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FILED
JUN 23 2016
MOLLY C. DWYER, CLERK
No. 14-15284
D.C. No. 2:12-cv-02659-DGC
MEMORANDUM*
Plaintiffs - Appellants,
v.
WILLIAM NEWELL; JANE DOE
NEWELL; GEORGE GILLETT; JANE
DOE GILLETT; DAVID VOTH; JANE
DOE VOTH; HOPE MACALLISTER;
JOHN DOE MACALLISTER; TONYA
ENGLISH; JOHN DOE ENGLISH;
WILLIAM MCMAHON; JANE DOE
MCMAHON; EMORY THOMAS
HURLEY; JANE DOE HURLEY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted March 17, 2016
San Francisco, California
*
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Bivens remedy is a subject of judgment: the federal courts must make the kind of
remedial determination that is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors counselling hesitation before
authorizing a new kind of federal litigation. Id. (quoting Bush, 462 U.S. at 378).
3. The district court concluded that, taken together, the benefits provided to
the Terrys under the Federal Employees Retirement System, 5 U.S.C. 8401, et
seq., the Federal Employees Compensation Act, 5 U.S.C. 8101, et seq., and the
Public Safety Officer Benefits Act, 42 U.S.C. 3796, constitute a convincing reason
not to authorize a Bivens remedy.
4. These statutes ensure benefits to survivors of federal law enforcement
officers regardless of wrongdoing by others. Because they neither provide a forum
for adjudicating allegations of official wrongdoing nor deter unconstitutional
conduct, the Terrys contend that the statutes do not amount to a convincing reason
for the courts to decline to recognize a Bivens action. But, even assuming the
district court erred in finding to the contrary, we nonetheless decline to authorize a
Bivens remedy for the Terrys claim.
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personnel policy, Bush, 462 U.S. at 380-81 (internal quotation marks omitted).
Congress is in a far better position than a court to evaluate the impact of a new
species of litigation against those who act on the publics behalf. Wilkie, 551 U.S.
at 562 (quoting Bush, 462 U.S. at 389); see also Farkas v. Williams, --- F.3d ---,
2016 WL 2994810, at *2-3 (9th Cir. 2016) (Even inadequate statutory remedies
counsel against recognizing a Bivens claim if there are indications that congressional
inaction has not been inadvertent.).
5. These warnings against the expansion of Bivens liability have particular
force here, where the claim is that a federal law enforcement officerwhose job
already subjected him to considerable dangerwas placed in even greater danger
by the actions and omissions of other federal law enforcement personnel. Cf.
Chappell v. Wallace, 462 U.S. 296, 304 (1983) (declining to authorize a Bivens
remedy for military personnel against their superior officers).
Although all
acknowledge that the Operation was disastrous and we assume for todays purposes
that it was ill-conceived, adjudication of such claims would necessarily embroil the
courts in policy determinations beyond their institutional capacity and role. The
availability of Bivens liability against law enforcement officials when an operation
proves improvident or poses unnecessary danger to other law enforcement officials
could deter development of effective law enforcement strategies, and would expose
federal agencies to significant financial burdens. See FDIC v. Meyer, 510 U.S. 471,
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486 (1994) (noting the potentially enormous financial burden of agency liability
as a special factor counselling hesitation in creation of a Bivens remedy). Insofar
as the Terrys seek a public forum in which to assert the irresponsibility of the
Officials actions, we sympathize. But under step two of the analysis required by
Wilkie, we are constrained to conclude that a Bivens action is not available for them
to do so.
AFFIRMED.
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This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
B.
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
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(2)
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
(3)
Statement of Counsel
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
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The Bill of Costs must be filed within 14 days after entry of judgment.
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
v.
The Clerk is requested to tax the following costs against:
Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1
REQUESTED
(Each Column Must Be Completed)
No. of
Docs.
Pages per
Doc.
TOTAL
COST
Cost per
Page*
ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.
Cost per
Page*
Pages per
Doc.
TOTAL
COST
Excerpt of Record
Opening Brief
Answering Brief
Reply Brief
Other**
TOTAL: $
TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page
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Form 10. Bill of Costs - Continued
I,
, swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
, Deputy Clerk