In 1971, the Supreme Court held in Bivens v. Six Unknown Federal Narcotics Agents that in the absence of statutory authorization it would nonetheless enforce a damages remedy against federal officers who violated a person’s Fourth Amendment rights. But, as Justice Kennedy discusses in his majority opinion in 2017 in Ziglar v. Abbasi, outside “the search-and-seizure context in which [Bivens] arose,” the Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”
In a unanimous opinion Friday by Judge William Fletcher (in Boule v. Egbert), a Ninth Circuit panel 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 under both claims. The panel’s application of Bivens to the First Amendment context strikes me as especially dubious. (The plaintiff’s particular claim is that after he complained to the agent’s superiors about an incident, the agent retaliated by asking the IRS to look into the plaintiff’s tax status.)
1. For starters, Judge Fletcher plays word games with a key passage from Ziglar in order to distort it to suggest that the Supreme Court indicated that Bivens is broadly available in cases involving law enforcement. Here is what Justice Kennedy actually wrote (my underlining):
[I]t must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.
And here’s how Fletcher mischaracterizes that passage (my underlining and boldface):
Although the Supreme Court has made clear that “expanding the Bivens remedy is now a disfavored judicial activity,” a Bivens remedy is still available in appropriate cases and there are “powerful reasons” to retain it in its “common and recurrent sphere of law enforcement.”
In brief, when Kennedy refers to “this common and recurrent sphere of law enforcement,” he is clearly referring to “the search-and-seizure context in which [Bivens] arose.” But Fletcher, avoiding any mention of the search-and-seizure context, substitutes the nonrestrictive its in place of the restrictive this and thus pretends that Kennedy’s embrace of Bivens extends to the broad “sphere of law enforcement.”
2. Fletcher states that the Ninth Circuit has “previously recognized a Bivens claim in the First Amendment context” but observes that “the Supreme Court has not yet done so.” Both halves of this statement are curious.
The Ninth Circuit precedent that Fletcher cites is from 1986. It’s highly doubtful that that precedent remains sound after Ziglar, but Fletcher never even raises that question. Worse, his statement that the Court “has not yet done so”—that is, not yet “recognized a Bivens claim in the First Amendment context”—gives the impression that the Court might be on the verge of doing so, when the entire thrust of Ziglar is against further expansions of Bivens. In Ziglar Kennedy quotes a passage from a 2001 opinion that states that the Court has “consistently refused to extend Bivens to any new context or new category of defendants” and adds approvingly: “Indeed, the Court has refused to do so for the past 30 years.” Kennedy proceeds to cite lots of cases in which the Court refused to extend Bivens, and his very first example is “a First Amendment suit against a federal employer.”