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” …
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