EGBERT v. BOULE
No. 21–147
SUPREME COURT OF THE UNITED STATES
June 8, 2022
596 U.S. 482
Syllabus
EGBERT v. BOULE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 21–147. Argued March 2, 2022—Decided June 8, 2022
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Patrol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler‘s Inn. When Agent Egbert observed one of Boule‘s vehicles returning to the inn, he suspected that the Turkish national was a passenger and followed the vehicle to the inn. On Boule‘s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the vehicle and then to the ground. Egbert then checked the immigration paperwork for Boule‘s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.
Boule filed a grievance with Agent Egbert‘s supervisors and an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by reporting Boule‘s “SMUGLER” license plate to the Washington Department of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule‘s tax returns. Boule‘s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of retaliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the District Court to recognize a damages action for each alleged constitutional violation. The District Court declined to extend Bivens as requested, but the Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Boule‘s Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 490–502.
(a) In Bivens, the Court held that it had authority to create a damages action against federal agents for violating the plaintiff‘s Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Passman, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come “to appreciate more fully the tension between” judicially created causes of action and “the Constitution‘s separation of legislative and judicial power,” Hernandez v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e. g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that recognizing a Bivens cause of action is “a disfavored judicial activity.” Ziglar v. Abbasi, 582 U. S. 120, 135.
The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents “a new Bivens context“—i. e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action, Ziglar, 582 U. S., at 139, and, second, even if so, do “special factors”
(b) The Court of Appeals conceded that Boule‘s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 493–498.
(1) First, the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ___. In Hernández, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent because “regulating the conduct of agents at the border unquestionably has national security implications.” Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule‘s Fourth Amendment claim as akin to a “conventional” excessive-force claim, as in Bivens, and less like the cross-border shooting in Hernández. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the pitfalls of aрplying the special-factors analysis at too granular a level. A court should not inquire whether Bivens relief is appropriate in light of the balance of circumstances in the “particular case.” United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask “[m]ore broadly” whether there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate,” id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 494–497.
(2) Second, Congress has provided alternative remedies for aggrieved parties in Boule‘s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate “[a]lleged violations” and accept grievances from “[a]ny persons.”
(c) There is no Bivens cause of action for Boule‘s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment violations would pose an acute “risk that fear of
998 F. 3d 370, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, post, p. 502. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined, post, p. 504.
Sarah M. Harris argued the cause for petitioner. With her on the briefs were Lisa S. Blatt and Geoff Grindeland.
Michael R. Huston argued the cause for the United States as amicus curiae supporting petitioner. With him on the brief were Solicitor General Prelogar, Acting Assistant Attorney General Boynton, Deputy Solicitor General Gannon, Barbara L. Herwig, Jaynie Lilley, and Mary Hampton Mason.
Felicia H. Ellsworth argued the cause for respondent. With her on the brief were Mark C. Fleming, W. Scott Railton, and Ruth E. Vinson.*
Opinion of the Court
JUSTICE THOMAS delivered the opinion of the Court.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations. See Chappell v. Wallace, 462 U. S. 296 (1983); Bush v. Lucas, 462 U. S. 367 (1983); United States v. Stanley, 483 U. S. 669 (1987); Schweiker v. Chilicky, 487 U. S. 412 (1988); FDIC v. Meyer, 510 U. S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001); Wilkie v. Robbins, 551 U. S. 537 (2007); Hui v. Castaneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565 U. S. 118 (2012); Ziglar v. Abbasi, 582 U. S. 120 (2017); Hernández v. Mesa, 589 U. S. ___ (2020). Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim. Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.
I
Blaine, Washington, is the last town in the United States along U. S. Interstate Highway 5 before reaching the Canadian border. Respondent Robert Boule is a longtime Blaine resident. The rear of his property abuts the Canadian border at “0 Avenue,” a Canadian street. Boule‘s property line actually extends five feet into Canada. Several years ago,
Privacy & Surveillance Accountability et al. by Gene C. Schaerr, Erik S. Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for the Reporters Committee for Freedom of the Press et al. by Bruce D. Brown; and for Roy Sargeant by R. Stanton Jones and Andrew T. Tutt.
David M. Zionts, Samuel Weiss, and Oren Nimni filed a brief for Dee Farmer et al. as amici curiae.
Boule placed a line of small stones on his property to mark the international boundary. As shown below, any person could easily enter the United States or Canada through or near Boule‘s property. See App. 100.
Boule markets his home as a bed-and-breakfast aptly named “Smuggler‘s Inn.” The area surrounding the Inn “is a hotspot for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations.” Id., at 91. “On numerous occasions,” U. S. Border Patrol agents “have observed persons come south across the border and walk into Smuggler‘s Inn through the back door.” Id., at 101. Federal agents also have seized from the Inn shipments of cocaine, methamphetamine, ecstasy, and other narcotics. For a time, Boule served as a confidential informant who would help federal agents identify and apprehend persons engaged in unlawful cross-border activity on or near his property. Boule claims that the Government has paid him upwards of $60,000 for his services.
Ever the entrepreneur, Boule saw his relationship with Border Patrol as a business opportunity. Boule would host persons who unlawfully entered the United States as “guests” at the Inn and offer to drive them to Seattle or
elsewhere. He
In light of Boule‘s business model, local Border Patrol agents, including petitioner Erik Egbert, were well acquainted with Smuggler‘s Inn and the criminal activity that attended it. On March 20, 2014, Boule informed Agent Egbert that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler‘s Inn later that day. Agent Egbert grew suspicious, as he could think of “no legitimate reason a persоn would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine.” Id., at 104. The photograph below displays the amenities for which Boule‘s Turkish guest would have traveled more than 7,500 miles. See id., at 102.
Later that afternoon, Agent Egbert observed one of Boule‘s vehicles—a black SUV with the license plate, “SMUGLER“—returning to the Inn. Agent Egbert suspected that Boule‘s Turkish guest was a passenger and followed the SUV into the driveway so he could check the guest‘s immigration status. On Boule‘s account, the situation escalated from there. Boule instructed Agent Egbert to leave his property, but Agent Egbert declined. Instead, Boule claims, Agent Egbert lifted him off the ground and threw him against the SUV. After Boule collected himself, Agent Egbert allegedly threw him to the ground. Agent Egbert then checked the guest‘s immigration paperwork, concluded that everything was in order, and left. Later that evening, Boule‘s Turkish guest unlawfully entered Canada from Smuggler‘s Inn.
Boule lodged a grievance with Agent Egbert‘s supervisors, alleging that Agent
referencing illegal conduct, and by contacting the Internal Revenue Service and prompting an audit of Boule‘s tax returns. Ultimately, Boule‘s FTCA claim was denied and, after a year-long investigation, Bordеr Patrol took no action against Agent Egbert for his alleged use of force or acts of retaliation. Thereafter, Agent Egbert continued to serve as an active-duty Border Patrol agent.
In January 2017, Boule sued Agent Egbert in his individual capacity in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Boule invoked Bivens and asked the District Court to recognize a damages action for each alleged constitutional violation. The District Court declined to extend a Bivens remedy to Boule‘s claims and entered judgment for Agent Egbert. The Court of Appeals reversed. See 998 F. 3d 370, 385 (CA9 2021). Twelve judges dissented from the denial of rehearing en banc. See id., at 373 (Bumatay, J., dissenting); id., at 384 (Owens, J., dissenting); ibid. (Bress, J., dissenting).
We granted certiorari. 595 U. S. ___ (2021).
II
In Bivens, the Court held that it had authority to create “a cause of action under the Fourth Amendment” against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for narcotics violations. 403 U. S., at 397. Although “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,” id., at 396, the Court “held that it could authorize a remedy under general principles of federal jurisdiction,” Ziglar, 582 U. S., at 131 (citing Bivens, 403 U. S., at 392). Over the following decade, the Court twice again fashioned new causes of action under the Constitution—first, for a former congressional staffer‘s Fifth Amendment sex-discrimination claim, see Davis v. Passman, 442 U. S. 228 (1979); and second, for a federal prisoner‘s
inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U. S. 14 (1980).
Since these cases, the Court has not implied additional causes of action under the Constitution. Now long past “the heady days in which this Court assumed common-law powers to create causes of action,” Malesko, 534 U. S., at 75 (Scalia, J., concurring), we have come “to appreciate more fully the tension between” judicially created causes of action and “the Constitution‘s separation of legislative and judicial power,” Hernández, 589 U. S., at ___. At bottom, creating a cause of action is a legislative endeavor. Courts engaged in that unenviable task must evaluate a “range of policy considerations . . . at least as broad as the range . . . a legislature would consider.” Bivens, 403 U. S., at 407 (Harlan, J., concurring in judgment); see also post, at 503 (GORSUCH, J., concurring in judgment). Those factors include “economic and governmental concerns,” “administrative costs,” and the “impact on governmental operations systemwide.” Ziglar, 582 U. S., at 134, 136. Unsurprisingly, Congress is “far more competent than the Judiciary” to weigh such policy considerations. Schweiker, 487 U. S., at 423. And the Judiciary‘s authority to do so at all is, at best, uncertain. See, e. g., Hernández, 589 U. S., at ___.
Nonetheless, rather than dispense with Bivens altogether, we have emphasized that recognizing a cause of action under Bivens is “a disfavored judicial activity.” Ziglar, 582 U. S., at 135 (internal quotation marks omitted); Hernández, 589 U. S., at ___ (internal quotation marks omitted). When asked to imply a Bivens action, “our watchword is caution.” Hernández, 589 U. S., at ___. “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].” Ziglar, 582 U. S., at 137. “[E]ven a single sound reason to defer to Congress” is enough to require a court to refrain from creating such a remedy. Nestlé USA, Inc. v. Doe, 593 U. S. ___, ___ (2021) (plurality opinion). Put an-
other way, “the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?” Hernández, 589 U. S., at ___–___ (internal quotation marks omitted). If there is a rational reason to think that the answer is “Congress“—as it will be in most every case, see Ziglar, 582 U. S., at 135—no Bivens action may lie. Our cases instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts “arrogat[e] legislative power.” Hernández, 589 U. S., at ___.
To inform a court‘s analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps. See Hernández, 589 U. S., at ___. First, we ask whether the case presents “a new Bivens context“—i. e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action. Ziglar, 582 U. S., at 139. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 582 U. S., at 136 (internal quotation marks omitted). If there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy. Hernández, 589 U. S., at ___.
While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. For example, we have explained that a new context arises when there are “potential special factors that previous Bivens cases did not consider.” Ziglar, 582 U. S., at 140. And we have identified several examples of new contexts—e. g., a case that involves a “new category of defendants,” Malesko, 534 U. S., at 68; see also Ziglar, 582 U. S., at 135–136—largely because
fered an “exhaustive” accounting of such scenarios, however, because no court could forecast every factor that might “counse[l] hesitation.” Id., at 143. Even in a particular case, a court likely cannot predict the “systemwide” consequences of recognizing a cause of action under Bivens. Ziglar, 582 U. S., at 136. That uncertainty alone is a special factor that forecloses relief. See Hernández v. Mesa, 885 F. 3d 811, 818 (CA5 2018) (en banc) (“The newness of this ‘new context’ should alone require dismissal“).
Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, “an alternative remedial structure.” Ziglar, 582 U. S., at 137; see also Schweiker, 487 U. S., at 425. If there are alternative remedial structures in place, “that alone,” like any special factor, is reason enough to “limit the power of the Judiciary to infer a new Bivens cause of action.” Ziglar, 582 U. S., at 137.2 Importantly, the relevant question is not whether a Bivens action would “disrup[t]” a remedial scheme, Schweiker, 487 U. S., at 426, or whether the court “should provide for a wrong that would otherwise go unredressed,” Bush, 462 U. S., at 388. Nor does it matter that “existing remedies do not provide complete relief.” Ibid. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies “should be augmented by the creation of a new judicial remedy.” Ibid; see also id., at 380 (“the question [is] who should decide“).
III
Applying the foregoing principles, the Court of Appeals plainly erred when it created causes of action for Boule‘s
Fourth Amendment excessive-force claim and First Amendment retaliation claim.
A
The Court of Appeals conceded that Boule‘s Fourth Amendment claim presented a new context for Bivens purposes, yet it concluded there was no reason to hesitate before recognizing a cause of action against Agent Egbert. See 998 F. 3d, at 387. That conclusion was incorrect for two independent reasons: Congress is better positioned to create remedies in the border-security context, and the Government already has provided alternative remedies that protect plaintiffs like Boule. We address each in turn.
1
In Hernández, we declined to create a damages remedy for an excessive-force claim against a Border Patrol agent who shot and killed a 15-year-old Mexican national across the border in Mexico. See 589 U. S., at ___–___. We did not recognize a Bivens action there because “regulating the conduct of agents at the border unquestionably has national security implications,” and the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ___. This reasoning applies here with full force. During the alleged altercation with Boule, Agent Egbert was carrying out Border Patrol‘s mandate to “interdic[t] persons attempting to illegally enter or exit the United States or goods being illegally imported into or exported from the United States.”
The Court of Appeals thought otherwise. In its view, Boule‘s Fourth Amendment claim is “conventional,” 998 F. 3d, at 387; see also post, at 511–512, 515 (SOTOMAYOR, J.,
concurring in judgment in part and dissenting in part), and, though it arises in a new context, this Court has not “‘cast doubt‘” on extending Bivens within the “‘common and recurrent sphere of law enforcement‘” in which it arose, 998 F. 3d, at 389 (quoting Ziglar, 582 U. S., at 134). While Bivens and this case do involve similar allegations of excessive force and thus arguably present “almost parallel circumstances” or a similar “mechanism of injury,” Ziglar, 582 U. S., at 139, these superficial similarities are not enough to support the judicial creation of a cause of action. The special-factors inquiry—which Bivens never meaningfully undertook, see Stanley, 483 U. S., at 678—shows here, no less than in Hernández, that the Judiciary is not undoubtedly better positioned than Congress to authorize a damages action in this national-security context. That this case does not involve a cross-border shooting, as in Hernández, but rather a more “conventional” excessive-force claim, as in Bivens, does not bear on the relevant point. Either way, the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol agent is appropriate.
The Court of Appeals downplayed the national-security risk from imposing Bivens liability because Agent Egbert was not “literally ‘at the border,‘” and Boule‘s guest already had cleared customs in New York. 998 F. 3d, at 388; see also post, at 514–515, 520–521 (opinion of SOTOMAYOR, J.). The court also found that Boule had a weightier interest in Bivens relief than the parents of the deceased Mexican teenager in Hernández, because Boule “is a United States citizen, complaining of harm suffered on his own property in the United States.” 998 F. 3d, at 388; see also post, at 515, 520–521 (opinion of SOTOMAYOR, J.). Finding that “any costs imposed by allowing a Bivens claim to proceed are outweighed by compelling interests in favor of protecting United States citizens on their own property in the United States,” the court extended Bivens to Boule‘s case. 998 F. 3d, at 389.
This analysis is deeply flawed. The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. 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.” Ziglar, 582 U. S., at 136. Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the “particular case.” Stanley, 483 U . S., at 683. A court inevitably will “impai[r]” governmental interests, and thereby frustrate Congress’ policymaking role, if it applies the “‘special factors’ analysis” at such a narrow “leve[l] of generality.” Id., at 681. Rather, under the proper approach, a court must ask “[m]ore broadly” if there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate.” Ibid. If so, or even if there is the ”potential” for such consequences, a court cannot afford a plaintiff a Bivens remedy. Ziglar, 582 U. S., at 140, 148 (emphasis added). As in Hernández, then, we ask here whether a court is competent to authorize a damages action not just against Agent Egbert but against Border Patrol agents generally. The answer, plainly, is no. See Hernández, 589 U. S., at ___ (refusing to extend Bivens into the “field” of “border security“).
The Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too granular a level. The court rested on three irrelevant distinctions from Hernández. First, Agent Egbert was several feet from (rather than straddling) the border, but cross-border security is obviously implicated in either event. Second, Boule‘s guest arrived in Seattle from New York rather than abroad, but an alien‘s port of entry does not make him less likely to be a national-security threat. And third, Agent Egbert investigated immigration violations on оur side of the border, not Canada‘s, but immigration investigations in this country are
perhaps more likely to impact the national security of the United States. In short, the Court of Appeals offered no plausible basis to permit a Fourth Amendment Bivens claim against Agent Egbert to proceed.
2
Second, Congress has provided alternative remedies for aggrieved parties in Boule‘s position that independently foreclose a Bivens action here. In Hernández, we declined to authorize a Bivens remedy, in part, because the Executive Branch already had investigated alleged misconduct by the defendant Border Patrol agent. See 589 U. S., at ___–___, ___. In Malesko, we explained that Bivens relief was unavailable because federal prisoners could, among other options, file grievances through an “Administrative Remedy Program.” 534 U. S., at 74. Both kinds of remedies are available here. The U. S. Border Patrol is statutorily obligated to “control, direc[t], and supervis[e] . . . all employees.”
Boule nonetheless contends that Border Patrol‘s grievance process is inadequate because he is not entitled to participate and has no right to judicial review of an adverse determination.3 But we have never held that a Bivens alternative
must afford rights to participation or appeal. That is so because Bivens “is concerned solely with deterring the unconstitutional acts of individuаl officers“—i. e., the focus is whether the Government has put in place safeguards to “preven[t]” constitutional violations “from recurring.” Malesko, 534 U. S., at 71, 74; see also Meyer, 510 U. S., at 485. And, again, the question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts. So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. That is true even if a court independently concludes that the Government‘s procedures are “not as effective as an individual damages remedy.” Bush, 462 U. S., at 372. Thus here, as in Hernández, we have no warrant to doubt that the consideration of Boule‘s grievance against Agent Egbert secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___.
B
We also conclude that there is no Bivens cause of action for Boule‘s First Amendment retaliation claim. While we have assumed that such a damages action might be available, see, e. g., Hartman v. Moore, 547 U. S. 250, 252 (2006), “[w]e have never held that Bivens extends to First Amendment claims,” Reichle v. Howards, 566 U. S. 658, 663, n. 4 (2012). Because a new context arises when there is a new “constitutional right at issue,” Ziglar, 582 U. S., at 140, the Court of Appeals correctly held that Boule‘s First Amendment claim presents a new Bivens context. See 998 F. 3d, at 390. Now presented with the question whether to extend Bivens to
880, 884 (CA6 2021). And, in any event, Agent Egbert has consistently claimed that alternative remedies foreclose applying Bivens in this case. Thus, under our precedents, he is “not limited to the precise arguments [he] made below.” Yee v. Escondido, 503 U. S. 519, 534 (1992).
this context, we hold that there is no Bivens action for First Amendment retaliation. There are many reasons to think that Congress, not the courts, is better suited tо authorize such a damages remedy.
Recognizing any new Bivens action “entail[s] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638 (1987). Extending Bivens to alleged First Amendment violations would pose an acute risk of increasing such costs. A plaintiff can turn practically any adverse action into grounds for a retaliation claim. And, “[b]ecause an official‘s state of mind is easy to allege and hard to disprove, insubstantial claims that turn on [retaliatory] intent may be less amenable to summary disposition.” Crawford-El v. Britton, 523 U. S. 574, 584–585 (1998) (internal quotation marks omitted). Even a frivolous retaliation claim “threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence.” Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (internal quotation marks omitted).
“[U]ndoubtedly,” then, the “prospect of personal liability” under the First Amendment would lead “to new difficulties and expense.” Schweiker, 487 U. S., at 425. Federal employees “face[d with] the added risk of personal liability for decisions that they believe to be a correct response to improper [activity] would be deterred from” carrying out their duties. Bush, 462 U. S., at 389. We are therefore “convinced” that, in light of these costs, “Congress is in a better position to decide whether or not the public interest would be served” by imposing a damages action. Id., at 390.
The Court of Appeals nonetheless extended Bivens to the First Amendment because, in its view, retaliation claims are “well-established,” and Boule alleges that
First, just because plaintiffs often plead unlawful retaliation to estаblish a First Amendment violation is not a reason to afford them a cause of action to sue federal officers for money damages. If anything, that retaliation claims are common, and therefore more likely to impose “a significant expansion of Government liability,” Meyer, 510 U. S., at 486, counsels against permitting Bivens relief.
Second, the Court of Appeals’ scope-of-duty observation does not meaningfully limit the number of potential Bivens claims or otherwise undermine the reasons for hesitation stated above. It is easy to allege that federal employees acted beyond the scope of their authority when claiming a constitutional violation. And, regardless, granting Bivens relief because a federal agent supposedly did not act pursuant to his law-enforcement mission “misses the point.” Hernández, 589 U. S., at ___. “The question is not whether national security,” or some other governmental interest, actually “requires [the defendant‘s] conduct.” Ibid. Instead, we ask “whether the Judiciary should alter the framework established by the political branches for addressing” any such conduct that allegedly violates the Constitution. Ibid. With respect to that question, the foregoing discussion shows that the Judiciary is ill equipped to alter that framework generally, and especially so when it comes to First Amendment claims.
Boule responds that any hesitation is unwarranted because this Court in Passman already identified a Bivens cause of action under allegedly similar circumstances. There, the Court permitted a congressional staffer to sue a congressman for sex discrimination under the Fifth Amendment. See 442 U. S., at 231. In Boule‘s view, Passman, like this cаse, permitted a damages action to proceed even though it required the factfinder to probe a federal official‘s motives for taking an adverse action against the plaintiff.
Even assuming the factual parallels are as close as Boule claims, Passman carries little weight because it predates our current approach to implied causes of action and diverges
from the prevailing framework in three important ways. First, the Passman Court concluded that a Bivens action must be available if there is “no effective means other than the judiciary to vindicate” the purported
In short, as we explained in Ziglar, a plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Bivens, Passman, or Carlson unless he also satisfies the “analytic framework” prescribed by the last four decades of intervening case law. 582 U. S., at 139. Boule has failed to do so.
IV
Since it was decided, Bivens has had no shortage of detractors. See, e. g., Bivens, 403 U. S., at 411 (Burger, C. J., dissenting); id., at 427 (Black, J., dissenting); id., at 430 (Blackmun, J., dissenting); Carlson, 446 U. S., at 31 (Rehnquist, J., dissenting); Malesko, 534 U. S., at 75 (Scalia, J., concurring); Hernandez, 589 U. S., at ––– (THOMAS, J., concurring); post, at 502–504 (opinion of GORSUCH, J.). And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the
It is so ordered.
EGBERT v. BOULE
Supreme Court of the United States
June 8, 2022
596 U. S. 482 (2022)
GORSUCH, J., concurring in judgment
JUSTICE GORSUCH, concurring in the judgment.
Our
Recognizing its misstep, this Court has struggled for decades to find its way back. Initially, the Court told lower courts to follow a “two ste[p]” inquiry before applying Bivens to any new situation. Ante, at 492. At the first step, a court had to ask whether the case before it presented a “new context” meaningfully different from Bivens. Ante, at 492. At the second, a court had to consider whether “ ‘special factors’ ” counseled hesitation before recognizing a new cause of action. Ibid. But these tests soon produced their own set of questions: What distinguishes the first step from the second? What makes a context “new” or a factor “special”? And, most fundamentally, on what authority may courts recognize new causes of action even under these standards?
Today, the Court helpfully answers some of these lingering questions. It recognizes that our two-step inquiry really boils down to a “single question”: Is there “аny reason to think that Congress might be better equipped” than a court to “ ‘weigh the costs and benefits of allowing a damages action to proceed’ ”? Ibid.; see Ziglar v. Abbasi, 582 U. S. 120, 136 (2017). But, respectfully, resolving that much only serves to highlight the larger remaining question: When might a court ever be “better equipped” than the people‘s elected representatives to weigh the “costs and benefits” of creating a cause of action?
Instead of saying as much explicitly, however, the Court proceeds on to conduct a case-specific analysis. And there I confess difficulties. The plaintiff is an American citizen who argues that a federal law enforcement officer violated the
Of course, the Court‘s real messages run deeper than its case-specific analysis. If the costs and benefits do not justify a new Bivens action on facts so analogous to Bivens itself, it‘s hard to see how they ever could. And if the only question is whether a court is “better equipped” than Congress to weigh the value of a new cause of action, surely the right answer will always be no. Doubtless, these are the lessons the Court seeks to convey. I would only take the next step and acknowledge explicitly what the Court leaves barely implicit. Sometimes, it seems, “this Court leaves a door ajar and holds out the possibility that someone, someday might walk through it” even as it devises a rule that ensures “no one . . . ever will.” Edwards v. Vannoy, 593 U. S. –––, ––– (2021) (GORSUCH, J., concurring). In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more “protracted litigation destined to yield nothing.” Nestle, 593 U. S., at ––– (GORSUCH, J., concurring). Instead, we should exercise “the truer modesty of ceding an ill-gotten gain,” ibid., and forthrightly return the power to create new causes of action to the people‘s representatives in Congress.
EGBERT v. BOULE
Supreme Court of the United States
June 8, 2022
596 U. S. 482 (2022)
SOTOMAYOR, J., concurring in judgment in part and dissenting in part
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in the judgment in part and dissenting in part.
Respondent Robert Boule alleges that petitioner Erik Egbert, a U. S. Customs and Border Patrol agent, violated the
Today‘s decision does not overrule Bivens. It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy. I therefore dissent from the Court‘s disposition of Boule‘s
I
This case comes to the Court following the District Court‘s grant of summary judgment to Agent Egbert. The Court is therefore bound to draw all reasonable factual inferences in favor of Boule. See Tolan v. Cotton, 572 U. S. 650, 656–657 (2014) (per curiam). Because the Court fails to do so, the factual record is described below in some detail, in the light our precedent requires.
A
Boule is a U. S. citizen who owns, opеrates, and lives in a small bed-and-breakfast called the Smuggler‘s Inn in Blaine, Washington. The property line of the land on which the inn is located touches the U. S.-Canada border. Shortly after purchasing the property in 2000, Boule became aware that people used his property to cross the border illegally in both directions. Boule began serving as a paid, confidential informant for Customs and Border Protection (CBP) in 2003 and for Immigration and Customs Enforcement (ICE) in 2008. At the time of the events at issue in this case, Boule was still serving as an informant for ICE. ICE would coordinate with CBP and other agencies based on the information Boule provided. Over the years, Boule provided information leading to numerous arrests.
On the morning of March 20, 2014, petitioner Erik Egbert, a CBP agent, twice stopped Boule while Boule was running errands in town. Agent Egbert knew that Boule was a long-time informant for ICE and that he had previously worked as an informant for CBP. Agent Egbert asked Boule about guests at the inn, and Boule advised him of a guest he expected to arrive that day from New York who had flown in from Turkey the day before. Boule explained that two of his employees were en route to pick the guest up at the Seattle-Tacoma International Airport. Agent Egbert continued patrolling in his CBP vehicle for the rest of the morning but stayed near the inn so he would see when the car carrying the guest returned. When it arrived, he followed the car into the driveway of the inn, passing a “no trespassing” sign. Agent Egbert parked his vehicle behind the arriving car in the driveway immediаtely adjacent to the inn.
Agent Egbert exited his patrol vehicle and approached the car. Boule‘s employee also exited the car; the guest remained inside. From the front porch of his inn, Boule asked Agent Egbert to leave. When Agent Egbert refused, Boule stepped off the porch, positioned himself between
Boule complained to Agent Egbert‘s superiors about the incident and filed an administrative claim with CBP, which allegedly prompted Agent Egbert to retaliate against Boule. Agent Egbert contacted the Internal Revenue Service (IRS), the Social Security Administration, the Washington State Department of Licensing, and the Whatcom County Assessor‘s Office, asking them to investigate Boule‘s business. These agenciеs did so, but none found that Boule had done anything wrong. Boule paid over $5,000 to his accountant to assist him in responding to the IRS’ tax audit. Boule also filed claims pursuant to the
B
Boule sued Agent Egbert in Federal District Court, seeking damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, for violation of Boule‘s
This Court granted certiorari. 595 U. S. ––– (2021).
II
A
In Bivens, the plaintiff alleged that Federal Bureau of Narcotics agents unlawfully entered his apartment in New York City and used constitutionally unreasonable force to arrest him. 403 U. S., at 389. This Court observed that an “agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Id., at 392. The
The Court ultimately held that a “violation of [the
This Court has twice extended the cause of action first articulated in Bivens: first to a
In Ziglar v. Abbasi, 582 U. S. 120, the Court not only declined to extend Bivens but also revised and narrowed its two-step analytic framework. The Ziglar Court set forth a new inquiry requiring courts considering a Bivens claim first to ask whether a case “is different in a meaningful way from previous Bivens cases decided by this
If the differences are in fact “meaningful ones,” ibid., “then the context is new,” id., at 139, and a court “proceed[s] to the second step” of the analysis, Hernandez, 589 U. S., at –––. The second step requires courts to consider whether special factors counsel hesitation in recognizing a Bivens remedy in a new context. Ziglar, 582 U. S., at 136; Hernandez, 589 U. S., at –––.
Importantly, even as the Ziglar Court grafted a more demanding new-context inquiry onto the traditional Bivens framework, the Court emphasized that its opinion was “not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.” 582 U. S., at 134. Quite the opposite: The Court recognized that Bivens “vindicate[s] the
B
Ziglar and Hernández control here. Applying the two-step framework set forth in those cases, the Court of Appeals’ determination that Boule‘s
1
Boule‘s
The only arguably salient difference in “context” between this case and Bivens is that the defendants in Bivens were employed at the time by the (now-defunct) Federal Bureau of Narcotics, while Agent Egbert was employed by CBP. As discussed, however, this Court‘s precedent instructs that some differences are too “trivial . . . to create a new Bivens context.” Ziglar, 582 U. S., at 149.2 That
agent rather than a Federal Bureau of Narcotics agent who unlawfully entered Boule‘s property and used constitutionally excessive force against him plainly is not the sort of “meaningful” distinction that our new-context inquiry is designed to weed out. Ibid.
It is of course well established that a Bivens suit involving an entirely “ ‘new category of defendants’ ” arises in a “ ‘new context.’ ” Ziglar, 582 U. S., at 135; see also Hernandez, 589 U. S., at –––. The Court, however, has never relied on this principle to draw artificial distinctions between line-level officers of the 83 different federal law enforcement agencies with authority to make arrests and provide police protection. See Dept. of Justice, C. Brooks, Federal Law Enforcement Officers, 2016—Statistical Tables (NCJ 251922, Oct. 2019), https://bjs.ojp.gov/content/pub/pdf/fleo16st.pdf. Indeed, if the “new context” inquiry were defined at such a fine level of granularity, every case would raise a new context, because the Federal Bureau of Narcotics no longer exists. See National Archives, Records of the Drug Enforcement Administration [DEA] (Aug. 15, 2016), https://www.archives.gov/research/guide-fed-records/groups/170.html.
Moreover, the “new category of defendants” language traces back to a different concern raised in the Court‘s decision in Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001). That case involved an
At bottom, Boule‘s claim is materially indistinguishable from the claim brought in Bivens. His case therefore does not present a new context for the purposes of assessing whether a Bivens remedy is available.
2
Even assuming that this case presents a new context, no special factors warrant foreclosing a Bivens action.
The Court “has not defined the phrase ‘special factors counselling hesitation,’ ” but it has recognized that the “inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 582 U. S., at 136; see also Hernández, 589 U. S., at ––– – –––. For example, where a claim “would call into question the formulation and implementation of a general policy” or “require courts to interfere in an intrusive way with sensitive
Here, the only possible special factor is that Boule‘s property abuts an international border. Boule‘s case, however, is a far cry from others in which the Court declined to extend Bivens for reasons of national security or foreign relations. In Hernández, for example, a CBP agent shot and killed a Mexican child across the U. S.-Mexico border. 589 U. S., at –––. The Mexican Government unsuccessfully sought extradition of the agent to Mexico, and after an investigation, the U. S. Department of Justice declined to bring charges against the agent. Ibid. The parents of the deceased child attempted to bring a Bivens action against the CBP agent, but this Court held that several “warning flags” counseled caution, including a “potential effect on foreign relations.” Hernández, 589 U. S., at –––. The Court observed that “[a] cross-border shooting is by definition an international incident,” and that both the United States and Mexico had “legitimate and important interests that may be affected by the way in which this matter is handled.” Id., at –––, –––. The Court concluded that because “regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Id., at –––.
The conduct here took place near an international border and involved a CBP agent. That, however, is where the similarities with Hernández begin and end. The conduct occurred exclusively on U. S. soil, and the injury was to a U. S. citizen. This case therefore does not present an “international incident” that might affect diplomatic relations, unlike the cross-border killing of a foreign-national child. As for national-security concerns, the Court in Hernández emphasized that “some [CBP agents] are stationed right at the border and have the responsibility of attempting to prevent illegal entry”; it was “[f]or th[is] reaso[n],” among others, that their conduct had “a clear and strong connection to national security.” Id., at –––. Here, by contrast, Agent Egbert was not “attempting to prevent illegal entry” or otherwise engaged in activities with a “strong connection to national security.” Ibid. Agent Egbert was aware (because Boule had told him earlier in the day and again at the scene) that the foreign national arriving at the inn had already entered the United States by airplane and had been processed by U. S. customs at the airport in New York the previous day.
Nor does this case present special factors similar to those that deterred the Court from recognizing a Bivens action in Ziglar. In that case, foreign nationals who had been unlawfully present in the United States brought a Bivens action against three “high executive officers in the Department of Justice” and two wardens of
Here, Boule plainly does not seek to challenge or alter “high-level executive policy.” Id., at 140. Allowing his claim to proceed would not require courts to intrude into “the discussion and deliberations that led to the formation” of any policy or national-security decision or interest. Ibid. Agent Egbert, a line officer, was engaged in a run-of-the-mill inquiry into the status of a foreign national on U. S. soil who had no actual or suggested ties to terrorism, and who recently had been through U. S. customs to boot. See id., at 144 (distinguishing a challenge to “individual instances of discrimination or law enforcement overreach,” which lends itself to a Bivens action, from a challenge to “large-scale policy decisions,” which does not). No special factors counsel against allowing Boule‘s Bivens action to proceed.
C
Boule also argues that his
This Court has repeatedly assumed without deciding that Bivens extends to
Moving to the second step of the Bivens inquiry, unlike Boule‘s
Boule‘s
III
If the legal standard the Court articulates to reject Boule‘s
A
Two Terms ago, this Court reiterated and reaffirmed Ziglar‘s two-step test for assessing whether a claim may be brought as a Bivens action. See Hernández, 589 U. S., at ––– (“When asked to extend Bivens, we engage in a two-step inquiry”). Today, however, the Court pays lip service to the test set out in our preсedents, but effectively replaces it with a new single-step inquiry designed to constrict Bivens. Ante, at 492 (acknowledging this Court‘s previous “two ste[p]” standard but insisting that “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy”); ante, at 493 (positing that “[t]he newness of [some] ‘new context[s]’ should alone require dismissal” (some internal quotation marks omitted)). The Court goes so far as to announce that “[t]he Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action,” ante, at 496; instead, courts must “only” decide “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,’ ” ibid. (quoting Ziglar, 582 U. S., at 136).
That approach contrasts starkly with the standard the Court announced in Ziglar and applied in Hernández. This Court regularly has considered whether courts are “well suited . . . to consider and weigh the costs and benefits of allowing a damages action to proceed,” Ziglar, 582 U. S., at 136, and have never held that such weighing is categorically impermissible, contrary to the Court‘s
The Court justifies its innovations by selectively quoting our precedents and presenting its newly announced standard as if it were always the rule. The Court‘s repeated citation to United States v. Stanley, 483 U. S. 669 (1987), is just one example. The Court cites Stanley for, among other things, the proposition that the special-factors analysis must be conducted at a very broad level of generality. Ante, at 496. Stanley, however, cаutioned against a case-specific special-factors analysis in the narrow context of “judicial intrusion upon military discipline.” 483 U. S., at 681. As it had in previous cases seeking to raise Bivens actions in the military context, the Stanley Court emphasized the need to be “protective of military concerns,” id., at 681, and to avoid “call[ing] into question military discipline and decision-making,” id., at 682. The Court therefore determined that in the military sphere, the special-factors analysis should be applied somewhat more broadly than the respondent urged. Id., at 681. Stanley, in other words, reflected the Court‘s longstanding approach to Bivens cases: considering the facts and the substantive context of each case and determining whether special factors counseled hesitation. Stanley did not purport to articulate a special-factors framework that should apply to all Bivens cases going forward.
The Court further declares that “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ ” with previous cases that have recognized a Bivens remedy. Ante, at 501. To the extent these statements suggest an exacting new-context inquiry, they are in serious tension with the Court‘s longstanding rule that trivial differences alone do not create a new Bivens context. See Ziglar, 582 U. S., at 149; see also ante, at 503 (GORSUCH, J., concurring in judgment) (“Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself”). Indeed, until today, the Court has never so much as hinted that courts should refuse to permit a Bivens action in a case involving facts substantially identical to those in Bivens itself. Supra, at 511–513.3
B
The Court‘s application of its new standard to Boule‘s
1
The Court acknowledges the force of the Court of Appeals’ conclusion that Bivens and this case present “ ‘almost parallel circumstances,’ ” but it nonetheless concludes that a most unlikely special factor counsels hesitation: the “national-security context.” Ante, at 495. By the Court‘s telling, Hernández declined to recognize a Bivens action “because ‘regulating the conduct of agents at the border unquestionably has national security implications,’ and the ‘risk of undermining border security provides reason to hesitate before extending Bivens into this field.’ ” Ante, at 494 (quoting Hernández, 589 U. S., at –––). That reasoning, the Court concludes, “applies here with full force” because “national security is at issue.” Ante, at 494.
This is sheer hyperbole. Most obviously, the Court‘s conclusion that this case, which involves a physical assault by a federal officer against a U. S. citizen on U. S. soil, raises “na- tional security” concerns does exactly what this Court counseled against just four years ago. Back then, the Court advised that “national-security concerns must not become a talisman used to ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins.’ ” Ziglar, 582 U. S., at 143 (quoting Mitchell v. Forsyth, 472 U. S. 511, 523 (1985)). It explained that this “danger of abuse is even more heightened given the difficulty of defining the security interest in domestic cases.” Ziglar, 582 U. S., at 143 (internal quotation marks omitted). This case doеs not remotely implicate national security. The Court may wish it were otherwise, but on the facts of this case, its effort to raise the specter of national security is mere sleight of hand.
Nor is there any indication that Congress acted to deny a Bivens remedy for a case like this, which otherwise might counsel hesitation. See Bush, 462 U. S., at 368 (declining to “supplement” Congress’ existing scheme “with a new judicial remedy”). Congress has not provided that federal law enforcement officers may enter private property near a border at any time or for any purpose. Quite the contrary: Congress has determined that immigration officers may enter “private lands” within 25 miles of an international border without a warrant only “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”
Remarkably, the Court goes beyond invoking its national-security talisman in this case alone. In keeping with the unprecedented level of generality the Court imports into the special-factors analysis, the Court holds that courts are not “competent to authorize a damages action . . . against Border Patrol agents generally.” Ante, at 496. This extraordinary and gratuitous conclusion contradicts decades of precedent requiring a context-specific determination of whether a particular claim presents
The consequences of the Court‘s drive-by, categorical assertion will be severe. Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP‘s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border. U. S. Customs and Border Protection, On a Typical Day in Fiscal Year 2021, CBP . . . (2022), https://www.cbp.gov/newsroom/stats/typical-day-fy2021. This is no hypothetical: Certain CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the border. See
2
The Court further proclaims that Congress has provided alternative remedies that “independently foreclose” a Bivens action in this case. Ante, at 497. The administrative remedy the Court perceives, however, is no remedy whatsoever.
The sole “remedy” the Court cites is an administrative grievance procedure that does not provide Boule with any relief. The statute on which the Court relies provides: The “Secretary of Homeland Security . . . shall have control, direction, and supervision of all employees and of all the files and records of [CBP].”
CBP‘s internal administrative grievance procedure offers an adequate remedy by insisting that “we have never held that a Bivens alternative must afford rights to participation or appeal.” Ante, at 497–498. In the Court‘s view, “[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Ante, at 498 (emphasis added).
This analysis drains the concept of “remedy” of all meaning. To be sure, the Court has previously deemed Bivens claims foreclosed by “substantive” remedies to claimants that are in significant part administrative. Bush, 462 U. S., at 385; see also, e. g., Schweiker, 487 U. S., at 424–425. The Court also has recognized that existing remedies need not “provide complete relief for the plaintiff,” Bush, 462 U. S., at 388, including loss due to emotional distress or mental anguish, or attorney‘s fees, Schweiker, 487 U. S., at 424–425. Until today, however, this Court has never held that a threadbare disciplinary review process, expressly conferring no substantive rights, “secure[s] adequate deterrence and afford[s] . . . an alternative remedy.” Ante, at 498. Nor has it held that remedies providing no relief to the individual whose constitutional rights have been violated are “adequate” for the purpose of foreclosing a Bivens action. To the contrary, each of the alternative remedies the Court has recognized has afforded participatory rights, an opportunity for judicial review, and the potential to secure at least some meaningful relief. See, e. g., Minneci v. Pollard, 565 U. S. 118, 127 (2012) (state tort law); Ziglar, 582 U. S., at 148 (petition for writ of habeas corpus or injunctive relief); Bush, 462 U. S., at 385.7
The Court previously has emphasized that a Bivens action may be inappropriate where “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the
C
The Court thinly veils its disapproval of Bivens, ending its opinion by citing a string of dissenting opinions and single-Member concurrences by various Members of this Court expressing criticisms of Bivens. Ante, at 500–501. But the Court unmistakably stops short of overruling Bivens and its progeny, and appropriately so. Even while declining to extend Bivens to new contexts, this Court has reaffirmed that it did “not inten[d] to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.” Ziglar, 582 U. S., at 134. Although today‘s opinion will make it harder for plaintiffs to bring a successful Bivens claim, even in the
That said, the Court plainly modifies the Bivens standard in a manner that forecloses Boule‘s claims and others like them that should be permitted under this Court‘s Bivens precedents. That choice is in tension with the Court‘s insistence that “prescribing a cause of action is a job for Congress, not the courts.” Ante, at 486; see ante, at 496 (cautioning against “frustrat[ing] Congress’ policymaking role” when considering whether special factors counsel hesitation). Faithful adherence to this logic counsels maintaining Bivens in its current scope, but does not support changing the status quo to constrict Bivens, as the Court does today. Congress, after all, has recognized and relied on the Bivens cause of action in creating and amending other remedies, including the FTCA. By nevertheless repeatedly amending the legal standard that applies to Bivens claims and whittling down the number of claims that remain viable, the Court itself is making a policy choice for Congress. Whatever the merits of that choice, the Court‘s decision today is no exercise in judicial modesty.
* * *
This Court‘s precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Court‘s decision today ignores our repeated recognition of the importance
REPORTER‘S NOTE
The attached opinion has been revised to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
p. 503, line 2, “that” is inserted after “think”
Notes
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Cecillia D. Wang, Cody Wofsy, David D. Cole, Jennesa Calvo-Friedman, Omar C. Jadwat, Steven S. Sparling, Jeffrey L. Braun, John Midgley, and Nancy Talner; for the Constitutional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for the Council on American-Islamic Relations et al. by Lena F. Masri, Justin Sadowsky, and John S. Friend; for the DKT Liberty Project et al. by Theane Evangelis; for the Foundation for Individual Rights in Education by Darpana Sheth; for the Institute for Justice by Patrick Jaicomo and Anya Bidwell; for the National Police Accountability Project by Melanie L. Bostwick and Joseph R. Kolker; for the Project for