NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER HOBBS,

Plaintiff

- Appellant,

v. RANDALL DEVINE; UNITED STATES OF AMERICA, Defendants

- Appellees. No. 18

- 56307
D.C. No. 2:18

- cv - 00480

- PSG

- E

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding Argued and Submitted July 7, 2020 Pasadena, California Before: PAEZ and BADE, Circuit Judges, and ZOUHARY, * * District Judge. Plaintiff Christopher Hobbs (“Hobbs”) appeals the district court’s dismissal
of his action against FBI Special Agent Randall Devine (“Devine”). Hobbs sued Devine under Bivens v. Six Unknown Named Age nts of the Federal Bureau of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 

# FILED

SEP 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Narcotics , 403 U.S. 388 (1971) , for violating his rights under the Fourth and Fourteenth Amendment s
. We have jurisdiction under 2 8 U.S.C § 1291 and review de novo the district court’s grant of a motion to dismiss for failure to state a claim. See Metzler Inv. v
. GMBH v. Corinthian Coll s ., Inc. , 540 F.3d 1049, 1061 (9th Cir. 2008). In reviewing the sufficiency of the complaint, we must determine whe ther the non

conclusory factual allegation s

— accepted as true

— “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ( quoting Bell Atl

. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).
1. In the absence of statutory remedies, Bivens permits damages suits against federal officials who violate the Constitution. Ziglar v. Abbasi , 137 S. Ct. 1843, 1854 (2017)

. T he Supreme Court has adopted a demanding two

- part test for recognizing Bivens clai ms . First, w e must ask whether the complaint’s allegations present a “new context” as compared to claims previously recognized by the Supreme Court

. Id. at 1859

- 60. If the complaint presents a new context, we must then ask whether any “special factors c ounsel[] hesitation” before holding the federal defendants liable for their misconduct. Id. at 1857 (quoting Carlson v.
Green , 446 U.S. 14, 18 (1980)). The Supreme Court’s recent decision in Hernandez v. Mesa is dispositive of Hobbs’s Bivens claim. 140 S . Ct. 735 (2020) . In Hernandez , the Court was3

presented with the question of whether a Bivens remedy existed whe re a federal agent , who was on U.S. soil, shot and killed a child standing on the Mexican side of the U.S.

- Mexico border

. Id. at 740. The Court declined to extend Bivens to this
context. The Court held that the cross

- border shooting presented a new context and that special factors counselled hesitation in extending Bivens to provide a damages remedy

. The Court reasoned that Her nandez’s claim presented a new context, distinguish ing it from the purely

- domestic conduct at issue in Bivens

. Id. at 74 3

- 4 4. And the transnational nature of the killing presented special factors counselling hesitation in extending a remedy to the Hernan dez plaintiffs

. Id. at 744

- 49 (holding that potential effects on foreign relations and national security “raise[d] warning flags”)

. As in Hernandez , “it is glaringly obvious that [Hobbs’s] claims involve a
new context.” Id. at 744. And the same ex traterritorial concerns that foreclosed a
Bivens claim in Hernandez apply here with greater force. Unlike in Hernandez , all of the critical events that provide the basis for Hobbs’s constitutional claims occurred in Thailand. To recognize a malicious

- pro secution suit in this context would touch upon relations between the Thai and American governments, given that Hobbs was arrested and prosecuted by the Royal Thai Police. Hobbs stresses that Devine

—

not Thai authorities

— orchestrated th e wrongful accusation , but that4

argument does not undermine the strong presumption against interfering in the Executive Branch’s relations with foreign countr ies . These same concerns also apply to Hobbs’s Fourth Amendment false

- arrest claim. The district court did not err in dismissing Hobbs’s complaint.
2. Hobbs also appeals the district court’s denial of his motion for leave to file an amended complaint. H e argues t he amend ed complaint would clarify that Devine never directly commanded Th ai authorities to arrest him; rather, Devine manipulated the unwitting Thai police into charging him

. Hobbs asserts this clarification could alter the special

- factors analysis.
But even if a n amended complaint clarified that Devine was the sole bad

ac tor , t his lawsuit would still implicate U.S.

- Thai relations

. A s the government points out, Devine’s defense would likely argue that the Royal Thai Police were responsible for the wrongful arrest and prosecution of Hobbs. Thus, the proposed amended complaint would not sidestep the foreign

- affairs concerns. For this

reason , “it is clear that the complaint could not be saved by any amendment.” Jackson v. Carey , 353 F.3d 750, 758 (9th Cir. 2003) (citation omitted) . The district c ourt did not err in so holding.
AFFIRMED.