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.