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Federal officers facing liability on civil claims get high court pass

Precedent that opens federal officials to damages claims is hanging on by a thread after the latest ruling by the divided justices on constitutional liability. 

WASHINGTON (CN) — Tiptoeing its way around the landmark Bivens precedent, the Supreme Court reined in civil liability against federal officers in a 6-3 decision Wednesday. 

The right for individuals to seek money damages from federal officers for constitutional violations was enshrined in the 1971 ruling Bivens v. Six Unknown Named Agents. Over the years, however, the precedent has been incrementally weakened, and Justice Clarence Thomas wrote for the majority Wednesday that the present-day court wouldn't back the right at all.

“Since it was decided, Bivens has had no shortage of detractors,” Thomas wrote. “And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution. But, to decide the case before us, we need not reconsider Bivens itself.” 

Every conservative justice joined Thomas in the majority, and Justice Neil Gorsuch wrote separately to say that the court should have gone further. 

“In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more ‘protracted litigation destined to yield nothing,’” the Trump appointee wrote. “Instead, we should exercise ‘the truer modesty of ceding an ill-gotten gain,’ and forthrightly return the power to create new causes of action to the people’s representatives in Congress.” 

The liberal justices meanwhile slammed the majority for a ruling that they say will make it harder for those who suffer Fourth Amendment abuses to file suit. 

“Today’s decision does not overrule Bivens,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Stephen Breyer. “It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.” 

The case stems from a suit filed by Robert Boule, who operates a bed and breakfast in Washington state near the Canadian border, against Border Patrol agent Erik Egbert. Boule worked as an informant for years but reported Egbert to Border Patrol superiors after the two men were involved in an altercation that left Boule with a back injury. When Boule got audited by the IRS following his report on Egbert, he accused Egbert of tipping them off in retaliation. 

A federal judge ruled in favor of Egbert at summary judgment, but the Ninth Circuit reversed, finding Boule had valid claims under the First and Fourth Amendments. 

Egbert’s attorney and the government urged the court not to expand Bivens when the court heard oral arguments in March, cautioning against the onslaught of retaliation claims that might come as a result. Boule’s attorney counted that the justices could still offer a remedy in the case even under the narrow precedent. 

The precedent has been weakened in recent years, notably in 2020 when the justices did not apply Bivens in Hernandez v. Mesa, a case concerning a Border Patrol agent who shot a Mexican national across the border.  

Dealing another blow to Bivens, the majority concluded Wednesday that it was wrong for the Ninth Circuit to create causes of action for Boule’s claims. 

“The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action,” Thomas wrote. “A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’ Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the ‘particular case.’”


Thomas wrote that the court was wrong to create a new context for Bivens because Congress should be the one creating these remedies, and there was already an alternative remedy to protect Boule provided by the government. 

“So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy,” Thomas wrote. “That is true even if a court independently concludes that the Government’s procedures are ‘not as effective as an individual damages remedy.’”

While the appeals court used the court’s 2020 decision in Hernandez to prove why this case would be more suited for a Bivens claim, Thomas does the opposite. He uses Hernandez throughout his analysis to show why the court’s ruling follows their precedent. 

Thomas said recognizing a new Bivens action in the First Amendment context could prevent officers from being able to do their jobs in fear that they’d face lawsuits. 

“A plaintiff can turn practically any adverse action into grounds for a retaliation claim,” Thomas wrote. And, 'because an official’s state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may be less amenable to summary disposition.' Even a frivolous retaliation claim 'threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence.'”

Noting that today’s ruling acknowledges the misstep the court made in providing rights and liabilities that Congress never approved, Gorsuch said the court leaves open the larger question before them of if there is ever a situation where courts are better equipped than Congress to create a cause of action. 

“It seems to me that to ask the question is to answer it,” the Trump appointee wrote. “To create a new cause of action is to assign new private rights and liabilities — a power that is in every meaningful sense an act of legislation.”

Gorsuch also disagrees with the court’s continued use of case-specific analysis in these cases. 

“To atone for Bivens, it seems we continue repeating its most basic mistake.” 

Sotomayor and the other liberal justices agreed with the court’s ruling on the First Amendment retaliation claims but said Boule’s Fourth Amendment claim should have been preserved. The dissent argues that Boule’s claim does not present a new Bivens context, but that the justices should recognize it even if it did. 

“At bottom, Boule’s claim is materially indistinguishable from the claim brought in Bivens,” the Obama appointee wrote. “His case therefore does not present a new context for the purposes of assessing whether a Bivens remedy is available.”

Chiding the majority for “thinly veil[ing] its disapproval of Bivens,” Sotomayor wrote that the justification for dismissing Boule’s Fourth Amendment claims is unheard of and that the court ruled inconsistently with precedent.

“If the legal standard the Court articulates to reject Boule’s Fourth Amendment claim sounds unfamiliar, that is because it is,” Sotomayor wrote. “Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases. The measures the Court takes to ensure Boule’s claim is dismissed are inconsistent with governing precedent.” 

Sarah Michelle Harris, an attorney with Williams & Connolly representing Egbert, did not return a request for comment, nor did Felicia Ellsworth, an attorney from WilmerHale representing Boule. 

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Categories / Appeals, Civil Rights, Government, Law

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