Supreme Court once again declines to recognize a new Bivens claim

In 1971, the Supreme Court decided that the Constitution provides for certain implied causes of action in the name of enforcing civil rights that were not protected under any statutes enacted by Congress. Justice Scalia called this the "heady days" of Supreme Court jurisprudence. These are Bivens actions, named after the case that said the Constitution permits an implied claim for a Fourth Amendment violation arising from a false arrest. But the Court has only twice identified other such claims over the years before it eventually stopped doing so such that it has rejected Bivens-style claims 11 times in the last 42 years. It does so again in this case.

The case is Egbert v. Boule, issued on June 8. Plaintiff owns a bed-and-breakfast near the U.S.- Canadian border. He helped federal agents identify and apprehend persons engaged in human cross-border smuggling. But he also provided transportation and lodging to these smugglers. When a U.S. border agent refused to leave plaintiff's property one day, plaintiff alleges, the agent got violent and threw plaintiff to the ground. Hence the Fourth Amendment excessive force claim against the federal defendant under Bivens. Plaintiff also brings a First Amendment claim under Bivens.

The Ninth Circuit said plaintiff can proceed with the case but the Supreme Court reverses. Remember that Constitutional claims against state and local defendants may proceed under 42 U.S.C. section 1983. But there is no federal counterpart to Section 1983. In sizing up a potential Bivens claim, the Court says the ultimate inquiry is "where there is any reason to think that Congress might be better equipped to create a damages remedy." Since the Court has refrained from extending Bivens claims over the last 42 years, the answer to that question these days is going to be Yes. That is the answer here.

By a 6-3 vote (with the liberals in dissent), the Court will not recognize plaintiff's excessive force claim under the Constitution because the "risk of undermining border security provides reason to hesitate before extending Bivens into this field." Second, and this is often the case when the Court declines to extend Bivens, Congress has provided alternative remedies for these violations, as Border Control must investigate grievances against its agents. Plaintiff may not like that particular remedy, as it likely provides for no damages, but it is a remedy under Court precedent. As for the First Amendment claim, the Court has never identified such a claim under Bivens and it won't do so here, reasoning that it would pose a "risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties."

Bivens claims may eventually be a thing of the past, but we are not there yet. Justice Gorsuch writes a concurrence suggesting that only Congress can create causes of action, not the Supreme Court. If it were up to him, Bivens claims would be foreclosed forever. That several other conservatives did not join in this concurrence means they are OK with the few available Bivens claims, but that observation elevates form over substance. As Justice Thomas writes, the Court has not recognized a new Bivens claim in over 40 years.