1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALEXANDER ROMERO, an Case No.: 24-CV-1320 JLS (JLB) individual, 12

Plaintiff, 13 ORDER GRANTING DEFENDANT’S v. MOTION TO DISMISS AND STRIKE 14

PLAINTIFF’S COMPLAINT

UNITED STATES OF AMERICA, et al., 15

(ECF No. 5) 16 Defendants. 17 18 19 Presently before the Court is Defendant United States of America’s Motion to 20 Dismiss and Strike Plaintiff’s Complaint (“Mot.,” ECF No. 5). Plaintiff Michael Romero 21 filed an Opposition to the Motion (“Opp’n,” ECF No. 6). Defendant filed a Reply in 22 support of its Motion (“Reply,” ECF No. 7). The Court vacated oral argument on the 23 Motion and took the matter under submission without oral argument. ECF No. 8. Having 24 carefully reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1), the Parties’ arguments, 25 and the law, the Court GRANTS Defendant’s Motion to Dismiss as to Plaintiff’s fourth, 26 fifth, and sixth causes of action. 27 / / / 28 / / / 1 FACTUAL BACKGROUND 2 Michael Romero is a United States citizen and resident of Chula Vista, California. 3 Compl. ¶ 14. On August 12, 2023, Romero went through the San Ysidro Port of Entry 4 (“SYPOE”) on his way back home after visiting Tijuana, Mexico. Id. ¶ 15. At the SYPOE, 5 Romero and his son were referred to secondary inspection, where Romero was asked to 6 exit his vehicle and then subsequently “handcuffed in front of his son . . . and told he was 7 under arrest for violating the terms of his federal supervised release.” Id. ¶ 17. Upon his 8 arrest, Romero explained that he was not on federal supervised release and told the officers 9 that there must have been a mistake. Id. ¶ 19. Nevertheless, Customs and Border 10 Protection (“CBP”) agents kept him handcuffed to a bench for several hours and did not 11 allow him any contact with his 15-year-old son. Id. ¶ 17. The next day, on August 13, 12 2023, Romero’s son was picked up by his grandmother. Id. ¶ 18. During the length of his 13 detention with CPB, Romero provided CBP with his “social security number, all of his 14 IDs, his U.S. Passport Card, and every other form of identification that he had on him[.]” 15 Id. ¶ 19. He was also fingerprinted by the agents. Id. The CBP officers failed to verify 16 Romero’s personal identification information, including his “date of birth, social security 17 number, appearance, fingerprints, or any other biographical data,” against the pending 18 federal arrest warrant to determine if he was the subject of the arrest warrant. Id. 19 After five hours, U.S. Marshals (“USMS”) arrived at the SYPOE to transfer Romero 20 to jail. Id. ¶ 20. Again, Romero informed the USMS officers that he was not on federal 21 supervised release and thus could not be the subject of a federal arrest warrant for violating 22 the terms of his federal supervised release. Id. Again, the USMS officers did not verify 23 “his date of birth, social security number, appearance, fingerprints, or any other 24 biographical data.” Id. ¶ 22. The USMS officers then transported Romero to Western 25 Region Detention Facility (“GEO”) in San Diego, California, where he was booked into 26 custody. Id. ¶ 23. During both the booking process at GEO and the transport process from 27 GEO to the federal courthouse, USMS officers did not verify Romero’s identification 28 against the federal arrest warrant. Id. ¶ 23. 1 On August 14, 2023, after being in custody for approximately 36 hours, Romero had 2 a court appearance in front of a magistrate judge. Id. ¶ 24. At the hearing, the court ordered 3 Romero detained and gave him a new court date of August 29, 2023, almost 15 days later. 4 Id. ¶ 28. Following the court hearing, again the USMS officers did not verify Romero’s 5 identification. Id. On August 15, 2023, Plaintiff’s appointed counsel learned of another 6 individual with the same name as Plaintiff who was on supervised release after being 7 convicted of transporting illegal aliens. Id. ¶ 31. That person had a different date of birth, 8 fingerprints, and appearance. Id. After almost four days of detention, on August 16, 2023, 9 the court granted an emergency request by Romero’s court-appointed attorney for an 10 identification hearing. Id. ¶ 33. At the hearing, the assistant United States attorney 11 conceded that Romero was arrested in error, and subsequently, Romero was released from 12 the courtroom to his mother. Id. At the time he was released, Romero had spent almost 13 90 hours detained. Id. 14 On July 26, 2024, Plaintiff filed the Complaint pursuant to the Federal Tort Claims 15 Act (“FTCA”) and the Fourth and Fifth Amendments to the United States Constitution. 16 See Compl. The Complaint asserts six causes of action naming several defendants, 17 including the United States, unknown CBP officers, and unknown USMS officers. On 18 September 30, 2024, Defendant moved to dismiss Plaintiff’s fifth cause of action for 19 violation of the Bane Act (California Civil Code § 52.1) brought under the FTCA and 20 Plaintiff’s fourth and six causes of action for violations of the United States Constitution. 21 See Mot. Defendant also moved to strike Plaintiff’s request for attorney’s fees under the 22 Bane Act. See id. Plaintiff opposes the Motion to Dismiss with respect to the fourth and 23 fifth causes of action but does not oppose the Motion to Dismiss with respect to the sixth 24 cause of action or the Motion to Strike the request for attorney’s fees. See Opp’n. 25 LEGAL STANDARD 26 I. Federal Rule of Civil Procedure 12(b)(1) 27 Federal courts are courts of limited jurisdiction and thus have an obligation to 28 dismiss claims for which they lack subject matter jurisdiction. Demarest v. United States, 1 718 F.2d 964, 965–66 (9th Cir. 1983). The burden of establishing subject matter 2 jurisdiction is on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 3 Am., 511 U.S. 375, 377 (1994). When a party files a 12(b)(1) motion, “there is a 4 presumption of a lack of jurisdiction until the plaintiff affirmatively proves otherwise.” 5 Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 (D. Ariz. 1996). Under 6 Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the defense that the 7 complaint lacks subject matter jurisdiction via a facial or factual attack. See White v. Lee, 8 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, such as the one here, “the challenger 9 asserts that the allegations contained in a complaint are insufficient on their face to invoke 10 federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 11 A court resolves a facial attack as it would a Rule 12(b)(6) motion: “Accepting the 12 plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s favor, 13 the court determines whether the allegations are sufficient . . . to invoke the court’s 14 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 15 II. Federal Rule of Civil Procedure 12(b)(6) 16 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 17 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 18 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 19 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 20 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 22 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 23 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 25 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 26 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 27 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 28 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 1 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 2 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 4 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 5 when the facts pled “allow the court to draw the reasonable inference that the defendant is 6 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. 7 at 556). That is not to say that the claim must be probable, but there must be “more than a 8 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 9 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 10 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 11 contained in the complaint. Id. This review requires context-specific analysis involving 12 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). 13 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 14 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 15 pleader is entitled to relief.’” Id. 16 DISCUSSION 17 I. Bane Act 18 Defendant moves to dismiss the fifth cause of action in Plaintiff’s Complaint arguing 19 the Court lacks subject matter jurisdiction to hear the claim brought under California’s 20 Bane Act, insofar as it is premised on alleged federal or state constitutional violations. Mot. 21 at 5. Plaintiff contends that his Bane Act claim under the FTCA is based on a violation of 22 Article I, Section 1 of the California Constitution, specifically Plaintiff’s “right to be free 23 from actions damaging his family integrity,” and therefore satisfies the requirement of a 24 constitutional rights violation for a Bane Act claim to proceed. Opp’n at 6. 25 When a party sues the federal government, the law on which such action is based 26 must contain an explicit waiver of sovereign immunity for subject matter jurisdiction to 27 exist, as “[i]t is axiomatic that the United States may not be sued without its consent and 28 that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 1 463 U.S. 206, 212 (1983). A waiver of sovereign immunity must be “‘unequivocally 2 expressed’ in the text of a relevant statute[,]” and “‘[a]ny ambiguities in the statutory 3 language are to be construed in favor of immunity.’” Daniel v. Nat’l Park Serv., 891 F.3d 4 762, 768–69 (9th Cir. 2018) (first quoting United States v. Bormes, 568 U.S. 6, 9–10 5 (2012); and then quoting Fed. Aviation Admin. v. Cooper, 566 U.S. 284, 290 (2012)). 6 The FTCA is a limited waiver of sovereign immunity that expressly allows plaintiffs 7 to seek damages against the United States for certain torts committed by federal employees. 8 28 U.S.C. § 2674. Specifically, the FTCA “provides a waiver of sovereign immunity for 9 tortious acts of an agency’s employees only if such torts committed in the employ of a 10 private person would have given rise to liability under state law.” Pereira v. U.S. Postal 11 Serv., 964 F.2d 873, 876 (9th Cir. 1992) (citing 28 U.S.C. § 1346(b)). Put differently, 12 “[t]he FTCA incorporates the law of the state in which the tort is alleged to have occurred, 13 in this case California[.]” Xue Lu v. Powell, 621 F.3d 944, 945–46 (9th Cir. 2010). 14 This means that a claim under the California Bane Act can, in theory, be brought 15 under the FTCA. The Bane Act provides a civil cause of action “[i]f a person or person, 16 whether or not acting under the color of the law, interferes by threat, intimidation or 17 coercion, or attempts to interfere by threat, intimidation or coercion, with the exercise of 18 enjoyment by any individual or individuals of rights secured by the constitution or laws of 19 the United States, or of the rights secured by the Constitution or laws of” California. Cal. 20 Civ. Code § 52.1(b). Accordingly, a plaintiff who alleges a claim pursuant to the Bane Act 21 must show (1) a violation of a constitutional or statutory right (2) by intimidation, threats, 22 or coercion. Allen v. City of Sacramento, 183 Cal. Rptr. 3d 654, 676 (2015). “A Bane Act 23 claim is allowed to proceed as long as the claim relies on a proper constitutional claim.” 24 Est. of Reyes Munoz v. United States, No. 3:23-cv-1422-JES-SBC, 2024 WL 584430, at *2 25 (S.D. Cal. Feb. 13, 2024) (citing Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 26 3818376, at *3 (S.D. Cal. Nov. 13, 2009)). 27 Defendant contends that the Court lacks subject matter jurisdiction over Plaintiff’s 28 Bane Act claim to the extent the claim is “based on, or arise[s] out of, violations of the 1 United States Constitution” because the United States has not waived sovereign immunity. 2 Mot. at 3. Defendant is correct—and Plaintiff appears to concede—that the Court lacks 3 subject matter jurisdiction under the FTCA with respect to claims arising from interference 4 with Plaintiff’s federal constitutional rights. Opp’n at 6; see F.D.I.C. v. Meyer, 510 U.S. 5 471, 478 (1994) (holding that “the United States simply has not rendered itself liable under 6 § 1346(b) for constitutional tort claims”). This principle “extends to the Bane Act insofar 7 as it serves as a conduit for claims based upon constitutional violations.” Voeltz v. United 8 States, No. 5:21-cv-00151-JWH-KKx, 2022 WL 17219511, at *3 (C.D. Cal. Apr. 14, 9 2022) (citing Lewis v. Mossbrooks, 788 F. App’x 455, 460 (9th Cir. 2019) (unpublished 10 opinion)). 11 The question then becomes “whether a state constitutional violation may be the basis 12 of a Bane Act claim against the United States brought under the FTCA[.]” See Est. of 13 Reyes Munoz, 2024 WL 584430, at *2. This question is largely dependent on if the Bane 14 Act claim is based solely on a state constitutional violation or if the claim is based on a 15 state constitutional violation that overlaps with a federal constitutional right. 16 Defendant argues that a Bane Act claim premised on a state constitutional violation, 17 particularly one that overlaps with a federal constitutional right, cannot proceed. Mot. at 4; 18 Reply at 7. Plaintiff counters that the FTCA permits a Bane Act claim premised on a state 19 constitutional violation and that “the right alleged [in the present case] has no federal 20 equivalent” meaning “there is no overlap with any federal constitutional right.” Opp’n 21 at 6. 22 The Court agrees with Defendant’s argument, concluding that a Bane Act claim 23 cannot be brought against the United States based on a state constitutional violation that 24 overlaps with the federal constitution. The Court rejects Plaintiff’s assertion that no such 25 overlap exists in this case.1 26

27 1 Plaintiff further argues that some cases in this circuit have permitted Bane Act claims based solely on 28 state constitutional violations. Plaintiff cites several cases to support this argument, including Peralta v. 1 When a plaintiff sues the United States for a violation of a state constitutional 2 provision that overlaps with a federal constitutional provision, there is a risk of reaching 3 the very outcome the FTCA seeks to prevent—holding the United States liable for a 4 constitutional tort—thus effectively circumventing the statute’s limitations. See Blanchard 5 v. County of Los Angeles, No. 9:19-cv-02438 JVS (DFM), 2022 WL 17081308, at *3 (C.D. 6 Cal. Aug. 25, 2022). The Court is thus unwilling to expand the very essence of the FTCA, 7 which provides a limited waiver of sovereign immunity, to include state constitutional 8 claims that overlap with federal constitutional claims, as doing so would undermine the 9 purpose of the FTCA. 10 This strategy to sidestep the FTCA’s limitations is apparent in the present case. 11 Here, Plaintiff’s Bane Act claim is based on Plaintiff’s right to be free from actions 12 damaging his family integrity in violation of Article I, Section 1 of the California 13 Constitution, which is substantively equivalent to the Due Process Cause of the Fourteenth 14 Amendment. See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977) (finding 15 that the Fourteenth Amendment “protects the sanctity of the family”); see also Wallis v. 16 Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (explaining that parents and children have 17 constitutional rights protected by the Fourteenth Amendment to “not be separated by the 18 state without due process of law except in an emergency”). While Plaintiff does not 19 explicitly base his claim on a federal constitutional right to family integrity, this does not 20 negate the existence of an overlap between federal and state constitutional claims. 21 “Allowing [Plaintiff] to bring a Bane Act claim based on a ‘substantively equivalent’ 22

23 No. 3:20-cv-01752-WQH-LL, 2021 WL 615045, at *3–4 (S.D. Cal. Feb. 16, 2021). In reaching their 24 conclusion, these cases primarily rely on Xue Lu, 621 F.3d at 945–46. However, Xue Lu did not address the issue of whether a Bane Act claim alleging a violation of the California Constitution may serve as the 25 basis of an FTCA suit against the federal government as the claims in Xue Lu were predicated on violations of a federal statute, 28 U.S.C. § 242. Id. While Xue Lu simply “concluded that the FTCA allows Bane 26 Act claims predicated on a violation of a federal statute, it did not suggest that the FTCA waiver extends to Bane Act claims deriving from constitutional violations.” Mossbrooks, 788 F. App’x at 460. Thus, the 27 Court finds the cases cited by Plaintiff unpersuasive, as they do not address the dispositive issue at hand— 28 whether a Bane Act claim based on a state constitutional right that overlaps with a federal constitutional 1 provision of the California constitution would in effect permit [him] to sue the federal 2 government for a [Fourteenth Amendment] violation, which is precisely what is 3 prohibited.” See Blanchard, 2022 WL 17081308, at *3; see Delta Savings Bank v. United 4 States, 265 F.3d 1017, 1026 (9th Cir. 2001) (prohibiting skirting the FTCA’s requirements 5 by asserting liability based on a negligence per se cause of action that relies on federal law 6 as the source of duty, which creates an impermissible “end around” the FTCA’s 7 limitations). 8 Because Plaintiff’s claim is based on a state constitutional right that overlaps with a 9 federal constitutional right, Plaintiff’s FTCA claim is not cognizable. Accordingly, 10 Plaintiff has not established subject matter jurisdiction, so the Court GRANTS 11 Defendant’s Motion to Dismiss Plaintiff’s fifth cause of action WITHOUT PREJUDICE 12 and WITHOUT LEAVE TO AMEND. Klamath-Lake Pharm. Ass’n.v. Klamath Med. 13 Serv. Bureau, 701 F.2d 1276, 1292–93 (9th Cir. 1983) (noting that while “leave to amend 14 ‘shall be freely given when justice so requires’ . . . futile amendments should not be 15 permitted”). 16 II. Bivens Claims 17 Defendant also moves to dismiss the fourth and sixth causes of action brought under 18 the United States Constitution for failure to state a viable Bivens claim, pursuant to Federal 19 Rule of Civil Procedure 12(b)(6).2 See Bivens v. Six Unknown Named Agents of the Fed. 20 Bureau of Narcotics, 403 U.S. 388 (1971). In Plaintiff’s Opposition, Plaintiff agrees to 21 dismiss the sixth cause of action, the Fifth Amendment Bivens claim, and joins the 22 Defendant’s request for its dismissal. Opp’n at 3. As Plaintiff has agreed to dismiss the 23 sixth cause of action, the Court will only discuss Plaintiff’s fourth cause of action. 24 In the present case, Plaintiff asserts claims for violations of his rights under the U.S. 25 Constitution. As an initial matter, the United States has not waived sovereign immunity 26

27 2 To the extent the Parties mistakenly refer to the Bivens claims as Claims V and VI in their briefing on 28 the Motion, the Court preserves the numerical designation given to the Claims in Plaintiff’s Complaint, 1 for constitutional tort claims. See Meyer, 510 U.S. at 477–78 (“[T]he United States simply 2 has not rendered itself liable . . . for constitutional tort claims.”); see also Jachetta v. United 3 States, 653 F.3d 898, 904 (9th Cir 2011) (“Although these claims may be characterized as 4 constitutional torts, they are not actionable under the FTCA because any liability would 5 arise under federal rather than state law. Accordingly, the FTCA does not provide a waiver 6 of sovereign immunity for these claims.”). 7 However, a claim that individual federal officers violated an individual’s 8 constitutional rights may be brought under Bivens, as a Bivens action is a judicially created 9 remedy designed to provide individuals with “an implied private action for damages 10 against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. 11 Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). At a minimum, a plaintiff seeking to 12 assert a Bivens claim must establish that he was deprived of the rights secured by the 13 Constitution or laws of the United States and that the defendants who allegedly deprived 14 him of those rights acted under the color of federal law. Bivens, 403 U.S. at 397. 15 If a plaintiff alleges a violation of the United States Constitution, the Court engages 16 in a two-step inquiry to determine whether to permit a Bivens claim: first, it asks “whether 17 the case presents ‘a new Bivens context,’” i.e., whether it differs “meaningfully” from the 18 three cases in which damages actions have previously been recognized; second, if the claim 19 arises in a new context, the Court asks whether any “special factors counsel[] hesitation” 20 suggesting that Congress is better equipped than the Judiciary to “weigh the costs and 21 benefits of allowing a damages action to proceed.” Egbert v. Boule, 596 U.S. 482, 492 22 (2022) (quoting Ziglar v. Abbasi, 582 U.S. 120, 136 (2017)); Abbasi, 582 U.S. at 136. 23 Since Bivens was decided, the Supreme Court has expressly recognized an implied 24 cause of action in only three types of cases: (1) Bivens itself, which recognized a cause of 25 action for a violation of the Fourth Amendment’s right against unreasonable searches and 26 seizures; (2) Davis v. Passman, 442 U.S. 228 (1979), which recognized a claim for gender 27 discrimination in the employment context under the Fifth Amendment’s Due Process 28 Clause; and (3) Carlson v. Green, 446 U.S. 14 (1980), which recognized a claim against 1 prison officials for inadequate medical care in the prison context under the Eighth 2 Amendment. 3 The Supreme Court’s delineation of these precise contexts, and subsequent 4 decisions, have reinforced that only these specific contexts are appropriate for a Bivens 5 action. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983); United States v. Stanley, 483 6 U.S. 669, 671–72 (1987); Wilkie v. Robbins, 551 U.S. 537, 547–48 (2007). Courts have 7 been cautioned against attempting to “expand[] the Bivens remedy” beyond these 8 established contexts. Abbasi, 582 U.S. at 135 (citing Iqbal, 556 U.S. at 675); see also 9 Egbert, 596 U.S. at 483. Consequently, Plaintiff argues that the wrongful detention of 10 Romero falls within one of the recognized Bivens contexts, specifically the context set out 11 by Bivens itself. In contrast, Defendant argues that its actions fall outside the three 12 recognized Bivens contexts. 13 A. New Context 14 First, the Court must determine if the case differs meaningfully from prior Bivens 15 cases decided by the Supreme Court to assess whether a new Bivens context exists. Abbasi, 16 582 U.S. at 139. The Court in Abbasi did not provide an exhaustive list of differences that 17 are meaningful enough to make a given context new, but noted the following examples: 18 the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of 19 judicial guidance as to how an officer should respond to the 20 problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of 21 disruptive intrusion by the Judiciary into the functioning of other 22 branches; or the presence of potential special factors that previous Bivens cases did not consider. 23 24 Id. at 140. The Court further recognized that some differences “will be so trivial that they 25 will not suffice to create a new Bivens context.” Abbasi, 582 U.S. at 149. Yet importantly, 26 a finding of a “modest extension” in cases with “significant parallels” to the three 27 previously recognized Bivens claims would still amount to a meaningful distinction that 28 would represent a “new” context. Abbasi 582 U.S. at 147. 1 Turning to Plaintiff’s Fourth Amendment claim against unknown CBP and USMS 2 officers, the Court finds the claim arises in a new context because it is substantially and 3 meaningfully different from the three types of cases in which the Supreme Court has 4 recognized a Bivens remedy. 5 With respect to Plaintiff’s Fourth Amendment claim, the example case against which 6 the Court must evaluate Plaintiff’s claim consists of a Fourth Amendment “claim against 7 FBI agents for handcuffing a man in his own home without a warrant” while carrying out 8 routine police duties. Abbasi, 582 U.S. at 140; see Bivens 403 U.S. at 388. Here, Plaintiff’s 9 claim involves “a wrongful arrest and detention of a U.S. citizen crossing the U.S.-Mexico 10 border” conducted by USMS and CBP, implicating meaningful differences as to the 11 individual’s expectation of privacy. See Mejia v. Miller, 61 F.4th 663, 668 (9th Cir. 2023) 12 (concluding a meaningful difference existed where the events did not occur in or near the 13 plaintiff’s home, and instead on public lands where the plaintiff had no reasonable 14 expectation of privacy). Since Plaintiff’s wrongful arrest and detention took place in a 15 context where the individual’s reasonable expectation of privacy is reduced, particularly at 16 the U.S.-Mexico border, a meaningful and nontrivial distinction is created between the 17 present claim and the recognized Bivens contexts. Thus, even though Plaintiff asserts a 18 Fourth Amendment cause of action that “parallels” the one recognized in Bivens, merely 19 invoking the same constitutional provision does not, by itself, establish the “significant 20 parallels” required for the Court to determine that the claim arises in the same context 21 previously recognized in Bivens. Hernandez v. Mesa, 589 U.S. 93, 103 (2020) (“A claim 22 may arise in a new context even if it is based on the same constitutional provision as a 23 claim in a case in which a damages remedy was previously recognized.”). 24 Moreover, Plaintiff’s Fourth Amendment claim involves two new categories of 25 defendants—CBP and USMS officers—who operate under a different legal mandate than 26 the agents in Bivens. Courts have routinely distinguished Bivens based on the particular 27 class of federal agents involved. For instance, before reaching the Supreme Court, the 28 Ninth Circuit in Egbert held that where a border patrol agent allegedly used excessive force 1 against the plaintiff, the Fourth Amendment claim was a “‘modest extension’ in a new 2 context” because the officer was a border patrol agent rather than an FBI agent. Boule v. 3 Egbert, 998 F.3d 370, 387 (9th Cir. 2021), rev’d on other grounds by Egbert, 596 U.S. 4 at 492. Similarly, because CBP and USMS officers fall outside of the scope of Bivens’s 5 original context, Plaintiff’s claim represents an expansion of Bivens that courts have been 6 reluctant to recognize. See, e.g., Champaigne v. Davis, No. 23cv3319 (EP)(JRA), 2024 7 WL 5039754, at *3 (D.N.J Dec. 9, 2024) (finding “that the U.S. Marshals Service differs 8 from federal narcotics agents enough to create a new Bivens context[]”); Robinson v. 9 Heinze, 655 F. Supp. 3d 1276, 1282 (N.D. Ga. 2023) (distinguishing in part because the 10 defendants were U.S. Marshals in fugitive task force); Edwards v. Gizzi, No. 20-CV-7371 11 (KMK), 2022 WL 309393, at *7 (S.D.N.Y Feb. 2, 2022) (distinguishing officers including 12 U.S. Marshals from federal narcotics agents). 13 Because this case differs from Bivens in two notable ways—(1) the interaction 14 between Plaintiff and Defendants occurred near the U.S.-Mexico border, rather than a 15 private residence, and (2) the Federal agents involved are employed by U.S. Customs and 16 Border Protections and the U.S. Marshals, rather than the FBI—Plaintiff’s claims present 17 a new context. 18 Accordingly, Plaintiff’s Fourth Amendment claim arises in a new Bivens context. 19 Therefore, the Court proceeds to the second step of the inquiry, which asks whether any 20 special factors counsel hesitation. 21 B. Factors That Counsel Hesitation 22 Second, once the Court determines that a claim arises in a new context, it must then 23 consider whether any “special factors counse[l] hesitation” in extending a Bivens remedy. 24 Hernandez, 589 U.S. at 102; see also Abbasi, 582 U.S. at 136. The Ninth Circuit’s 25 approach first asks “whether there is ‘any alternative, existing process for protecting’ the 26 plaintiff[’s] interests.” Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir. 2011) 27 (quoting W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009)). 28 “If there is such an alternative remedy, [the] inquiry stops.” Mirmehdi, 689 F.3d at 982; 1 see Egbert, 596 U.S. at 493 (“[O]ur cases hold that a court may not fashion a Bivens remedy 2 if Congress already has provided, or has authorized the executive to provide, ‘an alternative 3 remedial structure.’”) (citations omitted). Importantly, the Court does not analyze if the 4 existing remedies provide complete relief or not. Id. 5 Defendant argues that alternative remedies exist that preclude a Bivens remedy. 6 These include “report[ing] any alleged misconduct by the U.S. Marshals to the Office of 7 the Inspector General (OIG), supervisor, or the Department of Justice component’s internal 8 affairs office for referral to the OIG” and “[a]ggrieved parties . . . can report any alleged 9 misconduct by CBP officers to the Inspector General of the Department of Homeland 10 Security.” Mot. at 9–10; 28 C.F.R. § 0.29c; 5 U.S.C. app. 3 § 81(f)(2)(B)–(C),(F)–(G); see 11 also 6 U.S.C. § 345(a)(1), (4), (6). Plaintiff has not addressed Defendant’s argument on 12 this issue. 13 Here, the existence of administrative remedies that Defendant has provided to 14 protect plaintiffs like Romero, including grievance procedures, provide Plaintiff with 15 remedies that would foreclose a Bivens claim. Pettibone v. Russell, 59 F.4th 499, 457 (9th 16 Cir. 2023) (holding the grievance procedure available in the case offers a similar right to 17 an investigation and a similar possibility of corrective action foreclosing a Bivens claim); 18 see Egbert, 596 U.S. at 494. 19 Furthermore, while the existence of alternative remedies forecloses relief under 20 Bivens, the Court concludes that, even if this were not the case, there are nevertheless other 21 “factors counseling hesitation.” Mirmehdi, 689 F.3d at 982 (quoting W. Radio Servs. Co., 22 578 F.3d at 1120). 23 “Even where Congress has given plaintiffs no damages remedy for a constitutional 24 violation,” resulting in a lack of legislative action, “the Court has declined to create a right 25 of action under Bivens when doing so ‘would be plainly inconsistent with Congress’ 26 authority in th[e] field.’” W. Radio Servs. Co., 578 F.3d at 1120 (quoting Chappell v. 27 Wallace, 462 U.S. 296, 304 (1983)). In part, this rationale is derived from the fact that 28 “Bivens suits implicate grave separation of powers concerns,” thus courts have found that 1 “a decision to create a private right of action is one better left to the legislative judgment 2 in the great majority of cases.” De La Paz v. Coy, 786 F.3d 367, 373 (5th Cir. 2015) 3 (quoting Sosa v. Alvarez–Machain, 542 U.S. 692, 727, 124 (2004)). In such cases, “a court 4 must ask . . . ‘broadly’ if there is any reason to think that ‘judicial intrusion’ into a given 5 field might be ‘harmful’ or ‘inappropriate,’” further inquiring “whether a court is 6 competent to authorize a damage action not just against” the present Defendant, but CBP 7 and USMS generally. Egbert, 596 U.S. at 484. 8 Courts have consistently held that “Congress is better positioned” to evaluate the 9 costs and benefits of “creat[ing] new remedies in the border-security context.” Egbert, 10 596 U.S. at 494; Abbasi, 582 U.S. at 136. For instance, national security issues in border 11 cases, like those in Hernandez and Egbert, typically preclude Bivens actions. See 12 Hernandez, 589 U.S. at 93; Egbert, 596 U.S. at 482. In Hernandez, the Court declined to 13 allow a damages remedy for an excessive-force claim against a Border Patrol agent who 14 shot and killed a 15-year-old Mexican national across the border in Mexico as 15 “cross-border shooting is by definition an international incident” and thus implicates 16 foreign policy, which is governed by the political branches. 589 U.S. at 104. The 17 Hernandez Court found that “[s]ince regulating the conduct of agents at the border 18 unquestionably has national security implications, the risk of undermining border security 19 provides reason to hesitate before extending Bivens into this field.” Id. at 108. Similarly, 20 in Egbert, the Court found that since the defendants were carrying out Border Patrol’s 21 mandate to “interdic[t] persons attempting to illegally enter or exit the United States or 22 goods being illegally imported into or exported from the United States,” the activities were 23 “intimately related to foreign policy and national security[.]” 596 U.S. at 494 (quoting 24 Haig v. Agee, 453 U.S. 280, 292 (1981)). As such, these matters, which are typically within 25 the purview of Congress, not the courts, should be left to legislative oversight. 26 Thus, the Court, after considering whether it or the Legislative Branch is better 27 equipped to decide whether existing remedies “should be augmented by the creation of a 28 new judicial remedy[,]” concludes that Congress is better positioned to create remedies for 1 ||the wrongful arrest and detention of U.S. citizens at the intentional border. See Egbert, 2 U.S. at 493 (citing Bush, 462 U.S. at 368). The Court finds that the special factors 3 ||counsel hesitation in extending Bivens to Plaintiff's claims, as the Supreme Court has 4 ||consistently declined to recognize Bivens actions of incidents at the international border. 5 || See Egbert, 596 U.S. at 494 (“[A] Bivens cause of action may not lie where, as here, 6 national security is at issue.”’). 7 Accordingly, since Plaintiff fails to state a Bivens claim upon which relief can be 8 granted, the Court DISMISSES Plaintiff's fourth and six causes of action WITH 9 || PREJUDICE and WITHOUT LEAVE TO AMEND. Klamath-Lake Pharm. Ass’n, 10 F.2d at 1292—93 (noting that while “leave to amend ‘shall be freely given when justice 11 |}so requires’ .. . futile amendments should not be permitted”). 12 CONCLUSION 13 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 14 ||}(ECF No.5). Claim V of Plaintiff's Complaint is DISMISSED WITHOUT 15 PREJUDICE and Claims IV and VI of Plaintiff's Complaint are DISMISSED WITH 16 PREJUDICE. Claims IV—VI are all dismissed WITHOUT LEAVE TO AMEND. 17 || Because Plaintiff's Bane Act claim has been dismissed, the Court GRANTS Defendant’s 18 |/request to strike Plaintiff's request for attorney’s fees under the Bane Act as Plaintiff's 19 request is MOOT. Defendant SHALL FILE an answer or otherwise respond to □□□□□□□□□□ □ 20 ||Complaint within fourteen (14) days of the date this Order is electronically docketed. 21 IT IS SO ORDERED. 22 Dated: March 24, 2025 jae Lb monaitenus- 23 on. Janis L. Sammartino United States District Judge 25 26 27 28