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holding that the plaintiffs' Fourth Amendment claims presented a new Bivens context due to differing legal mandates between an officer of the Federal Protective Service and the Federal Bureau of Narcotics
Summary of this case from Sheikh v. U.S. Dep't of Homeland Sec.Opinion
No. 22-35183
02-02-2023
Mark PETTIBONE; Fabiym Acuay, aka Mac Smiff; Andre Miller; Nichol Denison; Maureen Healy; Christopher David; Duston Obermeyer; James McNulty, Plaintiffs-Appellees, and Black Millenial Movement, an organization; Rose City Justice, Inc., an Oregon nonprofit corporation, Plaintiffs, v. Gabriel RUSSELL, in his individual and official capacity, Defendant-Appellant, and Joseph R. Biden; Chad F. Wolf; U.S. Department of Homeland Security; United States Marshall Service; Alejandro N. Mayorkas; John Does, 1-200; in their individual capacities, Defendants.
Brian J. Springer (argued) and Mark B. Stern, Attorneys, Appellate Staff; Scott E. Asphaug and Natalie K. Wight, United States Attorneys; David G. Cutler, Trial Attorney; Glenn Greene, Senior Trial Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C.; for Defendants-Appellant. Rachel C. Lee (argued), Christopher Rifer, Crystal S. Chase, Jeremy D. Sacks, Per A. Ramfjord, Amy Edwards, Jacob C. Goldberg, Todd A. Hanchett, and Joel A. Mullin, Stoel Rives LLP, Portland, Oregon; Kelly K. Simon, and Rachel Dallal Gale, ACLU of Oregon, Portland, Oregon; for Plaintiffs-Appellees.
Appeal from the United States District Court for the District of Oregon, Michael H. Simon, District Judge, Presiding, D.C. No. 3:20-cv-01464-YY Brian J. Springer (argued) and Mark B. Stern, Attorneys, Appellate Staff; Scott E. Asphaug and Natalie K. Wight, United States Attorneys; David G. Cutler, Trial Attorney; Glenn Greene, Senior Trial Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C.; for Defendants-Appellant. Rachel C. Lee (argued), Christopher Rifer, Crystal S. Chase, Jeremy D. Sacks, Per A. Ramfjord, Amy Edwards, Jacob C. Goldberg, Todd A. Hanchett, and Joel A. Mullin, Stoel Rives LLP, Portland, Oregon; Kelly K. Simon, and Rachel Dallal Gale, ACLU of Oregon, Portland, Oregon; for Plaintiffs-Appellees. Before: M. Margaret McKeown, Eric D. Miller, and Salvador Mendoza, Jr., Circuit Judges.
OPINION
MILLER, Circuit Judge:
During the summer of 2020, Mark Pettibone protested outside the federal courthouse in Portland, Oregon. He alleges that federal officers unlawfully arrested protesters and used excessive force, including by indiscriminately using tear gas against peaceful protesters. Together with other protesters, he brought this action against Gabriel Russell, then the Director of the Federal Protective Service's Northwest Region, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court denied Russell's motion to dismiss. We conclude that no Bivens cause of action is available in this case, and we therefore reverse.
I
Because this is an appeal from an order resolving a motion to dismiss, we assume the truth of the facts alleged in the complaint. Ellis v. Salt River Project Agric. Improvement & Power Dist., 24 F.4th 1262, 1266 (9th Cir. 2022).
Following the murder of George Floyd in Minneapolis in May 2020, numerous protests took place across the country, including near the Mark O. Hatfield United States Courthouse in Portland. In June 2020, the President issued an executive order stating that "[o]ver the last 5 weeks, there has been a sustained assault on the life and property of civilians, law enforcement officers, [and] government property" throughout the country and attributing this to "[a]narchists and left-wing extremists [who] have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation." Exec. Order No. 13,933, § 1, 85 Fed. Reg. 40081 (June 26, 2020), revoked, Exec. Order No. 14,029, 86 Fed. Reg. 27025 (May 14, 2021). The order directed the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security to provide "personnel to assist with the protection of Federal monuments, memorials, statues, or property." Id. § 5, 85 Fed. Reg. at 40083. The federal government subsequently deployed more than 100 law enforcement officers from Customs and Border Protection, Immigration and Customs Enforcement, and the United States Marshals Service to Portland, in what officials called "Operation Diligent Valor." Russell oversaw the officers in Portland.
Pettibone alleges that officers involved in Operation Diligent Valor arrested protesters "without any lawful basis" and also "indiscriminately used violent tactics on lawful protesters," including by "shooting them in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, [and] firing massive clouds of tear gas at them." Pettibone alleges that "[t]he tactics used by the officers went beyond what was required for their limited mission of protecting federal property and reflected a policy designed to retaliate against and to deter the protesters because of their views and beliefs."
The complaint includes specific allegations of allegedly unlawful conduct directed at individual plaintiffs. For example, Pettibone alleges that he was "snatched off the street and put in an unmarked van by unidentified men in military-style uniforms who did not explain their actions . . . and held him in jail with no explanation." Another plaintiff alleges that although he "wore distinctive clothing that identified him as a member of the press," he was injured "when an unidentified federal officer shot him in the head with an impact munition while he was lawfully attending the protests." And another alleges that while "[s]he merely stood in a line of women with arms linked," a tear-gas canister was "hurled into her head, causing a three-inch gash to her forehead."
Although Russell did not personally carry out any of the arrests or uses of force, Pettibone alleges that Russell "knew or reasonably should have known that officers . . . would cause and were causing the arrests of protesters and the repeated use of excessive force against protesters." According to the complaint, Russell "personally observed protesters in Portland and the actions of federal officers from an incident command post or an emergency operations center," and he "monitored social media and reviewed publicly available videos showing events at the protests." Despite Russell's awareness of officers' uses of force, Pettibone alleges, "Russell knowingly failed to order any change in tactics or response to avoid unconstitutional injury to peaceful protesters." Pettibone also alleges that Russell "implemented tactics that included identifying and arresting individual protesters" and that he directed the arrest of certain protesters, including Pettibone.
Pettibone brought this action in the District of Oregon against various federal agencies and officers, including Russell. As relevant to this appeal, the complaint asserted Bivens claims against Russell, alleging that he violated the Fourth Amendment. Russell moved to dismiss on the grounds that no Bivens remedy is available and that, even if it were, Russell is entitled to qualified immunity. The district court rejected both arguments and denied the motion.
II
In this interlocutory appeal, Russell's principal argument is that no Bivens cause of action is available here. The first question we must confront is whether we have jurisdiction to consider that argument.
We have appellate jurisdiction over "final decisions of the district courts." 28 U.S.C. § 1291. An order denying a motion to dismiss does not end the litigation, and therefore it ordinarily is not "final" and is not immediately appealable. Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1089 (9th Cir. 2007). But there are exceptions to that general rule. Because qualified immunity is "an immunity from suit rather than a mere defense to liability," the denial of a motion to dismiss is effectively final—and thus immediately appealable—when the motion to dismiss is based on qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis omitted); see Peck v. Montoya, 51 F.4th 877, 885 (9th Cir. 2022).
Russell's motion to dismiss asserted both qualified immunity and the lack of a Bivens cause of action. Pettibone argues that we may consider the Bivens issue only if we have pendent appellate jurisdiction over it—that is, only if it is " 'inextricably intertwined' with or 'necessary to ensure meaningful review of' decisions over which we have [interlocutory] jurisdiction." Meredith v. Oregon, 321 F.3d 807, 812 (9th Cir. 2003) (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)); see CDK Global LLC v. Brnovich, 16 F.4th 1266, 1273-74 (9th Cir. 2021). Pettibone relies on Wong v. United States, in which we applied principles of pendent appellate jurisdiction to decline to consider the availability of a Bivens cause of action in an interlocutory appeal of a denial of qualified immunity. 373 F.3d 952 (9th Cir. 2004). Wong explained that the availability of a Bivens remedy is not "inextricably intertwined" with the question of qualified immunity—and therefore is not properly before the court in an interlocutory appeal from a denial of qualified immunity—because "[d]eciding th[e] [Bivens] question requires the consideration of entirely distinct legal standards from, and its resolution is not a logical predicate to the resolution of, the qualified immunity issue." Id. at 961. Pettibone also invokes older cases in which we rejected jurisdiction over the Bivens question as "outside the limited scope of th[e] interlocutory appeal" from a denial of qualified immunity. Pelletier v. Federal Home Loan Bank of S.F., 968 F.2d 865, 871 (9th Cir. 1992); see Todd v. United States, 849 F.2d 365, 368 (9th Cir. 1988).
All of those cases, however, predated the Supreme Court's decision in Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, the Court considered an interlocutory appeal from a denial of qualified immunity, and it also resolved the antecedent Bivens issue. Id. at 548-49, 127 S.Ct. 2588. In explaining why there was appellate jurisdiction to decide whether a Bivens cause of action existed, the Court did not apply the pendent appellate jurisdiction test. It did not ask, in other words, whether "(a) [the issues are] so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue." Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir. 2000) (internal citation omitted). Instead, the Court said, without elaboration, that the recognition of the underlying Bivens cause of action was "directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal." Wilkie, 551 U.S. at 549 n.4, 127 S.Ct. 2588 (quoting Hartman v. Moore, 547 U.S. 250, 257 n.5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Wilkie establishes that, in an interlocutory appeal from a denial of qualified immunity, we necessarily have jurisdiction to decide whether an underlying Bivens cause of action exists.
Our more recent cases have reflected this understanding of Wilkie. In Mejia v. Miller, for example, we held that, in an interlocutory appeal from a denial of qualified immunity, we had jurisdiction to decide whether a Bivens remedy was available because "the existence of the cause of action is an antecedent legal question defining the claim . . . , and it is directly implicated by the defense of qualified immunity." 53 F.4th 501, 502 (9th Cir. 2022). We reached the same conclusion in Ioane v. Hodges, where we said that "[b]efore reaching the issue of qualified immunity, the first question we must address is whether [the plaintiff] may bring a Bivens suit." 939 F.3d 945, 951 (9th Cir. 2018). Earlier, we took the same approach in Ministerio Roca Solida v. McKelvey, 820 F.3d 1090 (9th Cir. 2016). We explained that the defendant "filed an interlocutory appeal to challenge the denial of qualified immunity" and that such a challenge addresses, "by necessity, the validity of the underlying Bivens cause of action." Id. at 1093 (emphasis added). In none of those cases did we mention pendent appellate jurisdiction or apply the test associated with that doctrine.
To be sure, in Mejia and the other recent cases, we did not expressly address the pre-Wilkie cases, such as Wong, Pelletier, and Todd, that rejected interlocutory jurisdiction over the Bivens issue. But the approach we have taken is inconsistent with that of the earlier cases. We read our more recent decisions as implicitly recognizing that the earlier cases are "clearly irreconcilable" with Wilkie and are therefore no longer good law. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Since Wilkie, we have not directly addressed whether the new rule is that we have jurisdiction to consider the availability of a Bivens cause of action in an interlocutory appeal from a denial of qualified immunity, but every other circuit to have considered that question has answered it in the affirmative. Those courts have applied Wilkie to hold that in an interlocutory appeal from a denial of qualified immunity, "one potential ground of decision is a conclusion that the plaintiff does not have a legally sound claim for relief." Vance v. Rumsfeld, 701 F.3d 193, 197 (7th Cir. 2012) (en banc); accord Vanderklok v. United States, 868 F.3d 189, 197 (3d Cir. 2017); Tun-Cos v. Perrotte, 922 F.3d 514, 520 (4th Cir. 2019); Byrd v. Lamb, 990 F.3d 879, 881 (5th Cir. 2021) (per curiam), cert. denied, — U.S. —, 142 S. Ct. 2850, 213 L.Ed.2d 1073 (2022); Elhady v. Unidentified CBP Agents, 18 F.4th 880, 884 (6th Cir. 2021), cert. denied sub nom. Elhady v. Bradley, — U.S. —, 143 S. Ct. 301, 214 L.Ed.2d 132 (2022); Farah v. Weyker, 926 F.3d 492, 497 (8th Cir. 2019); Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 856 (10th Cir. 2016); Liff v. Office of Inspector Gen. for U.S. Dep't of Labor, 881 F.3d 912, 918 (D.C. Cir. 2018). But cf. Dixon v. von Blanckensee, 994 F.3d 95, 101 n.4 (2d Cir. 2021) (rejecting the plaintiff's claim on qualified immunity grounds and declining to determine jurisdiction over the Bivens question). We see no reason to depart from the consensus among the other courts of appeals.
We conclude that we have appellate jurisdiction to consider Russell's argument that no Bivens cause of action exists in this case.
III
Congress has made a cause of action available to any person who has suffered "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" at the hands of someone acting under color of state law. 42 U.S.C. § 1983. But it has not created a general cause of action to redress violations of the Constitution by federal officers. Nevertheless, in three cases decided between 1971 and 1980, the Supreme Court held that the Constitution contains an implied cause of action through which plaintiffs can seek damages from federal officers who violate their constitutional rights. First, in Bivens, the Court held that a plaintiff could seek damages from Federal Bureau of Narcotics agents who allegedly violated his Fourth Amendment right to be free from unreasonable searches and seizures. 403 U.S. at 397, 91 S.Ct. 1999. Next, in Davis v. Passman, the Court extended that remedy to a plaintiff who alleged that her employer, a Member of Congress, had discriminated against her because of her sex, in violation of the Due Process Clause of the Fifth Amendment. 442 U.S. 228, 230-31, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Finally, in Carlson v. Green, the Court held that the estate of a deceased prisoner could seek damages from federal prison officials for violations of the prisoner's Eighth Amendment right to be free from cruel and unusual punishment. 446 U.S. 14, 16-18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
Although the Supreme Court has not overruled Bivens, Davis, and Carlson, it has recognized that they are in tension with "the Court's general approach to recognizing implied damages remedies," and that "the analysis in the Court's three Bivens cases might have been different if they were decided today." Ziglar v. Abbasi, — U.S. —, 137 S. Ct. 1843, 1856, 198 L.Ed.2d 290 (2017). Since 1980, the Court has not recognized any new Bivens remedy. To the contrary, "the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity," id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)), one that "places great stress on the separation of powers," Egbert v. Boule, — U.S. —, 142 S. Ct. 1793, 1806 n.3, 213 L.Ed.2d 54 (2022) (quoting Nestle USA, Inc. v. Doe, — U.S. —, 141 S. Ct. 1931, 1938, 210 L.Ed.2d 207 (2021) (plurality opinion)); see Hernandez v. Mesa, — U.S. —, 140 S. Ct. 735, 741, 206 L.Ed.2d 29 (2020) ("[W]hen a court recognizes an implied claim for damages," it "risks arrogating legislative power."). Thus, if "there is any reason to think that Congress might be better equipped to create a damages remedy" for a constitutional violation, we must refrain from recognizing one. Egbert, 142 S. Ct. at 1803 (emphasis added).
Before affording a plaintiff a cause of action under Bivens, a court must go through two steps:
First, we ask whether the case presents "a new Bivens context"—i.e., is it
"meaningful[ly]" different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are "special factors" indicating that the Judiciary is at least arguably less equipped than Congress to "weigh the costs and benefits of allowing a damages action to proceed."Egbert, 142 S. Ct. at 1803 (internal citation omitted) (quoting Abbasi, 137 S. Ct. at 1858-60). Applying that test, we hold that the Bivens remedy cannot be extended to the claims before us because this case presents a new context, and several factors indicate that we are less equipped than Congress to determine whether a damages action should proceed.
A
Recognizing a Bivens cause of action in this case would require extending Bivens to a new context. In assessing whether a context is "new," the Supreme Court has instructed us not to examine Bivens cases in the lower courts, but only "the three cases in which the [Supreme] Court has implied a damages action." Egbert, 142 S. Ct. at 1803; see Loumiet v. United States, 948 F.3d 376, 382 (D.C. Cir. 2020) ("[T]he new-context analysis may consider only Supreme Court decisions approving Bivens actions."). The Court has provided a non-exhaustive list of "differences that are meaningful enough to make a given context a new one," including "the rank of the officers involved; . . . the generality or specificity of the official action; . . . the statutory or other legal mandate under which the officer was operating; [and] the risk of disruptive intrusion by the Judiciary into the functioning of other branches." Abbasi, 137 S. Ct. at 1859-60.
This case differs from Bivens—the only Supreme Court case recognizing an implied damages remedy for Fourth Amendment violations—along all of those dimensions. In Bivens, the defendants were agents of the Federal Bureau of Narcotics who, without a warrant, "entered [Bivens's] apartment[,] . . . manacled [him] in front of his wife and children, and threatened to arrest the entire family" before "search[ing] the apartment from stem to stern." 403 U.S. at 389, 91 S.Ct. 1999. Russell, a high-level supervisor, was of a different rank than the agents in Bivens. Russell's alleged actions, which consisted of ordering or acquiescing in unconstitutional conduct, took place at a higher level of generality than the actions of the agents in Bivens, who personally seized Bivens and searched his apartment. The legal mandate under which Russell acted differed from that of the agents in Bivens in that Russell, an officer of the Federal Protective Service, was directing a multi-agency operation to protect federal property and was carrying out an executive order. And because Russell was carrying out an executive order, providing a Bivens remedy in this context would carry a greater "risk of disruptive intrusion by the Judiciary into the functioning of other branches" than was present in Bivens. Abbasi, 137 S. Ct. at 1860. Those differences are more than sufficient to make this a new Bivens context. See id. at 1864-65 (explaining that "the new-context inquiry is easily satisfied" and that "even a modest extension is still an extension").
In reaching a contrary conclusion, the district court recognized that Russell is of a higher rank than the agents in Bivens and that, unlike those agents, he is accused of having ordered or acquiesced in the unconstitutional conduct of his subordinates, rather than carrying it out himself. But the district court believed that those facts did not make this context new because Carlson established that a supervisory official could potentially be liable for a failure of oversight. See Carlson, 446 U.S. at 16 n.1, 100 S.Ct. 1468; Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978), aff'd, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Carlson, of course, was different from this case because it involved prison officials and a claim of cruel and unusual punishment under the Eighth Amendment. 446 U.S. at 17, 100 S.Ct. 1468. This case is like neither Bivens nor Carlson, and we are not convinced that a plaintiff can defeat a finding that a case presents a new context by showing that each of its facts, taken separately, resembles facts found in different Bivens precedents. But even if such a mix-and-match analysis were permissible, we would still hold that this case presents a new context. Russell and the supervisory medical officer in Carlson were acting under different mandates, and allowing the officer in Carlson to be held liable did not present the same "risk of disruptive intrusion" into the functioning of the Executive Branch because that officer was not implementing an executive order. See Abbasi, 137 S. Ct. at 1860. Those differences alone are sufficient to make this a new Bivens context.
B
"If there is even a single 'reason to pause before applying Bivens in a new context,' a court may not recognize a Bivens remedy." Egbert, 142 S. Ct. at 1803 (quoting Hernandez, 140 S. Ct. at 743). Here, at least two independent reasons counsel in favor of withholding a Bivens remedy.
First, the "risk of disruptive intrusion by the Judiciary into the functioning of other branches" counsels hesitation in this case. Abbasi, 137 S. Ct. at 1860. Russell was overseeing an operation that was carrying out an executive order. In other words, he was implementing a high-level executive policy in the context of an evolving situation. Allowing a Bivens action to proceed in this case could expose sensitive communications between Russell and other high-level executive officers regarding the implementation of that policy. See id.
The district court saw this issue differently. In its view, the case "focuses on Defendant Russell's personal involvement and direct causal connection to the alleged constitutional violations while he was in Portland," not on "purported high level policy decisions or communications with then-President Trump." But Russell's "personal involvement" in the alleged violations consisted of his exercise of broad control over a multi-agency operation carried out to protect federal property as directed by an executive order. His decisions in that role cannot be disentangled from how he was interpreting and implementing policy developed by his superiors at the higher levels of the Executive Branch.
Second, "[i]f there are alternative remedial structures in place, 'that alone,' like any special factor, is reason enough to 'limit the power of the Judiciary to infer a new Bivens cause of action.' " Egbert, 142 S. Ct. at 1804 (quoting Abbasi, 137 S. Ct. at 1858). Here, Congress has afforded plaintiffs like Pettibone an alternative remedy "that independently foreclose[s] a Bivens action." Id. at 1806. Aggrieved parties can report any alleged misconduct to the Inspector General of the Department of Homeland Security, who must either investigate or refer the matter to the Officer for Civil Rights and Civil Liberties. 5 U.S.C. app. 3 § 8I(f)(2)(B)-(C), (F)-(G); see also 6 U.S.C. § 345(a)(1), (4), (6) (requiring Officer for Civil Rights and Civil Liberties to investigate alleged misconduct). Pettibone argues that this remedy is insufficient because it serves only an "information-gathering" function. But the Department can take corrective action against employees in response to the Inspector General's reports, 5 U.S.C. app. 3 § 8I(f)(2)(H)(ii). The grievance procedure is thus comparable to the remedy deemed adequate in Egbert. There, the Court held that a regulation requiring an agency to investigate alleged misconduct offered an adequate alternative to Bivens, even though the complainant was "not entitled to participate and ha[d] no right to judicial review of an adverse determination"—and even though, as here, the remedial scheme did not provide monetary relief. Egbert, 142 S. Ct. at 1806. The grievance procedure available in this case offers a similar right to an investigation, and a similar possibility of corrective action. Just as the availability of such a grievance procedure precluded a Bivens action in Egbert, so too does it preclude a Bivens action in this case. See id. at 1806-07.
Because Pettibone has no cause of action under Bivens, we need not consider whether Russell would be entitled to qualified immunity.
REVERSED.