Denise Mejia v. Wesley Miller ( 2023 )

FOR PUBLICATION
UNITED STATES 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.
WESLEY MILLER, Bureau of Land ORDER AND
Management Officer, in his individual AMENDED
and official capacity, OPINION
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
Filed November 14, 2022
Amended March 2, 2023
2 MEJIA V. MILLER
Before: A. Wallace Tashima and Kenneth K. Lee, Circuit
Judges, and Nancy D. Freudenthal, * District Judge.
Order;
Opinion by Judge Freudenthal
SUMMARY **
Civil Rights
The panel filed (1) an order denying a petition for panel
rehearing, denying on behalf of the court a petition for
rehearing en banc, and amending the opinion filed on
November 14, 2022; and (2) an amended opinion vacating
the district court’s denial, on summary judgment, of
qualified immunity to a now-retired officer of the Bureau of
Land Management and remanding 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
*
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MEJIA V. MILLER 3
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 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
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-
4 MEJIA V. MILLER
enforcement/report-misconduct, last accessed February 23,
2023; 43 C.F.R. § 20.103 (requiring BLM employees to
“report directly or through appropriate channels to the Office
of Inspector General or other appropriate authority matters
coming to their attention which do or may involve violations
of law or regulation by employees”).
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; Athul K. Acharya, Public
Accountability, Portland Oregon; for Plaintiff-Appellee.
Scott F. Regan, Anya Bidwell, and Patrick M. Jaicomo,
Institute for Justice, Arlington, Virginia, for Amicus Curiae
Institute of Justice.
Todd Gregorian and Garner Kropp, Fenwick & West LLP,
San Francisco, California, for Amicus Curiae Council on
American-Islamic Relations.
Brett Max Kaufman and Elizabeth Gyori, American Civil
Liberties Union Foundation, New York, New York; Cecillia
D. Wang, American Civil Liberties Union Foundation, San
Francisco, California; for Amici Curiae American Civil
Liberties Union, American Civil Liberties Union of
Northern California, American Civil Liberties Union of
Southern California, and American Civil Liberties Union of
Washington.
Per A. Ramfjord, Jeremy D. Sacks, Rachel C. Lee, Crystal
S. Chase, and Christopher Rifer, Stoel Rives LLP, Portland,
MEJIA V. MILLER 5
Oregon; Kelly K. Simon and Rachel Dallal Gale, ACLU of
Oregon, Portland Oregon; for Amici Curiae Pettibone
Plaintiffs.
ORDER
The opinion filed on November 14, 2022 (Dkt. No. 33)
is amended, and the amended opinion is filed concurrently
with this order. Judges Tashima, Lee, and Freudenthal have
voted to deny the Petition for Rehearing. Judge Lee has
voted to deny, and Judges Tashima and Freudenthal
recommended denying, the Petition for Rehearing En Banc.
The full court has been advised of the Petition for Rehearing
En Banc, and no judge of the court has requested a vote.
Appellee Denise Mejia’s Petition for Rehearing or
Rehearing En Banc (Dkt. No. 39), filed January 30, 2023, is
DENIED. The parties may not file another petition for
rehearing or petition for rehearing en banc.
6 MEJIA V. MILLER
OPINION
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
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
MEJIA V. MILLER 7
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.
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
1
Mejia also sued the park ranger but voluntarily dismissed those claims
8 MEJIA V. MILLER
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.
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—
MEJIA V. MILLER 9
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.
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
10 MEJIA V. MILLER
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 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.
MEJIA V. MILLER 11
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 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
12 MEJIA V. MILLER
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 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
MEJIA V. MILLER 13
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 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.
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 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
14 MEJIA V. MILLER
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 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 February 23,
2023; 43 C.F.R. § 20.103 (requiring BLM employees to
“report directly or through appropriate channels to the Office
of Inspector General or other appropriate authority matters
coming to their attention which do or may involve violations
of law or regulation by employees”).
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
MEJIA V. MILLER 15
instructions to enter summary judgment dismissing the
Bivens excessive force claim with prejudice.
VACATED AND REMANDED.