High court to review 9th Circuit’s Border Patrol decision

The U.S. Supreme Court has granted review of a 9th U.S. Circuit Court of Appeals decision that would allow more types of claims to be brought against Border Patrol agents accused of using excessive force in searches and seizures.

The case, originally brought by the owner of a Washington state bed-and-breakfast called the "Smugglers Inn," asks the high court if the innkeeper can sue a Border Patrol agent for damages under the First and Fourth Amendments.

In the 1971 Supreme Court case, Bivens, the high court held that an implied cause of action existed for a person -- including noncitizens -- whose Fourth Amendment freedom from unreasonable search and seizures had been violated by the Federal Bureau of Narcotics. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

The Supreme Court said Friday, it will answer two questions:

"1. Whether a cause of action exists under Bivens for First Amendment retaliation claims," and "2. Whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff's Fourth Amendment rights."

Plaintiff Robert Boule owns and lives in a bed-and-breakfast on land touching the U.S.-Canada border. He alleged that Border Patrol Agent Erik Egbert entered the driveway of the bed-and-breakfast to question arriving guests and used excessive force against Boule.

After Boule complained to Egbert's superiors, the agent allegedly retaliated against him by, among other things, calling the Internal Revenue Service, Social Security Administration, the Washington State Department of Licensing, and the Whatcom County Assessor's Office, each of which subsequently conducted formal inquiries into Boule's business activities, the lawsuit claimed.

Using Bivens, Boule filed a lawsuit against Egbert in a Washington district court, claiming excessive force under the Fourth Amendment, and for retaliation in violation of the First Amendment.

The district court dismissed the suit against Egbert, finding causes of actions under Bivens should be more narrowly construed and are most commonly brought against F.B.I. agents.

The 9th Circuit reversed, holding a more expansive view of Bivens that would allow plaintiffs to file claims against border patrol agents.

With respect to Boule's Fourth Amendment claim, the 9th Circuit reasoned that extending Bivens to Border Patrol agents was a "modest extension," that would not entail "improper intrusion by the judiciary into the sphere of the other branches."

The 9th Circuit deemed Boule's excessive force claim "indistinguishable from Fourth Amendment excessive force claims that are routinely brought under Bivens against F.B.I. agents."

The court then denied rehearing en banc. Dissenting from the denial of a rehearing, Judges Patrick J. Bumatay, Consuelo Callahan, Sandra S. Ikuta, Mark J. Bennett, Ryan D. Nelson, Kenneth K. Lee and Lawrence J. VanDyke stated that the court had extended Bivens to two new contexts: one involving the First Amendment and another involving the Fourth Amendment at the border.

"By avoiding the Constitution's limits on the judicial power, the court had become an outlier among its fellow circuit courts, established itself as a quasi-legislature and improperly disregarded the Supreme Court's precedents," the dissenters wrote.

Bumatay wrote that the court "could not respond to executive transgression of the Constitution with its own judicial overreach; it was not within the power of federal judges to create a cause of action for plaintiff, no matter how convinced they were that he deserved one."

Egbert, represented by Sarah Harris of Williams & Connolly LLP, petitioned the Supreme Court.

"As many of the Ninth Circuit dissenters observed, the panel's groundbreaking Bivens expansions 'improperly disregard the Court's precedents' and make that court 'an outlier among [its] fellow circuit courts,'" the petition reads. "Six circuits -- the Second, Third, Fourth, Fifth, Sixth, and D.C. -- have rejected the availability of First Amendment retaliation Bivens claims against myriad types of federal officials."

Similarly, three circuits -- the Fourth, Fifth, and 11th -- have refused to allow Fourth Amendment Bivens claims in cases involving Border Patrol agents, "citing the sensitivity of this area, heightened separation-of-powers concerns, and the availability of many other remedies," it continued.