Boule v. Egbert

• Decision Date: 20 November 2020
• Docket Number: No. 18-35789,18-35789
• Citation: 980 F.3d 1309
• Parties: Robert BOULE, Plaintiff-Appellant, v. Erik EGBERT; Jane Doe Egbert, and their marital community, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

980 F.3d 1309

Robert BOULE, Plaintiff-Appellant,

v.Erik EGBERT; Jane Doe Egbert, and their marital community, Defendants-Appellees.

No. 18-35789

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2020 Seattle, Washington

Filed November 20, 2020

Breean L. Beggs (argued), Paukert & Troppmann PLLC, Spokane; Gregory Donald Boos and W. Scott Railton, Cascadia Cross-Border Law, Bellingham, Washington; for Plaintiff-Appellant.

Geoff Grindeland (argued) and Nikki Carsley, Seamark Law Group PLLC, Bainbridge Island, Washington, for Defendants-Appellees.

Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, Washington; Mary Kenney, American Immigration Council, Washington, D.C.; Trina Realmuto, American Immigration Council, Brookline, Massachusetts; for Amici Curiae American Immigration Council and Northwest Immigrant Rights Project.

Before: Susan P. Graber and William A. Fletcher, Circuit Judges, and Nancy D. Freudenthal,^* District Judge.

W. FLETCHER, Circuit Judge:

The Supreme Court first recognized an implied right of action for damages against federal officers in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Court held that damages were recoverable directly under the Fourth Amendment when federal officers arrested and searched the plaintiff without a warrant or probable cause, and when they employed unreasonable force in making the arrest. Id. at 389, 395–96, 91 S.Ct. 1999. In the years after Bivens , the Court also has recognized implied rights of action for damages under the Fifth and Eighth Amendments. See Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (recognizing a damages remedy for a gender discrimination claim against a United States Congressman under the equal protection component of the Fifth Amendment Due Process Clause); Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (recognizing a damages remedy against federal prison officials for failure to provide adequate medical treatment under the Eighth Amendment's Cruel and Unusual Punishment Clause).

We are asked to decide whether a Bivens damages remedy is available to a United States citizen plaintiff who contends that a border patrol agent, acting on the plaintiff's property within the United States, violated his rights under the First and Fourth Amendments. 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." Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (internal quotation marks omitted).

In considering possible extensions of Bivens , we engage in a "two-step inquiry," "first inquir[ing] whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants’ " and then "ask[ing] whether there are any ‘special factors that counsel hesitation.’ " Hernandez v. Mesa , ––– U.S. ––––, 140 S.Ct. 735, 743, 206 L.Ed.2d 29 (2020) (citing Abbasi , 137 S.Ct. at 1859 ). Applying this framework, we reverse the district court and hold that Boule may pursue a Bivens remedy for his First and Fourth Amendment claims.

I. Background

Because this case comes before us on an appeal of a grant of summary judgment for Defendant, we draw all reasonable factual inferences in favor of Plaintiff, Robert Boule. Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). We recite the facts viewed through that lens.

Boule is a United States citizen. He owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington. The back property line of the land on which the inn is located touches the United States-Canada border. On March 20, 2014, Customs and Border Patrol Agent Erik Egbert stopped Boule while he was running errands "in town" and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who had flown in from Turkey the day before. Boule told him that two of his employees were en route to pick up the guest at Seattle-Tacoma ("Sea-Tac") International Airport, about 125 miles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is on a road at the front of the property. When the guest arrived, Egbert followed the car carrying the arriving guest into Boule's driveway.

Egbert got out of his vehicle and approached the car. From the front porch of the inn, Boule asked Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Boule recounts that Egbert then shoved him against the car. When Boule still did not move away from the car, Egbert grabbed him and pushed him aside and onto the ground.

Egbert then opened the car door and asked the guest about his immigration status. Boule made a 911 call to request a supervisor, which Egbert also relayed over dispatch. A supervisor and another agent arrived in response to the call. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought medical treatment for injuries to his back.

After Boule complained to Egbert's superiors about the incident, Egbert retaliated against Boule. Among other things, Egbert contacted the Internal Revenue Service, asking the agency to look into Boule's tax status.

Boule filed a complaint against Egbert in federal district court, seeking damages under Bivens for a violation of his First and Fourth Amendment rights. The district court granted summary judgment to Egbert on Boule's First and Fourth Amendment claims, holding that they were impermissible extensions of Bivens . Boule timely appealed.

II. Discussion

We review de novo a district court's decision on summary judgment. Brunozzi v. Cable Commc'ns, Inc. , 851 F.3d 990, 995 (9th Cir. 2017). We address Boule's Fourth and First Amendment claims in turn, applying the framework established in Abbasi , 137 S.Ct. at 1859, and relied on in Hernandez , 140 S.Ct. at 743. We ask whether Boule's claims arise in a new context and, if so, whether any special factors counsel hesitation in finding a viable Bivens claim. Id.

The Supreme Court's understanding of a "new context" in a Bivens analysis is "broad." A context is " ‘new’ if it is ‘different in a meaningful way from previous Bivens cases decided by this Court.’ " Id. (citing Abbasi , 137 S.Ct. at 1859 ). The Court wrote in Abbasi :

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one ... [:] A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

137 S. Ct. at 1859–60. The Court cautioned that "even a modest extension is still an extension." Id. at 1864.

If we conclude that a claim arises in a new context, we ask "whether there are any special factors that counsel hesitation about granting the extension." Hernandez , 140 S. Ct. at 743 (citing Abbasi , 137 S. Ct. at 1857 ). The Court acknowledged in Abbasi that it has not defined "special factors," but noted that

the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a special factor counselling hesitation, a factor must cause a court to hesitate before answering that question in the affirmative.

137 S. Ct. at 1857–58 (internal quotation marks omitted). The Court wrote in Hernandez that a court should "consider the risk of interfering with the authority of the other branches" and should "ask whether there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy and whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Hernandez , 140 S. Ct. at 743 (internal citations and quotation marks omitted).

A. Fourth Amendment

The district court assumed that Boule's Fourth Amendment claim is a "modest extension" in a new context. We agree that it is a modest extension, given that the Defendant is an agent of the border patrol rather than of the F.B.I. However, we do not find that special factors counsel hesitation in allowing a Bivens action to proceed in this new context. Boule, a United States citizen, brings a conventional Fourth Amendment claim based on actions by a rank-and-file border patrol agent on Boule's property in the United States. This context is a far cry from the contexts in Abbasi and Hernandez , in which the Court found special factors.

In Abbasi , the plaintiffs were foreign nationals who had been unlawfully present in the United States. Following the September 11, 2001 terrorist attacks, they were incarcerated by the federal government in harsh conditions. 137 S. Ct. at 1852–53. The F.B.I. had designated each of the plaintiffs as a person "of interest" in the post-attack investigation. Id. at 1852. After plaintiffs were released and removed from the United States, they brought a Bivens suit against federal executive officials and detention facility wardens, seeking damages based on the conditions of their confinement and the decisions that had led to those conditions. Id. at 1851–52. The Court refused to allow a Bivens suit,...