FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENISE MEJIA, an individual, No. 21-56282

Plaintiff-Appellee, D.C. No. 5:20-cv-01166-SB-SP

v. OPINION

WESLEY MILLER, Bureau of Land Management Officer, in his individual and official capacity,

Defendant-Appellant,

and

UNITED STATES OF AMERICA,

Defendant.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted October 3, 2022 Pasadena, California

Before: A. Wallace Tashima and Kenneth K. Lee, Circuit Judges, and Nancy D. Freudenthal,* District Judge

Opinion By Judge Freudenthal

* The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation.

SUMMARY **

Civil Rights

The panel vacated the district court’s denial, on summary judgment, of qualified immunity to a now-retired officer of the Bureau of Land Management and remanded with instructions to enter summary judgment dismissing with prejudice plaintiff’s excessive force claim brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In 1971, the Supreme Court in Bivens adopted an “implied cause of action theory” permitting the petitioner to seek damages from federal officers for unreasonable search and seizure in his home. Since then, the Supreme Court has recognized a Bivens action in two other contexts: a claim asserting a Congressman discriminated on the basis of gender in employment, in violation of Fifth Amendment due process (Davis v. Passman, 442 U.S. 228 (1979)), and an Eighth Amendment claim for cruel and unusual punishment against federal jailers for failing to treat a prisoner’s severe asthma. Carlson v. Green, 446 U.S. 14 (1980). These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself. Since Carlson, expanding the Bivens remedy is a disfavored judicial activity.

Shortly after the briefing in this case, the Supreme Court issued Egbert v. Boule, 596 U.S. ––, 142 S. Ct. 1793 (2022), which held that in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts. The existence of alternative remedial structures is reason enough to not infer a new Bivens cause of action. Similarly, uncertainty about the potential systemwide consequences of implying a new Bivens cause of action is by itself a special factor that forecloses relief.

The panel held that there was no Bivens cause of action for plaintiff’s claim, which presented a new context. And given this new context, special factors counseled against implying a cause of action here. For example, Fourth Amendment excessive force claims against Bureau of Land Management (“BLM”) officers

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. would have “‘systemwide’ consequences” for BLM’s mandate to maintain order on federal lands, and uncertainty about these consequences provided a reason not to imply such a cause of action. The panel further determined that plaintiff had alternative remedies, including administrative remedies. And while plaintiff’s claims pursuant to the Federal Tort Claims Act were based on a different legal theory, in plaintiff’s instance they were an alternative avenue to seek damages for the injuries alleged in her Bivens claim.

COUNSEL

Dennis E. Wagner (argued), Wagner Zemming Christensen LLP, Riverside, California, for Defendant-Appellant. Barry M. Walker (argued), Walker Trial Lawyers LLP, Canyon Lake, California, for Plaintiff-Appellee. FREUDENTHAL, District Judge.

Defendant-Appellant Wesley Miller, a now-retired officer of the Bureau of

Land Management (“BLM”), brings an interlocutory appeal from the denial of

qualified immunity on summary judgment.

I. JURISDICTION

In light of Egbert v. Boule, 596 U.S. ––, 142 S. Ct. 1793, 213 L. Ed. 2d 54

(2022), we first address whether a cause of action exists under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We have

jurisdiction to do so on this interlocutory appeal because the existence of the cause

of action is an antecedent legal question defining the claim (Hernández v. Mesa, 589

U.S. ––, 137 S. Ct. 2003, 2006, 198 L. Ed. 2d 625 (2017), (“Hernández I”)), and it

is directly implicated by the defense of qualified immunity. Rodriguez v. Swartz, 899

F.3d 719, 735 (9th Cir. 2018), vacated on other grounds, 140 S. Ct. 1258 (2020);

Hartman v. Moore, 547 U.S. 250, 257 n.5 (2006) (appellate jurisdiction on

interlocutory appeal to consider the definition of an element of the claim). As the

Court concludes below, there is no Bivens cause of action for Plaintiff-Appellee

Denise Mejia’s claim. Therefore, we do not reach the question of qualified

immunity.

II. BACKGROUND

1 Mejia alleges that Miller used excessive force while attempting an arrest on

June 10, 2018 in Berdoo Canyon, part of public lands managed by BLM near Joshua

Tree National Park. At the time, Miller was a senior law enforcement officer for

BLM. Mr. and Mrs. Mejia had spent the day driving their utility terrain vehicle

(“UTV”). Shortly before sunset, the Mejias failed to yield to a park ranger. The

ranger was attempting to stop them for a traffic violation and to alert the Mejias that

one of their rear tires was very low. The UTV temporarily stopped but then went

off-road.

The National Park Service requested that Miller assist them. The dispatcher

indicated the suspected violation was at a felony level due to reported speeds

endangering the park ranger and the public, and an apparent attempt to ram the

ranger. Miller and the park ranger searched until late at night when they saw a

flashlight above them on high ground and heard an engine start. Miller and the park

ranger positioned their vehicles to block the UTV as it came down. They turned on

their vehicle lights when they saw the UTV approach. Miller yelled, “police, put

your hands up.”

Most of what happened next is disputed. But the parties do not dispute that

the UTV passed Miller within arm’s reach, and as it did so, he fired multiple shots.

Mejia was shot in the right hand and a bullet grazed her head.

2 In the case below, Mejia asserts several claims against the United States under

the Federal Tort Claims Act (“FTCA”). The district court denied the United States’

summary judgment motion, and those claims await trial. Mejia also brought Bivens

claims against Miller, asserting unreasonable seizure and excessive force in violation

of the Fourth Amendment. 1 Miller did not raise the issue of whether a Bivens cause

of action existed and sought summary judgment on qualified immunity. The district

court granted his motion on the unreasonable seizure claim, but denied it as to

excessive force. Miller timely sought relief under Rules 59(e) and 60(b)(6), which

was denied. He timely appeals from these decisions.

III. THE BIVENS QUESTION

In 1971, the Supreme Court in Bivens adopted an “implied cause of action

theory” permitting the petitioner to seek damages from federal officers for

unreasonable search and seizure in his home. The petitioner also asserted

“unreasonable force” during his arrest, but the Court noted he “primarily” asserted

the officers violated his rights of privacy. Bivens, 403 U.S. at 389–90. The opinion

focuses entirely on the unreasonable search-and-seizure context. The Court held:

the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But it is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.

1 Mejia also sued the park ranger but voluntarily dismissed those claims. 3 Id. at 396 (marks omitted).

Since then, the Supreme Court has recognized a Bivens action in two other

contexts: a claim asserting a Congressman discriminated on the basis of gender in

employment, in violation of Fifth Amendment due process (Davis v. Passman, 442

U.S. 228 (1979)), and an Eighth Amendment claim for cruel and unusual punishment

against federal jailers for failing to treat a prisoner’s severe asthma. Carlson v.

Green, 446 U.S. 14 (1980). “These three cases—Bivens, Davis, and Carlson—

represent the only instances in which the Court has approved of an implied damages

remedy under the Constitution itself.” Ziglar v. Abbasi, 582 U.S. ––, 137 S. Ct. 1843,

1855, 198 L. Ed. 2d 290 (2017).

Since Carlson, there has been a “notable change in the Court’s approach to

recognizing implied causes of action.” Id. at 1857. The Court has grown increasingly

reluctant to recognize any new Bivens claims. Indeed, “in light of the changes to the

Court’s general approach to recognizing implied damages remedies, it is possible

that the analysis in the Court’s three Bivens cases might have been different if they

were decided today.” Id. at 1856. However, the Court also held

it must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.

4 Abbasi, 137 S. Ct. at 1857. In sum, Bivens is “settled law” in the search-and-seizure

context and relied upon “as a fixed principle in the law,” but “expanding the Bivens

remedy is now a ‘disfavored’ judicial activity.” Id.

Under a longstanding framework, courts were first to determine whether the

Bivens claim arose in a “new context,” such as a “new category of defendants.” A

“new context” is one that is “different in a meaningful way from previous Bivens

cases decided by this Court.” The Court gave non-exclusive examples:

the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1859–60.

If the context was new, Abbasi required courts to analyze whether there were

other “special factors counselling hesitation.” Id. at 1857–58. Without defining an

exhaustive list, Abbasi held “[t]he necessary inference … is that the inquiry must

concentrate on whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits of allowing a damages

action to proceed.” Id. (emphasis added). “[S]eparation-of-powers principles are or

should be central to the analysis. The question is “who should decide” whether to

provide for a damages remedy, Congress or the courts? * * * The answer most often

5 will be Congress.” Id. at 1857. In that case, alien detainees’ claims regarding a post-

9/11 policy presented a new context due to the national security concerns and

executive level of the policy. For largely the same reasons, the creation of such a

cause of action was for Congress, not the Judiciary.

Three years later, the Court issued Hernández v. Mesa, 589 U.S. ––, 140 S.

Ct. 735, 206 L. Ed. 2d 29 (2020) (“Hernández II”). Hernández II articulated the

same analytical framework as Abbasi, including whether the Judiciary is well suited

to creating the new cause of action. Hernández II also observed that the Court’s

“understanding of a ‘new context’ is broad.” Id. at 743. The cross-border shooting

in that case was a new context, and several factors counselled hesitation –– including

the case’s potential effect on international relations. Again, the cause of action was

for Congress to create, not the courts.

Neither the district court nor the parties’ briefing to this Court addressed

whether a Bivens cause of action existed. Then shortly after the briefing in this case,

the Court issued Egbert. Egbert reiterates the longstanding first step of the Bivens

question, but clarified that the second step is now whether:

special factors indicate 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 1797–98 (emphasis added, marks omitted).

The question is no longer whether the Judiciary is well suited, but whether

6 Congress is better suited. After Egbert, the two-step analysis “often resolve[s] to a

single question: whether there is any reason to think that Congress might be better

equipped to create a damages remedy.” Id. at 1803. “[A]ny rational reason … to

think that Congress is better suited to weigh the costs and benefits” is enough to

preclude extending Bivens. Id. at 1805 (marks omitted). “If there are alternative

remedial structures… that alone … is reason enough to … [not] infer a new Bivens

cause of action.” Id. at 1804 (marks omitted). Similarly, uncertainty about the

potential “‘systemwide’ consequences” of implying a new Bivens cause of action is

by itself “a special factor that forecloses relief.” Id. at 1803-04 (quoting Abbasi, 137

S. Ct. at 1858).

In Egbert, a border patrol agent allegedly used excessive force against a

Washington resident (Boule) in the driveway of his home. His property backed to

the Canadian border and was notorious for illegal crossings and smuggling. This

Court held in relevant part that the Fourth Amendment claim was a “‘modest

extension’ in a new context” because the officer was a border patrol agent, not an

F.B.I. agent. Boule v. Egbert, 998 F.3d 370, 387 (9th Cir. 2021). But because it was

a “conventional Fourth Amendment excessive force claim arising out of actions by

a[n] … agent on Boule’s own property,” this Court held that no special factors

weighed against the extension. Id.

The Supreme Court reversed and held that “similar allegations of excessive

7 force,” “almost parallel circumstances,” or a “similar ‘mechanism of injury’” as

Bivens “are not enough to support the judicial creation of a cause of action.” Egbert,

142 S. Ct. at 1805. The Court held that Boule had no Bivens action for two

independent reasons: courts are not better suited than Congress to weigh creating a

cause of action that involves national security concerns, and alternative remedies

were available. Id. at 1806–07.

Given the Supreme Court’s decision in Egbert, this Court requested

supplemental briefs on its significance. Miller argues Mejia’s claim presents a new

context because he is a new category of defendant. He further argues that unlike

Bivens’ narcotics arrest in a home, this incident occurred on public lands. Miller was

also exercising a different mandate than the narcotics officers; his mandate was “to

find [Mejia] after a reported high-speed chase in Joshua Tree National Park, which

was a violation of federal law on federal lands.” Miller further notes that Mejia has

existing alternative remedies, a special factor weighing against this Court creating a

cause of action.

Mejia argues Egbert gives no guidance regarding what constitutes a new

context, and there is no new context here. She argues there is no meaningful

distinction between narcotics officers and BLM officers, relying on this point from

the dissent in Egbert. Egbert, 142 S. Ct. at 1815 (Sotomayor, J., Breyer, J., and

Kagan J., concurring in part and dissenting in part). But the majority opinion in

8 Egbert, to the contrary, identifies the “legal mandate under which the officer was

operating” as an example of a new context. Id. at 1814. Mejia does not point to any

reason to believe that most federal agencies have the same or similar legal mandates,

or more to the point, that BLM has the same mandate as agencies enforcing federal

anti-narcotics law. The majority also emphasizes that the question is whether to

create a cause of action against all of an agency’s officers. Id. at 1806. This likewise

focuses on the agency.

Moreover, reading the Egbert majority opinion as a whole, it conveys a

heightened restriction on Bivens. “Sometimes, it seems, this Court leaves a door ajar

… even as it devises a rule that ensures no one … ever will” walk through it. Id. at

1810 (Gorsuch, J., concurring in the judgment, marks omitted). The dissent in Egbert

does not appear to be wrong in inferring the Court now sees a new Bivens context

even if only the officer’s employing agency is different. Id. at 1815.

Mejia does not identify any Supreme Court cases recognizing a Bivens

excessive force claim against a BLM officer, and this Court is aware of none. The

only case in which the Court has considered any kind of Bivens claim against BLM

officers is Wilkie v. Robbins, 551 U.S. 537 (2007). The Court declined to find a

Bivens due process claim for a landowner alleging retaliation for exercising property

rights. Id. at 561–62.

More importantly, unlike Bivens, none of the events in question occurred in

9 or near Mejia’s home. The entire incident occurred on public lands managed by

BLM and the National Park Service, a place where Mejia had no expectation of

privacy. In Bivens, the unreasonable government intrusion occurred in his home. In

short, Mejia’s claim presents a new context. And given this new context, special

factors counsel against implying a cause of action here. For example, a Fourth

Amendment excessive force claims against BLM officers would have “‘systemwide’

consequences” for BLM’s mandate to maintain order on federal lands, and

uncertainty about these consequences provides a reason not to imply such a cause of

action. Egbert, 142 S. Ct. at 1803-04.

Under Egbert, rarely if ever is the Judiciary equally suited as Congress to

extend Bivens even modestly. The creation of a new cause of action is inherently

legislative, not adjudicative. Egbert, 142 S. Ct. at 1802 (“At bottom, creating a cause

of action is a legislative endeavor”). Although Mejia points to Egbert’s discussion

of national security as a special factor—a concern which is not present here—that

was only one of the factors counselling hesitation in that case. The other factor was

that Boule had alternative remedies. Egbert, 142 S. Ct. at 1806–07. The same is true

here: Mejia has alternative remedies, including administrative remedies. See Report

Misconduct, U.S. Dep’t of the Interior Bureau of Land Mgmt,

https://www.blm.gov/programs/public-safety-and-fire/law-enforcement/report-

misconduct, last accessed October 6, 2022. And while her FTCA claims are based

10 on a different legal theory, in Mejia’s instance they are an alternative avenue to seek

damages for the injuries alleged in her Bivens claim.

In short, under Egbert “in all but the most unusual circumstances, prescribing

a cause of action is a job for Congress, not the courts.” 142 S. Ct. at 1800. This case

is not the rare exception. Accordingly, we vacate the district court’s denial of

summary judgment and remand with instructions to enter summary judgment

dismissing the Bivens excessive force claim with prejudice.

VACATED AND REMANDED.

11