Fifty-one years ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1 the Supreme Court announced a cause of action for money damages against federal officials under the Fourth Amendment.2 Over the next decade, the Court extended this cause of action to new contexts under the Fifth and Eighth Amendments.3 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 Last Term, in Egbert v. Boule,5 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 In reaching this conclusion, the Court determined that CBP’s administrative grievance process “independently foreclose[d]” extending Bivens.7 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 Blaine is a hub for cross-border traffic — both legal and illegal.9 Boule took advantage of this traffic by offering lodging and transportation to those crossing the border.10 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 CBP agent Erik Egbert had interacted with Boule many times.12 Boule also, on occasion, served as a government infor-mant: he would let federal agents know when persons of interest visited.13
In 2014, per his usual practice, Boule informed Egbert that a Turkish national was visiting the inn.14 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 As the visitor arrived at the Inn, Egbert followed him onto Boule’s property.16 Then, after an apparent change of heart, Boule ordered Egbert to leave.17 Egbert refused.18 Instead, according to Boule, Egbert threw Boule aside and pushed him to the ground.19 Once he determined the guest’s documents were valid, Egbert left.20 But Boule claimed this altercation set off a tit for tat between Egbert and Boule.21 Boule reported Egbert’s conduct to his CBP supervisors.22 Boule also filed a Federal Tort Claims Act23 (FTCA) administrative claim with CBP.24 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
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 He raised Bivens claims under the Fourth, First, and Fourteenth Amendments.27 The district court dismissed each claim at summary judgment.28 The court determined that “allowing [Boule’s Fourth Amendment] claim to proceed would be an unwarranted extension of Bivens into a new context”29
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 Further, since the claims “raise[d] significant separation-of-powers concerns” involving national security,31 the court determined there were “special factors [that] preclude[d]” an extension into this new context.32 The First Amendment also “clearly present[ed] a new context” and national security concerns again counseled hesitation.33 Boule appealed both rulings.34
The Ninth Circuit reversed.35 Writing for the panel, Judge Fletcher36 held that both claims arose in new contexts but no special factors counseled against extension.37 As to the Fourth Amendment claim, he distinguished Hernández v. Mesa,38 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 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 one that was “part and parcel of the ‘common and recurrent sphere of law enforcement.’”41 Thus, there were no special factors counseling against the Fourth Amendment claim.42 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 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
Over the dissent of twelve judges, the Ninth Circuit denied rehearing en banc.45 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 He provided four reasons against extending Bivens to First Amendment claims: congressional silence on remedies for retaliation claims,47 contrary Supreme Court pre-cedent,48 precedent from other circuits rejecting First Amendment Bivens claims,49 and availability of alternative remedies for Boule.50 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 Judge Owens’s separate dissent called for legislation to resolve the Bivens morass,52 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
The Supreme Court reversed.54 Writing for the majority, Justice Thomas55 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 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 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 The national security concerns the Court had identified in Hernández created such a reason.59 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 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 The ease with which these claims could be alleged raises the concern they might deter officials’ lawful conduct.62
Further, the Court held that alternative remedies “independently foreclose[d]” extending Bivens to Boule’s Fourth Amendment claim.63 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 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 Justice Thomas concluded that the minimal procedures sufficed to create an “adequate level of deterrence” against constitutional violations.66
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 In his view, the federal courts have no role in creating new causes of action in a system of separated powers.68 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
Justice Sotomayor concurred in the judgment in part and dissented in part.70 She concurred in the judgment that Bivens should not be extended to First Amendment retaliation claims.71 However, she would have “arrive[d] at that conclusion by following precedent rather than by applying the Court’s new, single-step inquiry.”72 She dissented from the majority’s conclusion on the Fourth Amendment claim.73 In her view, Boule’s claim did not arise in a new context, nor did it present any special factors counseling hesitation.74 Merely bringing a claim against an employee of a different federal agency could not create a new context.75 To assert otherwise would render every Bivens claim a new context, since Bivens involved the now-defunct Federal Bureau of Narcotics.76 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 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 Finally, Justice Sotomayor criticized the majority’s conclusion that Boule had alternative remedies.79 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 CBP’s investigation provided none of that to Boule.81
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 As Justice Harlan noted, it was “damages or nothing” for Webster Bivens because he could not avail himself of any other remedies.83 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 The Court then held that several alternative remedies foreclosed Bivens relief, such as the civil service system for a wrongfully discharged federal employee,85 administrative tribunals to contest the denial of Social Security benefits,86 and tort law claims wherever available.87 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 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
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 As the Court shifted to a more stringent approach to extending Bivens claims, it went from looking for remedies “equally effective” as Bivens relief91 to merely “meaningful” remedies.92 And the Court indicated that such remedies, even if not “perfectly congruent,”93 ought to provide “roughly similar incentives for potential defendants” not to violate the Constitution and “roughly similar compensation to victims of violations.”94 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 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
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 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 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 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 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 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 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 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
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 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 the Department of Justice OIG provides a grievance and investigation process that is required by both statute and regulation.107 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 Several departmental components have additional procedures for complaints against their own agents.109 And the internal review process at CBP applies to the other components of the Department of Homeland Security, including Immigration and Customs Enforcement.110 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 And because Bivens relief is mostly available for only those claims brought against law enforcement agents under the Fourth and Eighth Amendments,112 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 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 like Egbert, courts will be inclined to find that Bivens causes of action are foreclosed.