FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                     December 12, 2016
                                      PUBLISH        Elisabeth A. Shumaker
                                                         Clerk of Court
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



BIG CATS OF SERENITY SPRINGS,
INC., doing business as Serenity
Springs Wildlife Center; NICK
SCULAC; and JULES INVESTMENT,
INC.,

            Plaintiffs - Appellees,
and
JULIE WALKER,

            Plaintiff,
      v.                                        No. 15-1174
CINDY RHODES; and TRACY
THOMPSON,

            Defendants - Appellants.
and
THOMAS J. VILSACK, in his official
capacity as Secretary of Agriculture;
and OTHER UNNAMED UNITED
STATES DEPARTMENT OF
AGRICULTURE EMPLOYEES,

            Defendants.


       APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:13-CV-03275-REB-KLM)
Edward Himmelfarb, Appellate Staff Attorney, Civil Division (Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States
Attorney for the District of Colorado, and Barbara L. Herwig, Appellate Staff
Attorney, Civil Division, with him on the briefs), United States Department of
Justice, Washington, DC, for Appellants.

Duston K. Barton (Leonard H. MacPhee with him on the brief), Perkins Coie
LLP, Denver, Colorado, for Appellees.


Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.


TYMKOVICH, Chief Judge.


      Big Cats of Serenity Springs is a Colorado-based non-profit that provides

housing, food, and veterinary care for exotic animals. The facility is regulated by

the United States Department of Agriculture’s Animal and Plant Health Inspection

Service (APHIS), established pursuant to the Animal Welfare Act. Three APHIS

inspectors accompanied by El Paso County sheriff’s deputies broke into the Big

Cats facility without its permission to perform an unannounced inspection of two

tiger cubs. But at the time the inspectors entered the facility, the cubs were at a

veterinarian’s office receiving treatment, just as Big Cats had promised the

APHIS inspectors the previous day.

      Big Cats and its directors sued the APHIS inspectors for the unauthorized

entry pursuant to Bivens v. Six Unknown Narcotics Agents, 

(1971)

and 42 U.S.C. § 1983, asserting the entry was an illegal search under the Fourth

Amendment. The district court denied the APHIS inspectors’ motion to dismiss

                                         -2-
the complaint and they filed an interlocutory appeal challenging the court’s

failure to grant qualified immunity. This court has jurisdiction over the

interlocutory appeal from the district court’s order under 28 U.S.C. § 1291. See

Mitchell v. Forsyth, 

, 535 (1985). Additionally, the court has

jurisdiction over the question of whether a Bivens remedy exists because it was

sufficiently implicated by the qualified immunity defense. See Wilkie v. Robbins,

, 549 n.4 (2007).

      We affirm in part and reverse in part. Big Cats’ complaint has stated a

claim for relief under Bivens. No APHIS inspector would reasonably have

believed unauthorized forcible entry of the Big Cats facility was permissible, and

therefore Big Cats and its directors may have a claim for violation of their Fourth

Amendment right to be free from an unreasonable search. But we reverse on Big

Cats’ civil rights claim because the federal inspectors are not liable under § 1983

in the circumstances here.

                                 I. Background

      We start by explaining the regulatory scheme that applies to Big Cats’

business and then address the relevant factual and procedural background.




                                         -3-
      A. The Animal Welfare Act

      Big Cats is a licensed wild animal exhibitor under the Animal Welfare Act,

7 U.S.C. §§ 2131–59 (AWA). Under the AWA, a facility must meet care and

sanitation standards issued by the United States Department of Agriculture

(USDA). 7 U.S.C. § 2143(a). Among other things, the regulations require

licensees to handle animals safely, 9 C.F.R. § 2.131, provide adequate veterinary

care, 

2.40, and mark animals for identification, 

2.50.

      To enforce these standards, the AWA authorizes the USDA to “make such

investigations or inspections as [the USDA] deems necessary.” 7 U.S.C.

§ 2146(a). It grants the USDA access to licensees’ facilities, animals, and records

“at all reasonable times.” 

regulations require a licensed

organization to allow inspectors “during business hours . . . to enter its place of

business . . . [and] inspect and photograph the facilities, property and animals, as

the APHIS officials consider necessary to enforce the provisions of the Act . . . .”

9 C.F.R. § 2.126.

      Violations by licensees, whether by providing substandard care or refusing

inspection, are sanctioned through an administrative process. 7 U.S.C. § 2149.

Licensees are subject to license suspension, civil penalties up to $10,000, and in

some instances, imprisonment for up to one year. 

can

appeal a final order to a federal Court of Appeals to “enjoin, set aside, suspend




                                          -4-
(in whole or in part), or determine the validity of the Secretary’s order.” 

2149(c).

      B. The Incident

      The following allegations are from Big Cats’ complaint, and we take them

as true for purposes of our analysis. Weise v. Casper, 

, 1269–70

(10th Cir. 2007).

      After a routine inspection of Big Cats’ Serenity Springs Wildlife Center in

early April 2013, APHIS inspectors determined that the care of an injured tiger

cub was substandard and issued a citation requiring Big Cats to provide veterinary

care. But when an inspector conducted a follow-up visit the next week, she found

that the injury had worsened, and issued another citation. Big Cats denied both

allegations and contested both citations, claiming they were part of a “pattern of

harassing behavior” by the inspectors. App. 51.

      On May 6, APHIS inspectors conducted another follow-up inspection. The

inspectors claimed the cub’s injuries had worsened, and also noticed that a

different cub was suffering from an injured hind leg. Although Big Cats claimed

the cubs had been treated and were receiving appropriate medications, the

inspectors again cited Big Cats for failure to use “appropriate methods to prevent,

control, diagnose, and treat diseases and injuries.” 9 C.F.R. § 2.40(b)(2). The

inspectors required the cubs to be evaluated as soon as possible, but “not later

than 8:00 AM on 5/7/2013.” App. 37.

                                          -5-
      During the inspection, Big Cats’ founder and director, Nick Sculac, asked

whether the cubs could be examined on May 8, because he had already scheduled

an in-facility visit for that day with his contract veterinarian. But the APHIS

officials would not approve a one-day delay. So even though transportation to a

clinic risked further injury according to two of Big Cats’ contract veterinarians, it

was Mr. Sculac’s only option to meet the citation’s 8:00 a.m. requirement. He

arrived, with the cubs, at the veterinary clinic at 7:00 a.m. on May 7.

      Meanwhile, around 8:00 a.m., three APHIS personnel arrived at the

Serenity Springs Wildlife Center only to find the facility closed. After

unsuccessfully trying to reach Mr. Sculac on his cell phone, the inspectors

decided to forcibly enter the facility. They contacted the El Paso County

Sheriff’s Office at 8:45 a.m., requesting urgent assistance in entering the facility.

Two sheriff’s deputies arrived at the facility and were told by the inspectors that

they had a court order to seize the cubs. The deputies cut the outer gate’s chains,

and the inspectors entered the facility. They then cut the locks off an inner gate

to access the pens, where they encountered an employee. The employee was

“shocked and alarmed to suddenly see three [APHIS personnel] and two heavily

armed police officers appear inside the locked, private facility.” App. 17. After

she informed them the cubs were at the veterinary clinic, the inspectors left and

went to the clinic.

      C. Procedural History

                                          -6-
      Big Cats and its directors filed a lawsuit against the APHIS inspectors,

alleging a Fourth Amendment Bivens claim and a statutory claim under 42 U.S.C.

§ 1983. The district court denied the government’s motion to dismiss, concluding

the inspectors were not entitled to qualified immunity because their conduct—

forcible entry without permission—violated clearly established Fourth

Amendment constitutional law. The inspectors bring this interlocutory appeal

from the denial of qualified immunity.

                                   II. Analysis

      The government makes two arguments: first, it contends neither Bivens nor

§ 1983 apply to the APHIS inspectors’ unauthorized entry into Big Cats’ facility;

and, second, even if the inspectors’ conduct was unlawful, it argues that the

inspectors are still entitled to qualified immunity because the violation was not

clearly established under federal law.

      Since this is the denial of a Rule 12(b)(6) motion, our review is de novo,

accepting “all well-pleaded allegations ‘of the complaint as true and consider[ing]

them in the light most favorable to the nonmoving party.’” Butler v. Rio Rancho

Pub. Sch. Bd. of Educ., 

, 1199 (10th Cir. 2003) (quoting Sutton v.

Utah State Sch. for the Deaf & Blind, 

, 1236 (10th Cir. 1999)). “To

survive a motion to dismiss, a complaint must allege facts that, if true, ‘state a

claim to relief that is plausible on its face.’ A claim is facially plausible when the

allegations give rise to a reasonable inference that the defendant is liable.”

                                         -7-
Mayfield v. Bethards, 

, 1255 (10th Cir. 2016) (quoting Wilson v.

Montano, 

, 852 (10th Cir. 2013)). In the context of qualified

immunity, we may not dismiss a complaint for failure to state a claim unless it

appears beyond doubt that plaintiffs cannot prove a set of facts that would entitle

them to relief. 

the Bivens and § 1983 claims in turn.

      A. Bivens

      The government first contends that a Bivens cause of action is not available

under the Animal Welfare Act. It argues a Bivens remedy is not available where

the AWA provides parties with an alternative remedy for misconduct. But as we

explain, the AWA does not allow forcible entry to a licensee’s facility, nor does it

provide licensees any relief from such conduct. A Bivens claim is Big Cats’ only

available relief for an unconstitutional search of its premises.

      The Constitution does not ordinarily provide a private right of action for

constitutional violations by federal officials. Nonetheless, the Supreme Court in

Bivens approved a judicially-implied cause of action allowing individuals to seek

damages for unconstitutional conduct by federal officials. 

(1971).

According to the Court, “[t]hat damages may be obtained for injuries consequent

upon a violation of the Fourth Amendment by federal officials should hardly seem

a surprising proposition.” 

. “‘[I]t is well settled that

where legal rights have been invaded, and a federal statute provides for a general

                                         -8-
right to sue for such invasion, federal courts may use any available remedy to

make good the wrong done.’” 

(alterations omitted) (quoting Bell v.

Hood, 

, 684 (1946)).

      In several cases following Bivens, the Supreme Court extended the doctrine

from the Fourth Amendment context to other types of constitutional claims. In

Davis v. Passman, 

(1979), the Court held that a federal

Congressional employee could bring a Bivens action pursuant to the “equal

protection” element of the Due Process clause of the Fifth Amendment. See 

And then in Carlson v. Green, 

(1980), the Court allowed the

plaintiffs to pursue a Bivens claim against federal prison officials for failure to

provide adequate medical treatment in violation of the Eighth Amendment’s cruel

and unusual punishment clause. See 

      Davis and Carlson represent the high-water mark in the Court’s Bivens

jurisprudence. Since those cases, the Court has steadfastly retreated from a broad

application of the doctrine, refusing to extend implied causes of action to other

constitutional provisions, and cabining the contexts in which it will allow Bivens

claims to proceed. See Richard H. Fallon, Jr. et al., Hart & Wechsler’s The

Federal Courts and the Federal System 770–72 (7th ed. 2015); see also

Correctional Serv. Corp v. Malesko, 

, 66–71 (2001) (collecting cases).

The Court recognizes that a judicially-implied cause of action risks infringing on

Congress’s power to make law, and has explained that

                                          -9-
             any freestanding damages remedy for a claimed
             constitutional violation [based on Bivens] has to represent
             a judgment about the best way to implement a
             constitutional guarantee; it is not an automatic entitlement
             no matter what other means there may be to vindicate a
             protected interest, and in most instances we have found a
             Bivens remedy unjustified.

Wilkie v. Robbins, 

, 550 (2007). Thus, where Congress has already

constructed a “constitutionally adequate” alternative remedy for federal

misconduct, courts ought not step in by implying a Bivens cause of action. See

Bush v. Lucas, 

, 379 n.14 (1983) (declining to find new substantive

legal liability to permit federal employee to recover damages from his supervisor

after supervisor improperly disciplined him for exercising his First Amendment

rights); see also Correctional Serv. Corp. v. Malesko, 

(2001) (claims

against private prisons); FDIC v. Meyer, 

(1994) (claims against

federal agencies); Schweiker v. Chilicky, 

, 425 (1988) (Fifth

Amendment claim against former government officials arising out of delays in

receipt of Social Security benefits); United States v. Stanley, 

(1987)

(declining to extend Bivens remedies to harms arising out of military service);

Chappell v. Wallace, 

(1983) (same).

      Yet Bivens still remains available in some circumstances, and our circuit

has allowed Bivens claims in a variety of factual scenarios—based on violations

of the First, Fourth, and Eighth Amendments. See Smith v. United States, 

(10th Cir. 2009) (Eighth Amendment claim against prison officials);

                                        -10-
Oxendine v. Kaplan, 

(10th Cir. 2001) (same); Nat’l Commodity &

Barter Ass’n v. Archer, 

(10th Cir. 1994) (First and Fourth

Amendment claims against IRS agents).

      Nonetheless, the Supreme Court requires courts evaluating Bivens causes of

action to carefully consider the facts and context. The analysis proceeds along a

two-step analytical framework. First, we examine whether an “alternative,

existing process for protecting the [plaintiff’s] interest amounts to a convincing

reason for the Judicial Branch to refrain from providing a new and freestanding

remedy in damages.” 

. Second, in the absence of an

alternative remedy, we will consider whether “special factors” counsel hesitation

before authorizing a new kind of federal litigation. 

this

consideration, courts “weigh[] reasons for and against the creation of a new cause

of action, the way common law judges have always done.” 

      Relying on these principles, the government contends the AWA provides a

comprehensive “alternative, existing process” that protects Big Cats’

constitutional interests and therefore counsels against an implied Bivens cause of

action. It argues that because Big Cats may administratively challenge an adverse

inspection report, it must therefore resolve any alleged Fourth Amendment claims

through that process. Moreover, the government contends that even if the AWA

does not provide a fully adequate remedial scheme, special factors weigh against

a Bivens claim here.

                                        -11-
      We consider each argument in turn.

             1. Alternative Remedy

      The Supreme Court has explained that where an “‘alternative, existing

process’ [is] capable of protecting the constitutional interests at stake,” the courts

should refrain from augmenting the process with an implied damages remedy.

Minneci v. Pollard, 

, 623 (2012) (quoting 

).

“The point of examining the existing process is to determine whether Congress

has explicitly or implicitly indicated ‘that the Court’s power should not be

exercised.’” De La Paz v. Coy, 

, 375 (5th Cir. 2015), cert. filed, (Jan.

12, 2016) (quoting 

). Congress may explicitly “indicate its

intent[] by statutory language, by clear legislative history, or perhaps even by the

statutory remedy itself, that the Court’s power should not be exercised.” 

. But Congress may also implicitly indicate intent “by creating a

process that provides ‘an avenue for some redress’” for injured persons, and “[i]n

these instances, ‘bedrock principles of separation of powers’ show that ‘Congress

expected the Judiciary to stay its Bivens hand’ and instead apply the statutory

remedy.” Koprowski v. Baker, 

, 262 (6th Cir. 2016) (Sutton, J.,

dissenting) (quoting 

; 

). Thus, in

analyzing whether a Bivens claim is precluded by an alternative remedy, courts

must consider the nature and extent of the statutory scheme created by Congress,

and assess the significance of that scheme in light of the factual background of

                                         -12-
the case at hand. See 

; see also De La 

.

       Several cases illustrate this analysis. For example, in Minneci the Court

considered whether prisoners could bring a Bivens claim against employees of a

privately owned federal prison. The Court found no right of action because a

claim “for physical or related emotional harm suffered as a result of [inadequate

medical care is] the kind of conduct that state tort law typically forbids.” 132 S.

Ct. at 624. Because state tort law provided “roughly similar incentives for

potential defendants to comply with the Eighth Amendment while also providing

roughly similar compensation to victims,” the plaintiff had adequate recourse

under state tort law. 

See also 

n.23 (no state

law remedy available). Similarly, in the Fifth Amendment context, the Court

determined that Title II of the Social Security Act is a constitutionally adequate

substitute for a Due Process challenge based on wrongful termination of disability

benefits. Even though the Act did not provide full compensatory relief, Congress

had sufficiently “addressed the problems created by state agencies’ wrongful

termination of disability benefits,” making a Bivens remedy unnecessary.

. 1


       1
         The Court suggested an Eighth Amendment Bivens claim would be
permitted in 

, because a prisoner may lack “any
alternative remedy” for harms caused by a federal prison officer’s
unconstitutional conduct.

                                        -13-
      But in the prototypical Fourth Amendment context, the Court has so far

rejected the notion that state tort law can adequately protect a citizen’s “absolute

right to be free from unreasonable searches.” 

. According

to the Court, the Fourth Amendment proscribes a broader range of conduct than

what state law typically condemns, and, moreover, state law in some cases may be

“inconsistent or even hostile” to the interests protected by the Fourth Amendment.

–94; see also 

(Harlan, J., concurring in the

judgment) (“For people in Bivens’ shoes, it is damages or nothing.”). 2

      The government does not rely on state law as an alternative source of relief

for Big Cats. Instead, it argues that we should conclude Congress has designed a

comprehensive statutory scheme that provides meaningful remedies for victims,

such that a Bivens remedy is unwarranted. It contends the regulatory scheme

need not provide “complete relief,” but should reflect Congress’s meaningful

intention to “provide[] what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course of [the statute’s]

administration.” 

. Under the AWA, a licensee may

administratively challenge an adverse inspection report under the Administrative

      2
         One court recently found Congress supplanted an implied Fourth
Amendment Bivens remedy. In De La 

, the Fifth Circuit
found Congress supplanted Fourth Amendment claims in the immigration context
where: (1) illegally seized evidence could be suppressed in deportation hearings;
(2) the government had a process for reviewing alleged Fourth Amendment
violations by employees; and (3) Congress has enacted an “elaborate remedial
system” of immigration laws that has been in place for decades.

                                         -14-
Procedure Act. 3 Thus, the government maintains that even though the AWA has

no express compensatory mechanism to remedy constitutional claims, a Fourth

Amendment claim is “capable of being addressed in the remedial process” by way

of rejection of inspection violations predicated on illegal conduct. Reply Br. at

10 (emphasis added).

      This reading of the AWA seriously misconstrues its regulatory scope and is

not faithful to the Supreme Court’s case law considering alternative remedies.

The Court tells us the operative “question [is] whether any alternative, existing

process for protecting the interest amounts to a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding remedy in damages.”

. In other words, the appropriate consideration is whether

an alternate, existing process demonstrates Congress’s intent to exclude a

damages remedy. 

. Evidence of that intent would be a

scheme that provides adequate deterrence of constitutional violations and at least

some form of relief for the harm. 

.




      3
         Licensees may then challenge a final agency action under the APA. 7
U.S.C. § 2149(c) (“Any dealer, exhibitor, research facility, intermediate handler,
[or] carrier . . . aggrieved by a final order of the Secretary issued pursuant to this
section may, within 60 days after entry of such an order, seek review of such
order in the appropriate United States Court of Appeals in accordance with the
provision of sections 2341, 2343 through 2350 of Title 28, and such court shall
have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part) or to
determine the validity of the Secretary’s order.”).

                                         -15-
      But Big Cats’ challenge is based on a violation of the constitutional right to

be free from an unreasonable search, not the propriety of the licensing citation.

Nor does the AWA appeals process provide a mechanism for relief for misconduct

by inspection agents themselves, it only allows for a licensee to challenge the

factual basis for the citation—here Big Cats’ failure to “allow APHIS officials

access to conduct inspections.” App. 91; see also Aple. Br. 28–29 (citing United

States Dep’t of Agric., Animal Care: Appeals Process (2014) (demonstrating

grounds for appeal with no mechanism to assert constitutional violations)). In

fact, should an APHIS inspector unlawfully enter and search a business, but find

nothing to cite, that business would have no basis to challenge the inspector’s

behavior. Moreover, while it is true that judicial review under the APA may, in

some circumstances, foreclose a Bivens claim, 4 even if we accept the

      4
         Compare W. Radio Serv. Co. v. U.S. Forest Serv., 

, 1123
(9th Cir. 2009) (“[T]he design of the APA raises the inference that Congress
‘expected the Judiciary to stay its Bivens hand [for process based challenges to
agency action].” (citation omitted)); and Miller v. U.S. Dep’t of Agric. Farm Serv.
Agency, 

, 1417 (11th Cir. 1998) (holding that plaintiff’s right to
judicial review under the APA precluded him from bringing Bivens action), with
Munsell v. Dep’t of Agric., 

, 591 (D.C. Cir. 2007) (suggesting a
hard-line rule that the existence of APA review precludes plaintiff from seeking
Bivens remedy “make[s] little sense” in some circumstances, such as when
defendant’s unconstitutional conduct removed plaintiff from regulated arena,
making APA review unavailable); and Navab-Safavi v. Broad. Bd. of Governors,

, 70 (D.D.C. 2009) (“Neither the Supreme Court nor the D.C.
Circuit has ever held that the APA precludes the availability of a Bivens
remedy.”). But see Sell v. United States, 

, 193 (2003) (Scalia, J.,
dissenting) (suggesting that Bivens remedy is not precluded by availability of
APA review) (“Petitioner could have obtained pre-trial review . . . by filing suit
                                                                      (continued...)

                                        -16-
government’s characterization of the existing AWA administrative scheme, we

fail to see the APA as an “‘alternative, existing process’ capable of protecting the

constitutional interests at stake.” 

(citation omitted).

While there is no need for congruent remedies or even money damages to deny a

Bivens remedy, there must be more than nothing. Here, the AWA and

administrative review provide no relief for the conduct alleged by Big Cats.

      Even if the AWA provided some form of alternative relief, it would be hard

to square this case with circuit precedent. In Smith v. United States, 

, 1103 (10th Cir. 2009), we found Congress had not displaced a Bivens

remedy based on an Eighth Amendment claim even where a statutory scheme

substantially occupied the field of inmate injury. We concluded the Inmate

Accident Compensation Act (IACA), which provides compensation for federal

inmates who suffer work-related injuries, did not provide an adequate remedial

scheme, since the IACA operates a no-fault compensation system that provided no

“‘forum where the allegedly unconstitutional conduct would come to light.’”

(quoting Bagola v. Kindt, 

, 642–43 (7th Cir.

1997)); see also 

(“Under the [IACA] scheme, all that

matters is the nature of the injury, not the underlying conduct.”). In finding such

a system offers “very little deterrent effect for constitutional harms,” we held the

      4
       (...continued)
under the [APA], or even by filing a Bivens [] action.”) (emphasis added) (citation
omitted)).

                                         -17-
IACA did not provide an adequate, alternative process to protect prisoners’

Eighth Amendment rights. 

; see also 

; 

; Vaccaro v. Dobre, 

, 857 (9th Cir.

1996) (same).

      If anything, the scheme in Smith offered a more meaningful remedy for

plaintiffs to redress their injuries than the AWA does in this case. See

(Sutton, J., dissenting) (“Taken together, these

[IACA] alternatives allow an injured inmate to receive money for the injury and

order the officials to obey the Constitution, demonstrating that Congress paid

‘careful attention’ to this precise injury. . . . They also offer injured inmates

extensive review procedures, which further ‘safeguard their rights.’” (alteration

and citation omitted)). In this case, unlike the IACA, the AWA provides no

compensatory mechanism for unconstitutional conduct, whether it be damages or

dismissal of inspection violations. And even if unconstitutional searches were

exposed, the appeals process does not describe any recourse. The only recourse

the government suggests is that evidence improperly gathered would be ruled

impermissible to support a citation. But the citation for failure to provide access

is not ameliorated by inspectors’ subsequent conduct—no evidence was gathered.

Putting aside that no remedy appears in the statute, regulations, or in internal

administrative guidance, even if it did, the government does not explain how the

exclusion of evidence provides accountability, or—in other words—gives APHIS

                                          -18-
officials “skin in the game” to deter illegal conduct. See 

. In short, because nothing in the AWA provides licensees protection from

Fourth Amendment violations in the circumstances alleged here, we cannot hold

that an alternative, existing process excludes a Bivens remedy.

             2. Special Factors

      The Supreme Court also counsels that a Bivens action is not available

where the government demonstrates “special factors” that weigh against an

implied remedy. This requires “weighing reasons for and against the creation of a

new cause of action, the way common law judges have always done,” and whether

those reasons “counsel[] hesitation before authorizing a new kind of federal

litigation.” 

, 554.

      Wilkie again is illustrative. There, the Court found the risk of a floodgate

of spurious claims against BLM officials would undermine the functioning of the

agency, as well as the elusive nature of the proposed cause of action counseled

hesitation: “We think accordingly that any damages remedy for actions by

Government employees who push too hard for the Government’s benefit may

come better, if at all, through legislation.” 

      The Court similarly found special factors precluded a Bivens action in

Chappell, where the Court held that “the unique disciplinary structure of the

Military Establishment and Congress’ activity in the field constitute ‘special

factors’ which dictate that it would be inappropriate to provide enlisted military

                                         -19-
personnel a Bivens-type remedy against their superior officers.” 462 at 304; see

also Schweiker at 414 (finding that design of the Social Security Act’s

administrative and judicial scheme was a special factor counseling against finding

a Bivens remedy). In Bush, the Court also rejected a Bivens remedy for the

plaintiff’s First Amendment violation on the basis of a special factors analysis,

because the case involved policy questions in an area that had received significant

congressional scrutiny. 

      Here, the government argues that the animal inspection context militates

against a Bivens remedy because the AWA already provides a series of remedies.

Aplt. Br. at 26. But as we explained above, the AWA does not provide an

adequate remedy for illegal searches. Additionally, this is not the case where

“indications [of] congressional inaction” support an inference that the Bivens

action has been supplanted. 

. APHIS inspectors are not

subject to a comprehensive disciplinary scheme crafted by Congress or the

Executive Branch. Nor are there any concerns about a workable cause of action.

Fourth Amendment Bivens causes of action have been routinely applied to the

conduct of federal officials in a variety of contexts, including ATF agents, Groh

v. Ramirez, 

(2004); federal marshals and FBI agents, Harris v.

Roderick, 

(9th Cir. 1997); and IRS special agents, Nat’l

Commodity & Barter Ass’n v. Archer, 

(10th Cir. 1994).

                                        *      *   *

                                        -20-
      If we were writing on a blank slate, we might be persuaded that Bivens is a

relic of another era, and that Congress is perfectly capable of policing federal

misconduct. But given our case law, Supreme Court precedent, and the factual

context present here, we are constrained to find that Big Cats may proceed. Big

Cats alleges a garden-variety constitutional violation (hardly a new context), the

regulatory scheme is plainly unavailable to remedy the alleged misconduct, and

no special factors place AWA inspectors outside Bivens. We therefore agree with

the district court that Big Cats’ Bivens claim may go forward unless the inspectors

are entitled to qualified immunity.

      3. Qualified Immunity

      Public officials enjoy “qualified immunity in civil actions that are brought

against them in their individual capacities and that arise out of the performance of

their duties.” Pahls v. Thomas, 

, 1227 (10th Cir. 2013). To

overcome qualified immunity, a plaintiff must show that: (1) the public official

violated the plaintiff’s constitutional rights; and (2) these rights were clearly

established at the time of the alleged violation. 

by design,

‘gives government officials breathing room to make reasonable but mistaken

judgments about open legal questions.’” 

v. al-Kidd, 131 S.

Ct. 2074, 2085 (2011)). Although the purpose of a Bivens action is to deter

individual federal officers from committing constitutional violations, “the threat

of litigation and liability will adequately deter federal officers for Bivens

                                         -21-
purposes no matter that they may enjoy qualified immunity.” 

.

         We first discuss the contours of a Fourth Amendment violation in the

regulatory context and then consider whether the law was clearly established so

that a reasonable APHIS inspector would have known he could not forcibly enter

the Serenity Springs Wildlife Center without authorization.

               a. Constitutional Violation

         The Fourth Amendment protects the right to be free from unreasonable

searches and seizures. U.S. Const. amend. IV. “[S]earches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” Arizona v. Gant, 

, 338

(2009) (quoting Katz v. United States, 

, 357 (1967)).

         It is well established that the Fourth Amendment applies not only to private

homes and individuals, but also to commercial premises. New York v. Burger,

, 699 (1987). An owner or operator of a business thus has a

reasonable expectation of privacy in commercial property, see 

see also

Katz, 

–62 (Harlan, J., concurring), and that expectation includes not

only traditional police searches, but also administrative inspections to enforce

regulations, 

.




                                          -22-
      The Supreme Court has recognized, however, that an expectation of privacy

in commercial property is “different from, and indeed less than, a similar

expectation in an individual’s home.” 

The expectation of privacy is

particularly low for the narrow class of heavily or “closely regulated” businesses

—such as those that sell firearms and liquor—because the business owner has

voluntarily decided to “subject himself to a full arsenal of governmental

regulation.” Marshall v. Barlow’s, Inc., 

, 313 (1978). Without

elaborate enforcement schemes, the regulation of those industries would be

ineffective. Thus, for closely regulated businesses, warrantless administrative

searches of commercial premises—including surprise inspections—do not per se

violate the Fourth Amendment. See 5 Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 10.2(f) (5th ed. 2012); 2 William E. Ringel,

Searches and Seizures, Arrests and Confessions § 14:8 (2d ed. Nov. 2016

Update).

      A closely regulated industry is still protected by the Fourth Amendment,

however, and warrantless searches of those businesses are unreasonable if

arbitrarily conducted. See Ringel, supra, § 14:8. To guard against unreasonable

administrative searches, in Burger the Supreme Court articulated several criteria

the government must meet to justify warrantless inspections: (1) the government

must prove a substantial interest that justifies warrantless inspections; (2) the

warrantless inspections must be necessary to further the regulatory scheme; and

                                         -23-
(3) the inspection program must be sufficiently certain and regular to provide a

constitutionally adequate substitute for a warrant. 

–03;

see also United States v. Mitchell, 

, 751 (10th Cir. 2008) (applying

the Burger three-part test).

      We assume the AWA fits within the analytical framework of Burger, an

assumption Big Cats does not challenge. The government has a substantial

interest in animal safety and welfare and surprise inspections help further those

interests. And the regulations implementing the AWA allow routine inspections

of regulated premises during “business hours” with protections for businesses to

have the inspections conducted by authorized personnel. 9 C.F.R. § 2.126(a).

      But the fact that the AWA might authorize warrantless inspections is not

the end of the story. The question remains as to whether government officials

may forcibly enter commercial premises in pursuit of their regulatory duties.

      The Supreme Court addressed this question in Colonnade Catering Corp. v.

United States, 

, 77 (1970). In that case, the Court considered a

situation in which an IRS agent suspected a tavern of violating federal liquor

excise tax laws. After the owner denied access to a locked liquor storage room,

the agent broke the lock and entered the room, finding illicit goods. The store

owner sued, seeking to suppress the seized liquor as evidence of misconduct.

      The Supreme Court held that the IRS agent violated the Fourth

Amendment. In reaching this conclusion, the Court considered the government’s

                                        -24-
argument that the statutory scheme allowed tax inspectors to forcibly enter

regulated premises. The relevant statute allowed inspectors to: (1) “enter during

business hours the premises (including places of storage) of any dealer for the

purpose of inspecting or examining any records or other documents required to be

kept,” 26 U.S.C. § 5146(b) (1964); and (2) “enter, in the daytime, any building or

place where any articles or objects subject to tax are made, produced, or kept, so

far as it may be necessary for the purpose of examining said articles,” 

7606. The Court rejected the government’s contention that the statute

authorized breaking into closed facilities without a warrant, noting Congress’s

lack of explicit authorization to use force to further lawful inspections and the

statutory provision for civil penalties for businesses refusing entry. 26 U.S.C.

§ 7342 (1964).

      The government argues that although the AWA is silent about warrantless

searches, rules promulgated under the AWA permit warrantless forcible entry

under Burger and Colonnade. Specifically, it points to the regulations governing

the confiscation of animals as authority. 9 C.F.R. § 2.129. Under these

regulations, where an inspector believes an animal is “suffering” due to the

exhibitor’s failure to comply with USDA regulations, an APHIS official shall

“notify the [] exhibitor . . . and request that the condition be corrected and that

adequate care be given to alleviate the animal’s suffering or distress.” 9 C.F.R.

§ 2.129(a). Then, if the exhibitor “refuses to comply with this request, the APHIS

                                         -25-
official may confiscate the animal(s) for care, treatment, or disposal . . . if, in the

opinion of the [APHIS] Administrator, the circumstances indicate the animals’

health is in danger.” 

also provide APHIS officials with

guidance in the case of entry in premises where the owner is unavailable. An

inspector “shall [then] contact a local police or other law officer to accompany

him to the premises and shall provide for adequate care when necessary to

alleviate the animals’ suffering.” 

2.129(b). 5 The government argues that

“authorization for forcible entry is implicit” in these regulations considering: (1)

the local law enforcement provision; and (2) that inspectors would be unable to



      5
       That provision states in relevant part that, where an APHIS official finds
an animal is:

             (a) suffering as a result of a failure of the . . . carrier to comply
             with any provision of the regulations or the standards set forth in
             this subchapter, the APHIS official shall make a reasonable effort
             to notify the . . . carrier of the condition of the animal(s) and
             request that the condition be corrected and that adequate care be
             given to alleviate the animal’s suffering or distress . . . . In the
             event that the . . . carrier refuses to comply with this request, the
             APHIS official may confiscate the animal(s) for care, treatment,
             or disposal as indicated in paragraph (b) of this section, if, in the
             opinion of the Administrator, the circumstances indicate the
             animal’s health is in danger.

             (b) In the event that the APHIS official is unable to locate or
             notify the dealer, exhibitor, intermediate handler, or carrier as
             required in this section, the APHIS official shall contact a local
             police or other law officer to accompany him to the premises and
             shall provide for adequate care when necessary to alleviate the
             animal’s suffering.

                                          -26-
discharge their responsibilities unless authorized to forcibly enter a facility. Aplt.

Br. at 40–41.

      But § 2.129 does not apply here. By its plain language, the regulation

applies to circumstances where: (1) the licensee “refuses to comply” with an

official request to correct the animal’s suffering; and (2) the APHIS administrator

certifies that “the circumstances indicate the animal’s health is in danger.” 9

C.F.R. § 2.129(a). Here, the factual allegations in the complaint state that Big

Cats never refused to comply with a request for care or that the inspectors sought

and received an opinion from the APHIS Administrator that forcible entry was

necessary.

      In fact, according to the complaint, the inspectors themselves did not think

they were engaged in a confiscation under this provision. In their internal report

on the incident, they characterized their visit as a “routine inspection” and that

they were denied access pursuant to the inspection regulation, App. 90–91, a

regulation that only allows APHIS officials to enter a business to inspect records,

photograph animals, and document noncompliance with the Act, 9 C.F.R.

§ 2.126(a). These regulations do not give a whiff of support for unannounced

forcible entry of a business.

      In sum, the AWA regulatory scheme is similar to the scheme that the Court

found inadequate in Colonnade to protect constitutional rights. Absent statutory

authorization, the inspectors had no basis to forcibly enter the establishment

                                         -27-
without a warrant. Accordingly, Big Cats has adequately alleged that the APHIS

inspectors’ unauthorized entry violated their Fourth Amendment rights and that

the AWA did not authorize the warrantless search.

      b. Clearly Established

      Under qualified immunity, even if the inspectors violated the Fourth

Amendment, they are entitled to immunity if no clearly established law would

have informed them that a warrantless forcible search was improper. “A

Government official’s conduct violates clearly established law when, at the time

of the challenged conduct, ‘the contours of a right are sufficiently clear’ that

every ‘reasonable official would have understood that what he is doing violates

that right.’” 

(alterations omitted) (quoting Anderson

v. Creighton, 

, 640 (1987)). But the plaintiff must show a Supreme

Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must supply the requisite notice. Columbian Fin.

Corp. v. Stork, 

, 396 (10th Cir. 2016).

      Colonnade is squarely on point. The inspection provisions allowed access

at reasonable times for surprise inspections but nowhere allowed or authorized

the use of force. Moreover, both inspection schemes provided penalties to

enforce compliance. For the tax statutes in Colonnade, Congress required a fine

for any person “who refuses to admit any officer or employee of the Treasury

Department” acting under the tax statute. Similarly, under the AWA, licensed

                                         -28-
businesses face civil penalties up to $10,000 for violating the statute or

corresponding regulations, thus obviating the need for forcible entry. 7 U.S.C. §

2149(b). Thus, the AWA’s scheme is like that in Colonnade, which for fifty

years has stood for the proposition that a warrant is required for forcible entry

into closed premises.

      The government argues the AWA goes further than the scheme in

Colonnade or even Burger, making misconduct less obvious to inspectors. It

contends, moreover, the regulations provide for forcible entry in cases of

veterinary emergency to conduct a confiscation. As discussed above, where

inspectors believe an animal is suffering and the exhibitor refuses to provide

adequate care, the inspector may confiscate the animal if the APHIS

Administrator determines the animal’s health is in danger. 9 C.F.R. § 2.129(a).

But, according to the complaint, at no point did Big Cats refuse to provide

veterinary care, nor did the APHIS Administrator determine the tiger cubs were in

danger. They also knew that both of Big Cats’ contract veterinarians “believed

[a] one-day delay [in examination] was preferable to transporting the animals,”

App. 53, obviating the basis to believe care was urgent. And, in any event, the

inspectors did not rely on the confiscation regulations to justify their entry into

the premises, which they described as a “routine inspection” in the report filed

after the incident. It is also worth noting that neither the AWA regulations nor

applicable Animal Care Inspection Guide suggest that forcible entry is a

                                         -29-
permissible technique. See Supp. App. 2–19; Aplt. Br. at 27. In fact, the Guide

instructs agents to “not enter facilities with locked gates and/or No Trespassing

signs.” Supp. App. 2. The Guide further recommends law enforcement assistance

only to provide security for personal safety, and not to suggest they are necessary

to facilitate forcible entry. 

at odds with the government’s

position, the Guide states “There may be times during a confiscation operation”

when inspectors should involve legal counsel “in the acquisition or service of a

subpoena or warrant.” United States Dep’t of Agric., Animal Welfare Inspection

Guide 8-28 (2013); see Aplt. Br. at 27. Thus, we see no factual or regulatory

basis for a reasonable inspection agent to use force to enter a licensee’s premises

absent an emergency or exigent circumstances. 6

      Because we see no meaningful difference between the Colonnade

inspection scheme and the one here, reasonable APHIS inspectors should have

known they could not forcibly enter a business facility to perform an inspection,

absent a warrant or an exception to the warrant requirement. Big Cats alleges

facts showing that the agents cut the locks to conduct a non-emergency inspection

where the regulations did not provide for forcible entry. The law is clearly


      6
        This is an appeal from a motion to dismiss. It is possible that after
discovery in this case we may see a different factual posture. Our task here is
based on the allegations in the complaint. If the landscape changes after
discovery, the government is entitled to seek summary judgment on qualified
immunity. For purposes of our analysis, the legal posture here does not support a
finding of a veterinary emergency or other exigent circumstances.

                                        -30-
established that inspection officials cannot enter business premises without a

warrant in those circumstances.

      B. Section 1983

      We turn lastly to the question of whether Big Cats can sue the APHIS

inspectors under § 1983 of the Civil Rights Act. Big Cats contends the inspectors

are subject to liability under § 1983 “because they acted under color of state law

when they induced deputies to cut chains and enter the premises. . . .” App. 57.

We disagree.

      Section 1983 is not directed at conduct by federal officials. Instead, it

provides a remedy against state actors who violate a federal right, pursuant to

state authority. 

; Monroe v. Pape, 

, 171–76

(1961), overruled in part on other grounds, Monell v. Dep’t. of Soc. Servs., 

(1978). For this reason, federal employees are rarely § 1983 defendants,

and “actions of the Federal Government and its officers are at least facially

exempt from [§ 1983] proscriptions.” District of Columbia v. Carter, 

, 424–25 (1973). But in some cases, federal officials may in fact act under

“color of state law” for § 1983 purposes.

      The paradigmatic example is when federal officials conspire with state

officials to infringe a protected constitutional right. Martinez v. Winner, 

, 441 (10th Cir. 1985) (“Federal officials ordinarily are not suable under

§ 1983, which requires action under color of state law, but they may be liable

                                        -31-
under § 1983 where, as here, they are charged with conspiring with state officers

or employees.”), vacated on other grounds, 

(10th Cir. 1986). 7 Most

courts agree that conspiracy with state actors is a requirement to finding that

federal actors jointly acted under color of state law. Strickland ex rel. Strickland

v. Shalala, 

, 866–67 (6th Cir. 1997) (“[C]ourts finding that a federal

official has acted under color of state law have done so only when there is

evidence that federal and state officials engaged in a conspiracy or ‘symbiotic’

venture to violate a person’s rights under the Constitution or federal law.”).

      Big Cats alleges the federal employees “acted jointly” with the deputies

when they represented they had a court order to seize the cubs, and that “[r]elying

on the USDA’s representations, the deputies cut the chains.” App. 54–55. These

are insufficient allegations to establish a conspiracy. “[U]nder established case

law, the fundamental characteristic of a conspiracy is a joint commitment to an

‘endeavor which, if completed, would satisfy all of the elements of the underlying

substantive criminal offense.’” Ocasio v. United States, 

, 1429

(2016) (alteration and citation omitted). The complaint must allege (1) an

agreement between two or more persons, with (2) an intent to achieve an unlawful


      7
         See also Steven H. Steinglass, Section 1983 Litigation in State Courts
§ 2.8 (2015) (“Federal officials, however, may be found to have acted under the
color of state law and thus subject to suit under § 1983 when they conspire with
state officials.”); William H. ReMine, Civil Suits for Civil Rights: A Primer on
§ 1983, Colo. Law., Nov. 1997, at 5, 6 (“Federal officials are not subject to suit
under § 1983, unless they act in conspiracy with state officials.”).

                                        -32-
act. Wayne R. LaFave, 2 Subst. Crim. L. § 12.2 (2d ed. 2003); see also United

States v. Hill, 

, 1266 (10th Cir. 2015) (citing the elements of a

conspiracy), cert denied, 

(2015). The allegations of the complaint

make it clear the El Paso County sheriff’s deputies were not engaged in an

agreement with the inspectors to pursue an unlawful act. Read most favorably to

Big Cats, the most that can be said is that the deputies were facilitating entry to

the Big Cats premises on the false representation and mistaken impression that the

inspectors had a court order to enter the facility. There was no agreement to

violate law; indeed, the El Paso County incident report in the record states the

deputies thought their actions were supported by a court order and a need to check

on the cubs’ welfare.

      To hold federal officials subject to § 1983 liability based on joint action,

plaintiff must at least allege that federal and state actors shared a “common,

unconstitutional goal,” or point to a “substantial degree of cooperative action” or

“overt and significant state participation.” See Schaffer v. Salt Lake City Corp.,

, 1157 (10th Cir. 2016) (quoting Gallagher v. Neil Young Freedom

Concert, 

, 1454 (10th Cir. 1995)); see also Sigmon v.

CommunityCare HMO, Inc., 

, 1126 (10th Cir. 2000) (requiring

conspiracy such that the state and non-state actors “‘share[d] a common,




                                         -33-
unconstitutional goal’” (quoting Anaya v. Crossroads Managed Care Sys., 

, 596 (10th Cir. 1999)). 8

      The district court nonetheless concluded the “enlistment of state law

enforcement” was sufficient to hold federal officers liable under § 1983. The

court and the government rely on an unpublished district court case from

California for support, Reynoso v. City & County. of San Francisco, No. C 10-

00984 SI, 

(N.D. Cal. Feb. 28, 2012). In that case, San

Francisco police officers entered the plaintiff’s residence to search for drugs. But

the court found substantial concerted action by the state and federal officials.

“After the premises was secured, the ATF agents ‘merely substituted themselves

for the agents of the City and County of San Francisco in the break-in of

plaintiffs’ home and took up the search and seizure initiated by the City and

County of San Francisco authorities.’” 

(citation omitted). Because the

federal defendants were significant participants in the state scheme, those federal


      8
         A plaintiff may well need to allege a higher level of coordination to show
federal officers, rather than private parties, acted under color of state law. This is
for several reasons. First, plaintiffs must overcome the presumption that
Congress did not intend for federal officers to be subject to § 1983 litigation.
Carter, 

, 424–25. Second, plaintiffs must overcome the presumption
that where federal and state actors come together, they are acting pursuant to
supreme law. See Arar v. Ashcroft, 

, 568 (2d Cir. 2009) (en banc)
(“[S]ince ‘federal officials typically act under color of federal law,’ they are
rarely deemed to have acted under color of state law.” (citation omitted)). We
need not resolve exactly what this showing looks like, however, because plaintiffs
fail to meet any existing analysis that would prove these non-state actors acted
under color of state law.

                                         -34-
defendants’ actions could “‘fairly be attributed to the state.’” 

(quoting

Cabrera v. Martin, 

, 742–43 (9th Cir. 1992)).

         The circumstances here are quite different. The deputies were not actively

engaged in pursuing a common law enforcement objective. Nor were they

attempting to vindicate any state or county interest. They were only operating

under the false assumption that the entry was authorized under federal law and

pursuant to court order.

         In sum, the complaint does not allege the federal and state actors shared an

unconstitutional goal. Nor do we find sufficient state cooperation, considering

the local deputies’ entire involvement consisted of complying with the requests of

the APHIS inspectors. More accurately, the federal officials are better seen as

acting under color of federal law—the AWA—when they instructed the state

officials to cut the locks.

         Because the federal officials did not act under color of state law, the

district court erred in denying the government’s motion to dismiss the § 1983

claim.

                                   III. Conclusion

         Big Cats may proceed with its Bivens claim because no inspector would

have reasonably believed he could forcibly enter the business premises of a

licensee in these circumstances. We therefore AFFIRM the district court’s order

denying the government’s motion to dismiss the Bivens claim. We REVERSE the

                                           -35-
court’s order denying the government’s motion to dismiss the § 1983 claim,

however, because the federal officials did not act under color of state law.




                                        -36-