Fifty-one years ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1×1. 403 U.S. 388 (1971). the Supreme Court announced a cause of action for money damages against federal officials under the Fourth Amendment.2×2. Id. at 397. Over the next decade, the Court extended this cause of action to new contexts under the Fifth and Eighth Amendments.3×3. See Davis v. Passman, 442 U.S. 228, 248–49 (1979); Carlson v. Green, 446 U.S. 14, 18–20 (1980). Then, the Court began to retreat, rejecting Bivens liability in the next eleven cases to raise such claims, often because of the presence of alternative remedies that the Court viewed as implicitly foreclosing Bivens relief.4×4. See Egbert v. Boule, 142 S. Ct. 1793, 1799–800 (2022) (collecting cases); Stephen I. Vladeck, The Disingenuous Demise and Death of Bivens, 2019–2020 Cato Sup. Ct. Rev. 263, 273–74 (2020). Last Term, in Egbert v. Boule,5×5. 142 S. Ct. 1793 (2022). the Court continued this streak, declining to extend Bivens to a Fourth Amendment excessive-use-of-force claim and a First Amendment retaliation claim against a Customs and Border Protection (CBP) agent.6×6. Id. at 1800. In reaching this conclusion, the Court determined that CBP’s administrative grievance process “independently foreclose[d]” extending Bivens.7×7. Id. at 1806. Because this administrative process provided little protection or meaningful relief for complainants, the Court set a new floor for “alternative remedies” that foreclose a Bivens cause of action. Consequently, the Court implicitly rejected many potential Bivens claims, since the administrative procedures at most federal law enforcement agencies surpass this floor.
Robert Boule owned the Smuggler’s Inn, a bed-and-breakfast straddling the Canadian border in Blaine, Washington.8×8. Id. at 1800. Blaine is a hub for cross-border traffic — both legal and illegal.9×9. Id. Boule took advantage of this traffic by offering lodging and transportation to those crossing the border.10×10. Id. at 1800–01. As a result, he was well known to CBP, which had apprehended numerous individuals and seized large quantities of contraband at Boule’s inn.11×11. Id. at 1800. CBP agent Erik Egbert had interacted with Boule many times.12×12. Id. at 1801. Boule also, on occasion, served as a government infor-mant: he would let federal agents know when persons of interest visited.13×13. Id. at 1800–01.
In 2014, per his usual practice, Boule informed Egbert that a Turkish national was visiting the inn.14×14. Id. at 1801. Believing that there was “no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine,” Egbert investigated.15×15. Id. (quoting Joint Appendix at 104, Egbert (No. 21-147)). As the visitor arrived at the Inn, Egbert followed him onto Boule’s property.16×16. Id. Then, after an apparent change of heart, Boule ordered Egbert to leave.17×17. Id. Egbert refused.18×18. Id. Instead, according to Boule, Egbert threw Boule aside and pushed him to the ground.19×19. Id. Once he determined the guest’s documents were valid, Egbert left.20×20. Id. But Boule claimed this altercation set off a tit for tat between Egbert and Boule.21×21. See id. at 1801–02. Boule reported Egbert’s conduct to his CBP supervisors.22×22. Id. Boule also filed a Federal Tort Claims Act23×23. 28 U.S.C. §§ 1346(b), 2671–2680. (FTCA) administrative claim with CBP.24×24. Egbert, 142 S. Ct. at 1802. For his part, Egbert referred Boule’s business to multiple state and federal agencies for investigation, including the Washington Department of Licensing, Whatcom County Assessor’s Office, Social Security Administration, and Internal Revenue Service.25×25. Id.; id. at 1812 (Sotomayor, J., concurring in the judgment in part and dissenting in part).
After Boule failed to obtain redress through these alternative avenues — CBP denied his FTCA claim and took no action against Egbert for his alleged misconduct — he sued Egbert in the U.S. District Court for the Western District of Washington.26×26. Id. at 1802 (majority opinion); Complaint for Damages at 1, Boule v. Egbert, No. 17-cv-00106 (W.D. Wash. Aug. 24, 2018). He raised Bivens claims under the Fourth, First, and Fourteenth Amendments.27×27. Complaint for Damages, supra note 26, ¶¶ 18, 20. The district court dismissed each claim at summary judgment.28×28. Egbert, 142 S. Ct. at 1802. The court determined that “allowing [Boule’s Fourth Amendment] claim to proceed would be an unwarranted extension of Bivens into a new context”29×29. Order Denying Plaintiff’s Motion for Summary Judgment Regarding Fourth Amendment
Violation at 5, Boule, No. 17-cv-00106. because Egbert was acting under a different legal mandate than the officials in other Bivens claims.30×30. Id. at 9. Further, since the claims “raise[d] significant separation-of-powers concerns” involving national security,31×31. Id. at 10. the court determined there were “special factors [that] preclude[d]” an extension into this new context.32×32. Id. at 11. The First Amendment also “clearly present[ed] a new context” and national security concerns again counseled hesitation.33×33. Order Granting Defendant’s Motion for Summary Judgment at 8, Boule, No. 17-cv-00106. Boule appealed both rulings.34×34. Boule v. Egbert, 980 F.3d 1309, 1313 (9th Cir. 2020).
The Ninth Circuit reversed.35×35. Id. at 1312. Writing for the panel, Judge Fletcher36×36. Judge Fletcher was joined by Judges Graber and Freudenthal. Judge Freudenthal was sitting by designation from the District of Wyoming. held that both claims arose in new contexts but no special factors counseled against extension.37×37. Boule, 980 F.3d at 1313–16. As to the Fourth Amendment claim, he distinguished Hernández v. Mesa,38×38. 140 S. Ct. 735 (2020). in which the Supreme Court had rejected a Bivens claim against a CBP agent who had shot a Mexican child across the United States–Mexico border.39×39. Boule, 980 F.3d at 1314 (citing Hernández, 140 S. Ct. at 740, 744, 746–47, 749). Unlike the CBP agent in Hernández, Egbert “was not policing th[e] border or trying to prevent illegal entry,” making this “a conventional Fourth Amendment claim,”40×40. Id. one that was “part and parcel of the ‘common and recurrent sphere of law enforcement.’”41×41. Id. at 1315 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)). Thus, there were no special factors counseling against the Fourth Amendment claim.42×42. Id. at 1313. The court also held “[t]here is even less reason to hesitate in extending Bivens” to the First Amendment context here because “[r]etaliation is a well-established . . . claim,” and Egbert’s retaliation was unrelated to his official duties.43×43. Id. at 1316. Finally, the court determined there were no available alternative remedies: the Westfall Act precludes recovery under state law and the FTCA excludes recovery for constitutional violations.44×44. Id. at 1316–17.
Over the dissent of twelve judges, the Ninth Circuit denied rehearing en banc.45×45. See Boule v. Egbert, 998 F.3d 370, 373, 384 (9th Cir. 2021). Along with denying rehearing en banc, the panel issued a new opinion, superseding the prior opinion. Id. at 373. With this reissued decision, the court provided additional elaboration on its conclusion that Bivens should be extended to First Amendment retaliation claims, see id. at 389–91, and clarified its ruling as to Fourth Amendment claims, see id. at 387–89. Judge Bumatay’s dissent argued that under modern doctrine “the judicial practice of creating constitutional causes of action is widely considered disfavored — if not a dead letter.”46×46. Id. at 374 (Bumatay, J., dissenting from denial of rehearing en banc). Judge Bumatay was joined by Judges Callahan, Ikuta, Bennett, Ryan Nelson, Lee, and VanDyke. He provided four reasons against extending Bivens to First Amendment claims: congressional silence on remedies for retaliation claims,47×47. Id. at 378–79. contrary Supreme Court pre-cedent,48×48. Id. at 379–80. precedent from other circuits rejecting First Amendment Bivens claims,49×49. Id. at 380–81. and availability of alternative remedies for Boule.50×50. Id. at 381–82. And for the Fourth Amendment claim, “national security, and specifically, the conduct of agents at the border, is a red light to Bivens extensions.”51×51. Id. at 383. Judge Owens’s separate dissent called for legislation to resolve the Bivens morass,52×52. Id. at 384 (Owens, J., dissenting from denial of rehearing en banc). and Judge Bress’s dissent emphasized that the extension of Bivens to these new contexts was “significantly out of step” with recent Supreme Court precedent.53×53. Id. (Bress, J., dissenting from denial of rehearing en banc). Judge Bress was joined by Judges Bade, Collins, and Forrest (formerly Hunsaker).
The Supreme Court reversed.54×54. Egbert, 142 S. Ct. at 1800. Writing for the majority, Justice Thomas55×55. Justice Thomas was joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Barrett. first provided a new gloss on the Court’s restrictive standard for extending the Bivens remedy to new contexts. Five years prior, in Ziglar v. Abbasi,56×56. 137 S. Ct. 1843 (2017). the Court had crystallized its Bivens extension inquiry into two steps: (1) whether the claim arises in a “new context” and (2) whether there are any “special factors counselling hesitation.”57×57. Id. at 1857 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); Carlson v. Green, 446 U.S. 14, 18 (1980)); see also Egbert, 142 S. Ct. at 1803. But here, Justice Thomas wrote that this two-step inquiry “often resolve[s] to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”58×58. Egbert, 142 S. Ct. at 1803; see also id. at 1805 (“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.’” (quoting Abbasi, 137 S. Ct. at 1858)). The national security concerns the Court had identified in Hernández created such a reason.59×59. Id. at 1804 (citing Hernández v. Mesa, 140 S. Ct. 735, 747 (2020)). Any differences between Hernández and Boule’s case, such as whether the officer was a few feet from the border or straddling it, were “too granular” for the Bivens extension inquiry.60×60. Id. at 1806. The Court also held it would not extend Bivens to First Amendment retaliation claims because almost any adverse government action can be grounds for a retaliation claim.61×61. Id. at 1807. The ease with which these claims could be alleged raises the concern they might deter officials’ lawful conduct.62×62. See id.
Further, the Court held that alternative remedies “independently foreclose[d]” extending Bivens to Boule’s Fourth Amendment claim.63×63. Id. at 1806. CBP bears a statutory mandate to “control, direc[t], and supervis[e] . . . all employees,” and regulations require it to conduct investigations and accept complaints by aggrieved parties.64×64. Id. (alterations in original) (quoting 8 U.S.C. § 1103(a)(2)). Since Boule could, and did, initiate an investigation by filing a grievance with the agency, he had an adequate alternative remedy, even though he had no right to participate in, or to request judicial review of, CBP’s determination.65×65. Id. Justice Thomas concluded that the minimal procedures sufficed to create an “adequate level of deterrence” against constitutional violations.66×66. Id. at 1807.
Justice Gorsuch concurred in the judgment to note that he would “take the next step and acknowledge explicitly what the Court leaves barely implicit” by overruling Bivens.67×67. Id. at 1810 (Gorsuch, J., concurring in the judgment). In his view, the federal courts have no role in creating new causes of action in a system of separated powers.68×68. See id. He then criticized the Court’s “case-specific analysis” as he “[c]andidly . . . struggle[d] to see how this set of facts differ[ed] meaningfully from those in Bivens itself.”69×69. Id.
Justice Sotomayor concurred in the judgment in part and dissented in part.70×70. Id. (Sotomayor, J., concurring in the judgment in part and dissenting in part). Justice Sotomayor was joined by Justices Breyer and Kagan. She concurred in the judgment that Bivens should not be extended to First Amendment retaliation claims.71×71. Id. at 1811. However, she would have “arrive[d] at that conclusion by following precedent rather than by applying the Court’s new, single-step inquiry.”72×72. Id. at 1817. She dissented from the majority’s conclusion on the Fourth Amendment claim.73×73. Id. at 1811. In her view, Boule’s claim did not arise in a new context, nor did it present any special factors counseling hesitation.74×74. Id. at 1814. Merely bringing a claim against an employee of a different federal agency could not create a new context.75×75. Id. at 1815. To assert otherwise would render every Bivens claim a new context, since Bivens involved the now-defunct Federal Bureau of Narcotics.76×76. Id. Further, Justice Sotomayor argued, the only special factor that raised separation of powers concerns was that this interaction between Egbert and Boule took place near the border.77×77. Id. at 1816. Yet, it took place exclusively on U.S. soil, exclusively between U.S. citizens — a far cry from Hernández’s cross-border shooting of a foreign citizen.78×78. Id. Finally, Justice Sotomayor criticized the majority’s conclusion that Boule had alternative remedies.79×79. Id. at 1821–23. Before, the Court had only ever found sufficient alternative remedies where claimants had opportunities to participate, obtain judicial review, and secure “at least some meaningful relief.”80×80. Id. at 1822. CBP’s investigation provided none of that to Boule.81×81. Id. at 1821.
The Court’s holding that CBP’s grievance process was an adequate alternative remedy sets a new floor for the alternative remedies analysis and likely precludes new Bivens remedies against most federal law enforcement agencies. Prior to this decision, several lower courts had argued that Bivens plaintiffs must receive some individual relief to redress the specific harm they faced. But in Egbert, the Court confronted a remedial system that failed to provide any direct relief to the plaintiff and nevertheless found that it independently foreclosed Bivens relief. The Court thus rejected the argument that direct relief to the plaintiff is necessary, instead reducing the touchstone of the alternative remedies inquiry into whether there is adequate deterrence. And because most federal agencies have similar grievance processes, this conclusion is likely to foreclose extensions of Bivens against most federal law enforcement agents.
Whether alternative remedies are available has long been central to the Bivens inquiry. In Bivens itself, the Court discussed a plaintiff’s inability to obtain relief for a Fourth Amendment violation under state tort law and noted there was not “another remedy, equally effective in the view of Congress.”82×82. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); see also id. at 390–98 (discussing the inadequacy of state law remedies). As Justice Harlan noted, it was “damages or nothing” for Webster Bivens because he could not avail himself of any other remedies.83×83. Id. at 410 (Harlan, J., concurring in the judgment). A decade later, the Court noted that it would not extend Bivens relief where “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution.”84×84. Carlson v. Green, 446 U.S. 14, 18–19 (1980); see also Davis v. Passman, 442 U.S. 228, 248 (1979) (“And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated.” (citing Bivens, 403 U.S. at 397)). The Court then held that several alternative remedies foreclosed Bivens relief, such as the civil service system for a wrongfully discharged federal employee,85×85. See Bush v. Lucas, 462 U.S. 367, 385–90 (1983). administrative tribunals to contest the denial of Social Security benefits,86×86. See Schweiker v. Chilicky, 487 U.S. 412, 424–25 (1988). and tort law claims wherever available.87×87. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72–73 (2001) (concluding that the ability to bring state tort law damages action against private defendants meant a prisoner did not “lack effective remedies,” id. at 72). For over forty years, the Court treated the question of whether there were alternative remedies as the first step in the Bivens extension inquiry.88×88. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (“[T]he decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” (citing Bush, 462 U.S. at 378)). And still, under the Court’s recent formulation of the inquiry in Abbasi, an alternative remedial structure may be a sufficient basis to foreclose a Bivens cause of action.89×89. Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017) (“[I]f there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”).
Over the past several decades, however, the Supreme Court and lower courts have fluctuated on how comparable the remedy must be to secure money damages under Bivens.90×90. See John F. Preis, Alternative State Remedies in Constitutional Torts, 40 Conn. L. Rev. 723, 730–31 (2008). As the Court shifted to a more stringent approach to extending Bivens claims, it went from looking for remedies “equally effective” as Bivens relief91×91. Alexander A. Reinert & Lumen N. Mulligan, Asking the First Question: Reframing Bivens After Minneci, 90 Wash. U. L. Rev. 1473, 1487 (2013) (quoting Carlson v. Green, 446 U.S. 14, 19 (1980); Davis v. Passman, 442 U.S. 228, 248 (1979)). to merely “meaningful” remedies.92×92. Id. at 1486 (quoting Bush, 462 U.S. at 368, 386). And the Court indicated that such remedies, even if not “perfectly congruent,”93×93. Minneci v. Pollard, 565 U.S. 118, 129 (2012). ought to provide “roughly similar incentives for potential defendants” not to violate the Constitution and “roughly similar compensation to victims of violations.”94×94. Id. at 130. Relying on this language, some lower courts have indicated that alternative remedies must give some direct relief to claimants before such remedies are deemed adequate.95×95. See, e.g., Quintero Perez v. United States, 8 F.4th 1095, 1105 (9th Cir. 2021); Hernández v. United States, 757 F.3d 249, 273–74 (5th Cir. 2014), rev’d en banc, 785 F.3d 117 (5th Cir. 2015) (per curiam), vacated, 137 S. Ct. 2003 (2017) (per curiam); Engel v. Buchan, 710 F.3d 698, 707 (7th Cir. 2013). Thus, where an agency’s internal administrative process failed to provide any potential of monetary relief for retrospective harms, those courts held the remedy could not foreclose a Bivens cause of action.96×96. See, e.g., Hoffman v. Preston, 26 F.4th 1059, 1070 (9th Cir. 2022) (“[W]hen a prisoner is physically injured due to an officer’s unconstitutional actions, the harm can ‘only be remedied by money damages,’ which are not available through the [Bureau of Prisons’] grievance process.” (quoting Bistrian v. Levi, 912 F.3d 79, 92 (3d Cir. 2018))); Bistrian, 912 F.3d at 92 (“The administrative grievance process is not an alternative because it does not redress [the plaintiff’s] harm, which could only be remedied by money damages.” (citing Nyhuis v. Reno, 204 F.3d 65, 70 (3d Cir. 2000))).
By holding that Boule had alternative remedies that independently foreclosed a Bivens claim, the Court rejected the position that a plaintiff must be entitled to some form of individual relief.97×97. The Court did, however, rightly decline to hold that the FTCA complaint process alone foreclosed the Bivens remedy. See Egbert, 142 S. Ct. at 1822 n.7 (Sotomayor, J., concurring in the judgment in part and dissenting in part). Because of the extensive administrative process laid out in the FTCA and its implementing regulations, see 28 C.F.R. §§ 14.1–.11 (2021), one Ninth Circuit dissental argued it constituted an alternative remedy for Bivens purposes. Boule v. Egbert, 998 F.3d 370, 384 (9th Cir. 2021) (Bumatay, J., dissenting from denial of rehearing en banc) (“[Boule] was able to [file a tort claim] because of the administrative remedy provided by the FTCA. Even if the FTCA remedy does not provide the ‘exact same kind of relief’ as Bivens, the mere existence of such an alternative is reason to hesitate here.” (footnote omitted) (quoting Oliva v. Nivar, 973 F.3d 438, 444 (5th Cir. 2020), cert. denied, 141 S. Ct. 2669 (2021), reh’g denied, 141 S. Ct. 2886 (2021))); see also Oliva, 973 F.3d at 444 (“A person in [the plaintiff’s] situation first proceeds through the [Department of Veteran Affairs]’s administrative process. Then he can bring his claims under the FTCA. [The plaintiff] followed that process. . . . [His] own conduct shows there is an alternative remedial scheme for his claims.” (citations omitted)). The Supreme Court, however, has long held that the ability to bring an FTCA claim does not foreclose a Bivens remedy, see Carlson v. Green, 446 U.S. 14, 19–21 (1980), in part because the FTCA excludes claims “brought for a violation of the Constitution,” 28 U.S.C. § 2679(b)(2)(A); see also Hernández v. Mesa, 140 S. Ct. 735, 748 n.9 (2020). To be sure, a plaintiff who brings an FTCA action must first exhaust their administrative remedies by filing a claim with the appropriate federal agency. 28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S. 106, 112 (1993) (holding exhaustion requirement jurisdictional). Yet, treating this administrative process as an alternative would effectively nullify the FTCA’s exception for Bivens remedies and Congress’s intent that the two serve as “parallel, complementary causes of action.” Carlson, 446 U.S. at 20; see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001). This interpretation would also preclude Bivens claims across all federal agencies that allow FTCA claims. See 28 U.S.C. § 2672 (explaining that accepting an FTCA award “constitute[s] a complete release” of claims against the U.S. government related to that subject matter). The Court focused on a CBP grievance process and investigation that were more restrictive than either avenue of relief in the two cases the Court compared it to — Hernández and Correctional Services Corp. v. Malesko.98×98. 534 U.S. 61 (2001). In Hernández, Department of Justice investigators and prosecutors, in conjunction with CBP and Department of Homeland Security officials, had investigated the agent for potential civil and criminal misconduct.99×99. See Hernández, 140 S. Ct. at 740 & n.1 (citing Press Release, U.S. Dep’t of Just., Off. of Pub. Affs., Federal Officials Close Investigation into the Death of Sergio Hernandez-Guereca (Apr. 27, 2012), https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-guereca [https://perma.cc/E8V3-STZN]). Likewise, the Federal Bureau of Prisons’ administrative process at issue in Malesko is “substantial; it contains its own statutes of limitations, filing procedures, and appeals process. And prisoners may retain attorneys for assistance with the process.”100×100. Pinson v. U.S. Dep’t of Just., 514 F. Supp. 3d 232, 243 (D.D.C. 2021) (quoting Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020)). Further, while that program does not award monetary damages, it does permit changes to the policies affecting applicants and other direct relief for applicants.101×101. See Mack v. Yost, 968 F.3d 311, 321 (3d Cir. 2020). By contrast, CBP’s investigation of Egbert could provide no recovery for Boule or individual redress for his injuries. Rather, it focused on the future of Egbert’s employment with CBP.102×102. See Joint Appendix, supra note 15, at 177, 182–84. Thus, the Court departed from its prior consideration of whether a plaintiff received some form of individual redress or “roughly similar” compensation, instead asking whether the alternative remedies deter constitutional violations.103×103. See Egbert, 142 S. Ct. at 1806–07. Presumably, then, merely having a process for filing a complaint against an employee, with the possibility of an internal investigation, provides a sufficient remedy to foreclose Bivens claims.104×104. See id. at 1807 (“[W]e have no warrant to doubt that the consideration of Boule’s grievance against Agent Egbert secured adequate deterrence and afforded Boule an alternative remedy.”).
Given the Court’s approval of this limited process, grievance procedures at other federal law enforcement agencies are likely to foreclose new Bivens causes of action. Consider that the Department of Justice and the Department of Homeland Security account for eighty percent of federal law enforcement officers.105×105. See Connor Brooks, Bureau of Just. Stat., NCJ 251922, Federal Law Enforcement Officers, 2016 — Statistical Tables (2019), https://bjs.ojp.gov/content/pub/pdf/fleo16st.pdf [https://perma.cc/S6NQ-QNE2]. Each department has a grievance process akin to that provided in Egbert. Just as the CBP Office of the Inspector General (OIG) accepts complaints and investigates alleged violations,106×106. 8 C.F.R. § 287.10(a)–(b) (2021). the Department of Justice OIG provides a grievance and investigation process that is required by both statute and regulation.107×107. 5 U.S.C. app. § 8E(d) (“The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice . . . shall report that information to the Inspector General.”); 28 C.F.R. § 0.29c(a) (2021) (“Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by Department employees shall be reported to the OIG, or to a supervisor or a Department component’s internal affairs office . . . .”). In addition, the office is statutorily required to make available to the public a means of filing “complaints alleging abuses of civil rights and civil liberties” by any department employees and to review those complaints.108×108. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 1001, 115 Stat. 272, 391 (codified at 5 U.S.C. app. § 8E note (Review of Civil Rights Complaints by the Department of Justice)). The OIG interprets this provision narrowly to include only civil rights violations based upon certain ethnicities and religions and refers other complaints to the relevant agency or component. See Off. of the Inspector Gen., U.S. Dep’t of Just., Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act 3–4 (2021), https://www.oversight.gov/sites/default/files/oig-reports/DOJ/21-107.pdf [https://perma.cc/FRR2-VB2X]. Several departmental components have additional procedures for complaints against their own agents.109×109. For example, as discussed above, the Federal Bureau of Prisons has an extensive Administrative Remedy Program for claims against its officers, required by statute and regulation. See Fed. Bureau of Prisons, Program Statement No. 1330.18, Administrative Remedy Program (2014), https://www.bop.gov/policy/progstat/1330_018.pdf [https://perma.cc/5LRF-3RHY]. By regulation, the Director of the U.S. Marshals Service is required to conduct an “[i]nvestigation of alleged improper conduct on the part of U.S. Marshals Service personnel.” 28 C.F.R. § 0.111(n) (2021); see also 28 U.S.C. § 561(g) (requiring Director to “supervise and direct” the Service). And the internal review process at CBP applies to the other components of the Department of Homeland Security, including Immigration and Customs Enforcement.110×110. See 8 C.F.R. § 287.8 (2021). This process is complemented by statutory remedies available to those in detention. See Alvarez v. U.S. Immigr. & Customs Enf’t, 818 F.3d 1194, 1208 (11th Cir. 2016) (holding Bivens action was foreclosed by Immigration and Nationality Act’s “host of review procedures tailored to the differently situated groups of aliens that may be present in the United States”). Nor are these the only federal law enforcement agencies that provide such processes. Other agencies, such as the National Park Service and the Department of State’s Bureau of Diplomatic Security — each with over 1000 law enforcement agents — have internal review procedures akin to CBP’s grievance process.111×111. Brooks, supra note 105. State Department employees must report “serious, noncriminal misconduct” by agency law enforcement agents. 22 U.S.C. § 3929(c)(6)(A)(iv); see also U.S. Dep’t of State, 1 Foreign Affairs Manual § 262.4 (2022) (requiring senior officials to “[o]versee investigations of allegations of malfeasance, misfeasance, and nonfeasance related to Department personnel, and conduct investigations into criminal and administrative misconduct involving personnel”). The National Park Service provides a comprehensive policy for investigating complaints against law enforcement employees. See Nat’l Park Serv., 9 Law Enforcement Program: Reference Manual 209 (2015), https://www.nps.gov/aboutus/foia/upload/RM-9-redacted-V-2.pdf [https://perma.cc/8R4W-H6RV]. And because Bivens relief is mostly available for only those claims brought against law enforcement agents under the Fourth and Eighth Amendments,112×112. See James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 Geo. L.J. 117, 118–19, 125 (2009). these procedures could dramatically limit Bivens claims.
Much of the commentary surrounding the Court’s decision in Egbert has focused on how finely the Court evaluates the facts to identify differences between previous Bivens claims approved by the Court and how the majority reframed the two-step process for extending Bivens.113×113. See, e.g., Ian Millhiser, The Supreme Court Gives Lawsuit Immunity to Border Patrol Agents Who Violate the Constitution, Vox (June 8, 2022, 1:00 PM), https://www.vox.com/23159672/supreme-court-egbert-boule-bivens-law-enforcement-border-patrol-immunity [https://perma.cc/2ZLP-LGZY]; Matt Ford, The Supreme Court Keeps Chipping Away at Your Constitutional Rights, New Republic (June 8, 2022), https://newrepublic.com/article/166725/thomas-bivens-boule-egbert-decision [https://perma.cc/E8J3-4A7Z]. But the Court’s determination that CBP’s internal disciplinary process was a sufficient alternative remedy — even though it afforded Boule no direct relief — is likely to have an equally large impact on limiting the expansion of Bivens to new contexts. Courts are likely to find that few, if any, federal agencies lack remedies like CBP’s. Thus, even in other “run-of-the-mill Fourth Amendment case[s]”114×114. Boule v. Egbert, 998 F.3d 370, 389 (9th Cir. 2021) (internal quotation marks omitted). like Egbert, courts will be inclined to find that Bivens causes of action are foreclosed.