Keeping Tabs on the Ninth Circuit
February 03, 2023 - This Week at the Ninth

This Week At The Ninth: Bivens and Montana Insurance Law

Flooded House

This week, the Court addresses the availability of a Bivens cause of action against federal officials and certifies two insurance law questions to the Montana Supreme Court.

The Court holds that a Bivens cause of action is not available for protestors alleging that a federal agent ordered or acquiesced in subordinates’ unlawful arrests and uses of excessive force.

The panel: Judges McKeown, Miller, and Mendoza, with Judge Miller writing the opinion.

Key highlight: “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 . . . the Court has made clear that expanding the Bivens remedy is now a disfavored judicial activity, one that places great stress on the separation of powers. 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.” (Internal quotation marks and citations omitted.)

Background: The summer of 2020 saw a wave of protests across the United States in response to the murder of George Floyd. The former President issued an executive order attributing these protests to “[a]narchists and left-wing extremists [who] have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation.” The order directed the deployment of personnel to protect federal monuments, memorials, statues, and property. Over 100 officers from federal agencies were deployed to Portland, Oregon; those officers were overseen by defendant Gabriel Russell. 

Several individuals who protested in Portland, including Mark Pettibone, allege that those officers arrested protesters “without any lawful basis” and “used violent tactics on lawful protesters,” including shooting them with impact munitions and pepper balls; spraying them with pepper spray and tear gas; and beating them with batons. Pettibone alleges that these tactics were excessive given the officers’ limited mission of protecting property and reflected a policy “designed to retaliate against and to deter the protesters because of their views and beliefs.”

Pettibone brought a Fourth Amendment claim against Russell, alleging that he “knowingly failed to order any change in tactics or response to avoid unconstitutional injury to peaceful protesters.” Although Russell did not carry out any arrests or use of force personally, Pettibone alleges that he knew or should have known that officers were causing arrests and using excessive force. Russell moved to dismiss, arguing that no cause of action was available to Pettibone under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and that he was entitled to qualified immunity. The district court denied the motion.

Result: The Ninth Circuit reversed, holding that Pettibone had no cause of action under Bivens.

First, the Court determined it had jurisdiction over the interlocutory appeal. Although the denial of a motion to dismiss is ordinarily not appealable because it does not end the litigation, a denial of a motion to dismiss that is based on qualified immunity is appealable, because qualified immunity represents “immunity from suit rather than a mere defense to liability.” The Court then considered whether it also had jurisdiction over the Bivens issue. It answered that question in the affirmative by relying on Wilkie v. Robbins, 551 U.S. 537 (2007), in which the Supreme Court considered an appeal from a denial of qualified immunity and also resolved an antecedent Bivens issue. As Ninth Circuit cases applying Wilkie have since explained, “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.” Mejia v. Miller, 53 F.4th 501, 502 (9th Cir. 2022). 

The Court then held that Pettibone had no Bivens cause of action to sue Russell. In Bivens, 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. But the Supreme Court has since recognized a Bivens remedy only three times—including in Bivens itself. The Court has made clear that expanding Bivens is disfavored because recognizing an implied claim for damages against federal officers “places great stress on the separation of powers.” Egbert v. Boule, 142 S. Ct. 1793, 1806 n.3 (2022). Accordingly, before recognizing a cause of action under Bivens, a court must take two steps. First, it must ask whether the claim presents a “new context”—that is, whether it is meaningfully different from the three cases in which the Supreme Court has recognized a Bivens action. If a claim does present a new context, a Bivens remedy is unavailable if any “special factors” indicate that courts are less equipped than Congress to decide whether a damages cause of action is appropriate.

The Court determined that this case presents a new context because several of its facts meaningfully differ from those of Bivens, the only Supreme Court case recognizing a damages remedy for Fourth Amendment violations. Among other things, Russell is of a different rank than were the agents in Bivens; his actions took place at a higher level of generality than those of the agents in Bivens; and the mandate under which Russell acted differed from that of the agents in Bivens.

The Court then determined that two special factors counseled against a Bivens remedy. First, because Russell was implementing a high-level executive policy, allowing a Bivens remedy would risk “disruptive intrusion by the Judiciary into the functioning of other branches,” which the Supreme Court has warned against in this context. Second, the existence of an “alternative remedial structure” foreclosed a Bivens remedy. Aggrieved protestors could report misconduct to the Inspector General of the Department of Homeland Security, who must either investigate or refer the matter to another federal officer. The Court found this procedure comparable to procedures that have been deemed to foreclose Bivens remedies in other cases.

The Court certifies to the Montana Supreme Court two questions regarding whether and when an insurance policy’s anti-concurrent cause clause can circumvent application of the efficient proximate cause doctrine.

The panel: Judges Paez, Bade and Gilliam [N.D. Cal.].

Key highlight: “In interpreting the law of states with an [efficient proximate cause] doctrine, some courts have found that parties are free to contract around its application. But other courts have held that parties may not do so. Relatedly, in some instances, these courts seem to suggest that exclusionary language similar to the wording in the Policy does not preclude application of the [efficient proximate cause] doctrine. The Montana courts have not addressed these two issues.” (Internal citations omitted.)

Background: Virginia Ward purchased a Landlord Protection Policy from Safeco Insurance Company to insure her rental property in Montana. The policy included an “anti-concurrent cause” clause that excluded coverage for certain perils “regardless of any other cause or event contributing concurrently or in any sequence to the loss.” Ward’s rental property was damaged when a water main line broke. Safeco denied coverage, citing its Earth Movement and Water Damage exclusions, which were both listed as excluded perils in the policy’s anti-concurrent cause clause.

Result: The Ninth Circuit certified two questions to the Montana Supreme Court: (1) “Whether an anti-concurrent cause . . clause in an insurance policy applies to defeat insurance coverage despite Montana’s recognition of the efficient proximate cause . . . doctrine; and (2) Whether the relevant language [in Safeco’s policy] is an [anti-concurrent cause] clause that circumvents the application of the [efficient proximate cause] doctrine.”

Montana’s efficient proximate cause doctrine provides that when a covered and a noncovered peril both contribute to a loss, “the peril that set in motion the chain of events leading to the loss or the predominating cause is deemed the efficient proximate cause or legal cause of loss.” Kaul v. State Farm Mut. Auto Ins. Co., 403 Mont. 387, 399 (2021) (McKinnon, J., dissenting) (internal quotation marks omitted). Safeco argued that the anti-concurrent cause clause in its policy overrode the efficient proximate cause doctrine. In its view, the clause barred coverage if an excluded peril contributed to the loss to any extent, even if a covered peril was the efficient proximate cause of the loss.

The Montana Supreme Court has recognized that parties to an insurance contract can agree to any exclusions that are not statutorily prohibited. But courts interpreting the law of states that recognize the efficient proximate cause doctrine are divided as to whether an insurance policy can contract around the doctrine’s application. And some courts have held that language similar to the anti-concurrent cause clause in Safeco’s policy was inadequate to defeat application of the efficient proximate cause doctrine. The Montana Supreme Court has not addressed either issue. Because these questions were “recurring issues of law that implicate important public policy concerns” and were “determinative of a key issue in the . . . appeal,” the Court found certification to the Montana Supreme Court appropriate.