The Distinction Between Failure to Extend a Precedent and Cutting Back on it -- A Comment on Egbert v. Boule

 by Michael C. Dorf

Wednesday's SCOTUS oral argument in Egbert v. Boule presented the question whether a Bivens action is available to challenge alleged excessive force in violation of the Fourth Amendment and alleged retaliation in violation of the First Amendment by a Customs and Border Patrol agent who came onto the plaintiff's property--a bed-and-breakfast unfortunately named "Smuggler's Inn that sits on the border between Washington State and British Columbia--to investigate the immigration status of a Turkish guest.

Readers may recall that Bivens was a 1971 Supreme Court opinion that allowed a cause of action for damages due to Fourth Amendment violations by federal drug enforcement officers. It provides a judge-made analogue to the statutory cause of action against state and local officers that Congress enacted during Reconstruction and is currently codified at 42 U.S.C. §1983. For some years, it appeared that Bivens might function as the equivalent of §1983 for federal defendants, but after a time, and especially in recent years, the Supreme Court has signaled that a Bivens action is often unavailable where a §1983 action against state or local officers would be available. The cutback--reflected most dramatically in cases like Ziglar v. Abbasi in 2017 and Hernandez v. Mesa in 2020--suggests pretty clearly that the current Court is not prepared to overrule Bivens but also will not allow its substantial extension.

But what's an extension versus an application? Under the current precedents, courts are supposed to first determine whether the plaintiff's claims arise in a "new context" or involve a "new category of defendants." If not, then Bivens applies. If so, then Bivens can still apply unless there are "special factors that counsel hesitation." In Egbert, the Ninth Circuit found that both the Fourth and First Amendment claims arose in a new context but that there were not special factors, and so allowed the case to go forward. I doubt that the Supreme Court granted certiorari to give the Ninth Circuit a medal, so it seems likely that the Court will agree that the case arises in a new context but disagree about special factors, and thus disallow the Bivens action.

Bivens itself was a Fourth Amendment case, so one might wonder how Egbert arises in a new context. That objection itself is problematic, however, because Hernandez was also a Fourth Amendment case. The particular civil rights violation at issue isn't key, the Court said. Rather, because Hernandez was a case that arose at the southern border, it implicated immigration and foreign policy in a way that both created a new context and counseled hesitation. This case too arises at the border (albeit with Canada rather than with Mexico), so the defendant and the U.S. government argue that it's more like Hernandez than like Bivens.

Much of the oral argument in Egbert focused on whether the facts only adventitiously implicate border control. Yes, Smuggler's Inn sits right at the border, but the facts aren't as dramatic as in Hernandez, which involved a cross-border shooting. Officer Egbert or one of the thousands of other law enforcement officers employed by any of the 83 federal agencies that carry out law enforcement duties could have investigated a foreign national's immigration status on property anywhere in the United States. Moreover, the First Amendment retaliation claim bears no necessary connection to border security; respondent Boule complained to Egbert's supervisor about his rough handling and then, Boule alleges, Egbert retaliated by asking the IRS to investigate Boule's tax status. So even acknowledging (as the Ninth Circuit did) that First Amendment claims are a new context because the Supreme Court hasn't previously recognized a Bivens action for them, there do not appear to be any immigration/foreign-policy-related special factors applicable to those.

There are ambiguities in the law governing what counts as a "special factor" and whether special factors get defined categorically or as-applied. And the Court has not offered an exhaustive list of what counts as a special factor. National security counts. So do foreign relations. The underlying concern, as articulated in Hernandez and other cases, seems rooted in separation of powers. Is there reason to worry that the courts lack competence to weigh the costs and benefits of a cause of action so that the issue should be left for Congress?

To my mind, that's question begging. Recognizing or not recognizing a Bivens action leaves the issue for Congress in the sense that Bivens is federal common law that Congress can supersede one way or the other. By saying that the presence of special factors entails no Bivens action, the Court's cases assume that Congress would prefer whatever countervailing considerations are present over the robust protection of civil rights. Maybe that's right, but it seems as much a normative judgment by the Court as it is a gauge of congressional sentiment. Given the difficulty of overcoming congressional inertia, it's likely that whatever the courts do in any of these cases will be a very sticky default principle. Congress is highly unlikely to reverse a decision either allowing or rejecting a Bivens action in any particular setting.

What about the first step--whether a case arises in a new context? Justice Breyer asked Egbert's lawyer a series of questions about trivial differences that obviously should not amount to a new context: If the officers' conduct in Bivens occurred on a Wednesday, surely identical conduct on a Thursday would fall within Bivens rather than involving an extension. What about if instead of looking for drugs, the officers are looking for weapons? For undocumented immigrants?

To her credit, Egbert's lawyer conceded that the day of the week or month of the year couldn't possibly make a difference. But she began to push back when the law enforcement purpose shifted. I understand why she did so to try to win the case, but the move is at least somewhat perplexing. Whether we have a new context is not simply a descriptive question. It's also--indeed primarily--a normative one. The reason we think a Thursday search is not different from a Wednesday search is that nothing relevant turns on the day of the week. Does it matter whether the officers are searching for weapons rather than drugs? That's not an obviously irrelevant detail in the way that the day or month is, but neither is it obviously relevant. The answer could depend on any number of factors, including how dangerous the search is, how important the government interest is, whether Congress has indicated priorities, etc.

Figuring out whether some asserted distinction between the context of Case A and the context of Case B makes a difference or is instead what we lawyers call a distinction without a difference is extremely familiar. It's at the heart of the common law method and thus should be a natural fit for deciding the availability of a Bivens action, which is a question of federal common law. Indeed, even if this were not a federal common law question but instead a question of statutory or constitutional construction, the process of sorting between relevant and irrelevant distinctions would be familiar, because courts in the U.S. (and other legal systems descended from England) use the common law method in all manner of cases.

What's unusual about the Bivens context is that the recent decisions place a thumb on the scale in favor of finding a difference. As Judge Fletcher put the point in the Ninth Circuit opinion, even a "modest extension" of Bivens will count as an extension that triggers the "special factors" inquiry rather than calling for the simple application of Bivens.

But unusual doesn't mean unique. There are other contexts in which the courts treat modest (but not trivial) extensions of precedent as extensions rather than applications. Consider the question whether a rule of law on which a habeas petitioner challenging their custody after a state court conviction relies is "new." Under the Supreme Court's case law and the Antiterrorism and Effective Death Penalty Act, a rule is new if not dictated by precedent, which requires a high degree of similarity to the precedent-setting case--although even then, what counts as a distinction that makes a difference depends on ultimately normative considerations. The case law governing whether a civil rights violation overcomes an officer's qualified immunity likewise allows that even modest extensions amount to extensions rather than applications such that a reasonable officer will not be held liable because they lacked guidance from clearly established law.

The similarity between the Bivens extension inquiry and the qualified immunity inquiry made a suggestion by Justice Gorsuch during the Egbert oral argument puzzling. He said that he didn't know what to do with Bivens but that he could get his head around the mission in a qualified immunity case: "is the law clearly established, and I look on the books and see if I can find it."

But that's really no different from the Bivens "new context" inquiry. When Justice Gorsuch or any other judge "looks on the books" in a qualified immunity case, they won't ever find a case that's identical to the case before them. Instead, they'll find cases that are at most similar in some respects and different in other respects. The inquiry is then whether the differences are more than trivial such that they can be said not to clearly establish the law. That's the same process as in Bivens.

Now in saying that the inquiry in Bivens cases is like the inquiry in habeas cases and qualified immunity cases, I don't mean to be endorsing the law in any of these areas. If I were writing on a clean slate, I would allow habeas actions or the overcoming of qualified immunity on a lower threshold of similarity between the precedent case and the case before the court. My point now, however, is that the inquiry should be familiar to the Justices.

I should also add that the stringency of the standard for overcoming qualified immunity shows why the entire line of cases cutting back on Bivens is misguided. As Justice Sotomayor noted during the Egbert oral argument, even when a Bivens action is allowed, federal officer defendants have the exact same protection via qualified immunity that their state and local counterparts enjoy. There is no real risk that simply allowing Bivens as a judge-made equivalent to §1983 would unduly chill federal law enforcement. At at time when there is bipartisan criticism of qualified immunity as overprotective of officers who violate civil rights, it's bizarre to think that even the possibility of a lawsuit against federal officers who enjoy robust qualified immunity is a danger of any sort.

And yet, as I said, I doubt that SCOTUS granted cert to give the Ninth Circuit a medal.