FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARK PETTIBONE; FABIYM ACUAY, AKA Mac Smiff; ANDRE MILLER; NICHOL DENISON; MAUREEN HEALY; CHRISTOPHER DAVID; DUSTON OBERMEYER; JAMES MCNULTY,

Plaintiffs

- Appellees,

and

BLACK MILLENIAL MOVEMENT, an organization; ROSE CITY JUSTICE, INC., an Or egon nonprofit corporation,

Plaintiffs,

v.

GABRIEL RUSSELL, in his individual and official capacity,

Defendant

- Appellant,

and No. 22

- 35183

D.C. No. 3:20

- cv

01464

- YY

OPINION2 P ETTIBONE V

. R USSELL

JOSEPH R. BIDEN; CHAD F. WOLF; U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED
STATES MARSHALL SERVIC E; 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 MillerP ETTIBONE V

. R USSELL 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 P ETTIBONE V

. R USSELL

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 t hat 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 disru ptive intrusion by the Judiciary into the functioning of other branches” than was present in

Bivens . This case also differed from Carlson v. Green , 446 U.S. 14 (1980), which involved prison officials and a claim of cruel and unusual punishment under the E ighth
Amendment.

Allowing a Bivens action to proceed in this case could expose sensitive communications between Russell and other high- level executive officers. Moreover, Congress had afforded plaintiffs an alternative remedy that independently
foreclosed a Bivens action. Because plaintiffs had no cause
of action under Bivens , the panel did not consider whether Russell would be entitled to qualified immunity.P ETTIBONE V

. R USSELL 5

COUNSEL

Brian J. Springer (argued) and Mark B. Stern, Attorneys, Appellate Staff; Scott E. Asphaug and Natalie K. Wight, United States Attorneys; David G. Cutler, Trial Attorney; Glenn Greene, Senior Trial Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C.; for
Defen dants

- Appellant.

Rachel C. Lee (argued), Christopher Rifer, Crystal S. Chase, Jeremy D. Sacks, Per A. Ramfjord, Amy Edwards, Jacob C. Goldberg, Todd A. Hanchett, and Joel A. Mullin, Stoel Rives LLP, Portland, Oregon; Kelly K. Simon, and Rachel Dallal Gale, ACLU of Oregon, Portland, Oregon; for Plaintiffs

Appellees.6 P ETTIBONE V

. R USSELL

OPINION

MILLER, Circuit Judge:

During the summer of 2020, Mark Pettibone protested
outside the federal courthouse in Portland, Oregon

. He alleges that federal officers unlawfully arr ested protesters
and used excessive force , including by indiscriminately using tear gas against peaceful protesters

. Together with other protesters, he brought this action against Gabriel
Russell , then the Director of the Federal Protective Service’s Northwest Region , under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971)

. T he district court denied Russell’s motion to dismiss

. We conclude that no Bivens cause of action is available in this case, and we therefore reverse.

I

Because this is an appeal from a n order resolving a motion to dismiss, we assume the truth of the facts alleged in the complaint. Ellis v. Salt River Project Agric. Improvement & Power Dist. , 24 F.4th 1262, 1266 (9th Cir. 2022).

Following the murder of George Floyd in Minneapolis in May 2020

, numerous protests took place across the country, including near the Mark O. Hatfield United States
Courthouse in Portland. In June 2020, the President issued
an executive order stating that “[o]ver the last 5 weeks, there has been a sustained assault on the life and property of civilians, law enforcement officers, [and] government property” throughout the country and attributing this to “[a]nar chists and left

- wing extremists [who] have sought to advance a fringe ideology that paints the United States ofP ETTIBONE V

. R USSELL 7

America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob
intimidation.” Exec. Order No. 13, 933, § 1, 85 Fed. Reg. 40081 (June 26, 2020)

, revoked , Exec. Order No. 14,029, 86 Fed. Reg. 27025 (May 14, 2021)

. The order directed the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security to provide “personnel to
assist with the protection of Federal monuments, memorials, statues, or property.” Id. § 5 , 85 F ed. R eg. at 40083

. The federal government subsequently deployed more than 100
law enforcement officers from Customs and Border Protection, Immigration and Customs Enforcement, and the
United States Marshals Service to Portland, in what officials called “Operation Diligent Valor.” Russell oversaw the
officers in Portland.

P ettibone allege s that officers involved in Operation Diligent Valor arrested protesters “without any lawful basis”
and also “ indiscriminately used violent tactics on lawful
protesters, ” including by “ shooting them in the head and body with impact munitions and pepper ball s, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, [and] firing massive clouds of tear gas at them.” Pettibone alleges that “[t]he tactics used by the officers went beyond what was

req uired for their limited mission of protecting federal property and reflected a policy designed to retaliate against and to deter the protesters because of their views and
beliefs .”

The complaint includes specific allegations of allegedly
unlawful conduct d irected at individual plaintiffs. For example, Pettibone alleges that he was “snatched off the street and put in an unmarked van by unidentified men in military

- style uniforms who did not explain their actions . . .8 P ETTIBONE V

. R USSELL

and held him in jail with no explanation .” Another plaintiff alleges that although he “wore distinctive clothing that identified him as a member of the press,” he was injured
“when an unidentified federal officer shot him in the head with an impact munition while he was lawfully attending the

pr otests.” And another alleges that while “[s]he merely stood in a line of women with arms linked,” a tear

- gas canister was

“ hurled into her head, causing a three

- inch gash to her
forehead

. ”

Although Russell did not personally carry out any of the arrests or uses of force, P ettibone allege s that Russell “knew or reasonably should have known that officers

. . . would cause and were causing the arrests of protesters and the repeated use of excessive force against protesters.” According to the complaint, Russell “personally observed protesters in Portland and the actions of federal officers from an incident command post or an emergency operations center,” and he “monitored social media and reviewed publicly available videos showing events at the protests.” Despite Russell’s awareness of officers’ uses of force

, Pettibone alleges , “Russell knowingly failed to order any change in tactics or response to avoid unconstitutional injury to peaceful protest e rs.” Pettibone also allege s that Russell
“i mplemented tactics that included identifying and arresting individual protesters ” and that he directed the arrest of
certain protesters, including Pettibone.

P ettibone brought this action in the District of Oregon against various federal agencies and officers

, including
Russell

. As r elevant to this appeal, the complaint asserted

Bivens claim s against Russell

, alleging that he violated the
Fourth Amendment. Russell moved to dismiss on the ground s that no Bivens remedy is available and that, even if it were, Russell is entitled to qualified immunity. The districtP ETTIBONE V

. R USSELL 9

court rejected both arguments and denied the moti on.

II

In this interlocutory appeal, Russell ’s principal argument
is that no Bivens cause of action is available here. T he first question we must confront is whether we have jurisdiction to consider that argument.

We have appellate jurisdiction over “final decisions of
the district courts

. ” 28 U.S.C. § 1291

. An order denying a
motion to dismiss does not end the litigation, and therefore
it ordinarily is not “final” and is not immediately appealable. Burlington N. & Santa Fe Ry. v. Va ughn , 509 F.3d 1085, 1089 (9th Cir. 2007)

. But there are exceptions to that general
rule. B ecause qualified immunity is “an immunity from suit rather than a mere defense to liability

, ” the denial of a motion
to dismiss is effectively final

— and thus immediately appealable

— when th e motion to dismiss is based on qualified immunity

. Mitchell v. Forsyth , 472 U.S. 511, 526

– 27 (1985) (emphasis omitted) ; see Peck v. Montoya

, 51 F.4th 877, 885 (9th Cir. 2022).

Russell’s motion to dismiss asserted both qualified immunity and the lack of a Bivens cause of action. P ettibone argues that we may consider the Bivens issue only if we have pendent appellate jurisdiction over it

— that is, only if it is

“ ‘inextricably inter twined’ with or ‘necessary to ensure meaningful review of’ decisions over which we have [interlocutory] jurisdiction.” Meredith v. Oregon , 321 F.3d 807, 812 (9th Cir. 2003) (quoting Swint v. Chambers Cnty.

Comm’n , 514 U.S. 35, 51 (1995)) ; see CDK Global LLC v. Brnovich

, 16 F.4th 1266 , 1273

– 74 (9th Cir. 202 1 )

. Pettibone
relies on Wong v. United States

, in which we applied principles of pendent appellate jurisdiction to decline to consider the availability of a Bivens cause of action in an10 P ETTIBONE V

. R USSELL

interlocutory appeal of a denial of qualified immunity . 373 F.3d 952 (9th Cir. 2004). Wong explaine d that the availability of a Bivens remedy is not “ inextricably
intertwined ” with the question of qualified immunity

— and
therefore is not properly before the court in an interlocutory appeal from a denial of qualified immunity

— because

“ [d]eciding th [e] [ Bivens ] question requires the consideration of entirely distinct legal standards from, and its resolution is not a logical predicate to the resolution of, the qualified immunity issue .” Id. at 9 61. Pettibone also
invokes older cases in which we rejected jurisdiction over the Bivens question as “outside the limited scope of th[e] interlocutory appeal” from a denial of qualified immunity.
Pelletier v. Federal Home Loan Bank of S.F. , 968 F.2d 865, 871 (9th Cir. 1992) ; see Todd v. United States

, 849 F.2d 365, 368 (9th Cir. 1988).

All of th o se cases , however, predate d the Supreme
Court’s decision in Wilkie v. Robbins , 551 U.S. 537 (2007).

In Wilkie , the Court considered an interlocutory appeal from a denial of qualified immunity , and it also resolved the
antecedent Bivens issue

. Id. at 548–49. In explaining why there was appellate jurisdiction to decide whether a Bivens cause of action existed, the Court did not apply the pendent appellate jurisdiction test . It did not ask, in other words, whether “(a) [the issues are ] so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue .” Cunningham v. Gates , 229 F.3d 1271, 1285 (9th Cir. 2000) (internal citation omitted)

. Instead, the Court said , without elaboration, that the recognition of the underlying Bivens cause of action was “directly implicated by the defense of qualified immunityP ETTIBONE V

. R USSELL 11

and properly before us on interlocutory appeal.” Wilkie , 551
U.S. at 549 n.4 (quoting Hartman v. Moore , 547 U.S. 250, 257 n.5 (2006) ). Wilki e establishes that, in an interlocutory appeal from a denial of qualified immunity, we necessarily
have jurisdiction to decide whether an underlying Bivens

cause of action exist s.

Our more recent cases have reflected this understanding
of Wilkie

. In Mejia v. Miller , for example, we held that, in an interlocutory appeal from a denial of qualified immunity, we had jurisdiction to decide whether a Bivens remedy was
available because “the existence of the cause of action is an antecedent legal question defining the claim

. . . , and it is directly implicated by the defense of qualified immunity.” 53 F.4th 501, 502 (9th Cir. 2022)

. We reached the same concl usion in Ioane v. Hodges

, where we said that “[b]efore reaching the issue of qualified immunity, the first question we must address is whether [the plaintiff] may bring a Bivens suit.” 939 F.3d 945, 951 (9th Cir. 2018). Earlier, we took the same approach in Ministerio Roca Solida v. McKelvey , 820
F.3d 1090 (9th Cir. 2016)

. We explained that the defendant “filed an interlocutory appeal to challenge the denial of qualified immunity ” and that such a challenge addresses, “ by necessity , the validity of the underlying Bivens cause of
action

. ” Id . at 1093 (emphasis added). In none of those cases
did we mention pendent appellate jurisdiction or apply the

test associated with that doctrine

. To be sure, in Mejia and the other recent cases, we did not expressly address the pre

- Wilkie cases , such as Wong

, Pelletier , and Todd

, that rejected interlocutory jurisdiction
over the Bivens issue

. But the approach we have taken is
inconsistent with that of the earlier cases . We read our more
recent decisions as implicitly recognizing that the earlier cases are “clearly irreconcilable” with Wilkie and are12 P ETTIBONE V

. R USSELL

therefore no longer good law. Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

Since Wilkie

, we have not directly addressed whether the

new rule is that we have jurisdiction to consider the availability of a Bivens cause of action in an interlocutory appeal from a denial of qualified immunity, but e very other
circuit to have consider ed that question has answered it in
the affirmative

. Th ose courts have applied Wilkie to hold that
i n an interlocutory appeal from a denial of qualified immunity

, “ one potential ground of decision is a conclusion
that the plaintiff does not have a legally sound claim for
relief.” Vance v. Rumsfeld

, 701 F.3d 193, 197 (7th Cir. 2012) (en banc); accord Vanderklok v. United States , 868 F.3d 189, 197 (3d Cir. 2017); Tun

- Cos v. Perrotte , 922 F.3d 514, 520 (4th Cir. 2019); Byrd v. Lamb , 990 F.3d 879, 881 (5th Cir. 2021) (per curiam), cert. denied

, 142 S. Ct. 2850 (2022) ; Elhady v. Unidentified CBP Agents , 18 F.4th 880, 884 (6th Cir. 2021), cert. denied sub nom. Elhady v

. Bradley , 143 S. Ct. 301 (2022); Farah v. Weyker , 926 F.3d 492, 497 (8th Cir. 2019); Big Cats of Serenity Springs, Inc. v. Rhodes , 843 F.3d 853, 856 (10th Cir. 2016); Liff v. Office of Inspector Gen. for

U.S. Dep’t of Labor , 881 F.3d 912, 918 (D.C. Cir. 2 018). But cf. Dixon v. von Blanckensee , 994 F.3d 95, 101 n.4 (2d Cir. 2021) ( rejecting the plaintiff’s claim on qualified immunity grounds and declining to determine jurisdiction over the

Bivens question )

. We see no reason to depart from the consensus among the other courts of appeals.

W e conclude that we have appellate jurisdiction to consider Russell’s argument that no Bivens cause of action
exists in this case.

II I

Congress has made a cause of action available to anyP ETTIBONE V

. R USSELL 13

person who has suffered “the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws” at the hands of someone acting under color of state
law . 42 U.S.C. § 1983. B ut it has not created a general cause of action to redress violations of the Constitution by federal
officers. Nevertheless, in three cases decided between 1971 and 1980, the Supreme Court held tha t the Constitution
contains an implied cause of action through which plaintiffs

c an seek damages from federal officers who violate their constitutional rights. First, in Bivens

, the Court held that a plaintiff could seek damages from Federal Bureau of
Narcotics agents who allegedly violated his Fourth Amendment right to be free from unreasonable search es and
seizure s. 403 U.S. at 397. Next, i n Davis v. Passman

, the
Court extended th at remedy to a p laintiff who alleged that her employer, a Member of Congress, had discriminated against her because of her sex , in violation of the D ue P rocess C lause of the Fifth Amendment

. 442 U.S. 228, 230

– 31 (1979)

. Finally, in Carlson v. Green

, the Court held that the estate of a deceased prisoner could seek damages from federal prison officials for violations of the prisoner’s Eight h Amendment right to be free from cruel and unusual punishment. 446 U.S. 14, 16–18 (1980 ).

Although the Supreme Court has not overruled Bivens

, Davis , and Carlson , it has recognized that they are in tension
with “ the Court’s general approach to recognizing implied damages remedies,” and that “ the analysis in the Court ’ s three Bivens cases might have been different if they were decided today.” Ziglar v. Abbasi , 137 S. Ct. 1843, 185 6 (2017). Since 1980, the Court has not recognized any new

Bivens remedy

. To the contrary, “t he Court has made clear that expanding the Bivens remedy is now a ‘disfavored ’ judicial activity ,” id. at 1857 (quoting Ashcroft v. Iqbal , 55614 P ETTIBONE V

. R USSELL

U.S. 662, 675 (2009) ), one that “ places great stress on the separation of powers,” Egbert v. Boule , 142 S. Ct. 1793,

180 6 n.3 (2022) (qu oting Nestle USA, Inc. v. Doe , 141 S. Ct. 1931, 1938 (2021) (plurality opinion)) ; see Hernandez v.

Mesa , 140 S. Ct. 735, 741 (2020) (“[W]hen a court recognizes an implied claim for damages,” it “risks arrogating legislative power.”). Thus, i f “ there is any reason to think that Congress might be better equipped to create a damages remedy” for a constitutional violation, we must refrain from recognizing one

. Egbert , 142 S. Ct. at 1803 (emphasis added).

B efore affording a plaintiff a cause of action under

Bive ns , a court must go through two steps:

First, we ask whether the case presents “a

new Bivens context”— i.e. , is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a
new context, a Bivens remedy is unavailable
if there are “ special factors ” indicating that the Judiciary is at least arguably less equipped than Congress to “ weigh the costs and benefits of allowing a damages action to proceed. ”

Egbert , 142 S. Ct. at 1803 ( internal citation omitted) (quoting Abbasi , 137 S. Ct. at 1858–60). Applying th at test, we hold that the Bivens remedy cannot be extended to the
claims before us because th is case presents a new context, and several factors indicate that we are less equipped than Congress to determine whether a damages action should proceed.P ETTIBONE V

. R USSELL 15

A

Recognizing a Bivens cause of action in this case would require extending Bivens to a new context. In assessing whether a context is “new,” the Supreme Court has
instructed us not to examine Bivens cases in the lower courts

, but only “the three cases in which the [Supreme] Co urt has implied a damages action.” Egbert , 142 S. Ct. at 1803 ; see Loumiet v. United States , 948 F.3d 376, 382 (D.C. Cir. 2020) (“[T]he new

- context analysis may consider only Supreme Court decisions approving Bivens actions.”). T he Court has provided a non

- exhaustive list of “differences that are meaningful enough to make a given context a new one,” including “the rank of the officers involved;

. . . the generality or specificity of the official action;

. . . the
statutory or other legal mandate under which the officer was operating; [and] the risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Ab basi

, 137 S. Ct. at 1859–60.

This case differs from Bivens

— the only Supreme Court case recognizing an implied damages remedy for Fourth
Amendment violations

— along all of th o se dimensions. In

Bivens , the defendants were agents of the Federal Bureau of Narcotics who, without a warrant, “ entered [ Bivens’s ]
apartment [,]

. . . manacled [him] in front of his wife and children, and threatened to arrest the entire family” before “search[ing] the apartment from stem to stern.” 403 U.S. at 389. Russell, a high

- level supervisor , was of a different rank than the agents in Biv ens

. 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

, who personally seized Bivens and searched his apartment. The legal mandate under which Russell acted differed from that of the agents in Bivens in16 P ETTIBONE V

. R USSELL

that Russell , a n officer of the Federal Protective Service

, was directing a multi

- agency operation to protect federal
property and was carrying out an executive ord er . 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” than was present in Bivens

. Abbasi , 137 S. Ct. at 1860. Th o se differences are more than
sufficient to make this a new Bivens context. See id. at 1864–
6 5 (explaining that “ the new

- context inquiry is easily
satisfied ” and that “even a modest extension is still an
extension” ).

In reaching a contrary conclusion, the district court

r ecognized that Russell is of a higher rank than the agents in

Bivens and that , unlike those agents, he i s accused of having ordered or acquiesced in the unconstitutional conduct of his
subordinates , rather than carrying it out himself

. But t he
district court believed that those facts did not make this
context new because Carlson established that a supervisory official could potentially be liable for a failure of oversight.

S

ee Carlson , 446 U.S. at 16 n.1; Green v. Carlson , 581 F.2d 669, 671 (7th Cir. 1978)

, aff’d

, 446 U.S. 14 (1980). Carlson

, of course

, was different from this case because it involved prison officials and a claim of cruel and unusual punishment under the Eighth Amendment. 446 U.S. at 17. This case is
like neither Bivens nor Carlson , and we are not convinced that a plaintiff can defeat a finding that a case presents a new context by showing that each of its facts, taken separately,
resembles facts found in different Bivens precedents. But
even if such a mix

- and

- match analysis were pe rmissible, we would still hold that this case presents a new context. Russell and the supervisory medical officer in Carlson w ere acting
under different mandate s , and allowing t he officer inP ETTIBONE V

. R USSELL 17

Carlson to be held liable did not present the same “risk of disruptive intrusion” into the functioning of the E xecutive

B ranch because that officer was not implementing an
executive order. See Abbasi , 137 S. Ct. at 1860. Th o se differences alone are sufficient to make this a new Bivens

context.

B

“ If there is even a single ‘reason to pause before applying

Bivens in a new context,’ a court may not recognize a Bivens remedy.” Egbert

, 142 S. Ct. at 1803 (quoting Hernandez

, 140 S. Ct. at 743). Here, at least two independent reasons counsel in favor of withholding a Bivens remedy

. First, t he “ risk of disruptive intrusion by the Judiciary into the functioning of other branches” counsels hesitation
in this case

. Abbasi , 137 S. Ct. at 1860. Russell was overseeing an operation t hat was carrying out an executive
order. In other words, he was impleme nting a high

- level executive policy in the context of an evolving situation

. Allowing a Bivens action to proceed in this case could

expose sensitive communication s between Russell and other high- level executive of ficers regarding the implementation
of th at policy. See id.

The district court saw this issue differently . In its view,
the case “focuses on Defendant Russell’s personal involvement and direct causal connection to the alleged
constitutional violations while he was in Portland ,” not on

“ purported high level policy decision s or communications
with then

- President Trump.” But Russell’s “personal
involvement” in the alleged violations consisted of his
exercise of broad control over a multi

- agency operation
carried out to protect federal property as directed by an executive order. His decisions in that role cannot be18 P ETTIBONE V

. R USSELL

disentangled from how he was interpreting and implementing policy developed by his superiors at the higher
levels of the Executive Branch.

Second , “[i]f there are alternative remedial structures in place, ‘that alone,’ like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a

new B ivens cause of action.’” Egbert , 142 S. Ct. at 1804 (quoting Abassi , 137 S. Ct. at 1858). Here, Congress has
afforded p laintiffs like Pettibone an alternative remedy “that independently foreclose[s] a Bivens action.” Id. at 1806. Aggrieved parties can report any alleged misconduct to the Inspector General of the Department of Homeland Security

, who must either investigate or refer the matter to the Officer for Civil Rights and Civil Libe rties. 5 U.S.C. app. 3 § 8I(f)(2)(B)

– (C), (F)

– (G) ; s ee also 6 U.S.C. § 345(a) (1)

, (4), (6) (requiring Officer for Civil Rights and Civil Liberties

to investigate alleged misconduct ). Pettibone argues that this remedy is insufficient because it serves only an
“information

- gathering” function

. But the Department can take corrective action against employees in response to the Inspector General’s reports

, 5 U.S.C. app. 3 § 8I(f)(2)( H) (ii ).
Th e grievance procedure is thus comparable to t he remedy
deemed adequate in Egbert . There, the Court held that a regulation requiring an agency to investigate alleged
misconduct offered an adequate alternative to Bivens

, even though the complainant was “ not entitled to participate and
ha [d] no right to judicial review of an adverse
determination ”— and even though, as here, the remedial scheme did not provide monetary relief. Egbert

, 142 S. Ct.

at 1806. The grievance procedure available in this case offers
a similar right to an investigation, and a similar possibility
of corrective action . J ust as the availability of such a grievance procedure precluded a Bivens action in Egbert , soP ETTIBONE V

. R USSELL 19

too does it preclude a Bivens action in this case

. See id. at
1806–07.

Because P ettibone ha s no cause of action under Bivens

, we need not consider whether Russell would be entitled to qualified immunity.

REVERSED.