U.S. Supreme Court Guts Ability to Sue Federal Officers for Civil Rights Violations
On June 8, 2022, in a 6-3 decision where the Justices were divided by political philosophy, the U.S. Supreme Court issued its opinion in Egbert v. Boule, No. 21-147. There, a U.S. Border Patrol agent assaulted the plaintiff in Washington state near the border with Canada. The plaintiff sued the agent, invoking the U.S. Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which judicially created a right to sue federal officers for violating a person’s rights under the Fourth Amendment. The plaintiff also sued, alleging a First Amendment retaliation claim.
Although a federal statute, 42 U.S.C. § 1983, authorizes a civil action against state agents, such as municipal and state police officers, who violate a person’s federally guaranteed rights, it does not authorize similar lawsuits against federal officers. However, as explained above, Bivens judicially created a right to bring civil rights lawsuits against federal officers who violate a person’s Fourth Amendment rights. Thereafter, the Supreme Court recognized the right to bring lawsuits against federal officers who violate a person’s Fifth Amendment rights, see Davis v. Passman, 422 U.S. 228 (1979), and Eighth Amendment rights, see Carlson v. Green, 446 U.S. 14 (1980). However, since then, the Supreme Court has refused to further extend the right to sue federal officers on numerous occasions.
In Egbert, the Court again refused to extend the Bivens cause of action to Border Patrol agents because the “risk of undermining border security provides reason to hesitate before extending Bivens” and because Congress has otherwise mandated that the Border Patrol investigate any alleged violations and to accept grievances from any person (even though the person making the grievance has no control over the investigation or results thereof).
More importantly, in Egbert, the Court essentially gutted the ability to bring any type of Bivens action, holding that the Court should reject any new Bivens action if there is “any rational reason (even one)” to do so, including if there is any difference between the new lawsuit and a previous one that has been permitted by the Supreme Court. The Court also refused to extend Bivens claims to encompass First Amendment retaliation claims because, according to the Court, Congress is better suited to authorize such a claim. Thus, it appears, the Supreme Court may be destined to reject any new Bivens action based upon the Fourth Amendment unless it is filed against agents of the Federal Bureau of Narcotics (the defendants in Bivens), which is an agency that no longer exists! Congress should act.