NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER HOBBS, No. 18-56307

Plaintiff-Appellant, D.C. No. 2:18-cv-00480-PSG-E v.

RANDALL DEVINE; UNITED STATES MEMORANDUM*

OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted July 7, 2020 Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and ZOUHARY, ** District Judge.

Plaintiff Christopher Hobbs (“Hobbs”) appeals the district court’s dismissal

of his action against FBI Special Agent Randall Devine (“Devine”). Hobbs sued

Devine under Bivens v. Six Unknown Named Agents of the Federal Bureau of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Narcotics, 403 U.S. 388 (1971), for violating his rights under the Fourth and

Fourteenth Amendments.

We have jurisdiction under 28 U.S.C § 1291 and review de novo the district

court’s grant of a motion to dismiss for failure to state a claim. See Metzler Inv. v.

GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). In

reviewing the sufficiency of the complaint, we must determine whether the non-

conclusory factual allegations—accepted as true—“state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

1. In the absence of statutory remedies, Bivens permits damages suits against

federal officials who violate the Constitution. Ziglar v. Abbasi, 137 S. Ct. 1843,

1854 (2017). The Supreme Court has adopted a demanding two-part test for

recognizing Bivens claims. First, we must ask whether the complaint’s allegations

present a “new context” as compared to claims previously recognized by the

Supreme Court. Id. at 1859-60. If the complaint presents a new context, we must

then ask whether any “special factors counsel[] hesitation” before holding the

federal defendants liable for their misconduct. Id. at 1857 (quoting Carlson v.

Green, 446 U.S. 14, 18 (1980)).

The Supreme Court’s recent decision in Hernandez v. Mesa is dispositive of

Hobbs’s Bivens claim. 140 S. Ct. 735 (2020). In Hernandez, the Court was

2 presented with the question of whether a Bivens remedy existed where a federal

agent, who was on U.S. soil, shot and killed a child standing on the Mexican side

of the U.S.-Mexico border. Id. at 740. The Court declined to extend Bivens to this

context.

The Court held that the cross-border shooting presented a new context and

that special factors counselled hesitation in extending Bivens to provide a damages

remedy. The Court reasoned that Hernandez’s claim presented a new context,

distinguishing it from the purely-domestic conduct at issue in Bivens. Id. at

743-44. And the transnational nature of the killing presented special factors

counselling hesitation in extending a remedy to the Hernandez plaintiffs. Id. at

744-49 (holding that potential effects on foreign relations and national security

“raise[d] warning flags”).

As in Hernandez, “it is glaringly obvious that [Hobbs’s] claims involve a

new context.” Id. at 744. And the same extraterritorial concerns that foreclosed a

Bivens claim in Hernandez apply here with greater force. Unlike in Hernandez, all

of the critical events that provide the basis for Hobbs’s constitutional claims

occurred in Thailand. To recognize a malicious-prosecution suit in this context

would touch upon relations between the Thai and American governments, given

that Hobbs was arrested and prosecuted by the Royal Thai Police. Hobbs stresses

that Devine—not Thai authorities—orchestrated the wrongful accusation, but that

3 argument does not undermine the strong presumption against interfering in the

Executive Branch’s relations with foreign countries. These same concerns also

apply to Hobbs’s Fourth Amendment false-arrest claim. The district court did not

err in dismissing Hobbs’s complaint.

2. Hobbs also appeals the district court’s denial of his motion for leave to

file an amended complaint. He argues the amended complaint would clarify that

Devine never directly commanded Thai authorities to arrest him; rather, Devine

manipulated the unwitting Thai police into charging him. Hobbs asserts this

clarification could alter the special-factors analysis.

But even if an amended complaint clarified that Devine was the sole bad

actor, this lawsuit would still implicate U.S.-Thai relations. As the government

points out, Devine’s defense would likely argue that the Royal Thai Police were

responsible for the wrongful arrest and prosecution of Hobbs. Thus, the proposed

amended complaint would not sidestep the foreign-affairs concerns. For this

reason, “it is clear that the complaint could not be saved by any amendment.”

Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citation omitted). The

district court did not err in so holding.

AFFIRMED.

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