DENISE MEJIA V. WESLEY MILLER, ET AL, No. 21-56282 (9th Cir. 2023)
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Plaintiff alleged alleges that Defendant, a now-retired officer of the Bureau of Land Management (“BLM”), 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. Defendant brought an interlocutory appeal from the denial of qualified immunity on summary judgment.
The Ninth Circuit 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 and remanding with instructions to enter summary judgment dismissing with prejudice Plaintiff’s claim.
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.
Court Description: 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. 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”).
This opinion or order relates to an opinion or order originally issued on November 14, 2022.
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