59 F.4th 449
9th Cir.2023Background
- In summer 2020 protests outside the federal courthouse in Portland, plaintiffs (including Pettibone) allege federal officers unlawfully arrested protesters and used excessive force (tear gas, impact munitions, pepper spray, beatings).
- Gabriel Russell, Director of the Federal Protective Service’s Northwest Region, oversaw a multi-agency deployment called Operation Diligent Valor and is alleged to have ordered or acquiesced in unconstitutional tactics and failed to change them.
- Plaintiffs sued federal officers and agencies asserting a Bivens claim for Fourth Amendment violations; Russell moved to dismiss for lack of a Bivens cause of action and, alternatively, on qualified immunity grounds.
- The district court denied the motion; Russell appealed interlocutorily. The Ninth Circuit held it had jurisdiction to review the availability of a Bivens claim on interlocutory appeal under Wilkie.
- Applying the Supreme Court’s two-step Bivens framework (Egbert/Abbasi), the court found this a new Bivens context (supervisory role, multi-agency operation, executive-order implementation) and identified special factors—risk of intrusion into executive branch deliberations and an alternative administrative remedy (DHS Inspector General/Officer for Civil Rights)—that counsel against extending Bivens.
- Conclusion: the Ninth Circuit reversed, holding no Bivens remedy available; it did not decide qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to decide whether a Bivens cause exists on interlocutory appeal from denial of qualified immunity | Wong/older Ninth Circuit precedent: Bivens availability is not necessarily pendent and should be deferred | Wilkie and subsequent precedent: the existence of a Bivens claim is an antecedent question directly implicated by qualified immunity denial | Court has jurisdiction under Wilkie to resolve whether a Bivens cause exists on interlocutory appeal |
| Whether Bivens extends to supervisory official accused of ordering/acquiescing in unlawful arrests and force | Pettibone: Bivens should apply to vindicate Fourth Amendment rights against federal supervisors responsible for unconstitutional tactics | Russell: Different rank/role, multi-agency operation, and executive-order context distinguish this from Bivens | This is a new Bivens context (different officer rank, generality of action, legal mandate, risk of judicial intrusion) — Bivens not extended |
| Whether special factors foreclose a new Bivens remedy here | Pettibone: judiciary can adjudicate; administrative remedies are inadequate | Russell: risk of disrupting executive-branch policymaking and an adequate alternative administrative grievance/investigation process exist | Special factors (risk of intrusive review of executive deliberations; alternative DHS IG/CRCL procedures) preclude Bivens remedy |
| Qualified immunity for Russell | Pettibone: argues Russell is liable; factual dispute precludes immunity dismissal | Russell: qualified immunity would shield him even if Bivens existed | Court did not decide qualified immunity because it held no Bivens cause of action is available |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognized an implied Fourth Amendment damages remedy)
- Davis v. Passman, 442 U.S. 228 (1979) (extended implied remedy to Fifth Amendment employment discrimination)
- Carlson v. Green, 446 U.S. 14 (1980) (implied Eighth Amendment damages remedy for federal prison officials)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity denial may be immediately appealable)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (interlocutory appeal may address whether underlying Bivens cause exists)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (framework limiting extension of Bivens; special factors and separation-of-powers concerns)
- Hernandez v. Mesa, 140 S. Ct. 735 (2020) (noting caution in creating implied remedies; look for reasons to defer to Congress)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (two-step test: new-context inquiry and special-factors analysis)