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 alterna