NOT FOR PUBLICATION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 Agents 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 APPEALS
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Narcotics, 403 U.S. 388 (1971), for violating his rights under the Fourth and 

Fourteenth Amendments. 

We have jurisdiction under 28 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 Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). In 

reviewing the sufficiency of the complaint, we must determine whether the nonconclusory factual allegations—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). The Supreme Court has adopted a demanding two-part test for 

recognizing Bivens claims. First, we 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 counsel[] 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 was 
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presented with the question of whether a Bivens remedy existed where 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 Hernandez’s claim presented a new context,

distinguishing it from the purely-domestic conduct at issue in Bivens. Id. at 

743-44. And the transnational nature of the killing presented special factors 

counselling hesitation in extending a remedy to the Hernandez 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 extraterritorial 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-prosecution 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 the wrongful accusation, but that 
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argument does not undermine the strong presumption against interfering in the 

Executive Branch’s relations with foreign countries. 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. He argues the amended complaint would clarify that 

Devine never directly commanded Thai 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 an amended complaint clarified that Devine was the sole bad 

actor, this lawsuit would still implicate U.S.-Thai relations. As 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 court did not err in so holding. 

AFFIRMED.