Kramer Levin Files Supreme Court Amicus Brief on Availability of Bivens Claims Against Federal Border Patrol Agent

On Jan. 26, 2022, Kramer Levin and the American Civil Liberties Union (ACLU) filed an amicus brief in the U.S. Supreme Court advocating for the availability of Bivens claims for First and Fourth Amendment violations. Egbert v. Boule, No. 21-147. Kramer Levin represented amici curiae the ACLU, the ACLU of Washington, the Cato Institute, the Roderick & Solange MacArthur Justice Center, the National Immigration Litigation Alliance and the Northwest Immigrant Rights Project.

The Egbert case arises from alleged constitutional violations committed by a U.S. Border Patrol agent, Erik Egbert, and raises questions about the availability of Bivens claims to redress Egbert’s alleged misconduct. The plaintiff in the underlying action, Robert Boule, operates a bed & breakfast (B&B) out of his home in Blaine, Washington. According to the complaint, Egbert entered the B&B property without a warrant to confront a foreign national visiting the B&B property. When Boule intervened and asked Egbert to leave the premises, Egbert allegedly shoved Boule and knocked him to the ground, causing injuries. Egbert then confirmed that the foreign national was legally in the country. Boule reported Egbert’s actions to the agent’s supervisors and filed an administrative Federal Torts Claims Act (FTCA) complaint in connection with the alleged misconduct. In the lawsuit now before the Supreme Court, Boule alleges Bivens claims under the Fourth Amendment in connection with Egbert’s warrantless entry onto the B&B property and the use of excessive force, and under the First Amendment for Egbert’s alleged retaliation in response to Boule’s complaints. Specifically, Egbert allegedly instigated investigations of Boule by the Internal Revenue Service, the Social Security Administration and other organizations.

The case before the Supreme Court raises questions about the reach of Bivens claims. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 91 S. Ct. 1999 (1971), the Court held that plaintiffs could sue federal officers for the violation of their Fourth Amendment rights and seek money damages. That precedent has stood for 50 years and has been expanded by the Supreme Court and lower courts into new factual contexts, including cases asserting other constitutional rights. In the past five years, the Supreme Court twice reaffirmed the test for determining whether Bivens claims are available in new contexts: (1) whether the putative claim arises in a “new” context and (2) whether there are “special factors” that counsel hesitation in allowing a Bivens claim to apply to that context. See Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020); Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

The issues before the Court in Egbert are (1) whether a cause of action exists under Bivens for First Amendment retaliation claims and (2) whether a cause of action exists under Bivens for claims against “federal officers engaged in immigration-related functions” for allegedly violating a plaintiff’s Fourth Amendment rights. The amicus brief analyzes 50 years of precedents and congressional actions upholding Bivens jurisprudence, and argues that the Court should reject Egbert’s invitation to categorically preclude Bivens in new contexts, because such preclusion would eliminate the Court’s long-standing two-part test for allowing Bivens claims in new contexts. In addition, the brief argues that Boule’s Fourth Amendment claim is a garden-variety constitutional claim that has been and should be recognized as viable under Bivens. The fact that this case involves a Border Patrol agent is of no moment. Finally, the amici argue that Boule’s First Amendment retaliation claim should be upheld under the Court’s two-part test, noting that Egbert’s alleged retaliation against Boule’s exercise of his First Amendment right to petition the government implicates fundamental constitutional rights that can only be adequately redressed through a Bivens claim.

Oral argument is scheduled for March 2, 2022.