Last November, I highlighted a very questionable Ninth Circuit panel opinion (in Boule v. Egbert) written by Judge William Fletcher that ruled that a person who alleged that a border patrol agent violated his rights under the First and Fourth Amendments could pursue a Bivens damages remedy against the agent on both claims.

Today, over the dissent of twelve judges—including Obama appointee John Owens—the Ninth Circuit denied en banc rehearing in the case. At the same time, the panel issued a substantially amended opinion. (I haven’t tried to identify all the changes, but they appear to be numerous.) The dissents from the denial of en banc rehearing and the amended opinion are all here.

Judge Bumatay wrote the lead dissent. Six of his colleagues joined it in full, and another four joined a brief separate dissent that says that Bumatay’s opinion “forcefully highlights some of [the] reasons” that “counsel[] hesitation in devising court-created First and Fourth Amendment damages remedies against a federal agent for actions relating to his investigation of an international traveler near the international border.” In his own very brief dissent, Judge Owens states his belief that “new legislation [by Congress] that permits plaintiffs to vindicate their rights is better than our current jurisprudential word jumble.”

Here are some excerpts from the opening of Bumatay’s dissent (citations simplified):

In this case, we are asked to decide which branch of government may create the legal remedies available to the people for constitutional violations. From the ratification of the Bill of Rights until 1971, the Judiciary has rightfully respected the separation of powers and deferred to Congress and the States to provide remedies for such violations. That all changed when the Supreme Court for the first time read an implied cause of action into the Constitution for violation of the Fourth Amendment. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The Court, of course, did not ground such a ruling in the text or history of the Constitution, but relied on the amorphous belief that federal courts have the authority to “make good the wrong done.”
Since then, however, the Court has seemingly shown buyer’s remorse— recognizing Bivens as a judicial usurpation of the legislative function and blocking its expansion to any new amendments, contexts, or defendants. In consequence, the judicial practice of creating constitutional causes of action is widely considered disfavored—if not a dead letter.
Against this current, our court charges ahead, resurrecting Bivens in spite of the Court’s clear instructions. Here, we extend Bivens to two new contexts: one involving the First Amendment and another involving the Fourth Amendment at the border. Never mind that the Court has never extended Bivens to the First Amendment. And never mind that it has never extended Bivens to any case with national security implications.
By avoiding the Constitution’s limits on the “judicial Power,” we become an outlier among our fellow circuit courts and establish ourselves as a quasi-legislature. Because we far exceeded our limited judicial role and improperly disregarded the Court’s precedents in this case, I respectfully dissent from the denial of rehearing en banc.

This one has all the ingredients for a Supreme Court smackdown.