Egbert v. Boule

Court: U.S. Supreme Court

Date Filed: Jan. 25, 2022

Update: On June 8, 2022, the Supreme Court issued a decision sharply restricting the availability of damages remedies when federal officials violate individuals’ constitutional rights — and ruling out the possibility of personal damages liability for First Amendment retaliation claims in particular. The ruling is an unfortunate blow to efforts to hold federal officers accountable.

Background: In 2017, Robert Boule, an inn owner near the U.S.-Canada border, sued Customs and Border Protection agent Erik Egbert for damages stemming from an alleged violation of Boule’s First and Fourth Amendment rights. Boule claimed that the agent had trespassed on his private property and retaliated against him for making a complaint to Egbert’s supervisors.

The inn owner brought his claims pursuant to the U.S. Supreme Court’s 1971 ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Court recognized a right to sue federal officials for damages arising from a violation of certain constitutional rights. Sometimes, the Court recognized in Bivens, the only way to remedy a violation of the Constitution is with damages, often because it’s too late to make right the harm in any other way. While Bivens was originally a Fourth Amendment case, the Court has since expanded its application to certain Fifth and Eighth Amendment violations. Egbert, though, argued that damages should be unavailable when federal officials violate First Amendment rights.

The district court agreed, finding that the Supreme Court has never recognized a so-called Bivens remedy for First Amendment claims. Boule appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the district court’s ruling. The appeals court panel found that while Boule’s First Amendment claim arose in a different context than any the Supreme Court had previously considered, there was no reason to hesitate to recognize a remedy, especially in light of the clear First Amendment rule against official retaliation.

The Ninth Circuit denied Egbert’s petition for rehearing of the case before the full court. Egbert then asked the Supreme Court to hear the case; the Court granted review and scheduled argument for March 2, 2022.

Our Position: The Supreme Court should reject Egbert’s arguments and affirm the Ninth Circuit’s decision.

• The press is a tempting target for federal officials seeking to retaliate against reporting on matters of public concern.
• When federal officials retaliate against the press, the choice of remedy is often — as in Bivens itself — “damages or nothing.”

Quote: “As the experience of the press demonstrates, often a damages remedy for retaliation is both workable and indispensable to the enforcement of First Amendment rights. To strip reporters of that recourse — not just on facts that resemble the ones presented here, but also in a broad and varied class of cases not before this Court — would invite officials to punish the press for performing its constitutional function.”

Related: The Reporters Committee has previously filed friend-of-the-court briefs in favor of allowing Bivens remedies in First Amendment cases, including in Black Lives Matter D.C. v. Trump and Lee v. Rosen. RCFP Legal Fellow Gillian Vernick has also previously written about Egbert v. Boule and the importance of recognizing Bivens remedies in the First Amendment context.