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 Oregon nonprofit 

corporation, 

Plaintiffs,

 v. 

GABRIEL RUSSELL, in his 

individual and official capacity, 

Defendant-Appellant,

and 

No. 22-35183 

D.C. No. 3:20-cv01464-YY 

OPINION
2 PETTIBONE V. RUSSELL

JOSEPH R. BIDEN; CHAD F. 

WOLF; U.S. DEPARTMENT OF 

HOMELAND SECURITY; UNITED 

STATES MARSHALL SERVICE; 

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 Miller
PETTIBONE V. RUSSELL 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 PETTIBONE V. RUSSELL

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 

Bivensin that 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 disruptive 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 Eighth 

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. 
PETTIBONE V. RUSSELL 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 

Defendants-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 PlaintiffsAppellees.
6 PETTIBONE V. RUSSELL

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 arrested 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). The 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 an 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]narchists and left-wing extremists [who] have sought to 

advance a fringe ideology that paints the United States of 
PETTIBONE V. RUSSELL 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 Fed. Reg. 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.

Pettibone alleges 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 balls, 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 

required 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 directed 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 PETTIBONE V. RUSSELL

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 

protests.” 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, Pettibone alleges 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 protesters.” Pettibone also alleges that Russell 

“implemented tactics that included identifying and arresting 

individual protesters” and that he directed the arrest of 

certain protesters, including Pettibone.

Pettibone brought this action in the District of Oregon 

against various federal agencies and officers, including 

Russell. As relevant to this appeal, the complaint asserted

Bivens claims against Russell, alleging that he violated the 

Fourth Amendment. Russell moved to dismiss on the 

grounds that no Bivens remedy is available and that, even if 

it were, Russell is entitled to qualified immunity. The district 
PETTIBONE V. RUSSELL 9

court rejected both arguments and denied the motion. 

II

In this interlocutory appeal, Russell’s principal argument 

is that no Bivens cause of action is available here. The 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. Vaughn, 509 F.3d 1085, 

1089 (9th Cir. 2007). But there are exceptions to that general 

rule. Because 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 the 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. Pettibone

argues that we may consider the Bivens issue only if we have

pendent appellate jurisdiction over it—that is, only if it is 

“‘inextricably intertwined’ 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. 2021). 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 an 
10 PETTIBONE V. RUSSELL

interlocutory appeal of a denial of qualified immunity. 373 

F.3d 952 (9th Cir. 2004). Wong explained 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 961. 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 those cases, however, predated 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 immunity 
PETTIBONE V. RUSSELL 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)). Wilkie 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 exists.

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

conclusion 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 are 
12 PETTIBONE V. RUSSELL

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 every other

circuit to have considered that question has answered it in

the affirmative. Those courts have applied Wilkie to hold that

in 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. 2018). 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.

We conclude that we have appellate jurisdiction to

consider Russell’s argument that no Bivens cause of action

exists in this case.

III

Congress has made a cause of action available to any 
PETTIBONE V. RUSSELL 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. But 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 that the Constitution 

contains an implied cause of action through which plaintiffs 

can 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 searches and 

seizures. 403 U.S. at 397. Next, in Davis v. Passman, the 

Court extended that remedy to a plaintiff who alleged that 

her employer, a Member of Congress, had discriminated 

against her because of her sex, in violation of the Due 

Process Clause 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 Eighth 

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, 1856 

(2017). Since 1980, the Court has not recognized any new 

Bivens remedy. To the contrary, “the Court has made clear 

that expanding the Bivens remedy is now a ‘disfavored’ 

judicial activity,” id. at 1857 (quoting Ashcroft v. Iqbal, 556 
14 PETTIBONE V. RUSSELL

U.S. 662, 675 (2009)), one that “places great stress on the 

separation of powers,” Egbert v. Boule, 142 S. Ct. 1793, 

1806 n.3 (2022) (quoting 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, if “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).

Before affording a plaintiff a cause of action under 

Bivens, 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 that test, 

we hold that the Bivens remedy cannot be extended to the 

claims before us because this case presents a new context, 

and several factors indicate that we are less equipped than 

Congress to determine whether a damages action should 

proceed.
PETTIBONE V. RUSSELL 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] Court 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.”). The 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.” Abbasi, 

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 those 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 Bivens. 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 in 
16 PETTIBONE V. RUSSELL

that Russell, an officer of the Federal Protective Service, 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 disruptive intrusion by the Judiciary into the 

functioning of other branches” than was present in Bivens. 

Abbasi, 137 S. Ct. at 1860. Those differences are more than 

sufficient to make this a new Bivens context. See id. at 1864–

65 (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 

recognized that Russell is of a higher rank than the agents in 

Bivens and that, unlike those agents, he is accused of having 

ordered or acquiesced in the unconstitutional conduct of his 

subordinates, rather than carrying it out himself. But the 

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.

See 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 permissible, we 

would still hold that this case presents a new context. Russell 

and the supervisory medical officer in Carlson were acting 

under different mandates, and allowing the officer in 
PETTIBONE V. RUSSELL 17

Carlson to be held liable did not present the same “risk of 

disruptive intrusion” into the functioning of the Executive 

Branch because that officer was not implementing an 

executive order. See Abbasi, 137 S. Ct. at 1860. Those 

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, the “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 that was carrying out an executive 

order. In other words, he was implementing a high-level 

executive policy in the context of an evolving situation. 

Allowing a Bivens action to proceed in this case could 

expose sensitive communications between Russell and other 

high-level executive officers regarding the implementation 

of that 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 decisions 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 be 
18 PETTIBONE V. RUSSELL

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 Bivens cause of action.’” Egbert, 142 S. Ct. at 1804 

(quoting Abassi, 137 S. Ct. at 1858). Here, Congress has 

afforded plaintiffs 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 Liberties. 5 U.S.C. app. 3 

§ 8I(f)(2)(B)–(C), (F)–(G); see 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). 

The grievance procedure is thus comparable to the 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. Just as the availability of such a 

grievance procedure precluded a Bivens action in Egbert, so 
PETTIBONE V. RUSSELL 19

too does it preclude a Bivens action in this case. See id. at 

1806–07. 

Because Pettibone has no cause of action under Bivens, 

we need not consider whether Russell would be entitled to 

qualified immunity. 

REVERSED.