Boule v. Egbert

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation998 F.3d 370
Docket NumberNo. 18-35789,18-35789
Parties Robert BOULE, Plaintiff-Appellant, v. Erik EGBERT; Jane Doe Egbert, and their marital community, Defendants-Appellees.
Decision Date20 November 2020

998 F.3d 370

Robert BOULE, Plaintiff-Appellant,
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
Amended May 20, 2021


The opinion filed on November 20, 2020, and reported at Boule v. Egbert , 980 F.3d 1309 (9th Cir. 2020), is amended, and the amended opinion is filed concurrently with this order.

An active judge of this court sua sponte requested a vote on whether to rehear this case en banc. A vote was taken and the matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R. App. P. 35(f). Rehearing en banc is DENIED .

Judge Bumatay's, Judge Owens's, and Judge Bress's dissents from the denial of rehearing en banc are attached and filed concurrently with this order.

BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA, BENNETT, R. NELSON, LEE, and VANDYKE, Circuit Judges, dissenting from the denial of rehearing en banc:

Contrary to common belief, the Constitution's "radical innovation" is not its various enumerated rights—as cherished and

998 F.3d 374

fundamental as they are.1 It is the Constitution's design for the separation of powers that has become among the "most important contributions to human liberty."2 Having "lived among the ruins of a system of intermingled legislative and judicial powers," our Founders sensed the "sharp necessity to separate the legislative from the judicial power." Plaut v. Spendthrift Farm, Inc ., 514 U.S. 211, 219, 221, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). The result is the clear division of authorities between Congress's "legislative powers" and the Judiciary's "judicial Power." U.S. Const. art. I, § 1 ; id. art. III, § 1.

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 , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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." Id . at 396, 91 S.Ct. 1999.

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.


Robert Boule operates a bed and breakfast located directly adjacent to the border with Canada, in Blaine, Washington. Boule v. Egbert , 980 F.3d 1309, 1312 (9th Cir. 2020). The B&B is aptly called "Smuggler's Inn," because it's a notorious site for illegal border crossing.3 Large shipments of cocaine, methamphetamine, ecstasy, and opiates have previously been intercepted at Smuggler's Inn. U.S. Border Patrol Agent Erik Egbert knew about this history. In fact, as a Border Patrol Agent investigating counterterrorism and cross-border crimes, Agent Egbert had been to Smuggler's Inn many times while on patrol and

998 F.3d 375

had apprehended persons who had illegally crossed the border at the spot.

While on duty, Agent Egbert encountered Boule in town. To Egbert's recollection, Boule told him that a Turkish national would be arriving at Smuggler's Inn that day. Boule said that two of his employees went to the airport to pick up the individual. Agent Egbert decided to investigate the Turkish national's arrival.

Later that day, Agent Egbert waited in his patrol car near Smuggler's Inn for the Turkish guest. When the vehicle transporting the guest arrived, Agent Egbert followed it into the Inn's driveway. As Egbert approached, Boule asked the agent to leave. Agent Egbert refused, so Boule stepped between Egbert and the vehicle. Agent Egbert responded by pushing him to the ground, which later caused him to seek medical treatment. Agent Egbert then determined that the Turkish guest was lawfully in the country. Afterward, Boule complained to Egbert's superiors about the incident. In retaliation, Boule says, Agent Egbert contacted the Internal Revenue Service (asking it to investigate Boule's tax status) and various other government agencies.

Boule then brought this suit—filing Bivens claims for damages under the First and Fourth Amendment. First, Boule asserts that Agent Egbert violated his First Amendment rights by retaliating against him for complaining to the agent's superiors about the incident. Second, Boule contends that Agent Egbert violated his Fourth Amendment rights when he came onto his property, refused to leave, and pushed him to the ground.

The district court granted summary judgment in favor of Agent Egbert, refusing to extend Bivens under either amendment. Boule appealed, and the panel reversed. That was error.


The text of the Constitution provides for no express cause of action for damages against federal officials for violations of its provisions. And for almost 200 years, no implied cause of action existed under the Constitution either. That did not mean that remedies were unavailable for constitutional infringements by federal officials. Indeed, it was considered axiomatic at the Founding that for every "legal right, there is also a legal remedy." Marbury v. Madison , 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803) (discussing 3 William Blackstone, Commentaries *23). But Founding-era courts did not fashion their own damages remedy under the Constitution.

Instead, from "the beginning of the nation's history," federal courts have recognized that federal officials were subject to "common law suits," which served as the remedy to their legal violations "as if they were private individuals." Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question , 161 U. Pa. L. Rev. 509, 531 (2013). Thus, at our Founding, "only state law ... furnished any redress for ... unconstitutional conduct by federal officials." Akhil Reed Amar, Of Sovereignty and Federalism , 96 Yale L.J. 1425, 1506 (1987) (describing the remedy for the unconstitutional search of one's home).

The Supreme Court's "early adopted" rule was that a "government agent [was] personally liable for the breach of any duty imposed by the common law or by statute unless" the action was authorized by federal law. Note, Developments in the Law: Remedies Against the United States and Its Officials , 70 Harv. L. Rev. 827, 831–32 (1957). Under that rule, if the plaintiff could establish that the official's conduct violated the Constitution, the "defendant's shield of federal power would dissolve, and

998 F.3d 376

he would stand as a naked [state-law] tortfeasor." Amar, supra, at 1506–07.

An early example of this remedial framework occurred during the Quasi-War between the United States and France in the administration of President John Adams. See Little v. Barreme , 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804). At the time, a federal statute authorized the President to order navy officers to seize ships sailing to France. Id. at 170–73. But in the case, the commander of an American warship had seized a Danish cargo ship sailing from France. Id. The ship's owner sued for trespass damages. Id. at 179. The Supreme Court upheld the naval officer's liability to suit because federal law did not warrant the capture of the ship. Id. at 176. As Chief Justice Marshall explained, a federal officer acting under federal law does so "at his peril;" if the officer's actions "are not strictly warranted by law[,] he is answerable in damages to any person injured by [the action's] execution." Id. at 170.

This view persisted through the Civil War, when tort suits were used against alleged federal government excesses. Andrew Kent, Are Damages Different?: Bivens and National Security , 87 S. Cal. L. Rev. 1123,...

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