August 11, 2022

Volume XII, Number 223

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Court Refuses to Extend Bivens to Excessive Force and Retaliation Claims: SCOTUS Today

Notwithstanding the fact that, as we approach the end of the term, the Court still had 30 cases to decide as of Wednesday morning, June 8, the day’s count has only been reduced by one. So, expect a flurry of cases with the most controversial of them (think firearms and reproductive rights) perhaps coming down at the end.

The one case that the Court decided today is that of Egbert v. Boule, in which Justice Thomas, writing for the Court for the fourth time in the last several weeks (suggesting that we might not hear much from him for the rest of the term) rejected expanding the list of implied causes of action that could be brought under the holding of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Boule, the operator of a Washington state bed and breakfast known as the Smuggler’s Inn, was both a snitch for the U.S. Border Patrol and a facilitator of the actions of illegal U.S.-Canadian border crossers. Egbert is a Border Patrol agent who, having observed Boule appearing to drive a Turkish national suspected of unlawful activity, stopped and engaged in an argument with Boule. In the course of things, Boule threw Egbert to the ground. Thereafter, Egbert reported Boule’s aptly named “SMUGLER” license plates to state authorities, resulting in the audit of Boule’s tax returns. Citing Bivens, Boule ultimately sued Egbert alleging a Fourth Amendment violation for using excessive force, and a First Amendment violation for retaliation. As noted, the Court held that Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim.

As Justice Thomas writes, “[b]ecause our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse [the Ninth Circuit].”

Concurring in the judgment, Justice Gorsuch says he “struggle[s] to see how this set of facts differs meaningfully from those in Bivens itself,” but, echoing the majority opinion, he suggests that he would “return the power to create new causes of action to the people’s representatives in Congress.”

Concurring in part and dissenting in part, Justice Sotomayor, joined by Justices Breyer and Kagan, argues that “[b]y . . . repeatedly amending the legal standard that applies to Bivens claims and whittling down the number of claims that remain viable, the Court itself is making a policy choice for Congress. Whatever the merits of that choice, the Court’s decision today is no exercise in judicial modesty.” She and her companions believe that Boule’s Fourth Amendment claim should be allowed to go forward because, she claims, it is “materially indistinguishable” from the claim in Bivens), but she agrees that under existing caselaw, Boule’s First Amendment retaliation claim cannot go forward under Bivens’s holding.

For many of the readers of this blog, Egbert v. Boule is a diversion from the main sequence. However, they will not be disappointed for very long.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 161
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About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

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