Egbert v. Boule

Summary

The authority of a court to imply a cause of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, does not extend to either Boule’s Fourth Amendment excessive-force claim or his First Amendment retaliation claim.

Text

PRELIMINARY PRINT 
Volume 596 U. S. Part 1 
Pages 482–527 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 8, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
Page Proof Pending Publication
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

Page Proof Pending Publication
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.

Page Proof Pending Publication
Cite as: 596 U. S. 482 (2022) 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 EGBERT 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 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 ag-
grieved 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 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-
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 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 
Page Proof Pending Publication

486 EGBERT 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. 
Page Proof Pending Publication

Cite 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. 
Page Proof Pending Publication
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 unlawfully entered the United States as 
“guests” at the Inn and offer to drive them to Seattle or

488 EGBERT 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. 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 489 
Opinion of the Court 
Later that afternoon, Agent Egbert observed one of 
Boule's vehicles—a black SUV with the license 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 
Page Proof Pending Publication

490 EGBERT v. BOULE 
Opinion of the Court 
referencing illegal conduct, and by contacting the Internal 
Revenue 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-discrimination claim, see Davis v. Passman , 
442 U. S. 228 (1979); and second, for a federal prisoner's 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 491 
Opinion of the Court 
inadequate-care claim under the Eighth Amendment, see 
Carlson 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-
Page Proof Pending Publication

492 EGBERT v. BOULE 
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-
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 493 
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. 
Page Proof Pending Publication

494 EGBERT v. BOULE 
Opinion of the Court 
Fourth Amendment excessive-force claim and First Amend-
ment retaliation claim. 
A 
The Court of Appeals conceded that Boule's Fourth 
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., 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 495 
Opinion of the Court 
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. 
Page Proof Pending Publication

496 EGBERT v. BOULE 
Opinion of the Court 
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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 497 
Opinion of the Court 
perhaps more likely to impact the national security of the 
United 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 
Page Proof Pending Publication

498 EGBERT v. BOULE 
Opinion of the Court 
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). 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 499 
Opinion of the Court 
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. 
Page Proof Pending Publication

500 EGBERT v. BOULE 
Opinion of the Court 
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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 501 
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 
Page Proof Pending Publication

502 EGBERT v. BOULE 
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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 503 
Gorsuch, J., concurring in judgment 
boils down to a “single question”: Is there “any reason to 
think 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-
Page Proof Pending Publication

Page Proof Pending Publication
504 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
tions matter less in this context because of “likely” national-
security 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 
Boule to seek compensation for his injuries in federal court.

Cite as: 596 U. S. 482 (2022) 505 
Opinion of Sotomayor, J. 
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 
Page Proof Pending Publication

506 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
directions. Boule began serving as a paid, confdential in-
formant 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. 
Page Proof Pending Publication

Page Proof Pending Publication
Cite as: 596 U. S. 482 (2022) 507 
Opinion of Sotomayor, J. 
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

508 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 509 
Opinion of Sotomayor, J. 
before it “involve[d] no special factors counselling hesita-
tion,” 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. 
Page Proof Pending Publication

510 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
those addressed in Davis, Carlson, and Bivens itself. See 
ante, 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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 511 
Opinion of Sotomayor, J. 
by allowing some redress for injuries” and “provides instruc-
tion 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-
Page Proof Pending Publication

512 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
agent rather than a Federal Bureau of Narcotics agent who 
unlawfully 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. 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 513 
Opinion of Sotomayor, J. 
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. 
Page Proof Pending Publication

514 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
Here, the only possible special factor is that Boule's prop-
erty 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 
Page Proof Pending Publication

Page Proof Pending Publication
Cite as: 596 U. S. 482 (2022) 515 
Opinion of Sotomayor, J. 
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 
who recently had been through U. S. customs to boot.

516 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
See id., at 144 (distinguishing a challenge to “individual in-
stances 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 
Page Proof Pending Publication

Page Proof Pending Publication
Cite as: 596 U. S. 482 (2022) 517 
Opinion of Sotomayor, J. 
governmental action affecting property interests” 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 
Ziglar's two-step test for assessing whether a claim may be

518 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
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, 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 519 
Opinion of Sotomayor, J. 
at 496. Stanley, however, cautioned against a case-specifc 
special-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 
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”). 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 
Page Proof Pending Publication

520 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
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; 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 pro-
vided both a cause of action and an exclusive damages remedy for the 
claim at issue, clearly precluded a Bivens claim. 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 521 
Opinion of Sotomayor, J. 
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. 
Page Proof Pending Publication

522 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
Remarkably, the Court goes beyond invoking its national-
security 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). 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 523 
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). 
Page Proof Pending Publication

524 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
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 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 525 
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)). 
Page Proof Pending Publication

526 EGBERT v. BOULE 
Opinion of Sotomayor, J. 
than Congress, and even if wholly nonparticipatory and lack-
ing 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. 
Page Proof Pending Publication

Cite as: 596 U. S. 482 (2022) 527 
Opinion of Sotomayor, J. 
after all, has recognized and relied on the Bivens cause of 
action 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. 
Page Proof Pending Publication

Page Proof Pending Publication
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”

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 596 U. S. Part 1 Pages 482–527 OFFICIAL REPORTS OF THE SUPREME COURT June 8, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notif…

• #2

  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 all…

• #3

  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 …

• #4

  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 …

• #5

  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 argu…

• #6

  (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 proc…

• #7

  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 488 EGBERT v. BOULE Opinion of the Court elsewhere. He also would pick up Canada-bound gue…

• #8

  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 gues…

• #9

  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 fashi…

• #10

  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- Page Proof Pending Pu…

• #11

  Page Proof Pending Publication Cite as: 596 U. S. 482 (2022) 493 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”…

• #12

  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 bor…

• #13

  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…

• #14

  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…

• #15

  (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 judicia…

• #16

  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 wi…

• #17

  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…

• #18

  claims, Passman carries little weight because it predates our current approach to implied causes of action and diverges Page Proof Pending Publication Cite as: 596 U. S. 482 (2022) 501 Opinion of the Court from the prevailing framework in three important ways. First, the Passman Court concluded that a Bivens act…

• #19

  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 …

• #20

  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– 2…

• #21

  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…

• #22

  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 recor…

• #23

  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 hi…

• #24

  be foreclosed; rather, “Boule's Fourth Amendment excessive force claim is part and parcel of the `common and recurrent 508 EGBERT v. BOULE Opinion of Sotomayor, J. 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).…

• #25

  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, an…

• #26

  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 s…

• #27

  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 f…

• #28

  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 Ei…

• #29

  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 structur…

• #30

  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 Page Proof Pending Publication Page Proof Pending Publication Cite as:…

• #31

  who recently had been through U. S. customs to boot. 516 EGBERT v. BOULE Opinion of Sotomayor, J. See id., at 144 (distinguishing a challenge to “individual in- stances of discrimination or law enforcement overreach,” which lends itself to a Bivens action, from a challenge to “large-scale policy decisions,” whic…

• #32

  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 constit…

• #33

  (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)…

• #34

  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 previous cases that have recognized a Bivens remedy. Ante, at 501. To the extent these statements suggest an exacting new-context inquiry, they ar…

• #35

  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 phy…

• #36

  “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, particularl…

• #37

  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). Page Proof Pending Publication Cite as: 596 U. S. 482 (2022) 523 Opinion of Sotomayor, J. Fourth Amendment law enforcement sphere where it is …

• #38

  Force, § X, Policy Statement 044–05 (Sept. 7, 2018). Page Proof Pending Publication 524 EGBERT v. BOULE Opinion of Sotomayor, J. 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 appe…

• #39

  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 …

• #40

  ing 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…

• #41

  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 rec…