FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

R O B E R T B O UL E , Plaintiff-Appellant
,

v

.

E R I K E GB E R

T ; J A NE D O E E GB E R

T , and their m arital com m

un ity, Defendants-Appellees. No. 18-35789

D.C. No. 2:17-cv-00106- RSM

ORDER AND AMENDED OPINION

Appeal from

the United States District Court for the W estern District of W ashington Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Subm itted October 7, 2020 Seattle, W ashington

Filed Novem

ber 20, 2020 Am ended May 20, 2021

Before: Susan P. Graber and W illiamA. Fletcher, Circuit Judges, and Nancy D. Fre udenthal, * District Judge.

* The Honorable N ancy D. Freudenthal, United States District Judge for the District of W yom ing, sitting by designation.B O UL E V

. E GB E R T 2

O rder;

Dissent to Order by Judge Bum atay; Dissent to Order by Judge Owens; Dissent to Order by Judge Bress; Opinion by Judge W

. Fletcher

SUMMARY * *

C ivil Rights

The panel am ended its op inion f iled on Novem

ber 20, 2 02 0
, o rdered the am ended opinion to be filed concurrently with the panel’s order, and denied a petition for rehearing en banc after the m atter failed to receive a m ajority of the votes of the n o n -r e c used active judges in favor of en banc consideration.

In the am ended opinion, the panel reversed the district court’s summ ary judgm ent for defendants in a n a c tion brought pursuant to Bivens v. S ix U nknown Named Agents of Federal Bureau of Narcotics
, 403 U.S. 388 (1971) b y a United States citizen who alleged that a border patrol agent, acting on plaintiff’s property wi thin the United States, violated plaintiff’s rights under the First and Fourth Am endm ents.

Plaintiff o wns, operates and lives in a bed and breakfast in the state o f W ashington, on land which touches the United States-Canada border. Plainti ff alleged that a border patrol

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.B O UL E V

. E GB E R T 3

agent entered the driveway of plaintiff’s property to question arriving guests; used e x ce s s ive force against plaintiff, and then, in response to plaintiff' s com plaints, retaliated ag a i n s t plaintiff by, am ong other things, contacting the I nternal Revenue Service, asking the agency to look into pl a i ntiff’s tax status. The district court granted summ ary judgm ent to defendants on plaintiff’s Fourth an d F irst Am en dm ent claim s, holding that claim s were im perm issible extensions of Bivens

.
The panel h eld that Bivens rem edies were available in the ci r c u ms tances of this case, where a United States citizen

c l aim ed that a border patrol agent violated the Fo urth Am endm ent by u sing excessive force while carrying ou t official duties within the United S tates and violated the First Am endm ent b y engaging in retaliation for protected speech.

Addressing the Fo urth Am endm ent claim
, the panel agreed with the district court that it presented an extension o f previous Bivens cas e s in that A gent Egbert was an agent o f the b order patrol rather than o f the F .B.I. But it was a m odest extension, i n th at b order patrol and F.B.I. agents are both federal law enforcem ent officials, and in that plaintiff’s F o u r t h A m e n d m e n t e x c e s s i v e f o r c e c l a i m w a s indistinguishable from Fo urth Am endm ent excessive force claim s that are routinely brought under Bivens against F.B.I. agents. The panel did not find that special factors counseled hesitation su c h tha t a Bivens action in this new context was foreclosed. Plaintiff, a United States citizen, brought a
c onventional Fourth Am endm ent excessive force clai m arising out of actions by a rank-and-file border patrol agent

on plaintiff’s own property in the United States. This context

was a far cry from the contexts in Z iglar v. Abbasi
, 137 S

. Ct. 1843, 1 857 (2017), and Hernandez v. Mesa
, 140 S. Ct

. 735, 743 (2020), where the Suprem e Court found that specialB O UL E V

. E GB E R T 4

factors counseled against a Bivens action. The panel held that any costs im

posed by allowing a Bivens claim to proceed

were o utweighed by com pelling interes t s i n favor o f protecting United States citizens on their own property in the United States f

ro m un co n stitu

tio n a l activ ity b y f

ed eral agents.
Addressing the F irst Am endm ent claim
, the panel noted that although the Suprem e C ourt wrote in Hartman v. Moore
, 547 U.S. 250 (2006), that Bivens extends to First Am endm ent

r e taliation claim s when federal law enforcem ent officials h av e n o innocent m otives for their action, the panel recognized that the Suprem e Court has not expressly so held. The panel therefore concluded that plaintiff’s First Am endm ent retalia t i o n claim arose in a new context. Ho wever, the panel found no special factors that m ade i t inadvisable to find a cognizable Bivens claim

. The p anel first noted that in Gibson v. United S tates , 781 F.2d 1334 (9th Cir. 1986), this court up h e ld a Bivens claim against federal officers who sought to curb p l a i n tiff’s p rotected First Am endm ent speech. Second, although the panel recognized that the Suprem e Court declined to recognize a B ivens action in Bus h v

. Lu cas , 462 U.S. 367 (1983), that case involved a very different context, arising o ut of an em ploym ent relationship that was governed by com prehensive procedural and substantive provisions giving m eaningful rem edies against the United States. Third, there was even less reason to hesitate in extending Bivens to plaintiff’s First Am endm ent retaliation claim th a n th ere was to his Fourth Am endm ent excessive force claim given that Agent Egbert w as not carrying out his o fficial duties when h e contacted the Internal Revenue S ervice and other agencies asking for investigation of plaintiff.B O UL E V

. E GB E R T 5

The panel rejected the suggestion that pl a i nt iff h ad alternative rem edies that w ould defeat a Bivens claim

. The panel first noted that in Carlson v. Green
, 446 U.S. 14 (1980), the Suprem e Court held that the existence of a rem edy under the Federal T orts Claim Act, 28 U.S.C. § 2680(h) did not foreclose a Bivens action. S econd, a state-law trespass claim against A gent Egbert in his individual capacity was b arred by the W estfall Act. Finally, injunctive relief was an inadequate

rem edy, for plaintiff was seeking d a mages rather than protection against som e future act.

Dissenting from the denial of rehearing en banc, Judge Bum atay, joined by Judges Callahan, Ikuta, Be nnett, R. Nelson, Lee an d Va n Dyke, stated that the court h ad extended Bivens v. Six Unknown Named Ag e nts of Federal Bureau of Narcotic s , 403 U.S. 388 (1971) to two new contexts : on e involving the F irst Am endm ent and another involving the Fourth Am endm ent at the border. By avoiding the Constitution’s lim its on the judicial power, the court h ad becom e an outlier am ong its fellow circuit courts, established itself as a qu a s i-legislature and im properly disregarded the Suprem e Court’s precedents. Judge B um atay wrote that the court could not respond to e xecutive transgression o f the Constitution with its own judicial overreach; it w as not within the power of federal judges to create a cause o f a ction for plaintiff, no m atter how convinced they were that he deserved

one.
Dissenting from th e denial of rehearing en banc, Judge Owens, referring to a law review article he wrote in 19 9 7, John B. Owens, Note, Judge B aer and th e Po l i t i cs of the F o u r th Ame nd

me n t: A n A l t e rn a t i v e t o B a d M a n Jurisprudence
, 8 Stan. L. & Pol’y Rev. 189 (1997) (pointing out the lim itations of B ivens actions and setting forth som eB O UL E V

. E GB E R T 6

adm ittedly pie in the sky solutions), stated that he continues t o b elieve that new legislation that p erm its plaintiffs t o vindicate their rights is better than the current jurisprudential word jum ble.

Dissenting from the denial of rehearing en banc, Judge Bress, joined by Judges Bade, C ollins and Hu n s a ker, stated that the pa nel opinion in this case recognized two novel im plied rights of action under Bivens

. In so doing, the panel decision was significantly out of step with m odern Suprem e Court cases emphasizing that the Bivens rem edy is not to be lightly extended. Judge Bress st a t e d that there w ere m any
reasons counseling h esitation in devising court-created First and F o urth Am endm ent dam ages rem edies against a federal agent for actions relating to his in v estigation of an international traveler near the international border.

C OUNSEL

Breean L. Be g g s (argued), Paukert & Troppm ann PLLC, Spokane; Gregory Donald Boos, W

. S c o tt R ailton, and Halley Carlson Fisher, Cascadia Cross-Border Law, Bellingham
, W ashington; for Plaintiff-Appellant.

Geoff Grindeland (argued) and Nikki Carsley, Seam ark Law Gr o up PLLC
, B a i nb r i d g e I s l a n d
, Wa s h i n g to n, fo r Defendants-Appellees.

Matt Adam s (argued), Northwest Imm igrant Right s Project, Seattl e, W ashington; Mary Kenney, Am erican Imm igration Council, W ashington, D.C.; Trina Realm uto , Am erican Imm igration Council, Brookline, Massachusetts; for Am iciB O UL E V

. E GB E R T 7

Curiae Am erican Imm igration C oun c il and Northwest Imm igrant Rights Project.

ORDER

The o pinion filed on N ovem ber 20, 2020, and reported at Boule v. Egbert
, 980 F.3d 1309 (9th Cir. 2020), is am ended, and the am ended opinion is filed concurrently with this order.

An active judge of this court sua sponte requested a vote

on whether to rehear this case en banc. A vote w as taken and the m atter failed to receive a m ajority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35(f). Rehearing en banc is DENIED

.
Jud g e Bum atay’s, Judge Owens’s, and Judge B ress’s dissents from the denial of rehearing en banc are attached and filed concurrently with this order.

B U MA T A Y
, C ircu it Ju d g e, joined by CALL A H A N
, IK U T A
, BENNETT, R

. NELSON, LEE, and VANDYKE, Circuit Judges, dissenting fromthe denial of rehearing en banc:

Contrary to comm on belief, the Con s t i tution’s “radical innovation” is not i ts various enum erated rights—as cherished and fundam ental a s th e y are. 1 It is the Con s t i tut ion’s design for the separation of powers that has becom e am ong the “m ost im portant contributions to hum an

1 Neil Gorsuch, A Republic, If You Can Keep It 40 (2019).B O UL E V

. E GB E R T 8
liberty.” 2 H aving “lived am ong the ruins of a system of interm in g led legislative and judicial powers,” o ur Founders sensed the “s h a r

p necessity to separate the legislative from the judicial power.” Plaut v. Spendthrift Farm, Inc
., 5 1 4 U.S. 211, 219, 221 (1995). T he result is the clear d i v i s i on o f authorities between Congress’s “legislative powers” and the Judiciary’s “judicial P ower.” U.S. Co ns t

. a rt

. I, § 1; id. art. III, § 1.

In this case, we are asked to d e c id e which b ranch o f go v e rn m ent m ay create the legal rem edies available to the people for constitutional violations. From the ratification o f th e Bill o f Rights until 1971, the Judiciary has rightfully respected the separation o f powers and deferred to Congress and the States to provide rem edies for such violations. That all changed when the Suprem e Court for the first tim e read an implied cause of action into the Constitution for violation o f the Fourth Am endm ent. See Bivens v. Six Unknown Named Agents o f Federal Bureau of

Narcotics
, 403 U.S. 388 (1971). The Court, of course, did not ground such a ruling in the text

or history o f the C onstitution, but relied on the am orphous belief that federal courts have the authority to “m ake good the wrong done.” Id . at 396.

Since then, however, the Court has seem ingly shown b uy er’s rem orse— recogn izin g B i ven s as a ju d icial u s urp atio n of the legislative function and blocking its expansion t o any
new am endm ents, contexts, o r defenda n ts. In consequence, the judicial practice of creating c o n s titutional causes of action is widely considered disfavored—if not a dead letter.

2 Id.B O UL E V

. E GB E R T 9
Against this cu

rren t, o ur court charges ahead, resurrecting Bivens in spite of the C ourt’s clear instructions. H ere, we extend Bivens to two n ew contexts: one involving the First Am endm ent and another involving the Fourth Am endm ent at the border. Never m ind that the Court has neve r e x t ended Bivens to the First Am endm ent. And never m in d th a t i t has

never e x t e n d ed Bivens to any case with n ational security im plications.

By avoiding the C onst i tu t ion’s lim its on the “judicial Power,” we become a n outlier am o n g our fellow circuit courts and establish ourselves as a quasi-legislature. Because

we far exceeded our lim ited judicial role and im properly disregarded the Court’s precedents in this case, I respectfully dissent fromthe denial of rehearing en banc.

I.

Robert Boule operates a b ed an d b r eak f ast l o c ated directly adjacent to the b order with Canada, in Blaine, W ashington. Boule v. Egbert
, 9 80 F.3d 1309, 1312 (9th Cir. 2020). The B&B is aptly called “Sm uggler’s Inn
, ” b e c ause it’s a notorious site for illegal border crossing. 3 Large shipme nts

o f cocaine, m etham

phetam ine, ecstasy, and opiates have previously b een intercepted at Sm uggler’s Inn. U.S. Border Patrol Agent E rik Egbert k new about this history. In fact, as
a Border P atr o l Agent investigating counterterrorism and cross-border crim es , Ag e nt Egbert h ad been to Sm uggler’s Inn m any tim es while on patrol and h ad apprehended persons who had illegally crossed the border at the spot.

3 Boule has since been arrested by Canadian authorities and charged with hum an trafficking.B O UL E V

. E GB E R T 10

While o n duty, Agent Egbert encountered Boule in town. To Egbert’s recollectio n , Boule told him that a Turkish national would be arriving at S m uggler’s Inn that day. Boule said that two of his em

ployees went to the airport to pick up the individual. Agent Egbert decided to investigate the Turkish national’s arrival.

Later that day, Agent Egbert w aited in his patrol car near Sm u ggler’s Inn for the Turkish guest. Wh e n th e vehicle transporting the guest arrived, Agent Egbert followed it into the Inn’s driveway. As Egbert approached, Boule asked the agent to leav e

. Agent E gbert refused, so Boule stepped between Egbert and the vehicle. Agent E gbert responded by pushing h i m to the ground, which later caused him to seek

m edical tr e atm ent. Agent Egbert then determ ined that the Turkish guest w as lawfully in the country. Afterward, Boule

com plained to Egbert’s superiors about the incident. In retaliation, Boule says, Agent Egbert conta c t e d the Internal Revenue Service (asking it to investigate Boule’s tax status) and various other governm ent agencies.

Bo u l e then brought this suit—filing Bivens claim s for dam ages under the F irst and Fourth Am endm ent. First, Boule asserts that Agent Egbert violated his F irst Am endm ent rights by retaliating against him for c o mp l aining to the agent’s super i o r s about the incident. Second, Boule contends that Agent E gbert violated his Fourth Am endm ent rights when he

cam e onto his property, refused to leave, and pushed him to the ground.

The district court granted summ ary judgm ent in favor o f Agent Egbert, refusing to extend Bivens under e i ther

am endm ent. Boule appealed, and the panel reve r sed. That

was error.B O UL E V

. E GB E R T 11

II.

The text o f the Constitution p rovides for n o express cause of action f

or dam ages against federal officials for violations of its p rovisions. And for alm ost 200 y ears, no implied cause of action existed under the Constitution either. That did not

m ean that rem edies w ere unavailab l e for constitutional infringem ents by federal officials. Indeed, it was considered axiom atic at the Founding that for every “legal right, there is also a legal rem edy.” Marbury v. Madison , 5 U.S. 137, 163 (1803) (discussing 3 W illiam Blackstone, Comm entaries *23). But Founding-era courts did n ot fashion their own dam ages rem edy under the Constitution.

Instead, from “the b eginning o f the n ation’s history,” federal courts have recognized that f ederal officials were subject to “co mmon law suits,” which served as the rem edy to their legal v iolations “as if they were private individuals.” Carlos M. Vázquez & Stephen I. Vladeck, Sta t e Law, the Westfall Act, and the N

a ture of the Bivens Question
, 161 U

. Pa. L

. Rev. 509
, 53 1 (2 0 13). Thus, at o ur Founding, “only state law

. . . furnished any redress f or

. . . unconstitutional conduct by federal officials.” Akhil Reed Am ar , Of Sovereignty and Federalism
, 96 Yale L.J. 1425, 1506 (1987) (describing the rem edy for the un constitutional search o f one’s hom e).

The Suprem e Court’s “ear l y adopted” rule was that a “governm ent agent [was] p ersonally liable for the breach o f any duty im

posed by the comm on l a w o r by statute unless” the action was author i ze d by federal law. N ote, Developments in the Law: Remedies Against the Un i t e d States a nd Its Officials
, 70 Harv. L. Rev. 827, 831–32 (1957). Under that rule, if the plaintiff could establi s h that theB O UL E V

. E GB E R T 12

official’s conduct violated the Constitution, the “defendant’s shield o f f

ederal power would dissolve, and he would s t a n d

as a naked [state-law] tortfeasor.” Am ar, supra, at 1506–07.

An early exam

ple of this r e m edial fram ework occurred during the Quasi-W ar between the United States and France in the adm inistration of President John Adam s. S ee Little v. Barreme
, 6 U.S. 170 (1804). At th e t i me , a f ederal statute authorized the President to o rder navy officers to seize ships sailing to France. Id. a t 1 7 0

– 73. But in the case, the

c o mm ander of an Am erican warship had seized a Danish cargo s h ip sailing from France. Id. The ship’s owner sued for trespass dam ages. Id. at 179. T h e Suprem e Court upheld the naval officer’s liability to suit because federal law did not warrant the capture of the ship. Id. at 176. As Chief Justice Marshall explained, a federal officer acting under federal law does so “at his peril;” if the officer’s actions “are not strictly warranted by law[,] he is answerable in dam ages to any person injured by [the action’s] execution.” Id. at 170.

This v iew persisted through the Civil W ar, when tort suits

were used against alleged fe d eral governm ent excesses. Andrew Kent, Are Damages Different?: Bivens and National Security
, 87 S. Cal. L

. Rev. 1123, 1163–64 (2014) (describing how “thousands of tort suits were filed against Union soldiers and civilian executive officials” during the Civil W ar).

The Suprem e C o urt co ntin u ed to adhere to this fram ework through m ost of the 20th century. In 1963, the Court still recognized that “[w]hen it com es to suit s fo r dam ages for abuse of power, federal officials are usua l l y g o verned by local law.” Wheeldin v. Wheeler
, 373 U .S. 647, 652 (1963). In the Court’s view, “[f]ederal law” m ay “suppl[y] the defense, if the conduct com plained of was done p ur s u a nt toB O UL E V

. E GB E R T 13

a federally im

posed duty or imm

unity f rom suit.” Id

. ( s i m plified). But it saw no occasion to create constitutio n al

causes of action. In that case, a plaintiff sought to sue federal officers for serving a subpoena in v iolation of th e Fourth Am endm ent. Id. at 649. Acknowledging the central role of the legislative branch in fashioning such a claim
, the Court held that Congress had passed “no g eneral statute m aking federal officers liable for acts comm itted ‘under color,’ but in violation, of their f

ederal authority.” Id

. at 652. “ Co ng ress could, of course, provide o therwise, but it has no t d o n e so.” Id

.

Less than a decade later, however, the Court altered this fram ework. In 1971, the S uprem e Court conclude d for the first time that the violation of a constitutional protection—in this case, the Fourth Am endm ent—could give rise to a cause of action for m oney dam ages against f ederal agents. Bivens
, 403 U.S. at 392
, 3 9 7

. While the Court conceded that the Fourth Am endm ent’s text did not authorize such dam ages, it relied on the lack of any “explicit congressional declaration” foreclosing m oney dam ages and reasoned that no “ s p e c ial factors” counseled the Court to “hesita t[e ]” to create a
rem edy in the absence of affirm ative action by Congress. Id

. at 396–97.

In the ten y ears following B ivens , the Court went on to accept im plied causes of action for constitutional viola t i o ns in only two additional cases. In 1979, the Court held that a fe d eral em

ployee could sue a congressm an for gende r discrim ination under the Fifth Amendm ent’s Due Process Clause. See Davis v. Passman
, 4 42 U

. S. 2 2 8 (1979). One year later, the Court h e l d th at a prisoner could sue federal prison offici a l s fo r failing to adequately treat his m edical

co n d itions under the Eighth Am endm ent’s Cruel an d Unu su alB O UL E V

. E GB E R T 14

Pun i sh ments Clause. See Carlson v. Green
, 446 U.S. 14 ( 1 9 80). This was the last tim e the Court has recogni z e d a
new B ivens claim

.
Since then, the C ourt has b acktracked on its adop t i o n of im plied rights of action under the C onstitution. In fact, the Court has repeatedly refused to extend Bive ns liability at all—not to any other am endm ent, new context, or category o f defendants. Corr. Servs. Co r p. v. Malesko
, 534 U.S. 61, 68 ( 2 0 0 1)

. By one count, the Court h as expressly refused to extend Bivens on ten separate o c casions. See Loumiet v. United States
, 948 F.3d 3 76, 381 (D.C. Cir. 2020). 4 Instead, Bivens a nd its progeny have been cast as a “relic” of the “heady d ays in wh i c h [the] Court assum ed comm on-law p owe rs to create causes of action.” C orr. Servs. C

or p

. , 534 U.S. at 75 (Scalia, J., concurring); see also Hernandez v. Mesa
, 140 S

. Ct. 735, 750 (2020) (Thom as, J., concurring) (“The foundation for Bivens

— the practice of creating im p lied

causes o f action in th e statutory context—has already been abandoned.”).

What brought about this change in the Court’s jurisprudence? W ell, since the 1980s, the Court has com e to “appreciate m ore fully the tension b etween this practice [of creating causes of action] and the Constitution’s separation o f legislative and judicial power.” Hernandez
, 140 S. Ct. at 741. As the Court r e co g n i zed, it is “a significant step under

4 Three tim es due t o the availability of alternative rem e dies; three tim es due to its national security o r m ilitary cont e x t; and three tim es because o f the involv em ent of new categories of d efendants, such as private individuals, private corporations, and federal agencies. Loumiet
, 948 F.3d at 381 ( collecting cases). And once, sim ply be c au s e t

he Court decided that Congress is in a better position to craft a rem edy for alleged retaliation by federal officials. Id

.B O UL E V

. E GB E R T 15
separation-of-powers principles for a court to determ ine that it has the authority, under the judicial p o wer, to create and enforce a cause of action f or dam ages against federal officials in order to rem edy a constitutional v iolation.” Ziglar v. Abbasi
, 1 37 S

. Ct. 1843, 1 856 (2017). Such act i o n “risks arrogating legislative power.” Hernandez
, 140 S. C t. at 741.

Fundam entally, “Congress is best positioned to evaluate whether, a nd the extent to which, m onetary and other liabilities should be im

posed upon individual officers and

em ployees of th e F ed eral G o v ern m ent b ased on constitutional torts.” I d

. at 742 (sim

plified). Thus, the Court has m ade clear that the expansion o f Bivens is a “‘disfavored’ judicial activity.” Abbasi
, 137 S. C t. at 1857 (quoting A shcro ft v. Iqbal , 556 U.S. 662, 675 (2009)).

For that reason, the Court h as adopted a two-step process t o l i mi t the recognition of new constitutional rem edies. Se e Wilkie v. Robbins
, 551 U.S. 5 3 7
, 5 50 (2007). The first question asks whether the claim a rises in a context different from what the Court has previously recognized. Hernandez
, 140 S. Ct. at 743. If so, the next question considers whether any special factors counsel hesitation before expanding Bivens to that new context. Id.

To decide whether any “special factors” bar the extension of Bivens
, the inquiry f

ocuses on “who should decide whether to provide f

or a dam ages rem edy.” Abbasi
, 137 S. Ct. at 1857 (sim plified). This analysis includes consideration of “the risk of interfering with the authority of the oth er branches,” “whether there are sound reasons to th ink Congress m ight doubt the efficacy or n ecessity of a dam ages r e medy,” and

“ wh e th er the Judiciary is well suited

. . . to consider an dB O UL E V

. E GB E R T 16
weigh the costs and benefits o f allowing a dam ages action to proceed.” Hernandez , 140 S. Ct. at 743 (simplified).

The threshold for what constitutes a “special factor” counseling hesitation is “rem arkably low.” Arar v. Ashcroft
, 585 F .3d 559, 574 (2d Cir. 2009). H esitation is counseled whenever “thoughtful discretion” would cause us to pause to

even “consider” recognizing a n e w c o ntext. Id

. If any special f actors do e x is t, “then courts must refrain from creating an im

plied cause o f action in that case.” C anada v. United States
, 950 F.3d 299, 309 (5th Cir. 2020) (sim plified). In other words, “if [the court ha s ] r e a s o n to pause before

ap p l y i n g Bivens in a new context or to a new class of defendants—[the court m

ust] reject the request.” Hernandez
, 140 S. Ct. at 743

. The lesson from the C ourt is, thus, a strong presum ption against expanding Bivens

. When answering the ultim ate question of who should d eci d e on the creation of a new cause of action, the answer is alm ost always Congress.

Against this legal backdrop, the court c l e a r ly erred in extending B ivens to two new contexts in this case.

III.

At bottom
, this case d istills down to the question of who should decide whether a right o f action should exist for alleged violations of the First Am endm ent and of the Fourth Am endm ent in the border enforcem ent context. This court’s

answer: Judges. Rather than deferring to Congress, we casually craft for Boule new causes of a c t i o n for his constitutional claim s. This flies in the face of everything the Court has told us o ver the last 2 0 years an d ignores our C o n stitu t io n ’ s c o re sep aratio n -o f

-p o w ers co n cern

. W e sh o u ld have corrected this error on en banc review.B O UL E V

. E GB E R T 17

A

.

In summ ary fashion, the panel fo un d no reason to pause before extending Bivens to Boule’s First Am endm ent claim

. See Boule
, 980 F.3d at 1316. It reasoned that retaliation is a well-known claim ag ainst governm ent officials and that Agent Egbert’s alleged retaliatory conduct was n ot related to his official d

uti e s as a Border P atrol agent. Id. The panel also d id not think any alternative rem edies existed for Boule. Id. at 1316–17. In its am ended opinion, the panel newly relies on dictum from Hartman v. Moore
, 547 U.S. 250, 256 (2006).

While the panel could th i n k of no reasons to h esitate, there are at least four: (1) congressional silence, (2) Suprem e Court precedent, (3) the precedent of our fellow circuits, and (4) the various potential alternativ e r e m edies available to Boule.

1.

Most f undam entally, the panel should not h ave created a
new First Am e ndme nt cause of action because that is the business of Congress, not the courts.

Liberty, Ham ilton fam o usly warned, has “every thing to fear” from the union of these two p owers. The Federalist No. 78 (Alexander Ham ilton). But, he ex p lained, “the g eneral liberty of the people can never be endangered

. . . so long as the judiciary rem ains truly distinct” from the legislature. Id. In 1625, Francis Bacon sim ilarly cautioned that “[j]udges ought to rem em

ber that their office is jus dicere , and not jus dare ; to interpret law, and n ot to m ake law, o r g i v e l a w. ” Francis Bacon, The Essays of Francis Bacon 251, 251 (MaryB O UL E V

. E GB E R T 18
Augusta Scott, ed. 1908). So, as federal judges, o ur l imited role is “to say what the law is,” and nothing m ore. Marbury
, 5 U.S. at 177. Conversely, it is “the exclusive province of the Congress” to craft legislation. T enn. Valley Auth. v. Hill
, 437 U.S. 153, 194 (1978).

The panel dispensed with these p rinciples when it created

a cause of action against federal officers for retaliation under the Fir s t Ame n dm ent. T he text of that am endm ent is, o f
course, not am enable to this construction: it pres c r i b e s only that “Congress shall m ake no law

. . . abridging the f reedom of speech.” U.S. Const. am end. I. Indisputably, this provision does not create a private cause of action. Rather, it sets o ut a “fundam ental law, lim iting the powers of the Legislature, and with which every exercise o f those p owers m ust, n ecessarily, be com p ared.” 5

Neither can Congress’s failure to create such a rem edy be characterized as accidental or unknowing. In 1946, Congress passed the F ederal Tort Claim s Act, “which waived the sovereign imm

unity of th e United States for certain torts

comm itted by federal em ployees.” Brownback v. K ing , 141 S. Ct. 740, 746 (2021) (quoting F.D.I

. C. v

. Meyer
, 510 U.S. 471, 475 (1994 ) ) ; s ee 28 U.S.C. §§ 1346(b)(1), 2674. C ongress h a s a l s o created a right of action for constitutional violations by sta te actors. S ee 42 U.S.C. § 1983. But insofar as Congress, through th e FTCA and § 1983, has not provided a rem edy to B o ule for his retaliation claim
, the separation o f powers comm ands that we m ust respect that silence. See Oliva v. Nivar
, 9 7 3 F. 3d 438, 444

5 Letter from Jam es Iredell to Richard S paight (Aug. 26, 1 787), in Gordon Wood, The Creation of the Am erican Republic 1776–1787, at 4 6 1 (1969).B O UL E V

. E GB E R T 19
(5th Cir. 2020) (the “silence of Congress” is a special factor counseling hesitation) ( quo t ing Abbasi
, 137 S. Ct. at 1862). Especially because, as the FTCA a nd § 1983 dem onstrate, “Congress

. . . k

nows how to create a cause o f a c t ion to

recover dam ages for constitutional violations when it wishes to do so.” Hernandez
, 1 40 S. Ct

. a t 752 (Thom as, J., concurring).

2.

W e also sh o u ld have hesitated because the Suprem e Court has expressly declined to extend Bivens to the First Am endm ent context. Back in 1983, even during the heyday of Bivens expansions, the Court refused to allow a federal

em ployee to sue his supervisor for retaliatory dem otion under the First Am endm ent. S ee Bush v. Lucas
, 462 U.S. 367 (1983). T he Court assum ed that the federal agency violated his First Am endm ent right but still decline d t o c r e ate a new Bivens rem edy for the emp lo y ee. Id. at 372, 390. In doing so, the Court declined to say whether it was “good policy to perm it a federal em

p loyee to recover dam ages fr o m a supervisor who has im

properly disciplined him for exercising his First Am endm ent rights.” Id. at 390. Instead, the Court concluded tha t “Congress is in a better position to decide whether or not the public interest would be served by creating it.” Id. Since then, the Court’s position has not changed. See Iqbal , 556 U.S. at 675 (“Indeed, we have declined to extend Bive ns to a claim sounding in the F irst Am endm ent.”); Reichle v. Howards
, 566 U.S. 658, 663 n.4 (2012) (“W e have

never held that Bivens extends to First Am endm ent claim s.”).

The a m ended opinion now justifies its holding based on dictum in Hartman

. See Am

. Op. 41–44. There, th e Court resolved the n arrow issue of whether a plaintiff m us t pleadB O UL E V

. E GB E R T 20

and show a lack of p robable cause t o b r i ng a First Am endm ent retaliatory prosecution claim under Bivens

. Hartman
, 547 U.S. at 256. But rather than h o l ding such a Bivens rem edy exists, the Court appeared to assum e it did. In doing so, the Court offered a single line that the pa n e l n o w touts: “[w]hen the vengeful officer is federal, he is subject to

an action for dam ages on the au tho r ity of Bivens .” Id

. It is clear this line wa s n o t p a rt of the Court’s analysis since it later qualified that its holding was limi t e d to the “requirem ent[s] of causation, which [the plaintiff] m ust plead and p rove in order to win, and our holding does not go beyond a definition of an elem ent o f the tort.” Id

. at 2 57 n.5. As the panel concedes, the line’s status as d ictum i s confirm e d b y the later Court cases confirm ing that it has never extended B ivens to the First Am endm ent.

By relying o n this stray line, we are again an outlier

am ong our sister courts. Several circuit courts have expressly declined to read Ha r tma n the way that our court does. See Bistrian v. Levi
, 9 1 2 F. 3 d 79, 95–96 (3d Cir. 2 018) (repudiating the Third Circuit’s earlier reliance on Hartman to extend Bivens to the First Am endm ent claim ); Johnson v. Burden
, 781 F. App’x 833, 836–37 (11th Cir. 2 0 19) (explaining that “the Hartman language was m ere dic t a ”) ; Storms v. Shinseki
, 319 F. S upp. 3 d 348, 354 (D.D.C. 2 018) (callin g reliance on Hartman an “understandable m istake”

a nd explaining that “[d]ecisions since Hartman ha v e consistently said that the Suprem e Court has not approved a First Am endm ent Bi vens claim ”), aff’d
, 777 F. App’x 522 (D.C. Cir. 2019).

At the end of the day, the Suprem e Court’s reluctance to expand Bivens in the sam e context is itself a fa c t or that counsels hesitation here.B O UL E V

. E GB E R T 21

3.

The panel’s Bivens extension puts u s out o f step with our sister courts, too. Since the adoption of th e “counsels hesitation” test in 2007, circuit courts h ave nearly uniform ly refused to extend B ivens to the Fi r s t Am endm ent. The Second, Fourth, Sixth, and D.C. Ci rcuits have all refused to extend the doctrine to the F irs t Am endm ent. 6 Even courts that have not expressly m ade such a ruling have nonetheless

e x p r essed skepticism that B ivens could be expanded to the First Am endm ent. 7

To be sure, the Third Circuit has recognized a First Am endm ent Bivens claim in m ore recent tim es. See Mack v. W a rd e n Loretto FCI

, 839 F.3d 286, 296–97 (3d Cir. 201 6 ). But i mp o rtantly, the Third Circuit later backtracked on that

6 S e e, e.g. , Davis v. Billington
, 681 F.3d 377, 388 (D.C. Cir. 20 1 2 ); Turkmen v. Hasty
, 789 F. 3 d 2 1 8
, 236 (2d Cir. 2015); Doe v. Meron
, 929 F.3d 153, 1 69 (4th Cir. 2019); Callahan v. Fe d

. Bureau of Prisons
, 965 F .3d 520, 523–24 (6th Cir. 2020). T he D.C. Circuit recognized a First Am endm ent Bivens claim in Haynesworth v. Miller
, 820 F.2d 1 245, 1255 (D.C. Cir. 1987), and Moore v. Valder , 65 F.3d 189, 196 n.12 (D.C. Cir. 1995), but has si n c e h e l d that those cases “ have been o v ertaken b y Abbasi [.]” Loumiet , 948 F.3d at 382.

7 See Air Su n s hine, Inc. v. Carl
, 6 63 F.3d 27, 35 (1st Cir. 2011) (noting t h at it i s “questionable whether Bivens extends to cases asserting

a violation of First Am endm ent rights or retaliation for the exercise of those rights”); Walden v. Ctrs. for Disease Control & Pr e v e n tion , 669 F .3d 1277, 1284 n.3 (11th Cir. 2012) (declini n g to decide whether Bivens reaches the First A m endm ent, but noting that “the Court h as repeatedly declined t o i m p ly a Bivens rem e dy in a variety of contexts”); Pahls v. Thomas
, 718 F.3d 1210, 1226 n .6 (10th Cir. 2013) (“[T]he Court has never held t

h at a Bivens action is available against federal officials f o r
a claim based upon the F irst A m endm ent.”); B runson v. Nichols
, 875 F.3d 275, 279 n.3 (5th Cir. 2017).B O UL E V

. E GB E R T 22

decision, explaining that recent Suprem e Court precedent “clearly com

m unicates that expanding Bivens b eyond those contexts already recognized by the Suprem e Court is disfavored” and that it is Court precedent, “not our o wn p rior precedent, that m

ust guide us now.” Bistrian
, 912 F.3d at 95.

The p anel’s decisi o n al so creates a conflict within our
own court. Although we had l on g ago recognized a First Am endm ent Bi vens claim
, see Gibson v. United States
, 781 F.2d 1334, 1342 (9 th Ci r. 1986), we recently refused to find an im

plied cause of action to assert such a claim against private prison officials, see Vega v. United States
, 881 F.3d 1146 (9th C ir. 2018). In declining to ex t e n d Bivens
, we looked to the rem edies available t o the p laintiff under adm inistrative procedures, federal regulations, state law, and the FTCA. Id

. at 1154. W e held that “[e]xpanding Bivens in this context

. . . seem s im pru d e n t g iven the Court’s adm onition that ‘any alte rnative, existing process for protecting the interest am ounts to a convincing reason for the Judicial Branch to r e fr a i n from providing a new and freestanding rem edy in dam ages.’” Id

. at 1155 ( qu o t ing Wilkie , 551 U.S. at 550).

At the end of the day, we are the only federal appe l l a te court i n the nation trying to resurrect Bivens against the weight of the Court’s p r e c edents. This also counsels hesitation on our part.

4.

As we did in Vega
, we should have looked at the potential for alternative rem edies before casually expanding Bivens to Boule’s new First Am endm ent context. An alternative

rem edy is sufficient to foreclose a Bivens extension even if itB O UL E V

. E GB E R T 23

does “not provide com

plete relief,” Bush
, 462 U.S. at 3 88, so “long as Congress’ fail ure to provide m oney dam ages, o r other significant relief, has not been inadvertent, co urts should defer to its judgm ent,” Berry v. Hollander
, 925 F.2d 311, 314 (9th C ir. 1991) (sim plified). Under this low bar, we had am p le reason to deny a Bivens extension.

To m ake his Fir st Am endm ent claim
, Boule asserts that Agent Egbert contacted the Internal Re v e nue Service and asked it to investigate Boule’s tax status in reta l ia tion for Boule’s com

plaints of the agent’s mi s c o nduct. He also alleges that Agent Egbert m ade unju stified com plaints to various other regulatory agencies.

To the extent that Boule alleges that Egbert unlawfully d isclo sed sensitive inform ation about him
, and that E gb e rt d id

so using inform ation available to him because of his position with Border P atrol, he ap pe ars to be raising a Privacy A ct violation. The Pri v a cy Act requires agencies (such as the U.S. Border Patro l) to establish safeguards “to insure the security and confidentiality of records” and p rotect against disclosures that “cou ld result in substantial harm
, em barrassm ent, inconvenience, or unfairness t o any individual on whom inform ation is m aintained.” 5 U.S.C. § 552a(e)(10). Congress g ave that m andate teeth by enacting civil rem edies to enforce it. Id. § 5 52a(g)(1). As a re s u l t , a plaintiff m ay bring a civil action against an agency whenever i t fails to com

ply with the Privacy Act’s requirem ents “in such a way as to have an adverse effect on an individual.” Id

. § 552a(g)(1)(D).

Second, Boule m ay have an alternative rem edy under the t a x l a ws. If Boule alleges that Agent Egbert or som eone at the IRS revealed confidential tax inform ation, he m ight haveB O UL E V

. E GB E R T 24

considered bringing a sui t under 26 U.S.C. § 6103. That section p ro vi des that no “officer or em ployee of the United States” m ay “disclose any return o r return inform ation obtained b y h im in any m anner in connection with his service as such an officer or an employee or otherwise.” Id.

Third, B oule has a variety o f state law claim s at his disposal. For instance, W ashington courts recognize the tort of outrage f

or when a defendant engages in “extrem e and outrageous conduct.” See Spicer v. Pa tnode
, 9 W ash. App. 2d 283, 292 (2019). O r he m ight have availed him self of o ne of the several privacy torts that W ashington recognizes. See Ea s two od v. Cascade Broad. Co.
, 106 W ash. 2d 466, 46 9 (1986) (“The protectable interest in privacy is generally held to involve f

our distinct types of inv as ion: intrusion, disclosure, f

alse light and appropriation.”). W ashington also has an anti-harassm ent statute m eant to address “invasions o f

a person’s priva cy by acts and words showing a pattern o f harassm ent designed to c oerce, intim idate, or hum iliate the victim .” W ash. Rev

. Co d e Ann. § 10.14.010. If Boule alleges that Egbert was lying about h im
, then Boule could have a claim for defam ation

. See Seaquist v. Caldier
, 8 W ash. App. 2d 556, 5 6 4 (2019) (“A prim a facie defam ation claim requires a plaintiff to prove falsity
, an unprivileged

comm unication, fault, and dam ages.”). 8

8 The panel summ arily concluded that t he W estfall Act would bar any state law rem edies to r edress Boule’s First Am endm ent claim

. Boule
, 9 8 0 F. 3d at 1316. But this appears to be incorrect. The W estfall A ct only applies when the Attorney General certifies that “the em ployee was acting within t he scope of his office or em ploym ent at the tim e of the incident out of which the claim

arose.” G utierrez de Martinez v. Lamagno , 515 U.S. 4 1 7, 4 20 (1995) (sim

plified). Here, the panel found A gent Egbert’s alleged retaliation “had no relation to, or justification based on, his duties

as a border patrol agent,” Boule
, 980 F.3d at 1316, and so the W estfall A ctB O UL E V

. E GB E R T 25

The panel was, accordingly, wrong to suggest that Boule had no avenue for relief for his First Am endm ent claim

. That Boule had several potential rem edies is a “convincing reason

. . . to refrain f

rom providing a new and f reestanding rem edy in d am ages.” Wilkie
, 5 51 U.S. at 550. Indeed, the existence of just one alternative rem edy is generally th e end of the inquiry, Z iglar
, 137 S. Ct. at 1865—even if that rem edy is not “perfect,” Adams v. Johnson
, 355 F.3d 1179, 1185 n.3 (9th Cir. 2004).

* * *

All in al l, o ur court today ignores several reasons to hesitate before e x te nding Bivens to a First Am endm ent retaliation claim

. Congress’s silence is evidence that it would question the p r opriety of the rem edy we draft, especially given the other statutory m eans for redress. The Court has

a lso expressly refused to extend Bivens to the Firs t Am endm ent; our fellow circuits h ave uni fo rm ly followed suit. And finally, Bou le has alternative rem edies available thanks to both Congress and the state of W ashington.

B.
Turning to B oule’s Fourth Am endm en t claim for excessive force and unlawful search, given the national security im

plications of that claim
, the panel should have also declined to extend Bivens to this new context

.

would not apply. The am ended opinion sim ilarly concedes that Egbert “was not carrying out official duties” when he allegedly retaliated against Boule. Am . Op. at 44.B O UL E V

. E GB E R T 26
Frankly, this s h ould h ave b een an easy call. The Court has very c l e a rly laid out its instructions regarding Bivens expansions in the border enforcem ent context, which im plicates an “elem ent of national security.” He rn andez
, 140 S

. Ct. at 746. The Court first recognized the Executive’s prerogative to “protect[] this country

. . . b y a t t e mpting to control the m o vem ent of people and goods across the border.” Id

. Included in this responsibility is th e need to com bat i l l e g a l c r o s s

- b o r d e r t r a f f i c a n d p o w e r f

u l c r i mi n a l organizations operating on both sides of the border. Id

. The Court also ackno wledged that B order Patrol agents are charged w ith the enorm o us task of responding to “terrorists, drug sm ugglers and traffickers, hum an sm ug gl ers and traffickers, an d other persons who m ay underm ine the security of the United States.” Id

. ( qu oting 6 U.S.C. § 211(c)(5)).

The Court thus firm ly concluded that judges s h o uld refrain from extending Bivens when doing so would interfere with border enforcem ent

. I d

. at 747. “Since regulating the conduct of ag e n t s at the border un questionably has national security im

plications, the risk o f underm ining border security provides reason to hesitate before extending Bivens into this field.” Id

. Decisions ab o ut our national security are “delica te, com

plex, and involve large elem ents of prophecy for which the Judiciary has neither aptitude, facilities, nor responsibility.” Id. at 749 (sim plified). The judicial intrusion into the border enforcem ent space is even m ore acute given that the “risk of personal dam ages liability” m ay “cause an official to second-guess difficult but necessary decisi o ns concerning n ational-security policy.” Abbasi
, 137 S. Ct. at 1861. In o th e r wo rds, national security, and specifically, the conduct of agents at the b ord e r , i s a r ed light to Bivens extensions.B O UL E V

. E GB E R T 27

Here, Agent Egbert is assigned to a uni t th at patrols the U.S.-Canadian Border and focuses on counterterrorism
, cross-border crim e, and drug and hum a n trafficking. Sm u ggler’s Inn is a notorious site of illegal border crossing, where the sm

uggling of people, d

rugs, illicit m on ey , and other crim inal objects frequently occurs. It also sits directly adjacent to Canada; if it were any closer, the property would be straddling the border.

On the date of the incident, while patrolling the area near Sm u ggler’s Inn, Boule inform ed Agent Egbert that he would have a guest arriving from Turkey. While the exact details o f the exchange between B oule and Agent Egbert are disputed, it is uncontested that Agent E gb ert co n sid ered th e in f o rm ation he received from Boule significant enough to investigate the arrival of the Turkish national. Agent Egbert becam e concerned that the Turkish national was planning to cross the border north into Ca n ad a or m eet up with persons com ing south into the United States for a crim inal purpose. Based on this concern, Age nt Egbert entered Boule’s property, which led to the incidents at issue in the F ourth Am endm ent claim

. Thus, the sub

j e c t of this litigation is a Border Patrol agent’s conduct during an o n-duty investigation of a foreign national, at a property known for sm u ggling activity, adjacent to an international border. Our hesitation to legislate in this

are a should have been uncontroversial. Given the national security im

plications of this case, we should have deferred to Co n g r ess to d eterm ine if a cause of action should lie with Fourth Am endm ent claim s like Boule’s.

Moreover, judicially crafting a Bivens acti o n h ere could lead to a slew of unintended consequences, which we are not

com petent to evaluate. As the district court forewarned,B O UL E V

. E GB E R T 28
[T]he risk of personal liability would cause Border Patrol agents to hesitate and s econd guess their daily decisions about whether and how to investigate suspicious act ivities near the border, paralyzing their im p ortant b ordersecurity m ission. Likewise,

. . . Congress is in the best position to evalua t e the costs and benefits of a new legal rem edy, particularly when it has already granted Border Pa trol broad authority to secure the i nternational bor d er without providing a dam ages rem edy for claim s arising in that context.

Boule v. Egbert
, No

. C17-0106 RSM, 2018 W L 4078852, at *4 (W .D. W ash. Aug. 24, 2018) (citations om itted).

Finally, the panel plowed forward even though Boule has already availed him self of a congressionally enacted rem edy. The record reveals that Boule filed a tort claim with C ustom s and Border Protection for injuries arising out of the incident with A gent Egbert. He was able to do so because of the adm ini s tr a tive rem edy provided b y the FTCA. 9 E v en if the FTCA rem edy does not provide the “exact sam e kind o f relief” as Bivens
, the m ere existence of such an alternative is reason to hesitate here. Oliva , 973 F.3d at 444.

W e should have corrected this Bivens error o n en banc review.

9 See 28 C.F.R. § 1 4.2; 28 U.S.C. § 2401; see also David C. Sarnacki, Filing an Administrative Claim Under the Federal Tort Claims Act
, W is. B. Bull. ( Sept. 1988); see also Claims f or property damages or loss, or personal injury, or death
, U.S. Custom s and Border Pro t e c t i o n, https://help.cbp.gov/s/article/Article-178.B O UL E V

. E GB E R T 29

IV.

T h e C o n stitu

tio n is a d o cum ent of rem ark ab le im p o rtan ce. Carefully following its comm ands is all tha t k ee p s us a governm ent of laws and not of m en. It is thus a ma t ter o f great seriousness when federal officials vi o l at e the Bill o f Rights.

Yet, th a t sam e reverence for the Constitution leads m e
unam biguously to my conclusion today. W e cannot respond to executive transgression of the Constitution with our o wn judicial overreach. As f ederal judges, it i s n o t within our power to create a cause of action for Robert Boule, no m atter how convinced we are that he deserves one.

Today, our court sanctions judicial legislation against the clear weight o f Sup r em e Court precedent. And against the clear text of the Constitution. W ith respect, I dissent.

OWENS, Circuit Judge, dissenting f rom the denial o f rehearing en banc:

Congress didn’t care what I thought back in 1 9 97 when I

was 25 years old, and it p robably cares less now as I approach 50. And though h o p e fully I’ve im proved with age, our Bivens jurisprudence has not. I continue to believe that new legisla t ion that perm its plaintiffs to vindicate their rights is better than our current jurisprudential word jum ble. S ee John B. Owens, Note, Judge B a er and the P olitics of the Fourth Amend me n t : A n Alternative to B ad Man Jurisprudence
, 8 S tan. L. & Pol’y Rev. 189 (1997) (pointing out theB O UL E V

. E GB E R T 30

lim itations of Bivens actions and setting fo rth som e adm ittedly pie in the sky solutions).

BRESS, C ircui t Judge, joined by BADE, COLLINS, and HUNSAKER, Circuit Judges, dissenting from the d e n i al o f rehearing en banc:

The panel opinion in this case recognizes two n o v el im plied rights of action under Bivens v. Six Unknown Named Agents o f Federal Bureau of

Narcotics
, 403 U.S. 388 (1971). In so doing, the panel decision is significantly out of step with

mo d ern Suprem e Court cases em phasizing that the Biven s
rem edy is n ot to be lightly extended. See, e.g. , Hernandez v. Mesa
, 140 S. Ct. 735, 742–43 (2020); Ziglar v. Abbasi
, 137 S. Ct. 1843, 1857–58 (2017).

Th e causes of action that the panel fashioned arise i n a decidedly new context from those few previous cases in which a Bivens rem edy was perm itted. See He rn andez
, 140 S. Ct. at 743–44. And while the panel discerned no “special factors counseling he s itation” in creating two new Bivens causes of action, Abbasi
, 137 S. Ct. at 1857, I think it self-evident that there are m any reasons counseling hesitation i n d evising court-created First and F ourth Am endme n t dam ages rem edies against a federal agent for actions relating to his investigation of an inte rnational traveler n ear the international border. Judge Bum atay’s separate dissent forcefully highlights som e of these reasons.B O UL E V

. E GB E R T 31

Because the panel decision is incons i stent with the S uprem e C ourt’s directives o n Bivens rem ed ies, I resp ectf u lly dissent fromthe denial of rehearing en banc.

OPINION

W . FLETCHER, Circuit Judge:

The Suprem e Co urt first recognized an im p lied right o f action for da m ages against federal officers in Bivens v. Six Unknown Named Agents of Fe d e ral Bureau o

f Narcotics
, 403 U .S. 3 88 (1971). The Court h eld that dam ages were recoverable d ir e c t ly under the Fourth Am endm ent when federal o fficers arrest ed and searched the plaintiff without a warrant or probabl e c ause, and when they em ployed unreasonable force in m aking the arrest. Id. at 389, 395–96. I n the years after Bivens
, the Court also has recog ni z e d im plied rights of action f

o r dam ages under the Fifth and Eighth Am endm ents. See Davis v. Passman
, 4 42 U.S. 228 (1979) (recognizing a dam ages rem edy for a g ender discrim ination clai m a gainst a United States Congressm an under the e qual protection com ponent of the Fifth Am endm ent Due Pr o cess Clause); Carlson v. Green
, 446 U.S. 1 4 (1980) (recognizing a dama g es rem edy against federal prison officials for f ailure to pro v i d e adequate

m edical treatm ent under the Eighth Am endm ent’s Cruel and Unusual Punishm ent Clause).

W e are asked to decide whether a Bivens dam ages rem edy is available to a United S tates citizen plaintiff who contends that a border p atrol agent, acting on the plaintiff’s property within the United States, violated his rights und er the FirstB O UL E V

. E GB E R T 32

and Fo urth Am endm ents. Although the Suprem e Court has

m ade clear th a t “ e x p anding the Bivens rem edy is n ow a disfavored judicial activity,” a B i ven s r em edy is still available in appropriate cases and there are “powerfu l r easons” to retain it in its “comm o n and recurrent sphere of law enforcem ent.” Ziglar v. Abbasi
, 137 S.Ct. 1843, 1857 (2017) (internal quotation m arks om itted).

In considering possible extensions of Bivens
, w e engage in a “two-step inquiry,” “first inquir[ing] whether the request involves a claim that arises in a ‘n e w co n t e x t’ or involves a ‘new category of defendants’” and then “ask[ing] whether there a r e any ‘special f actors that counsel hesitation.’” Hernandez v. Mesa
, 140 S.Ct. 735, 743 (2020) (citing Abbasi
, 137 S.Ct. at 1859). Applying this fram ework, w e reverse the d is trict court and hold that Boule m ay pursue a Biv en s
rem edy for his First and Fourth Am endm ent claim s.

I. Background

Because this case com es b efore us on an appeal of a grant of summ ary judgm ent for Defendant, we draw all reasonable factual inferences in favor of Plaintiff, Robert Boule. T olan

v. Cotton
, 572 U.S. 6 50, 6 56–57 (2014). W e recite the facts viewed through that lens.

Boule is a United States citizen. He owns, operates, and lives in a sm all bed and b reakfast inn in Whatcom County, in the city of B laine, W ashington. The b ack property line of the land on which the i n n is located touches the United StatesCanada border. At the tim e of the events in question, Boule

was a p aid inform ant for the governm ent. He had been an inform ant f

or the Border Patrol beginning in about 2003 and for Imm igration and Custom s Enforcem ent b eginning inB O UL E V

. E GB E R T 33

about 2008. Inform ation provided by Boule about g uests at his inn had resulted in num erous arrests.

On March 20, 2014, Bord er Pa trol Agent Erik Egbert stopped Boule while h e was running errands “in to wn ” and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who h ad flown in from Turkey the day before. Boule told him that two of his em

p loyees were en route to pi c k up the guest at Seattle-Tacom a (“Sea-Tac”) International Airport, about 125

m iles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is

on a road at the front of the property. When the guest arrived, Egbert followed the car c a rry ing the arriving guest into the driveway of the inn.

Agent Egbert go t out of his vehicle and approached the

car. From the front porch of the inn, Boul e a s k ed Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Egbert then shoved Boule against the car. When Boule d id not m ove away from the car, Egbert grabbed h i m a n d pushed him aside and onto the ground.

Ag ent Egbert then o pened the car door and asked th e guest about his imm igration status. Boule m ade a 911 call to requ e s t a supervisor. E gbert also relayed the request over dispatch. A supervisor and another agent arrived in response. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought m edical treatm ent for injuries to his back.

After Boule com

plained to Agent Egbert’s sup eriors abo u t th e incident, Egbert retaliated against Boule. EgbertB O UL E V

. E GB E R T 34

contacted the Internal Revenue Service, asking the agency to look into Boule’s tax status. The Service conducted an audit of several y ea r s of B oule’s tax returns, and Boule paid over $5,000 to his accountant to assist him in responding to th e audit. Egbert also c ontacted the Social Security Adm inistration, the W ashington St ate Departm ent o f Licensing, and the Whatcom County Assessor’s Office, each of which then c o n ducted form al inquiries into Boule’s business activities.

Bou l e fi l ed a com

p laint against Agent Egbert in federal district court, seeking dam ages under Biven s for a violation of Fourth and First Am endm ent rights. The district court granted summ ary judgm ent to Egbert on Boule’s F ourth and Fi r s t Ame ndme n t c l a i m s , holding that they we r e im perm issible extensions of Bivens

. Boule tim ely appealed.

II. Discussion

W e review de novo a district court’s decision on summ ary judgm ent. Brunozzi v. Cable Commc’ns, Inc.
, 851 F.3d 990, 995 (9th Cir. 2017). W e a ddress Boule’s Fourth and First Am endme nt claim s in turn, applying the fram ework established in Abbasi
, 137 S.Ct. at 1859, and relied on in Hernandez
, 140 S.Ct. at 743. W e ask whether Boule’s claim s arise in a new context and, if so, whether any special factors counsel hesitation in finding a viable B ivens claim

. Id.

The Suprem e Court’s understanding of a “new context” in a Bivens analysis is “broad.” A context is “‘ne w’ i f i t i s ‘different in a m eaningful way from previo u s Bivens cases decided by this Court.’” Id. (citing Abbasi
, 1 3 7 S. Ct. at 1859). The Court wrote in Abbasi :B O UL E V

. E GB E R T 35

W ithout endeavoring to cr e a t e an exhaustive list of differences that are m eaningful enough t o m ake a given context a new one

. . . [:] A

case m ight differ in a m eaningful way because of the rank of th e o fficers involved; the constit utional right at issue; the g enerality o r specificity of the official action; the extent o f judicial guidance as to how an officer should respond to the problem o r em ergency t o b e confronted; the statuto ry o r other legal

m andate under wh ich the o fficer was operating; the risk o f disruptive intrusion by the Judiciary into the function i n g of other branches; or the presence of potential special factors that previous Bivens cases di d not consider.

137 S. Ct. 1 859–60. The Court cautioned that “even a m odest extension is still an extension.” Id. at 1864.

I f we conclude that a claim arises in a new cont e x t , we ask “whether there are any special factors that counsel hesitation about granting the extension.” Hernandez
, 140 S. Ct. at 7 4 3 ( c iting Abbasi
, 137 S. C t. at 1857). The Court acknowledged in Abbasi that it ha s n o t d efined “special factors,” but noted that

th e inquiry m

u st concentrate on whether the Judiciary is w ell suited, absent congressional action or instruction, t o consider and weigh the costs and benefits of allowin g a dam ages action to proceed. Thus, to b e a special f actor counselling hesitation, a factor m ust cause aB O UL E V

. E GB E R T 36

court to hesitate before answe r i n g that question in the affirm ative.

137 S. Ct. at 1857–58 (internal quotation m ark s om itted). The Court wrote in Hernandez that a court should “consider the risk of interfering with the authority of the other branches” and should “ask whether there are sound reasons to think Congress m ight doubt the efficacy or necessity of a dam ages rem edy an d whether the Judiciary is well suited, absent congressional action o r instruction, to consider and weigh the costs and benefits o f allowing a dam ages action to proceed.” Hernandez
, 140 S. Ct. at 743 (internal citations and quotation m arks om itted).

A . Fourth Am endm ent

The district court assum ed that B oule’s Fo urth Am endm ent excessive force claim is a “m odest extension” in

a new context. W e agree that it is an extension, in that Agent Egbert is an agent of the border patrol rather than of the F.B.I. But it is a m o d est extension, in that border patrol and F.B.I. agents are both federal law enforcem ent officials, and in that Boule’s Fourth Am endm ent excessive f orce claim is indistinguishable from Fo urth Am endm ent excessive force claim s that are routinely brought under Bivens against F.B.I. agents. However, we do not f ind that special factors “counsel hesitation” s u c h th at a Bivens action in this new context is fo r e c losed. Boule, a United States citizen, is bringing a
c onventional Fourth Am endm ent excessive force clai m arising out of actions by a rank-and-file border patrol agent

on Boule’s o wn property in the United S tates. This context is a far cry f

rom the contexts in Abbasi and Hernandez
, where the Court found that special f actors counseled ag a i n st a Bivens action.B O UL E V

. E GB E R T 37

In A bbasi
, the plaintiffs were foreign nationals who h ad been unlawfully present in the United States. Following the terrorist attacks on Septem ber 11, 2001, the F.B.I. designated plaintiffs as persons “of interest” in the po s t

- attack investigation, and plaintiffs w ere incarcerated in h a rsh conditions. 137 S. Ct. at 1852–53. A fter pl ai n t i ffs were released and rem oved from the United States, they brought a Bivens actio n ag a in st f

ed eral executive officials and d etention facility wardens, seeking d am ages based on the decisions that had led to their incarceration and based on the conditions of th e i r c o n finem ent. Id. at 1 851–52. T he Court refused to allow a Bivens action, holding that special factors counseled hesitation in extending Bivens in this ne w c ontext. Id. at 1859–61. The Court em phasized that the plaintiffs’ claim s challenged high-level Executive Branch decisions involving issues of national security. Id. at 1860–62.

In Hernandez
, the p l a i n tiffs w ere Mexican nationals whose child had been killed b y a United States border patrol agent. 140 S. Ct. at 7 4 0

. The agent had been on the United States side o f th e border, the child had been on the Mexico side, and the agent had shot at the child across the b order. Id. The M exican governm ent had unsuccessfully sought extradition of the agent to Mexico. The U.S. Departm ent o f Justice had conducted an investigation and declined to bring charges a g ainst the agent. Id. The Court held that the parents’ claim s arose in a new context and were precluded by special factors. Id. at 744, 7 4 9

. The Court noted several “warning flags,” including the effect on foreign relations, the im plications for national security, and the fact that the harm occurred in another country. Id. at 744, 746, 747.

The only aspects of the claim now b efore us that touch

even tangentially on the concerns r a i s ed in Abbasi andB O UL E V

. E GB E R T 38

Hernandez are that Boule’s inn is at the United States-Canada border and that Agent Egbert was investigating the status of

a foreign guest who was arriving at the inn. In finding special factors in H

ern a n d ez , th e C ourt wrote: “[S]om e [border patrol agent s ] a re stationed right at the border and h ave the responsibility of attem

pting to prevent illegal entry. For these
reasons, the conduct of agents positioned at the border has a clear and strong connection to national security.” 1 40 S

. Ct. at 746. The contrast between Hernandez and the case before

us is self-evident. The agent in Hernandez was li t erally “at the b order,” t a s k e d with policing the border and preventing illegal entry of goods and people. See id. As Egbert h ad already been inform ed by Boule, the arriving guest in whom Egbert was interested had bee n driven f rom Sea-Tac airport after arriving on a flight f rom N ew York. Fu rther, the plaintiffs in Hernandez were foreign nationals, complaining of a harm suffered in Mexico. Boule is a United States citizen, com

p laining of harm suffered on his own property in the United States. Finally, the claim in Hernandez was extrem ely unusual. T he claim against Egb e rt i s a conventional Fourth Am endm ent excessive force claim
, indistinguishable from countless such claim s brought against federal, state, and local law enforcem ent officials, except for the fact that Egbert is a border patrol agent. As we n o t e d abo v e, excessive force Fourth Am endm ent claim s are routinely brought against F.B.I. agents under Bivens

. See
, e.g. , Ganek v. Leibowitz
, 874 F.3d 73 (2d Cir. 2017); SotoTorres v. Fraticelli
, 654 F.3d 153 (1st C i r

. 2 011); Harris v. Roderick , 126 F.3d 1189 (9th Cir. 1997).

The fact that Agent Egbert is a border patrol agent, standing alone, does not preclude a Bivens action. Courts in

our circuit and others have allowed various Biven s actions

a g ainst border patrol agents under the Fourth Am endm ent

.B O UL E V

. E GB E R T 39

See, e.g. , Morales v. Cha d b o u rn e , 793 F.3d 2 08 (1st Cir. 2015) (Bivens c laim by Am erican citizen of Guatem alan descent against Imm igration and Custo ms Enforcem ent officials for d etention without probable cause in violation o f the F ourth Am endm ent); Chavez v. United States
, 683 F.3d 1102 (9th Cir. 2012) (Bivens claim by Am erican citizens for repeated traffic stops by borde r p a trol agents in violation o f the F ourth Am e n dm ent); Martinez-Aguero v. Gonzalez
, 459 F.3d 618 (5th Cir. 2 0 06) (Biv e n s claim b y Mexican citizen against a border patrol agent fo r e x c essive force at a port of entry in violation of the Fourth Am endm ent).

The Suprem e Court cautioned in Abbasi that “national

security c oncerns m

u st not b ecom e a talism an used to ward off inconvenient claim s — a label used to cover a m ultitude

o f sins.” 137 S. Ct. at 1862 (internal quotation m ark s
om itted). After the Court’s decision in Abbasi
, we allowed an imm igrant to p ursue a B ivens action against an Imm igration and Cus t o m s Enforcem ent attorney who had forged a docum ent in order to preven t his adjustm ent of status to lawful perm anen t r e sident. Lanuza v. L ove , 8 99 F.3d 1019, 1021 (9th C ir. 2018). W e wrote that although “the Suprem e Court has m ade clear that expanding the Biven s r e m edy is

now a disfavored judicial activity,” a Bivens rem edy rem ains available in appropriate circum st ances. Id. (internal quotation m arks om itted). W e distinguished Abbasi
, noting that, like Boule in the case before us, the plaintiff di d not “challenge high-level ex e c u tive action” and did not “challenge o r seek t o alter the policy of the political branches.” Id. at 1 028, 1 029. In a “ru n- o f- the-m ill imm igration proceeding” where the alien had n o ties to terrorism
, the case was “unrelated to any o ther national

s ec ur i ty decision or interest.” Id. at 1030. W e held tha t “com p elling interests that favor extending a Bi vens rem edyB O UL E V

. E GB E R T 40

. . . outweigh the costs of allowing this narrow claim to proceed against federal o fficials.” Id. at 1033. Sim ilarly, in the “run-of-the-m ill” F ourth Am endm ent case now before us,
we h o ld that any costs im

p osed by allowing a Bivens claim to proceed are outweighed by com pelling interests i n favor o f protecting United States citizens on their own property in the Un ited S tates from unconstitution al activ ity b y f ed eral ag ents.

In B ivens itself, the Fourth Am endm ent claim w as not an im proper intrusion by th e judiciary into the sphere o f

au th o rity of other branches. Nor is the Fourth Am endm ent claim here su c h a n intrusion. Boule’s Fourth Am endm ent excessive force claim is part and parcel of the “comm on and recurrent sphere of law enforcem ent” which, under A bbasi
, is

a perm issible a r ea f

or Bivens claim s. Abbasi
, 137 S

. Ct. at 1857; id. at 1856 (“[I]t m us t be understood that this opinion is not intended to cast doubt on the continued force, o r even th e necessity, of B ivens in the search-and-seizure context i n which it arose.”). W e therefore conclu d e that Boule’s excessive f

orce Fourth Am endm ent claim m ay proceed as a Bivens d am ages claim

.

B. First Am endm ent

Boule also presented evidence that Agent Egbert retaliated against him for exerc is in g his First Am endm ent right to com

p l a i n t o Egbert’s superiors about his conduct at the inn. As recounted above, Eg b e rt contacted the Internal Revenue Service, the Social Security Adm inistration, the W ash in g to n S tate D ep artm ent of Licensing
, an d th e Wh atco m County Assessor’s Office, asking each of them to investigate Boule.B O UL E V

. E GB E R T 41

In Reichle v. Howards
, 566 U.S. 658, 663 n.4 (2012), the Suprem e Court wrote tha t i t had “never held that Bivens extends to First Am endm ent claim s.” It is true that the Court has never actually held that a First Am endm ent re ta l i a tion claim m ay b e b r o u g ht under Bivens

. But in Hartman v. Moore
, 547 U.S. 250 (2006), the Court expli c itly stated, as part o f its reasoning during th e c o urse of a Bivens analysis, that such a claimm ay be brought.

It has long been th e l a w that federal officials violate the Fi r s t Am endm ent when they retaliate for protected speech. See
, e. g. , Crawford-El v. Britton
, 523 U.S. 574, 592 (1998) (“[T]he g eneral rule has long bee n c l e a rly established” that “the First Am endm ent bars ret a l ia tion f or protected speech

. . . ”). In Hartman
, plaintiffs sought to bring a Bivens action, all eg ing that federal p rosecutors had p rosecuted them in retaliation for protected speech. The Court held that a Bivens action was unavail ab le, but only because probable cause supported the prosecution. The Court wrote that in the absence of p robable c au se

— that is, in the absence of an innocent m otive — a Bivens action would have been available:

Official reprisal for protected speech “offends the Constitution [ because] it threatens to inhibit e x e rcise of the protected right,” Crawford-El v. Britton
, 5 2 3 U.S. 574, 588, n.10 (1998), and th e l aw is settled that as a general m atter the First Am endm ent prohibits governm ent officials f

rom subje cting an individual to retaliatory actions
, including crim inal prosecutions, for speaking ou t , id.
, at 592[.] Som e official actio ns adverse to such a speaker m ight w ell be unexceptionableB O UL E V

. E GB E R T 42

if taken on other groun d s , but when nonretaliatory grounds are in fact insufficient to provoke the adv erse co n sequences, w e have held that retaliation is subject to recovery as the but-for cause o f official action offend ing the Constitution. See C r a wford-El
, supra , at 593[.] When the vengeful officer is federal, he is su b j ect to an a ction for damages on the authority of B ivens. See 403 U.S., at 397.

Hartman , 547 U.S. at 256 (em phasis added) (som e citations

om itted).

Al th ough the Suprem e Court wrote in Hartman tha t Bivens ext en d s to First Am endm ent retaliation claim s when federal law enforcem ent officials have n o innocent m o tive for their actions, we recognize that the Court has not expressly so held. S ee R eichle
, 566 U. S. at 6 6 3 n.4. W e therefore conclude that Boule’s First Am endm ent retaliation claim arises in a new context.

However, we fin d n o s pecial factors that m ake it inadvisable to find a cogn i zable Bivens claim in this new context. First, we h ave already u pheld a Bivens clai m in a different First Am endm ent context. In Gibson v. United States
, 781 F .2d 1334 (9th Cir. 1986), we upheld a Bivens claim against federal officers who sought to “curb” plaintiff’s pro t e cted First Am endm ent speech through a cam paign o f defam ation, illegal wiretapping, intim idation, burglary and

arson.
Second, th e Suprem e Court declined to recognize a Bivens action in B ush v. Lucas
, 462 U.S. 367 (1983), but in a

v ery different context. P laintiff in B ush was a federa lB O UL E V

. E GB E R T 43

em ployee who had com

plained about his superior. The Court declined to r e c o gnize a Bivens action in this context “[b ]e cause such claim s arise out of an em ploym ent relationship that is governed by com p rehensiv e procedural and substantive provisions giving m eaningful rem edies against the United States.” Id. at 368. Boule’s claim is quite unlike the claim in Bush
, where the em ploym ent relationship was key. Boule’s claimis instead on all fours with the First Am endm ent retaliation claim described i n Hartman
, where the Court wrote that “[w]hen the vengeful officer is federal, he is subject to an action for dam a ge s on the authority o f Bivens .” Hartman , 457 U.S. at 256.

Third, th e r e is even less reason to hesitate in extending Bi vens to Boule’s First Am endm ent retaliation claim th a n there is in h is Fourth Am endm ent excessive force claim

. Just

as excessive fo rce is a well-established Fourth Am endm ent claim
, retaliation is a well-established First Am endm ent claim

. See Hartman
, 547 U.S. at 256 (“the First Am endm ent prohibits governm ent officials from subjecting an individual to retaliatory actions

. . . for speaking o ut”); Lanuza
, 899 F.3d at 1033 (recognizing a Bivens action where “[t]he legal standards for adjudicating [it] are well established and adm inistrable”). Boule’s First Am endm ent retaliation claim present s a n e v en stronger case for recognition as a Bivens claim

. W ith respect to Boule’s excessive force claim
, Agent Egbert’s acti o n s , even if illegal, were taken during the perform ance of his o fficial duties. The sam e is not true for Boule’s retaliation claim

. T h ough Egbert identified him self

as a b order patrol agent whe n h e contacted the Internal Revenue S ervice, and m ay have done so wh e n he contacted the Social Security Adm inistration, the W as h ington State Departm ent o f Lic e n s ing, and the Whatcom C ountyB O UL E V

. E GB E R T 44

Assessor’s Office, he w as not carrying out official du t i e s in asking for investigations of Boule.

C. Existence of Alternative Rem edies

Finally, we consider whether th ere are available alternative rem edies. Wh en there are available alternative

rem edies sufficient to protect a p laintiff’s interests, “a Bivens

rem edy usually is not” available. Abbasi
, 137 S. Ct. at 1863;

see Fazaga v. Federal Bureau of Investigation
, 9 6 5 F.3d 1015, 1 057 (9th Cir. 2020). The availability of alte rnative

rem edies “raises the inference that Congress expected the Judiciary to stay its Bivens hand a n d r efrain from providing

a new an d fr e estanding rem edy in dam ages.” Id. (internal quotation m arks om itted). “Alternative rem edial structures

can take m any form s, including adm inistrative, statutory, equitable, and state law rem edies.” Ve ga v

. U nited States
, 8 81 F.3d 1146, 1154 (9th Cir. 2018) (internal quotation m ark s
om itted). “[A]n a l ternative rem edy need not be perfectly congruent with Bivens or perfectly com prehensive, [but] it still must be adequate.” Rodriguez v. Swartz , 899 F.3d 719, 739 (9th Cir. 2018) (internal q uotation m arks om itted), vacated on other grounds , 140 S. Ct. 1258.

The district co urt assu

m ed w i th o ut deciding that there was
no adequate alternative rem edy that would preclude a Bivens cla i m. On appeal, Agent Egbert suggests three alternative

rem edies: “intentional-tort claim s under the Federal Tort Claim s Act, see 28 U.S.C. § 2 680(h), a trespass claim against Agent E gbert, or injunctive relief.” None of these suggested

rem edies defeats a Bivens action.

First, § 2 680(h) o f the FTCA, cited by Agent Egbert, includes the so-called law enforcem ent p roviso, which allowsB O UL E V

. E GB E R T 45

d amage suits against federal law enforcem ent o fficials fo r “any claim arising

. . . o u t o f assault, battery, false im prisonm ent, false arrest, abuse of process, or m a l icious prosecution.” In Carlson v. Green
, 446 U.S. 1 4 (1980), the Suprem e Court held that a Bivens action was available against federal prison officials f or the death of a p r i s on er due to im proper m edical treatm ent in violation of the Eig h th Am endm ent. The Court specifically addressed the relationship between Bive n s a nd § 2680(h), holding that the existence o f a rem edy under § 2680(h) d o es not foreclose a Bivens action:

[W ]hen Congress am ended FTCA in 1974 to

cre a t e a cause of action against the United States for intentiona l torts comm itted by federal law enforcem ent officers, 28 U .S.C. § 2680(h), the c o ngressional comm ents

acco m p anying that am en dm ent m ad e it cry stal

c lear that Congress v iews FTCA and Bive n s
a s pa r a l l e l
, c o mp le me n t a ry c au s e s o f action.

. . . In the absence of a contrary expression from Congres s , § 2680(h) thus contem plates that victim s of the kind o f i ntentional wrongdoing alleged in this

com plaint shall have an a c tion under FTCA against th e United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights.

Id. at 19–20.

Moreover
, in 1988, when Congress am ended the FTCA in the W estfall Act to p rovide that the FTCA rem edy is generally exclusive, it m ade an “explicit exception for BivensB O UL E V

. E GB E R T 46

claim s.” Hui v. Castaneda
, 559 U .S. 7 99, 807 (2010). The W estfall Act p rovides that the exclusive rem edy for comm on law tort claim s comm itted by federal em p loyees is against the United S tates, and that plaintiffs are p recluded from bringing

s ui t against the em

ployees in their individual capacity. S e e 28 U.S.C. § 2679(b)(1). But the exclusiveness of the FTCA

rem edy was n ot ext e n ded to constitutional torts such as Fourth Am endm ent excessiv e force claim s. See id. § 2 6 7 9(b)(2)(A). A contem poraneous House Report explained:

Since the Suprem e Court' s d ecision in Bivens, supra, the courts have identified this type o f tort as a m ore serious intrusion of the rights o f

an in d i vidual that m erits special attention. Consequently, H.R. 4612 would not affect the ability o f v ictim s of constitutional torts to seek personal redress from Federal em ployees who allegedly violate their Const i tutional rights.

H.R. REP. NO. 100-700, at 6 (1988), as r e printed in 1988 U.S.C.C.A.N. 5945, 5950.

Second, a state-law trespass claim against Agent Egbert in his individual capacity is barred by the W estfall Act. See 28 U.S.C. § 2679(d)(1) (generally b arring individual capacity suits against a federal em

ployee when the em

ployee is “acting within the scope of his offi c e or em ploym ent at the tim e o f the incident o ut of which the claim arose”). Further, Egbert’s entry onto th e publicly accessible driveway o f B oule’s inn, undertaken as part of h is o fficial duties, was alm ost certainly a privileged entry under state law.B O UL E V

. E GB E R T 47
Finally, inju n c tive relief is an inadequate rem edy, for Boule is seek i n g dam ages f or A gent Egbert’s com

pleted actions rather than protection against som e future act.

Conclusion

We conclude that B ivens rem edies are available in th e
c i rcum stances of this case, where a United States cit i z e n claim s that a border patrol agent v i o l ated the Fourth Am endm ent by using excessive force while carrying o u t official duties within the United States, and v iolated the First Am endm ent by engaging in retaliation entirely unconnected to his official duties. W e rev e rse and rem and for further proceedings.

REVERSED and REMANDED.