The Importance of Egbert v. Boule

The Court’s latest decision came on Wednesday when the justices ruled in Egbert v. Boule. 29 decisions remain before the end of the term.

Why is this decision important?

The case has quite far reaching implications by further limiting the scope of Bivens claims (this Court has already constrained Bivens application in previous decisions) against police officers.

In 1971 the Burger Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics held that a 4th Amendment violation for an unreasonable search and seizure can lead to a federal claim for damages and that governmental privilege does not extend to federal agents who clearly violate constitutional rights and act outside their authority.

What did the opinions say?

In the majority opinion, Justice Thomas wrote,

“[b]ecause our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.”

Justice Sotomayor described why she thought the case was decided incorrectly in her dissent stating,

“Today’s decision does not overrule Bivens. It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.”

One passage in Sotomayor’s dissent that is causing a stir is the statement,

“Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases.”

What is unique about this statement is how Sotomayor calls out justices on the newly formed Court rather than merely castigating the majority for a decision that she felt was reached incorrectly.

What do the statistics show?

Bivens is one of the more heavily cited Supreme Court opinions. By limiting its application, the Court is constraining the case’s application which is in turn limits the ways it may be applied by lower courts.

Since it was decided, Bivens was cited in over 30,000 court decision, the vast majority (obviously) coming in federal courts.

137 Supreme Court decisions cited Bivens so far. Before Egbert the Court mentioned Bivens most recently in in Brownback v. King and Maine Community Health Options v. United States.

5,801 federal court of appeals decisions cited Bivens with the most coming from the 4th Circuit and 9th Circuit Courts of Appeals and the least from the Federal Circuit.


Since district courts are the main source of Bivens application the bulk of decisions citing Bivens come from these courts (over 24,000 decisions). Not surprisingly, since it is the most populated part of the 9th circuit, district courts in California cited Bivens more than all other sets of district court in other states with 2,801 citing cases. Pennsylvania district courts were next with 1,998 citing cases, followed by New York courts with 1,736 citations, and Texas district courts with 1,458 citing cases.

When these states’ district courts are broken down, their citations to Bivens look as follows:

ED Cal1270
CD Cal979
ND Cal298
SD Cal254
MD Penn1224
ED Penn504
WD Penn270
New York

The consequences of this decision are extremely far reaching. Still, this case did not generate the amount of discussion as some of the more high-profile yet still undecided cases this term. Since the ramifications from this decision may be felt for years to come, this appears to be one of the cases that fell somewhat under the radar, but that will generate an increasing amount of discussion through its application in lower courts.

On Twitter: @AdamSFeldman

One Comment Add yours

  1. Asher Steinberg says:

    I think your numbers tend to show the opposite, that Egbert matters very little. The Court takes hard cases about whether Bivens extends to arguably new contexts; those are the Bivens cases it sees. The Court is saying that Bivens will virtually never extend to a new context, which is nothing new; the Court hasn’t extended Bivens in 42 years. But the vast majority of those many thousands of cases in which Bivens is cited are the cases the Court doesn’t take, about contexts where Bivens already applies: search-and-seizure violations, not involving national-security investigations, in the vast landmass of the United States that isn’t somewhere on the border (where the events in Egbert and Hernandez v. Mesa took place). Egbert doesn’t affect those cases. Not just that, those claims represent the vast majority of claims someone is likely to sue a federal officer for damages over. In Section 1983 litigation, where you can sue in theory for any violation of the Constitution that causes damages, most of the litigation involves a search or seizure, usually the latter, somewhere that isn’t on the border.


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