Osny Sorto-Vasquez Kidd v. Chad T. Wolf

• Court: District Court, C.D. California
• Decided: December 12, 2022
• Docket: 2:20-cv-03512
• Status: Unknown

Opinion

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O 1

2 3 4 5 6 7 United States District Court 8 Central District of California 9 10

11 OSNY SORTO-VASQUEZ KIDD et al., Case № 2:20-cv-03512-ODW (JPRx)

12 Plaintiffs, 13 ORDER DENYING INDIVIDUAL v. 14 OFFICER DEFENDANTS’ MOTION ALEJANDRO MAYORKAS,1 United FOR JUDGMENT ON THE 15 States Secretary of Homeland Security, PLEADINGS [193] 16 in his official capacity et al.,

17 Defendants. 18 19 I. INTRODUCTION 20 Plaintiffs Osny Sorto-Vasquez Kidd, the Inland Coalition for Immigrant Justice, 21 and the Coalition for Humane Immigrant Rights allege that U.S. Immigration and 22 Customs Enforcement (“ICE”) officers violate the Fourth Amendment’s prohibition 23 on unreasonable searches and seizures in arresting and detaining removable 24 immigrants in and near their own homes. Plaintiffs bring claims against several 25 officials for ICE and the U.S. Department of Homeland Security working in their 26 official capacities; the United States of America; and individual ICE officers O.M., 27 C.C., J.H., and J.N. (together, the “Officers”). As is relevant to the present Motion, 28 1 See Fed. R. Civ. P. 25(d). Case 2:20-cv-03512-ODW-JPR Document 298 Filed 12/12/22 Page 2 of 14 Page ID #:11899

1 Kidd asserts claims against the Officers under Bivens v. Six Unknown Federal 2 Narcotics Agents, 403 U.S. 388 (1971), for violating his Fourth Amendment rights in 3 arresting and detaining him. (First Am. Compl. (“FAC”) ¶¶ 194–199, ECF No. 38.) 4 The Officers previously moved to dismiss the claims asserted against them, 5 including the Bivens claim. (Officers’ Mot. Dismiss, ECF No. 49.) The Court denied 6 their motion. (Order Den. Mot. Dismiss (“Order”) 21, ECF No. 58.) More recently, 7 on June 8, 2022, the United States Supreme Court issued its opinion in Egbert v. 8 Boule, 142 S. Ct. 1793 (2022), reversing a decision by the Ninth Circuit that a Bivens 9 claim that arose in the border patrol context withstood summary judgment. The 10 Officers now move for judgment on the pleadings, asserting that, under Egbert, the 11 Bivens claim against them must now be dismissed. (Mot. J. Pleadings (“Motion” or 12 “Mot.”), ECF No. 193.) For the following reasons, the Court DENIES the Motion.2 13 II. BACKGROUND 14 In this putative class action, Plaintiffs allege that ICE agents violate the Fourth 15 Amendment’s prohibition on unreasonable searches and seizures by (1) entering the 16 curtilage of individuals’ homes without a valid warrant and (2) obtaining consent or 17 compliance by falsely presenting themselves as local police or probation officials. For 18 the purpose of this Motion, the Court takes all of Plaintiffs’ well-pleaded factual 19 allegations as true. See Gregg v. Haw., Dep’t of Pub. Safety, 870 F.3d 883, 887 20 (9th Cir. 2017). 21 The events involving Kidd took place in October 2018, when Kidd lived in a 22 gated apartment complex. (FAC ¶¶ 51–52.) The Officers first gained access to 23 Kidd’s apartment complex by waiting outside until a different tenant opened the 24 parking gate while exiting. (Id. ¶ 52.) Upon knocking on Kidd’s door, the Officers 25 were greeted by Kidd’s mother. (Id. ¶ 53.) Officer C.C. told Kidd’s mother that she 26 was a “detective” with local police investigating a dangerous criminal using Kidd’s 27

28 2 After considering the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

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1 address. (Id.) Kidd’s mother was shocked and agreed to help the “detective.” (Id.) 2 Once the Officers were inside the home, they visited every room, banging on doors 3 and requesting identification from Kidd’s siblings, who at the time were between the 4 ages of eleven and sixteen. (Id.) 5 Realizing that Kidd was absent, the Officers asked Kidd’s mother to call him. 6 (Id. ¶ 54.) Kidd answered his mother’s call, and he could hear his siblings crying as 7 his mother “worriedly stated that the police told her there was a dangerous criminal 8 ‘out to get’ their family.” (Id.) Kidd then spoke with C.C., who again identified 9 herself as police and said she needed to speak with Kidd in person to guarantee that 10 his family was safe from an extremely dangerous criminal. (Id.) Kidd agreed to meet 11 with C.C. (Id.) 12 Two days later, Kidd received a call from C.C. asking him to come outside with 13 a form of identification. (Id. ¶ 55.) Kidd exited his apartment complex to find the 14 Officers waiting for him in tactical vests emblazoned with the word “POLICE.” (Id.) 15 After checking Kidd’s identification, the Officers revealed that his family was not at 16 risk and that they had invented the story to induce his compliance. (Id.) They 17 admitted their true identities as ICE officers and arrested Kidd for removal. (Id.) 18 Plaintiffs identify nine other individuals with similar stories. In all the alleged 19 incidents, ICE officers made some sort of misrepresentation in order to induce consent 20 to enter an individual’s home or induce them to step outside. (Id. ¶¶ 59–60, 62, 64– 21 65, 67, 69 (impersonation of police), ¶¶ 76, 81, 84, 89, 90 (impersonation of probation 22 officers).) As alleged, the community members ICE targeted were particularly 23 susceptible to the probation officer ruse because those on probation are typically 24 required by law to permit probation officers to access their homes and persons, 25 leaving probationers with no choice but to comply with officers’ requests. (Id. ¶ 71.) 26 On April 16, 2020, Plaintiffs filed their Complaint, and on October 27, 2020, 27 they filed the operative First Amended Complaint. (Compl., ECF No. 1; FAC.) The 28 Officers filed a motion to dismiss, and the remaining Defendants filed a separate

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1 motion to dismiss, with both motions brought pursuant to Federal Rules of Civil 2 Procedure (“Rule”) 12(b)(1) and 12(b)(6). The Court denied the former motion and 3 granted in part and denied in part the latter motion. (Order 2.) Defendants proceeded 4 to answer. (Answers, ECF Nos. 66, 67.) 5 On September 12, 2022, the Officers filed the Motion now under consideration. 6 The parties briefed the Motion, (Opp’n, ECF No. 196; Reply, ECF No. 200), and the 7 Officers later filed two Notices of Supplemental Authority, (Notice Suppl. Authority, 8 ECF No. 207; Second Notice Suppl. Authority, ECF No. 239). 9 III. LEGAL STANDARD 10 After the pleadings are closed, but within such time as to not delay the trial, any 11 party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). The standard 12 applied to a Rule 12(c) motion is essentially the same as that applied to Rule 12(b)(6) 13 motions, Gregg, 870 F.3d at 887; a judgment on the pleadings is appropriate when, 14 even if all the allegations in the complaint are true, the moving party is entitled to 15 judgment as a matter of law, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 16 (“Factual allegations must be enough to raise a right to relief above the speculative 17 level, on the assumption that all the allegations in the complaint are true (even if 18 doubtful in fact).” (citations omitted)); Milne ex rel. Coyne v. Stephen Slesinger, Inc., 19 430 F.3d 1036, 1042 (9th Cir. 2005). 20 When ruling on a motion for judgment on the pleadings, a court should construe 21 the facts in the complaint in the light most favorable to the plaintiff, and the movant 22 must clearly establish that no material issue of fact remains to be resolved. 23 McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). However, 24 “conclusory allegations without more are insufficient” to withstand a motion for 25 judgment on the pleadings. Id. 26 If judgment on the pleadings is appropriate, a court has discretion to grant the 27 non-moving party leave to amend, grant dismissal, or enter a judgment. See Lonberg 28 v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004). Leave to amend may

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1 be denied when “the court determines that the allegation of other facts consistent with 2 the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. 3 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); Carrico v. City 4 & County of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (“[Leave to amend] 5 is properly denied . . . if amendment would be futile.”). 6 IV. DISCUSSION 7 The starting point for this analysis is this Court’s pre-Egbert determination that 8 Plaintiffs state a valid Bivens claim against the Officers. In denying the Officers’ 9 motion to dismiss, the Court found that this case, which involves claims against 10 immigration officers for unreasonable searches and seizures committed in and around 11 individuals’ homes, was not “different in a meaningful way from previous Bivens 12 cases decided by the Court.” (Order 21 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 13 (2017)).) The Officers now ask this Court to revisit its finding in light of the Supreme 14 Court’s opinion in Egbert. 15 The Officers’ request implicates the law of the case doctrine, which applies 16 whenever a court is asked to revisit a decision on a rule of law previously made by 17 that same court or a higher court in the same case. Chinatown Neighborhood Ass’n v. 18 Harris, 33 F. Supp. 3d 1085, 1093 (N.D. Cal. 2014). The doctrine “posits that when a 19 court decides upon a rule of law, that decision should continue to govern the same 20 issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 21 618 (1983). “Law of the case rules are founded upon ‘the sound public policy that 22 litigation must come to an end. . . . [A] court cannot efficiently perform its duty to 23 provide expeditious justice to all if a question once considered and decided by it were 24 to be litigated anew in the same case . . . .’” Jeffries v. Wood, 114 F.3d 1484, 1489 25 (9th Cir. 1997) (quoting Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir. 1979)), 26 overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 27 2012). The law of the case doctrine “also serves to maintain consistency.” Id. (citing 28 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

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1 Procedure § 4478 (1981)). The doctrine “is not a limitation on a tribunal’s power, but 2 rather a guide to discretion.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 3 1997). 4 Here, given that the Court’s prior finding was based on the same pleading and 5 legal standard that are presently at issue, that finding—that the First Amended 6 Complaint states a legally valid Bivens claim against the Officers—constitutes law of 7 the case. Even so, a court may depart from the law of the case when: “(1) the decision 8 is clearly erroneous and its enforcement would work a manifest injustice, 9 (2) intervening controlling authority makes reconsideration appropriate, or 10 (3) substantially different evidence was adduced at a subsequent trial.” Gonzalez, 11 677 F.3d at 389 n.4; Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). 12 Some cases articulate the first prong as two separate, independently sufficient 13 prongs—that is, they replace the “and” in prong (1) with “or”—and further recognize 14 an additional catch-all prong of “other changed circumstances.” Alexander, 106 F.3d 15 at 876. The Ninth Circuit has recognized this apparent split of authority but has 16 declined to rule on it. United States ex rel. Godecke v. Kinetic Concepts, Inc., 17 No. 2:08-cv-06403-GHK (AGRx), 2016 WL 11673222, at *4 n.7 (C.D. Cal. Nov. 16, 18 2016) 19 Of particular relevance here, intervening controlling authority makes 20 reconsideration appropriate only if the new case is “a binding ‘opinion directly on 21 point and irreconcilable with the earlier decision in the period between the first and 22 second decisions of the lower court.’” See Godecke, 2016 WL 11673222, at *5 23 (quoting 3-30 Moore’s Manual—Federal Practice & Procedure § 30.31). By 24 contrast, if an intervening, binding opinion merely “‘clarifie[s] and refine[s] the law,’ 25 and would not have changed the result of the original decision,” law of the case 26 applies, and the original decision remains unchanged. Id. (quoting Merritt v. Mackey, 27 932 F.2d 1317, 1321 (9th Cir. 1991)). 28

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1 The Court’s denial of the present Motion rests on two separate but related 2 bases. First, the Officers fail in their burden of presenting a persuasive argument 3 demonstrating that Egbert is “irreconcilable” with this Court’s prior Order. See id. 4 Second, the Court’s own independent analysis confirms that Egbert did not 5 fundamentally alter the law of Bivens in a way that renders Plaintiffs’ Bivens claim 6 inviable in this case. 7 A. Officer Defendants’ Burden 8 First, the Officers’ Motion fails because it is facially apparent that the Court’s 9 prior Order, and specifically the ruling that the Bivens claim in the FAC is viable, 10 constitutes law of the case, and the Officers do not carry their burden of demonstrating 11 that an exception to the law of the case doctrine applies. As the Officers are the ones 12 seeking dismissal of claims, the Officers bear the burden of persuasion; that is, they 13 must present arguments demonstrating that dismissal is appropriate in spite of the law 14 of the case. Mil-Ray v. EVP Int’l, LLC, No. 3:19-cv-00944-YY, 2021 WL 2903225, 15 at *1 (D. Ore. July 8, 2021) (noting consensus among federal courts that, “Federal 16 Rule 12(b)(6) places th[e] burden [of persuasion] on the moving party” (alterations in 17 original) (quoting Cohen v. Bd. of Trs. of Univ. of D.C., 819 F.3d 476, 481 (D.C. Cir. 18 2016))); cf. Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 856 19 (7th Cir. 2001) (“[T]hat earlier ruling was the law of the case, and if the plaintiffs 20 wanted us to depart from it they had to acknowledge the ruling and give reasons for 21 our abandoning it. This they had failed to do . . . .”). 22 Here, the Officers fail in this burden. Their moving papers are devoid of any 23 reference whatsoever to the Court’s prior Order or the law of the case doctrine. (See 24 generally Mot.) Moreover, though Plaintiffs devote much of their Opposition brief to 25 the law of the case issue, Defendants make short shrift of the issue in the Reply. 26 While Defendants argue forcefully and at length that “Bivens law patently changed 27 with Egbert,” (Reply 3), they do not complete the argument by demonstrating that 28 Egbert changed Bivens law in a way that is irreconcilable with this Court’s prior

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1 opinion. Their only reference to the law of the case and any potential exceptions is 2 their assertion that the doctrine “does not permit, much less require, district courts to 3 ignore intervening – and indeed watershed – Supreme Court decisions defining the 4 law at issue.” (Id.) Strictly and technically speaking, this assertion is not an accurate 5 statement of the law. The law of the case doctrine indeed either permits or requires 6 trial courts to “ignore” intervening Supreme Court decisions defining the law at issue 7 when the Supreme Court decision is reconcilable with the trial court’s prior order. 8 Godecke, 2016 WL 11673222, at *5. Here, the Officers simply make no attempt to 9 explain how Egbert is irreconcilable with this Court’s Order. Instead, they present the 10 same arguments they presented in favor of their previous unsuccessful motion to 11 dismiss without ever pointing out exactly (1) what part of Egbert constitutes the 12 controlling change in the law, and (2) what part of the Court’s prior holding is 13 rendered wrong by that change. Accordingly, the Officers’ argument is incomplete, 14 and they fail in their burden of demonstrating dismissal is appropriate. 15 B. Independent Analysis 16 Moreover, the Court’s own independent analysis of Egbert and the Bivens claim 17 in this case confirms that Egbert is not irreconcilable with this Court’s prior 18 decision—in other words, that this Court’s prior decision remains correct, including 19 under Egbert. The Court reaches this conclusion in two steps: first, by observing that 20 Egbert did not fundamentally alter the two-step Bivens test, and second, by concluding 21 that, whatever incremental changes Egbert may have made to Bivens law, those 22 changes do not remove the claim in the present case from the sphere of viable 23 Bivens claims. 24 1. Egbert did not fundamentally alter the two-step Bivens test. 25 Factually, Egbert involved the aptly named Smuggler’s Inn, a bed-and- 26 breakfast situated a few feet from the U.S.-Canada border, and its enterprising 27 proprietor, Mr. Boule. 142 S. Ct. at 1800. Boule would sometimes act as a paid 28 confidential informant for U.S. Border Patrol by providing the agency with

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1 information about persons of interest Boule was scheduled to lodge or transport. Id. 2 at 1800–01. On one occasion, Boule informed Border Patrol Agent Erik Egbert of a 3 certain Turkish national who had arrived in the United States via New York and was 4 staying at the Smuggler’s Inn for a night. Id. at 1801. Based on these facts, Egbert 5 grew suspicious of possible immigration violations. Id. He waited in his patrol 6 vehicle outside the inn in anticipation of the Turkish national’s arrival. Id. When the 7 Turkish national arrived in a SUV, Egbert followed the SUV onto the property. Then: 8 Agent Egbert exited his patrol vehicle and approached the car. Boule’s 9 employee also exited the car; the guest remained inside. From the front porch of his inn, Boule asked Agent Egbert to leave. When Agent Egbert 10 refused, Boule stepped off the porch, positioned himself between Agent 11 Egbert and the vehicle, and explained that the person in the car was a 12 guest who had come from New York to Seattle and who had been through security at the airport. Boule again asked Agent Egbert to leave. 13 Agent Egbert grabbed Boule by his chest, lifted him up, and shoved him 14 against the vehicle and then threw him to the ground. Boule landed on his hip and shoulder. 15 Agent Egbert opened the car door and asked the guest about his 16 immigration status. . . . After concluding that the guest was lawfully in 17 the country (just as Boule had previously informed Agent Egbert), the 18 three officers departed. Boule later sought medical treatment for his injuries. 19 20 Id. at 1811–12 (Sotomayor, J., concurring in part and dissenting in part). The 21 Supreme Court found that these facts presented reasons to hesitate before recognizing 22 a Bivens cause of action against Egbert for two reasons: (1) “Congress is better 23 positioned to create remedies in the border-security context,” and (2) “the Government 24 has already provided alternative remedies that protect plaintiffs like Boule.” Id. 25 at 1804. The Supreme Court went on to discuss each of these two points in detail, 26 identifying each as an “independent reason” foreclosing a Bivens claim. Id. 27 Reason (1) was based on the “potential” for “harmful or inappropriate” consequences 28 of “judicial intrusion” into the field of border security, id. at 1805, and reason (2)

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1 arose from the fact that the grievance Boule filed against Agent Egbert “secured 2 adequate deterrence and afforded Boule an alternative remedy,” id. at 1807. 3 Contrary to the Officers’ suggestions, this Court does not read Egbert as 4 constituting a “sea change” in Bivens jurisprudence. (See Mot. 4.) Both before and 5 after Egbert, courts engage in a two-step inquiry to determine if a Bivens claim is 6 viable. First, courts ask whether the case presents “a new Bivens context,” that is, 7 whether it “is different in a meaningful way from previous Bivens cases decided by” 8 the Supreme Court. Ziglar, 137 S. Ct. at 1859–60; see id. at 1865 (noting “trivial” 9 differences do not “suffice to create a new Bivens context”). If the case does not 10 present a new context, the inquiry ends, and the Bivens claim is viable. If, on the 11 other hand, the case does present a new context, courts then ask whether there are 12 “‘special factors’ indicating that the Judiciary is at least arguably less equipped than 13 Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” 14 Egbert, 142 S. Ct. at 1803 (quoting Ziglar, 137 S. Ct. at 1858). This “inquiry does not 15 invite federal courts to independently assess the costs and benefits of implying a cause 16 of action.” Id. at 1805. Instead, “[a] court faces only one question: whether there is 17 any rational reason (even one) to think that Congress is better suited to ‘weigh the 18 costs and benefits of allowing a damages action to proceed.’” Id. (quoting Ziglar, 19 137 S. Ct. at 1858). 20 Egbert did not alter the structure of this two-step inquiry. After describing the 21 two steps in some detail, the Court in Egbert merely observes that “[w]hile our cases 22 describe two steps, those steps often resolve to a single question: whether there is any 23 reason to think that Congress might be better equipped to create a damages remedy.” 24 Id. at 1803. This Court does not read this language as fundamentally altering the 25 Bivens inquiry because the language does not suggest any intent to uproot five 26 decades of Bivens jurisprudence. A Court with such an intent would undoubtedly use 27 stronger language in supplanting a well-used rule with a new one. Moreover, the 28 choice of the word “often” plainly acknowledges that there are some cases where the

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1 Bivens analysis will not resolve to this single question; in those cases, the well-known 2 two-part inquiry would continue to apply. 3 The remainder of the Egbert opinion dispels any remaining doubt about this 4 conclusion by acknowledging and proceeding according to the two-step inquiry. At 5 the outset of the analysis section (section III), the Court states that “[t]he Court of 6 Appeals conceded that Boule’s Fourth Amendment claim presented a new context for 7 Bivens purposes, yet it concluded there was no reason to hesitate before recognizing a 8 cause of action against Agent Egbert. That conclusion was incorrect for two 9 independent reasons.” Id. at 1804 (citation omitted). The remainder of the Fourth 10 Amendment part of the opinion focuses on those two reasons. By acknowledging and 11 applying the two-step inquiry, the Supreme Court reinforced that the two-step inquiry 12 remains the appropriate approach to Bivens analysis. See Mejia v. Miller, 53 F.4th 13 501, 504 (9th Cir. 2022) (describing “longstanding” two-part framework for analyzing 14 Bivens claims). 15 2. To the extent Egbert refined the law of Bivens, the refinements do not 16 alter the result in the present case. 17 Rather than fundamentally altering Bivens jurisprudence, Egbert appears to 18 provide courts with two special factors to consider in determining whether to hesitate 19 to recognize a Bivens cause of action. First, in discussing why Congress is better 20 positioned to create remedies in the border-security context, the Supreme Court may 21 have narrowed the field of viable Bivens claims by noting that courts are “plainly” not 22 “competent to authorize a damages action . . . against Border Patrol agents generally.” 23 142 S. Ct. at 1806. Second, in discussing how the government already provides 24 alternative remedies that protect plaintiffs like Boule, the Supreme Court may have 25 expanded the sort of alternative remedies whose availability forecloses Bivens relief. 26 Id. at 1806–07. 27 Regardless, this Court need not and does not expressly decide whether Egbert 28 changed Bivens law in these ways, because, even if it did, these changes do not bear

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1 on the present case or on the reasoning supporting the Court’s prior ruling on the 2 issue. This Court’s previous finding that Plaintiffs’ Bivens claim is viable was 3 fundamentally based on the conclusion that this case does not present a new Bivens 4 context. (Order 21 (“Here, a Bivens claim is appropriate because the circumstances 5 do not present a ‘new context.’”).) That reasoning remains undisturbed by Egbert for 6 the simple reason that Egbert was not a case about the context inquiry (step one of the 7 Bivens analysis); instead, it was a case about the special factors inquiry (step two of 8 the Bivens analysis). See Mejia, 53 F.4th at 505 (“Egbert reiterates the longstanding 9 first step of the Bivens, question, but clarifie[s] . . . the second step . . . .”). 10 As mentioned above, the Supreme Court noted only briefly that the Ninth 11 Circuit conceded Boule’s case presented a new Bivens context; it then proceeded 12 straight to the special factors analysis. Egbert, 142 S. Ct. at 1804. It devoted no 13 substantive analysis to the context question. Id. Moreover, it is clear that the 14 remaining Fourth Amendment analysis—sections III.A.1 and 2 of the opinion—is a 15 special factors analysis, not a context analysis. See id. at 1804–07. Throughout these 16 two sections, the Court confirms its focus on the special factors in concluding that 17 “the Judiciary is comparatively ill suited to decide whether a damages remedy against 18 any Border Patrol agent is appropriate,” id. at 1805, and that “Congress has provided 19 alternative remedies for aggrieved parties in Boule’s position that independently 20 foreclose a Bivens action here,” id. at 1806. This is the language of a Court grappling 21 with whether special considerations counsel hesitation in recognizing a Bivens claim; 22 this is not the language of a Court comparing the facts of the case before it to prior 23 Bivens cases to determine whether the context is new. This conclusion is confirmed 24 by the sharp contrast between the Egbert Court’s language and that of opinions that 25 are undoubtedly focused on the step-one context inquiry, such as Ziglar. Compare id., 26 with Ziglar, 137 S. Ct. at 1859 (“The proper test for determining whether a case 27 presents a new Bivens context is as follows.”). 28

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1 Thus, to the extent Egbert changed the law of Bivens, it did so only with respect 2 to part two of the Bivens inquiry, the special-factors analysis. Egbert is not 3 irreconcilable with this Court’s prior holding because this Court’s holding rested 4 independently on its finding with respect to part one of the Bivens inquiry, that this 5 case does not present a new context. (See Order 21); cf. Mejia, 53 F.4th at 504 6 (emphasizing “the continued force, or even the necessity, of Bivens in the search-and- 7 seizure context in which it arose” (quoting Abassi, 137 S. Ct. 1843, 1857 (2017))). 8 Egbert does not render this finding incorrect or outdated because Egbert did not 9 change the law regarding what constitutes a new Bivens context. And while this Court 10 additionally noted that no special factors counseled hesitation, it need not have 11 reached this second step, as its finding of no new context was sufficient to end the 12 inquiry.3 See Mejia, 53 F.4th at 504 (describing “longstanding framework” under 13 which “courts . . . first . . . determine whether the Bivens claim arose in a ‘new 14 context’”). 15 C. Supplemental Authority 16 On October 17, 2022, the Officers filed a Notice of Supplemental Authority, 17 informing the Court of Monroe v. Kirby, No. 2:21-cv-00017-GW (PDx) (“Monroe”) 18 (C.D. Cal. filed Jan. 4, 2021), a case decided by a different court in the Central 19 District of California. However, Monroe adds nothing meaningful to the analysis here 20 and in any event is nonbinding. In Monroe, the court found a new context because the 21 incident in question happened at a Veterans Administration hospital rather than in or 22 around an individual’s home. (See Tentative Ruling on Federal Defs.’ Mot. J. 23 Pleadings (“Tentative Ruling”) at 5, Monroe (C.D. Cal. Oct. 11, 2022), ECF 24 No. 207-1; Order Adopting Tentative Ruling at 1, Monroe (C.D. Cal. Oct. 13, 2022), 25 ECF No. 207-2.) This difference was key to the court’s holding, and the court further 26 noted that the result would have been the same “even pre-Egbert.” (Tentative 27 3 For these same reasons, this Court’s previous citation to the Ninth Circuit’s now-reversed opinion 28 in Boule v. Egbert, 980 F.3d 1309, 1314 (9th Cir. 2020), for support that the claim here does not present a new context, does not make this Court’s prior conclusion irreconcilable with Egbert.

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1 | Ruling 5.) The case before this Court is inapposite to Monroe because the incidents in 2 | question here all happened in or around individuals’ homes. Moreover, and in any 3 || case, even if Monroe interpreted Egbert in a way that aided this Court’s analysis, the 4|| law of the case doctrine does not require district courts to revisit their own rulings 5 || merely because a fellow district court issues an opinion, no matter how potentially 6 || relevant or helpful the opinion to the case at hand. See Godecke, 2016 WL 11673222, 7 || at *5. 8 Finally, both parties argue that the Ninth Circuit’s very recent opinion in Mejia 9 | v. Miller supports their respective positions. (Second Notice Suppl. Authority; Opp’n 10 || Second Notice Suppl. Authority, ECF No. 271.) Regardless of whose position Mejia 11 || supports, the Court has taken care to ensure its own interpretation of Egbert is 12 || consistent with the Ninth Circuit’s recent guidance in Mejia. Beyond that, Mejia 13 | cannot further bind this Court in this case, because it is factually inapposite in at least 14|| two senses. Mejia involved Bureau of Land Management officers, and, like in 15 || Monroe, none of the events in question occurred in or near the plaintiff's home. 16 | 53 F.4th at 506. 17 Vv. CONCLUSION 18 The Officers do not show, and the Court does not find, that Egbert is 19 | irreconcilable with this Court’s prior finding that Plaintiffs’ Bivens claim is viable. 20 || Thus, the Officers’ Motion for Judgment on the Pleadings is DENIED. (ECF 21) No. 193.) 22 23 IT IS SO ORDERED. 24 25 December 12, 2022 □ 26 , YO é

28 OTIS D. HT, II NITED STATES DISTRICT JUDGE