Legal Docket - Accountability for federal officials

MARY REICHARD:  Today is Monday, April 4th and this is The World and Everything in It from WORLD Radio. We’re glad you’ve joined us today! I’m Mary Reichard.

NICK EICHER:  And I’m Nick Eicher. It’s time for Legal Docket.

The US Supreme Court handed down an 8-1 decision last week in a highly technical dispute over arbitration.

It says federal courts have no authority to look through arbitration disputes … in search of a way to give federal courts jurisdiction over an arbitration panel … to confirm or vacate one of its decisions.

This is the case in which Justice Stephen Breyer’s gift for vivid expression really shines. Here he is during oral argument in November:

BREYER:  ...what we're doing here, normally, is we are having, let's call him an arbitration rat. There is the guy who loves arbitration and then there is the rat who hates it, although he agreed to it, okay? Now he will express his ratitude in many different ways.

NICK EICHER: Remember I said it was an 8-to-1 decision … sadly for him, he was the one, the lone dissenter. He may have said to himself, “rats!”

MARY REICHARD: I am so going to miss his wit when he retires!

Well, on to today’s analysis of an oral argument from March.

We’ll begin with this question: What can you do if a government official violates your constitutional rights?

Could you sue that official to obtain damages or some other remedy?

I’ll answer the question the way a lawyer would: it depends.

Depends whether the official is an agent of a state or local government. If so, you can sue. The reason is that the law explicitly says you can.

But suppose that official who violated your rights is not a state or local government official. Suppose that he is a federal official?

Generally speaking, you cannot sue the federal official. Except where a statute specifically authorizes it or a decision from case law says so.

NICK EICHER: Supreme Court case law does allow you to sue in these instances: specifically in cases where federal agents violate your rights under the Fourth, Fifth, and Eighth Amendments.

Those exceptions are known as Bivens actions. They come from a case in 1971 that made the first exception. Bivens allows you to sue federal officials for civil-rights violations and seek money damages.

But only sometimes … as Mary just said … it depends.

This area of the law is such a mess that it prompted Judge Don Willett of the 5th Circuit court of appeals to write with great urgency … that Bivens has created a Constitution-free zone to brutalize citizens.

MARY REICHARD: So here we are again.

This case arose in 2014 near the border between Washington State and Canada. Robert Boule owned a bed and breakfast on the U.S. side when border patrol agent Erik Egbert came onto the property. Egbert didn’t have a warrant but confronted a guest from Turkey about his immigration status. Boule asked him to leave, Egbert refused, a physical altercation broke out, and Boule got the worst of it.

NICK EICHER: Boule sued under the Fourth Amendment’s prohibition against unreasonable search and seizure. He also sued under the First Amendment. That’s because after Boule complained to Egbert’s boss, Egbert allegedly retaliated when he told the IRS to audit Boule.

Freedom of speech means Americans have a right to complain without retaliation from the government.

So the legal question is: can Boule sue Egbert under Bivens?

Boule’s lawyer Felicia Ellsworth answered, yes. Note we’ve edited these sound bites to make them shorter and clearer.

Ellsworth:  Although the reach of Bivens may be narrow, the need for the remedy persists, and the argument that the Court should not recognize a Bivens remedy in any new case flies in the face of this Court's decision just five terms ago… and also would contravene the historical foundations allowing individual damages to right a federal officer's constitutional wrong.

MARY REICHARD: Therefore, her client’s case ought to be allowed to proceed.

The rub is that the high court’s been hesitant to expand that right to sue federal officials. It hasn’t applied it to other constitutional rights—like the First Amendment. And this is one of innkeeper Boule’s claims.

Justice Clarence Thomas got right to that point with Ellsworth:

Thomas: But aren't you up against the fact that we have declined to apply or extend Bivens in recent history? We've almost universally declined to expand it into new contexts?

Ellsworth: That's correct, Justice Thomas. And we don't think this is a new context …This is an unlawful entry without a warrant, and this is excessive force on private property against a U.S. citizen on domestic soil.

Good lawyer tactic—distinguish your client’s facts from precedent that goes against him. Ellsworth argued that Boule’s facts are similar to the facts of earlier high court decisions that permitted lawsuits against federal officials.

But the other lawyer, for border patrol agent Egbert, says these facts represent a new context. So Bivens doesn’t apply, and that shields his client from liability.

Egbert’s lawyer Sarah Harris argued for a much broader view:

Harris: Zooming out even further, courts have to ask…what are the costs of that going to be for the Border Patrol? What are the litigation costs? What are the systemic costs going to look like? What's the deterrent effect on top of all of the other remedies that are out there for dealing with this type of conduct, including the internal investigations Congress has mandated? So I think that really is the right level of generality.

Maybe you wonder why the court can’t just look at the facts and say, yes, the federal government went too far, so we’ll impose liability when it violates constitutional rights.

It’s complicated, but one reason is the judicial philosophy about the role of the courts has changed since the earlier Bivens cases. The court once saw it as the right thing to do to create remedies to enforce statutes.

That’s changed. Now, the majority would rather defer to lawmakers to craft, well, the law … the justices see that as the proper role of Congress—the elected branch closest to the people. The modern court therefore takes a more cautious approach to what some see as legislating from the bench.

So, they’ll apply Bivens under the same circumstances as it was applied in the past. But not allow it in new contexts or where other factors “counsel hesitation.”

Justice Stephen Breyer tried to find the distinctions between the facts here and those other cases. Remember, “Bivens action” means the ability to sue a federal official for violating constitutional rights.

Breyer: Well, after 9/11, there were quite a few local policemen, I believe, as well as FBI agents and federal police, in New York City looking for terrorists, which is certainly a national law enforcement function. So is it the position of the Solicitor General and the government that if any of those normal agents that fall under Bivens, FBI, I take it, ordinary police, et cetera, federal police officials, if they had beaten somebody over the head unreasonably and acted contrary to the Constitution, there would be no Bivens action?

Michael Huston, lawyer for the DOJ in support of agent Egbert, answered that Justice Breyer was correct in his view: there’d be no Bivens action in those situations.

Justice Breyer continued finding distinctions. He mentioned the kinds of federal agents who can be sued under Bivens: federal marshals, and FBI and DEA agents.

Breyer: Okay. So now they have the same job basically if you look at it in terms of arresting people for violations of federal law. They have the same authority to carry weapons. …But you are saying all those people to whom Bivens now applies, if the person they are arresting is a person who has a connection with, let's say, foreign dubious groups abroad, no Bivens action?

Huston: Yes, that's right, Your Honor. And I think this --

Breyer: Would you call that an extension of Bivens or a drawing back of what people thought Bivens was about?

“Extension or drawing back of Bivens.” That tells you the extent of confusion around the Bivens doctrine.

Justice Sonia Sotomayor reminded everyone that no law enforcement agents can constitutionally use excessive force. No matter which federal agency employs them.

But with no remedy to check them, the prohibition has no teeth.

Justice Elena Kagan seemed skeptical of the argument that every time the facts involve checking immigration status of someone, that Bivens doesn’t apply. Listen to this exchange with Huston, again, lawyer in support of border-patrol agent Egbert:

Huston: Your Honor, the Court in Hernandez said that the protection of the border, the prevention of the unlawful entry of persons and drugs and other contraband, has a clear and substantial connection to national security.

Kagan: I mean, Hernandez is a very different kind of case, right? It's a cross-border shooting, and, you know, it clearly had implications for the relationship between the United States and Mexico...

Huston is referring to the Hernandez decision from 2020. Hernandez said the parents of a Mexican teenager shot and killed in Mexico by an American border patrol agent in the United States couldn’t sue that agent under the precedent in Bivens. Why? Because the claim arose from a “new context” and it involved separation of powers factors.

So, if parents in that tragic situation couldn’t sue under Bivens, it points to the reluctance of this court to allow a Bivens suit in the Boule case. He just says he was roughed up and retaliated against.

I’ll end with another quote from Judge Willett’s concurrence from a case last year: “I am certainly not the first to express unease that individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less. A written constitution is mere meringue when rights can be violated with nonchalance. I add my voice to those lamenting today’s rights-without-remedies regime, hoping (against hope) that as the chorus grows louder, change comes sooner.”

And that’s this week’s Legal Docket.