53 F.4th 501
9th Cir.2022Background
- On June 10, 2018, BLM officer Wesley Miller assisted NPS in locating a UTV on BLM-managed public lands near Joshua Tree; when the UTV passed within arm’s reach, Miller fired multiple shots, injuring Denise Mejia (right hand shot; head grazed).
- Mejia sued the United States under the FTCA (claims remain pending) and sued Miller under Bivens for unreasonable seizure and excessive force; Mejia voluntarily dismissed claims against the park ranger.
- The district court granted summary judgment to Miller on the unreasonable-seizure claim but denied summary judgment on the excessive-force claim (qualified immunity denied as to excessive force); Miller timely appealed.
- The Ninth Circuit considered whether a Bivens cause of action exists for Mejia’s excessive-force claim because the existence of the cause of action is an antecedent legal question on interlocutory appeal; Egbert v. Boule was issued after briefing and prompted supplemental briefing.
- Applying the Supreme Court’s post-Abbasi/Egbert framework, the Ninth Circuit held Mejia’s claim presents a new context (BLM officer on public lands versus Bivens’ home-search context) and that special factors (including alternative remedies and potential systemwide consequences for federal land law enforcement) counsel hesitation.
- Holding: the court concluded there is no Bivens remedy for Mejia’s excessive-force claim; it vacated the district court’s denial of summary judgment and remanded with instructions to dismiss the Bivens claim with prejudice (qualified immunity not reached); FTCA claims remain for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens cause of action exists for an excessive-force claim against a BLM officer on public lands | Mejia: This is not a new context; Bivens applies to excessive-force claims here | Miller: This is a new context (different agency/mandate; public lands), and special factors/alternative remedies exist | No Bivens cause of action; claim dismissed with prejudice |
| Whether the case presents a "new context" under Abbasi/Egbert | Mejia: Facts are sufficiently similar to prior Bivens contexts | Miller: Different officer rank/agency mandate and location (public lands vs home) create a new context | Court: It is a new context |
| Whether special factors counsel hesitation (i.e., Congress better suited) | Mejia: No special factors that preclude recognizing Bivens here | Miller: Alternative remedies (FTCA, administrative avenues) and systemwide consequences weigh against judicially creating a remedy | Court: Special factors weigh against extension; Congress is better suited |
| Whether the Ninth Circuit may decide the antecedent Bivens question on interlocutory appeal | Mejia: (implicit) district court addressed immunity; Bivens existence was not litigated below | Miller: Interlocutory appeal is proper because Bivens-question is antecedent to qualified immunity | Court: Jurisdiction proper; court resolved Bivens question and did not reach qualified immunity |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of implied damages remedy for a Fourth Amendment search-and-seizure violation)
- Davis v. Passman, 442 U.S. 228 (recognition of Bivens remedy for a Fifth Amendment due-process employment discrimination claim)
- Carlson v. Green, 446 U.S. 14 (recognition of Bivens remedy for Eighth Amendment failure-to-protect medical care claim)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (articulated the two-step framework for recognizing new Bivens causes and emphasized separation-of-powers concerns)
- Hernández v. Mesa, 137 S. Ct. 2003 (applied Abbasi framework; broadened understanding of "new context")
- Egbert v. Boule, 142 S. Ct. 1793 (clarified that any rational reason to think Congress is better suited forecloses implying a Bivens remedy)
- Wilkie v. Robbins, 551 U.S. 537 (declined to extend Bivens in a due-process/landowner retaliation context)