Mark Pettibone v. Gabriel Russell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK PETTIBONE; FABIYM No. 22-35183
ACUAY, AKA Mac Smiff; ANDRE
MILLER; NICHOL DENISON; D.C. No. 3:20-cv-
MAUREEN HEALY; 01464-YY
CHRISTOPHER DAVID; DUSTON
OBERMEYER; JAMES MCNULTY,
OPINION
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
2 PETTIBONE V. RUSSELL
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.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted December 9, 2022
Seattle, Washington
Filed February 2, 2023
Before: M. Margaret McKeown, Eric D. Miller, and
Salvador Mendoza, Jr., Circuit Judges.
Opinion by Judge Miller
PETTIBONE V. RUSSELL 3
SUMMARY *
Civil Rights
Reversing the district court’s order denying defendant’s
motion to dismiss, the panel held that Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), did not provide a cause of action for protesters
who alleged that Gabriel Russell, then the Director of the
Federal Protective Service’s Northwest Region, ordered or
acquiesced in subordinates’ unlawful arrests and uses of
excessive force during protests outside the federal
courthouse in Portland, Oregon in the summer of 2020..
The panel first held that it had jurisdiction over this
interlocutory appeal. The Supreme Court’s opinion in
Wilkie v. Robbins, 551 U.S. 537 (2007), establishes that, in
an interlocutory appeal from a denial of qualified immunity,
courts necessarily have jurisdiction to decide whether an
underlying Bivens cause of action exists.
Applying the two-step analysis set forth in Egbert v.
Boule, 142 S. Ct. 1793 (2022), the panel held that a Bivens
remedy could not be extended to this case because it
presented a new context, and at least two independent factors
indicated that the court was less equipped than Congress to
determine whether the damages action should proceed.
This case differed from Bivens—the only Supreme Court
case recognizing an implied damages remedy for Fourth
Amendment violation because (1) defendant Gabriel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PETTIBONE V. RUSSELL
Russell, a high-level supervisor, was of a different rank than
the agents in Bivens; (2) 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; and (3) the legal mandate
under which Russell acted differed from that of the agents in
Bivens in that Russell 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. This case also differed from Carlson v. Green, 446
U.S. 14 (1980), which involved prison officials and a claim
of cruel and unusual punishment under the Eighth
Amendment.
Allowing a Bivens action to proceed in this case could
expose sensitive communications between Russell and other
high-level executive officers. Moreover, Congress had
afforded plaintiffs an alternative remedy that independently
foreclosed a Bivens action. Because plaintiffs had no cause
of action under Bivens, the panel did not consider whether
Russell would be entitled to qualified immunity.
PETTIBONE V. RUSSELL 5
COUNSEL
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.
6 PETTIBONE V. RUSSELL
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(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
PETTIBONE V. RUSSELL 7
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 . . .
8 PETTIBONE V. RUSSELL
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
PETTIBONE V. RUSSELL 9
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. 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 (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 (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
10 PETTIBONE V. RUSSELL
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 (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. 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
PETTIBONE V. RUSSELL 11
and properly before us on interlocutory appeal.” Wilkie, 551
U.S. at 549 n.4 (quoting Hartman v. Moore, 547 U.S. 250,
257 n.5 (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
12 PETTIBONE V. RUSSELL
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, 142 S. Ct. 2850 (2022);
Elhady v. Unidentified CBP Agents, 18 F.4th 880, 884 (6th
Cir. 2021), cert. denied sub nom. Elhady v. Bradley, 143 S.
Ct. 301 (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
PETTIBONE V. RUSSELL 13
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. 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 (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 (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, 137 S. Ct. 1843, 1856
(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
14 PETTIBONE V. RUSSELL
U.S. 662, 675 (2009)), one that “places great stress on the
separation of powers,” Egbert v. Boule, 142 S. Ct. 1793,
1806 n.3 (2022) (quoting Nestle USA, Inc. v. Doe, 141 S. Ct.
1931, 1938 (2021) (plurality opinion)); see Hernandez v.
Mesa, 140 S. Ct. 735, 741 (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.
PETTIBONE V. RUSSELL 15
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. 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
16 PETTIBONE V. RUSSELL
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; Green v. Carlson, 581 F.2d
669, 671 (7th Cir. 1978), aff’d, 446 U.S. 14 (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. 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
PETTIBONE V. RUSSELL 17
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
18 PETTIBONE V. RUSSELL
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 Abassi, 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
PETTIBONE V. RUSSELL 19
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.