FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BOULE, No. 18-35789
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00106-
RSM
ERIK EGBERT; JANE DOE EGBERT,
and their marital community,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted October 7, 2020
Seattle, Washington
Filed November 20, 2020
Before: Susan P. Graber and William A. Fletcher, Circuit
Judges, and Nancy D. Freudenthal,* District Judge.
Opinion by Judge W. Fletcher
*
The Honorable Nancy D. Freudenthal, United States District Judge
for the District of Wyoming, sitting by designation.
2 BOULE V. EGBERT
SUMMARY**
Civil Rights
The panel reversed the district court’s summary judgment
for defendants in an action brought pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), by a United States citizen who alleged that
a border patrol agent, acting on plaintiff’s property within the
United States, violated plaintiff’s rights under the First and
Fourth Amendments.
Plaintiff owns, operates and lives in a bed and breakfast
in the state of Washington, on land which touches the United
States-Canada border. Plaintiff alleged that a border patrol
agent entered the front driveway of plaintiff’s property to
question arriving guests, used excessive force against
plaintiff, and then, in response to plaintiff’s complaints,
retaliated against plaintiff by, among other things, contacting
the Internal Revenue Service, asking the agency to look into
plaintiff’s tax status. The district court granted summary
judgment to defendants on plaintiff’s First and Fourth
Amendment claims, holding that they were impermissible
extensions of Bivens.
The panel held that Bivens remedies were available in the
circumstances of this case, where a United States citizen
alleged that a border patrol agent violated the Fourth
Amendment by using excessive force while carrying out
official duties within the United States, and violated the First
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOULE V. EGBERT 3
Amendment by engaging in retaliation entirely unconnected
to his official duties.
Addressing the Fourth Amendment claim, the panel
agreed that it was a modest extension in a new context.
However, no special factors counseled hesitation in allowing
the Bivens action to proceed. The panel held that plaintiff, a
United States citizen, brought a conventional Fourth
Amendment claim based on actions by a rank-and-file border
patrol agent on plaintiff’s property in the United States. This
context was a far cry from the contexts in Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017), and Hernandez v. Mesa, 140 S.
Ct. 735, 743 (2020), in which the Supreme Court found
special factors.
Addressing the First Amendment claim, the panel noted
that the Supreme Court had not recognized a Bivens claim in
the First Amendment context and therefore the panel
concluded that plaintiff’s First Amendment claim arose in a
new context. However, no special factors counseled
hesitation in extending a Bivens remedy under the
circumstances. The panel noted that retaliation was a well-
established First Amendment claim, available against
governmental officers in general, and defendant’s alleged
retaliation had no relation to, or justification based on, his
duties as a border patrol agent. The panel further noted that
it appeared that there were no alternative remedies available
to plaintiff for either claim.
COUNSEL
Breean L. Beggs (argued), Paukert & Troppmann PLLC,
Spokane; Gregory Donald Boos and W. Scott Railton,
4 BOULE V. EGBERT
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.
OPINION
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 (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.
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
(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,
BOULE V. EGBERT 5
446 U.S. 14 (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, 137 S.Ct. 1843, 1857 (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, 140 S.Ct. 735, 743 (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 (2014). We recite the facts
viewed through that lens.
6 BOULE V. EGBERT
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.
BOULE V. EGBERT 7
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
8 BOULE V. EGBERT
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. 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
BOULE V. EGBERT 9
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, holding that special
10 BOULE V. EGBERT
factors counseled hesitation in extending Bivens in this new
context. Id. at 1859–61. The Court emphasized that the
plaintiffs’ claims challenged high-level Executive Branch
decisions concerning issues of national security. Id. at
1860–62.
In Hernandez, the plaintiffs were Mexican nationals
whose child had been killed by a United States border patrol
agent. 140 S. Ct. at 740. The agent had been on the United
States side of the border, the child had been on the Mexico
side, and the agent had shot across the border. Id. The
Mexican government unsuccessfully sought extradition of the
agent to Mexico. The U.S. Department of Justice conducted
an investigation and declined to bring charges against the
agent. Id. The Court held that the parents’ claims arose in a
new context and were precluded by special factors. 140 S.
Ct. at 744, 749. The Court noted several “warning flags,”
including the effect on foreign relations, the implications for
national security, and the fact that the harm occurred in
another country. Id. at 744, 746, 747.
The only aspects of the claim now before us that even
tangentially touch on the concerns raised in Abbasi and
Hernandez are that Boule’s inn is at the United States-Canada
border and that Egbert was investigating the status of a
foreign guest who was arriving at the inn. In finding special
factors in Hernandez, the Court wrote: “[S]ome [border patrol
agents] are stationed right at the border and have the
responsibility of attempting to prevent illegal entry. For these
reasons, the conduct of agents positioned at the border has a
clear and strong connection to national security.” 140 S. Ct.
at 746. However, the contrasts between Hernandez and the
case before us are self-evident. The agent in Hernandez was
literally “at the border,” tasked with policing the border and
BOULE V. EGBERT 11
preventing illegal entry of goods and people. See id. Though
Egbert was very near the border when he injured Boule, he
was not policing that border or trying to prevent illegal entry.
As Egbert had already been informed by Boule, the arriving
guest was coming from Sea-Tac airport after arriving on a
flight from New York. Further, the plaintiffs in Hernandez
were foreign nationals, complaining of a harm suffered in
Mexico. Boule is a United States citizen, complaining of
harm suffered on his own property in the United States.
Finally, the claim in Hernandez was extremely unusual. The
claim against Egbert is a conventional Fourth Amendment
claim, indistinguishable from countless such claims brought
against federal, state, and local law enforcement officials,
except for the fact that Egbert is a border patrol agent.
The fact that Egbert is a border patrol agent, standing
alone, does not preclude a Bivens action. Courts in our circuit
and elsewhere have allowed Bivens actions to proceed against
border patrol agents. See, e.g., Chavez v. United States, 683
F.3d 1102 (9th Cir. 2012); Castellanos v. United States, 438
F. Supp.3d 1120 (S.D. Cal. 2020); Morales v. Chadbourne,
793 F.3d 208 (1st Cir. 2015); Martinez-Aguero v. Gonzalez,
459 F.3d 618 (5th Cir. 2006). Egbert refers briefly to the
burden of litigation and argues that “Congress is in a better
position to evaluate the costs and benefits of creating a new
legal remedy, which would have far-reaching effects across
an entire agency.” In earlier Bivens cases involving low-level
officers, however, we have concluded that the costs of
litigation alone do not warrant hesitation. See Lanuza v.
Love, 899 F.3d 1019, 1029 (9th Cir. 2018) (describing how a
“straightforward case against a single low-level federal
officer” does not raise concerns about “burden[ing] the
Executive Branch to an unacceptable degree”).
12 BOULE V. EGBERT
The Supreme Court cautioned in Abbasi that “national-
security concerns must not become a talisman used to ward
off inconvenient claims—a label used to cover a multitude of
sins.” 137 S. Ct. at 1862 (internal quotation marks omitted).
After the Court’s decision in Abbasi, we allowed an
immigrant to pursue a Bivens action against an Immigration
and Customs Enforcement attorney who had forged a
document in order to prevent his adjustment of status to
lawful permanent resident. Lanuza, 899 F.3d at 1021. We
wrote that although “the Supreme Court has made clear that
expanding the Bivens remedy is now a disfavored judicial
activity,” a Bivens remedy remains available in appropriate
circumstances. Id. (internal quotation and citation omitted).
We distinguished Abbasi, noting that, like Boule in the case
before us, the plaintiff did not “challenge high-level executive
action” and did not “challenge or seek to alter the policy of
the political branches.” Id. at 1028–29. In a “run-of-the-mill
immigration proceeding” where the alien had no ties to
terrorism, the case was “unrelated to any other national
security decision or interest.” Id. at 1030. We held that
“compelling interests that favor extending a Bivens remedy
. . . outweigh the costs of allowing this narrow claim to
proceed against federal officials.” Id. at 1033. Here, in a
“run-of-the-mill” Fourth Amendment case, we hold that any
costs imposed by allowing a Bivens claim to proceed are
outweighed by compelling interests in favor of protecting
United States citizens from unlawful activity by federal
agents within the United States.
The claim in Bivens itself did not constitute improper
intrusion by the judiciary into the sphere of authority of other
branches. Nor does the Fourth Amendment claim here
constitute such an intrusion. Boule’s Fourth Amendment
claim is part and parcel of the “common and recurrent sphere
BOULE V. EGBERT 13
of law enforcement” which, under Abbasi, is a permissible
area for Bivens claims. Abbasi, 137 S. Ct. at 1857; id. at 1856
(“[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”).
We therefore conclude that Boule’s Fourth Amendment claim
may proceed as a Bivens damages claim.
B. First Amendment
Boule also alleges that Egbert retaliated against him for
exercising his First Amendment right to complain to Egbert’s
superiors about his conduct at the inn. We have previously
recognized a Bivens claim in the First Amendment context,
see Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir.
1986), but the Supreme Court has not yet done so. See
Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have
never held that Bivens extends to First Amendment claims.”).
We consider both Ninth Circuit and Supreme Court precedent
in determining whether a claim arises in a new context. See
Lanuza, 899 F.3d at 1027; Vega v. United States, 881 F.3d
1146, 1153 (9th Cir. 2018). But the fact that the Supreme
Court has not previously recognized a Bivens claim in a
particular context is a powerful factor in determining whether
the context is new. “If the case is different in a meaningful
way from previous Bivens cases decided by this Court, then
the context is new.” Abbasi, 137 S. Ct. at 1859 (emphasis
added); see also Hernandez, 140 S. Ct. at 743 (citing this
language). We therefore conclude that Boule’s First
Amendment claim arises in a new context.
However, we find no special factors that counsel
hesitation in extending a Bivens remedy to this new context.
There is even less reason to hesitate in extending Bivens here
14 BOULE V. EGBERT
than in the context of Boule’s Fourth Amendment claim.
Retaliation is a well-established First Amendment claim,
available against governmental officers in general. It is also
quite unlike Boule’s Fourth Amendment claim. With respect
to that claim, Egbert can legitimately argue that his actions at
the inn were performed in connection with his official duties.
He cannot say the same thing here, for his retaliation had no
relation to, or justification based on, his duties as a border
patrol agent.
C. Existence of Alternative Remedies
Finally, we consider whether there are available
alternative remedies. When there are available alternative
remedies, “a Bivens remedy usually is not” available. Abbasi,
137 S. Ct. at 1863; see also Fazaga v. Federal Bureau of
Investigation, 965 F.3d 1015, 1057 (9th Cir. 2020)
(describing how we “will not recognize a Bivens claim where
there is any alternative, existing process for protecting the
plaintiff’s interests” (internal quotation marks omitted)). The
availability of alternative remedies “raises the inference that
Congress expected the Judiciary to stay its Bivens hand and
refrain from providing a new and freestanding remedy in
damages.” Fazaga, 965 F.3d at 1057 (internal quotation
marks omitted). We recognize that “[a]lternative remedial
structures can take many forms, including administrative,
statutory, equitable, and state law remedies.” Vega, 881 F.3d
at 1154 (internal quotation marks omitted). “[A]n alternative
remedy need not be perfectly congruent with Bivens or
perfectly comprehensive, [but] it still must be adequate.”
Rodriguez v. Swartz, 899 F.3d 719, 739 (9th Cir. 2018)
(internal quotation marks omitted), vacated on other grounds,
140 S. Ct. 1258.
BOULE V. EGBERT 15
The district court assumed without deciding that there was
no alternative remedy available to Boule. On appeal, Egbert
“merely mentions the possibility [of Boule being able to seek
a trespass claim], without fleshing it out with any citations to
[Washington] law. And it appears that the Westfall Act [Pub.
L. No. 100-694, 102 Stat. 4563 (1988)] would bar such a
claim.” Rodriguez, 899 F.3d at 741. Egbert also suggests
that a Federal Tort Claims Act (“FTCA”) remedy would be
available. However, the FTCA does not provide redress for
constitutional violations. See 28 U.S.C. § 2679(b)(2)(A)
(excluding the remedy provided in § 2679(b)(1) from
applying to “civil action[s] against an employee of the
Government…which [are] brought for a violation of the
Constitution of the United States”). Indeed, the Supreme
Court has explicitly refused to recognize the FTCA as a
substitute for a Bivens action. Carlson, 446 U.S. at 19–20
(recognizing a Bivens remedy even where the plaintiff may
have been eligible to recover under the FTCA). Therefore, it
appears that there are no alternative remedies available to
Boule.
Conclusion
We conclude that Bivens remedies are available in the
circumstances of this case, where a United States citizen
alleges that a border patrol agent violated the Fourth
Amendment by using excessive force while carrying out
official duties within the United States, and violated the First
Amendment by engaging in retaliation entirely unconnected
to his official duties. We reverse and remand for further
proceedings.
REVERSED and REMANDED.