Pettibone et al. v. Russell

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.” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022).

Pettibone and other participants of the 2020 riots in Portland, brought suit against Russell, Director of the Federal Protective Service's Northwest Region and other agencies and offices asserting, inter alia, a Bivens claim against Russell. Russell's motion to dismiss was denied. Russell appealed the denial of his motion and argued no 4^thAmendment cause of action under Bivens was available. Under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), “[f]irst, 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,… a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is… less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022). The Court held a Bivens action cannot be extended to Pettibone’s claims because the case presented a new context, and several factors indicated the Judiciary is less equipped than Congress. The Court found that because Russel was mandated through an executive order, Pettibone’s claims presented a new Bivens context. Second, Pettibone could seek an alternative remedy through the Inspector General of the Department of Homeland Security. REVERSED.