United States Court of Appeals

For the First Circuit

No. 22-1307

DARWIN QUINONES-PIMENTEL; VICTOR VEGA-ENCARNACION; NAICOM 

CORPORATION; NAICOM DATA CENTER; ARTIST DESIGNS & MANAGEMENT 

CORPORATION; KIARAS, LLC,

Plaintiffs, Appellants,

v.

NICHOLAS W. CANNON, in his personal and individual capacity as 

Assistant United States Attorney for the District of Puerto 

Rico; DOUGLAS A. LEFF, in his personal and individual capacity 

as former FBI Special Agent in charge of San Juan Division; BRAD 

REX; LANCE LANGE; KEVIN PEARSON; ANDREW BAKER; CHRIS KUHN; CELIA 

MAHLER; CLAY REHRIG; NOAH EAMES; JUSTIN TURNER; MARK ETHERIDGE; 

CLINT NAFAY; JUAN GALARZA; JASON LOPEZ; UNITED STATES; EMILY 

RINKEL; JORDAN SMITH; KEVIN GEDEON; BERT EICHHORN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. John A. Woodcock, Jr.,* U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Thompson, Circuit Judges.

Rafael F. Castro Lang for appellants.

Daniel Aguilar, Appellate Staff Attorney, Civil 

Division, United States Department of Justice, with whom Brian M. 

Boynton, Principal Deputy Assistant Attorney General, W. Stephen 

* Of the District of Maine, sitting by designation.
Muldrow, United States Attorney, and Mark B. Stern, Appellate Staff 

Attorney, Civil Division, United States Department of Justice, 

were on brief, for appellees Nicholas W. Cannon, Douglas A. Leff, 

Brad Rex, Lance Lange, Kevin Pearson, Andrew Baker, Chris Kuhn, 

Celia Mahler, Clay Rehrig, Noah Eames, Justin Turner, Mark 

Etheridge, Clint Nafay, Juan Galarza, Jason Lopez, and United 

States of America. 

Kronsky K. Sherer, with whom Chad M. Hagan, Hagan Noll 

& Boyle, LLC, Jose L. Ramirez-Coll, and Antonetti Montalvo & 

Ramirez-Coll were on brief, for appellees Emily Rinkel, Jordan 

Smith, Kevin Gedeon, and Bert Eichhorn.

October 27, 2023
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THOMPSON, Circuit Judge. After being subjected to 

alleged unconstitutional searches and seizures, Appellants filed 

suit seeking money damages pursuant to Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 

Disagreeing with Appellants' take on the matter, Appellees filed 

motions to dismiss, which the district court granted. Appellants, 

unhappy with the district court's decision, brought the case to 

us. Having carefully considered all arguments, we affirm, albeit 

on narrower reasoning than the district court.

I.

To begin, we turn to the factual2 and procedural 

background (appropriately abbreviated) for context.

Appellants here include (among others) Naicom 

Corporation ("Naicom"), a network and internet communication 

platform, and its co-founders, Darwin Quinones-Pimentel 

("Quinones") and Victor Vega-Encarnacion ("Vega"). Appellees, on 

the other hand, include an Assistant United States Attorney

("AUSA") for the District of Puerto Rico (and several other 

1 We will explain in greater detail below but, for now, we 

note that a Bivens claim is an implied cause of action against 

federal actors for constitutional violations. Hernandez-Cuevas v. 

Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013).

2 As this is an appeal from grants of motions to dismiss, we 

accept as true the complaint's well-pleaded facts and draw all 

reasonable inferences in Appellants' favor. Fothergill v. United 

States, 566 F.3d 248, 251 (1st Cir. 2009). 
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unidentified AUSAs), Special Agents and employees of the Federal 

Bureau of Investigation ("FBI"), and private parties employed by 

companies Dish Network and NagraStar (alleged Naicom competitors).3

Believing that Naicom was a threat to their business, 

the Dish and NagraStar Appellees investigated Naicom for piracy. 

Despite not finding any evidence to support their investigation, 

the Dish and NagraStar Appellees complained to the FBI Appellees, 

alleging that Naicom was running a pirate operation. According to 

Appellants, the Dish and NagraStar Appellees did so to secure their

own participation in the execution of search warrants of Naicom's 

offices and Data Center and, while performing said searches, get 

access to Naicom's confidential intellectual property and trade 

secrets.

Starting in September 2017, the Dish and NagraStar 

Appellees worked with the FBI Appellees during the FBI's criminal 

investigation of Naicom. This investigation culminated in the 

AUSA and FBI Appellees securing two search warrants: one for 

Naicom Corporation, located at 701 Ponce de Leon, Suite 208, and 

one for Naicom's Data Center, located at 4SS N2 Via Josefina. 

3 Up to this point and moving forward, our use of "Appellants" 

and "Appellees" refers to all Appellants and Appellees, 

respectively. Where our opinion needs to specify a particular 

Appellee or Appellees for clarity, we identify them as "AUSA 

Appellee," "FBI Appellees," and "Dish and NagraStar Appellees."
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Appellants say that these warrants were procured based upon 

knowingly false and perjured statements.

On August 27, 2019, the FBI, Dish, and NagraStar 

Appellees searched Suite 208 and seized documents, two hard drives, 

two USB drives, one cell phone, and one tablet, all containing 

business trade secrets and intellectual property information. 

During that search, the same Appellees searched Suite 207, which 

was the headquarters of Vega's other business, Artist Designs &

Management Corporation (also an Appellant here), despite being 

informed by a Naicom staff member that Suite 207 belonged to an 

independent business and was not included in the search warrant. 

In Appellants' view, this search was beyond the scope of the 

warrant and, therefore, warrantless.

That same day, several of the FBI, Dish, and NagraStar 

Appellees also searched Naicom's Data Center. Present at the time 

of the search was Quinones, who witnessed the FBI Appellees allow 

the Dish and NagraStar Appellees to access and search Naicom's 

computers, servers, and hardware and to take photographs. For his 

part, Quinones asked for a chance to demonstrate that Naicom was 

a legitimate business. Finding no evidence of criminal activity, 

the AUSA and FBI Appellees instructed Quinones and Vega to report 

to the San Juan FBI offices for an interview. There, Quinones and 

Vega answered the FBI, Dish, and NagraStar Appellees' questions 
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and eventually asked to end the interview due to the Dish and 

NagraStar Appellees' questioning regarding Naicom's technology.

Two days later on August 29, 2019, the FBI, Dish, and 

NagraStar Appellees took a second bite at the apple and searched

(purportedly under the original warrant) Naicom's Data Center once 

more. As during the first search of Naicom's Data Center, Quinones 

again observed the Dish and NagraStar Appellees accessing Naicom's

computers, servers, and hardware. In Appellants' view, this search 

was also beyond the scope of the search warrant, because any 

probable cause had dissipated after not finding any evidence of 

criminal activity during their search two days prior, and for that 

reason, the search was warrantless.

Wanting their property returned, Appellants filed a 

motion to that effect under Federal Rule of Criminal Procedure 

41(g), arguing that the searches and seizures violated their Fourth 

Amendment rights. Without conceding any constitutional violation, 

the United States government filed a non-opposition response, and 

the seized property was returned.

Appellants now claim three Bivens causes of action for 

money damages related to the searches and seizures. In Count One, 

they say that Appellees conspired with each other to use false 

evidence and statements in support of the affidavit used to acquire 

the search warrants -- all in violation of Franks v. Delaware, 438 
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U.S. 154 (1978).4 Count Two says that Appellees' search of Suite 

207, the site of Vega's Artist Designs & Management Corporation,

exceeded the scope of the Naicom Corporation search warrant because 

Suite 207 belonged to a separate business and was not included in 

the search warrant, whereas Count Three says that Appellees' second 

search of Naicom's Data Center exceeded the scope of the Data 

Center search warrant because it had been searched two days prior.

The district court dismissed Appellants' complaint, 

concluding that their claims arose within a new context of Bivens, 

and special factors at issue counseled against extending relief to 

Appellants' claims (more on this later). This timely appeal 

followed.

II.

Appellants' appeal hinges upon whether the district 

court correctly applied Bivens and its progeny to the claims at 

issue here, which we review de novo. González v. Vélez, 864 F.3d 

45, 50 (1st Cir. 2017). Before getting to our assessment, we take 

a deep dive into the Bivens landscape.

A.

Our Constitution does not expressly provide for money 

damages for constitutional wrongs. In re Fin. Oversight & Mgmt. 

4 Franks held that the use of false statements, made knowingly 

and intentionally or with reckless disregard to the truth, that 

are necessary to the finding of probable cause in a search warrant 

is a violation of the Fourth Amendment. 438 U.S. at 171–72.
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Bd., 41 F.4th 29, 44–45 (1st Cir. 2022). A federal statute enacted 

by Congress in 1871, nevertheless, does provide for money damages 

against state actors who violate the Constitution. See 42 U.S.C. 

§ 1983. Congress, however, has never enacted a similar statute 

against federal actors. Ziglar v. Abbasi, 582 U.S. 120, 130 

(2017).

Bivens then entered the scene in 1971. There, "federal 

agents . . . allegedly manacled the plaintiff and threatened his 

family while arresting him for narcotics violations." Egbert v. 

Boule, 142 S. Ct. 1793, 1802 (2022) (citing Bivens, 403 U.S. at 

397). The Supreme Court "held that a Fourth Amendment violation

by federal agents, acting under color of governmental authority, 

gave rise to [an implied] cause of action for money damages against 

those agents in their individual capacities." González, 864 F.3d 

at 52 (citing Bivens, 403 U.S. at 389).

In this same vein, the Supreme Court expanded Bivens to 

two more contexts. First up was Davis v. Passman, 442 U.S. 228, 

229–31, 248–49 (1979), where the Supreme Court allowed a damages 

action pursuant to the Fifth Amendment's Equal Protection Clause 

against a Congressperson for sex discrimination towards a member 

of their staff. Second was Carlson v. Green, 446 U.S. 14, 16, 20–

23 (1980), where the Supreme Court extended Bivens to include an 

Eighth Amendment violation in which federal prison officials 
- 9 -

failed to provide adequate medical treatment for a prisoner's 

asthma, resulting in his death.

Since these cases were decided, however, the Supreme 

Court has charted a significantly different path, consistently 

refusing "to extend the Bivens doctrine to new settings." 

González, 864 F.3d at 52; see Hernández v. Mesa, 140 S. Ct. 735, 

743 (2020) (gathering Supreme Court cases declining to extend 

Bivens). This hesitance stems from the Supreme Court's recognition 

that "it is a significant step under separation-of-powers 

principles for a court to determine that it [as opposed to 

Congress] has the authority, under the judicial power, to create 

and enforce a cause of action for damages against federal officials 

in order to remedy a constitutional violation." Abbasi, 582 U.S. 

at 133. Indeed, in a recent trio of cases, the Supreme Court

observed "that expanding the Bivens remedy is now a 'disfavored'

judicial activity," id. at 135 (quoting Ashcroft v. Iqbal, 556 

U.S. 662, 675 (2009)); that "Bivens, Davis, and Carlson were the 

products of an era when the Court routinely inferred 'causes of 

action' that were 'not explicit' in the text of the provision that 

was allegedly violated," Hernández, 140 S. Ct. at 741 (quoting 

Abbasi, 582 U.S. at 132); and that "[i]f there is a rational reason 

to think that [Congress rather than the courts is who should decide 

whether to provide a damages remedy] -- as it will be in most every 
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case, . . . no Bivens action may lie," Egbert, 142 S. Ct. at 1803 

(internal citation omitted).

All that said, the Supreme Court has never overruled 

Bivens and, most recently, clarified how courts should assess such 

claims. See Egbert, 142 S. Ct. at 1803; see also Abbasi, 582 U.S. 

at 134 ("[I]t must be understood that this opinion is not intended 

to cast doubt on the continued force, or even the necessity, of 

Bivens in the search-and-seizure context in which it arose."). To 

start, we must ask whether the case presents a new Bivens context, 

which boils down to whether the case is meaningfully different 

from Bivens, Davis, and Carlson. Egbert, 142 S. Ct. at 1803. What

makes a difference "meaningful" is a bit unclear, but the Supreme 

Court has given us a few guideposts: 

A case might differ in a meaningful way 

because of the rank of the officers involved; 

the constitutional right at issue; the 

generality or specificity of the official 

action; the extent of judicial guidance as to 

how an officer should respond to the problem 

or emergency to be confronted; the statutory 

or other legal mandate under which the officer 

was operating; the risk of disruptive 

intrusion by the Judiciary into the 

functioning of other branches; or the presence 

of potential special factors that previous 

Bivens cases did not consider.

Abbasi, 582 U.S. at 139–40. A meaningful difference can also 

include a new category of defendants. Egbert, 142 S. Ct. at 1803. 

While the Supreme Court has instructed that "the new-context 

inquiry is easily satisfied," it has also cautioned that "[s]ome 
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differences, of course, will be so trivial that they will not 

suffice to create a new Bivens context." Abbasi, 582 U.S. at 149; 

see also Snowden v. Henning, 72 F.4th 237, 243-44 (7th Cir. 2023) 

("That a difference must be 'meaningful' suggests that some degree 

of variation will not preclude a Bivens remedy." (emphasis 

theirs)). If the case presents no meaningful differences (and 

thus no new context), the analysis ends there and relief under 

Bivens is available. See Hicks v. Ferreyra, 64 F.4th 156, 166 

(4th Cir. 2023). 

If, however, the court decides that the case does present 

a new Bivens context, its next and final question is whether there 

are any "special factors" counseling against extending Bivens. 

Egbert, 142 S. Ct. at 1803. "Special factors" are also not clearly

defined, but we know that they include, at least, "alternative 

remedial structures," such that if Congress has already given a 

would-be Bivens plaintiff a way to redress the constitutional 

violation, the Bivens suit cannot proceed. Id. at 1804. At 

bottom, this question looks to whether "the Judiciary is at least 

arguably less equipped than Congress to 'weigh the costs and 

benefits of allowing a damages action to proceed.'" Id. at 1803 

(quoting Abbasi, 582 U.S. at 136). The absence of any special 

factors means Bivens relief is available, while the presence of 

special factors means such relief is unavailable. See Hernández, 

140 S. Ct. at 743.
- 12 -

The entire analysis ultimately collapses -- the Supreme 

Court tells us -- into a single, fundamental inquiry: "whether 

there is any reason to think that Congress might be better equipped 

to create a damages remedy." Egbert, 142 S. Ct. at 1803. 

Synthesizing all this together, the modern Bivens analysis 

involves a factual comparison to the facts of Bivens itself (or 

Davis, or Carlson, depending on the case), with an emphasis on 

avoiding any extension of Bivens to meaningfully new factual 

circumstances. With this backdrop laid out, we turn to our 

assessment of Appellants' claims.

B.

Starting with the new-context step, there is no dispute 

that the most similar Supreme Court case between Bivens, Davis, 

and Carlson to the case here is Bivens itself. Remember, Bivens

"authorized a damages action against federal officials for alleged 

violations of the Fourth Amendment." Id. at 1799. So too here 

are Appellants attempting to vindicate their Fourth Amendment 

rights. We know, however, that this similarity, by itself, is 

insufficient to qualify this case as presenting the same context 

as in Bivens. Hernández, 140 S. Ct. at 743 ("A claim may arise in 

a new context even if it is based on the same constitutional 

provision as a claim in a case in which a damages remedy was 

previously recognized."). What's worse (at least for Appellants) 
- 13 -

is that the similarities between Bivens and this case also end 

there.

As we mentioned, the relevant analysis involves a 

factual comparison, and the facts of Bivens cannot be viewed 

generally. See, e.g., Egbert, 142 S. Ct. at 1805; Mays v. Smith, 

70 F.4th 198, 204 (4th Cir. 2023) ("But citation to the 

constitutional provision alone is insufficiently granular for the 

new-context inquiry." (citing, e.g., Hernández, 140 S. Ct. at 

743)); Tun-Cos v. Perrotte, 922 F.3d 514, 524 (4th Cir. 2019) 

("Arguing at so general a level . . . only ignores the language of 

Abbasi."). To recap, the facts there involved a Fourth Amendment 

claim against federal line-level investigative officers who 

allegedly entered and searched the plaintiff's apartment, arrested 

him for alleged drug violations, manacled him in front of his 

family, threatened to arrest his family, and later interrogated, 

booked, and visually strip searched him -- all without probable 

cause or a warrant and with excessive force. Bivens, 403 U.S. at 

389. The facts of this case, on the contrary, involve Fourth 

Amendment claims against prosecutors, federal line-level 

investigative officers, and private, corporate employees acting 

under color of federal law, who are alleged to have jointly 

fabricated evidence in support of warrants to search a business 

investigated for copyright and money laundering violations, seized 

physical evidence (which was returned), and twice exceeded the 
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scope of those warrants. As these descriptions demonstrate, the 

differences are plenty.

The district court noted several differences that it 

considered meaningful, including that 1) the challenged conduct 

differed from the challenged conduct in Bivens; 2) a warrant was 

issued and ran against a business, as opposed to an individual; 3) 

the harm to Appellants was not a result of Appellees' direct 

actions, but rather a result of intervening decisions by various 

actors; 4) Appellants' claims required different proof than what 

was required in Bivens; and 5) the claims were brought against a 

new category of defendants, prosecutors. We need not comment upon 

whether any of these differences individually would suffice to 

make this a new context because together, the differences in the 

challenged conduct -- including the issuance of a warrant, which 

ran against a business -- and in the defendants -- including the 

prosecutors and private, corporate employees -- suffice (when 

viewed collectively) to show that this case differs meaningfully 

from Bivens and therefore presents a new context.

To explain, take first the law enforcement actions at 

issue here, which differ entirely from those at issue in Bivens. 

See, e.g., Abbasi, 582 U.S. at 140 (listing "the generality or 

specificity of the official action" as a meaningful difference); 

Xiaoxing Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) 

(differentiating from Bivens an appellant's Fourth Amendment 
- 15 -

claims because they "concern a different breed of law enforcement 

misconduct"); Annappareddy v. Pascale, 996 F.3d 120, 136 (4th Cir. 

2021) (differentiating from Bivens an appellant's Fourth Amendment 

claims because the "alleged misdeeds here are different from those 

in Bivens" (citation and internal quotation marks omitted)); Ahmed

v. Weyker, 984 F.3d 564, 568 (8th Cir. 2020) (differentiating from 

Bivens an appellant's Fourth Amendment claims because "the sorts 

of actions being challenged here are different" (citation and 

internal quotation marks omitted)). Comparing these two sets of 

facts, the federal officers in Bivens handcuffed and arrested the 

appellant and, without a warrant, searched his apartment and his 

person through a visual strip search. Bivens, 403 U.S. at 389. 

Here, on the other hand, no one was handcuffed or arrested and no 

one's home nor their person (naked or otherwise) was searched 

without a warrant.5 What's more, here there was a warrant, which 

5 As we understand it, Appellants argue that Franks violations 

such as those alleged here are like the law enforcement misconduct 

in Bivens, because, in Aponte Matos v. Toledo-Dávila, 135 F.3d 182 

(1st Cir. 1998), this court supposedly authorized Bivens actions 

for Franks violations. Not so. There, the court analyzed 

qualified immunity and liability for Franks violations pursuant to 

§ 1983, not Bivens, and stated that "[a]n officer who obtains a 

warrant through material false statements which result in an 

unconstitutional search may be held personally liable for his 

actions under § 1983." Id. at 187. This distinction matters 

because Bivens liability is not as expansive as that under § 1983, 

so the fact that liability under § 1983 exists does not necessarily 

mean that Bivens liability also exists. See Hernández, 140 S. Ct. 

at 747 (noting that Bivens is the "more limited federal analog to 

§ 1983" (citation and internal quotation marks omitted)).
- 16 -

was issued against a business, not against an individual or the

individual's home.6 In sum, each of the Appellants' claims targets

All this is not to say that claims involving warrants, 

allegations of Franks violations, or other alleged misconduct at 

issue here (such as exceeding the scope of a warrant) necessarily

fall outside Bivens' ambit -- issues upon which courts have 

diverged. See Greenpoint Tactical Income Fund LLC v. Pettigrew, 

38 F.4th 555, 563–65 (7th Cir. 2022) (comparing circuit cases that 

have reached opposing conclusions as to Bivens relief in the 

"context of alleged false and misleading warrant applications," 

and further suggesting that such conduct could support a Bivens

claim within the Seventh Circuit). For example, the mere fact of 

a warrant might not present a new context if the defendant's 

conduct closely paralleled that from Bivens, Davis, or Carlson. 

We leave those issues for another day because all the differences 

identified above, when viewed in the aggregate, are sufficient 

reason to conclude Appellants' three counts are each an extension 

of Bivens.

6 Appellants appear to suggest that it is irrelevant that the 

warrant ran against a business, because businesses are entitled to 

some Fourth Amendment protections. Being entitled to Fourth 

Amendment protections, however, is not enough to access Bivens

relief. See Hernández, 140 S. Ct. at 743 ("A claim may arise in 

a new context even if it is based on the same constitutional 

provision as a claim in a case in which a damages remedy was 

previously recognized."); see also Annappareddy, 996 F.3d at 137 

("There appear to be no cases — in the Supreme Court or any other

court — approving a Bivens claim for acts taken against a corporate 

entity."). Appellants also argue that other circuit courts have 

allowed Bivens claims for acts taken against businesses, relying 

on three cases. See Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 

1328 (9th Cir. 1987); Dobyns v. E-Systems, Inc., 667 F.2d 1219 

(5th Cir. 1982); Yiamouyiannis v. Chem. Abstracts Serv., 521 F.2d 

1392 (6th Cir. 1975). Those cases hardly stand for such a 

proposition as the plaintiffs in each of them were individuals, 

not businesses. 

But, just as we mentioned above in relation to warrants, 

nothing in this opinion should be construed as necessarily 

foreclosing Bivens actions involving businesses. Here, however, 

the aforementioned differences, collectively, distinguish this 

case meaningfully from Bivens. 
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"a different part of police work than the apprehension, detention, 

and physical searches at issue in Bivens." Farah v. Weyker, 926 

F.3d 492, 499 (8th Cir. 2019).

Take second the defendants in this case, who are not 

just federal line-level investigative officers (as was the case in 

Bivens) but also include federal prosecutors and private,

corporate employees allegedly working with the government. 

Egbert, 142 S. Ct. at 1803 (identifying as an "example[] of [a] 

new context[] . . . a case that involves a new category of 

defendants" (citation and internal quotation marks omitted)). 

Neither Bivens, Davis, nor Carlson involved claims against 

prosecutors, and several courts, including one of our sister 

circuits, have determined that prosecutors are a new category of 

defendants. See, e.g., Annappareddy, 996 F.3d at 134; Jones v. 

District of Columbia, No. 21-cv-03117, 2022 WL 2904171, at *5 

(D.D.C. July 22, 2022); Greenlaw v. Klimek, No. 4:20-CV-311, 2021 

WL 6112784, at *6 (E.D. Tex. Dec. 27, 2021); Martin v. Gray, No. 

20-CV-741, 2021 WL 3855566, at *4 (E.D. Wis. Aug. 27, 2021); 

Hornoff v. Waller, No. 2:19-cv-00198, 2020 U.S. Dist. LEXIS 198578, 

at *56 (D. Me. Oct. 20, 2020). This conclusion makes good sense, 

as the Supreme Court's "watchword" in Bivens' cases "is caution[,]" 

due to the separation-of-powers issues at play. Hernández, 140 S. 

Ct. at 742. The inclusion of prosecutors "risk[s] . . . intrusion 
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on executive-branch authority to enforce the law and prosecute 

crimes." Farah, 926 F.3d at 501.7

Similarly, neither Bivens, Davis, nor Carlson involved 

claims against private, corporate employees. Appellants suggest 

that this court has previously greenlit Bivens claims against 

private parties, and the district court expressed confusion over 

this court's caselaw on the topic. Compare Stoutt v. Banco Popular 

de P.R., 320 F.3d 26, 33 (1st Cir. 2003) ("The Supreme Court has 

already limited Bivens actions by refusing to extend them to 

private entities acting under color of federal law." (citing Corr. 

Servs. Corp. v. Malesko, 534 U.S. 61 (2001))); Fletcher v. R.I. 

Hosp. Trust Nat'l Bank, 496 F.2d 927, 932 n.8 (1st Cir. 1974) 

("[T]here is no cause of action against private parties acting 

under color of federal law or custom."), with Gerena v. P.R. Legal 

Servs., Inc., 697 F.2d 447, 448–52 (1st Cir. 1983) (assuming that 

7 Appellants resist this conclusion. They first seem to 

suggest that the prosecutors here acted more akin to investigators, 

as opposed to prosecutors. This argument, however, is undermined 

by their own allegations, which state that the prosecutors reviewed 

evidence gathered by other individuals and decided to apply for a 

search warrant. See Greenlaw, 2021 WL 6112784, at *6 ("Defendant 

Bunch is a prosecutor, not an on-the-scene, investigative officer. 

His role as a federal officer—which includes reviewing evidence, 

deciding whether to seek a search warrant, and pursuing criminal 

charges—meaningfully differs from the narcotics agents in 

Bivens[.]"). They also point to our decision in Aponte Matos again 

because we supposedly concluded that a prosecutor can be held 

liable under Bivens for a Franks violation. That's not correct. 

None of the claims in Aponte Matos were raised against a 

prosecutor. 135 F.3d at 186. 
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a private corporation can be a governmental actor and, therefore, 

liable for damages under Bivens). Whatever confusion there was, 

the Supreme Court dispelled it, see Minneci v. Pollard, 565 U.S. 

118, 126 (2012) ("Carlson, however, was a case in which a federal 

prisoner sought damages from personnel employed by the government, 

not personnel employed by a private firm. . . . And for present 

purposes that fact -- of employment status -- makes a critical 

difference." (emphasis theirs) (internal citation omitted)), 

meaning that the inclusion here of private, corporate employees as 

defendants contributes to this context being new. 

It is of no moment that -- as Appellants point out --

this case also involved the specific acts of line-level agents in 

the course of enforcing ordinary criminal laws and that there is 

some judicial guidance on the alleged Fourth Amendment violations 

at play here.8 See Abbasi, 582 U.S. at 140 (explaining that 

meaningful differences include "the rank of the officers involved; 

the constitutional right at issue; . . . the extent of judicial 

guidance as to how an officer should respond to the problem or 

emergency to be confronted; [and] the statutory or other legal 

mandate under which the officer was operating"). That is so 

because "even a modest extension is still an extension," id. at 

8 To be sure, the Supreme Court has previously concluded that, 

even where the officer involved is a line-level agent, other 

differences can render the factual scenario "new." See Egbert, 

142 S. Ct. at 1804–07.
- 20 -

147, and the differences in the challenged conduct, combined with

the inclusion of multiple new categories of defendants, are

sufficient to render this context new.

C.

As we find that Appellants' claims arise in a new Bivens

context, we proceed to step two, where we consider whether "special 

factors counsel[] hesitation" in extending Bivens. Id. at 136

(quoting Carlson, 446 U.S. at 18) (internal quotation marks 

omitted). "[E]ven a single reason to pause before applying Bivens

in a new context" is sufficient to preclude relief, because "in 

all but the most unusual circumstances, prescribing a cause of 

action is a job for Congress, not the courts." Egbert, 142 S. Ct. 

at 1800, 1803 (citation and internal quotation marks omitted). 

Here, the existence of an alternative remedy -- namely, Rule 41(g) 

of the Federal Rules of Criminal Procedure -- gives us sufficient 

reason to take a beat.

Appellants' claims involve allegations of unlawful 

searches of their businesses and seizure of relevant property. 

And Rule 41(g) allows "[a] person aggrieved by an unlawful search 

and seizure of property or by the deprivation of property [to] 

move for the property's return," thereby addressing the principal 

sort of injuries of which Appellants complain. Fed. R. Crim. P. 

41(g). Indeed, Appellants pursued and were awarded this relief 

before initiating the instant lawsuit. 
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Rule 41(g) provides cold comfort -- Appellants

(understandably) tell us -- because it does not provide for 

damages.9 In their view, any alternative remedy need not be 

"perfectly congruent" with Bivens, but it must be, at minimum, 

"adequate" and "roughly similar." This argument falls flat because 

it has been squarely rejected by our judicial superiors. The 

Supreme Court has recently made plain that "existing remedies 

[need] not provide complete relief," Egbert, 142 S. Ct. at 1804 

(citation and internal quotation marks omitted); see also

González, 864 F.3d at 54–55 ("The fact that other or different 

relief might be available . . . if constitutional tort suits were 

permitted" is not a "basis for extending" Bivens claims.), and

that remedies such as injunctions and writs of habeas corpus, which 

likewise do not provide for damages, are sufficient to foreclose 

Bivens relief and qualify as alternative remedies, Abbasi, 582 

U.S. at 144–45.

Notably, when assessing an alternative remedy, the 

Supreme Court has clarified that "the court must ask only whether 

it, rather than the political branches, is better equipped to 

9 Relatedly, Appellants also appear to argue that Appellees 

cannot now contend that the searches comported with the Fourth 

Amendment, because the United States did not argue so in the Rule 

41(g) proceedings. Accordingly, in Appellants' view, Appellees 

have waived any such argument. Ultimately, that argument is 

neither here nor there, because the focus of this appeal is not 

whether Appellees' actions were constitutional, but whether 

Appellants have an implied cause of action to bring the claim. 
- 22 -

decide whether existing remedies should be augmented by the 

creation of a new judicial remedy." Egbert, 142 S. Ct. at 1804

(citation and internal quotation marks omitted). There is reason 

here to think Congress is so equipped. The Federal Rules of 

Criminal Procedure, including Rule 41(g), are "prescribed by the 

Supreme Court pursuant to the authority conferred upon the [C]ourt 

by Congress" through the Rules Enabling Act, Miranda v. United 

States, 255 F.2d 9, 15 (1st Cir. 1958), thus rendering the rules 

"as binding as any statute duly enacted by Congress," Bank of N.S.

v. United States, 487 U.S. 250, 255 (1988). Congress itself has 

repeatedly amended Rule 41, see Pub. L. No. 107-56 § 219, 115 Stat. 

272, 291 (2001); Pub. L. No. 95-78 § 2(e), 91 Stat. 319, 319-20 

(1977), and has never amended it to provide for damages.10 Such 

"silence is notable," because "when Congress fails to provide a 

damages remedy . . . it is much more difficult to believe that 

congressional inaction was inadvertent." Abbasi, 582 U.S. at 144 

(citation and internal quotation marks omitted). 

10 The 2001 amendment involved the insertion of subsection 

(b)(3). Pub. L. No. 107-56 § 219, 115 Stat. 272, 291 (2001). When 

an officer applies for a warrant in an investigation of terrorism, 

subsection (b)(3) requires a connection between the judge's 

district and the terrorism activities. Fed. R. Crim. P. 41(b)(3). 

The 1977 amendment involved changes to the requirements regarding 

the issuance of warrants based upon an affidavit and those based 

upon oral testimony. Pub. L. No. 95-78 § 2(e), 91 Stat. 319, 319-

20 (1977).
- 23 -

The upshot of all this is that Rule 41(g) functions as 

an alternative remedy for Appellants and, consequently, a special 

factor counseling against an extension of Bivens -- a conclusion 

reached by many other courts. See, e.g., Davis v. Wernick, No. 

19-cv-3327, 2021 WL 310999, at *4 (D.D.C. Jan. 29, 2021) 

(concluding a motion to return property is an alternative remedy, 

foreclosing Bivens relief); Childress v. Palmer, No. 3:18-cv00514, 2018 WL 4282601, at *3 (S.D. Cal. Sept. 7, 2018) (same); 

Omran v. United States, No. 1:14-CV-13881, 2016 WL 4158556, at *11 

(D. Mass. June 22, 2016) (same); Baird v. Holton, 806 F. Supp. 2d 

53, 57–58 (D.D.C. 2011) (same); Leyland v. Edwards, 797 F. Supp. 

2d 7, 10–11 (D.D.C. 2011) (same); cf. Perez-Colon v. Camacho, 206 

F. App'x 1, 2 (1st Cir. 2006) ("Because appellant has a cause of 

action under Rule 41(g), he has no need to base his claim for the 

return of [money seized] on either the [Federal Tort Claims Act 

("FTCA")] or Bivens.").11

III.

To round out our analysis is our conclusion: Having 

determined that Appellants' claims arise in a new factual scenario 

11 Because the existence of even one special factor is 

sufficient to preclude Bivens relief, we do not reach Appellants' 

arguments as to the other special factors identified by the 

district court, including separation-of-powers concerns and 

alternative relief under the FTCA. We also do not reach the Dish 

and NagraStar Appellees' argument, offered for the first time at 

oral argument, that Appellants' separate civil suit against them 

for RICO and other violations is an alternative remedy.
- 24 -

and involve special factors, we affirm the district court's 

dismissal of Appellants' Bivens claims.12

12 Before we go, we have a few loose threads to tie up. First,

Appellants criticize the district court for, allegedly, failing to 

analyze Count II and Count III in its decision. We do not believe 

the district court so erred but, to the extent it did, our analysis 

is de novo and addresses all three counts. Second, as we conclude 

that Appellants' Bivens claims cannot move forward, we do not 

address Appellants' arguments as to absolute and qualified 

immunity. Third, we understand Appellants' final argument to be

that, even if their claims cannot proceed under Bivens, the statute 

allowing for federal question jurisdiction, 28 U.S.C. § 1331, gives 

them a presumptive right of action in federal court to bring their 

claims. We are not persuaded. That statute gives courts the power 

to hear cases; it does not give plaintiffs the power to maintain 

any cause of action they want. If Congress intended 28 U.S.C. 

§ 1331 to grant plaintiffs a cause of action against federal actors 

for constitutional violations, it knew how to do so because it 

enacted such a statute against state actors. See generally 42 

U.S.C. § 1983.