Egbert v. Boule (21-147)

argument 21-147

Egbert v. Boule

Supreme Court of the United States 1h 11m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court’s position on expanding Bivens remedies after 40 years?

John G. Roberts 0:00

We will hear argument this morning in Case 21-147, Egbert v. Boulay. Ms. Harris?

Sarah Harris 0:10

Mr. Chief Justice, and may it please the Court, this Court should not expand Bivens for the first time in 40 years. First, Bivens extensions clash with modern precedent. Bivens interpreted Federal Court's jurisdiction over Federal questions as authorizing courts to fashion new damages actions. Decades of intervening cases reject that premise and remove any doctrinal basis for Bivens extensions. Second, this Court has held that any reason to think Congress might doubt the efficacy or the necessity of a damages remedy bars new Bivens actions. Abbasi and Hernandez make respect for the separation of powers the key consideration. But the Constitution vests Congress alone with the power to create damages actions.

Sarah Harris 0:58

Abbasi and Hernandez say courts must pause if the judiciary isn't well-suited to assess the systemic costs and benefits of a new damages action. But courts are never equipped for such predictive empirical judgments. Abbasi and Hernandez also rule out Bivens extensions if Congress has extensively legislated in an area. But Congress has extensively legislated about federal officer liability without allowing individual damage actions. Third, at the very least, this Court should not expand Bivens to First Amendment retaliation claims or to Fourth Amendment claims involving border security. Those claims raise yet further grounds for pause and would explode the universe of Bivens claims. For First Amendment retaliation claims, plaintiffs could portray virtually any governmental action as unconstitutional if taken for retaliatory reasons, creating especially amorphous Bivens liability.

Sarah Harris 1:56

Further, allowing First and Fourth Amendment claims against agents involved in border security also implicates national security, as Hernandez recognized. And finally, there are many alternative means to protect these constitutional interests. I welcome the Court's questions.

Clarence Thomas 2:12

Well, Ms. Harris, when you have the Fourth Amendment claim in Bivens is similar to the Fourth Amendment claim here. So why doesn't that foreclose your argument that that's excluded?

Sarah Harris 2:33

We respectfully disagree. The Fourth Amendment claim in Bivens is quite different from the claim here for a number of reasons. First of all, the class of defendants and the statutory mission of the officers is exceedingly different. The Federal Bureau of Narcotics mission is not the same in any respect as the statutory mandate under which Border Patrol officers are operating, and that is an important factor under Abbasi for a new context. And on top of that, we know, because Congress and the Court have said so, that the Fourth Amendment applies differently in a border context. And that, I think, also goes to the Border Patrol functions. Border Patrol agents are in dangerous circumstances every day trying to interdict terrorists, smugglers, illegal entry and exit of foreign nationals crossing the border.

Clarence Thomas 3:17

Couldn't you say something similar to that about police officers in the Fourth Amendment? I mean, it seems to be pretty much the same thing. But beyond that, though— If the court adopted your approach, what survives as far as Bivens claims go?

Sarah Harris 3:37

What survives is what we think the court recognized in Abbasi would survive. So the court said in Abbasi that it is not questioning the necessity or the stare decisis value of Bivens in the search and seizure context in which it arose. And I think the next paragraph of Abbasi illustrates the Court was distinguishing between claims that would not be a new context for Bivens and claims that would be. So, again, I think if you look at the facts of Bivens and the things that perhaps the DEA is doing today, that would absolutely survive. I don't think you have to resolve exactly what is or is not a new context, because this case, I think, is really about what happens when there is a Bivens extension on the table when there is something that is absolutely new context and what factors should courts be considering in order to resolve that question.