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.'”