United States Court of Appeals For the First Circuit

No. 22-1307

DARWIN QUINONES-PIMENTEL; VICTOR VEGA-ENCARNACION; NAICOM CORPORATION; NAICOM DATA CENTER; ARTIST DESIGNS & MANAGEMENT CORPORATION; KIARAS, LLC,

Plaintiffs, Appellants,

v.

NICHOLAS W. CANNON, in his personal and individual capacity as Assistant United States Attorney for the District of Puerto Rico; DOUGLAS A. LEFF, in his personal and individual capacity as former FBI Special Agent in charge of San Juan Division; BRAD REX; LANCE LANGE; KEVIN PEARSON; ANDREW BAKER; CHRIS KUHN; CELIA MAHLER; CLAY REHRIG; NOAH EAMES; JUSTIN TURNER; MARK ETHERIDGE; CLINT NAFAY; JUAN GALARZA; JASON LOPEZ; UNITED STATES; EMILY RINKEL; JORDAN SMITH; KEVIN GEDEON; BERT EICHHORN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. John A. Woodcock, Jr.,* U.S. District Judge]

Before

Barron, Chief Judge, Selya and Thompson, Circuit Judges.

Rafael F. Castro Lang for appellants. Daniel Aguilar, Appellate Staff Attorney, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, W. Stephen

* Of the District of Maine, sitting by designation. Muldrow, United States Attorney, and Mark B. Stern, Appellate Staff Attorney, Civil Division, United States Department of Justice, were on brief, for appellees Nicholas W. Cannon, Douglas A. Leff, Brad Rex, Lance Lange, Kevin Pearson, Andrew Baker, Chris Kuhn, Celia Mahler, Clay Rehrig, Noah Eames, Justin Turner, Mark Etheridge, Clint Nafay, Juan Galarza, Jason Lopez, and United States of America. Kronsky K. Sherer, with whom Chad M. Hagan, Hagan Noll & Boyle, LLC, Jose L. Ramirez-Coll, and Antonetti Montalvo & Ramirez-Coll were on brief, for appellees Emily Rinkel, Jordan Smith, Kevin Gedeon, and Bert Eichhorn.

October 27, 2023 THOMPSON, Circuit Judge. After being subjected to

alleged unconstitutional searches and seizures, Appellants filed

suit seeking money damages pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics,

(1971).1

Disagreeing with Appellants' take on the matter, Appellees filed

motions to dismiss, which the district court granted. Appellants,

unhappy with the district court's decision, brought the case to

us. Having carefully considered all arguments, we affirm, albeit

on narrower reasoning than the district court.

I.

To begin, we turn to the factual2 and procedural

background (appropriately abbreviated) for context.

Appellants here include (among others) Naicom

Corporation ("Naicom"), a network and internet communication

platform, and its co-founders, Darwin Quinones-Pimentel

("Quinones") and Victor Vega-Encarnacion ("Vega"). Appellees, on

the other hand, include an Assistant United States Attorney

("AUSA") for the District of Puerto Rico (and several other

1We will explain in greater detail below but, for now, we note that a Bivens claim is an implied cause of action against federal actors for constitutional violations. Hernandez-Cuevas v. Taylor,

, 93 n.1 (1st Cir. 2013). 2As this is an appeal from grants of motions to dismiss, we accept as true the complaint's well-pleaded facts and draw all reasonable inferences in Appellants' favor. Fothergill v. United States,

(1st Cir. 2009).

- 3 - unidentified AUSAs), Special Agents and employees of the Federal

Bureau of Investigation ("FBI"), and private parties employed by

companies Dish Network and NagraStar (alleged Naicom competitors).3

Believing that Naicom was a threat to their business,

the Dish and NagraStar Appellees investigated Naicom for piracy.

Despite not finding any evidence to support their investigation,

the Dish and NagraStar Appellees complained to the FBI Appellees,

alleging that Naicom was running a pirate operation. According to

Appellants, the Dish and NagraStar Appellees did so to secure their

own participation in the execution of search warrants of Naicom's

offices and Data Center and, while performing said searches, get

access to Naicom's confidential intellectual property and trade

secrets.

Starting in September 2017, the Dish and NagraStar

Appellees worked with the FBI Appellees during the FBI's criminal

investigation of Naicom. This investigation culminated in the

AUSA and FBI Appellees securing two search warrants: one for

Naicom Corporation, located at 701 Ponce de Leon, Suite 208, and

one for Naicom's Data Center, located at 4SS N2 Via Josefina.

3 Up to this point and moving forward, our use of "Appellants" and "Appellees" refers to all Appellants and Appellees, respectively. Where our opinion needs to specify a particular Appellee or Appellees for clarity, we identify them as "AUSA Appellee," "FBI Appellees," and "Dish and NagraStar Appellees."

- 4 - Appellants say that these warrants were procured based upon

knowingly false and perjured statements.

On August 27, 2019, the FBI, Dish, and NagraStar

Appellees searched Suite 208 and seized documents, two hard drives,

two USB drives, one cell phone, and one tablet, all containing

business trade secrets and intellectual property information.

During that search, the same Appellees searched Suite 207, which

was the headquarters of Vega's other business, Artist Designs &

Management Corporation (also an Appellant here), despite being

informed by a Naicom staff member that Suite 207 belonged to an

independent business and was not included in the search warrant.

In Appellants' view, this search was beyond the scope of the

warrant and, therefore, warrantless.

That same day, several of the FBI, Dish, and NagraStar

Appellees also searched Naicom's Data Center. Present at the time

of the search was Quinones, who witnessed the FBI Appellees allow

the Dish and NagraStar Appellees to access and search Naicom's

computers, servers, and hardware and to take photographs. For his

part, Quinones asked for a chance to demonstrate that Naicom was

a legitimate business. Finding no evidence of criminal activity,

the AUSA and FBI Appellees instructed Quinones and Vega to report

to the San Juan FBI offices for an interview. There, Quinones and

Vega answered the FBI, Dish, and NagraStar Appellees' questions

- 5 - and eventually asked to end the interview due to the Dish and

NagraStar Appellees' questioning regarding Naicom's technology.

Two days later on August 29, 2019, the FBI, Dish, and

NagraStar Appellees took a second bite at the apple and searched

(purportedly under the original warrant) Naicom's Data Center once

more. As during the first search of Naicom's Data Center, Quinones

again observed the Dish and NagraStar Appellees accessing Naicom's

computers, servers, and hardware. In Appellants' view, this search

was also beyond the scope of the search warrant, because any

probable cause had dissipated after not finding any evidence of

criminal activity during their search two days prior, and for that

reason, the search was warrantless.

Wanting their property returned, Appellants filed a

motion to that effect under Federal Rule of Criminal Procedure

41(g), arguing that the searches and seizures violated their Fourth

Amendment rights. Without conceding any constitutional violation,

the United States government filed a non-opposition response, and

the seized property was returned.

Appellants now claim three Bivens causes of action for

money damages related to the searches and seizures. In Count One,

they say that Appellees conspired with each other to use false

evidence and statements in support of the affidavit used to acquire

the search warrants -- all in violation of Franks v. Delaware, 438

- 6 - U.S. 154 (1978).4 Count Two says that Appellees' search of Suite

207, the site of Vega's Artist Designs & Management Corporation,

exceeded the scope of the Naicom Corporation search warrant because

Suite 207 belonged to a separate business and was not included in

the search warrant, whereas Count Three says that Appellees' second

search of Naicom's Data Center exceeded the scope of the Data

Center search warrant because it had been searched two days prior.

The district court dismissed Appellants' complaint,

concluding that their claims arose within a new context of Bivens,

and special factors at issue counseled against extending relief to

Appellants' claims (more on this later). This timely appeal

followed.

II.

Appellants' appeal hinges upon whether the district

court correctly applied Bivens and its progeny to the claims at

issue here, which we review de novo. González v. Vélez,

(1st Cir. 2017). Before getting to our assessment, we take

a deep dive into the Bivens landscape.

A.

Our Constitution does not expressly provide for money

damages for constitutional wrongs. In re Fin. Oversight & Mgmt.

4 Franks held that the use of false statements, made knowingly and intentionally or with reckless disregard to the truth, that are necessary to the finding of probable cause in a search warrant is a violation of the Fourth Amendment. 438 U.S. at 171–72.

- 7 - Bd.,

, 44–45 (1st Cir. 2022). A federal statute enacted

by Congress in 1871, nevertheless, does provide for money damages

against state actors who violate the Constitution. See

. Congress, however, has never enacted a similar statute

against federal actors. Ziglar v. Abbasi,

(2017).

Bivens then entered the scene in 1971. There, "federal

agents . . . allegedly manacled the plaintiff and threatened his

family while arresting him for narcotics violations." Egbert v.

Boule,

(2022) (citing Bivens,

). The Supreme Court "held that a Fourth Amendment violation

by federal agents, acting under color of governmental authority,

gave rise to [an implied] cause of action for money damages against

those agents in their individual capacities." González,

(citing Bivens,

).

In this same vein, the Supreme Court expanded Bivens to

two more contexts. First up was Davis v. Passman,

,

229–31, 248–49 (1979), where the Supreme Court allowed a damages

action pursuant to the Fifth Amendment's Equal Protection Clause

against a Congressperson for sex discrimination towards a member

of their staff. Second was Carlson v. Green,

, 20–

23 (1980), where the Supreme Court extended Bivens to include an

Eighth Amendment violation in which federal prison officials

- 8 - failed to provide adequate medical treatment for a prisoner's

asthma, resulting in his death.

Since these cases were decided, however, the Supreme

Court has charted a significantly different path, consistently

refusing "to extend the Bivens doctrine to new settings."

González,

; see Hernández v. Mesa,

(2020) (gathering Supreme Court cases declining to extend

Bivens). This hesitance stems from the Supreme Court's recognition

that "it is a significant step under separation-of-powers

principles for a court to determine that it [as opposed to

Congress] has the authority, under the judicial power, to create

and enforce a cause of action for damages against federal officials

in order to remedy a constitutional violation." Abbasi,

. Indeed, in a recent trio of cases, the Supreme Court

observed "that expanding the Bivens remedy is now a 'disfavored'

judicial activity,"

at 135 (quoting Ashcroft v. Iqbal,

(2009)); that "Bivens, Davis, and Carlson were the

products of an era when the Court routinely inferred 'causes of

action' that were 'not explicit' in the text of the provision that

was allegedly violated," Hernández,

(quoting

Abbasi,

); and that "[i]f there is a rational reason

to think that [Congress rather than the courts is who should decide

whether to provide a damages remedy] -- as it will be in most every

- 9 - case, . . . no Bivens action may lie," Egbert,

(internal citation omitted).

All that said, the Supreme Court has never overruled

Bivens and, most recently, clarified how courts should assess such

claims. See Egbert,

; see also Abbasi,

("[I]t must be understood that this opinion is not intended

to cast doubt on the continued force, or even the necessity, of

Bivens in the search-and-seizure context in which it arose."). To

start, we must ask whether the case presents a new Bivens context,

which boils down to whether the case is meaningfully different

from Bivens, Davis, and Carlson. Egbert,

. What

makes a difference "meaningful" is a bit unclear, but the Supreme

Court has given us a few guideposts:

A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 582 U.S. at 139–40. A meaningful difference can also

include a new category of defendants. Egbert,

.

While the Supreme Court has instructed that "the new-context

inquiry is easily satisfied," it has also cautioned that "[s]ome

- 10 - differences, of course, will be so trivial that they will not

suffice to create a new Bivens context." Abbasi,

;

see also Snowden v. Henning,

(7th Cir. 2023)

("That a difference must be 'meaningful' suggests that some degree

of variation will not preclude a Bivens remedy." (emphasis

theirs)). If the case presents no meaningful differences (and

thus no new context), the analysis ends there and relief under

Bivens is available. See Hicks v. Ferreyra,

(4th Cir. 2023).

If, however, the court decides that the case does present

a new Bivens context, its next and final question is whether there

are any "special factors" counseling against extending Bivens.

Egbert,

. "Special factors" are also not clearly

defined, but we know that they include, at least, "alternative

remedial structures," such that if Congress has already given a

would-be Bivens plaintiff a way to redress the constitutional

violation, the Bivens suit cannot proceed.

. At

bottom, this question looks to whether "the Judiciary is at least

arguably less equipped than Congress to 'weigh the costs and

benefits of allowing a damages action to proceed.'"

at 1803

(quoting Abbasi,

). The absence of any special

factors means Bivens relief is available, while the presence of

special factors means such relief is unavailable. See Hernández,

.

- 11 - The entire analysis ultimately collapses -- the Supreme

Court tells us -- into a single, fundamental inquiry: "whether

there is any reason to think that Congress might be better equipped

to create a damages remedy." Egbert,

.

Synthesizing all this together, the modern Bivens analysis

involves a factual comparison to the facts of Bivens itself (or

Davis, or Carlson, depending on the case), with an emphasis on

avoiding any extension of Bivens to meaningfully new factual

circumstances. With this backdrop laid out, we turn to our

assessment of Appellants' claims.

B.

Starting with the new-context step, there is no dispute

that the most similar Supreme Court case between Bivens, Davis,

and Carlson to the case here is Bivens itself. Remember, Bivens

"authorized a damages action against federal officials for alleged

violations of the Fourth Amendment."

. So too here

are Appellants attempting to vindicate their Fourth Amendment

rights. We know, however, that this similarity, by itself, is

insufficient to qualify this case as presenting the same context

as in Bivens. Hernández,

("A claim may arise in

a new context even if it is based on the same constitutional

provision as a claim in a case in which a damages remedy was

previously recognized."). What's worse (at least for Appellants)

- 12 - is that the similarities between Bivens and this case also end

there.

As we mentioned, the relevant analysis involves a

factual comparison, and the facts of Bivens cannot be viewed

generally. See, e.g., Egbert,

; Mays v. Smith,

(4th Cir. 2023) ("But citation to the

constitutional provision alone is insufficiently granular for the

new-context inquiry." (citing, e.g., Hernández,

)); Tun-Cos v. Perrotte,

(4th Cir. 2019)

("Arguing at so general a level . . . only ignores the language of

Abbasi."). To recap, the facts there involved a Fourth Amendment

claim against federal line-level investigative officers who

allegedly entered and searched the plaintiff's apartment, arrested

him for alleged drug violations, manacled him in front of his

family, threatened to arrest his family, and later interrogated,

booked, and visually strip searched him -- all without probable

cause or a warrant and with excessive force. Bivens,

. The facts of this case, on the contrary, involve Fourth

Amendment claims against prosecutors, federal line-level

investigative officers, and private, corporate employees acting

under color of federal law, who are alleged to have jointly

fabricated evidence in support of warrants to search a business

investigated for copyright and money laundering violations, seized

physical evidence (which was returned), and twice exceeded the

- 13 - scope of those warrants. As these descriptions demonstrate, the

differences are plenty.

The district court noted several differences that it

considered meaningful, including that 1) the challenged conduct

differed from the challenged conduct in Bivens; 2) a warrant was

issued and ran against a business, as opposed to an individual; 3)

the harm to Appellants was not a result of Appellees' direct

actions, but rather a result of intervening decisions by various

actors; 4) Appellants' claims required different proof than what

was required in Bivens; and 5) the claims were brought against a

new category of defendants, prosecutors. We need not comment upon

whether any of these differences individually would suffice to

make this a new context because together, the differences in the

challenged conduct -- including the issuance of a warrant, which

ran against a business -- and in the defendants -- including the

prosecutors and private, corporate employees -- suffice (when

viewed collectively) to show that this case differs meaningfully

from Bivens and therefore presents a new context.

To explain, take first the law enforcement actions at

issue here, which differ entirely from those at issue in Bivens.

See, e.g., Abbasi,

(listing "the generality or

specificity of the official action" as a meaningful difference);

Xiaoxing Xi v. Haugen,

(3d Cir. 2023)

(differentiating from Bivens an appellant's Fourth Amendment

- 14 - claims because they "concern a different breed of law enforcement

misconduct"); Annappareddy v. Pascale,

(4th Cir.

2021) (differentiating from Bivens an appellant's Fourth Amendment

claims because the "alleged misdeeds here are different from those

in Bivens" (citation and internal quotation marks omitted)); Ahmed

v. Weyker,

(8th Cir. 2020) (differentiating from

Bivens an appellant's Fourth Amendment claims because "the sorts

of actions being challenged here are different" (citation and

internal quotation marks omitted)). Comparing these two sets of

facts, the federal officers in Bivens handcuffed and arrested the

appellant and, without a warrant, searched his apartment and his

person through a visual strip search. Bivens,

.

Here, on the other hand, no one was handcuffed or arrested and no

one's home nor their person (naked or otherwise) was searched

without a warrant.5 What's more, here there was a warrant, which

5 As we understand it, Appellants argue that Franks violations such as those alleged here are like the law enforcement misconduct in Bivens, because, in Aponte Matos v. Toledo-Dávila,

(1st Cir. 1998), this court supposedly authorized Bivens actions for Franks violations. Not so. There, the court analyzed qualified immunity and liability for Franks violations pursuant to § 1983, not Bivens, and stated that "[a]n officer who obtains a warrant through material false statements which result in an unconstitutional search may be held personally liable for his actions under § 1983." Id. at 187. This distinction matters because Bivens liability is not as expansive as that under § 1983, so the fact that liability under § 1983 exists does not necessarily mean that Bivens liability also exists. See Hernández,

(noting that Bivens is the "more limited federal analog to § 1983" (citation and internal quotation marks omitted)).

- 15 - was issued against a business, not against an individual or the

individual's home.6 In sum, each of the Appellants' claims targets

All this is not to say that claims involving warrants, allegations of Franks violations, or other alleged misconduct at issue here (such as exceeding the scope of a warrant) necessarily fall outside Bivens' ambit -- issues upon which courts have diverged. See Greenpoint Tactical Income Fund LLC v. Pettigrew,

, 563–65 (7th Cir. 2022) (comparing circuit cases that have reached opposing conclusions as to Bivens relief in the "context of alleged false and misleading warrant applications," and further suggesting that such conduct could support a Bivens claim within the Seventh Circuit). For example, the mere fact of a warrant might not present a new context if the defendant's conduct closely paralleled that from Bivens, Davis, or Carlson. We leave those issues for another day because all the differences identified above, when viewed in the aggregate, are sufficient reason to conclude Appellants' three counts are each an extension of Bivens. 6 Appellants appear to suggest that it is irrelevant that the warrant ran against a business, because businesses are entitled to some Fourth Amendment protections. Being entitled to Fourth Amendment protections, however, is not enough to access Bivens relief. See Hernández,

("A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized."); see also Annappareddy,

("There appear to be no cases — in the Supreme Court or any other court — approving a Bivens claim for acts taken against a corporate entity."). Appellants also argue that other circuit courts have allowed Bivens claims for acts taken against businesses, relying on three cases. See Schowengerdt v. Gen. Dynamics Corp.,

(9th Cir. 1987); Dobyns v. E-Systems, Inc.,

(5th Cir. 1982); Yiamouyiannis v. Chem. Abstracts Serv.,

(6th Cir. 1975). Those cases hardly stand for such a proposition as the plaintiffs in each of them were individuals, not businesses. But, just as we mentioned above in relation to warrants, nothing in this opinion should be construed as necessarily foreclosing Bivens actions involving businesses. Here, however, the aforementioned differences, collectively, distinguish this case meaningfully from Bivens.

- 16 - "a different part of police work than the apprehension, detention,

and physical searches at issue in Bivens." Farah v. Weyker,

(8th Cir. 2019).

Take second the defendants in this case, who are not

just federal line-level investigative officers (as was the case in

Bivens) but also include federal prosecutors and private,

corporate employees allegedly working with the government.

Egbert,

(identifying as an "example[] of [a]

new context[] . . . a case that involves a new category of

defendants" (citation and internal quotation marks omitted)).

Neither Bivens, Davis, nor Carlson involved claims against

prosecutors, and several courts, including one of our sister

circuits, have determined that prosecutors are a new category of

defendants. See, e.g., Annappareddy,

; Jones v.

District of Columbia, No. 21-cv-03117,

, at *5

(D.D.C. July 22, 2022); Greenlaw v. Klimek, No. 4:20-CV-311,

, at *6 (E.D. Tex. Dec. 27, 2021); Martin v. Gray, No.

20-CV-741,

, at *4 (E.D. Wis. Aug. 27, 2021);

Hornoff v. Waller, No. 2:19-cv-00198,

,

at *56 (D. Me. Oct. 20, 2020). This conclusion makes good sense,

as the Supreme Court's "watchword" in Bivens' cases "is caution[,]"

due to the separation-of-powers issues at play. Hernández,

. The inclusion of prosecutors "risk[s] . . . intrusion

- 17 - on executive-branch authority to enforce the law and prosecute

crimes." Farah,

.7

Similarly, neither Bivens, Davis, nor Carlson involved

claims against private, corporate employees. Appellants suggest

that this court has previously greenlit Bivens claims against

private parties, and the district court expressed confusion over

this court's caselaw on the topic. Compare Stoutt v. Banco Popular

de P.R.,

, 33 (1st Cir. 2003) ("The Supreme Court has

already limited Bivens actions by refusing to extend them to

private entities acting under color of federal law." (citing Corr.

Servs. Corp. v. Malesko,

(2001))); Fletcher v. R.I.

Hosp. Trust Nat'l Bank,

, 932 n.8 (1st Cir. 1974)

("[T]here is no cause of action against private parties acting

under color of federal law or custom."), with Gerena v. P.R. Legal

Servs., Inc.,

, 448–52 (1st Cir. 1983) (assuming that

7 Appellants resist this conclusion. They first seem to suggest that the prosecutors here acted more akin to investigators, as opposed to prosecutors. This argument, however, is undermined by their own allegations, which state that the prosecutors reviewed evidence gathered by other individuals and decided to apply for a search warrant. See Greenlaw,

, at *6 ("Defendant Bunch is a prosecutor, not an on-the-scene, investigative officer. His role as a federal officer—which includes reviewing evidence, deciding whether to seek a search warrant, and pursuing criminal charges—meaningfully differs from the narcotics agents in Bivens[.]"). They also point to our decision in Aponte Matos again because we supposedly concluded that a prosecutor can be held liable under Bivens for a Franks violation. That's not correct. None of the claims in Aponte Matos were raised against a prosecutor.

.

- 18 - a private corporation can be a governmental actor and, therefore,

liable for damages under Bivens). Whatever confusion there was,

the Supreme Court dispelled it, see Minneci v. Pollard,

(2012) ("Carlson, however, was a case in which a federal

prisoner sought damages from personnel employed by the government,

not personnel employed by a private firm. . . . And for present

purposes that fact -- of employment status -- makes a critical

difference." (emphasis theirs) (internal citation omitted)),

meaning that the inclusion here of private, corporate employees as

defendants contributes to this context being new.

It is of no moment that -- as Appellants point out --

this case also involved the specific acts of line-level agents in

the course of enforcing ordinary criminal laws and that there is

some judicial guidance on the alleged Fourth Amendment violations

at play here.8 See Abbasi,

(explaining that

meaningful differences include "the rank of the officers involved;

the constitutional right at issue; . . . the extent of judicial

guidance as to how an officer should respond to the problem or

emergency to be confronted; [and] the statutory or other legal

mandate under which the officer was operating"). That is so

because "even a modest extension is still an extension,"

at

8To be sure, the Supreme Court has previously concluded that, even where the officer involved is a line-level agent, other differences can render the factual scenario "new." See Egbert, 142 S. Ct. at 1804–07.

- 19 - 147, and the differences in the challenged conduct, combined with

the inclusion of multiple new categories of defendants, are

sufficient to render this context new.

C.

As we find that Appellants' claims arise in a new Bivens

context, we proceed to step two, where we consider whether "special

factors counsel[] hesitation" in extending Bivens.

at 136

(quoting Carlson,

) (internal quotation marks

omitted). "[E]ven a single reason to pause before applying Bivens

in a new context" is sufficient to preclude relief, because "in

all but the most unusual circumstances, prescribing a cause of

action is a job for Congress, not the courts." Egbert,

(citation and internal quotation marks omitted).

Here, the existence of an alternative remedy -- namely, Rule 41(g)

of the Federal Rules of Criminal Procedure -- gives us sufficient

reason to take a beat.

Appellants' claims involve allegations of unlawful

searches of their businesses and seizure of relevant property.

And Rule 41(g) allows "[a] person aggrieved by an unlawful search

and seizure of property or by the deprivation of property [to]

move for the property's return," thereby addressing the principal

sort of injuries of which Appellants complain. Fed. R. Crim. P.

41(g). Indeed, Appellants pursued and were awarded this relief

before initiating the instant lawsuit.

- 20 - Rule 41(g) provides cold comfort -- Appellants

(understandably) tell us -- because it does not provide for

damages.9 In their view, any alternative remedy need not be

"perfectly congruent" with Bivens, but it must be, at minimum,

"adequate" and "roughly similar." This argument falls flat because

it has been squarely rejected by our judicial superiors. The

Supreme Court has recently made plain that "existing remedies

[need] not provide complete relief," Egbert,

(citation and internal quotation marks omitted); see also

González, 864 F.3d at 54–55 ("The fact that other or different

relief might be available . . . if constitutional tort suits were

permitted" is not a "basis for extending" Bivens claims.), and

that remedies such as injunctions and writs of habeas corpus, which

likewise do not provide for damages, are sufficient to foreclose

Bivens relief and qualify as alternative remedies, Abbasi, 582

U.S. at 144–45.

Notably, when assessing an alternative remedy, the

Supreme Court has clarified that "the court must ask only whether

it, rather than the political branches, is better equipped to

9 Relatedly, Appellants also appear to argue that Appellees cannot now contend that the searches comported with the Fourth Amendment, because the United States did not argue so in the Rule 41(g) proceedings. Accordingly, in Appellants' view, Appellees have waived any such argument. Ultimately, that argument is neither here nor there, because the focus of this appeal is not whether Appellees' actions were constitutional, but whether Appellants have an implied cause of action to bring the claim.

- 21 - decide whether existing remedies should be augmented by the

creation of a new judicial remedy." Egbert,

(citation and internal quotation marks omitted). There is reason

here to think Congress is so equipped. The Federal Rules of

Criminal Procedure, including Rule 41(g), are "prescribed by the

Supreme Court pursuant to the authority conferred upon the [C]ourt

by Congress" through the Rules Enabling Act, Miranda v. United

States,

(1st Cir. 1958), thus rendering the rules

"as binding as any statute duly enacted by Congress," Bank of N.S.

v. United States,

(1988). Congress itself has

repeatedly amended Rule 41, see

,

, 291 (2001);

(e),

, 319-20

(1977), and has never amended it to provide for damages.10 Such

"silence is notable," because "when Congress fails to provide a

damages remedy . . . it is much more difficult to believe that

congressional inaction was inadvertent." Abbasi,

(citation and internal quotation marks omitted).

10 The 2001 amendment involved the insertion of subsection (b)(3).

,

, 291 (2001). When an officer applies for a warrant in an investigation of terrorism, subsection (b)(3) requires a connection between the judge's district and the terrorism activities. Fed. R. Crim. P. 41(b)(3). The 1977 amendment involved changes to the requirements regarding the issuance of warrants based upon an affidavit and those based upon oral testimony.

(e),

, 319- 20 (1977).

- 22 - The upshot of all this is that Rule 41(g) functions as

an alternative remedy for Appellants and, consequently, a special

factor counseling against an extension of Bivens -- a conclusion

reached by many other courts. See, e.g., Davis v. Wernick, No.

19-cv-3327,

, at *4 (D.D.C. Jan. 29, 2021)

(concluding a motion to return property is an alternative remedy,

foreclosing Bivens relief); Childress v. Palmer, No. 3:18-cv-

00514,

, at *3 (S.D. Cal. Sept. 7, 2018) (same);

Omran v. United States, No. 1:14-CV-13881,

, at *11

(D. Mass. June 22, 2016) (same); Baird v. Holton,

, 57–58 (D.D.C. 2011) (same); Leyland v. Edwards,

, 10–11 (D.D.C. 2011) (same); cf. Perez-Colon v. Camacho,

(1st Cir. 2006) ("Because appellant has a cause of

action under Rule 41(g), he has no need to base his claim for the

return of [money seized] on either the [Federal Tort Claims Act

("FTCA")] or Bivens.").11

III.

To round out our analysis is our conclusion: Having

determined that Appellants' claims arise in a new factual scenario

11 Because the existence of even one special factor is sufficient to preclude Bivens relief, we do not reach Appellants' arguments as to the other special factors identified by the district court, including separation-of-powers concerns and alternative relief under the FTCA. We also do not reach the Dish and NagraStar Appellees' argument, offered for the first time at oral argument, that Appellants' separate civil suit against them for RICO and other violations is an alternative remedy.

- 23 - and involve special factors, we affirm the district court's

dismissal of Appellants' Bivens claims.12

Before we go, we have a few loose threads to tie up. First, 12

Appellants criticize the district court for, allegedly, failing to analyze Count II and Count III in its decision. We do not believe the district court so erred but, to the extent it did, our analysis is de novo and addresses all three counts. Second, as we conclude that Appellants' Bivens claims cannot move forward, we do not address Appellants' arguments as to absolute and qualified immunity. Third, we understand Appellants' final argument to be that, even if their claims cannot proceed under Bivens, the statute allowing for federal question jurisdiction,

, gives them a presumptive right of action in federal court to bring their claims. We are not persuaded. That statute gives courts the power to hear cases; it does not give plaintiffs the power to maintain any cause of action they want. If Congress intended

to grant plaintiffs a cause of action against federal actors for constitutional violations, it knew how to do so because it enacted such a statute against state actors. See generally

.

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