation occurred Law, Bellingham, WA, for respondent. —lack merit. Also lacking merit is Boule's claim that this Opinion Court identified a Bivens cause of action under allegedly Justice THOMAS delivered the opinion of the Court. similar circumstances in Passman. Even assuming factual parallels, Passman carries little weight because it predates In Bivens v. Six Unknown Fed. Narcotics Agents, 403 the Court's current approach to implied causes of action. U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), this Court A plaintiff cannot justify a Bivens extension based on authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 “parallel circumstances” with Bivens, Passman, or years, however, we have declined 11 times to imply a similar Carlson—the three cases in which the Court has implied cause of action for other alleged constitutional violations. a damages action—unless the plaintiff also satisfies the See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, prevailing “analytic framework” prescribed by the last four 76 L.Ed.2d 586 (1983); Bush v. Lucas, 462 U.S. 367, decades of intervening case law. Ziglar, 582 U. S., at –––– – ––––, 137 S.Ct., at. Pp. 1806 - 1808. 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); 998 F.3d 370, reversed. Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); *1800 FDIC v. Meyer, 510 U.S. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Correctional BARRETT, JJ., joined. GORSUCH, J., filed an opinion Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 concurring in the judgment. SOTOMAYOR, J., filed an L.Ed.2d 456 (2001); Wilkie v. Robbins, 551 U.S. 537, 127 opinion concurring in the judgment in part and dissenting in S.Ct. 2588, 168 L.Ed.2d 389 (2007); Hui v. Castaneda, part, in which BREYER and KAGAN, JJ., joined. 559 U.S. 799, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010); Minneci v. Pollard, 565 U.S. 118, 132 S.Ct. 617, 181 Attorneys and Law Firms L.Ed.2d 606 (2012); Ziglar v. Abbasi, 582 U. S. ––––, Sarah M. Harris for the petitioner. 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017); Hernández v. Michael R. Huston for the United States as amicus curiae, by Mesa, 589 U. S. ––––, 140 S.Ct. 735, 206 L.Ed.2d 29 (2020). special leave of the Court, supporting the petitioner. Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. Felicia H. Ellsworth for the respondent. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim. Because Geoff Grindeland, Nikki Carsley, Seamark Law Group, our cases have made clear that, in all but the most unusual Bainbridge Island, WA, Lisa S. Blatt, Sarah M. Harris, circumstances, prescribing a cause of action is a job for Counsel of Record, Andrew L. Hoffman, Aaron Z. Congress, not the courts, we reverse. Roper, Natalie A. Komrovsky, Williams & Connolly LLP, Washington, DC, for petitioner. Claire H. Chung, Ruth E. Vinson, Andres C. Salinas, Robin I C. Burrell, Wilmer Culer Pickering Hale and Dorr LLP, Washington, DC, Breean L. Beggs, Paukert and Troppman, Blaine, Washington, is the last town in the United States along PLLC, Spokane, WA, Felicia H. Ellsworth, Counsel of U. S. Interstate Highway 5 before reaching the Canadian Record, Mark C. Fleming, Asma S. Jaber, Wilmer Cutler border. Respondent Robert Boule is a longtime Blaine Pickering Hale and Dorr LLP, Boston, MA, Gregory Donald resident. The rear of his property abuts the Canadian border at “0 Avenue,” a Canadian street. Boule's property line actually extends five feet into Canada. Several years ago, Boule placed © 2023 Thomson Reuters. No claim to original U.S. Government Works. 7  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 9 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... a line of small stones on his property to mark the international Smuggler's Inn and the criminal activity that attended it. boundary. As shown below, any person could easily enter the On March 20, 2014, Boule informed Agent Egbert that a United States or Canada through or near Boule's property. See Turkish national, arriving in Seattle by way of New York, App. 100. had scheduled transportation to Smuggler's Inn later that day. Agent Egbert grew suspicious, as he could think of “no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine.” Id., at 104. The photograph below displays the amenities for which Boule's Turkish guest would have traveled more than 7,500 miles. See id., at 102. Boule markets his home as a bed-and-breakfast aptly named “Smuggler's Inn.” The area surrounding the Inn “is a hotspot for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations.” Id., at 91. “On numerous occasions,” U. S. Border Patrol agents “have observed persons come south across the border and walk into Smuggler's Inn through the back door.” Id., at 101. Later that afternoon, Agent Egbert observed one of Federal agents also have seized from the Inn shipments of Boule's vehicles—a black SUV with the license plate cocaine, methamphetamine, ecstasy, and other narcotics. For “SMUGLER”—returning to the Inn. Agent Egbert suspected a time, Boule served as a confidential informant who would that Boule's Turkish guest was a passenger and followed help federal agents identify and apprehend persons engaged in the SUV into the driveway so he could check the guest's unlawful cross-border activity on or near his property. Boule immigration status. On Boule's account, the situation claims that the Government has paid him upwards of $60,000 escalated from there. Boule instructed Agent Egbert to leave for his services. his property, but Agent Egbert declined. Instead, Boule claims, Agent Egbert lifted him off the ground and threw him Ever the entrepreneur, Boule saw his relationship with Border against the SUV. After Boule collected himself, Agent Egbert Patrol as a business opportunity. Boule would host persons allegedly threw him to the ground. Agent Egbert then checked who unlawfully entered the United States as “guests” at the the guest's immigration paperwork, concluded that everything Inn and offer to drive them to Seattle or elsewhere. He *1801 was in order, and left. Later that evening, Boule's Turkish also would pick up Canada-bound guests throughout the State guest unlawfully entered Canada from Smuggler's Inn. and drive them north to his property along the border. Either way, Boule would charge $100–$150 per hour for his shuttle Boule lodged a grievance with Agent Egbert's supervisors, service and require guests to pay for a night of lodging even alleging that Agent *1802 Egbert had used excessive if they never intended to stay at the Inn. Meanwhile, Boule force and caused him physical injury. Boule also filed would inform federal law enforcement if he was scheduled to an administrative claim with Border Patrol pursuant to lodge or transport persons of interest. In short order, Border the Federal Tort Claims Act (FTCA). See 28 U.S.C. § Patrol agents would arrive to arrest the guests, often within 2675(a). According to Boule, Agent Egbert retaliated against a few blocks of the Inn. Boule would decline to offer his him while those claims were pending by reporting Boule's erstwhile customers a refund. In his view, this practice was “SMUGLER” license plate to the Washington Department of “nothing any different than [the] normal policies of any hotel/ Licensing for referencing illegal conduct, and by contacting motel.” Id., at 120. 1 the Internal Revenue Service and prompting an audit of Boule's tax returns. Ultimately, Boule's FTCA claim was In light of Boule's business model, local Border Patrol agents, denied and, after a year-long investigation, Border Patrol took including petitioner Erik Egbert, were well acquainted with no action against Agent Egbert for his alleged use of force © 2023 Thomson Reuters. No claim to original U.S. Government Works. 8  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 10 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... or acts of retaliation. Thereafter, Agent Egbert continued to common-law powers to create causes of action,” Malesko, serve as an active-duty Border Patrol agent. 534 U.S. at 75, 122 S.Ct. 515 (Scalia, J., concurring), we have come “to appreciate more fully the tension between” In January 2017, Boule sued Agent Egbert in his individual judicially created causes of action and “the Constitution's capacity in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First separation of legislative and judicial power,” Hernández, Amendment violation for unlawful retaliation. Boule invoked 589 U. S., at ––––, 140 S.Ct., at 741. At bottom, creating a cause of action is a legislative endeavor. Courts engaged Bivens and asked the District Court to recognize a damages in that unenviable task must evaluate a “range of policy action for each alleged constitutional violation. The District considerations ... at least as broad as the range ... a legislature Court declined to extend a Bivens remedy to Boule's would consider.” Bivens, 403 U.S. at 407, 91 S.Ct. 1999 claims and entered judgment for Agent Egbert. The Court of (Harlan, J., concurring in judgment); see also post, at 1809 Appeals reversed. See 998 F.3d 370, 385 (C.A.9 2021). - 1810 (GORSUCH, J., concurring in judgment). Those Twelve judges dissented from the denial of rehearing en banc. factors include “economic and governmental concerns,” “administrative costs,” and the “impact on governmental See id., at 373 (Bumatay, J., dissenting); id., at 384 operations systemwide.” *1803 Ziglar, 582 U. S., (Owens, J., dissenting); ibid. (Bress, J., dissenting). at ––––, ––––, 137 S.Ct., at 1856, 1858. Unsurprisingly, Congress is “far more competent than the Judiciary” to weigh We granted certiorari. 595 U. S. ––––, 142 S.Ct. 457, 211 L.Ed.2d 278 (2021). such policy considerations. Schweiker, 487 U.S. at 423, 108 S.Ct. 2460. And the Judiciary's authority to do so at all is, at best, uncertain. See, e.g., Hernández, 589 U. S., at II ––––, 140 S.Ct., at 742. In Bivens, the Court held that it had authority to create “a [3] Nonetheless, rather than dispense with Bivens cause of action under the Fourth Amendment” against federal altogether, we have emphasized that recognizing a cause agents who allegedly manacled the plaintiff and threatened of action under Bivens is “a disfavored judicial activity.” his family while arresting him for narcotics violations. 403 Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1856-1857 (internal U.S. at 397, 91 S.Ct. 1999. Although “the Fourth Amendment quotation marks omitted); Hernández, 589 U. S., at ––––, does not in so many words provide for its enforcement by an 140 S.Ct., at 742–743 (internal quotation marks omitted). award of money damages,” id., at 396, 91 S.Ct. 1999, the When asked to imply a Bivens action, “our watchword is Court “held that it could authorize a remedy under general caution.” Id., at ––––, 140 S.Ct., at 742. “[I]f there are principles of federal jurisdiction,” Ziglar, 582 U. S., at sound reasons to think Congress might doubt the efficacy or ––––, 137 S.Ct., at 1854 (citing Bivens, 403 U.S. at 392, necessity of a damages remedy[,] the courts must refrain from 91 S.Ct. 1999). Over the following decade, the Court twice creating [it].” Ziglar, 582 U. S., at ––––, 137 S.Ct. , at again fashioned new causes of action under the Constitution 1858. “[E]ven a single sound reason to defer to Congress” —first, for a former congressional staffer's Fifth Amendment is enough to require a court to refrain from creating such a sex-discrimination claim, see Davis v. Passman, 442 U.S. remedy. Nestlé USA, Inc. v. Doe, 593 U. S. ––––, ––––, 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and second, for 141 S.Ct. 1931, 1937, 210 L.Ed.2d 207 (2021) (plurality a federal prisoner's inadequate-care claim under the Eighth opinion). Put another way, “the most important question is Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. who should decide whether to provide for a damages remedy, 1468, 64 L.Ed.2d 15 (1980). Congress or the courts?” Hernández, 589 U. S., at –––– – ––––, 140 S.Ct., at 750 (internal quotation marks omitted). [1] [2] Since these cases, the Court has not implied If there is a rational reason to think that the answer is additional causes of action under the Constitution. Now “Congress”—as it will be in most every case, see Ziglar, 582 long past “the heady days in which this Court assumed © 2023 Thomson Reuters. No claim to original U.S. Government Works. 9  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 11 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... U. S., at ––––, 137 S.Ct., at 1857-1858—no Bivens action See Hernández v. Mesa, 885 F.3d 811, 818 (C.A.5 2018) may lie. Our cases instruct that, absent utmost deference (en banc) (“The newness of this ‘new context’ should alone to Congress’ preeminent authority in this area, the courts require dismissal”). “arrogat[e] legislative power.” Hernández, 589 U. S., at [7] [8] [9] Finally, our cases hold that a court may not ––––, 140 S.Ct., at 741. fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, “an alternative [4] To inform a court's analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in remedial structure.” Ziglar, 582 U. S., at ––––, 137 S.Ct., two steps. See Hernández, 589 U. S., at ––––, 140 S.Ct., at 1858; see also Schweiker, 487 U.S. at 425, 108 S.Ct. at 742–743. First, we ask whether the case presents “a new 2460. If there are alternative remedial structures in place, “that alone,” like any special factor, is reason enough to “limit Bivens context”—i.e., is it “meaningful[ly]” different from the power of the Judiciary to infer a new Bivens cause of the three cases in which the Court has implied a damages action. Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1859-1860. action.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858. 2 Second, if a claim arises in a new context, a Bivens remedy Importantly, the relevant question is not whether a Bivens is unavailable if there are “special factors” indicating that the action would “disrup[t]” a remedial scheme, Schweiker, Judiciary is at least arguably less equipped than Congress to 487 U.S. at 426, 108 S.Ct. 2460, or whether the court “should “weigh the costs and benefits of allowing a damages action provide for a wrong that would otherwise go unredressed,” to proceed.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858 Bush, 462 U.S. at 388, 103 S.Ct. 2404. Nor does it matter (internal quotation marks omitted). If there is even a single that “existing remedies do not provide complete relief.” “reason to pause before applying Bivens in a new context,” Ibid. Rather, the court must ask only whether it, rather than a court may not recognize a Bivens remedy. Hernández, the political branches, is better equipped to decide whether 589 U. S., at ––––, 140 S.Ct., at 743. existing remedies “should be augmented by the creation of a new judicial remedy.” Ibid.; see also id., at 380, 103 [5] [6] While our cases describe two steps, those steps S.Ct. 2404 (“the question [is] who should decide”). 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 example, we have explained that a new context arises when there are “potential special factors that III previous Bivens cases did not consider.” Ziglar, 582 U. S., Applying the foregoing principles, the Court of Appeals at ––––, 137 S.Ct., at 1860. And we have identified several plainly erred when it created causes of action for examples of new contexts—e.g., a case that involves a “new Boule's Fourth Amendment excessive-force claim and First category of defendants,” Malesko, 534 U.S. at 68, 122 Amendment retaliation claim. S.Ct. 515; see also Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1876—largely because they represent situations in which a court is not undoubtedly better positioned than Congress A to create a damages action. We have never offered an The Court of Appeals conceded that Boule's Fourth “exhaustive” accounting of such scenarios, however, because no court could forecast every factor that might “counse[l] Amendment claim presented a new context for Bivens purposes, yet it concluded there was no reason to hesitate hesitation.” Id., at ––––, 137 S.Ct., at 1880. Even in a before recognizing a cause of action against Agent Egbert. particular case, a court likely cannot predict the “systemwide” consequences of recognizing a cause of action under Bivens. See 998 F.3d at 387. That conclusion was incorrect for two independent reasons: Congress is better positioned *1804 Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858. to create remedies in the border-security context, and the That uncertainty alone is a special factor that forecloses relief. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 10  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 12 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... Government already has provided alternative remedies that U.S. at 678, 107 S.Ct. 3054—shows here, no less than protect plaintiffs like Boule. We address each in turn. in Hernández, that the Judiciary is not undoubtedly better positioned than Congress to authorize a damages action in this national-security context. That this case does not involve a 1 cross-border shooting, as in Hernández, but rather a more [10] In Hernández, we declined to create a damages remedy “conventional” excessive-force claim, as in Bivens, does for an excessive-force claim against a Border Patrol agent not bear on the relevant point. Either way, the Judiciary is who shot and killed a 15-year-old Mexican national across comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate. the border in Mexico. See 589 U. S., at –––– – ––––, 140 S.Ct., at 739–740. We did not recognize a Bivens The Court of Appeals downplayed the national-security risk action there because “regulating the conduct of agents at the from imposing Bivens liability because Agent Egbert was border unquestionably has national security implications,” not “literally ‘at the border,’ ” and Boule's guest already and the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” had cleared customs in New York. 998 F.3d at 388; see also post, at 1816 - 1817, 1820 (opinion of SOTOMAYOR, Hernández, 589 U. S., at ––––, 140 S.Ct., at 747. This J.) (same). The court also found that Boule had a weightier reasoning applies here with full force. During the alleged altercation with Boule, Agent Egbert was carrying out Border interest in Bivens relief than the parents of the deceased Patrol's mandate to “interdic[t] persons attempting to illegally Mexican teenager in Hernández, because Boule “is a United enter or exit the United States or goods being illegally States citizen, complaining of harm suffered on his own imported into or exported from the United States.” 6 property in the United States.” 998 F.3d at 388; see U.S.C. § 211(e)(3)(A). Because “[m]atters intimately *1805 also post, at 1816 - 1817, 1820 (opinion of SOTOMAYOR, related to foreign policy and national security are rarely J.) (same). Finding that “any costs imposed by allowing a proper subjects for judicial intervention,” Haig v. Agee, Bivens claim to proceed are outweighed by compelling 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981), we interests in favor of protecting United States citizens on their own property in the United States,” the court extended reaffirm that a Bivens cause of action may not lie where, as here, national security is at issue. Bivens to Boule's case. 998 F.3d at 389. The Court of Appeals thought otherwise. In its view, [11] [12] This analysis is deeply flawed. The Bivens Boule's Fourth Amendment claim is “conventional,” 998 inquiry does not invite federal courts to independently assess F.3d at 387; see also post, at 1814 - 1815, 1816 - 1817 the costs and benefits of implying a cause of action. A (SOTOMAYOR, J., concurring in judgment in part and court faces only one question: whether there is any rational dissenting in part) (same), and, though it arises in a new reason (even one) to think that Congress is better suited context, this Court has not “ ‘cast doubt’ ” on extending to “weigh the costs and benefits of allowing a damages Bivens within the “ ‘common and recurrent sphere of action to proceed.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858. Thus, a court should not inquire, as the Court of law enforcement’ ” in which it arose, 998 F.3d at 389 Appeals did here, whether Bivens relief is appropriate (quoting Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1857). in light of the balance of circumstances in the “particular While Bivens and this case do involve similar allegations case.” Stanley, 483 U.S. at 683, 107 S.Ct. 3054. A of excessive force and thus arguably present “almost parallel court inevitably will “impai[r]” governmental interests, and circumstances” or a similar “mechanism of injury,” Ziglar, thereby frustrate Congress’ policymaking role, if it applies 582 U. S., at ––––, 137 S.Ct., at 1859, these superficial the “ ‘special factors’ analysis” at such a narrow “leve[l] of similarities are not enough to support the judicial creation generality.” Id., at 681, 107 S.Ct. 3054. Rather, under the of a cause of action. The special-factors inquiry—which proper approach, a court must ask “[m]ore broadly” if there Bivens never meaningfully undertook, see Stanley, 483 is any reason to think that “judicial intrusion” into a given © 2023 Thomson Reuters. No claim to original U.S. Government Works. 11  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 13 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... standards for enforcement activities” and accept grievances field might be “harmful” or “inappropriate.” Ibid. If so, or from “[a]ny persons wishing to lodge a complaint.” 8 even if there is the “potential” for such consequences, a court C.F.R. §§ 287.10(a)–(b). As noted, Boule took advantage cannot afford a plaintiff a Bivens remedy. *1806 Ziglar, 582 of this grievance procedure, prompting a year-long internal U. S., at ––––, ––––, 137 S.Ct., at 1859-1860, 1864-1865 investigation into Agent Egbert's conduct. See supra, at 1801 (emphasis added). As in Hernández, then, we ask here - 1802. whether a court is competent to authorize a damages action not just against Agent Egbert but against Border Patrol agents [14] Boule nonetheless contends that Border Patrol's generally. The answer, plainly, is no. See Hernández, 589 grievance process is inadequate because he is not entitled to U. S., at ––––, 140 S.Ct., at 746–747 (refusing to extend participate and has no right to judicial review of an adverse Bivens into the “field” of “border security”). determination. 3 But we have never held that a Bivens alternative must afford rights to participation or appeal. That The Court of Appeals’ analysis betrays the pitfalls of applying is so because Bivens “is concerned solely with deterring the special-factors analysis at too granular a level. The court the unconstitutional acts of individual officers”—i.e., the rested on three irrelevant distinctions from Hernández. First, focus is whether the Government has put in place safeguards Agent Egbert was several feet from (rather than straddling) to “preven[t]” constitutional violations “from recurring.” the border, but cross-border security is obviously implicated in either event. Second, Boule's guest arrived in Seattle from Malesko, 534 U.S. at 71, 74, 122 S.Ct. 515; see *1807 New York rather than abroad, but an alien's port of entry also Meyer, 510 U.S. at 485, 114 S.Ct. 996. And, again, the does not make him less likely to be a national-security threat. question whether a given remedy is adequate is a legislative And third, Agent Egbert investigated immigration violations determination that must be left to Congress, not the federal on our side of the border, not Canada's, but immigration courts. So long as Congress or the Executive has created a investigations in this country are perhaps more likely to remedial process that it finds sufficient to secure an adequate impact the national security of the United States. In short, level of deterrence, the courts cannot second-guess that the Court of Appeals offered no plausible basis to permit a calibration by superimposing a Bivens remedy. That is true Fourth Amendment Bivens claim against Agent Egbert to even if a court independently concludes that the Government's proceed. procedures are “not as effective as an individual damages remedy.” Bush, 462 U.S. at 372, 103 S.Ct. 2404. Thus here, as in Hernández, we have no warrant to doubt that 2 the consideration of Boule's grievance against Agent Egbert [13] Second, Congress has provided alternative remedies secured adequate deterrence and afforded Boule an alternative for aggrieved parties in Boule's position that independently remedy. See 589 U. S., at ––––, 140 S.Ct., at 744–745. foreclose a Bivens action here. In Hernández, we declined to authorize a Bivens remedy, in part, because the Executive Branch already had investigated alleged B misconduct by the defendant Border Patrol agent. See 589 [15] [16] We also conclude that there is no Bivens cause U. S., at –––– – ––––, ––––, 140 S.Ct., at 744–745, 746– of action for Boule's First Amendment retaliation claim. 747. In Malesko, we explained that Bivens relief was While we have assumed that such a damages action might be unavailable because federal prisoners could, among other available, see, e.g., Hartman v. Moore, 547 U.S. 250, 252, options, file grievances through an “Administrative Remedy 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), “[w]e have never Program.” 534 U.S. at 74, 122 S.Ct. 515. Both kinds held that Bivens extends to First Amendment claims,” of remedies are available here. The U. S. Border Patrol is statutorily obligated to “control, direc[t], and supervis[e] ... Reichle v. Howards, 566 U.S. 658, 663, n. 4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). Because a new context arises all employees.” 8 U.S.C. § 1103(a)(2). And, by regulation, Border Patrol must investigate “[a]lleged violations of the when there is a new “constitutional right at issue,” Ziglar, © 2023 Thomson Reuters. No claim to original U.S. Government Works. 12  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 14 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... 582 U. S., at ––––, 137 S.Ct., at 1860, the Court of Appeals Egbert “was not carrying out official duties” when he correctly held that Boule's First Amendment claim presents retaliated against him. 998 F.3d at 391. Neither rationale a new Bivens context. See 998 F.3d at 390. Now has merit. First, just because plaintiffs often plead unlawful retaliation to establish a First Amendment violation is not a presented with the question whether to extend Bivens to reason to afford them a cause of action to sue federal officers this context, we hold that there is no Bivens action for First for money damages. If anything, that retaliation claims are Amendment retaliation. There are many reasons to think that common, and therefore more likely to impose “a significant Congress, not the courts, is better suited to authorize such a expansion of Government liability,” Meyer, 510 U.S. at damages remedy. 486, 114 S.Ct. 996, counsels against permitting Bivens relief. [17] Recognizing any new Bivens action “entail[s] substantial social costs, including the risk that fear of personal Second, the Court of Appeals’ scope-of-duty observation monetary liability and harassing litigation will unduly inhibit does not meaningfully limit the number of potential Bivens officials in the discharge of their duties.” Anderson v. claims or otherwise undermine the reasons for hesitation Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d stated above. It is easy to allege that federal employees 523 (1987). Extending Bivens to alleged First Amendment acted beyond the scope of their authority when claiming a violations would pose an acute risk of increasing such constitutional violation. And, regardless, granting Bivens costs. A plaintiff can turn practically any adverse action relief because a federal agent supposedly did not act into grounds for a retaliation claim. And, “[b]ecause an pursuant to his law-enforcement mission “misses the point.” official's state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may Hernández, 589 U. S., at ––––, 140 S.Ct., at 746. “The question is not whether national security,” or some other be less amenable to summary disposition.” Crawford- governmental interest, actually “requires [the defendant's] El v. Britton, 523 U.S. 574, 584–585, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (internal quotation marks omitted). Even conduct.” Ibid. Instead, we “ask whether the Judiciary a frivolous retaliation claim “threaten[s] to set off broad- should alter the framework established by the political ranging discovery in which there is often no clear end branches for addressing” any such conduct that allegedly to the relevant evidence.” Nieves v. Bartlett, 587 U. S. violates the Constitution. Ibid. With respect to that ––––, ––––, 139 S.Ct. 1715, 204 L.Ed.2d 1 (2019) (internal question, the foregoing discussion shows that the Judiciary is quotation marks omitted). ill equipped to alter that framework generally, and especially so when it comes to First Amendment claims. “[U]ndoubtedly,” then, the “prospect of personal liability” under the First Amendment would lead “to new difficulties Boule responds that any hesitation is unwarranted because and expense.” Schweiker, 487 U.S. at 425, 108 S.Ct. 2460. this Court in Passman already identified a Bivens cause Federal employees “face[d with] the added risk of personal of action under allegedly similar circumstances. There, the liability for decisions that they believe to be a correct response Court permitted a congressional staffer to sue a congressman to improper [activity] would be deterred from” carrying out for sex discrimination under the Fifth Amendment. See their duties. Bush, 462 U.S. at 389, 103 S.Ct. 2404. We are 442 U.S. at 231, 99 S.Ct. 2264. In Boule's view, therefore “convinced” that, in light of these costs, “Congress Passman, like this case, permitted a damages action to is in a better position to decide whether or not the public proceed even though it required the factfinder to probe a interest would be served” by imposing a damages action. federal official's motives for taking an adverse action against Id., at 390, 103 S.Ct. 2404. the plaintiff. [18] [19] [20] Even assuming the factual parallels are The Court of Appeals nonetheless extended Bivens to the First Amendment because, in its view, retaliation claims as close as Boule claims, Passman carries little weight are “well-established,” and Boule alleges that *1808 Agent because it predates our current approach to implied causes of © 2023 Thomson Reuters. No claim to original U.S. Government Works. 13  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 15 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... action and diverges from the prevailing framework in three Since it was decided, Bivens has had no shortage of important ways. First, the Passman Court concluded that detractors. See, e.g., Bivens, 403 U.S. at 411, 91 S.Ct. a Bivens action must be available if there is “no effective 1999 (Burger, C. J., dissenting); id., at 427, 91 S.Ct. means other than the judiciary to vindicate” the purported 1999 (Black, J., dissenting); id., at 430, 91 S.Ct. 1999 Fifth Amendment right. 442 U.S. at 243, 99 S.Ct. 2264; (Blackmun, J., dissenting); Carlson, 446 U.S. at 31, 100 see also Carlson, 446 U.S. at 18–19, 100 S.Ct. 1468 S.Ct. 1468 (Rehnquist, J., dissenting); Malesko, 534 U.S. (Congress can foreclose Bivens relief by “provid[ing] an alternative remedy which it explicitly declared to be a at 75, 122 S.Ct. 515 (Scalia, J., concurring); Hernández, substitute for recovery directly under the Constitution and 589 U. S., at ––––, 140 S.Ct., at 750 (THOMAS, J., viewed as equally effective”). Since then, however, we have concurring); post, at 1809 - 1810 (opinion of GORSUCH, explained that the absence of relief “does not by any means J.). And, more recently, we have indicated that if we were necessarily imply that courts should award money damages.” called to decide Bivens today, we would decline to Schweiker, 487 U.S. at 421, 108 S.Ct. 2460. Second, discover any implied causes of action in the Constitution. See Passman indicated that a damages remedy is appropriate Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1855. But, to unless Congress “explicit[ly]” declares that a claimant “may decide the case before us, we need not reconsider Bivens not recover money damages.” 442 U.S. at 246–247, itself. Accordingly, we reverse the judgment of the Court of 99 S.Ct. 2264 (internal quotation marks omitted; emphasis Appeals. deleted). Now, though, we defer to “congressional inaction” if “the design of a Government program suggests that It is so ordered. Congress has provided what it considers adequate remedial mechanisms.” Schweiker, 487 U.S. at 423, 108 S.Ct. 2460; Justice GORSUCH, concurring in the judgment. see also Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1874. Our Constitution's separation of powers prohibits federal courts from assuming legislative authority. As the Court today Third, when assessing the “special factors,” Passman asked whether a court is competent to calculate damages acknowledges, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 “without difficult questions of valuation or causation.” 442 (1971), crossed that line by “impl[ying]” a new set of U.S. at 245, 99 S.Ct. 2264. But today, we do not ask whether private rights and liabilities Congress never ordained. Ante, a court can determine a damages *1809 amount. Rather, we ask whether “there are sound reasons to think Congress might at 1802 - 1803Ante, at 1802 - 1803; see also Alexander v. doubt the efficacy or necessity of a damages remedy” at all. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858. 517 (2001); Nestlé USA, Inc. v. Doe, 593 U. S. ––––, –––– – ––––, 141 S.Ct. 1931, 1942–1943, 210 L.Ed.2d 207 (2021) (GORSUCH, J., concurring). In short, as we explained in Ziglar, a plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Recognizing its misstep, this Court has struggled for decades to find its way back. Initially, the Court told lower courts to Bivens, Passman, or Carlson unless he also satisfies the “analytic framework” prescribed by the last four decades follow a “two ste[p]” inquiry before applying Bivens to any new situation. Ante, at 1803Ante, at 1803. At the first of intervening case law. 582 U. S., at –––– – ––––, 137 step, a court had to ask whether the case before it presented a S.Ct., at 1859. Boule has failed to do so. “new context” meaningfully different from Bivens. Ante, at 1803. At the second, a court had to consider whether “ ‘special factors’ ” counseled hesitation before recognizing IV a new cause of action. Ibid. But these tests soon produced their own set of questions: What distinguishes the first step © 2023 Thomson Reuters. No claim to original U.S. Government Works. 14  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 16 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... from the second? What makes a context “new” or a factor The Court suggests that Fourth Amendment violations matter “special”? And, most fundamentally, on what authority may less in this context because of “likely” national-security risks. courts recognize new causes of action even under these Ante, at 1805 - 1806Ante, at 1805 - 1806. So once more, we standards? tote up for ourselves the costs and benefits of a private right of action in this or that setting and reach a legislative judgment. Today, the Court helpfully answers some of these lingering To atone for Bivens, it seems we continue repeating its questions. It recognizes that our two-step inquiry really boils most basic mistake. down to a “single question”: Is there “any reason to think Congress might be better equipped” than a court to “ ‘weigh Of course, the Court's real messages run deeper than its case- the costs and benefits of allowing a damages action to specific analysis. If the costs and benefits do not justify a proceed’ ”? Ante, at 1803 - 1804; see Ziglar v. Abbasi, new Bivens action on facts so analogous to Bivens 582 U. S. 120, –––– – ––––, 137 S.Ct. 1843, 1858, 198 itself, it's hard to see how they ever could. And if the only L.Ed.2d 290 (2017). But, respectfully, resolving that much question is whether a court is “better equipped” than Congress only serves to highlight the larger remaining question: When to weigh the value of a new cause of action, surely the right might a court ever be “better equipped” than the people's answer will always be no. Doubtless, these are the lessons the elected representatives to weigh the “costs and benefits” of Court seeks to convey. I would only take the next step and creating a cause of action? acknowledge explicitly what the Court leaves barely implicit. Sometimes, it seems, “this Court leaves a door ajar and *1810 It seems to me that to ask the question is to answer holds out the possibility that someone, someday might walk it. To create a new cause of action is to assign new private through it” even as it devises a rule that ensures “no one ... rights and liabilities—a power that is in every meaningful ever will.” Edwards v. Vannoy, 593 U. S. ––––, ––––, sense an act of legislation. See Sandoval, 532 U.S. at 286– 141 S.Ct. 1547, 1566, 209 L.Ed.2d 651 (2021) (GORSUCH, 287, 121 S.Ct. 1511; Nestlé, 593 U. S., at ––––, 141 S.Ct., J., concurring). In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false at 1942–1943 (GORSUCH, J., concurring); Jesner v. Arab hope, and in the process invite still more “protracted litigation Bank, PLC, 584 U. S. ––––, ––––, 138 S.Ct. 1386, 1392, 200 L.Ed.2d 612 (2018) (GORSUCH, J., concurring in part and destined to yield nothing.” Nestlé, 593 U. S., at ––––, concurring in judgment). If exercising that sort of authority 141 S.Ct., at 1943 (GORSUCH, J., concurring). Instead, we may once have been a “ ‘proper function for common-law should exercise “the truer modesty of ceding an ill-gotten courts’ ” in England, it is no longer generally appropriate gain,” ibid., and forthrightly return the power to create new “ ‘for federal tribunals’ ” in a republic where the people causes of action to the people's representatives in Congress. elect representatives to make the rules that govern them. Sandoval, 532 U.S. at 287, 121 S.Ct. 1511. Weighing the costs and benefits of new laws is the bread and butter Justice SOTOMAYOR, with whom Justice BREYER and of legislative committees. It has no place in federal courts Justice KAGAN join, concurring in the judgment in part and charged with deciding cases and controversies under existing dissenting in part. law. Respondent Robert Boule alleges that petitioner Erik Egbert, a U. S. Customs and Border Patrol agent, violated the Fourth Instead of saying as much explicitly, however, the Court Amendment by entering Boule's property without a warrant proceeds on to conduct a case-specific analysis. And there and assaulting him. Existing precedent permits Boule to seek I confess difficulties. The plaintiff is an American citizen who argues that a federal law enforcement officer violated compensation for his injuries in federal court. See *1811 the Fourth Amendment in searching the curtilage of his Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, home. Candidly, I struggle to see how this set of facts differs 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Ziglar v. Abbasi, meaningfully from those in Bivens itself. To be sure, 582 U. S. 120, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017). The as the Court emphasizes, the episode here took place near Court goes to extraordinary lengths to avoid this result: It an international border and the officer's search focused on rewrites a legal standard it established just five years ago, violations of the immigration laws. But why does that matter? stretches national-security concerns beyond recognition, and © 2023 Thomson Reuters. No claim to original U.S. Government Works. 15  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 17 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... discerns an alternative remedial structure where none exists. errands in town. Agent Egbert knew that Boule was a long- The Court's innovations, taken together, enable it to close time informant for ICE and that he had previously worked as the door to Boule's claim and, presumably, to others that fall an informant for CBP. Agent Egbert asked Boule about guests squarely within Bivens’ ambit. at the inn, and Boule advised him of a guest he expected to arrive that day from New York who had flown in from Turkey the day before. Boule explained that two of his employees Today's decision does not overrule Bivens. It nevertheless were en route to pick the guest up at the Seattle-Tacoma contravenes precedent and will strip many more individuals International Airport. Agent Egbert continued patrolling in who suffer injuries at the hands of other federal officers, his CBP vehicle for the rest of the morning but stayed near the and whose circumstances are materially indistinguishable inn so he would see when the car carrying the guest returned. from those in Bivens, of an important remedy. I therefore When it arrived, he followed the car into the driveway of the dissent from the Court's disposition of Boule's Fourth inn, passing a “no trespassing” sign. Agent Egbert parked his Amendment claim. I concur in the Court's judgment that vehicle behind the arriving car in the driveway immediately Boule's First Amendment retaliation claim may not proceed adjacent to the inn. under Bivens, but for reasons grounded in precedent rather than this Court's newly announced test. Agent Egbert exited his patrol vehicle and approached the car. Boule's employee also exited the car; the guest remained inside. From the front porch of his inn, Boule asked Agent Egbert to leave. When Agent Egbert refused, Boule stepped I off the porch, positioned himself between *1812 Agent Egbert and the vehicle, and explained that the person in the car This case comes to the Court following the District Court's was a guest who had come from New York to Seattle and who grant of summary judgment to Agent Egbert. The Court is had been through security at the airport. Boule again asked therefore bound to draw all reasonable factual inferences in Agent Egbert to leave. Agent Egbert grabbed Boule by his favor of Boule. See Tolan v. Cotton, 572 U.S. 650, 656– chest, lifted him up, and shoved him against the vehicle and 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). then threw him to the ground. Boule landed on his hip and Because the Court fails to do so, the factual record is described shoulder. below in some detail, in the light our precedent requires. Agent Egbert opened the car door and asked the guest about his immigration status. Boule called 911 to request A a supervisor; Agent Egbert relayed the same request over his radio. Several minutes later, a supervisor and another Boule is a U. S. citizen who owns, operates, and lives in a agent arrived at the inn. After concluding that the guest was small bed-and-breakfast called the Smuggler's Inn in Blaine, lawfully in the country (just as Boule had previously informed Washington. The property line of the land on which the inn Agent Egbert), the three officers departed. Boule later sought is located touches the U. S.-Canada border. Shortly after medical treatment for his injuries. purchasing the property in 2000, Boule became aware that people used his property to cross the border illegally in Boule complained to Agent Egbert's superiors about the both directions. Boule began serving as a paid, confidential incident and filed an administrative claim with CBP, informant for Customs and Border Protection (CBP) in 2003 which allegedly prompted Agent Egbert to retaliate against and for Immigration and Customs Enforcement (ICE) in Boule. Agent Egbert contacted the Internal Revenue Service 2008. At the time of the events at issue in this case, Boule was (IRS), the Social Security Administration, the Washington still serving as an informant for ICE. ICE would coordinate State Department of Licensing, and the Whatcom County with CBP and other agencies based on the information Boule Assessor's Office, asking them to investigate Boule's provided. Over the years, Boule provided information leading business. These agencies did so, but none found that Boule to numerous arrests. had done anything wrong. Boule paid over $5,000 to his accountant to assist him in responding to the IRS’ tax audit. On the morning of March 20, 2014, petitioner Erik Egbert, Boule also filed claims pursuant to the Federal Tort Claims a CBP agent, twice stopped Boule while Boule was running Act (FTCA), which were denied. CBP's investigation of © 2023 Thomson Reuters. No claim to original U.S. Government Works. 16  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 18 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... Agent Egbert concluded that he failed to be forthcoming with unreasonable searches and seizures *1813 carried out by investigators and “demonstrated lack of integrity,” serious virtue of federal authority.” Ibid. offenses that warranted his removal. Rev. Redacted App. 184. The Court ultimately held that a “violation of [the Fourth Amendment] by a federal agent acting under color of his B authority gives rise to a cause of action for damages.” Id., Boule sued Agent Egbert in Federal District Court, seeking at 389, 91 S.Ct. 1999. In doing so, the Court observed that existing state-law causes of action were no substitute for a damages under Bivens v. Six Unknown Fed. Narcotics federal cause of action because “[t]he interests protected by Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, for state laws regulating trespass and the invasion of privacy” violation of Boule's First and Fourth Amendment rights. The and those protected by the Fourth Amendment “may be District Court granted summary judgment to Agent Egbert on both claims. The Court of Appeals reversed, concluding inconsistent or even hostile.” Id., at 394, 91 S.Ct. 1999; that both claims were cognizable under Bivens. In the see also id., at 410, 91 S.Ct. 1999 (Harlan, J., concurring Court of Appeals’ view, Boule's Fourth Amendment claim in judgment) (“For people in Bivens’ shoes, it is damages or nothing”). 1 The Court also noted that the case before it constituted a modest extension of Bivens. Even so, the “involve[d] no special factors counselling hesitation,” such as court explained, no special factors counseled hesitation such that this extension should be foreclosed; rather, “Boule's a question concerning federal fiscal policy. Id., at 396, 91 Fourth Amendment excessive force claim is part and parcel S.Ct. 1999. of the ‘common and recurrent sphere of law enforcement’ This Court has twice extended the cause of action first ” that remained “a permissible area for Bivens claims.” articulated in Bivens: first to a Fifth Amendment due 998 F.3d 370, 389 (C.A.9 2021) (quoting Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1857). The court separately held process claim for sex discrimination, see Davis v. that Boule's First Amendment claim could proceed under Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and then to an Eighth Amendment deliberate Bivens. indifference claim for failure to provide proper medical This Court granted certiorari. 595 U. S. ––––, 142 S.Ct. 457, attention, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 211 L.Ed.2d 278 (2021). 1468, 64 L.Ed.2d 15 (1980). In Davis, Carlson, and subsequent cases, the Court built on Bivens’ inquiry to develop a two-step test for determining whether a Bivens II cause of action may be “defeated.” Carlson, 446 U.S. at 18, 100 S.Ct. 1468. First, the Court considered whether, A under the circumstances of a particular case, special factors counseled hesitation in allowing a private right of action to In Bivens, the plaintiff alleged that Federal Bureau of proceed. See, e.g., Bivens, 403 U.S. at 396, 91 S.Ct. 1999; Narcotics agents unlawfully entered his apartment in New York City and used constitutionally unreasonable force to Davis, 442 U.S. at 246, 99 S.Ct. 2264; Carlson, 446 arrest him. 403 U.S. at 389, 91 S.Ct. 1999. This Court U.S. at 18, 100 S.Ct. 1468; Bush v. Lucas, 462 U.S. 367, observed that an “agent acting—albeit unconstitutionally— 377–380, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Second, in the name of the United States possesses a far greater the Court considered whether “Congress has provided an capacity for harm than an individual trespasser exercising no alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and authority other than his own.” Id., at 392, 91 S.Ct. 1999. The Fourth Amendment, the Court explained, “guarantees to viewed as equally effective.” Carlson, 446 U.S. at 18–19, citizens of the United States the absolute right to be free from 100 S.Ct. 1468; see also, e.g., Davis, 442 U.S. at 246–247, © 2023 Thomson Reuters. No claim to original U.S. Government Works. 17  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 19 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... and a court “proceed[s] to the second step” of the analysis, 99 S.Ct. 2264; Bush, 462 U.S. at 377–378, 103 S.Ct. 2404; Hernández, 589 U. S., at ––––, 140 S.Ct., at 743. The Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 second step requires courts to consider whether special factors L.Ed.2d 389 (2007) (describing this two-step test). Where, for example, Congress crafted an “elaborate remedial system counsel hesitation in recognizing a Bivens remedy in a new that has been constructed step by step, with careful attention context. Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1859; to conflicting policy considerations,” Bush, 462 U.S. at Hernández, 589 U. S., at ––––, 140 S.Ct., at 742–743. 388, 103 S.Ct. 2404, this Court concluded that “it would be inappropriate ... to supplement that regulatory scheme with a Importantly, even as the Ziglar Court grafted a more new judicial remedy,” id., at 368, 103 S.Ct. 2404; accord, demanding new-context inquiry onto the traditional Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, Bivens framework, the Court emphasized that its opinion 101 L.Ed.2d 370 (1988). Applying this two-step test, the was “not intended to cast doubt on the continued force, or Court has declined to extend Bivens beyond situations like even the necessity, of Bivens in the search-and-seizure those addressed in Davis, Carlson, and Bivens itself. context in which it arose.” 582 U. S., at ––––, 137 See ante, at ––––. S.Ct., at 1856. Quite the opposite: The Court recognized that Bivens “vindicate[s] the Constitution by allowing In Ziglar v. Abbasi, 582 U. S. 120, 137 S.Ct. 1843, the some redress for injuries” and “provides instruction and guidance to federal law enforcement officers going forward.” Court not only declined to extend Bivens but also revised and narrowed its two-step analytic framework. The Ziglar 582 U. S., at ––––, 137 S.Ct., at 1857. Accordingly, Court set forth a new inquiry requiring courts considering the Court explained, there are “powerful reasons to retain a Bivens claim first to ask whether a case “is different [ Bivens]” in the “common and recurrent sphere of law in a meaningful way from previous Bivens cases decided enforcement.” Ibid. The Court further recognized that by this *1814 Court” and therefore arises in a “new ... “individual instances of discrimination or law enforcement overreach” are, by their nature, “difficult to address except by context.” 582 U. S., at ––––, 137 S.Ct., at 1860; see also way of damages actions after the fact.” Id., at ––––, 137 Hernández v. Mesa, 589 U. S. ––––, ––––, 140 S.Ct. 735, S.Ct., at 1862. 742–743, 206 L.Ed.2d 29 (2020). The Ziglar Court offered a laundry list of differences that “might” be meaningful, including “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official B action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; Ziglar and Hernández control here. Applying the two-step the statutory or other legal mandate under which the officer framework set forth in those cases, the Court of Appeals’ was operating; the risk of disruptive intrusion by the Judiciary determination that Boule's Fourth Amendment claim is into the functioning of other branches; or the presence of cognizable under Bivens should be affirmed for two potential special factors that previous Bivens cases did not independent reasons. First, Boule's claim does not present a consider.” 582 U. S., at ––––, 137 S.Ct., at 1860. The Court new context. Second, even if it did, no special factors would recognized, however, that some differences “will be so trivial counsel hesitation. that they will not suffice to create a new Bivens context.” Id., at ––––, 137 S.Ct., at 1865. 1 If the differences are in fact “meaningful ones,” ibid., Boule's Fourth Amendment claim does not arise in a new “then the context is new,” id., at ––––, 137 S.Ct., at 1859, context. Bivens itself involved a U. S. citizen bringing a Fourth Amendment claim against individual, rank-and-file © 2023 Thomson Reuters. No claim to original U.S. Government Works. 18  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 20 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... federal law enforcement officers who allegedly violated his “was not the kind of deterrence contemplated by Bivens.” constitutional rights within the United States by entering his property without a warrant and using excessive force. Those Id., at 70–71, 122 S.Ct. 515. Applying Bivens to a are precisely the facts of Boule's complaint. corporate defendant would amount to a “marked extension of Bivens ... to contexts that would not advance Bivens’ The only arguably salient difference in “context” between this core purpose of deterring individual officers from engaging case and Bivens is that the defendants in Bivens were in unconstitutional wrongdoing.” Malesko, 534 U.S. at 74, employed at the time by the (now-defunct) Federal Bureau of Narcotics, while Agent Egbert was employed by CBP. 122 S.Ct. 515; see also FDIC v. Meyer, 510 U.S. 471, 485, As discussed, however, this Court's precedent instructs that 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (declining to allow some differences are too “trivial ... to create a new Bivens a Bivens claim to proceed against a federal agency for similar reasons). Here, by contrast, Boule's suit against Agent context.” *1815 Ziglar, 582 U. S., at ––––, 137 S.Ct., Egbert directly advances that core purpose. at 1865. 2 That it was a CBP agent rather than a Federal Bureau of Narcotics agent who unlawfully entered Boule's At bottom, Boule's claim is materially indistinguishable from property and used constitutionally excessive force against the claim brought in Bivens. His case therefore does not him plainly is not the sort of “meaningful” distinction that our present a new context for the purposes of assessing whether new-context inquiry is designed to weed out. Ibid. a Bivens remedy is available. It is of course well established that a Bivens suit involving an entirely “ ‘new category of defendants’ ” arises in a “ 2 ‘new context.’ ” Ziglar, 582 U. S., at ––––, 137 S.Ct., at Even assuming that this case presents a new context, no 1857; see also Hernández, 589 U. S., at ––––, 140 S.Ct., at 743. The Court, however, has never relied on this principle to special factors warrant foreclosing a Bivens action. draw artificial distinctions between line-level officers of the 83 different federal law enforcement agencies with authority The Court “has not defined the phrase ‘special factors to make arrests and provide police protection. See Dept. counselling hesitation,’ ” but it has recognized that the of Justice, C. Brooks, Federal Law Enforcement Officers, “inquiry must concentrate on whether the Judiciary is well 2016—Statistical Tables (NCJ 251922, Oct. 2019), https:// suited, absent congressional action or instruction, to consider bjs.ojp.gov/content/pub/pdf/fleo16st.pdf. Indeed, if the “new and weigh the costs and benefits of allowing a damages action context” inquiry were defined at such a fine level of to proceed.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at granularity, every case would raise a new context, because the 1858; see also *1816 Hernández, 589 U. S., at –––– Federal Bureau of Narcotics no longer exists. See National – ––––, 140 S.Ct., at 742–744. For example, where a claim Archives, Records of the Drug Enforcement Administration “would call into question the formulation and implementation [DEA] (Aug. 15, 2016), https://www.archives.gov/ research/ of a general policy” or “require courts to interfere in an guide-fed-records/groups/170.html. intrusive way with sensitive functions of the Executive Branch,” recognizing a Bivens action may be inappropriate. Moreover, the “new category of defendants” language traces back to a different concern raised in the Court's decision Ziglar, 582 U. S., at –––– – ––––, 137 S.Ct., at 1860– in Correctional Services Corp. v. Malesko, 534 U.S. 1861; see also, e.g., Chappell v. Wallace, 462 U.S. 296, 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). That case 300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (declining to involved an Eighth Amendment claim brought by a federal extend Bivens where military personnel sought damages prisoner against a private corporation under contract with from superior officers, citing concerns about “tamper[ing] the federal Bureau of Prisons. The Court observed that “the with the established relationship between enlisted military threat of suit against an individual's employer,” rather than personnel and their superior officers,” which lies “at the “the individual directly responsible for the alleged injury,” heart of the necessarily unique structure of the Military © 2023 Thomson Reuters. No claim to original U.S. Government Works. 19  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 21 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... Establishment”). Precedent thus establishes that “separation- national security.” Ibid. Agent Egbert was aware (because of-powers principles ... should be central to the [special- Boule had told him earlier in the day and again at the scene) factors] analysis.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at that the foreign national arriving at the inn had already entered 1857. the United States by airplane and had been processed by U. S. customs at the airport in New York the previous day. Here, the only possible special factor is that Boule's property abuts an international border. Boule's case, however, is a Nor does this case present special factors similar to those far cry from others in which the Court declined to extend that deterred the Court from recognizing a Bivens Bivens for reasons of national security or foreign relations. action in Ziglar. In that case, foreign nationals who had In Hernández, for example, a CBP agent shot and killed a been unlawfully present in the United States brought a Mexican child across the U. S.-Mexico border. 589 U. Bivens action against three “high executive officers in S., at ––––, 140 S.Ct., at 740. The Mexican Government the Department of Justice” and two wardens of *1817 the unsuccessfully sought extradition of the agent to Mexico, facility where they had been held. Ziglar, 582 U. S., at and after an investigation, the U. S. Department of Justice ––––, 137 S.Ct., at 1851. The Court reasoned that allowing declined to bring charges against the agent. Ibid. The the plaintiffs’ claims to proceed against the executive officers “would call into question the formulation and implementation parents of the deceased child attempted to bring a Bivens of a general policy,” and that the discovery and litigation action against the CBP agent, but this Court held that several process would “border upon or directly implicate the “warning flags” counseled caution, including a “potential discussion and deliberations that led to the formation of the effect on foreign relations.” Hernández, 589 U. S., at policy in question,” thereby implicating sensitive national- ––––, 140 S.Ct., at 744. The Court observed that “[a] cross- security functions entrusted to Congress and the President. border shooting is by definition an international incident,” and Id., at –––– – ––––, 137 S.Ct., at 1860–1861. If Bivens that both the United States and Mexico had “legitimate and liability were imposed, the Court explained, “high officers important interests that may be affected by the way in which who face personal liability for damages might refrain from this matter is handled.” Id., at ––––, ––––, 140 S.Ct., at taking urgent and lawful action in a time of crisis,” and “the 744, 745. The Court concluded that because “regulating the costs and difficulties of later litigation might intrude upon and conduct of agents at the border unquestionably has national interfere with the proper exercise of their office.” Ziglar, security implications, the risk of undermining border security 582 U. S., at ––––, 137 S.Ct., at 1863. provides reason to hesitate before extending Bivens into this field.” Id., at ––––, 140 S.Ct., at 747. Here, Boule plainly does not seek to challenge or alter “high- level executive policy.” Id., at ––––, 137 S.Ct., at 1860. The conduct here took place near an international border Allowing his claim to proceed would not require courts to and involved a CBP agent. That, however, is where the intrude into “the discussion and deliberations that led to the similarities with Hernández begin and end. The conduct formation” of any policy or national-security decision or occurred exclusively on U. S. soil, and the injury was to interest. Id., at ––––, 137 S.Ct., at 1861. Agent Egbert, a a U. S. citizen. This case therefore does not present an line officer, was engaged in a run-of-the-mill inquiry into the “international incident” that might affect diplomatic relations, status of a foreign national on U. S. soil who had no actual unlike the cross-border killing of a foreign-national child. or suggested ties to terrorism, and who recently had been As for national-security concerns, the Court in Hernández through U. S. customs to boot. See id., at ––––, 137 S.Ct., emphasized that “some [CBP agents] are stationed right at the at 1862 (distinguishing a challenge to “individual instances of border and have the responsibility of attempting to prevent discrimination or law enforcement overreach,” which lends illegal entry”; it was “[f]or th[i]s reaso[n],” among others, that their conduct had “a clear and strong connection to national itself to a Bivens action, from a challenge to “large-scale policy decisions,” which does not). No special factors counsel security.” Id., at ––––, 140 S.Ct., at 746. Here, by contrast, Agent Egbert was not “attempting to prevent illegal entry” or against allowing Boule's Bivens action to proceed. otherwise engaged in activities with a “strong connection to © 2023 Thomson Reuters. No claim to original U.S. Government Works. 20  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 22 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... the “elusiveness of a limiting principle” for claims like the C landowner's, id., at 561 127 S.Ct. 2588, the Court decided that courts were ill equipped to tailor an appropriate remedy, Boule also argues that his First Amendment retaliatory- id., at 562, 127 S.Ct. 2588. investigation claim is cognizable under Bivens. I concur in the Court's judgment that it is not, but I arrive at that Boule's First Amendment retaliation claim raises similar conclusion by following precedent rather than by applying the concerns. Unlike the constitutional rights this Court has Court's new, single-step inquiry. Ante, at 1803Ante, at 1803; see infra, at 1818 -1820. recognized as cognizable under Bivens, First Amendment retaliation claims could potentially be brought against many This Court has repeatedly assumed without deciding that different federal officers, stretching substantially beyond the “common and recurrent sphere of law enforcement” to reach Bivens extends to First Amendment claims, see Wood v. Moss, 572 U.S. 744, 757, 134 S.Ct. 2056, 188 L.Ed.2d 1039 virtually all federal employees. Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1880. Under such circumstances, this Court's (2014), but has never squarely held as much, see Reichle precedent holds that “ ‘evaluat[ing] the impact of a new v. Howards, 566 U.S. 658, 663, n. 4, 132 S.Ct. 2088, 182 species of litigation’ ” on the efficiency of civil service is L.Ed.2d 985 (2012). Accordingly, Boule's First Amendment retaliation presents a new context for the purpose of the a task for Congress, not the courts. Wilkie, 551 U.S. at Bivens analysis. See Ziglar, 582 U. S., at ––––, 137 562, 127 S.Ct. 2588; see also Ziglar, 582 U. S., at ––––, S.Ct., at 1864 (noting that a case can present a new context if 137 S.Ct., at 1858. I therefore concur in the judgment as to it implicates a different constitutional right than those already the Court's reversal of the Court of Appeals’ conclusion that recognized as cognizable under Bivens). Boule's First Amendment Bivens action may proceed, not for the reasons the Court identifies, ante, at 1806 - 1808ante, at 1806 - 1808, but because precedent requires it. Moving to the second step of the Bivens inquiry, unlike Boule's Fourth Amendment claim, there is “reason to pause” before extending Bivens to Boule's First Amendment III claim. Hernández, 589 U. S., at ––––, 140 S.Ct., at If the legal standard the Court articulates to reject Boule's 743. In particular, his First Amendment claim raises line- Fourth Amendment claim sounds unfamiliar, that is because drawing concerns similar to those this Court identified in it is. Just five years after circumscribing the standard for Wilkie, 551 U.S. 537, 127 S.Ct. 2588. In Wilkie, a allowing Bivens claims to proceed, a restless and newly landowner sought to bring a Bivens action against federal constituted Court sees fit to refashion the standard anew to officials whom the landowner accused of harassment and foreclose remedies in yet more cases. The measures the Court intimidation meant to extract an easement across his property. takes to ensure Boule's claim is dismissed are inconsistent 551 U.S. at 541, 127 S.Ct. 2588. The Court observed that with governing precedent. “defining a workable cause of action” for such a claim was “difficul[t].” Id., at 555, 127 S.Ct. 2588; see also id., A at 557, 127 S.Ct. 2588. Recognizing a Bivens action to redress retaliation under such circumstances would, in the Two Terms ago, this Court reiterated and reaffirmed Court's view, “invite claims in every sphere of legitimate Ziglar’s two-step test for assessing whether a claim may be governmental action *1818 affecting property interests” and “across this enormous swath of potential litigation would brought as a Bivens action. See Hernández, 589 U. S., hover the difficulty of devising a ... standard that could at ––––, 140 S.Ct., at 743 (“When asked to extend Bivens, guide an employee's conduct and a judicial factfinder's we engage in a two-step inquiry”). Today, however, the conclusion.” 551 U.S. at 561, 127 S.Ct. 2588. Because of Court pays lip service to the test set out in our precedents, © 2023 Thomson Reuters. No claim to original U.S. Government Works. 21  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 23 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... but effectively replaces it with a new single-step inquiry the need to be “protective of military concerns,” 483 designed to constrict Bivens. Ante, at 1803Ante, at 1803 U.S. at 681, 107 S.Ct. 3054, and to avoid “call[ing] into (acknowledging this Court's previous “two ste[p]” standard question military discipline and decisionmaking,” id., at but insisting that “those steps often resolve to a single 682, 107 S.Ct. 3054. The Court therefore determined that question: whether there is any reason to think that Congress in the military sphere, the special-factors analysis should be might be better equipped to create a damages remedy”); applied somewhat more broadly than the respondent urged. ante, at 1804 (positing that “[t]he newness of [some] ‘new context[s]’ should alone require dismissal” (some internal Id., at 681, 107 S.Ct. 3054. Stanley, in other words, quotation marks omitted)). The Court goes so far as to reflected the Court's longstanding approach to Bivens announce that “[t]he Bivens inquiry does not invite federal cases: considering the facts and the substantive context of courts to independently assess the costs and benefits of each case and determining whether special factors counseled implying a cause of action,” ante, at 1805; instead, courts hesitation. Stanley did not purport to articulate a special- must “only” decide “whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the factors framework that should apply to all Bivens cases costs and benefits of allowing a damages action to proceed,’ going forward. ” ibid. (quoting Ziglar, 582 U. S., at ––––, 137 S.Ct., at The Court further declares that “a plaintiff cannot justify 1858). a Bivens extension based on ‘parallel circumstances’ ” That approach contrasts starkly with the standard the Court with previous cases that have recognized a Bivens remedy. announced in Ziglar and applied in Hernández. This Court Ante, at 1808 - 1809Ante, at 1808 - 1809. To the extent regularly has considered whether courts are “well suited ... these statements suggest an exacting new-context inquiry, to consider and weigh the costs and benefits of allowing a they are in serious tension with the Court's longstanding rule damages action to proceed,” Ziglar, 582 U. S., at ––––, that trivial differences alone do not create a new Bivens 137 S.Ct., at 1858, and have never held that such weighing is context. See Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1874; categorically impermissible, contrary to the Court's *1819 see also ante, at 1809 - 1810 (GORSUCH, J., concurring in analysis today. See also Wilkie, 551 U.S. at 554, 127 judgment) (“Candidly, I struggle to see how this set of facts S.Ct. 2588 (noting that the Bivens inquiry asks courts to differs meaningfully from those in Bivens itself ”). Indeed, “weig[h] reasons for and against the creation of a new cause until today, the Court has never so much as hinted that courts of action”). should refuse to permit a Bivens action in a case involving facts substantially identical to those in Bivens itself. Supra, The Court justifies its innovations by selectively quoting our 3 precedents and presenting its newly announced standard as at 1814 - 1815. if it were always the rule. The Court's repeated citation to United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), is just one example. The Court cites B Stanley for, among other things, the proposition that the The Court's application of its new standard to Boule's special-factors analysis must be conducted at a very broad Fourth Amendment claim underscores just how novel that level of generality. Ante, at 1805Ante, at 1805. Stanley, standard is. Even assuming the claim presents a new however, cautioned against a case-specific special-factors context, the Court's insistence that national-security concerns analysis in the narrow context of “judicial intrusion upon bar the claim directly contravenes Ziglar. Moreover, the Court's holding that a nonbinding administrative investigation military discipline.” 483 U.S. at 681, 107 S.Ct. 3054. As process, internal to the agency and offering no meaningful it had in previous cases seeking to raise Bivens actions *1820 protection of the constitutional interests at stake, in the military context, the Stanley Court emphasized constitutes an alternative remedy that forecloses Bivens relief blinks reality. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 22  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 24 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... may enter “private lands” within 25 miles of an international border without a warrant only “for the purpose of patrolling the border to prevent the illegal entry of aliens into the 1 United States.” 66 Stat. 233, 8 U.S.C. § 1357(a)(3). This The Court acknowledges the force of the Court of Appeals’ allowance is itself subject to exceptions: Officers cannot enter conclusion that Bivens and this case present “ ‘almost a “dwellin[g]” for immigration enforcement purposes without parallel circumstances,’ ” but it nonetheless concludes that a a warrant. Ibid.Ibid. Mere proximity to a border, in other most unlikely special factor counsels hesitation: the “national- words, did not give Agent Egbert greater license to enter security context.” Ante, at 1805Ante, at 1805. By the Court's Boule's property. Nor does it diminish or call into question the remedies for constitutional violations that a plaintiff may telling, Hernández declined to recognize a Bivens pursue, particularly where, as here, an agent unquestionably action “because ‘regulating the conduct of agents at the was not acting “for the purpose of patrolling the border to border unquestionably has national security implications,’ prevent the illegal entry of aliens into the United States.” Ibid. and the ‘risk of undermining border security provides reason to hesitate before extending Bivens into this field.’ ” Ante, Remarkably, the Court goes beyond invoking its national- security talisman in this case alone. In keeping with the at 1804 (quoting Hernández, 589 U. S., at ––––, 140 S.Ct., unprecedented level of generality the Court imports into the at 747). That reasoning, the Court concludes, “applies here special-factors analysis, the Court holds that courts are not with full force” because “national security is at issue.” Ante, “competent to authorize a damages action ... against Border at 1804 - 1805. Patrol agents generally.” Ante, at 1806Ante, at 1806. This extraordinary and gratuitous conclusion contradicts decades This is sheer hyperbole. Most obviously, the Court's of precedent requiring a context-specific determination of conclusion that this case, which involves a physical assault whether a particular claim presents *1821 special factors by a federal officer against a U. S. citizen on U. S. soil, raises “national security” concerns does exactly what this counseling hesitation. See supra, at 1813 - 1815. 4 Court counseled against just four years ago. Back then, the Court advised that “national-security concerns must not The consequences of the Court's drive-by, categorical become a talisman to use to ward off inconvenient claims assertion will be severe. Absent intervention by Congress, CBP agents are now absolutely immunized from liability in —a ‘label’ used to ‘cover a multitude of sins.’ ” Ziglar, any Bivens action for damages, no matter how egregious 582 U. S., at ––––, 137 S.Ct., at 1862 (quoting Mitchell the misconduct or resultant injury. That will preclude redress v. Forsyth, 472 U.S. 511, 523, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). It explained that this “danger of abuse is even under Bivens for injuries resulting from constitutional more heightened given the difficulty of defining the security violations by CBP's nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement interest in domestic cases.” Ziglar, 582 U. S., at ––––, 137 activities, like traffic stops, far removed from the border. U. S.Ct., at 1862 (internal quotation marks omitted). This case S. Customs and Border Protection, On a Typical Day in Fiscal does not remotely implicate national security. The Court may Year 2021, CBP ... (2022), https://www.cbp.gov/ newsroom/ wish it were otherwise, but on the facts of this case, its effort stats/typical-day-fy2021. This is no hypothetical: Certain to raise the specter of national security is mere sleight of hand. CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the Nor is there any indication that Congress acted to deny a border. See 8 U.S.C. § 1357(a); 8 C.F.R. § 287.1(a) Bivens remedy for a case like this, which otherwise might (2) (2021). The Court's choice to foreclose liability for counsel hesitation. See Bush, 462 U.S. at 368, 103 S.Ct. constitutional violations that occur in the course of such 2404 (declining to “supplement” Congress’ existing scheme activities, based on even the most tenuous and hypothetical “with a new judicial remedy”). Congress has not provided that connection to the border (and thereby, to the “nationalsecurity federal law enforcement officers may enter private property context”), betrays the context-specific nature of Bivens near a border at any time or for any purpose. Quite the contrary: Congress has determined that immigration officers and shrinks Bivens in the core Fourth Amendment law © 2023 Thomson Reuters. No claim to original U.S. Government Works. 23  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 25 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... enforcement sphere where it is needed most. See Ziglar, attorney's fees, Schweiker, 487 U.S. at 424–425, 108 S.Ct. 582 U. S., at ––––, 137 S.Ct., at 1857. 5 2460. Until today, however, this Court has never held that a threadbare disciplinary review process, expressly conferring no substantive rights, “secure[s] adequate deterrence and afford[s] ... an alternative remedy.” Ante, at 1807Ante, at 2 1807. Nor has it held that remedies providing no relief to the individual whose constitutional rights have been violated are The Court further proclaims that Congress has provided alternative remedies that “independently foreclose” a “adequate” for the purpose of foreclosing a Bivens action. To the contrary, each of the alternative remedies the Court has Bivens action in this case. Ante, at 1806Ante, at 1806. The recognized has afforded participatory rights, an opportunity administrative remedy the Court perceives, however, is no for judicial review, and the potential to secure at least some remedy whatsoever. meaningful relief. See, e.g., Minneci v. Pollard, 565 U.S. The sole “remedy” the Court cites is an administrative 118, 127, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012) (state tort grievance procedure that does not provide Boule with any law); Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1862 (petition relief. The statute on which the Court relies provides: The “Secretary of Homeland Security ... shall have control, for writ of habeas corpus or injunctive relief); Bush, 462 direction, and supervision of all employees and of all the files 7 U.S. at 385, 103 S.Ct. 2404. and records of [CBP].” 8 U.S.C. § 1103(a)(2); see ante, at 1806ante, at 1806. Administrative regulations direct CBP The Court previously has emphasized that a Bivens to investigate alleged violations of its own standards by its action may be inappropriate where “Congress has provided own employees. See 8 C.F.R. §§ 287.10(a)–(b). 6 The Court an alternative remedy which it explicitly declared to be a sees fit to defer to this procedure, even while acknowledging substitute for recovery directly under the Constitution and that complainants in Boule's position have no right to viewed as equally effective.” Carlson, 446 U.S. at 18–19, participate in the proceedings or to seek judicial review 100 S.Ct. 1468 (emphasis deleted). Thus, our cases declining of any determination. Ante, at 1806. The Court supports its conclusion *1822 that CBP's internal administrative to extend Bivens have done so where Congress, sometimes grievance procedure offers an adequate remedy by insisting in conjunction with the Executive Branch, provided that “we have never held that a Bivens alternative must “comprehensive” and meaningful remedies. Bush, 462 afford rights to participation or appeal.” Ante, at 1806. In the U.S. at 388, 103 S.Ct. 2404; see also Schweiker, 487 Court's view, “[s]o long as Congress or the Executive has U.S. at 414, 423, 428, 108 S.Ct. 2460 (emphasizing that created a remedial process that it finds sufficient to secure an the “design” of the “elaborate remedial scheme” in the adequate level of deterrence, the courts cannot second-guess Social Security disability program *1823 “suggests that that calibration by superimposing a Bivens remedy.” Ibid. Congress has provided what it considers adequate remedial (emphasis added). mechanisms for constitutional violations that may occur in the course of its administration”); Malesko, 534 U.S. This analysis drains the concept of “remedy” of all meaning. at 72, 122 S.Ct. 515 (noting that remedies available to To be sure, the Court has previously deemed Bivens claims the plaintiff were “at least as great, and in many respects foreclosed by “substantive” remedies to claimants that are greater, than anything that could be had under Bivens”); in significant part administrative. Bush, 462 U.S. at 385, Minneci, 565 U.S. at 120, 132 S.Ct. 617 (rejecting 103 S.Ct. 2404; see also, e.g., Schweiker, 487 U.S. at Bivens action for Eighth Amendment violations against 424–425, 108 S.Ct. 2460. The Court also has recognized employees of a privately operated federal prison because that existing remedies need not “provide complete relief for “state tort law authorizes adequate alternative damages the plaintiff,” Bush, 462 U.S. at 388, 103 S.Ct. 2404, actions—actions that provide both significant deterrence including loss due to emotional distress or mental anguish, or and compensation”). By the Court's logic, however, the existence of any disciplinary framework, even if crafted © 2023 Thomson Reuters. No claim to original U.S. Government Works. 24  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 26 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... by the Executive Branch rather than Congress, and even if ante, at 1805 (cautioning against “frustrat[ing] Congress's wholly nonparticipatory and lacking any judicial review, is policymaking role” when considering whether special factors counsel hesitation). Faithful adherence to this logic counsels sufficient to bar a court from recognizing a Bivens remedy. That reasoning, as disturbing as it is wrong, marks yet another maintaining Bivens in its current scope, but does not erosion of Bivens’ deterrent function in the law enforcement support changing the status quo to constrict Bivens, as 8 the Court does today. Congress, after all, has recognized sphere. and relied on the Bivens cause of action in creating and amending other remedies, including the FTCA. By C nevertheless repeatedly amending the legal standard that applies to Bivens claims and whittling down the number of The Court thinly veils its disapproval of Bivens, ending its claims that remain viable, the Court itself is making a policy opinion by citing a string of dissenting opinions and single- choice for Congress. Whatever the merits of that choice, the Member concurrences by various Members of this Court Court's decision today is no exercise in judicial modesty. expressing criticisms of Bivens. Ante, at 1808 - 1809Ante, at 1808 - 1809. But the Court unmistakably stops short of *** overruling Bivens and its progeny, and appropriately so. This Court's precedents recognize that suits for damages Even while declining to extend Bivens to new contexts, play a critical role in deterring unconstitutional conduct this Court has reaffirmed that it did “not inten[d] to cast doubt by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive on the continued force, or even the necessity, of Bivens in meaningful redress. The Court's decision today ignores our the search-and-seizure context in which it arose.” Ziglar, repeated recognition of the importance *1824 of Bivens 582 U. S., at ––––, 137 S.Ct., at 1856. Although today's actions, particularly in the Fourth Amendment search-and- opinion will make it harder for plaintiffs to bring a successful seizure context, and closes the door to Bivens suits by Bivens claim, even in the Fourth Amendment context, the many who will suffer serious constitutional violations at the lower courts should not read it to render Bivens a dead hands of federal agents. I respectfully dissent from the Court's letter. treatment of Boule's Fourth Amendment claim. That said, the Court plainly modifies the Bivens standard All Citations in a manner that forecloses Boule's claims and others like 142 S.Ct. 1793, 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, them that should be permitted under this Court's Bivens 2022 Daily Journal D.A.R. 5703, 29 Fla. L. Weekly Fed. S precedents. That choice is in tension with the Court's 309 insistence that “prescribing a cause of action is a job for Congress, not the courts.” Ante, at 1800Ante, at 1800; see Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. 1 Notwithstanding his defense of the Inn's policies, Boule was recently convicted in Canadian court for engaging in human trafficking. In December 2021, he pleaded guilty to trafficking 11 Afghanis and Syrians into Canada. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 25  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 27 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... He billed each foreign national between $200 and $700 for the trip. See Regina v. Boule, 2021 BCSC 2561, ¶¶7–11. 2 Congress also may preclude a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against federal officers if it affirmatively forecloses one. “Even in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit,” Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010), and Congress may grant such immunity as it sees fit. 3 Boule also argues that Agent Egbert forfeited any argument about Border Patrol's grievance process because he did not raise the issue in the Court of Appeals. We disagree. Because recognizing a Bivens cause of action “is an extraordinary act that places great stress on the separation of powers,” Nestlé USA, Inc. v. Doe, 593 U. S. ––––, ––––, 141 S.Ct. 1931, 1938, 210 L.Ed.2d 207 (2021) (plurality opinion), we have “a concomitant responsibility” to evaluate any grounds that counsel against Bivens relief, Oliva v. Nivar, 973 F.3d 438, 443, n. 2 (C.A.5 2020); see also Elhady v. Unidentified CBP Agents, 18 F.4th 880, 884 (C.A.6 2021). And, in any event, Agent Egbert has consistently claimed that alternative remedies foreclose applying Bivens in this case. Thus, under our precedents, he is “not limited to the precise arguments [he] made below.” Yee v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). 1 For example, an individual “may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance” and may seek damages under state law “for any consequent trespass.” Bivens, 403 U.S. at 394, 91 S.Ct. 1999. By contrast, “[t]he mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well.” Ibid. 2 Egbert argues in passing that the fact that he was operating under a “ ‘statutory ... mandate’ not invoked in prior cases,” standing alone, “dooms [Boule's] no-new-context argument.” Reply Brief 19 (quoting Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1860). Not so. Egbert fails to show that any difference in statutory mandates as between CBP agents and other law enforcement officers is “meaningful,” which our precedents require him to do. Id., at ––––, 137 S.Ct., at 1859–1860. 3 The Court supports its decision not to recognize an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), by observing that we have declined to recognize a Bivens-style cause of action for other constitutional violations. Ante, at 1799 - 1800Ante, at 1799 - 1800. What the Court fails to acknowledge, however, is that each of those cases presented a meaningfully new context and/or raised special factors counseling hesitation that are not present in this case. See supra, at 1813 - 1814, 1815 - 1816, 1817 - 1818, 1818 - 1819; infra, at 1821 - 1823. The one exception is Hui v. Castaneda, 559 U.S. 799, 808, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010), in which the Court did not have to conduct this analysis because it held the FTCA's comprehensive remedial scheme, which provided both a cause of action and an exclusive damages remedy for the claim at issue, clearly precluded a Bivens claim. 4 Any concerns that a case-specific Bivens inquiry in cases involving CBP or ICE agents would pose administrability problems is misplaced. See Brief for American Civil Liberties Union et al. as Amici Curiae 14– 18 (citing lower court cases that have applied this approach to suits against CBP and ICE agents). © 2023 Thomson Reuters. No claim to original U.S. Government Works. 26  Case 4:21-cv-00422-DCB Document 58 Filed 02/23/23 Page 28 of 28 Egbert v. Boule, 142 S.Ct. 1793 (2022) 213 L.Ed.2d 54, 22 Cal. Daily Op. Serv. 5642, 2022 Daily Journal D.A.R. 5703... 5 To the extent the Court's decision may be motivated by fears that allowing this Bivens action to proceed will open the floodgates to countless claims in the future, cf. ante, at 1807 - 1808ante, at 1807 - 1808, that concern is overblown. The doctrine of qualified immunity will continue to protect government officials from liability for damages unless a plaintiff “ ‘pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.’ ” Wood v. Moss, 572 U.S. 744, 757, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). 6 The regulations require any investigative report regarding excessive force to “be referred promptly for appropriate action in accordance with the policies and procedures of the Department [of Homeland Security].” 8 C.F.R. § 287.10(c). Those policies and procedures, in turn, explicitly establish no “right or benefit, substantive or procedural, enforceable at law or in equity.” Dept. of Homeland Security, Dept. Policy on the Use of Force, § X, Policy Statement 044–05 (Sept. 7, 2018). 7 Aside from CBP's internal grievance procedure, Agent Egbert contends that the FTCA offers an alternative remedy for claims like Boule's. This Court does not endorse this argument, and for good reason. This Court repeatedly has observed that the FTCA does not cover claims against Government employees for “violation[s] of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A); see Wilkie v. Robbins, 551 U.S. 537, 553, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007); Carlson v. Green, 446 U.S. 14, 20, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (“Congress views FTCA and Bivens as parallel, complementary causes of action”); Correctional Services Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (noting that it was “crystal clear” that “Congress intended the FTCA and Bivens to serve as parallel and complementary sources of liability” (internal quotation marks omitted)). Just two Terms ago, the Court reaffirmed that by carving out claims “ ‘brought for ... violation[s] of the Constitution’ ” from the FTCA's “ ‘exclusive remedy for most claims against Government employees arising out of their official conduct,’ ” “Congress made clear that it was not attempting to abrogate Bivens” and instead “simply left Bivens where it found it,” Hernández v. Mesa, 589 U. S. ––––, –––– – ––––, and n. 9, 140 S.Ct. 735, 747–749, and n. 9, 206 L.Ed.2d 29 (2020) (quoting Hui, 559 U.S. at 806, 130 S.Ct. 1845; § 2679(b)(2)(A)). 8 Even beyond its doctrinal innovations on the merits, the Court also fashions a brand new, Bivens-specific procedural rule under which it excuses Egbert's forfeiture of his argument that CBP's administrative process suffices as an alternative remedy. Ante, at 1806Ante, at 1806, n. 3. End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 27