ROBERT BOULE, Plaintiff-Appellant, v. ERIK EGBERT; JANE DOE EGBERT, and their marital community, Defendants-Appellees.
No. 18-35789
United States Court of Appeals for the Ninth Circuit
November 20, 2020
Susan P. Graber and William A. Fletcher, Circuit Judges, and Nancy D. Freudenthal, District Judge.
D.C. No. 2:17-cv-00106-RSM; Filed November 20, 2020; Argued and Submitted October 7, 2020, Seattle, Washington
FOR PUBLICATION
Appeal from the United States District Court for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Before: Susan P. Graber and William A. Fletcher, Circuit Judges, and Nancy D. Freudenthal,* District
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel reversed the district court‘s summary judgment for defendants in an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by a United States citizen who alleged that a border patrol agent, acting on plaintiff‘s property within the United States, violated plaintiff‘s rights under the
Plaintiff owns, operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the front driveway of plaintiff‘s property to question arriving guests, used excessive force against plaintiff, and then, in response to plaintiff‘s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff‘s tax status. The district court granted summary judgment to defendants on plaintiff‘s
The panel held that Bivens remedies were available in the circumstances of this case, where a United States citizen alleged that a border patrol agent violated the
Addressing the
Addressing the
COUNSEL
Breean L. Beggs (argued), Paukert & Troppmann PLLC, Spokane; Gregory Donald Boos and W. Scott Railton, Cascadia Cross-Border Law, Bellingham, Washington; for Plaintiff-Appellant.
Geoff Grindeland (argued) and Nikki Carsley, Seamark Law Group PLLC, Bainbridge Island, Washington, for Defendants-Appellees.
Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, Washington; Mary Kenney, American Immigration Council, Washington, D.C.; Trina Realmuto, American Immigration Council, Brookline, Massachusetts; for Amici Curiae American Immigration Council and Northwest Immigrant Rights Project.
OPINION
W. FLETCHER, Circuit Judge:
The Supreme Court first recognized an implied right of action for damages against federal officers in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court held that damages were recoverable directly under the
In considering possible extensions of Bivens, we engage in a “two-step inquiry,” “first inquir[ing] whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants‘” and then “ask[ing] whether there are any ‘special factors that counsel hesitation.‘” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (citing Abbasi, 137 S. Ct. at 1859). Applying this framework, we reverse the district court and hold that Boule may pursue a Bivens remedy for his
I. Background
Because this case comes before us on an appeal of a grant of summary judgment for Defendant, we draw all reasonable factual inferences in favor of Plaintiff, Robert Boule. Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). We recite the facts viewed through that lens.
Boule is a United States citizen. He owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington. The back property line of the land on which the inn is located touches the United States-Canada border. On March 20, 2014, Customs and Border Patrol Agent Erik Egbert stopped Boule while he was running errands “in town” and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who had flown in from Turkey the day before. Boule told him that two of his employees were en route to pick up the guest at Seattle-Tacoma (“Sea-Tac“) International Airport, about 125 miles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is on a road at the front of the property. When the guest arrived, Egbert followed the car carrying the arriving guest into Boule‘s driveway.
Egbert got out of his vehicle and approached the car. From the front porch of the inn, Boule asked Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Boule recounts that Egbert then shoved him against the car. When Boule still did not move away from the car, Egbert grabbed him and pushed him aside and onto the ground.
Egbert then opened the car door and asked the guest about his immigration status. Boule made a 911 call to request a supervisor, which Egbert also relayed over dispatch. A supervisor and another agent arrived in response to the call. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought medical treatment for injuries to his back.
After Boule complained to Egbert‘s superiors about the incident, Egbert retaliated against Boule. Among other things, Egbert contacted the Internal Revenue Service, asking the agency to look into Boule‘s tax status.
Boule filed a complaint against Egbert in federal district court, seeking damages
II. Discussion
We review de novo a district court‘s decision on summary judgment. Brunozzi v. Cable Commc‘ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017). We address Boule‘s
The Supreme Court‘s understanding of a “new context” in a Bivens analysis is “broad.” A context is “new” if it is “different in a meaningful way from previous Bivens cases decided by this Court.” Id. (citing Abbasi, 137 S. Ct. at 1859). The Court wrote in Abbasi:
Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one . . . [:] A case might differ in a meaningful way because of the rank of the officers involved; the
constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
137 S. Ct. 1859–60. The Court cautioned that “even a modest extension is still an extension.” Id. at 1864.
If we conclude that a claim arises in a new context, we ask “whether there are any special factors that counsel hesitation about granting the extension.” Hernandez, 140 S. Ct. at 743 (citing Abbasi, 137 S. Ct. at 1857). The Court acknowledged in Abbasi that it has not defined “special factors,” but noted 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. Thus, to be a special factor counselling hesitation, a factor must cause a court to hesitate before answering that question in the affirmative.
137 S. Ct. at 1857–58 (internal quotation marks omitted). The Court wrote in Hernandez that a court should “consider the risk of interfering with the authority of the other
branches” and should “ask whether there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy and 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.” Hernandez, 140 S. Ct. at 743 (internal citations and quotation marks omitted).
A. Fourth Amendment
The district court assumed that Boule‘s
In Abbasi, the plaintiffs were foreign nationals who had been unlawfully present in the United States. Following the September 11, 2001 terrorist attacks, they were incarcerated by the federal government in harsh conditions. 137 S. Ct. at 1852–53. The F.B.I. had designated each of the plaintiffs as a person “of interest” in the post-attack investigation. Id. at 1852. After plaintiffs were released and removed from the United States, they brought a Bivens suit against federal executive officials and detention facility wardens, seeking damages based on the conditions of their confinement and the decisions that had led to those conditions. Id. at 1851–52. The Court refused to allow a Bivens suit, holding that special
factors counseled hesitation in extending Bivens in this new context. Id. at 1859–61. The Court emphasized that the plaintiffs’ claims challenged high-level Executive Branch decisions concerning issues of national security. Id. at 1860–62.
In Hernandez, the plaintiffs were Mexican nationals whose child had been killed by a United States border patrol agent. 140 S. Ct. at 740. The agent had been on the United States side of the border, the child had been on the Mexico side, and the agent had shot across the border. Id. The Mexican government unsuccessfully sought extradition of the agent to Mexico. The U.S. Department of Justice conducted an investigation and declined to bring charges against the agent. Id. The Court held that the parents’ claims arose in a new context and were precluded by special factors. 140 S. Ct. at 744, 749. The Court noted several “warning flags,” including the effect on foreign relations, the implications for national security, and the fact that the harm occurred in another country. Id. at 744, 746, 747.
The only aspects of the claim now before us that even tangentially touch on the concerns raised in Abbasi and Hernandez are that Boule‘s inn is at the United States-Canada border and that Egbert was investigating the status of a foreign guest who was arriving at the inn. In finding special factors in Hernandez, the Court wrote: “[S]ome [border patrol agents] are stationed right at the border and have the responsibility of attempting to prevent illegal entry. For these reasons, the conduct of agents positioned at the border has a clear and strong connection to national security.” 140 S. Ct. at 746. However, the contrasts between Hernandez and the case before us are self-evident. The agent in Hernandez was literally “at the border,” tasked with policing the border and
preventing illegal entry of goods and people. See id. Though Egbert was very near the border when he injured Boule, he was not policing that border or trying to prevent illegal entry. As Egbert had already been informed by Boule, the arriving guest was coming from Sea-Tac airport after arriving on a flight from New York. Further, the plaintiffs in Hernandez were foreign nationals, complaining of a harm suffered in Mexico. Boule is a United States citizen, complaining of harm suffered on his own property in the United States. Finally, the claim in Hernandez was extremely unusual. The claim against Egbert is a conventional
The fact that Egbert is a border patrol agent, standing alone, does not preclude
The Supreme Court cautioned in Abbasi that “national-security concerns must not become a talisman used to ward off inconvenient claims—a label used to cover a multitude of sins.” 137 S. Ct. at 1862 (internal quotation marks omitted). After the Court‘s decision in Abbasi, we allowed an immigrant to pursue a Bivens action against an Immigration and Customs Enforcement attorney who had forged a document in order to prevent his adjustment of status to lawful permanent resident. Lanuza, 899 F.3d at 1021. We wrote that although “the Supreme Court has made clear that expanding the Bivens remedy is now a disfavored judicial activity,” a Bivens remedy remains available in appropriate circumstances. Id. (internal quotation and citation omitted). We distinguished Abbasi, noting that, like Boule in the case before us, the plaintiff did not “challenge high-level executive action” and did not “challenge or seek to alter the policy of the political branches.” Id. at 1028–29. In a “run-of-the-mill immigration proceeding” where the alien had no ties to terrorism, the case was “unrelated to any other national security decision or interest.” Id. at 1030. We held that “compelling interests that favor extending a Bivens remedy . . . outweigh the costs of allowing this narrow claim to proceed against federal officials.” Id. at 1033. Here, in a “run-of-the-mill”
The claim in Bivens itself did not constitute improper intrusion by the judiciary into the sphere of authority of other branches. Nor does the
of law enforcement” which, under Abbasi, is a permissible area for Bivens claims. Abbasi, 137 S. Ct. at 1857; id. at 1856 (“[I]t must be understood that this opinion is 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“). We therefore conclude that Boule‘s
B. First Amendment
Boule also alleges that Egbert retaliated against him for exercising his
However, we find no special factors that counsel hesitation in extending a Bivens remedy to this new context. There is even less reason to hesitate in extending Bivens here
than in the context of Boule‘s
C. Existence of Alternative Remedies
Finally, we consider whether there are available alternative remedies. When there are available alternative remedies, “a Bivens remedy usually is not” available. Abbasi, 137 S. Ct. at 1863; see also Fazaga v. Federal Bureau of Investigation, 965 F.3d 1015, 1057 (9th Cir. 2020) (describing how we will not recognize a Bivens claim where there is any alternative, existing process for protecting the plaintiff‘s interests” (internal quotation marks omitted)). The availability of alternative remedies “raises the inference that Congress expected the Judiciary to stay its Bivens hand and refrain from providing a new and freestanding remedy in damages.” Fazaga, 965 F.3d at 1057 (internal quotation marks omitted). We recognize that “[a]lternative remedial structures can take many forms, including administrative, statutory, equitable, and state law remedies.” Vega, 881 F.3d at 1154 (internal quotation marks omitted). “[A]n alternative remedy need not be perfectly congruent with Bivens or perfectly comprehensive, [but] it still must be adequate.” Rodriguez v. Swartz, 899 F.3d 719, 739 (9th Cir. 2018) (internal quotation marks omitted), vacated on other grounds, 140 S. Ct. 1258.
The district court assumed without deciding that there was no alternative remedy available to Boule. On appeal, Egbert “merely mentions the possibility [of Boule being able to seek a trespass claim], without fleshing it out with any citations to [Washington] law. And it appears that the
Conclusion
We conclude that Bivens remedies are available in the circumstances of this case, where a United States citizen alleges that a border patrol agent violated the
REVERSED and REMANDED.