United States v. 2020-09-01 | 18-56307 | CHRISTOPHER HOBBS V. RANDALL DEVINE | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER HOBBS,

Plaintiff-Appellant,

v.

RANDALL DEVINE; UNITED STATES
OF AMERICA,

Defendants-Appellees.

No. 18-56307

D.C. No.
2:18-cv-00480-PSG-E

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted July 7, 2020
Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and ZOUHARY,
**
District Judge.

Plaintiff Christopher Hobbs (“Hobbs”) appeals the district court’s dismissal
of his action against FBI Special Agent Randall Devine (“Devine”). Hobbs sued
Devine under Bivens v. Six Unknown Named Agents of the Federal Bureau of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED

SEP 1 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Narcotics, 403 U.S. 388 (1971), for violating his rights under the Fourth and
Fourteenth Amendments.
We have jurisdiction under 28 U.S.C § 1291 and review de novo the district
court’s grant of a motion to dismiss for failure to state a claim. See Metzler Inv. v.
GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). In
reviewing the sufficiency of the complaint, we must determine whether the non-
conclusory factual allegations—accepted as true—“state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
1. In the absence of statutory remedies, Bivens permits damages suits against
federal officials who violate the Constitution. Ziglar v. Abbasi, 137 S. Ct. 1843,
1854 (2017). The Supreme Court has adopted a demanding two-part test for
recognizing Bivens claims. First, we must ask whether the complaint’s allegations
present a “new context” as compared to claims previously recognized by the
Supreme Court. Id. at 1859-60. If the complaint presents a new context, we must
then ask whether any “special factors counsel[] hesitation” before holding the
federal defendants liable for their misconduct. Id. at 1857 (quoting Carlson v.
Green, 446 U.S. 14, 18 (1980)).
The Supreme Court’s recent decision in Hernandez v. Mesa is dispositive of
Hobbs’s Bivens claim. 140 S. Ct. 735 (2020). In Hernandez, the Court was

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presented with the question of whether a Bivens remedy existed where a federal
agent, who was on U.S. soil, shot and killed a child standing on the Mexican side
of the U.S.-Mexico border. Id. at 740. The Court declined to extend Bivens to this
context.
The Court held that the cross-border shooting presented a new context and
that special factors counselled hesitation in extending Bivens to provide a damages
remedy. The Court reasoned that Hernandez’s claim presented a new context,
distinguishing it from the purely-domestic conduct at issue in Bivens. Id. at
743-44. And the transnational nature of the killing presented special factors
counselling hesitation in extending a remedy to the Hernandez plaintiffs. Id. at
744-49 (holding that potential effects on foreign relations and national security
“raise[d] warning flags”).
As in Hernandez, “it is glaringly obvious that [Hobbs’s] claims involve a
new context.” Id. at 744. And the same extraterritorial concerns that foreclosed a
Bivens claim in Hernandez apply here with greater force. Unlike in Hernandez, all
of the critical events that provide the basis for Hobbs’s constitutional claims
occurred in Thailand. To recognize a malicious-prosecution suit in this context
would touch upon relations between the Thai and American governments, given
that Hobbs was arrested and prosecuted by the Royal Thai Police. Hobbs stresses
that Devine—not Thai authorities—orchestrated the wrongful accusation, but that

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argument does not undermine the strong presumption against interfering in the
Executive Branch’s relations with foreign countries. These same concerns also
apply to Hobbs’s Fourth Amendment false-arrest claim. The district court did not
err in dismissing Hobbs’s complaint.
2. Hobbs also appeals the district court’s denial of his motion for leave to
file an amended complaint. He argues the amended complaint would clarify that
Devine never directly commanded Thai authorities to arrest him; rather, Devine
manipulated the unwitting Thai police into charging him. Hobbs asserts this
clarification could alter the special-factors analysis.
But even if an amended complaint clarified that Devine was the sole bad
actor, this lawsuit would still implicate U.S.-Thai relations. As the government
points out, Devine’s defense would likely argue that the Royal Thai Police were
responsible for the wrongful arrest and prosecution of Hobbs. Thus, the proposed
amended complaint would not sidestep the foreign-affairs concerns. For this
reason, “it is clear that the complaint could not be saved by any amendment.”
Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citation omitted). The
district court did not err in so holding.
AFFIRMED.