Several recent Supreme Court decisions have made it practically impossible to sue a federal officer over alleged violations of constitutional rights. Now the Court has agreed to hear a case that could either slow this sorry trend or continue it.
The case is Egbert v. Boule. Robert Boule is the owner of a bed-and-breakfast in Washington state near the Canadian border. Border Patrol agent Erik Egbert sought to question one of Boule’s guests, a Turkish national, about his immigration status. Boule told the agent to get off of his property, but Egbert refused to leave. Egbert then allegedly shoved Boule against a car and pushed him to the ground, injuring his shoulder. After Boule complained to Egbert’s superiors, the agent allegedly retaliated by asking the IRS to investigate Boule. Boule was audited.
In Ziglar v. Abbasi (2017), for example, SCOTUS said that if a Bivens claim arises in a “new context”—meaning “the case is different in a meaningful way from previous Bivens cases decided by this Court”—then the presiding judge must search for any “special factors counselling hesitation.” If any such factor is found, the lawsuit against the federal officer must be tossed. “If we have reason to pause before applying Bivens in a new context or to a new class of defendants,” the Court emphasized in Hernandez v. Mesa (2020), “we reject the request.”