Egbert v. Boule

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 transportation 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 refused, became violent, and threw Boule first against the vehicle and then to the ground. Egbert then checked the immigration paperwork for Boule's guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening. Boule filed a grievance with Agent Egbert's supervisors and an administrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by reporting Boule's “SMUGLER” license plate to the Washington Department 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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(a) In Bivens, the Court held that it had authority to create a damages 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. Passman, 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 first 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 benefits 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. Further, under the Court's precedents, a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive 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 field.” 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 because “regulating the conduct of agents at the border unquestionably has national security implications.” Id., at –––. That reasoning applies 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 shooting in Hernández. But that does not bear on the relevant point: Permitting 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

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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 field might be “harmful” or “inappropriate,” id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 494–497.

(2) Second, Congress has provided alternative remedies for aggrieved parties in Boule's position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate “[a]lleged violations” and accept grievances 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 officers.” Correctional Services Corp. v. Malesko , 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate 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 violations would pose an acute “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials 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 official duties” when the retaliation occurred—lack merit. Also lacking merit is Boule's claim that this Court identified 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, Passman, or Carlson—the three cases in which the Court has implied a damages action—unless the plaintiff also satisfies the prevailing “ana-Page Proof Pending Publication

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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., filed an opinion concurring in the judgment, post, p. 502. Sotomayor , J., filed 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 Attorney 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.*

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 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.

Blaine, Washington, is the last town in the United States along U. S. Interstate Highway 5 before reaching the Canadian border. Respondent Robert Boule is a longtime Blaine resident. The rear of his property abuts the Canadian border at “0 Avenue,” a Canadian street. Boule's property line actually extends five fleet 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 Committee 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 filed a brief for Dee Farmer et al. as amici curiae. Page Proof Pending Publication

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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 significance 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 shipments of cocaine, methamphetamine, ecstasy, and other narcotics. For a time, Boule served as a confidential informant who would help federal agents identify and apprehend persons 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 unlawfully entered the United States as “guests” at the Inn and offer to drive them to Seattle or

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In light of Boule's business model, local Border Patrol agents, including petitioner Erik Egbert, were well acquainted with Smuggler's Inn and the criminal activity that attended it. On March 20, 2014, Boule informed Agent Egbert 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 border 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.

Boule lodged a grievance with Agent Egbert's supervisors, alleging that Agent Egbert had used excessive force and caused him physical injury. Boule also filed an administrative 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” license plate to the Washington Department of Licensing for Page Proof Pending Publication

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In January 2017, Boule sued Agent Egbert in his individual capacity in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Boule invoked 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).

I

n 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 violations. 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 Constitution—first, for a former congressional staffer's Fifth Amendment sex-discrimination claim, see Davis v. Passman , 442 U. S. 228 (1979); and second, for a federal prisoner's Page Proof Pending Publication

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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 considerations . . . at least as broad as the range . . . a legislature would consider.” Bivens, 403 U. S., at 407 (Harlan, J., concurring 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 considerations. 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 efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].” Ziglar, 582 U. S., at 137. “[E]ven a single sound reason 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-Page Proof Pending Publication

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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 benefits of allowing a damages 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 resolve 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 identified 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-Page Proof Pending Publication

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Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized 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 structures 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 Importantly, 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”).

Applying the foregoing principles, the Court of Appeals plainly erred when it created causes of action for Boule's

A

The Court of Appeals conceded that Boule's Fourth Amendment claim presented a new context for Bivens purposes, 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 independent reasons: Congress is better positioned to create remedies in the border-security context, and the Government 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 field.” Hernández, 589 U. S., at –––. This reasoning applies here with full force. During the alleged altercation with Boule, Agent Egbert was carrying out Border Patrol's mandate to “interdic[t] persons attempting to illegally enter or exit the United States or goods being illegally imported into or exported from the United States.” 6 U. S. C. § 211(e)(3)(A). Because “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Haig v. Agee , 453 U. S. 280, 292 (1981), we reaffirm 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., Page Proof Pending Publication

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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 outweighed 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

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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 fleet from (rather than straddling) the border, but cross-border security is obviously implicated in either event. Second, Boule's guest arrived 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 investigated immigration violations on our side of the border, not Canada's, but immigration investigations in this country are Page Proof Pending Publication

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2

Second, Congress has provided alternative remedies for aggrieved parties in Boule's position that independently foreclose 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 unavailable because federal prisoners could, among other options, file 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 obligated 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 enforcement activities” and accept grievances from “[a]ny persons 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 determination.3 But we have never held that a Bivens alternative

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 “constitutional 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). Page Proof Pending Publication

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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 officials 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 action into grounds for a retaliation claim. And, “[b]ecause an official'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 “threaten[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 difficulties and expense.” Schweiker, 487 U. S., at 425. Federal employees “face[d with] the added risk of personal liability for decisions that they believe to be a correct response to improper [activity] would be deterred from” carrying out their duties. Bush, 462 U. S., at 389. We are therefore “convinced” 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 official duties” when he retaliated against him. 998 F. 3d, at 391. Neither rationale has merit. Page Proof Pending Publication

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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 pursuant 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, actually “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 Amendment claims.

Boule responds that any hesitation is unwarranted because this Court in Passman already identified a Bivens cause of action under allegedly similar circumstances. There, the Court permitted a congressional staffer to sue a congressman 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 official's motives for taking an adverse action against the plaintiff.

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In short, as we explained in Ziglar, a plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Bivens, Passman, or Carlson unless he also satisfies the “analytic framework” prescribed by the last four decades of intervening case law. 582 U. S., at 139. Boule has flailed to do so.

Since it was decided, Bivens has had no shortage of detractors. See, e. g., Bivens, 403 U. S., at 411 (Burger, C. J., dissenting); id., at 427 (Black, J., dissenting); id., at 430 Page Proof Pending Publication

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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 decades to find 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 first 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 first step from the second? What makes a context “new” or a factor “special”? And, most fundamentally, on what authority may courts recognize 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 Page Proof Pending Publication

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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 benefits 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-specific analysis. And there I confess difficulties. The plaintiff is an American citizen who argues that a federal law enforcement officer violated the Fourth Amendment in searching the curtilage of his home. Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself. To be sure, as the Court emphasizes, the episode here took place near an international border and the officer's search focused on violations of the immigration laws. But why does that matter? The Court suggests that Fourth Amendment viola-Page Proof Pending Publication

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Of course, the Court's real messages run deeper than its case-specific analysis. If the costs and benefits do not justify 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 Congress 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, someday 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 Egbert, 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 Boule to seek compensation for his injuries in federal court. Page Proof Pending Publication

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Today's decision does not overrule Bivens. It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, 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.

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 flails to do so, the factual record is described below in some detail, in the light our precedent requires.

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 Page Proof Pending Publication

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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 flown 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 followed 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 remained 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 Egbert 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 vehicle and then threw him to the ground. Boule landed on his

hip and shoulder. Page Proof Pending Publication

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Boule complained to Agent Egbert's superiors about the incident and filed 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 Assessor's Office, 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 filed claims pursuant to the Federal Tort Claims Act (FTCA), which were denied. CBP's investigation of Agent Egbert concluded that he flailed to be forthcoming with investigators and “demonstrated lack of integrity,” serious offenses that warranted his removal. Rev. Redacted App. 184.

Boule sued Agent Egbert in Federal District Court, seeking 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 extension 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 Page Proof Pending Publication

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This Court granted certiorari. 595 U. S. ––– (2021).

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 arrest 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 seizures 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 authority 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 protected 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

This Court has twice extended the cause of action first articulated in Bivens: first to a Fifth Amendment due process claim for sex discrimination, see Davis v. Passman, 442 U. S. 228 (1979), and then to an Eighth Amendment deliberate 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 effective.” 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. Robbins, 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 conflicting policy considerations,” Bush, 462 U. S., at 388, this Court concluded that “it would be inappropriate . . . 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. Page Proof Pending Publication

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In Ziglar v. Abbasi, 582 U. S. 120, the Court not only declined 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 first 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 officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” 582 U. S., at 140. The Court recognized, however, that some differences “will be so trivial that they will not suffice 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 demanding 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 Page Proof Pending Publication

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Ziglar and Hernández control here. Applying the two-step framework set forth in those cases, the Court of Appeals' determination that Boule's Fourth Amendment claim is cognizable under Bivens should be affirmed for two independent 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-file federal law enforcement officers 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

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 artificial 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 Officers, 2016—Statistical Tables (NCJ 251922, Oct. 2019), https:// bjs.ojp.gov/content/pub/pdf/fleo16st.pdf. Indeed, if the “new context” inquiry were defined at such a fine level of granularity, every case would raise a new context, because the Federal Bureau of Narcotics no longer exists. See National Archives, Records of the Drug Enforcement Administration [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 decision 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 individual's employer,” rather than “the individual directly responsible 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 enforcement officers is “meaningful,” which our precedents require him to do. Id., at 139. Page Proof Pending Publication

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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 defined the phrase `special factors counselling hesitation,' ” but it has recognized that the “inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” 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 implementation 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 officers, citing concerns about “tamper[ing] with the established relationship between enlisted military personnel and their superior officers,” which lies “at the heart of the necessarily unique structure of the Military Establishment”). Precedent thus establishes that “separation-of-powers principles . . . should be central to the [special-factors] analysis.”

Ziglar, 582 U. S., at 135. Page Proof Pending Publication

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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 occurred exclusively on U. S. soil, and the injury was to a U. S. citizen. This case therefore does not present an “international 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 emphasized that “some [CBP agents] are stationed right at the border and have the responsibility of attempting to prevent illegal 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 Page Proof Pending Publication

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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 unlawfully present in the United States brought a Bivens action against three “high executive officers 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 executive officers “would call into question the formulation and implementation of a general policy,” and that the discovery and litigation process would “border upon or directly implicate the discussion and deliberations that led to the formation 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 officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis,” and “the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office.” 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 officer, 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 who recently had been through U. S. customs to boot. Page Proof Pending Publication

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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 conclusion 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 analysis. See Ziglar, 582 U. S., at 148 (noting that a case can present a new context if it implicates a different constitutional 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 identified in Wilkie, 551 U. S. 537. In Wil-kie, a landowner sought to bring a Bivens action against federal officials whom the landowner accused of harassment and intimidation meant to extract an easement across his property. 551 U. S., at 541. The Court observed that “defining 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 Page Proof Pending Publication

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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 officers, 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 efficiency 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 identifies, ante, at 497–500, but because precedent requires it.

f the legal standard the Court articulates to reject Boule's Fourth Amendment claim sounds unfamiliar, that is because it is. Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted 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 inconsistent with governing precedent.

Two Terms ago, this Court reiterated and reaffirmed Ziglar's two-step test for assessing whether a claim may be Page Proof Pending Publication

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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 benefits 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 justifies its innovations by selectively quoting our precedents and presenting its newly announced standard as if it were always the rule. The Court's repeated citation 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 , Page Proof Pending Publication

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The Court further declares that “a plaintiff cannot justify a Bivens extension based on `parallel circumstances' ” with previous cases that have recognized a Bivens 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”). Indeed, 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 itself. Supra, at 511–513. 3

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 context, the Court's insistence that national-security concerns bar the claim directly contravenes Ziglar. Moreover, the Court's holding that a nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake, constitutes 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 parallel 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 unquestionably has national security implications,' and the `risk of undermining border security provides reason to hesitate before extending Bivens into this field.' ” 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 conclusion that this case, which involves a physical assault by a federal officer 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; infra, 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 provided both a cause of action and an exclusive damages remedy for the claim at issue, clearly precluded a Bivens claim. Page Proof Pending Publication

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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 enforcement officers may enter private property near a border at any time or for any purpose. Quite the contrary: Congress has determined that immigration officers 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 allowance is itself subject to exceptions: Officers 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.”

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The consequences of the Court's drive-by, categorical assertion 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 violations by CBP's nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic 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 context-specific nature of Bivens and shrinks Bivens in the core

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 remedy 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, direction, and supervision of all employees and of all the files 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 proceedings or to seek judicial review of any determination. Ante , at 496–497. The Court supports its conclusion that

This analysis drains the concept of “remedy” of all meaning. To be sure, the Court has previously deemed Bivens claims foreclosed by “substantive” remedies to claimants that are in significant 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 anguish, 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 afford[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 “adequate” 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 (petition for writ of habeas corpus or injunctive relief); Bush, 462 U. S., at 385. 7

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 quotation marks omitted)). Just two Terms ago, the Court reaffirmed that by carving out claims “ `brought for . . . violation[s] of the Constitution' ” from the FTCA's “ `exclusive remedy for most claims against Government employees arising out of their official 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)). Page Proof Pending Publication

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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 expressing 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 extend Bivens to new contexts, this Court has reaffirmed that it did “not inten[d] to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context 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 context, the lower courts should not read it to render Bivens a dead letter.

That said, the Court plainly modifies 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 insistence that “prescribing a cause of action is a job for Congress, not the courts.” Ante , at 486; see ante, at 496 (cautioning 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,

* * *

This Court's precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Court's decision today ignores our repeated 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. Page Proof Pending Publication

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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 official 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 filed 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”

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