Egbert v. Boule

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 482–527
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 8, 2022
REBECCA A. WOMELDORF
reporter of decisions
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482 OCTOBER
TERM, 2021
Syllabus
EGBERT v. BOULE
certiorari
to the united states court of appeals for
the ninth circuit
No. 21–147. Argued March 2, 2022—Decided June 8, 2022
Respondent Robert Boule owns a bed-and-breakfast—the Smuggler's
Inn—in Blaine, Washington. The inn abuts the international border
between Canada and the United States. Boule at times helped federal
agents identify and apprehend persons engaged in unlawful cross-border
activity on or near his property. But Boule also would provide trans-
portation and lodging to illegal border crossers. Often, Boule would
agree to help illegal border crossers enter or exit the United States,
only to later call federal agents to report the unlawful activity.
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Patrol
agent, that a Turkish national, arriving in Seattle by way of New York,
had scheduled transportation to Smuggler's Inn. When Agent Egbert
observed one of Boule's vehicles returning to the inn, he suspected that
the Turkish national was a passenger and followed the vehicle to the
inn. On Boule's account, Boule asked Egbert to leave, but Egbert re-
fused, became violent, and threw Boule frst against the vehicle and then
to the ground. Egbert then checked the immigration paperwork for
Boule's guest and left after fnding everything in order. The Turkish
guest unlawfully entered Canada later that evening.
Boule fled a grievance with Agent Egbert's supervisors and an ad-
ministrative claim with Border Patrol pursuant to the Federal Tort
Claims Act (FTCA). Egbert allegedly retaliated against Boule by re-
porting Boule's “SMUGLER” license plate to the Washington Depart-
ment of Licensing for referencing illegal activity, and by contacting the
Internal Revenue Service and prompting an audit of Boule's tax returns.
Boule's FTCA claim was ultimately denied, and Border Patrol took no
action against Egbert for his use of force or alleged acts of retaliation.
Boule then sued Egbert in Federal District Court, alleging a Fourth
Amendment violation for excessive use of force and a First Amendment
violation for unlawful retaliation. Invoking Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388, Boule asked the District Court to
recognize a damages action for each alleged constitutional violation.
The District Court declined to extend Bivens as requested, but the
Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Boule's Fourth
Amendment excessive-force claim and First Amendment retaliation
claim. Pp. 490–502.

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483
Syllabus
(a) In Bivens, the Court held that it had authority to create a dam-
ages
action against federal agents for violating the plaintiff 's Fourth
Amendment rights. Over the next decade, the Court also fashioned
new causes of action under the Fifth Amendment, see Davis v. Pass-
man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green,
446 U. S. 14. Since then, however, the Court has come “to appreciate
more fully the tension between” judicially created causes of action and
“the Constitution's separation of legislative and judicial power,” Her-
nández v. Mesa, 589 U. S. –––, –––, and has declined 11 times to imply a
similar cause of action for other alleged constitutional violations, see,
e. g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367.
Rather than dispense with Bivens, the Court now emphasizes that rec-
ognizing a Bivens cause of action is “a disfavored judicial activity.”
Ziglar v. Abbasi, 582 U. S. 120, 135.
The analysis of a proposed Bivens claim proceeds in two steps: A
court asks frst whether the case presents “a new Bivens context”—i. e.,
is it “meaningful[ ly]” different from the three cases in which the Court
has implied a damages action, Ziglar, 582 U. S., at 139, and, second, even
if so, do “special factors” indicate that the Judiciary is at least arguably
less equipped than Congress to “weigh the costs and benefts of allowing
a damages action to proceed.” Id., at 136. This two-step inquiry often
resolves to a single question: whether there is any reason to think that
Congress might be better equipped to create a damages remedy. Fur-
ther, under the Court's precedents, a court may not fashion a Bivens
remedy if Congress already has provided, or has authorized the Execu-
tive to provide, “an alternative remedial structure.” Ziglar, 582 U. S.,
at 137. Pp. 490–493.
(b) The Court of Appeals conceded that Boule's Fourth Amendment
claim presented a new Bivens context, but its conclusion that there was
no reason to hesitate before recognizing a cause of action against Agent
Egbert was incorrect for two independent reasons. Pp. 493–498.
(1) First, the “risk of undermining border security provides reason
to hesitate before extending Bivens into this feld.” Hernández, 589
U. S., at –––. In Hernández, the Court declined to create a damages
remedy for an excessive-force claim against a Border Patrol agent be-
cause “regulating the conduct of agents at the border unquestionably
has national security implications.” Id., at –––. That reasoning ap-
plies with full force here. The Court of Appeals disagreed because it
viewed Boule's Fourth Amendment claim as akin to a “conventional”
excessive-force claim, as in Bivens, and less like the cross-border shoot-
ing in Hernández. But that does not bear on the relevant point: Per-
mitting suit against a Border Patrol agent presents national security
concerns that foreclose Bivens relief. Further, the Court of Appeals'
analysis betrays the pitfalls of applying the special-factors analysis at

484 EGBER
T v. BOULE
Syllabus
too granular a level. A court should not inquire whether Bivens relief
is
appropriate in light of the balance of circumstances in the “particular
case.” United States v. Stanley, 483 U. S. 669, 683. Rather, it should
ask “[m]ore broadly” whether there is any reason to think that “judicial
intrusion” into a given feld might be “harmful” or “inappropriate,”
id., at 681. The proper inquiry here is whether a court is competent
to author i ze a damages ac ti on not just agai nst Agent Egber t,
but agai nst Border Patrol agents genera l ly. The answer is no.
Pp. 494–497.
(2) Second, Congress has provided alternative remedies for ag-
grieved parties in Boule's position that independently foreclose a Bivens
action here. By regulation, Border Patrol must investigate “[a]lleged
v i olati ons” and accept gr ievances from “ [a]ny persons. ” 8 CFR
§§ 287.10(a)–(b). Boule claims that this regulatory grievance procedure
was inadequate, but this Court has never held that a Bivens alternative
must afford rights such as judicial review of an adverse determination.
Bivens “is concerned solely with deterring the unconstitutional acts of
individual offcers.” Correctional Services Corp. v. Malesko, 534 U. S.
61, 71. And, regardless, the question whether a given remedy is ade-
quate is a legislative determination. As in Hernández, this Court has
no warrant to doubt that the consideration of Boule's grievance secured
adequate deterrence and afforded Boule an alternative remedy. See
589 U. S., at –––. Pp. 497–498.
(c) There is no Bivens cause of action for Boule's First Amendment
retaliation claim. That claim presents a new Bivens context, and there
are many reasons to think that Congress is better suited to authorize a
damages remedy. Extending Bivens to alleged First Amendment vio-
lations would pose an acute “risk that fear of personal monetary liability
and harassing litigation will unduly inhibit offcials in the discharge of
their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In light of
these costs, “Congress is in a better position to decide whether or not
the public interest would be served” by imposing a damages action.
Bush, 462 U. S., at 390. The Court of Appeals' reasons for extending
Bivens in this context—that retaliation claims are “well-established”
and that Boule alleges that Agent Egbert “was not carrying out offcial
duties” when the retaliation occurred—lack merit. Also lacking merit
is Boule's claim that this Court identifed a Bivens cause of action under
allegedly similar circumstances in Passman. Even assuming factual
parallels, Passman carries little weight because it predates the Court's
current approach to implied causes of action. A plaintiff cannot justify
a Bivens extension based on “parallel circumstances” with Bivens, Pass-
man, or Carlson—the three cases in which the Court has implied a
damages action—unless the plaintiff also satisfes the prevailing “ana-
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485
Syllabus
lytic framework” prescribed by the last four decades of intervening case
law
. Ziglar, 582 U. S., at 139. Pp. 498–501.
998 F. 3d 370, reversed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., fled an
opinion concurring in the judgment, post, p. 502. Sotomayor, J., fled an
opinion concurring in the judgment in part and dissenting in part, in which
Breyer and Kagan, JJ., joined, post, p. 504.
Sarah M. Harris argued the cause for petitioner. With
her on the briefs were Lisa S. Blatt and Geoff Grindeland.
Michael R. Huston argued the cause for the United States
as amicus curiae supporting petitioner. With him on the
brief were Solicitor General Prelogar, Acting Assistant At-
torney General Boynton, Deputy Solicitor General Gannon,
Barbara L. Herwig, Jaynie Lilley, and Mary Hampton
Mason.
Felicia H. Ellsworth argued the cause for respondent.
With her on the brief were Mark C. Fleming, W. Scott Rail-
ton, and Ruth E. Vinson.*
*Briefs of amici curiae urging reversal were fled for the Immigration
Reform Law Institute by Lawrence J. Joseph and Christopher J. Hajec;
for the Independent Women's Law Center by John M. Masslon II; for the
National Border Patrol Council by Jim E. Calle and Amy B. Krauss; for
the National ICE Council by Michael L. Rains and Michael A. Morguess;
for Former United States Attorneys John D. Ashcroft et al. by Steven A.
Engel, Michael H. McGinley, and Eric D. Hageman; and for Jennifer L.
Mascott by R. Trent McCotter.
Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by Cecillia D. Wang, Cody Wofsy, David D.
Cole, Jennesa Calvo-Friedman, Omar C. Jadwat, Steven S. Sparling,
Jeffrey L. Braun, John Midgley, and Nancy Talner; for the Constitutional
Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, and
David H. Gans; for the Council on American-Islamic Relations et al. by
Lena F. Masri, Justin Sadowsky, and John S. Friend; for the DKT Lib-
erty Project et al. by Theane Evangelis; for the Foundation for Individual
Rights in Education by Darpana Sheth; for the Institute for Justice by
Patrick Jaicomo and Anya Bidwell; for the National Police Accountability
Project by Melanie L. Bostwick and Joseph R. Kolker; for the Project for
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486 EGBER
T v. BOULE
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
In
Bivens v. Six Unknown Fed. Narcotics Agents, 403
U. S. 388 (1971), this Court authorized a damages action
against federal offcials for alleged violations of the Fourth
Amendment. Over the past 42 years, however, we have de-
clined 11 times to imply a similar cause of action for other
alleged constitutional violations. See Chappell v. Wallace,
462 U. S. 296 (1983); Bush v. Lucas, 462 U. S. 367 (1983);
United States v. Stanley, 483 U. S. 669 (1987); Schweiker v.
Chilicky, 487 U. S. 412 (1988); FDIC v. Meyer, 510 U. S. 471
(1994); Correctional Services Corp. v. Malesko, 534 U. S. 61
(2001); Wilkie v. Robbins, 551 U. S. 537 (2007); Hui v.
Castaneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565
U. S. 118 (2012); Ziglar v. Abbasi, 582 U. S. 120 (2017); Her-
nández v. Mesa, 589 U. S. ––– (2020). Nevertheless, the
Court of Appeals permitted not one, but two constitutional
damages actions to proceed against a U. S. Border Patrol
agent: a Fourth Amendment excessive-force claim and a
First Amendment retaliation claim. Because our cases have
made clear that, in all but the most unusual circumstances,
prescribing a cause of action is a job for Congress, not the
courts, we reverse.
I
Blaine, Washington, is the last town in the United States
along U. S. Interstate Highway 5 before reaching the Cana-
dian border. Respondent Robert Boule is a longtime Blaine
resident. The rear of his property abuts the Canadian bor-
der at “0 Avenue,” a Canadian street. Boule's property line
actually extends fve feet into Canada. Several years ago,
Privacy & Surveillance Accountability et al. by Gene C. Schaerr, Erik S.
Jaffe, Hannah C. Smith, and Kathryn E. Tarbert; for the Reporters Com-
mittee for Freedom of the Press et al. by Bruce D. Brown; and for Roy
Sargeant by R. Stanton Jones and Andrew T. Tutt.
David M. Zionts, Samuel Weiss, and Oren Nimni fled a brief for Dee
Farmer et al. as amici curiae.
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as: 596 U. S. 482 (2022)
487
Opinion of the Court
Boule placed a line of small stones on his property to mark
the
international boundary. As shown below, any person
could easily enter the United States or Canada through or
near Boule's property. See App. 100.
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Boule markets his home as a bed-and-breakfast aptly
named “Smuggler's Inn.” The area surrounding the Inn “is
a hotspot for cross-border smuggling of people, drugs, illicit
money, and items of signifcance to criminal organizations.”
Id., at 91. “On numerous occasions,” U. S. Border Patrol
agents “have observed persons come south across the border
and walk into Smuggler's Inn through the back door.” Id.,
at 101. Federal agents also have seized from the Inn ship-
ments of cocaine, methamphetamine, ecstasy, and other nar-
cotics. For a time, Boule served as a confdential informant
who would help federal agents identify and apprehend per-
sons engaged in unlawful cross-border activity on or near his
property. Boule claims that the Government has paid him
upwards of $60,000 for his services.
Ever the entrepreneur, Boule saw his relationship with
Border Patrol as a business opportunity. Boule would host
persons who unlawfu l ly entered the United St ates as
“guests” at the Inn and offer to drive them to Seattle or

488 EGBER
T v. BOULE
Opinion of the Court
elsewhere. He also would pick up Canada-bound guests
throughout
the State and drive them north to his property
along the border. Either way, Boule would charge $100–
$150 per hour for his shuttle service and require guests to
pay for a night of lodging even if they never intended to
stay at the Inn. Meanwhile, Boule would inform federal law
enforcement if he was scheduled to lodge or transport per-
sons of interest. In short order, Border Patrol agents would
arrive to arrest the guests, often within a few blocks of the
Inn. Boule would decline to offer his erstwhile customers a
refund. In his view, this practice was “nothing any different
than [the] normal policies of any hotel/motel.” Id., at 120.
1
In light of Boule's business model, local Border Patrol
agents, including petitioner Erik Egbert, were well ac-
quainted with Smuggler's Inn and the criminal activity that
attended it. On March 20, 2014, Boule informed Agent Eg-
bert that a Turkish national, arriving in Seattle by way of
New York, had scheduled transportation to Smuggler's Inn
later that day. Agent Egbert grew suspicious, as he could
think of “no legitimate reason a person would travel from
Turkey to stay at a rundown bed-and-breakfast on the bor-
der in Blaine.” Id., at 104. The photograph below displays
the amenities for which Boule's Turkish guest would have
traveled more than 7,500 miles. See id., at 102.
1
Notwithstanding his defense of the Inn's policies, Boule was recently
convicted in Canadian court for engaging in human traffcking. In De-
cember 2021, he pleaded guilty to traffcking 11 Afghanis and Syrians into
Canada. He billed each foreign national between $200 and $700 for the
trip. See Regina v. Boule, 2021 BCSC 2561, ¶¶7–11.
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Opinion of the Court
Later that afternoon, Agent Egbert observed one of
Boule's veh icles—a black SUV w ith the l icense plate‚
“SMUGLER”—returning to the Inn. Agent Egbert sus-
pected that Boule's Turkish guest was a passenger and fol-
lowed the SUV into the driveway so he could check the
guest's immigration status. On Boule's account, the situa-
tion escalated from there. Boule instructed Agent Egbert
to leave his property, but Agent Egbert declined. Instead,
Boule claims, Agent Egbert lifted him off the ground and
threw him against the SUV. After Boule collected himself,
Agent Egbert allegedly threw him to the ground. Agent
Egbert then checked the guest's immigration paperwork,
concluded that everything was in order, and left. Later that
evening, Boule's Turkish guest unlawfully entered Canada
from Smuggler's Inn.
Boule lodged a grievance with Agent Egbert's supervisors,
alleging that Agent Egbert had used excessive force and
caused him physical injury. Boule also fled an administra-
tive claim with Border Patrol pursuant to the Federal Tort
Claims Act (FTCA). See 28 U. S. C. § 2675(a). According
to Boule, Agent Egbert retaliated against him while those
claims were pending by reporting Boule's “SMUGLER” li-
cense plate to the Washington Department of Licensing for
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490 EGBER
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Opinion of the Court
referencing illegal conduct, and by contacting the Internal
Re
venue Service and prompting an audit of Boule's tax re-
turns. Ultimately, Boule's FTCA claim was denied and,
after a year-long investigation, Border Patrol took no action
against Agent Egbert for his alleged use of force or acts of
retaliation. Thereafter, Agent Egbert continued to serve as
an active-duty Border Patrol agent.
In January 2017, Boule sued Agent Egbert in his individ-
ual capacity in Federal District Court, alleging a Fourth
Amendment violation for excessive use of force and a First
Amendment violation for unlawful retaliation. Boule in-
voked Bivens and asked the District Court to recognize a
damages action for each alleged constitutional violation.
The District Court declined to extend a Bivens remedy to
Boule's claims and entered judgment for Agent Egbert.
The Court of Appeals reversed. See 998 F. 3d 370, 385 (CA9
2021). Twelve judges dissented from the denial of rehearing
en banc. See id., at 373 (Bumatay, J., dissenting); id., at 384
(Owens, J., dissenting); ibid. (Bress, J., dissenting).
We granted certiorari. 595 U. S. ––– (2021).
II
In Bivens, the Court held that it had authority to create
“a cause of action under the Fourth Amendment” against
federal agents who allegedly manacled the plaintiff and
threatened his family while arresting him for narcotics viola-
tions. 403 U. S., at 397. Although “the Fourth Amendment
does not in so many words provide for its enforcement by an
award of money damages,” id., at 396, the Court “held that it
could authorize a remedy under general principles of federal
jurisdiction,” Ziglar, 582 U. S., at 131 (citing Bivens, 403
U. S., at 392). Over the following decade, the Court twice
again fashioned new causes of action under the Constitu-
tion—frst, for a former congressional staffer's Fifth Amend-
ment sex-discr i mi nati on clai m, see Da v is v. Passman,
442 U. S. 228 (1979); and second, for a federal prisoner's
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Opinion of the Court
inadequate-care claim under the Eighth Amendment, see
C
arlson v. Green, 446 U. S. 14 (1980).
Since these cases, the Court has not implied additional
causes of action under the Constitution. Now long past “the
heady days in which this Court assumed common-law powers
to create causes of action,” Malesko, 534 U. S., at 75 (Scalia,
J., concurring), we have come “to appreciate more fully the
tension between” judicially created causes of action and “the
Constitution's separation of legislative and judicial power,”
Hernández, 589 U. S., at –––. At bottom, creating a cause
of action is a legislative endeavor. Courts engaged in that
unenviable task must evaluate a “range of policy considera-
tions . . . at least as broad as the range . . . a legislature
would consider.” Bivens, 403 U. S., at 407 (Harlan, J., con-
curring in judgment); see also post, at 503 (Gorsuch, J.,
concurring in judgment). Those factors include “economic
and governmental concerns,” “administrative costs,” and the
“impact on governmental operations systemwide.” Ziglar,
582 U. S., at 134, 136. Unsurprisingly, Congress is “far more
competent than the Judiciary” to weigh such policy consider-
ations. Schweiker, 487 U. S., at 423. And the Judiciary's
authority to do so at all is, at best, uncertain. See, e. g.,
Hernández, 589 U. S., at –––.
Nonetheless, rather than dispense with Bivens altogether,
we have emphasized that recognizing a cause of action under
Bivens is “a disfavored judicial activity.” Ziglar, 582 U. S.,
at 135 (internal quotation marks omitted); Hernández, 589
U. S., at ––– (internal quotation marks omitted). When
asked to imply a Bivens action, “our watchword is caution.”
Herna ́ ndez, 589 U. S., at –––. “[I]f there are sound reasons
to think Congress might doubt the effcacy or necessity of a
damages remedy[,] the courts must refrain from creating
[it].” Ziglar, 582 U. S., at 137. “[E]ven a single sound rea-
son to defer to Congress” is enough to require a court to
refrain from creating such a remedy. Nestlé USA, Inc. v.
Doe, 593 U. S. –––, ––– (2021) (plurality opinion). Put an-
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Opinion of the Court
other way, “the most important question is who should de-
cide
whether to provide for a damages remedy, Congress or
the courts?” Hernández, 589 U. S., at ––– – ––– (internal
quotation marks omitted). If there is a rational reason to
think that the answer is “Congress”—as it will be in most
every case, see Ziglar, 582 U. S., at 135 —no Bivens action
may lie. Our cases instruct that, absent utmost deference
to Congress' preeminent authority in this area, the courts
“arrogat[e] legislative power.” Hernández, 589 U. S., at –––.
To inform a court's analysis of a proposed Bivens claim,
our cases have framed the inquiry as proceeding in two
steps. See Hernández, 589 U. S., at –––. First, we ask
whether the case presents “a new Bivens context”—i. e., is
it “meaningful[ly]” different from the three cases in which
the Court has implied a damages action. Ziglar, 582 U. S.,
at 139. Second, if a claim arises in a new context, a Bivens
remedy is unavailable if there are “special factors” indicating
that the Judiciary is at least arguably less equipped than
Congress to “weigh the costs and benefts of allowing a dam-
ages action to proceed.” Ziglar, 582 U. S., at 136 (internal
quotation marks omitted). If there is even a single “reason
to pause before applying Bivens in a new context,” a court
may not recognize a Bivens remedy. Hernández, 589 U. S.,
at –––.
While our cases describe two steps, those steps often re-
solve to a single question: whether there is any reason to
think that Congress might be better equipped to create a
damages remedy. For example, we have explained that a
new context arises when there are “potential special factors
that previous Bivens cases did not consider.” Ziglar, 582
U. S., at 140. And we have identifed several examples of
new contexts—e. g., a case that involves a “new category of
defendants,” Malesko, 534 U. S., at 68; see also Ziglar, 582
U. S., at 135–136 —largely because they represent situations
in which a court is not undoubtedly better positioned than
Congress to create a damages action. We have never of-
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Opinion of the Court
fered an “exhaustive” accounting of such scenarios, however,
because
no court could forecast every factor that might
“counse[l] hesitation.” Id., at 143. Even in a particular
case, a court likely cannot predict the “systemwide” conse-
quences of recognizing a cause of action under Bivens.
Ziglar, 582 U. S., at 136. That uncertainty alone is a special
factor that forecloses relief. See Hernández v. Mesa, 885
F. 3d 811, 818 (CA5 2018) (en banc) (“The newness of this
`new context' should alone require dismissal”).
Finally, our cases hold that a court may not fashion a
Bivens remedy if Congress already has provided, or has au-
thorized the Executive to provide, “an alternative remedial
structure.” Ziglar, 582 U. S., at 137; see also Schweicker,
487 U. S., at 425. If there are alternative remedial struc-
tures in place, “that alone,” like any special factor, is reason
enough to “limit the power of the Judiciary to infer a new
Bivens cause of action.” Ziglar, 582 U. S., at 137.
2
Impor-
tantly, the relevant question is not whether a Bivens action
would “disrup[t]” a remedial scheme, Schweicker, 487 U. S.,
at 426, or whether the court “should provide for a wrong that
would otherwise go unredressed,” Bush, 462 U. S., at 388.
Nor does it matter that “existing remedies do not provide
complete relief.” Ibid. Rather, the court must ask only
whether it, rather than the political branches, is better
equipped to decide whether existing remedies “should be
augmented by the creation of a new judicial remedy.” Ibid;
see also id., at 380 (“the question [is] who should decide”).
III
Applying the foregoing principles, the Court of Appeals
plainly erred when it created causes of action for Boule's
2
Congress also may preclude a claim under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971), against federal offcers if it
affrmatively forecloses one. “Even in circumstances in which a Bivens
remedy is generally available, an action under Bivens will be defeated if
the defendant is immune from suit,” Hui v. Castaneda, 559 U. S. 799, 807
(2010), and Congress may grant such immunity as it sees ft.
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494 EGBER
T v. BOULE
Opinion of the Court
Fourth Amendment excessive-force claim and First Amend-
ment
retaliation claim.
A
The Cour t of Appea ls conceded that Bou le's Four th
Amendment claim presented a new context for Bivens pur-
poses, yet it concluded there was no reason to hesitate before
recognizing a cause of action against Agent Egbert. See
998 F. 3d, at 387. That conclusion was incorrect for two in-
dependent reasons: Congress is better positioned to create
remedies in the border-security context, and the Govern-
ment already has provided alternative remedies that protect
plaintiffs like Boule. We address each in turn.
1
In Hernández, we declined to create a damages remedy
for an excessive-force claim against a Border Patrol agent
who shot and killed a 15-year-old Mexican national across
the border in Mexico. See 589 U. S., at ––– – –––. We did
not recognize a Bivens action there because “regulating the
conduct of agents at the border unquestionably has national
security implications,” and the “risk of undermining border
security provides reason to hesitate before extending Bivens
into this feld.” Hernández, 589 U. S., at –––. This reason-
ing applies here with full force. During the alleged alterca-
tion with Boule, Agent Egbert was carrying out Border Pa-
trol's mandate to “interdic[t] persons attempting to illegally
enter or exit the United States or goods being illegally im-
ported into or exported from the United States.” 6 U. S. C.
§ 211(e)(3)(A). Because “[m]atters intimately related to for-
eign policy and national security are rarely proper subjects
for judicial intervention,” Haig v. Agee, 453 U. S. 280, 292
(1981), we reaffrm that a Bivens cause of action may not lie
where, as here, national security is at issue.
The Court of Appeals thought otherwise. In its view,
Boule's Fourth Amendment claim is “conventional,” 998
F. 3d, at 387; see also post, at 511–512, 515 (Sotomayor, J.,
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concurring in judgment in part and dissenting in part), and,
though
it arises in a new context, this Court has not “ `cast
doubt' ” on extending Bivens within the “ `common and re-
current sphere of law enforcement' ” in which it arose, 998
F. 3d, at 389 (quoting Ziglar, 582 U. S., at 134). While
Bivens and this case do involve similar allegations of exces-
sive force and thus arguably present “almost parallel circum-
stances” or a similar “mechanism of injury,” Ziglar, 582 U. S.,
at 139, these superfcial similarities are not enough to sup-
port the judicial creation of a cause of action. The special-
factors inquiry—which Bivens never meaningfully under-
took, see Stanley, 483 U. S., at 678—shows here, no less than
in Hernández, that the Judiciary is not undoubtedly better
positioned than Congress to authorize a damages action in
this national-security context. That this case does not in-
volve a cross-border shooting, as in Hernández, but rather a
more “conventional” excessive-force claim, as in Bivens, does
not bear on the relevant point. Either way, the Judiciary is
comparatively ill suited to decide whether a damages remedy
against any Border Patrol agent is appropriate.
The Court of Appeals downplayed the national-security
risk from imposing Bivens liability because Agent Egbert
was not “literally `at the border,' ” and Boule's guest already
had cleared customs in New York. 998 F. 3d, at 388; see also
post, at 514–515, 520–521 (opinion of Sotomayor, J.). The
court also found that Boule had a weightier interest in
Bivens relief than the parents of the deceased Mexican teen-
ager in Hernández, because Boule “is a United States citizen,
complaining of harm suffered on his own property in the
United States.” 998 F. 3d, at 388; see also post, at 515, 520–
521 (opinion of Sotomayor, J.). Finding that “any costs
imposed by allowing a Bivens claim to proceed are out-
weighed by compelling interests in favor of protecting
United States citizens on their own property in the United
States,” the court extended Bivens to Boule's case. 998
F. 3d, at 389.
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This analysis is deeply fawed. The Bivens inquiry does
not
invite federal courts to independently assess the costs
and benefts of implying a cause of action. A court faces
only one question: whether there is any rational reason (even
one) to think that Congress is better suited to “weigh the
costs and benefts of allowing a damages action to proceed.”
Ziglar, 582 U. S., at 136. Thus, a court should not inquire,
as the Court of Appeals did here, whether Bivens relief is
appropriate in light of the balance of circumstances in the
“particular case.” Stanley, 483 U. S., at 683. A court inevi-
tably will “impai[r]” governmental interests, and thereby
frustrate Congress' policymaking role, if it applies the “ `spe-
cial factors' analysis” at such a narrow “leve[l] of generality.”
Id., at 681. Rather, under the proper approach, a court must
ask “[m]ore broadly” if there is any reason to think that “ju-
dicial intrusion” into a given feld might be “harmful” or “in-
appropriate.” Ibid. If so, or even if there is the “poten-
tial” for such consequences, a court cannot afford a plaintiff
a Bivens remedy. Ziglar, 582 U. S., at 140, 148 (emphasis
added). As in Hernández, then, we ask here whether a
court is competent to authorize a damages action not just
against Agent Egbert but against Border Patrol agents gen-
erally. The answer, plainly, is no. See Hernández, 589
U. S., at ––– (refusing to extend Bivens into the “feld” of
“border security”).
The Court of Appeals' analysis betrays the pitfalls of
applying the special-factors analysis at too granular a level.
The court rested on three irrelevant distinctions from Her-
nández. First, Agent Egbert was several feet from (rather
than straddling) the border, but cross-border security is ob-
viously implicated in either event. Second, Boule's guest ar-
rived in Seattle from New York rather than abroad, but an
alien's port of entry does not make him less likely to be a
national-security threat. And third, Agent Egbert investi-
gated immigration violations on our side of the border, not
Canada's, but immigration investigations in this country are
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perhaps more likely to impact the national security of the
U
nited States. In short, the Court of Appeals offered no
plausible basis to permit a Fourth Amendment Bivens claim
against Agent Egbert to proceed.
2
Second, Congress has provided alternative remedies for
aggrieved parties in Boule's position that independently fore-
close a Bivens action here. In Hernández, we declined to
authorize a Bivens remedy, in part, because the Executive
Branch already had investigated alleged misconduct by the
defendant Border Patrol agent. See 589 U. S., at ––– – –––,
–––. In Malesko, we explained that Bivens relief was un-
available because federal prisoners could, among other op-
tions, fle grievances through an “Administrative Remedy
Program.” 534 U. S., at 74. Both kinds of remedies are
available here. The U. S. Border Patrol is statutorily obli-
gated to “control, direc[t], and supervis[e] . . . all employees.”
8 U. S. C. § 1103(a)(2). And, by regulation, Border Patrol
must investigate “[a]lleged violations of the standards for en-
forcement activities” and accept grievances from “[a]ny per-
sons wishing to lodge a complaint.” 8 CFR §§ 287.10(a)–(b)
(2021). As noted, Boule took advantage of this grievance
procedure, prompting a year-long internal investigation into
Agent Egbert's conduct. See supra, at 489–490.
Boule nonetheless contends that Border Patrol's grievance
process is inadequate because he is not entitled to participate
and has no right to judicial review of an adverse determina-
tion.
3
But we have never held that a Bivens alternative
3
Boule also argues that Agent Egbert forfeited any argument about
Border Patrol's grievance process because he did not raise the issue in the
Court of Appeals. We disagree. Because recognizing a Bivens cause of
action “is an extraordinary act that places great stress on the separation
of powers,” Nestlé USA, Inc. v. Doe, 593 U. S. –––, ––– (2021) (plurality
opinion), we have “a concomitant responsibility” to evaluate any grounds
that counsel against Bivens relief, Oliva v. Nivar, 973 F. 3d 438, 443, n. 2
(CA5 2020); see also Elhady v. Unidentifed CBP Agents, 18 F. 4th
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must afford rights to participation or appeal. That is so be-
cause
Bivens “is concerned solely with deterring the uncon-
stitutional acts of individual offcers”—i. e., the focus is
whether the Government has put in place safeguards to “pre-
ven[t]” constitutional violations “from recurring.” Malesko,
534 U. S., at 71, 74; see also Meyer, 510 U. S., at 485. And,
again, the question whether a given remedy is adequate is a
legislative determination that must be left to Congress, not
the federal courts. So long as Congress or the Executive
has created a remedial process that it fnds suffcient to se-
cure an adequate level of deterrence, the courts cannot
second-guess that calibration by superimposing a Bivens
remedy. That is true even if a court independently con-
cludes that the Government's procedures are “not as effec-
tive as an individual damages remedy.” Bush, 462 U. S., at
372. Thus here, as in Hernández, we have no warrant to
doubt that the consideration of Boule's grievance against
Agent Egbert secured adequate deterrence and afforded
Boule an alternative remedy. See 589 U. S., at –––.
B
We also conclude that there is no Bivens cause of action
for Boule's First Amendment retaliation claim. While we
have assumed that such a damages action might be available,
see, e. g., Hartman v. Moore, 547 U. S. 250, 252 (2006), “[w]e
have never held that Bivens extends to First Amendment
claims,” Reichle v. Howards, 566 U. S. 658, 663, n. 4 (2012).
Because a new context arises when there is a new “constitu-
tional right at issue,” Ziglar, 582 U. S., at 140, the Court of
Appeals correctly held that Boule's First Amendment claim
presents a new Bivens context. See 998 F. 3d, at 390. Now
presented with the question whether to extend Bivens to
880, 884 (CA6 2021). And, in any event, Agent Egbert has consistently
claimed that alternative remedies foreclose applying Bivens in this case.
Thus, under our precedents, he is “not limited to the precise arguments
[he] made below.” Yee v. Escondido, 503 U. S. 519, 534 (1992).
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this context, we hold that there is no Bivens action for First
Amendment
retaliation. There are many reasons to think
that Congress, not the courts, is better suited to authorize
such a damages remedy.
Recognizing any new Bivens action “entail[s] substantial
social costs, including the risk that fear of personal monetary
liability and harassing litigation will unduly inhibit offcials
in the discharge of their duties.” Anderson v. Creighton,
483 U. S. 635, 638 (1987). Extending Bivens to alleged First
Amendment violations would pose an acute risk of increasing
such costs. A plaintiff can turn practically any adverse ac-
tion into grounds for a retaliation claim. And, “[b]ecause an
offcial's state of mind is easy to allege and hard to disprove,
insubstantial claims that turn on [retaliatory] intent may
be less amenable to summary disposition.” Crawford-El v.
Britton, 523 U. S. 574, 584–585 (1998) (internal quotation
marks omitted). Even a frivolous retaliation claim “threat-
en[s] to set off broad-ranging discovery in which there is
often no clear end to the relevant evidence.” Nieves v.
Bartlett, 587 U. S. –––, ––– (2019) (internal quotation marks
omitted).
“[U]ndoubtedly,” then, the “prospect of personal liability”
under the First Amendment would lead “to new diffculties
and expense.” Schweiker, 487 U. S., at 425. Federal em-
ployees “face[d with] the added risk of personal liability for
decisions that they believe to be a correct response to im-
proper [activity] would be deterred from” carrying out their
duties. Bush, 462 U. S., at 389. We are therefore “con-
vinced” that, in light of these costs, “Congress is in a better
position to decide whether or not the public interest would
be served” by imposing a damages action. Id., at 390.
The Court of Appeals nonetheless extended Bivens to the
First Amendment because, in its view, retaliation claims are
“well-established,” and Boule alleges that Agent Egbert
“was not carrying out offcial duties” when he retaliated
against him. 998 F. 3d, at 391. Neither rationale has merit.
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First, just because plaintiffs often plead unlawful retaliation
to
establish a First Amendment violation is not a reason to
afford them a cause of action to sue federal offcers for money
damages. If anything, that retaliation claims are common,
and therefore more likely to impose “a signifcant expansion
of Government liability,” Meyer, 510 U. S., at 486, counsels
against permitting Bivens relief.
Second, the Court of Appeals' scope-of-duty observation
does not meaningfully limit the number of potential Bivens
claims or otherwise undermine the reasons for hesitation
stated above. It is easy to allege that federal employees
acted beyond the scope of their authority when claiming a
constitutional violation. And, regardless, granting Bivens
relief because a federal agent supposedly did not act pursu-
ant to his law-enforcement mission “misses the point.” Her-
nández, 589 U. S., at –––. “The question is not whether
national security,” or some other governmental interest, ac-
tually “requires [the defendant's] conduct.” Ibid. Instead,
we ask “whether the Judiciary should alter the framework
established by the political branches for addressing ” any
such conduct that allegedly violates the Constitution. Ibid.
With respect to that question, the foregoing discussion shows
that the Judiciary is ill equipped to alter that framework
generally, and especially so when it comes to First Amend-
ment claims.
Boule responds that any hesitation is unwarranted because
this Court in Passman already identifed a Bivens cause of
action under allegedly similar circumstances. There, the
Court permitted a congressional staffer to sue a congress-
man for sex discrimination under the Fifth Amendment.
See 442 U. S., at 231. In Boule's view, Passman, like this
case, permitted a damages action to proceed even though it
required the factfnder to probe a federal offcial's motives
for taking an adverse action against the plaintiff.
Even assuming the factual parallels are as close as Boule
claims, Passman carries little weight because it predates our
current approach to implied causes of action and diverges
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Opinion of the Court
from the prevailing framework in three important ways.
First,
the Passman Court concluded that a Bivens action
must be available if there is “no effective means other than
the judiciary to vindicate” the purported Fifth Amendment
right. 442 U. S., at 243; see also Carlson, 446 U. S., at 18–
19 (Congress can foreclose Bivens relief by “provid[ing] an
alternative remedy which it explicitly declared to be a sub-
stitute for recovery directly under the Constitution and
viewed as equally effective”). Since then, however, we have
explained that the absence of relief “does not by any means
necessarily imply that courts should award money damages.”
Schweiker, 487 U. S., at 421. Second, Passman indicated
that a damages remedy is appropriate unless Congress “ex-
plicit[ly]” declares that a claimant “may not recover money
damages.” 442 U. S., at 246–247 (internal quotation marks
omitted; emphasis deleted). Now, though, we defer to “con-
gressional inaction” if “the design of a Government program
suggests that Congress has provided what it considers ade-
quate remedial mechanisms.” Schweiker, 487 U. S., at 423;
see also Ziglar, 582 U. S., at 137. Third, when assessing the
“special factors,” Passman asked whether a court is compe-
tent to calculate damages “without diffcult questions of val-
uation or causation.” 442 U. S., at 245. But today, we do
not ask whether a court can determine a damages amount.
Rather, we ask whether “there are sound reasons to think
Congress might doubt the effcacy or necessity of a damages
remedy” at all. Ziglar, 582 U. S., at 137.
In short, as we explained in Ziglar, a plaintiff cannot jus-
tify a Bivens extension based on “parallel circumstances”
with Bivens, Passman, or Carlson unless he also satisfes
the “analytic framework” prescribed by the last four decades
of intervening case law. 582 U. S., at 139. Boule has failed
to do so.
IV
Since it was decided, Bivens has had no shortage of de-
tractors. See, e. g., Bivens, 403 U. S., at 411 (Burger, C. J.,
dissenting); id., at 427 (Black, J., dissenting); id., at 430
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Gorsuch, J., concurring in judgment
(Blackmun, J., dissenting); Carlson, 446 U. S., at 31 (Rehn-
quist,
J., dissenting); Malesko, 534 U. S., at 75 (Scalia, J., con-
curring); Hernández, 589 U. S., at ––– (Thomas, J., concur-
ring); post, at 502–504 (opinion of Gorsuch, J.). And, more
recently, we have indicated that if we were called to decide
Bivens today, we would decline to discover any implied
causes of action in the Constitution. See Ziglar, 582 U. S.,
at 134. But, to decide the case before us, we need not recon-
sider Bivens itself. Accordingly, we reverse the judgment
of the Court of Appeals.
It is so ordered.
Justice Gorsuch, concurring in the judgment.
Our Constitution's separation of powers prohibits federal
courts from assuming legislative authority. As the Court
today acknowledges, Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 (1971), crossed that line by “impl[y-
ing]” a new set of private rights and liabilities Congress
never ordained. Ante, at 491; see also Alexander v. Sando-
val, 532 U. S. 275, 286 (2001); Nestlé USA, Inc. v. Doe, 593
U. S. –––, ––– – ––– (2021) (Gorsuch, J., concurring).
Recognizing its misstep, this Court has struggled for dec-
ades to fnd its way back. Initially, the Court told lower
courts to follow a “two ste[p]” inquiry before applying Bi-
vens to any new situation. Ante, at 492. At the frst step,
a court had to ask whether the case before it presented a
“new context” meaningfully different from Bivens. Ante, at
492. At the second, a court had to consider whether “ `special
factors' ” counseled hesitation before recognizing a new cause
of action. Ibid. But these tests soon produced their own
set of questions: What distinguishes the frst step from the
second? What makes a context “new” or a factor “special”?
And, most fundamentally, on what authority may courts rec-
ognize new causes of action even under these standards?
Today, the Court helpfully answers some of these lingering
questions. It recognizes that our two-step inquiry really
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Gorsuch, J., concurring in judgment
boils down to a “single question”: Is there “any reason to
th
ink that Congress might be better equipped” than a court
to “ `weigh the costs and benefts of allowing a damages ac-
tion to proceed' ”? Ibid.; see Ziglar v. Abbasi, 582 U. S. 120,
136 (2017). But, respectfully, resolving that much only serves
to highlight the larger remaining question: When might a
court ever be “better equipped” than the people's elected rep-
resentatives to weigh the “costs and benefts” of creating a
cause of action?
It seems to me that to ask the question is to answer it.
To create a new cause of action is to assign new private
rights and liabilities—a power that is in every meaningful
sense an act of legislation. See Sandoval, 532 U. S., at 286–
287; Nestlé, 593 U. S., at ––– (Gorsuch, J., concurring);
Jesner v. Arab Bank, PLC, 584 U. S. –––, ––– (2018) (Gor-
such, J., concurring in part and concurring in judgment). If
exercising that sort of authority may once have been a
“ `proper function for common-law courts' ” in England, it is
no longer generally appropriate “ `for federal tribunals' ” in a
republic where the people elect representatives to make the
rules that govern them. Sandoval, 532 U. S., at 287.
Weighing the costs and benefts of new laws is the bread and
butter of legislative committees. It has no place in federal
courts charged with deciding cases and controversies under
existing law.
Instead of saying as much explicitly, however, the Court
proceeds on to conduct a case-specifc analysis. And there
I confess diffculties. The plaintiff is an American citizen
who argues that a federal law enforcement offcer violated
the Fourth Amendment in searching the curtilage of his
home. Candidly, I struggle to see how this set of facts dif-
fers meaningfully from those in Bivens itself. To be sure,
as the Court emphasizes, the episode here took place near
an international border and the offcer's search focused on
violations of the immigration laws. But why does that mat-
ter? The Court suggests that Fourth Amendment viola-
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Opinion of Sotomayor, J.
tions matter less in this context because of “likely” national-
secur
ity risks. Ante, at 496–497. So once more, we tote up
for ourselves the costs and benefts of a private right of ac-
tion in this or that setting and reach a legislative judgment.
To atone for Bivens, it seems we continue repeating its most
basic mistake.
Of course, the Court's real messages run deeper than its
case-specifc analysis. If the costs and benefts do not jus-
tify a new Bivens action on facts so analogous to Bivens
itself, it's hard to see how they ever could. And if the only
question is whether a court is “better equipped” than Con-
gress to weigh the value of a new cause of action, surely the
right answer will always be no. Doubtless, these are the
lessons the Court seeks to convey. I would only take the
next step and acknowledge explicitly what the Court leaves
barely implicit. Sometimes, it seems, “this Court leaves a
door ajar and holds out the possibility that someone, some-
day might walk through it” even as it devises a rule that
ensures “no one . . . ever will.” Edwards v. Vannoy, 593
U. S. –––, ––– (2021) (Gorsuch, J., concurring). In fairness
to future litigants and our lower court colleagues, we should
not hold out that kind of false hope, and in the process invite
still more “protracted litigation destined to yield nothing.”
Nestlé, 593 U. S., at ––– (Gorsuch, J., concurring). Instead,
we should exercise “the truer modesty of ceding an ill-gotten
gain,” ibid., and forthrightly return the power to create new
causes of action to the people's representatives in Congress.
Justice Sotomayor, with whom Justice Breyer and
Justice Kagan join, concurring in the judgment in part and
dissenting in part.
Respondent Robert Boule alleges that petitioner Erik Eg-
bert, a U. S. Customs and Border Patrol agent, violated the
Fourth Amendment by entering Boule's property without a
warrant and assaulting him. Existing precedent permits
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See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S.
388
(1971); Ziglar v. Abbasi, 582 U. S. 120 (2017). The Court
goes to extraordinary lengths to avoid this result: It rewrites
a legal standard it established just fve years ago, stretches
national-security concerns beyond recognition, and discerns
an alternative remedial structure where none exists. The
Court's innovations, taken together, enable it to close the
door to Boule's claim and, presumably, to others that fall
squarely within Bivens' ambit.
Today's decision does not overrule Bivens. It neverthe-
less contravenes precedent and will strip many more individ-
uals who suffer injuries at the hands of other federal offcers,
and whose circumstances are materially indistinguishable
from those in Bivens, of an important remedy. I therefore
dissent from the Court's disposition of Boule's Fourth
Amendment claim. I concur in the Court's judgment that
Boule's First Amendment retaliation claim may not proceed
under Bivens, but for reasons grounded in precedent rather
than this Court's newly announced test.
I
This case comes to the Court following the District Court's
grant of summary judgment to Agent Egbert. The Court
is therefore bound to draw all reasonable factual inferences
in favor of Boule. See Tolan v. Cotton, 572 U. S. 650, 656–
657 (2014) (per curiam). Because the Court fails to do so,
the factual record is described below in some detail, in the
light our precedent requires.
A
Boule is a U. S. citizen who owns, operates, and lives in a
small bed-and-breakfast called the Smuggler's Inn in Blaine,
Washington. The property line of the land on which the inn
is located touches the U. S.-Canada border. Shortly after
purchasing the property in 2000, Boule became aware that
people used his property to cross the border illegally in both
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directions. Boule began serving as a paid, confdential in-
for
mant for Customs and Border Protection (CBP) in 2003
and for Immigration and Customs Enforcement (ICE) in
2008. At the time of the events at issue in this case, Boule
was still serving as an informant for ICE. ICE would coor-
dinate with CBP and other agencies based on the informa-
tion Boule provided. Over the years, Boule provided infor-
mation leading to numerous arrests.
On the morning of March 20, 2014, petitioner Erik Egbert,
a CBP agent, twice stopped Boule while Boule was running
errands in town. Agent Egbert knew that Boule was a
long-time informant for ICE and that he had previously
worked as an informant for CBP. Agent Egbert asked
Boule about guests at the inn, and Boule advised him of a
guest he expected to arrive that day from New York who
had fown in from Turkey the day before. Boule explained
that two of his employees were en route to pick the guest up
at the Seattle-Tacoma International Airport. Agent Egbert
continued patrolling in his CBP vehicle for the rest of the
morning but stayed near the inn so he would see when the
car carrying the guest returned. When it arrived, he fol-
lowed the car into the driveway of the inn, passing a “no
trespassing ” sign. Agent Egbert parked his vehicle behind
the arriving car in the driveway immediately adjacent to
the inn.
Agent Egbert exited his patrol vehicle and approached the
car. Boule's employee also exited the car; the guest re-
mained inside. From the front porch of his inn, Boule asked
Agent Egbert to leave. When Agent Egbert refused, Boule
stepped off the porch, positioned himself between Agent Eg-
bert and the vehicle, and explained that the person in the
car was a guest who had come from New York to Seattle and
who had been through security at the airport. Boule again
asked Agent Egbert to leave. Agent Egbert grabbed Boule
by his chest, lifted him up, and shoved him against the vehi-
cle and then threw him to the ground. Boule landed on his
hip and shoulder.
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Agent Egbert opened the car door and asked the guest
about
his immigration status. Boule called 911 to request a
supervisor; Agent Egbert relayed the same request over his
radio. Several minutes later, a supervisor and another
agent arrived at the inn. After concluding that the guest
was lawfully in the country ( just as Boule had previously
informed Agent Egbert), the three offcers departed. Boule
later sought medical treatment for his injuries.
Boule complained to Agent Egbert's superiors about the
incident and fled an administrative claim with CBP, which
allegedly prompted Agent Egbert to retaliate against Boule.
Agent Egbert contacted the Internal Revenue Service (IRS),
the Social Security Administration, the Washington State
Department of Licensing, and the Whatcom County Asses-
sor's Offce, asking them to investigate Boule's business.
These agencies did so, but none found that Boule had done
anything wrong. Boule paid over $5,000 to his accountant
to assist him in responding to the IRS' tax audit. Boule also
fled claims pursuant to the Federal Tort Claims Act (FTCA),
which were denied. CBP's investigation of Agent Egbert
concluded that he failed to be forthcoming with investigators
and “demonstrated lack of integrity,” serious offenses that
warranted his removal. Rev. Redacted App. 184.
B
Boule sued Agent Egbert in Federal District Court, seek-
ing damages under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388, for violation of Boule's First and
Fourth Amendment rights. The District Court granted
summary judgment to Agent Egbert on both claims. The
Court of Appeals reversed, concluding that both claims were
cognizable under Bivens. In the Court of Appeals' view,
Boule's Fourth Amendment claim constituted a modest ex-
tension of Bivens. Even so, the court explained, no special
factors counseled hesitation such that this extension should
be foreclosed; rather, “Boule's Fourth Amendment excessive
force claim is part and parcel of the `common and recurrent

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sphere of law enforcement' ” that remained “a permissible
area
for Bivens claims.” 998 F. 3d 370, 389 (CA9 2021)
(quoting Ziglar, 582 U. S., at 134). The court separately
held that Boule's First Amendment claim could proceed
under Bivens.
This Court granted certiorari. 595 U. S. ––– (2021).
II
A
In Bivens, the plaintiff alleged that Federal Bureau of
Narcotics agents unlawfully entered his apartment in New
York City and used constitutionally unreasonable force to ar-
rest him. 403 U. S., at 389. This Court observed that an
“agent acting—albeit unconstitutionally—in the name of the
United States possesses a far greater capacity for harm than
an individual trespasser exercising no authority other than
his own.” Id., at 392. The Fourth Amendment, the Court
explained, “guarantees to citizens of the United States the
absolute right to be free from unreasonable searches and sei-
zures carried out by virtue of federal authority.” Ibid.
The Court ultimately held that a “violation of [the Fourth
Amendment] by a federal agent acting under color of his au-
thority gives rise to a cause of action for damages.” Id., at
389. In doing so, the Court observed that existing state-law
causes of action were no substitute for a federal cause of
action because “[t]he interests protected by state laws regu-
lating trespass and the invasion of privacy” and those pro-
tected by the Fourth Amendment “may be inconsistent or
even hostile.” Id., at 394; see also id., at 410 (Harlan, J.,
concurring in judgment) (“For people in Bivens' shoes, it is
damages or nothing ”).
1
The Court also noted that the case
1
For example, an individual “may bar the door against an unwelcome
private intruder, or call the police if he persists in seeking entrance” and
may seek damages under state law “for any consequent trespass.”
Bivens, 403 U. S., at 394. By contrast, “[t]he mere invocation of federal
power by a federal law enforcement offcial will normally render futile any
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before it “involve[d] no special factors counselling hesita-
ti
on,” such as a question concerning federal fscal policy.
Id., at 396.
This Court has twice extended the cause of action frst
articulated in Bivens: frst to a Fifth Amendment due proc-
ess claim for sex discrimination, see Davis v. Passman, 442
U. S. 228 (1979), and then to an Eighth Amendment deliber-
ate indifference claim for failure to provide proper medical
attention, see Carlson v. Green, 446 U. S. 14 (1980). In
Davis, Carlson, and subsequent cases, the Court built on
Bivens' inquiry to develop a two-step test for determining
whether a Bivens cause of action may be “defeated.” Carl-
son, 446 U. S., at 18. First, the Court considered whether,
under the circumstances of a particular case, special factors
counseled hesitation in allowing a private right of action to
proceed. See, e. g., Bivens, 403 U. S., at 396; Davis, 442
U. S., at 246; Carlson, 446 U. S., at 18; Bush v. Lucas, 462
U. S. 367, 377–380 (1983). Second, the Court considered
whether “Congress has provided an alternative remedy
which it explicitly declared to be a substitute for recovery
directly under the Constitution and viewed as equally effec-
tive.” Carlson, 446 U. S., at 18–19; see also, e. g., Davis, 442
U. S., at 246–247; Bush, 462 U. S., at 377–378; Wilkie v. Rob-
bins, 551 U. S. 537, 550 (2007) (describing this two-step test).
Where, for example, Congress crafted an “elaborate remedial
system that has been constructed step by step, with careful
attention to conficting policy considerations,” Bush, 462
U. S., at 388, this Court concluded that “it would be inappro-
priate . . . to supplement that regulatory scheme with a new
judicial remedy,” id., at 368; accord, Schweiker v. Chilicky,
487 U. S. 412, 414 (1988). Applying this two-step test, the
Court has declined to extend Bivens beyond situations like
attempt to resist an unlawful entry or arrest by resort to the local police;
and a claim of authority to enter is likely to unlock the door as well.”
Ibid.
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those addressed in Davis, Carlson, and Bivens itself. See
an
te, at 486.
In Ziglar v. Abbasi, 582 U. S. 120, the Court not only de-
clined to extend Bivens but also revised and narrowed its
two-step analytic framework. The Ziglar Court set forth a
new inquiry requiring courts considering a Bivens claim frst
to ask whether a case “is different in a meaningful way from
previous Bivens cases decided by this Court” and therefore
arises in a “new . . . context.” 582 U. S., at 139; see also
Hernández v. Mesa, 589 U. S. –––, ––– (2020). The Ziglar
Court offered a laundry list of differences that “might” be
meaningful, including “the rank of the offcers involved; the
constitutional right at issue; the generality or specifcity of
the offcial action; the extent of judicial guidance as to how
an offcer should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which
the offcer 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.” 582 U. S., at 140. The Court rec-
ognized, however, that some differences “will be so trivial
that they will not suffce to create a new Bivens context.”
Id., at 149.
If the differences are in fact “meaningful ones,” ibid.,
“then the context is new,” id., at 139, and a court “proceed[s]
to the second step” of the analysis, Hernández, 589 U. S.,
at –––. The second step requires courts to consider whether
special factors counsel hesitation in recognizing a Bivens
remedy in a new context. Ziglar, 582 U. S., at 136; Hernán-
dez, 589 U. S., at –––.
Importantly, even as the Ziglar Court grafted a more de-
manding new-context inquiry onto the traditional Bivens
framework, the Court emphasized that its opinion was “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.” 582 U. S., at 134. Quite the opposite: The
Court recognized that Bivens “vindicate[s] the Constitution
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by allowing some redress for injuries” and “provides instruc-
ti
on and guidance to federal law enforcement offcers going
forward.” 582 U. S., at 134. Accordingly, the Court ex-
plained, there are “powerful reasons to retain [Bivens]” in
the “common and recurrent sphere of law enforcement.”
Ibid. The Court further recognized that “individual in-
stances of discrimination or law enforcement overreach” are,
by their nature, “diffcult to address except by way of dam-
ages actions after the fact.” Id., at 144.
B
Ziglar and Hernández control here. Applying the two-
step framework set forth in those cases, the Court of Ap-
peals' determination that Boule's Fourth Amendment claim
is cognizable under Bivens should be affrmed for two inde-
pendent reasons. First, Boule's claim does not present a
new context. Second, even if it did, no special factors would
counsel hesitation.
1
Boule's Fourth Amendment claim does not arise in a new
context. Bivens itself involved a U. S. citizen bringing a
Fourth Amendment claim against individual, rank-and-fle
federal law enforcement offcers who allegedly violated his
constitutional rights within the United States by entering
his property without a warrant and using excessive force.
Those are precisely the facts of Boule's complaint.
The only arguably salient difference in “context” between
this case and Bivens is that the defendants in Bivens were
employed at the time by the (now-defunct) Federal Bureau of
Narcotics, while Agent Egbert was employed by CBP. As
discussed, however, this Court's precedent instructs that
some differences are too “trivial . . . to create a new Bivens
context.” Ziglar, 582 U. S., at 149.
2
That it was a CBP
2
Egbert argues in passing that the fact that he was operating under a
“ `statutory . . . mandate' not invoked in prior cases,” standing alone,
“dooms [Boule's] no-new-context argument.” Reply Brief 19 (quoting
Ziglar, 582 U. S., at 140). Not so. Egbert fails to show that any differ-
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agent rather than a Federal Bureau of Narcotics agent who
unlawfu
lly entered Boule's property and used constitution-
ally excessive force against him plainly is not the sort of
“meaningful” distinction that our new-context inquiry is de-
signed to weed out. Ibid.
It is of course well established that a Bivens suit involving
an entirely “ `new category of defendants' ” arises in a “ `new
context.' ” Ziglar, 582 U. S., at 135; see also Hernández, 589
U. S., at –––. The Court, however, has never relied on this
principle to draw artifcial distinctions between line-level of-
fcers of the 83 different federal law enforcement agencies
with authority to make arrests and provide police protection.
See Dept. of Justice, C. Brooks, Federal Law Enforcement
Offcers, 2016—Statistical Tables (NCJ 251922, Oct. 2019),
https:// bjs.ojp.gov/content/pub/pdf/fleo16st.pdf. Indeed, if
the “new context” inquiry were defned at such a fne level
of granularity, every case would raise a new context, because
the Federal Bureau of Narcotics no longer exists. See Na-
tional Archives, Records of the Drug Enforcement Adminis-
tration [DEA] (Aug. 15, 2016), https://www.archives.gov/
research/guide-fed-records/groups/170.html.
Moreover, the “new category of defendants” language
traces back to a different concern raised in the Court's deci-
sion in Correctional Services Corp. v. Malesko, 534 U. S. 61,
68 (2001). That case involved an Eighth Amendment claim
brought by a federal prisoner against a private corporation
under contract with the federal Bureau of Prisons. The
Court observed that “the threat of suit against an individu-
al's employer,” rather than “the individual directly responsi-
ble for the alleged injury,” “was not the kind of deterrence
contemplated by Bivens.” Id., at 70–71. Applying Bivens
to a corporate defendant would amount to a “marked exten-
ence in statutory mandates as between CBP agents and other law enforce-
ment offcers is “meaningful,” which our precedents require him to do.
Id., at 139.
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sion of Bivens . . . to contexts that would not advance Bivens'
core
purpose of deterring individual offcers from engaging
in unconstitutional wrongdoing.” Malesko, 534 U. S., at 74;
see also FDIC v. Meyer, 510 U. S. 471, 485 (1994) (declining
to allow a Bivens claim to proceed against a federal agency
for similar reasons). Here, by contrast, Boule's suit against
Agent Egbert directly advances that core purpose.
At bottom, Boule's claim is materially indistinguishable
from the claim brought in Bivens. His case therefore does
not present a new context for the purposes of assessing
whether a Bivens remedy is available.
2
Even assuming that this case presents a new context, no
special factors warrant foreclosing a Bivens action.
The Court “has not defned the phrase `special factors
counselling hesitation,' ” but it has recognized that the “in-
quiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to consider
and weigh the costs and benefts of allowing a damages ac-
tion to proceed.” Ziglar, 582 U. S., at 136; see also Hernán-
dez, 589 U. S., at ––– – –––. For example, where a claim
“would call into question the formulation and implementa-
tion of a general policy” or “require courts to interfere in
an intrusive way with sensitive functions of the Executive
Branch,” recognizing a Bivens action may be inappropriate.
Ziglar, 582 U. S., at 141; see also, e. g., Chappell v. Wallace,
462 U. S. 296, 300 (1983) (declining to extend Bivens where
military personnel sought damages from superior offcers,
citing concerns about “tamper[ing] with the established rela-
tionship between enlisted military personnel and their supe-
rior offcers,” which lies “at the heart of the necessarily
unique structure of the Military Establishment”). Prece-
dent thus establishes that “separation-of-powers principles
. . . should be central to the [special-factors] analysis.”
Ziglar, 582 U. S., at 135.
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Here, the only possible special factor is that Boule's prop-
er
ty abuts an international border. Boule's case, however,
is a far cry from others in which the Court declined to extend
Bivens for reasons of national security or foreign relations.
In Hernández, for example, a CBP agent shot and killed a
Mexican child across the U. S.-Mexico border. 589 U. S.,
at –––. The Mexican Government unsuccessfully sought ex-
tradition of the agent to Mexico, and after an investigation,
the U. S. Department of Justice declined to bring charges
against the agent. Ibid. The parents of the deceased child
attempted to bring a Bivens action against the CBP agent,
but this Court held that several “warning fags” counseled
caution, including a “potential effect on foreign relations.”
Hernández, 589 U. S., at –––. The Court observed that “[a]
cross-border shooting is by defnition an international inci-
dent,” and that both the United States and Mexico had “le-
gitimate and important interests that may be affected by the
way in which this matter is handled.” Id., at –––, –––. The
Court concluded that because “regulating the conduct of
agents at the border unquestionably has national security
implications, the risk of undermining border security pro-
vides reason to hesitate before extending Bivens into this
feld.” Id., at –––.
The conduct here took place near an international border
and involved a CBP agent. That, however, is where the
similarities with Hernández begin and end. The conduct oc-
curred exclusively on U. S. soil, and the injury was to a U. S.
citizen. This case therefore does not present an “interna-
tional incident” that might affect diplomatic relations, unlike
the cross-border killing of a foreign-national child. As for
national-security concerns, the Court in Hernández empha-
sized that “some [CBP agents] are stationed right at the bor-
der and have the responsibility of attempting to prevent ille-
gal entry”; it was “[f]or th[is] reaso[n],” among others, that
their conduct had “a clear and strong connection to national
security.” Id., at –––. Here, by contrast, Agent Egbert
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was not “attempting to prevent illegal entry” or otherwise
engaged
in activities with a “strong connection to national
security.” Ibid. Agent Egbert was aware (because Boule
had told him earlier in the day and again at the scene) that
the foreign national arriving at the inn had already entered
the United States by airplane and had been processed by
U. S. customs at the airport in New York the previous day.
Nor does this case present special factors similar to those
that deterred the Court from recognizing a Bivens action in
Ziglar. In that case, foreign nationals who had been unlaw-
fully present in the United States brought a Bivens action
against three “high executive offcers in the Department of
Justice” and two wardens of the facility where they had been
held. Ziglar, 582 U. S., at 126. The Court reasoned that
allowing the plaintiffs' claims to proceed against the execu-
tive offcers “would call into question the formulation and
implementation of a general policy,” and that the discovery
and litigation process would “border upon or directly impli-
cate the discussion and deliberations that led to the forma-
tion of the policy in question,” thereby implicating sensitive
national-security functions entrusted to Congress and the
President. Id., at 141. If Bivens liability were imposed,
the Court explained, “high offcers who face personal liability
for damages might refrain from taking urgent and lawful ac-
tion in a time of crisis,” and “the costs and diffculties of later
litigation might intrude upon and interfere with the proper
exercise of their offce.” Ziglar, 582 U. S., at 145.
Here, Boule plainly does not seek to challenge or alter
“high-level executive policy.” Id., at 140. Allowing his
claim to proceed would not require courts to intrude into
“the discussion and deliberations that led to the formation”
of any policy or national-security decision or interest. Ibid.
Agent Egbert, a line offcer, was engaged in a run-of-the-
mill inquiry into the status of a foreign national on U. S.
soil who had no actual or suggested ties to terrorism, and
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See id., at 144 (distinguishing a challenge to “individual in-
st
ances of discrimination or law enforcement overreach,”
which lends itself to a Bivens action, from a challenge to
“large-scale policy decisions,” which does not). No special
factors counsel against allowing Boule's Bivens action to
proceed.
C
Boule also argues that his First Amendment retaliatory-
investigation claim is cognizable under Bivens. I concur in
the Court's judgment that it is not, but I arrive at that con-
clusion by following precedent rather than by applying the
Court's new, single-step inquiry. Ante, at 492; see infra, at
517–520.
This Court has repeatedly assumed without deciding that
Bivens extends to First Amendment claims, see Wood v.
Moss, 572 U. S. 744, 757 (2014), but has never squarely held
as much, see Reichle v. Howards, 566 U. S. 658, 663, n. 4
(2012). Accordingly, Boule's First Amendment retaliation
presents a new context for the purpose of the Bivens analy-
sis. See Ziglar, 582 U. S., at 148 (noting that a case can
present a new context if it implicates a different constitu-
tional right than those already recognized as cognizable
under Bivens).
Moving to the second step of the Bivens inquiry, unlike
Boule's Fourth Amendment claim, there is “reason to pause”
before extending Bivens to Boule's First Amendment claim.
Hernández, 589 U. S., at –––. In particular, his First
Amendment claim raises line-drawing concerns similar to
those this Court identifed in Wilkie, 551 U. S. 537. In Wil-
kie, a landowner sought to bring a Bivens action against fed-
eral offcials whom the landowner accused of harassment and
intimidation meant to extract an easement across his prop-
erty. 551 U. S., at 541. The Court observed that “defning
a workable cause of action” for such a claim was “diffcul[t].”
Id., at 555; see also id., at 557. Recognizing a Bivens action
to redress retaliation under such circumstances would, in the
Court's view, “invite claims in every sphere of legitimate
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gover nmenta l ac ti on affecting proper ty i nterests” and
“across
this enormous swath of potential litigation would
hover the diffculty of devising a . . . standard that could
guide an employee's conduct and a judicial factfnder's con-
clusion.” 551 U. S., at 561. Because of the “elusiveness of
a limiting principle” for claims like the landowner's, id., at
561, n. 11, the Court decided that courts were ill equipped to
tailor an appropriate remedy, id., at 562.
Boule's First Amendment retaliation claim raises similar
concerns. Unlike the constitutional rights this Court has
recognized as cognizable under Bivens, First Amendment
retaliation claims could potentially be brought against many
different federal offcers, stretching substantially beyond the
“common and recurrent sphere of law enforcement” to reach
virtually all federal employees. Ziglar, 582 U. S., at 134.
Under such circumstances, this Court's precedent holds that
“ `evaluat[ing] the impact of a new species of litigation' ” on
the effciency of civil service is a task for Congress, not the
courts. Wilkie, 551 U. S., at 562; see also Ziglar, 582 U. S.,
at 136–137. I therefore concur in the judgment as to the
Court's reversal of the Court of Appeals' conclusion that
Boule's First Amendment Bivens action may proceed, not
for the reasons the Court identifes, ante, at 497–500, but
because precedent requires it.
III
If the legal standard the Court articulates to reject Boule's
Fourth Amendment claim sounds unfamiliar, that is because
it is. Just fve years after circumscribing the standard for
allowing Bivens claims to proceed, a restless and newly con-
stituted Court sees ft to refashion the standard anew to
foreclose remedies in yet more cases. The measures the
Court takes to ensure Boule's claim is dismissed are incon-
sistent with governing precedent.
A
Two Terms ago, this Court reiterated and reaffrmed
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brought as a Bivens action. See Hernández, 589 U. S.,
at
––– (“When asked to extend Bivens, we engage in a two-
step inquiry”). Today, however, the Court pays lip service
to the test set out in our precedents, but effectively replaces
it with a new single-step inquiry designed to constrict
Bivens. Ante, at 492 (acknowledging this Court's previous
“two ste[p]” standard but insisting that “those steps often
resolve to a single question: whether there is any reason to
think that Congress might be better equipped to create a
damages remedy”); ante, at 493 (positing that “[t]he newness
of [some] `new context[s]' should alone require dismissal”
(some internal quotation marks omitted)). The Court goes
so far as to announce that “[t]he Bivens inquiry does not
invite federal courts to independently assess the costs and
benefts of implying a cause of action,” ante, at 496; instead,
courts must “only” decide “whether there is any rational rea-
son (even one) to think that Congress is better suited to
`weigh the costs and benefts of allowing a damages action to
proceed,' ” ibid. (quoting Ziglar, 582 U. S., at 136).
That approach contrasts starkly with the standard the
Court announced in Ziglar and applied in Hernández. This
Court regularly has considered whether courts are “well
suited . . . to consider and weigh the costs and benefts of
allowing a damages action to proceed,” Ziglar, 582 U. S., at
136, and have never held that such weighing is categorically
impermissible, contrary to the Court's analysis today. See
also Wilkie, 551 U. S., at 554 (noting that the Bivens inquiry
asks courts to “weig[h] reasons for and against the creation
of a new cause of action”).
The Court justifes its innovations by selectively quoting
our precedents and presenting its newly announced stand-
ard as if it were always the rule. The Court's repeated cita-
tion to United States v. Stanley, 483 U. S. 669 (1987), is just
one example. The Court cites Stanley for, among other
things, the proposition that the special-factors analysis must
be conducted at a very broad level of generality. Ante,
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at 496. Stanley, however, cautioned against a case-specifc
specia
l-factors analysis in the narrow context of “judicial in-
trusion upon military discipline.” 483 U. S., at 681. As it
had in previous cases seeking to raise Bivens actions in the
military context, the Stanley Court emphasized the need to
be “protective of military concerns,” 483 U. S., at 681, and to
avoid “call[ing] into question military discipline and decision-
making,” id., at 682. The Court therefore determined that
in the military sphere, the special-factors analysis should be
applied somewhat more broadly than the respondent urged.
Id., at 681. Stanley, in other words, refected the Court's
longstanding approach to Bivens cases: considering the facts
and the substantive context of each case and determining
whether special factors counseled hesitation. Stanley did
not purport to articulate a special-factors framework that
should apply to all Bivens cases going forward.
The Court further declares that “a plaintiff cannot justify
a Bivens extension based on `parallel circumstances' ” with
prev i ous cases that have recog ni zed a Bi v en s remedy.
Ante, at 501. To the extent these statements suggest an
exacting new-context inquiry, they are in serious tension
with the Court's longstanding rule that trivial differences
alone do not create a new Bivens context. See Ziglar, 582
U. S., at 149; see also ante, at 503 (Gorsuch, J., concurring
in judgment) (“Candidly, I struggle to see how this set of
facts differs meaningfully from those in Bivens itself ”). In-
deed, until today, the Court has never so much as hinted
that courts should refuse to permit a Bivens action in a case
involving facts substantially identical to those in Bivens it-
self. Supra, at 511–513.
3
3
The Court supports its decision not to recognize an action under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), by
observing that we have declined to recognize a Bivens-style cause of ac-
tion for other constitutional violations. Ante, at 486. What the Court fails
to acknowledge, however, is that each of those cases presented a meaning-
fully new context and/or raised special factors counseling hesitation that
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B
The
Court's application of its new standard to Boule's
Fourth Amendment claim underscores just how novel that
standard is. Even assuming the claim presents a new con-
text, the Court's insistence that national-security concerns
bar the claim directly contravenes Ziglar. Moreover, the
Court's holding that a nonbinding administrative investiga-
tion process, internal to the agency and offering no meaning-
ful protection of the constitutional interests at stake, consti-
tutes an alternative remedy that forecloses Bivens relief
blinks reality.
1
The Court acknowledges the force of the Court of Appeals'
conclusion that Bivens and this case present “ `almost paral-
lel circumstances,' ” but it nonetheless concludes that a most
unlikely special factor counsels hesitation: the “national-
security context.” Ante, at 495. By the Court's telling,
Hernández declined to recognize a Bivens action “because
`regulating the conduct of agents at the border unquestion-
ably has national security implications,' and the `risk of un-
dermining border security provides reason to hesitate before
extending Bivens into this feld.' ” Ante, at 494 (quoting
Hernández, 589 U. S., at –––). That reasoning, the Court
concludes, “applies here with full force” because “national
security is at issue.” Ante, at 494.
This is sheer hyperbole. Most obviously, the Court's con-
clusion that this case, which involves a physical assault by a
federal offcer against a U. S. citizen on U. S. soil, raises “na-
are not present in this case. See supra, at 509, 512–513, 516–517, 518–
519; in fra, at 524–525. The one exception is Hui v. Castaneda, 559 U. S.
799, 808 (2010), in which the Court did not have to conduct this analysis
because it held the FTCA's comprehensive remedial scheme, which pro-
vided both a cause of action and an exclusive damages remedy for the
claim at issue, clearly precluded a Bivens claim.
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tional security” concerns does exactly what this Court coun-
seled
against just four years ago. Back then, the Court ad-
vised that “national-security concerns must not become a
talisman used to ward off inconvenient claims—a `label' used
to `cover a multitude of sins.' ” Ziglar, 582 U. S., at 143
(quoting Mitchell v. Forsyth, 472 U. S. 511, 523 (1985)). It
explained that this “danger of abuse is even more heightened
given the diffculty of defning the security interest in do-
mestic cases.” Ziglar, 582 U. S., at 143 (internal quotation
marks omitted). This case does not remotely implicate na-
tional security. The Court may wish it were otherwise, but
on the facts of this case, its effort to raise the specter of
national security is mere sleight of hand.
Nor is there any indication that Congress acted to deny a
Bivens remedy for a case like this, which otherwise might
counsel hesitation. See Bush, 462 U. S., at 368 (declining to
“supplement” Congress' existing scheme “with a new judicial
remedy”). Congress has not provided that federal law en-
forcement offcers may enter private property near a border
at any time or for any purpose. Quite the contrary: Con-
gress has determined that immigration offcers may enter
“private lands” within 25 miles of an international border
without a warrant only “for the purpose of patrolling the
border to prevent the illegal entry of aliens into the United
States.” 66 Stat. 233, 8 U. S. C. § 1357(a)(3). This allow-
ance is itself subject to exceptions: Offcers cannot enter a
“dwellin[g]” for immigration enforcement purposes without
a warrant. Ibid. Mere proximity to a border, in other
words, did not give Agent Egbert greater license to enter
Boule's property. Nor does it diminish or call into question
the remedies for constitutional violations that a plaintiff may
pursue, particularly where, as here, an agent unquestionably
was not acting “for the purpose of patrolling the border to
prevent the illegal entry of aliens into the United States.”
Ibid.
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Remarkably, the Court goes beyond invoking its national-
secur
ity talisman in this case alone. In keeping with the
unprecedented level of generality the Court imports into the
special-factors analysis, the Court holds that courts are not
“competent to authorize a damages action . . . against Border
Patrol agents generally.” Ante, at 496. This extraordinary
and gratuitous conclusion contradicts decades of precedent
requiring a context-specifc determination of whether a par-
ticular claim presents special factors counseling hesitation.
See supra, at 510–511.
4
The consequences of the Court's drive-by, categorical as-
sertion will be severe. Absent intervention by Congress,
CBP agents are now absolutely immunized from liability in
any Bivens action for damages, no matter how egregious the
misconduct or resultant injury. That will preclude redress
under Bivens for injuries resulting from constitutional viola-
tions by CBP's nearly 20,000 Border Patrol agents, including
those engaged in ordinary law enforcement activities, like
traffc stops, far removed from the border. U. S. Customs
and Border Protection, On a Typical Day in Fiscal Year 2021,
CBP . . . (2022), https://www.cbp.gov/newsroom/stats/typical-
day-fy2021. This is no hypothetical: Certain CBP agents
exercise broad authority to make warrantless arrests and
search vehicles up to 100 miles away from the border. See
8 U. S. C. § 1357(a); 8 CFR § 287.1(a)(2) (2021). The Court's
choice to foreclose liability for constitutional violations that
occur in the course of such activities, based on even the most
tenuous and hypothetical connection to the border (and
thereby, to the “national-security context”), betrays the con-
text-specifc nature of Bivens and shrinks Bivens in the core
4
Any concerns that a case-specifc Bivens inquiry in cases involving
CBP or ICE agents would pose administrability problems is misplaced.
See Brief for American Civil Liberties Union et al. as Amici Curiae 14–
18 (citing lower court cases that have applied this approach to suits against
CBP and ICE agents).
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Opinion of Sotomayor, J.
Fourth Amendment law enforcement sphere where it is
needed
most. See Ziglar, 582 U. S., at 135.
5
2
The Court further proclaims that Congress has provided
alternative remedies that “independently foreclose” a Bivens
action in this case. Ante, at 497. The administrative rem-
edy the Court perceives, however, is no remedy whatsoever.
The sole “remedy” the Court cites is an administrative
grievance procedure that does not provide Boule with any
relief. The statute on which the Court relies provides: The
“Secretary of Homeland Security . . . shall have control, di-
rection, and supervision of all employees and of all the fles
and records of [CBP].” 8 U. S. C. § 1103(a)(2); see ante, at
497. Administrative regulations direct CBP to investigate
alleged violations of its own standards by its own employees.
See 8 CFR §§ 287.10(a)–(b).
6
The Court sees ft to defer to
this procedure, even while acknowledging that complainants
in Boule's position have no right to participate in the pro-
ceedings or to seek judicial review of any determination.
Ante, at 496–497. The Court supports its conclusion that
5
To the extent the Court's decision may be motivated by fears that
allowing this Bivens action to proceed will open the foodgates to countless
claims in the future, cf. ante, at 499, that concern is overblown. The doc-
trine of qualifed immunity will continue to protect government offcials
from liability for damages unless a plaintiff “ `pleads facts showing (1) that
the offcial violated a statutory or constitutional right, and (2) that the
right was “clearly established” at the time of the challenged conduct.' ”
Wood v. Moss, 572 U. S. 744, 757 (2014) (quoting Ashcroft v. al-Kidd, 563
U. S. 731, 735 (2011)).
6
The regulations require any investigative report regarding excessive
force to “be referred promptly for appropriate action in accordance with
the policies and procedures of the Department [of Homeland Security].”
8 CFR § 287.10(c). Those policies and procedures, in turn, explicitly es-
tablish no “right or beneft, substantive or procedural, enforceable at law
or in equity.” Dept. of Homeland Security, Dept. Policy on the Use of
Force, § X, Policy Statement 044–05 (Sept. 7, 2018).
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CBP's internal administrative grievance procedure offers an
adequate
remedy by insisting that “we have never held that
a Bivens alternative must afford rights to participation or
appeal.” Ante, at 497–498. In the Court's view, “[s]o long as
Congress or the Executive has created a remedial process that
it fnds suffcient to secure an adequate level of deterrence,
the courts cannot second-guess that calibration by super-
imposing a Bivens remedy.” Ante, at 498 (emphasis added).
This analysis drains the concept of “remedy” of all mean-
ing. To be sure, the Court has previously deemed Bivens
claims foreclosed by “substantive” remedies to claimants
that are in signifcant part administrative. Bush, 462 U. S.,
at 385; see also, e. g., Schweiker, 487 U. S., at 424–425. The
Court also has recognized that existing remedies need not
“provide complete relief for the plaintiff,” Bush, 462 U. S., at
388, including loss due to emotional distress or mental an-
guish, or attorney's fees, Schweiker, 487 U. S., at 424–425.
Until today, however, this Court has never held that a
threadbare disciplinary review process, expressly conferring
no substantive rights, “secure[s] adequate deterrence and af-
ford[s] . . . an alternative remedy.” Ante, at 498. Nor has
it held that remedies providing no relief to the individual
whose constitutional rights have been violated are “ade-
quate” for the purpose of foreclosing a Bivens action. To
the contrary, each of the alternative remedies the Court has
recognized has afforded participatory rights, an opportunity
for judicial review, and the potential to secure at least some
meaningful relief. See, e. g., Minneci v. Pollard, 565 U. S.
118, 127 (2012) (state tort law); Ziglar, 582 U. S., at 148 (peti-
tion for writ of habeas corpus or injunctive relief ); Bush, 462
U. S., at 385.
7
7
Aside from CBP's internal grievance procedure, Agent Egbert con-
tends that the FTCA offers an alternative remedy for claims like Boule's.
This Court does not endorse this argument, and for good reason. This
Court repeatedly has observed that the FTCA does not cover claims
against Government employees for “violation[s] of the Constitution of the
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Opinion of Sotomayor, J.
The Court previously has emphasized that a Bivens action
may
be inappropriate where “Congress has provided an al-
ternative remedy which it explicitly declared to be a substi-
tute for recovery directly under the Constitution and viewed
as equally effective.” Carlson, 446 U. S., at 18–19 (emphasis
deleted). Thus, our cases declining to extend Bivens have
done so where Congress, sometimes in conjunction with the
Executive Branch, provided “comprehensive” and meaning-
ful remedies. Bush, 462 U. S., at 388; see also Schweiker,
487 U. S., at 414, 423, 428 (emphasizing that the “design” of
the “elaborate remedial scheme” in the Social Security dis-
ability program “suggests that Congress has provided what
it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administra-
tion”); Malesko, 534 U. S., at 72 (noting that remedies avail-
able to the plaintiff were “at least as great, and in many
respects greater, than anything that could be had under
Bivens”); Minneci, 565 U. S., at 120 (rejecting Bivens action
for Eighth Amendment violations against employees of a pri-
vately operated federal prison because “state tort law au-
thorizes adequate alternative damages actions—actions that
provide both signifcant deterrence and compensation”). By
the Court's logic, however, the existence of any disciplinary
framework, even if crafted by the Executive Branch rather
United States.” 28 U. S. C. § 2679(b)(2)(A); see Wilkie v. Robbins, 551
U. S. 537, 553 (2007); Carlson v. Green, 446 U. S. 14, 20 (1980) (“Congress
views FTCA and Bivens as parallel, complementary causes of action”);
Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001) (noting that
it was “crystal clear” that “Congress intended the FTCA and Bivens to
serve as parallel and complementary sources of liability” (internal quota-
tion marks omitted)). Just two Terms ago, the Court reaffrmed that by
carving out claims “ `brought for . . . violation[s] of the Constitution' ” from
the FTCA's “ `exclusive remedy for most claims against Government em-
ployees arising out of their offcial conduct,' ” “Congress made clear that
it was not attempting to abrogate Bivens” and instead “simply left Bivens
where it found it.” Hernández v. Mesa, 589 U. S. –––, ––– – –––, and n. 9
(2020) (quoting Hui, 559 U. S., at 806; § 2679(b)(2)(A)).
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than Congress, and even if wholly nonparticipatory and lack-
i
ng any judicial review, is suffcient to bar a court from recog-
nizing a Bivens remedy. That reasoning, as disturbing as
it is wrong, marks yet another erosion of Bivens' deterrent
function in the law enforcement sphere.
8
C
The Court thinly veils its disapproval of Bivens, ending its
opinion by citing a string of dissenting opinions and single-
Member concurrences by various Members of this Court ex-
pressing criticisms of Bivens. Ante, at 500–501. But the
Court unmistakably stops short of overruling Bivens and its
progeny, and appropriately so. Even while declining to ex-
tend Bivens to new contexts, this Court has reaffrmed that
it did “not inten[d] to cast doubt on the continued force, or
even the necessity, of Bivens in the search-and-seizure con-
text in which it arose.” Ziglar, 582 U. S., at 134. Although
today's opinion will make it harder for plaintiffs to bring a
successful Bivens claim, even in the Fourth Amendment con-
text, the lower courts should not read it to render Bivens a
dead letter.
That said, the Court plainly modifes the Bivens standard
in a manner that forecloses Boule's claims and others like
them that should be permitted under this Court's Bivens
precedents. That choice is in tension with the Court's in-
sistence that “prescribing a cause of action is a job for Con-
gress, not the courts.” Ante, at 486; see ante, at 496 (cau-
tioning against “frustrat[ing] Congress' policymaking role”
when considering whether special factors counsel hesitation).
Faithful adherence to this logic counsels maintaining Bivens
in its current scope, but does not support changing the status
quo to constrict Bivens, as the Court does today. Congress,
8
Even beyond its doctrinal innovations on the merits, the Court also
fashions a brand new, Bivens-specifc procedural rule under which it ex-
cuses Egbert's forfeiture of his argument that CBP's administrative proc-
ess suffces as an alternative remedy. Ante, at 497–498, n. 3.
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after all, has recognized and relied on the Bivens cause of
ac
tion in creating and amending other remedies, including
the FTCA. By nevertheless repeatedly amending the legal
standard that applies to Bivens claims and whittling down
the number of claims that remain viable, the Court itself is
making a policy choice for Congress. Whatever the merits
of that choice, the Court's decision today is no exercise in
judicial modesty.
***
This Court's precedents recognize that suits for damages
play a critical role in deterring unconstitutional conduct by
federal law enforcement offcers and in ensuring that those
whose constitutional rights have been violated receive mean-
ingful redress. The Court's decision today ignores our re-
peated recognition of the importance of Bivens actions,
particularly in the Fourth Amendment search-and-seizure
context, and closes the door to Bivens suits by many who
will suffer serious constitutional violations at the hands of
federal agents. I respectfully dissent from the Court's
treatment of Boule's Fourth Amendment claim.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 503, line 2, “that” is inserted after “think”