Schmidt, Sethi & Akmajian Blog

Civil Rights Claim Under 42 U.S.C. § 1983 & Bivens

Posted by Ted A. Schmidt | Jun 08, 2022 | 0 Comments

Egbert v. Boule, No. 21-147 __U.S.__ (June 8, 2022) (J. Thomas)

Plaintiff owned a bed and breakfast near the Canadian border in Washington state. He occasionally harbored and assisted illegal aliens and also occasionally helped U.S. Border Patrol apprehend illegal immigrants. A U.S. Border Patrol agent physically assaulted plaintiff while searching for an illegal immigrant. Plaintiff filed a grievance with the agent's supervisors as well as an administrative claim under the Federal Tort Claims Act [FTCA]. The border agent then allegedly retaliated by reporting plaintiff's license plate to the Washington Department of Licensing for illegal activity and by contacting the Internal Revenue Service, resulting in an audit.  The FTCA claim was denied and the Border Patrol took no action against the agent. 

Plaintiff then brought this 42 U.S.C. § 1983 civil rights claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) for damages. The United States District Court dismissed the claim but the United States Ninth Circuit Court of Appeals reversed. The United States Supreme Court reversed the Court of Appeals.

The Supreme Court expressed its disdain for Bivens going so far as to say “if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.” Nonetheless, the court found it unnecessary to overrule Bivens instead finding that allowing a civil rights claim here was inappropriate because to do so could undermine the important governmental interest in maintaining national security at the border and because Congress had created other remedies, i.e., the right to bring an administrative grievance directly to the Border Patrol. CFR §§287.10(a)–(b). There is no constitutional right to a judicial review of the agency's handling of such a grievance. The adequacy of this remedy is for Congress and not the courts to decide.

Finally, with respect to plaintiff's retaliation claim, “ [e]xtending Bivens to alleged First Amendment violations would pose an acute ‘risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.