Tony Jackson v. Kyle McNeil ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY J. JACKSON, No. 20-35991
Plaintiff-Appellant, D.C. No. 3:19-cv-06245-RJB
v.
MEMORANDUM*
KYLE MCNEIL, Agent,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted March 30, 2023
Seattle, Washington
Before: NGUYEN and HURWITZ, Circuit Judges, and PREGERSON,** District
Judge.
Tony J. Jackson appeals the dismissal of his complaint seeking monetary
damages for an alleged Fifth Amendment procedural due process violation,
brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C § 1291.
We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and
affirm.
Jackson claims that he was deprived of property without adequate pre-
deprivation notice, an argument he concedes presents a new Bivens context. See
Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022). Accordingly, we must determine
whether “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.’” Id. (quoting Ziglar v. Abbasi, 582 U.S. 120, 136
(2017)); see also Hernández v. Mesa, 140 S. Ct. 735, 744 (2020).
Among such potential “special factors” is the existence of some “alternative
remedial structure.” Egbert v. Boule, 142 S. Ct. at 1804 (quoting Ziglar, 582 U.S.
at 137). In Egbert, for example, Department of Homeland Security regulations
allowed any person to file a grievance and required the Border Patrol to investigate
alleged violations of enforcement standards. 142 S.Ct. at 1806. This procedure,
the Court explained, offered an alternative remedy to a Bivens claim, thus
precluding the extension of Bivens into a new context. Id. Here, similarly, all
colorable claims of administrative misconduct must be reported to the Department
of Justice Inspector General, who may then investigate the allegations or refer
them for investigation. 5 U.S.C. § 413(b)(2), (d). Although this scheme appears to
2
provide more room for discretion than that at issue in Egbert, provides no
possibility of monetary relief, and may or may not be sufficient to deter
unconstitutional conduct, “the question whether a given remedy is adequate is a
legislative determination that must be left to Congress, not the federal courts.”
Egbert, 142 S. Ct. at 1807. “So long as Congress or the Executive has created a
remedial process that it finds sufficient to secure an adequate level of deterrence,
the courts cannot second-guess that calibration by superimposing a Bivens
remedy.” Egbert, 142 S. Ct. at 1807.
The government contends that additional special factors also argue against a
Bivens remedy. We need not reach these additional arguments, however, because
“if there is any reason to think that judicial intrusion into a given field might be
harmful or inappropriate,” then “a court cannot afford a plaintiff a Bivens remedy.”
Egbert, 142 S. Ct. at 1805 (internal quotation marks omitted); see also id. (Bivens
remedy unavailable if “there is any rational reason (even one) to think that
Congress is better suited to ‘weigh the costs and benefits of allowing a damages
action to proceed’” (quoting Ziglar, 582 U.S. at 136)).
AFFIRMED.
3