ERIK EGBERT, Petitioner, v. ROBERT BOULE, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Michael R. Huston, Felicia H. Ellsworth, Sarah M. Harris

John G. Roberts, Jr.: We will hear argument this morning in Case 21-147, Egbert versus Boule. Ms. Harris.

Sarah M. Harris: Mr. Chief Justice, and may it please the Court: This Court should not expand Bivens for the first time in 40 years. First, Bivens extensions clash with modern precedent.

Bivens interpreted federal courts' jurisdiction over federal questions as authorizing courts to fashion new damages actions.

Decades of intervening cases reject that premise and remove any doctrinal basis for Bivens extensions. Second, this Court has held that any reason to think Congress might doubt the efficacy or the necessity of a damages remedy bars new Bivens actions.

Abbasi and Hernandez make respect for the separation of powers the key consideration.

But the Constitution vests Congress alone with the power to create damages actions.

Abbasi and Hernandez say courts must pause if the judiciary isn't well suited to assess the systemic costs and benefits of a new damages action.

But courts are never equipped for such predictive empirical judgments. Abbasi and Hernandez also rule out Bivens extensions if Congress has extensively legislated in an area.

But Congress has extensively legislated about federal officer liability without allowing individual damages actions. Third, at the very least, this Court should not expand Bivens to First Amendment retaliation claims or to Fourth Amendment claims involving border security.

Those claims raise yet further grounds for pause and would explode the universe of Bivens claims. For First Amendment retaliation claims, plaintiffs could portray virtually any governmental action as unconstitutional if taken for retaliatory reasons, creating especially amorphous Bivens liability. Further, allowing First and Fourth Amendment claims against agents involved in border security also implicates national security, as Hernandez recognized. And, finally, there are many alternative means to protect these constitutional interests. I welcome the Court's questions.

Clarence Thomas: Well, Ms. Harris, the -- when you have -- the Fourth Amendment claim in Bivens is similar to the Fourth Amendment claim here, so why doesn't that foreclose your argument that that's excluded?

Sarah M. Harris: We respectfully disagree. The Fourth Amendment claim in Bivens is quite different from the claim here for a number of reasons. First of all, the class of defendants and the statutory mission of the officers is exceedingly different.

The Federal Bureau of Narcotics' mission is not the same in any respect as the statutory mandate under which Border Patrol officers are operating, and that is an important factor under Abbasi for a new context. And, on top of that, we know, because Congress and the Court have said so, that the Fourth Amendment applies differently in a border context.

And that, I think, also goes to the Border Patrol functions.

Border Patrol agents are in dangerous circumstances every day trying to interdict terrorists, smugglers, illegal entry and exit of foreign nationals crossing the border.

Clarence Thomas: But couldn't you say something similar to that about police officers and the Fourth Amendment? I -- it seems to be pretty much the same thing. But, beyond that, though, the -- if the Court adopted your approach, what survives as far as Bivens claims go?

Sarah M. Harris: What survives is what we think the Court recognized in Abbasi would survive.

So the Court said in Abbasi that it is not questioning the necessity or the stare decisis value of Bivens in the search-and-seizure context in which it arose. And I think the next paragraph of Abbasi illustrates the Court was distinguishing between claims that would not be a new context for Bivens and claims that would be.

So, again, I think, if you look at the facts of Bivens and the things that perhaps the DEA is doing today, that would absolutely survive. I don't think you have to resolve exactly what is -- is or is not a new context because this case, I think, is really about what happens when there is a Bivens extension on the table when there is something that is absolutely a new context and what factors should courts be considering in order to resolve that question.

John G. Roberts, Jr.: Well, what is so different? This was a search of somebody on private -- an unlawful search on private property.

I mean, it was near the Canadian border.

Okay.

The guy was a border agent. Well, that doesn't seem to be particularly relevant to -- to whether the other fellow was subject to an illegal search on his private property.

Sarah M. Harris: Well, I think there are two really important things that are missing from that sort of picture of it, one of which is that I think everyone agrees that Agent Egbert was involved in an immigration investigation and that was the whole reason for being on Mr. Boule's property, which, again, was a notorious site of smuggling and illegal entry and exit. So the fact that the Border Patrol agent was indeed exercising --

John G. Roberts, Jr.: So they have -- they had more flexibility under the Fourth Amendment than a regular police officer, you know, in -- in Des Moines?

Sarah M. Harris: Yes, and I think, under both the Court's precedents and what Congress has said, that is absolutely the case.

So the Court's Montoya decision recognizes the Fourth Amendment does apply differently at the border, and Section 8 U.S.C. 1357 is Congress's recognition that in the border context, there are a lot of different warrantless searches, arrests, et cetera, et cetera, that can happen at the border that you would not have in Des Moines. And I think all of that's important because this goes to what the Court said in Hernandez with respect to the conduct of agents stationed at the border inherently implicates national security.

That was absolutely true of Agent Mesa and Hernandez and, I think, applies equally here because the Court in Hernandez was talking about the kinds of functions Border Patrol agents are performing at the border, which again involve --

John G. Roberts, Jr.: Well, that's really your point.

It has nothing to do with geography.

It's what he was doing, right?

Sarah M. Harris: It's --

John G. Roberts, Jr.: He was -- he was a Border Patrol agent, but it's not -- we don't have this sort of Fourth Amendment free zone around the border.

Sarah M. Harris: That's correct.

I think you have to tie it, obviously, to the officer's functions.

So, if we were talking about, you know, an IRS agent who happens to be stationed at the border, there might be different issues with a Bivens claim in that context, but we wouldn't be saying just because the IRS agent is at the border means they can -- you know, they are entitled to flexibility --

Sonia Sotomayor: I thought that --

Sarah M. Harris: -- with respect to the border.

Sonia Sotomayor: -- the issue here was excessive force, and I thought that the person making the claim was a U.S. citizen. And, in Bivens, it was an excessive force claim in an -- in a private home.

Here, it's an excessive force claim on the property of an inn owned by a U.S. citizen. I understand that Customs regulations require agents to secure warrants absent exigent circumstances, and we can debate whether this was exigent circumstances justifying his entry into this home and his decision to do what he did.

I'm not going to get into those details. But I go back to Justice -- the Chief's question, which is in what ways does the Fourth Amendment -- not -- the Fourth Amendment's excessive force claim differ between law enforcement agents like narcotics agents, alcohol -- alcohol and tobacco and firearm agents, or border patrol? I thought that none of them constitutionally can use excessive force.

Sarah M. Harris: Justice Sotomayor, I think there are a couple reasons why --

Sonia Sotomayor: Just answer that question.

Can any of them use excessive force? Being defined as force greater than that necessary.

Sarah M. Harris: No, of course, excessive force is something the Fourth Amendment prohibits, but I think that is not quite the inquiry when you're thinking about what is a new context or what are special factors because we also --

Sonia Sotomayor: Well, what's a special factor here? That it's the border, you're saying, it's Customs agents, but I don't understand how they don't have the same constitutional protections that officers have, qualified immunity, so there's nothing that we've already said in Wilson versus Sellers that in a Bivens claim qualified immunity exists. So they have the right to use their reasonable judgment and not engage in constitutional conduct.

I -- I don't understand why this is a new context.

Sarah M. Harris: So two points there. First of all, with respect to why this is a new context, I -- I think the Abbasi factors are very clear that a statutory mandate and a different level of judicial guidance makes the claim meaningfully different. And with respect to excessive force claims at the border, both Congress and the Court have recognized that the need for lethal force in certain circumstances and the rules of engagement are fundamentally different.

Stephen G. Breyer: That's not --

Sarah M. Harris: That has to do --

Stephen G. Breyer: -- this case, is it?

Sarah M. Harris: Well, I think it is relevant to this case just for the same --

Stephen G. Breyer: I mean, I'm not saying it isn't relevant.

I just said this isn't a case where they're having special rules, this isn't a case where they're right at the border.

This is a case of, you know, what the Chief Justice said, okay. There are 83, I gather, with -- Bureau of Justice statistics says there are 83 different agencies where the officers are federal, they are authorized to make arrests, they carry firearms, they provide police protection as their primary function. And I take it you think that Bivens still applies in Shasta County, California, doesn't it?

Sarah M. Harris: I think it would depend on --

Stephen G. Breyer: No, no, no.

It depends on whether it applies, exactly the same as the Bivens case, it's Shasta County, California.

It's not New York.

Apply?

Sarah M. Harris: Yes.

Stephen G. Breyer: Of course.

Sarah M. Harris: But I think the --

Stephen G. Breyer: And you think it applies in April and May of this year, even though Bivens didn't take place in April and May?

Sarah M. Harris: Yes, those are --

Stephen G. Breyer: Okay.

Sarah M. Harris: -- per the early records.

Stephen G. Breyer: Fine.

And now which of these 83 agencies does it not apply to?

Sarah M. Harris: So I think the question under Abbasi is --

Stephen G. Breyer: What?

Sarah M. Harris: -- what is the statutory -- one of the questions, frankly --

Stephen G. Breyer: And one of the --

Sarah M. Harris: -- what is the statutory mission.

Stephen G. Breyer: -- missions with these people is they often fly in air -- in helicopters to help keep the peace with others who are just ordinary policemen or FBI men. I mean, I was going to ask you, what do you think about the Federal Bureau of Prisons, the police there? Does it apply there?

Sarah M. Harris: The Federal Bureau of Prisons, I think, probably not, because their statutory --

Stephen G. Breyer: No Bivens in the Federal Bureau of Prisons?

Sarah M. Harris: So --

Stephen G. Breyer: Okay.

Even there. No Bureau -- what about the Federal Bureau of Investigation? Does it apply there?

Sarah M. Harris: I think it likely is a new context, and the reason is the Abbasi --

Stephen G. Breyer: Not the Federal Bureau of Investigation? Bivens doesn't apply to FBI agents? Is that what you're saying?

Sarah M. Harris: I'm saying it's a new context, you'd have to run special factors, and the reason for that is I think it's a faithful application of Abbasi --

Stephen G. Breyer: I see.

Sarah M. Harris: -- because the statutory --

Stephen G. Breyer: Okay.

Sarah M. Harris: -- mission is --

Stephen G. Breyer: All right.

I'm just getting your point of view.

Sarah M. Harris: Okay.

Stephen G. Breyer: And the -- the -- the -- what about the Drug Enforcement Administration?

Sarah M. Harris: So the question for the DEA is that is the successor agency to the Federal Bureau of Narcotics, and, again, I think you have to run through the Abbasi factors.

Stephen G. Breyer: Okay.

I get it. I'll give you two more.

Bureau of Alcohol, Tobacco, Firearms, and Explosives, in your opinion, is it obvious that it does apply there, not obvious, or we go through some mechanism?

Sarah M. Harris: I think you apply Abbasi, not obvious, because, again, the question has to do --

Stephen G. Breyer: Okay.

Last one, U.S. Mint Police.

I actually don't know what the U.S. Mint Police does, but I suspect it's important so people don't take all the gold out of Fort Knox or something, but -- but do the same thing? Does it apply, obviously, not apply?

Sarah M. Harris: Again --

Stephen G. Breyer: And, by the way, if I wanted to, which I don't because my colleagues would lynch me, the -- I -- I could go through 78 more.

Sarah M. Harris: Yes.

Stephen G. Breyer: And what they have in common, they carry firearms, they provide police protection, they're authorized to make arrests. But you're saying that isn't enough?

Sarah M. Harris: I'm saying --

Stephen G. Breyer: We're going to --

Sarah M. Harris: -- that's not enough because grouping all 83 federal agencies together when they're -- when they range from the Secret Service, which has obviously a primary mission, to other law enforcement agencies is not only new but raises really hard questions for courts that I don't think courts are equipped to consider --

Amy Coney Barrett: Ms. --

Sarah M. Harris: -- under Abbasi.

Amy Coney Barrett: -- Ms. Harris, can I follow up on Justice Breyer's questions? Is -- is your inquiry driven by the mission of the agency or the mission of the federal officer in the particular situation? So, for example, would your position change if, here, Egbert had gone in because he was -- he just suspected that there had been a domestic dispute and he was helping out local law enforcement and he went in? Is what matters the fact that he is a border patrol agent, or is what matters that when he went in, he was investigating the potential smuggling?

Sarah M. Harris: So I honestly think it's both because Abbasi seems to be looking at both the class of defendants, the implications for the agency, and also the statutory mandate under which the officer is operating. And I say that because, in a lot of circumstances, it's going to be difficult to sort of separate out in one particular instance which exactly are -- you know, is there an overlapping sort of statutory mandate the officer is executing. And I think that also goes to the special factors analysis in the sense that the ultimate -- one of the ultimate questions is, are courts well-equipped to figure out the costs and benefits government-wide --

Amy Coney Barrett: Well, so, in my -- in my hypothetical, where the border agent, where Egbert goes in and he's not investigating a border issue, but he's investigating a domestic dispute or, you know, an assault or something like that, kind of following up on Justice Breyer's hypotheticals or questions to you, would Bivens apply in that circumstance?

Sarah M. Harris: I don't think so.

I think you could certainly argue the national security implications might be different in that case, but I would still be arguing that Bivens does not apply in that circumstance for all of the other special factors I've mentioned, and I would like to also flag alternative remedies are really important in this context. Again, the Court's test is, is there any single reason to doubt the need -- to think Congress would doubt the need for a Bivens remedy.

And, in your particular context, the border patrol agent is still going to be someone where there's the possibility of Federal Tort Claims Act liability and a whole raft of administrative remedies and other potential outlets for someone to vindicate their interests in making sure their constitutional rights aren't violated.

Elena Kagan: Sorry.

So, other than the alternative remedies, your answer to Justice Barrett's question is sort of across the board Bivens doesn't apply to border patrol agents, and if I could just hear again why that is? What do you think the special factors are that make all border patrol agents in every context doing any particular -- any function different?

Sarah M. Harris: Sure.

I think it's a mix of things.

Now, again, I think it's easiest at the border where the national security implications, I think, Hernandez has already recognized --

Elena Kagan: But you would extend it even if the border patrol agent was not at the border?

Sarah M. Harris: Yes.

And that is correct, and that is because I think the cross-cutting reasons against Bivens extensions make it a very difficult sale.

I think that one of the questions --

Elena Kagan: So, again, what are those -- what are those reasons?

Sarah M. Harris: Sure.

Happy to go through them, first of which is just the doctrinal foundation, so is there reason to doubt -- to think Congress wouldn't want a remedy in which there's a separation-of-powers violation.

Elena Kagan: Well, but that just begs the question, I mean, why would Congress -- I mean, the question is, like, what's different about this very large class now that you're demarcating?

Sarah M. Harris: Sure.

And I think the second question is whether the judiciary is well-suited to weigh the costs and benefits for the -- and the cross-cutting effects on the border patrol in recognizing such claims, including whether it -- whether border patrol agents are sort of implementing overlapping functions. Sort of at one moment, perhaps they think a search is initially perhaps something more akin to a routine law enforcement search. It becomes an immigration enforcement action.

I think there are pretty hard questions about how it's going to affect --

Elena Kagan: I mean, but don't all -- all law enforcement officers -- you know, they do what's needed, and sometimes they're going to do something that's not strictly in the wheelhouse and sometimes they're going to -- I mean, that -- that would apply to everybody, wouldn't it, that, you know, they -- you know, there's a -- just a cop on the beat and he might be doing border patrol someday too.

Sarah M. Harris: I think it's particularly acute with respect to the border patrol, but I do think that this illustrates, again, the level of generality that Abbasi and Hernandez have now pick -- pitched the inquiry, which is really separation-of-powers concerns have to be at the absolute forefront and is the answer to the question are courts ever well-suited to figure out the systemic costs on an agency, including morale, deterrent effect, administrative costs, and --

Elena Kagan: Well, with respect, it does seem like, you know -- you know, what -- when Justice Breyer was a little bit making fun of this, like, you know, on Tuesday and Thursday but not Wednesday and Friday, I mean, it seems that that's what you're saying, that we sort of focus Bivens at this unbelievably minute level of detail and find out exactly what Bivens was about and say, oh, sorry, it doesn't apply because it's Tuesday rather than Monday or it's April rather than May.

Sarah M. Harris: Well, I respectfully disagree with that.

I do think we're trying to faithfully apply exactly what Abbasi says.

So I think the question is how do you distinguish between trivial differences and differences that are meaningful from Bivens and which, again, we're not challenging the stare decisis and settled law value of Bivens.

And so I think that question really is answered by the Abbasi new context inquiry, which the Court has said is broad and easily satisfied. And so I think that has to be the answer in order to be faithful to what the Court has already said in this context.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?

Clarence Thomas: No questions.

John G. Roberts, Jr.: Justice Breyer, anything further? Justice Alito? No? Justice Gorsuch, anything further? Justice Barrett? No? Thank you, counsel. Mr. Huston.

Michael R. Huston: Mr. Chief Justice, and may it please the Court: A straightforward application of this Court's recent Bivens precedents demonstrates that the judgment of the court of appeals should be reversed.

At step 1 of Abbasi's framework, both of Respondent's claims would require extending Bivens to new contexts for the first time in 40 years, and at step 2, multiple special factors counsel hesitation against the Court taking that momentous step. On the First Amendment, this Court has explained that retaliation claims are easy to allege and hard to disprove and that they have the potential to chill federal officers' performance of important functions.

That is especially true here, where Respondent seeks to impose liability for Agent Egbert's giving of a tip to another agency suggesting further investigation. And on the Fourth Amendment, Respondent's claim is meaningfully different from the ones in Bivens in ways that bear directly on the separation of powers.

This Court has recognized that agents' effective policing of the border has a clear and strong connection to national security, and Congress has also determined that law enforcement at the border is different from other kinds of law enforcement. All those features give ample reason to doubt that Congress would have wanted an individual damages remedy in the circumstances here. I'd like to begin --

Clarence Thomas: Following up on the questions that Ms. Harris was confronted with, do you think that there is a meaningful difference between border patrol agents and narcotics agents?

Michael R. Huston: I think that border patrol agents do present a new context, Your Honor, at step 1 of Abbasi, but I think whether special factors counsel hesitation and, thus, whether a Bivens claim can go forward depends on what the border patrol agents are doing. So I think this goes directly to the question that -- that Justice Barrett posed about what about a situation where a federal officer performs some duties that do implicate national security and others that don't. We do think that that makes a very important difference, and we think that the -- the facts here present a very clear and strong connection to national security, similar to what was at issue in Hernandez.

That's why a Bivens claim cannot go forward here. We think the case would be different if you had a border patrol agent who's just investigating -- you know, assisting with local law enforcement to perform routine law enforcement functions.

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

Michael R. Huston: Yes, there would be no Bivens action in --

Stephen G. Breyer: So any time -- so Bivens is not simply -- I'd never heard of that one.

But you're saying that just -- who are the most ordinary people that Bivens applies to? I thought FBI agents.

Michael R. Huston: I think it is FBI agents.

Stephen G. Breyer: I thought DEA agents too.

I was wrong about that?

Michael R. Huston: There are many claims brought against -- there are some claims brought --

Stephen G. Breyer: Yeah, DEA.

Okay.

I thought --

Michael R. Huston: -- against DEA agents, but the most common one --

Stephen G. Breyer: And I thought --

Michael R. Huston: -- is the FBI marshals.

Stephen G. Breyer: -- alcohol, tobacco and so forth.

I thought those were just right at the heart of Bivens.

Michael R. Huston: Sure.

Your Honor --

Stephen G. Breyer: Okay.

So now they have the same job basically if you look at it in terms of arresting people for violations of federal law.

They have the same authority to carry weapons.

They have the same whatever. They -- they have the -- what's the word -- they have the same basic obligation providing police protection. But you are saying all those people to whom Bivens now applies, if the person they are arresting is a person who has a connection with, let's say, foreign dubious groups abroad, no Bivens action?

Michael R. Huston: Yes, that's right, Your Honor.

And I think this --

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

Michael R. Huston: I think Abbasi explained that when an officer is operating pursuant to a different statutory or legal mandate, that does give rise to a new context at some point.

Stephen G. Breyer: Oh, no, this is --

Michael R. Huston: It doesn't --

Stephen G. Breyer: -- the same mandate, the FBI.

The same mandate, the DEA.

They see a person walking down New York City with a bomb, okay, and so they arrest him, and in the course of that arrestment -- arresting him, they do something that's shocking or contrary to the Constitution, and that person with the bomb is connected with somebody in a foreign country. And you're saying that person with the bomb has no Bivens action?

Michael R. Huston: That's correct, Your Honor.

I think that's illustrated by the Court's opinion in Abbasi, where the Court talked about the difference between conditions of confinement claims like the ones that were at issue in Carlson and confinement claims like the ones that were at issue in Abbasi. And the Court said the key difference is that Abbasi was a case about national security dissension, and that made all the difference, even though, at one level of generality --

Elena Kagan: And -- and how is this a case about national security? I mean, Justice Breyer gave you one hypothetical, but this is a much more prosaic case.

I mean, the -- the -- the agent goes in and goes onto somebody's private property and, essentially, it's to check on the status of a guest, the immigration status of a guest.

Are you legally in this country or not? I mean, what does that have -- you know, sure, you know, borders have something to do with national security, but every time an -- a border agent checks on immigration status of a person we kind of wave our arms and say national security and say there's no Bivens remedy because of that?

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

Elena Kagan: I mean, Hernandez --

Michael R. Huston: I think that's --

Elena Kagan: -- is a very different kind of case, right? It's a cross-border shooting, and, you know, it clearly had implications for the relationship between the United States and Mexico, you know. So whatever you think of Hernandez, there obviously was a dissent in that, but -- but assume -- you know, assume that the majority was right.

This is not Hernandez, is it?

Michael R. Huston: I agree that there's a factual difference.

The cross-border aspect of Hernandez, which was important to the analysis, is not present here.

That's certainly true. But if I might just say two things about why I think there are other features of Hernandez that go --

Elena Kagan: Canada is not going to much care whether this border agent went on to -- you know -- you know, checked out this guy's citizenship or -- or legality in the --

Michael R. Huston: Your --

Elena Kagan: -- country.

Michael R. Huston: -- Your Honor, I very respectfully but very vigorously disagree with that.

The -- the -- the agents at -- who work at the border in Blaine will tell you that their most important partnership is with the Royal Canadian Mounted Police.

We work together with them to police our shared border.

They protect their side for our benefit.

We protect our side for their benefit.

And it's that mutual cooperative relationship, which involves daily type of liaising, that really is what enables us to protect the border. So I do think that if you have a situation like the one that Hernandez was concerned about, where the prospect of Bivens liability chills border agents' performance of their duties, that is something that affects Canada in a very real way.

It means more people are sneaking across the border into Canada. But it's not just about preventing people from going into Canada.

Agent Egbert was on the property that day because the Turkish guest had undertaken objectively suspicious travel across the world to stay at a rundown bed-and-breakfast at a site that is notorious for cross-border smuggling.

Again, the agents who deal with this property, it is a constant headache.

They've had years where there have been multiple incidents per week of people coming across the border into the United States from Canada. And the agent suspected that day that that's why the Turkish guest was there, to facilitate the unlawful entry of persons or drugs or other things across the border into the United States or potentially to smuggle himself or other contraband --

Elena Kagan: That's what the --

Michael R. Huston: -- outside the United States.

Elena Kagan: -- agent says, but this is a summary judgment motion where we take the facts not as the agent says, right? And -- and if you do that, all that this is, is an unremarkable check as to whether a guest was lawfully in the country.

Michael R. Huston: Well, Your -- Your Honor, I think we're happy to take the facts in the light most favorable to Respondent, but, again, the Fourth Amendment creates an objective standard of reasonableness, and I think the facts here gave ample reason for an objective suspicion that this guest was involved in cross-border smuggling activity. And, again, I think Hernandez said that cross-border smuggling activity, preventing the unlawful entry of persons and drugs, has a clear and substantial connection to national security.

I think the Court was exactly right about that. And, for the reasons I mentioned, I also think that agents' effective performance of their duties at the border does make a very significant difference to our foreign partners, to our Canadian partners.

Amy Coney Barrett: Mr. Huston --

John G. Roberts, Jr.: Mr. Huston, give me a hypothetical case where your office would say Bivens permits a cause of action.

Michael R. Huston: Sure, Your Honor.

In a case involving an FBI agent or an agent of the Park Police or the Marshals Service, something other than the Federal Bureau of Narcotics or its successor, the DEA, but that is a routine domestic search-and-seizure claim or a excessive force claim, the government has not argued either before or after Abbasi that those cases give rise to special factors. Now, of course, the list of things that can create special factors, as Abbasi explained, is non-exhaustive, and so the Court really needs to consider the full picture.

It makes a difference if the FBI agent is there, in Justice Breyer's hypothetical, to protect national security, to go after a guy with a bomb.

And it makes a difference if you're trying to prevent the enter -- entry of drugs or -- or illegal persons at the border. But, in a -- in that sort of routine, run-of-the-mill Fourth Amendment case by an FBI agent, we don't see special factors that counsel.

Amy Coney Barrett: Mr. --

John G. Roberts, Jr.: It's a special factor if drugs -- drugs are involved?

Michael R. Huston: Well, in -- no, I'm sorry, Your Honor, not just the drugs.

Drugs were, of course, the basis for the investigation in Bivens itself, but it's a special factor if you are protecting the border because it's -- it's a special factor anytime the agent's statutory mission is to protect national security.

And the Court has explained that cross- -- effective protection of the border implicates directly national security.

Neil Gorsuch: Mr. Huston, if I understand your response to the Chief Justice, cases identical to Bivens, the government concedes and the -- and the three cases we've recognized are -- are permissible, but anything beyond that we're going to have to do special factors.

Is that a fair characterization?

Michael R. Huston: Yes, it is, Your Honor. And can I -- can I -- I would just like to say one word about why I think that's the right way to approach it. That's because I think step 1 of the two-step analysis is really just designed to perform a quick check to make sure that there are or are not special factors. And it's really at the step 2 that the Court performs the full analysis.

And you can see this in both the application of the test in Abbasi and Hernandez, where the discussion of whether the context was new was very, very brief.

Most of the analytical work was being done at step 2 on special factors, and that took --

Neil Gorsuch: Which is why you think it was appropriate for the Ninth Circuit to go to step 2 in this case?

Michael R. Huston: Absolutely.

We think these -- these contexts are clearly new, both of them, Your Honor, and -- but we also, of course, you know, respectfully disagree with the Ninth Circuit's conclusion that there are not special factors in this case.

So --

Brett M. Kavanaugh: When you get to step 2, can you imagine a case where it would ever be the situation where the special factors would not apply?

Michael R. Huston: Yes.

I -- I think it's the answer --

Brett M. Kavanaugh: What would be an example of that?

Michael R. Huston: I think it's the answer I gave to the Chief Justice.

In a routine domestic search-and-seizure context or an excessive force claim involving a U.S. citizen by an FBI agent, that passes step 1, it's a new context because that agent has a different mission than the agent in Bivens. But we would not argue that there are special factors counseling hesitation unless the case has facts like it implicates national security or something like that.

Neil Gorsuch: Is -- is it --

Amy Coney Barrett: Mr. Huston, can I ask --

Neil Gorsuch: Go ahead.

Amy Coney Barrett: -- a question about the government's position on the level of generality at which we analyze new contexts? So you've gotten a lot of questions about, well, would this count, would that count. Would it be the position of the United States that after Abbasi we should construe the new context against recognizing so that we would expect a very, very close fit, maybe not the Tuesday/Thursday, Monday/Wednesday examples that Justice Breyer was giving you, but is it the position of the United States that essentially the Court has said that Bivens remedies are so disfavored that we should always err on the side of narrowness? Is that the position of the United States?

Michael R. Huston: I think that's basically right, Your Honor.

I think it follows directly from the Court's statements in Abbasi that a new context is broad and that even a minor extension still qualifies as an extension. But I -- I actually think the skepticism of Bivens is -- is just as important at step 2.

We think that the institutional competence of the courts, the fact that creating a cause of action is fundamentally a legislative function, not an exercise of the judicial power, mean that any extension of Bivens is disfavored, and, thus, when the Court is conducting a step 2 analysis, it should be quite skeptical before it recognizes new cause -- new Bivens causes of action.

Stephen G. Breyer: Well, yes, but you're defining -- that wasn't quite the question, I thought, that -- that you were asking, Justice Barrett. She was saying, all right, we see a new factor or could be a new factor, could not. Should we approach it with skepticism as to whether it is a new factor or not? Now, there, why is skepticism justified? It can't be because -- see, if it isn't a new factor, it falls within what has already been recognized as something that was -- Congress either wanted or at least permitted, et cetera. The reason I ask that is Justice Harlan's opinion in Bivens, which I think is interesting, traces Bivens the right for a court to have such a -- a rule way, way back, back to really the common law, back to England, back to -- and to John Marshall in -- in -- and -- and -- and so what's the reason -- and John -- John Marshall in Marbury versus Madison, you know, rights and remedies and so forth. So I got your point, don't extend it. But I haven't got your point of whether we consider the differences here in this case something that would be extending it or not to recognize it would be narrowing it? How do we do that?

Michael R. Huston: Well --

Stephen G. Breyer: And why favor the one? Why have the presumption one way rather than the other? That's a little elaboration of what I took as the --

Michael R. Huston: The Court has said that its conception of what makes something a new Bivens context is broad and that even a modest extension is still an extension.

And the reason for that is because the -- Justice Harlan in dissent in Bivens -- or, I'm sorry, not -- Justice Harlan's concurring opinion in Bivens and the great Chief Justice's opinion were referring to common law remedies for common law injuries. And that's very different, as this Court has explained, from a federal court, which, of course, doesn't create general common law.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas?

Clarence Thomas: Nothing.

John G. Roberts, Jr.: Anything further, Justice Breyer? No? Justice Alito? No? Justice Gorsuch? Justice Barrett? No? Thank you, counsel. Ms. Ellsworth.

Felicia H. Ellsworth: Mr. Chief Justice, and may it please the Court: Mr. Boule's Fourth Amendment claim is materially indistinguishable from Bivens itself. A federal law enforcement agent entered private property without a warrant and used excessive force, just like the federal agents in Bivens, as the Court's questions have indicated. The fact that the federal agent inquired about the visa status of Mr. Boule's guest in the process does not make this case any different from the other instances of law enforcement overreach in the search-and-seizure context in which this Court has long recognized that a Bivens remedy lies. And this case has none of the foreign policy or extraterritoriality concerns that animated the Court's decision in Hernandez. Instead, this is a case like the Court observed in -- in Abbasi, where Bivens has continuing force and even necessity. Mr. Boule's First Amendment claim addresses conduct that is similar to the conduct that this Court assumed in Hartman versus Moore could be remedied via Bivens, but even if it is a new context, there is no reason to withhold the remedy here. There's no national security considerations, no conceivable national security considerations with regard to the First Amendment claim, and no alternative administrative remedial scheme that exists. Awarding damages for federal officer -- individual damages for federal officer misconduct has long-standing roots dating back to the founding and remains appropriate, albeit more limited, today. And as the Court has observed on several occasions, Congress in the Westfall Act preserved the availability of individual damages for constitutional violations.

Although the reach of Bivens may be narrow, the need for the remedy persists, and the argument that the Court should not recognize a Bivens remedy in any new case flies in the face of this Court's decision just five terms ago in Abbasi and also would contravene the historical foundations allowing individual damages to right a federal officer's constitutional wrong. Mr. Boule's case claims satisfy the framework set forth in Abbasi and should be allowed to proceed. I'd welcome the Court's questions.

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

Felicia H. Ellsworth: That's -- that's correct, Justice Thomas.

And we don't think this is a new context for all the reasons that some of the Court's questions of my friend indicated.

This is an unlawful entry without a warrant, and this is excessive force on private property against a U.S. citizen on domestic soil. None of the reasons that the Court has found would be a Bivens extension in any prior cases apply here.

And even if the Court were to go to the next step, none of the reasons that have been offered that might counsel hesitation would be a reason to withhold a Bivens remedy here or to think that Congress would not want a damages remedy in this instance.

Brett M. Kavanaugh: What about Mr. Huston's reference to Canada and the cooperation with Canada, so this is the border context and it's not just near the border, but there actually is interaction with the Canadian authorities on this kind of activity?

Felicia H. Ellsworth: So a -- a couple responses to that, Justice Kavanaugh. First of all, I -- I hear the government and -- and Petitioner to be saying that the actual proximity to the border doesn't matter to the position here, that, in fact, the position is that border patrol agents writ large should not be subjected to Bivens.

So I don't think this actual proximity and the cooperation with Canada is -- is particularly relevant here. Agent Egbert would take the position that this conduct is not subject to Bivens if it happened 20 miles away because of the immigration-related context that supposedly applies. And that, to Justice Breyer's questions, the 83 agencies, the 5,500-mile land border with Canada, the idea that Bivens doesn't apply anywhere in that swath would sweep with far too broad a brush. Now I think it is possible -- and the Court's decision in Hernandez, of course, recognizes this -- that there are certain functions that may be performed by border patrol agents which may create a new context or may be a -- a reason counseling hesitation, but not every function performed by a border patrol agent falls into that category, and the conduct of Agent Egbert here certainly does not.

Amy Coney Barrett: Ms. Ellsworth, what if this had happened -- you know, Smuggler's Inn was very, very close to the border.

What if this exact same encounter at which Boule alleges there was excessive force had happened not on his property but right next to the border? What then?

Felicia H. Ellsworth: So, as a -- as a factual matter, his property is right next to the border?

Amy Coney Barrett: He is right next to the border? Okay.

Felicia H. Ellsworth: It's about 10 feet away.

Amy Coney Barrett: But, like, what if -- what if we push it up, like, right, right by the border, it's not his driveway, it's right, right by the border.

Does -- does that change things for you?

Felicia H. Ellsworth: I don't think it does, Your Honor, I really don't, because the -- the -- the conduct that the agent was engaged in here was ordinary law enforcement conduct.

He was following up on a tip given to him by Mr. Boule to come and inquire about the -- or talk to this Turkish guest. And once that -- once he followed up on that tip, if you look at Joint Appendix 108, the agent left.

There was no further concern, no further sort of exigency at the moment. So I don't think what -- how -- the proximity to the border makes a difference.

Amy Coney Barrett: So what would he have to do for Bivens not to apply? I mean, the -- you know, Boule has been involved in smuggling activity in the past. His -- his B&B is called Smuggler's Inn.

His license plate says "SMUGLER." You know, there's this Turkish national who's staying and there's suspicion that he's going to, which, in fact, he did, cross the border into Canada illegally, and -- and this is what Agent Egbert is following up on. What would have to be present? Can you give me a set of facts in which Bivens then would not apply?

Felicia H. Ellsworth: Certainly, and I think it's the Hernandez case, at least is one example.

It's actively patrolling the border, attempting to prevent illegal entry, right? That's what Agent Mesa was doing in Hernandez. That is one of the factors that the Court found convincing as to why Bivens shouldn't apply there, although the extraterritoriality and the foreign relations concerns played a far larger role at least in the Court's opinion.

Sonia Sotomayor: What --

Neil Gorsuch: Counsel -- oh, go ahead, please.

Sonia Sotomayor: What I find so strange about this case is that Mr. Boule is the one who told the agent about this visitor, didn't he?

Felicia H. Ellsworth: That's correct, Justice Sotomayor.

Sonia Sotomayor: And --

Felicia H. Ellsworth: Mr. Boule was a government informer -- informant for ICE.

Sonia Sotomayor: Assuming that that's public knowledge now.

And so -- and I think that Mr. Boule told him he was coming from -- from an airport, correct?

Felicia H. Ellsworth: That's correct.

He told him he had flown into the country at Kennedy Airport in New York and was arriving in the area at Seattle Tacoma.

Sonia Sotomayor: All right.

I still don't understand why the agent had to wait until the car got to the inn, why he couldn't, if he was curious, have stopped the car anywhere?

Felicia H. Ellsworth: Well, that's exactly right, Justice Sotomayor.

He could have stopped the car outside of the property.

He could have stopped the car on the way from the airport.

As Justice Barrett's question indicated, the car has a distinctive license plate.

Agent Egbert was familiar with it.

There was no need to enter the property in order to conduct the visa check.

Sonia Sotomayor: So I guess your answer is really that whatever the writ large activity of an agent is, we should be looking at what the activity was in this case?

Felicia H. Ellsworth: I think the specific activity is something the Court has typically considered in -- in Bivens, the Bivens context in order to --

Sonia Sotomayor: And so, as you see the activity, it's not smuggling; it's an immigration violation?

Felicia H. Ellsworth: Exactly.

It has nothing to do with alleged smuggling, and, of course, as I noted, Mr. Boule was cooperating with the government rather than in opposition to it. But, if the fact that the agent is conducting a visa check is sufficient to remove the conduct from the ambit of Bivens altogether, that would have extremely broad implications far beyond border patrol.

I mean --

Samuel A. Alito, Jr.: What if it happened right at the border? Suppose that someone runs across the border carrying a big bag of drugs, and the border patrol agent sees that person and then tackles the person and allegedly uses excessive force in detaining the person. What would you say about that?

Felicia H. Ellsworth: That case would be much more similar to the conduct in Hernandez. And, again, the agent would be actively both stationed at the border, right, stationed at a checkpoint of some sort, but also attempting to prevent illegal entry, right? That is the difference in the -- if we're talking about the law enforcement conduct, that is one of the differences between what was -- Agent Mesa was doing in Hernandez and Agent Egbert --

Samuel A. Alito, Jr.: Well, how -- okay. How about if it's the other way? This person is running toward Canada, and the border patrol agent tackles the person two feet from the Canadian border.

Felicia H. Ellsworth: Again, I think it would depend on whether the agent was actually stationed at the border, attempting to prevent unlawful entry and exit.

That's not the circumstance here, but I think that would be a closer case because, again, that is an individual border patrol agent who's actively engaged in trying to stop cross-border conduct, crime, whatever you call it. That's very different from a law enforcement officer who comes onto somebody's property following up on a tip and then, as the allegations of the -- the case reached this Court, engages in excessive force.

It's a different --

Samuel A. Alito, Jr.: At -- at what point do you think he -- this is not the Bivens question, but just to understand the background of this, at what point do you claim the agent violated your client's Fourth Amendment rights? This is a public accommodation, right? So --

Felicia H. Ellsworth: So --

Samuel A. Alito, Jr.: -- presumably, anybody can walk up to the door of it.

Wouldn't that be the case?

Felicia H. Ellsworth: The district court found, at the Petition Appendix 65a, that the area where Agent Egbert attempted to question the Turkish guest, where he was standing and where Mr. Boule asked him to leave, was the curtilage of the property, which is protected within the Fourth Amendment.

It is an area very similar to the area that the Court found in the Collins versus Virginia case was curtilage protected by the Fourth Amendment as well. So I -- that is what -- the initial Fourth Amendment violation is that area, the fenced-in area right in front of the front door of Mr. Boule's home --

Samuel A. Alito, Jr.: Well, I mean, suppose --

Felicia H. Ellsworth: -- which is also --

Samuel A. Alito, Jr.: -- he wanted to -- to rent a room there.

He can -- he could enter, right? He could walk up to the door to enter. Suppose he wanted to speak to a guest.

I mean, this is not -- I'm just trying to -- this seems like not the biggest Fourth Amendment case that we've -- we've ever seen.

Felicia H. Ellsworth: So -- so let me give a few responses, Justice Alito. First of all, the -- the district court found that this was curtilage.

That was not disturbed on appeal by the Ninth Circuit. So I don't think that question is before the Court.

But taking the question --

Samuel A. Alito, Jr.: Well, I don't know that the issue is whether it's curtilage or not because it's a commercial establishment.

But go ahead.

Felicia H. Ellsworth: Take -- taking the question, when Agent Egbert was in this area of the property and Mr. Boule asked him to leave, that is the moment --

Samuel A. Alito, Jr.: Yeah.

Okay.

Felicia H. Ellsworth: -- at which the search became an unlawful search.

Samuel A. Alito, Jr.: Okay.

Neil Gorsuch: Counsel --

Elena Kagan: Can I take you back to --

Neil Gorsuch: Oh, please.

No, go ahead.

Elena Kagan: -- Justice Kavanaugh's question about U.S./Canada relations? And, as I understood it, the way you responded to him is, look, Petitioner's view would extend far beyond the border, just anytime a border patrol agent is involved. But how about if we narrowed Petitioner's view and we said, okay, it's border patrol agents acting near the border? Does that have implications almost as a matter of necessity for U.S./Canada relations?

Felicia H. Ellsworth: I don't think it does as a matter of necessity.

It's going to -- it's going to depend on the facts because not all border patrol agents are engaged in conduct that is actively protecting the border at all times. The mission of the border patrol is much broader than that, and there are border patrol agents who at various times, as Justice Breyer's question to my friend indicated, are engaged in normal domestic law enforcement activities. So it does -- it depends on the activity that the agent is involved in.

And I would just note --

Elena Kagan: And why does this activity fall on one side of the line rather than the other side of the line?

Felicia H. Ellsworth: Because, again, the agent was following up on a tip.

That's normal law enforcement activity.

The fact that the tip, though --

Elena Kagan: Well, doesn't it make a difference what the tip was about?

Felicia H. Ellsworth: Well, and the fact that the tip related to -- first of all, the tip was, I have a legal -- you know, somebody who is illegally in the country coming to my property. So there's some factual dispute here or -- or lack of clarity that would need to be decided by a fact finder.

As Your Honor noted, this comes to the Court on summary judgment. But, more importantly, if immigration related, if following up on somebody's immigration status were sufficient to remove conduct from the ambit of Bivens, that would -- that -- that sweeps every federal agent, that sweeps local agents, state agents.

I mean, immigration checks are something that are extremely common.

Brett M. Kavanaugh: But, here, it's a tip, to follow up on Justice Kagan's questions, a tip about someone who's present, and the officer, exercising experience, says, well, this person staying there is likely to cross the border or possible to cross the border into Canada.

So it's an illegal crossing, although in the opposite direction of the cases that the border patrol is usually dealing with.

And that goes back to the Canada/U.S. cooperation. But this is not just an illegal presence case.

It seems to me, from the officer's perspective, it's an illegal crossing investigation or a potential illegal crossing.

Felicia H. Ellsworth: So a few responses to that, Justice Kavanaugh. First of all, the -- the record belies that claim, right? At Joint Appendix 108, the agent came.

Once he had checked the visa, he said our job there was done as border patrol agents and left. The second point I would make is, unlike in Hernandez, we do not have the government of Canada before this Court indicating that they disagree with the position taken by the lower courts or the position taken by the agency.

And the animating -- the foreign relations animating factor in Hernandez, at least as I read it, related to the -- the -- the problem with foreign relations that it would create for a court, this Court, to somehow contradict the judgment that the executive had made. But the third point I would make is --

Samuel A. Alito, Jr.: But in Hernandez --

Elena Kagan: So it's obvious --

Samuel A. Alito, Jr.: -- the -- the government of Mexico did not object to having that suit go forward.

Felicia H. Ellsworth: No, the government of Mexico, of course, as -- as the Court --

Samuel A. Alito, Jr.: Okay.

Felicia H. Ellsworth: -- is well aware was -- was supporting the availability of Bivens, but that would have been in contravention of the executive's decision not to discipline Officer Mesa.

Elena Kagan: I mean, I would think it's obviously true that, you know, Prime Minister Trudeau is not sitting up late thinking about this case.

But is -- is that what's required?

Felicia H. Ellsworth: Something more than the fact of it being proximate to Canada, I think, has to be required for this Court to think that foreign relations somehow come into play.

And there's no suggestion, even the government's representation at argument today, that there's any interest by the government of Canada in this particular case or in the conduct that Agent Egbert was involved in somehow being remedied or not remedied. And if it were sufficient that Agent Egbert is a Customs and Border Protect -- Protection officer for that to eliminate the availability of Bivens, none of this Court's discussion in Hernandez would have been necessary, right? That -- Agent Mesa was a CBP officer as well, and the Court went to great lengths to explain why it was that Bivens was not available there. It certainly wasn't sufficient either that he was affiliated with CBP or even that the conduct in question was so close to the border. There were many more considerations that the Court took into account.

Neil Gorsuch: Counsel --

John G. Roberts, Jr.: I think it's important to keep in mind why we're asking all these questions and I -- about the border, and I -- I think we may have missed the sort of important context. It's not whether we think there's going to be some, you know, connection to international affairs but whether Congress, given that context, would want there to be a private right of action against a federal officer but not enough to say something about it. In other words, we're wondering -- and this is -- I -- I wonder if your friend on the other side is -- is doing a little bit of double counting.

We start by saying there has to be special considerations, but isn't one of the special considerations the likelihood that Congress would want their agents to be facing this type of -- of liability, whether it's something that's going to present a problem by the -- at the border in -- in every case or not.

Felicia H. Ellsworth: Well, let's talk about what Congress has said here.

We have two indications to the extent that we can read -- read anything into them of what Congress thinks about this. The first is Section 1357(g)(8), which subjects state officers who are deputized as -- as CBP officers to the same types of liability and the same types of immunity as they would be under federal law.

So that's a suggestion by Congress and understanding that there may well be civil suits that arise out of conduct like this. The second indication that we have is the Westfall Act, which, of course, doesn't speak to the border context, but it does speak to the fact that Congress has not seen fit to eliminate the remedy of individual damages for -- against constitutional violations for federal officers.

John G. Roberts, Jr.: Well, but, I mean, the argument on the other side is that's your alternative remedy, the Westfall Act.

Felicia H. Ellsworth: And if the --

John G. Roberts, Jr.: You don't need a Bivens action.

Felicia H. Ellsworth: If the Westfall -- if the FTCA were sufficient to be an alternative remedy, first of all, that would have to -- that would contravene this Court's guidance in Carlson and Malesko about the FTCA and Bivens needing to co-exist. But the second point I would make is the Westfall Act explicitly exempts Bivens actions.

That's what the Court said in Hui versus Castaneda, and the Westfall Act was enacted against the backdrop of this Court's Bivens jurisprudence at least as it existed in 1988, which was, respectfully, far broader than it is today. So, to -- to the extent we can read anything into what Congress has done in the Westfall Act, I think it -- it certainly doesn't counsel against a Bivens remedy in this case in the Fourth Amendment context.

Neil Gorsuch: Counsel, if I understand you correctly, you disagree with the Ninth Circuit at the first step, is that right? The Ninth Circuit said this is a new context, and you say it is not a new context because the actions of the officers here are pretty similar to those in Bivens.

Felicia H. Ellsworth: That's correct.

The Ninth Circuit found this to be a modest extension.

We respectfully submit that it's not an extension of Bivens, and so the special factors don't --

Neil Gorsuch: Right.

Felicia H. Ellsworth: -- need to be considered.

Neil Gorsuch: So I -- I -- I guess, you know, part of my -- here's my big concern.

I'll lay it out.

We have a disagreement about the level of generality we're supposed to apply at step 1, whether this is or isn't a new context. And one side argues that we should look at it more broadly, perhaps you.

This is more like Bivens at a high level of generality. And the other side tells us we have to get down to the nitty-gritty.

And -- and any deviation from any specific thing is enough to create special factors. And then we go to the special factors, and it's a whole list of disparate considerations that are pretty hard to balance, I think, we could all agree.

And we're told that, really, the agency matters, but, on the other side, we're told no, it's the conduct that matters in the specific case. And in between, it could be the conduct that could potentially matter in those circumstances that an officer entering might -- might face.

It could be a law enforcement call that turns into an immigration call or an immigration call that turns into a law enforcement call. And then we're talk -- then we talk about the border, and there, we know that if it's a shot across the border, that's bad.

But the Smuggler's Inn, which has been disparaged in its quality today --

Felicia H. Ellsworth: Unfairly.

Neil Gorsuch: -- unfairly, I'm sure, is sufficiently far from the border that it -- that it's okay, and then we -- well, then we had a series of hypotheticals about, well, what -- what if -- what if the driveway were a little closer and -- and, you know -- or whatever. And I guess I'm just stuck, all right? What -- what -- what is a good and faithful judge supposed to try and do with all of this mess, acknowledging the fact too that this Court hasn't recognized a new Bivens action in decades? As you say, the law was very different in 1988 than it is today.

Help.

Felicia H. Ellsworth: So let -- let me do my best, Justice Gorsuch. I -- I think that the Court should look to the guidance in Abbasi from five terms ago, and I know that Hernandez is an intervening case, but I think Hernandez is almost sui generis given the facts of that case. And if the Court looks at Abbasi, the framework that was set out in Abbasi provides the Court guidance for what to consider and how to weigh that, and, in fact, one of the claims in Abbasi against the individual jailers, as the Court is aware, was sent back to the Second Circuit to consider whether special factors counsel hesitation. So the Court did, in fact, recognize a new context in Abbasi.

It found that because the claim was brought -- the conditions of confinement claim was brought under the Fifth Amendment rather than the Eighth Amendment, that was a new context, a modest extension, and sent it back to the Second Circuit for consideration. Now, in the interest of candor, the Second Circuit or the district court found that, in fact, there were special factors counseling hesitation in that case. But the -- the fact remains that the framework that was set forth in Abbasi, I think, allows the Court to consider and weigh these different competing factors in the way that courts do every day in the qualified immunity context, in applying the exclusionary rule, in various other factors.

Neil Gorsuch: Well, you know, in those contexts -- take qualified immunity.

I -- I -- I -- I kind of get my head around at least what I'm supposed to try to do there, right, is the law clearly established, and I look on the books and see if I can find it. Here, we can't even agree on step 1, whether this is a new -- I mean, how many years on from Bivens and we can't even agree what a new context is?

Felicia H. Ellsworth: Well --

Neil Gorsuch: And then -- and then, when we get to the special factors, I mean, I think, as our discussion today has illuminated, it isn't exactly like looking on the books to see if there's a case on point.

Felicia H. Ellsworth: And I would say that the lower courts have not respectfully struggled to -- to quite the same degree with applying the -- the Abbasi framework. There have been -- and they're cited in all the briefs, there have been cases since Abbasi where lower courts have -- have concluded that a Fourth Amendment unlawful search and seizure, like we submit this case, is not a new context and that Bivens applies. And there have been many other cases where the Court has concluded either it's a new context or that special factors apply and has not --

Neil Gorsuch: Except for you argue on the first one that the Ninth Circuit's wrong, that this isn't a new context, right? I mean, you say, well, the lower courts have had no problem finding this isn't a new context, except for this one did.

Felicia H. Ellsworth: Well, the Sixth Circuit in -- in the -- the case cited in our brief at page 31 found no new context in a Fourth Amendment --

Neil Gorsuch: So we have a disagreement between the Sixth and Ninth Circuit on whether this is a new context?

Felicia H. Ellsworth: Well, it's, obviously, different cases.

But I don't think that -- I mean, I think the Court can also consider the same factors that the Court considers in determining whether something is a new context. They seem to bleed over into the special factors as well.

Either way you slice them here, I don't think --

Neil Gorsuch: That's another problem.

What do we do about that? The same considerations at step 1 bleed into step 2, and -- and -- and normally, when we have a two-step test, we have two steps.

And, here, it's kind of, as you say, one and a half.

Felicia H. Ellsworth: Well, and either way, whether the Court considers it under step 1 or the Court considers it under step 2, none of the factors that were outlined in Abbasi, nor any other factors that have been raised by either the United States or Petitioner, are a reason why this Fourth Amendment claim should not be allowed to proceed.

Amy Coney Barrett: Ms. Ellsworth, let me ask you a question, the questions following up that Justice Breyer and I were asking about skepticism and given that the Court hasn't recognized a new Bivens claim in decades, given that the Court has said that they're disfavored. When we're asking these questions about level of generality and going through the factors, do you think our precedent puts a thumb on the scale of skepticism and a thumb on the scale counseling the Court to treat it as a new context?

Felicia H. Ellsworth: I don't think the -- I don't think the -- I -- I think it's fair to say that the Court has treated Bivens claims with skepticism over the past several decades.

That is certainly fair. The -- I don't think the Court has put a thumb on the scale in favor of finding a new context per se.

And like I said, in Abbasi, the Court found --

Amy Coney Barrett: No, in favor of not finding a new context.

Felicia H. Ellsworth: In -- in favor of not finding a new context, yes. I think what the Court has done has been appropriately guarded in expanding the remedy of -- of Bivens beyond where it has already been recognized. And, of course, it has been recognized time and again, not just in Bivens, but in Wilson versus Layne and in other cases in the Fourth Amendment context.

Amy Coney Barrett: So, like, just so far we would try to apply precedents so that if it looks just like Bivens, if it's a Fourth Amendment excessive force claim or, you know, if it's another Fourth Amendment, say, unreasonable search-and-seizure claim, in those contexts, we would say, okay, fair application of Bivens means this is exactly the same, but we don't have to have any skepticism when we're considering the factors about extending it into new areas? We're just kind of faithfully applying it like we would any other precedent, rather than trying to narrow it?

Felicia H. Ellsworth: I -- I think the Court has already narrowed Bivens substantially.

And I don't read the Court's more recent decisions as attempting to further narrow it but rather attempting to determine how to fit individual cases within the framework that has been set forth. And -- and, of course, this two-step framework that we're talking about really was only announced in its current form in the Abbasi case five years ago.

Prior to that, there were -- alternative remedies were playing a larger role in the Court's determination of whether Bivens was available.

Elena Kagan: So do I read you right in saying something like, look, what Bivens has become is basically a remedy for Fourth Amendment violations, and whatever skepticism you might have outside of that context -- I mean, I guess there are a couple of other contexts, right, but -- but -- but the big -- the bulk of Bivens claims are Fourth Amendment claims.

Whatever skepticism you might have outside of that, it's inappropriate to import into Fourth Amendment search/excessive force cases?

Felicia H. Ellsworth: I -- that's -- I think that's correct, Your Honor, and that's -- certainly is what courts have called the core or heartland of Bivens.

It's what this Court in Abbasi recognized was the area in which Bivens had continuing force and necessity. And so the -- the Fourth Amendment claim seems much less difficult.

I --

Amy Coney Barrett: So that makes your First Amendment claim a lot more difficult.

Felicia H. Ellsworth: The First Amendment claim is -- is -- is an uphill battle, Your Honor.

The First Amendment claim was found to be a new context by the Ninth Circuit. The Hartman versus Moore case did not hold that Bivens was available in the First Amendment context, but it did of course state that when the vengeful officer is federal, a Bivens remedy lies.

Whether that amounts to recognizing a Bivens claim or not, the -- the idea that special factors counsel hesitation in the First Amendment context we think is not appropriate in this case or not appropriate in the narrow type of First Amendment retaliation claim that Mr. Boule is bringing here. This is not a retaliation claim that relates to malicious prosecution or to arrest or to anything else that's within, as the Ninth Circuit put it, "the scope of the official duties of the officer." What we have here is Agent Egbert calling and sending a publicly available news article to these other agencies with, we allege, retaliatory motive in -- in retaliation for Mr. Boule's complaints to supervisors about the conduct on March 20th, 2014. That's the type of retaliation this Court has called straightforward in terms of issues of causation.

And while it may be an extension of Bivens to recognize the First Amendment claim, it is not one in which there are any special factors that counsel hesitation. There's no national security concerns.

There's no administrative regime that could be available to Mr. Boule to otherwise press these claims. The state law claims that both the Petitioner and the United States have suggested would be available to Mr. Boule are not available, again because of the Westfall Act because the conduct, while it is not part of his official duties, would fall outside his scope of employment for purposes of Washington law, which is where this Court looks. And the FTCA is -- while it may be an alternative remedy in some senses, it is not an exclusive remedy to Bivens.

Mr. Boule also was not able to actually bring his First Amendment claims under the FTCA for -- for time-barred reasons. But, putting that to the side, the FTCA and the Bivens continue to co- -- and Bivens continue to coexist, and so that's not a reason why the First Amendment claim should not be recognized here.

Elena Kagan: On -- on the Fourth Amendment front, how do we -- how should we properly handle invocations of national security by the government?

Felicia H. Ellsworth: Well, I would -- I would remind the Court that the government didn't see fit to invoke national security or participate in this case until it reached this Court.

So the government did not participate in the Ninth Circuit or the district court and suggest that there were some national security concerns attendant to this claim against a Border Patrol officer. But I think what the Court should consider is whether the -- the specific type of claim that would be recognized, which, again, here is going to be a garden-variety search and seizure claim on private property against a U.S. citizen, that whether there's some national security considerations that are attendant to that, and -- and there are none.

The only national security considerations that have been invoked are the fact that Agent Egbert is affiliated with the Border Patrol. And that's not sufficient.

There may be some Border Patrol functions that do implicate national security.

In fact, surely there are.

But this is not one of them.

Samuel A. Alito, Jr.: Do you think it matters? And -- and do I understand your last answer to mean that it matters what a particular Border Patrol agent's usual duties are as opposed to what the Border Patrol agent is doing at the time of the alleged tort?

Felicia H. Ellsworth: I -- I think it's the latter, Justice Alito.

I think it's the conduct that the agent is involved in at the time.

Samuel A. Alito, Jr.: Well, so here, he's following up on a call from your client about somebody -- why did your client call the agent about this individual?

Felicia H. Ellsworth: Actually, Agent Egbert had stopped Mr. Boule.

He performed a -- a vehicle stop on the road earlier that morning. And during the course of that stop, Mr. Boule informed Agent Egbert that there would be somebody arriving at the inn that evening.

Samuel A. Alito, Jr.: And why did he inform him of that?

Felicia H. Ellsworth: That is not clear from the record.

That's the type of factual development that we would hope to have the opportunity to develop at trial.

Samuel A. Alito, Jr.: You mean, if -- if -- if he knew that one of us was going to check in to the Smuggler's Inn and he happened to be stopped by a Border Patrol agent -- well, he would say, well, by the way, well it's -- maybe --

Elena Kagan: Suspicious characters. (Laughter.)

Samuel A. Alito, Jr.: Yeah.

Any ordinary person was checking in to the -- to the -- the Smuggler's Inn, he would have told the -- the agent?

Felicia H. Ellsworth: I -- I don't have the answer to that, Justice Alito.

I mean, I think -- it's important to keep in mind it's --

Samuel A. Alito, Jr.: And did he tell him that his employees had driven all the way to Seattle to pick up this person and drive the person back for a two-hour drive?

Felicia H. Ellsworth: Yes, that's the -- that is, in fact, typically the -- one of the services that Mr. Boule provided was to pick people up at the airport.

Samuel A. Alito, Jr.: Everybody?

Felicia H. Ellsworth: But one thing we --

Samuel A. Alito, Jr.: Everybody who checks in to the Smuggler's Inn, he does that?

Felicia H. Ellsworth: I -- I don't know if it is an add-on or if it's part of the -- part of the rate, Your Honor. (Laughter.)

Felicia H. Ellsworth: But Mr. Boule, of course, is -- is working with the government, previously with CBP, and at the time of the incident in question, he was working with Immigration and Customs Enforcement.

So whether that's the reason for him having informed agent Egbert of this or not, I don't have the answer to. But the fact of the matter is having a -- a government informant tell an officer that somebody is arriving legally in the country, I just don't think it's reasonable to consider that to be some reasonable suspicion to -- to come onto the property. But I don't think the Court needs to delve into those details and certainly needn't weigh them.

The question is whether this type of function, coming to check on the visa status on private property on U.S. soil --

Samuel A. Alito, Jr.: How -- how far was this actually from the border? From the point where this incident occurred, how far from there to Canada?

Felicia H. Ellsworth: It's very close -- it's maybe 20 feet.

It's not far at all from the border.

Thee property -- Mr. Boule's property actually crosses over into Canada.

Samuel A. Alito, Jr.: Twenty feet?

Felicia H. Ellsworth: The proximity to the border is not an -- to -- to make sure that the Court is clear, we are not arguing that this is somehow far enough from the border that it doesn't implicate the actual line. The issue here is that the -- the conduct that the agent was involved in has nothing to do with trying to prevent people from crossing over to the United States or even from trying to leave the United States to Canada --

Samuel A. Alito, Jr.: Why -- why do you say that?

Felicia H. Ellsworth: Because the conduct that the agent was involved in was following up to ask a question about the visa status of this individual.

He's not trying to attempt to stop people from crossing into the country when he went onto Mr. Boule's property to ask these questions.

Elena Kagan: As I understand it, the government is now suggesting that that is what they were concerned with.

It -- it seems as though there's just a -- a difference in one's view of the facts here.

Is that correct?

Felicia H. Ellsworth: And I -- I -- I come to this Court with the record that I have.

In Joint Appendix 108 is Agent Egbert's sworn declaration -- declaration indicating that after he checked the guest's visa status, there was nothing more for him to do as a Border Patrol agent and he left.

John G. Roberts, Jr.: This may be the same question I tried to ask earlier, but I've given it a little more thought so I might be able to phrase it better. We've been talking about does this agent in this case have something to do with the border, is it affected in some way? And the idea, I guess, is if it is, maybe there shouldn't be a Bivens action, but there -- if there isn't, maybe there should be. But the context is sort of we're -- we're stepping into the authority that would normally be vested in Congress in terms of whether or not to provide a cause of action. And if Congress were sitting down saying should there be a cause of action, it's not going be parsing the particular facts, say, well, there should be a particular cause of action if this, this, and this.

Presumably, they would say Border Patrol agents are not liable for actions on the part of this or something like that. And shouldn't we take that into account and -- and not be so terribly concerned about the particular facts but more what Congress would think about the consequences for its border agents and -- and whether it would draw a particular line on that basis?

Felicia H. Ellsworth: Let me try and answer that question in a few different ways.

The first is the -- what the Court would be doing here, were it to recognize -- affirm the Ninth Circuit and recognize the availability of Bivens, would be to -- to find that this conduct falls within the cause of action that the Court has already implied in Bivens in the Fourth Amendment context, to go to Justice Kagan's point.

So I don't think that the Court would be involved in -- in that form of implying a cause of action here because it would fit within the conduct of Bivens. But Congress has not -- there -- there's no suggestion in the statutory background here that Congress has made any statements that suggest that it does not view Border Patrol agents as being susceptible to Bivens or -- or would have concerns here. And I don't think the Court would need to engage in the type of weighing that your question suggests in order to determine that this conduct, which we can -- we can make it a higher level of generality, following up on a tip, going onto private property, questioning an individual, and using excessive force, allegedly, all of those -- that's all conduct that court -- the Court is able to weigh and judge and weighs and judges in a variety of different cases. And it's not conduct -- not -- it wouldn't require the sort of line-drawing that I think some of the factual questions have -- have suggested. And the idea that the Border Patrol writ large can't be subjected to a Bivens action, not only would it sweep very broadly but it's also contrary to, you know, the Court's decision in -- in Hernandez and -- and some other lower courts' decisions that have allowed Bivens cases to go forward against Border Patrol agents, Immigration and Custom Enforcement agents, and other agents who are involved in either border security or immigration-related matters, so long as there is not a national security reason to hesitate, which in this case there's not.

John G. Roberts, Jr.: Thank you. Anything further? No? Thank you, counsel.

Felicia H. Ellsworth: Thank you, Mr. Chief Justice.

John G. Roberts, Jr.: Rebuttal, Ms. Harris?

Sarah M. Harris: Thank you, Mr. Chief Justice. Three quick points: First of all, there has been a lot of debate about how to define a new context and what is new in this context. I think the question -- one of the questions is what is the heartland of Bivens, is it really any time a law enforcement officer happens to be performing regular law enforcement duties or it's something else? I do think that that is not quite presented here because the actual duties of whether you look at the Border Patrol or what Agent Egbert is acting under are specific statutory authorities for the Border Patrol involving immigration enforcement, illegal entry and exit.

That's 6 U.S.C. 211, and 8 U.S.C. 1357. We are not talking about the boundaries of figuring out what did the Court mean in Abbasi by the context in which there would not be new extensions of Bivens. So I think a lot of that debate just depends on how, you know, what happens when you do have a Bivens extension.

And I think that is this case. And the -- the second point I would like to make is how broadly should the Court be looking at the officer's functions or the facts on the ground.

And I think there really is a contrast between our positions. As perhaps the Chief's most recent question indicates, I don't think it's -- it's right to think that Congress would be looking at the granular details of whether Agent Egbert should have stopped someone, you know, 50 meters from the Smuggler's Inn or at the Smuggler's Inn driveway or perhaps on the road up to the Smuggler's Inn. I think the question that this Court's cases have looked at, and Hernandez is a particularly good example, is what is the type of conduct that the officer is engaged in? It's not, you know, Agent Mesa and Hernandez engaged in a purportedly unjustified cross border killing of a teenager. It is situations where Border Patrol agents might be needing to use or use -- use -- use force, or here, situations in which Border Patrol agents are concededly performing immigration functions. I think that has to be right because if you were to allow a Bivens claim in this context, you would be having the prospect of liability hanging over officers' heads, and they need to know sort of not just, you know, if you visit the Smuggler's Inn you'll be -- you'll be subject to Bivens liability but, more broadly, if you are engaged in an immigration search and you have to use force, what are the contours of your liability going to look like? And then zooming out even further, courts have to ask, I think, under Abbasi and Hernandez, what are the costs of that going to be for the Border Patrol? What are the litigation costs? What are the systemic costs going to look like? What's a deterrent effect on top of all of the other remedies that are out there for dealing with this type of conduct, including the internal investigations Congress has mandated? So I think that really is the right level of generality.

And one confirmation of that is that courts of appeals other than the Ninth Circuit have, indeed, suggested that immigration enforcement and the conduct of agents at the border are always going to be special factors because they are so intimately tied to national security and immigration functions.

And those are two things that have always been entrusted particularly to the political branches. And the fact that courts of appeals have been seeing that, other than the Ninth Circuit, I think, also gives some comfort that that is a workable rule, it has not produced bad consequences in those circuits, and those are three circuits, the Fifth, the Sixth, and the Eleventh have said that now for, you know, at least several years.

So I think that should give some additional comfort. And just one third point, which is that the state of play now is there are 60 cases in the courts of appeals after Abbasi; only two extensions from the Ninth Circuit. I think that strongly suggests the time for Bivens extensions may have been done. Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.