Full Opinion (html_with_citations)

                                      PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 23-1987


                    JUDITH HENRY

                           v.

ESSEX COUNTY; DETECTIVE LEONARD JACKSON, in
  his individual and official capacity; DETECTIVE DIANE
 MUNOZ, in her individual and official capacity; SHERIFF
  OFFICER JOSEPH DENEQUOLO, in his individual and
official capacity; SHERIFF OFFICER JANICE GUY, in her
     individual and official capacity; SHERIFF OFFICER
NAIMAH MARROW, in his individual and official capacity;
SHERIFF OFFICER JEREMY PEREZ, in his individual and
official capacity; CAPTAIN GARY NASH, in his individual
  and official capacity; WARDEN TIMOTHY MATTHEW
         BETTI, in his individual and official capacity;
 LIEUTENANT JAY RUANE, in his individual and official
capacity; OFFICER KATE DIPIETRO, in her individual and
official capacity; OFFICER GARY LOKE, in his individual
 and official capacity; AMY LAURIA, in her individual and
 official capacity; LAUREN BIEBER, in her individual and
   official capacity; LACKAWANNA COUNTY PRISON;
CAPTAIN SAVAGE, in his individual and official capacity;
   LIEUTENANT BECKLEY in her individual and official
   capacity; DENISE WOOD, in her individual and official
    capacity; JAN LAMPER, in her individual and official
    capacity; TIMOTHY B. RIEGLE, in his individual and
  official capacity; DOUGLAS LONG, in his individual and
 official capacity; ELIZABETH COOPER, in her individual
      and official capacity; KELLI WINTER, LPN, in her
 individual and official capacity; KRISTIN ZIERLE LYNN,
 RN, in her individual and official capacity; MARGARET E.
     THOMPSON, in her individual and official capacity;
  OFFICER EULETIA LYNN, in her individual and official
     capacity; INVESTIGATOR GARY DUNCAN, in his
 individual and official capacity; SUPERVISORY DEPUTY
JERRY SANSERINO, in his individual and official capacity;
 DEPUTY ANTHONY ROSSI, in his individual and official
       capacity; ASSISTANT CHIEF DEPUTY PEDRO
 ALVAREZ, in his individual and official capacity; DENISE
 R. RAHAMAN, in her individual and official capacity; DR.
    SALADIN ABDU NAFI, in his individual and official
 capacity; JAMES NEAL, MD, in his individual and official
  capacity; LIONEL ANICETTE, MD, in his individual and
                        official capacity

ESSEX COUNTY; DIANE MUNOZ; SHERIFF OFFICER
   JOSEPH DENEQUOLO; JANICE GUY; SHERIFF
 OFFICER NAIMAH MARROW; SHERIFF OFFICER
     JEREMY PEREZ; CAPTAIN GARY NASH,

                                  Third Party Plaintiffs
                           v.

               CFG Health Systems, LLC,

                                  Third Party Defendant




                           2
        Pedro Alvarez, Jerry Sanseverino, Gary Duncan,
    Anthony Rossi, Leonard Jackson, and Euletia Lynn,

                                            Appellants



        Appeal from the United States District Court
                 for the District of New Jersey
             (District Court No. 2-20-cv-11159)
       District Judge: Honorable Katharine S. Hayden



                  Argued on June 5, 2024


   Before: HARDIMAN, PORTER, and AMBRO, Circuit
                      Judges



              (Opinion filed: August 29, 2024)


Ashley C. Honold
United States Department of Justice
Civil Division Appellate
Room 7261
950 Pennsylvania Avenue NW
Room 7323
Washington, DC 20530




                             3
Casen Ross [Argued]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue NW
Washington, DC 20530

Alan Ruddy
Essex County Counsel
465 Martin Luther King Boulevard
Hall of Record, Room 535
Newark, NJ 07102

                    Counsel for Appellants


Tisha N. Adams [Argued]
Suite 1103
60 Park Place
Newark, NJ 07102

Christopher N. Leeds
Cipriani & Werner
485 Route 1 S
Suite 120, Building E
Iselin, NJ 08830

Claudia M. Tesoro
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103




                             4
Jeffrey S. McClain
Holtzman McClain & Londar
3000 Atrium Way
Suite 200, PMB #319
Mount Laurel, NJ 08054

                     Counsel for Appellees




                 OPINION OF THE COURT


AMBRO, Circuit Judge

        Plaintiff Judith Maureen Henry was arrested on a
warrant for a different woman with the same name. She was
detained for more than two weeks for a crime she did not
commit. After release, Henry sued many federal and state
officials for their roles in the mix-up. Among the defendants,
six deputy United States Marshals (the “Marshals”) filed a
motion to dismiss. They argued their qualified immunity from
her suit, that Henry could not pursue her claims under the cause
of action announced in Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics,
403 U.S. 388
 (1971), and that her
complaint failed to state claims against them. The District
Court denied the Marshals’ motion. They appeal to us. We
reverse, as the facts in Henry’s case are far afield from those
the Supreme Court faced when it decided Bivens.




                               5
                        I. Background

                      A. Henry’s Claims

       As this is an appeal from an order denying a motion to
dismiss, we presume the non-conclusory allegations in the
operative Third Amended Complaint (“TAC”) are true and
recite them here. Ashcroft v. Iqbal,
556 U.S. 662, 678-79
(2009). In 1993, a different woman named Judith Maureen
Henry (the “Absconder”) skipped parole in Pennsylvania. 1

        Fast forward to 2019, when the director of the
Pennsylvania Interstate Parole Services issued a warrant for the
Absconder’s arrest for the parole violation. That warrant,
however, targeted Henry’s home address and attached her
driver’s license photo. Parole Services forwarded the warrant
to officials in New Jersey.

        Certain Marshals, along with New Jersey officials,
“discussed and planned” Henry’s apprehension. App. 47.
Those Marshals, along with others, arrested Henry at her home
on the morning of August 22, 2019. They transported her to
the Essex County Correctional Facility and assisted with her
booking that day. Henry repeatedly told the Marshals and
others that she was innocent. She offers no non-conclusory
allegations that the Marshals were involved in her detention
after that point.


1
 While not discussed in the TAC, Henry’s papers state that the
Absconder “pled guilty to possession of cocaine and drug
paraphernalia and nolo contendere for the offense [of]
conspiracy to deliver” cocaine. Henry Br. 2.




                               6
       Henry was held in New Jersey until September 1, when
she was transferred to Pennsylvania.        Throughout her
detention, she continued to declare her innocence and
requested that authorities compare her fingerprints to the
Absconder’s. But no official did so until Henry reached
Pennsylvania. Officials there discovered on September 3 that
Henry’s fingerprints did not match those of the Absconder.
Yet her detention continued for another two days before she
was released on September 5. This means Henry was
imprisoned for more than two weeks for the Absconder’s
parole violation.

                     B. Procedural History

        In August 2020, Henry sued several individuals and
entities, including the United States Marshals Service (but not
the Marshals themselves). She named the Marshals, both in
their personal and official capacities, as defendants for the first
time in the TAC, filed in December 2021. (Henry’s claims
against the Marshals in their official capacity were later
dismissed with prejudice. As noted, the Marshals filed a
motion to dismiss, arguing that they were protected by
qualified immunity, Henry’s claims impermissibly extended
the Bivens doctrine, and she failed to state a claim under Rule
12(b)(6). In an oral ruling, the District Court rejected those
arguments for want of factual development. The Marshals
timely appealed to us.




                                7
                          II. Analysis

                        A. Jurisdiction

        The District Court had jurisdiction over Henry’s claims
under
28 U.S.C. §§ 1331
, 1343(a) & 1367. We have
jurisdiction over the Marshals’ appeal. That is because we can
immediately review decisions denying qualified immunity
when they turn solely on issues of law. Ashcroft v. Iqbal,
556 U.S. 662, 671-72
 (2009). Our jurisdiction lets us examine the
“sufficiency of [Henry’s] pleadings,”
id. at 673
, and whether
her claims can be pursued through a Bivens action at all. Wilkie
v. Robbins,
551 U.S. 537
, 549 n.4 (2007). This is so because
the recognition of Bivens claims and sufficiency of Henry’s
allegations are “directly implicated by the defense of qualified
immunity and [so are] properly before us on interlocutory
appeal.” Hartman v. Moore,
547 U.S. 250
, 257 n.5 (2006).

       B. The District Court’s Analysis Was Incorrect.

        Whether a complaint pleads allegations that overcome
qualified immunity or fall with the limits of the cause of action
created in Bivens is a purely legal issue that can be resolved on
the pleadings at the motion-to-dismiss stage. See, e.g.,
Hernandez v. Mesa,
589 U.S. 93
, 98-99 (2020) (Bivens); James
v. City of Wilkes-Barre,
700 F.3d 675, 679
 (3d Cir. 2012)
(qualified immunity). A complaint must be dismissed if,
viewed in the generous light our precedent offers, it lacks
sufficient factual allegations to state a claim. See Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 570
 (2007). In this context,
further record development is not the way to proceed.
Accordingly, we review whether the TAC can proceed against
the Marshals as a matter of law.




                               8
        C. Henry’s Bivens Claims Must Be Dismissed.

        The core of the TAC is that Henry’s treatment violated
the Constitution’s guarantees. Through
42 U.S.C. § 1983
,
Congress provided an action against persons who, “under color
of state law,” violate a plaintiff’s constitutional rights. West v.
Atkins,
487 U.S. 42, 48
 (1988). There is no federal statutory
cause of action against persons who, acting under color of
federal law, violate a plaintiff’s constitutional rights. But in
Bivens the Supreme Court authorized such a cause of action
under the circumstances presented there.
403 U.S. at 395-97
.

        So the first question before us is whether the Marshals
were acting under color of state or federal law when they
apprehended Henry on a Pennsylvania warrant for violating
Pennsylvania law. Perhaps complicating the analysis, two of
them were New Jersey state law enforcement officers
deputized to serve as Marshals.
5 U.S.C. § 3374
;
28 C.F.R. § 0.112
(b). Persons with arguably mixed federal and state
authority act under color of federal law when they perform
their federal duties. Yassin v. Weyker,
39 F.4th 1086, 1090-91
(8th Cir. 2022) (quoting Johnson v. Phillips,
664 F.3d 232, 240
(8th Cir. 2011)), cert. denied,
143 S.Ct. 779
 (2023); King v.
United States,
917 F.3d 409, 433-34
 (6th Cir. 2019), rev’d on
other grounds sub. nom. Brownback v. King,
592 U.S. 209
(2021).

       Henry concedes that the Marshals—including those
deputized as-such—operated under color of federal law. The




                                9
Government agrees, and so do we. Hence we analyze Henry’s
claims under Bivens, not § 1983. 2

        The current state of Bivens jurisprudence has been
thoughtfully analyzed by other decisions in this Circuit, and we
have little to add. See, e.g., Xi v. Haugen,
68 F.4th 824
, 832-
34 (3d Cir. 2023); see also Vanderklok v. United States,
868 F.3d 189, 198-200
 (3d Cir. 2017). To set the table, the
Supreme Court, concerned with separation of powers, has
made clear that it is generally not the judiciary’s place to create
causes of action. Egbert v. Boule,
596 U.S. 482, 491
 (2022);
Hernandez, 589 U.S. at 99-102. The rules it announced for
Bivens claims reflect this hesitation. We first ask whether a
plaintiff’s claim under Bivens presents a “new context”
compared to the three cases where that Court explicitly
authorized a Bivens remedy. Hernandez, 589 U.S. at 102
(citation omitted). When the context is distinguishable, we do
not authorize such an action if we see any “reason to pause
before applying Bivens in [the] new context[.]” Id. Thus, we
turn to that analysis.

        “[O]ur understanding of a ‘new context’ is broad.” Id.
A context is new if it “is different in a meaningful way from
previous Bivens cases decided by” the Supreme Court. Ziglar
v. Abbasi,
582 U.S. 120, 139
 (2017). Whether a context is new
is an “easily satisfied” test because “a modest extension [of the
Bivens action] is still an extension.”
Id. at 147-49
. Even

2
   The TAC never mentions Bivens; rather, it repeatedly
references § 1983. But Henry’s argument before us is that she
has Bivens claims against the Marshals. The Government
addresses the merits of that argument rather than arguing the
TAC must be amended, and we will too.




                                10
“significant parallels to one of the [Supreme] Court’s previous
Bivens cases” may not be enough. Id. at 147.

        We begin by summarizing the TAC, which identifies six
Bivens claims. The first is for abuse of process that Henry
bases on her arrest by the Marshals (claimed to be “neither
warranted nor authorized by law”), TAC ¶ 42, and their failure
to “check the fingerprints, photograph, and other personal
identifiers of the [Absconder] with those of [Henry.]” Id. at ¶
49. Second is a claim for false arrest and imprisonment, again
based on Henry’s arrest and detention in New Jersey “[d]espite
repeated protests of innocence.” Id. at ¶ 53. The third claim is
for intentional infliction of emotional distress traced to the
method of her arrest. Fourth is a failure-to-train and failure-to-
supervise claim against certain supervisory Marshals who
allegedly did not train the arresting Marshals to take
fingerprints and other identifying information from
apprehended suspects or promptly present arrestees to
magistrates. The fifth count, which complains of procedural
due process violations under the Fourteenth Amendment,
faults the Marshals for not presenting Henry to a judge before
she was taken to Pennsylvania. Sixth and finally, Henry
alleges the Marshals were involved in a conspiracy against her.

        The only Supreme Court case authorizing a Bivens
remedy for police misconduct is Bivens itself. Ziglar, 582 U.S
at 131. 3 The complaint in Bivens alleged that the plaintiff was


3
  See Davis v. Passman,
442 U.S. 228
 (1979) (authorizing
Bivens claim for workplace sex discrimination by a
Congressman in violation of the Fifth Amendment); Carlson v.
Green,
446 U.S. 14
 (1980) (approving Bivens suit bottomed on




                               11
invalidly subject to a warrantless arrest in his home.
403 U.S. at 389
. We do not read Henry’s complaint as sufficiently
alleging that state of affairs. Though Henry claims her arrest
was without a valid warrant and contrary to law, see, e.g., TAC
¶ 42, the opposite is true. 4

       She appears to admit that the Absconder is, in fact,
guilty of parole violations. Henry Br. 2. That statement means
the warrant was valid: at least for purposes of this litigation,
Henry’s briefing establishes that there is more than a “fair
probability” the Absconder violated the conditions of her
parole. Wilson v. Russo,
212 F.3d 781, 789
 (3d Cir. 2000)
(citing Sherwood v. Mulvihill,
113 F.3d 369, 401
 (3d Cir.
1997)).

        And Henry’s mistaken-identity arrest was similarly
constitutionally valid. “[W]hen the police have probable cause
to arrest one party, and when they reasonably mistake a second
party for the first party, then the arrest of the second party is a
valid arrest.” Hill v. California,
401 U.S. 797, 802
 (1971)
(citation omitted); Rodriguez v. Farrell,
280 F.3d 1341
, 1345-
46 (11th Cir. 2002). The Pennsylvania Board of Probation and
Parole provided the Marshals with Henry’s address and
photograph. Henry identifies no reason why the Marshals
should not have relied on that information. Cf. Berg v. Cnty.
of Allegheny,
219 F.3d 261
, 272-73 (3d Cir. 2000)
(“Ordinarily, it is reasonable for an officer to assume that a


failure to provide prisoner medical treatment in violation of
Eighth Amendment).
4
 Henry’s claim is a “legal conclusion” not entitled to deference
on Rule 12(b)(6) review. Iqbal,
556 U.S. at 678-79
.




                                12
warrant has been issued for probable cause” absent substantial
evidence suggesting otherwise (citing Baker v. McCollan,
443 U.S. 137, 145-46
 (1979)). So their arrest of Henry relying on
information attached to the warrant was a reasonable mistake,
and therefore her arrest did not violate the Fourth Amendment.

        This fundamental legal distinction between the TAC
(which, read in the light most favorable to Henry, suggests that
her arrest was both supported by a valid warrant and consistent
with the Fourth Amendment) and Bivens (which dealt with a
complaint that amply alleged serious violations of that
Amendment) thus establishes a “meaningful” difference
sufficient to make Henry’s claims premised on her arrest a new
context. Ziglar,
582 U.S. at 139
. Indeed, “almost parallel
circumstances” to Bivens—hardly what we have here—can
still result in a new context. Xi,
68 F.4th at 834
 (quoting
Egbert,
596 U.S. at 495
).

        As to Henry’s other Bivens claims, they present a new
context because they “concern a different breed of law
enforcement misconduct.” Xi,
68 F.4th at 834
. While Bivens
focused on the conduct of an arrest, Henry challenges the
Marshals’ post-arrest failure to examine her claims of
innocence or present her to a magistrate—a different “sort[] of
action” by the Marshals, Farah v. Weyker,
926 F.3d 492, 500
(8th Cir. 2019), that “bear[s] little resemblance” to the alleged
police misconduct in Bivens, and accordingly results in a new
context. Ziglar,
582 U.S. at 140
. That same logic applies to
her failure to supervise 5 and conspiracy claims.


5
  They are also in a new context because they target
supervisory officials rather than line officers. Ziglar,
582 U.S. 13
       Because Henry’s Bivens claims arise in a new context,
we can allow them to go forward only if we do not doubt that
we are at least as capable as Congress of “weigh[ing] the costs
and benefits of allowing a damages action to proceed.” Ziglar,
582 U.S. at 136
. “[E]ven a single ‘reason to pause’” prohibits
recognition of a Bivens action in a new context. Egbert,
596 U.S. at 492
 (quoting Hernandez, 589 U.S. at 102).

        A reason to pause here is the “risk” of “interfere[nce]”
with “the executive branch’s investigative . . . function[].”
Annappareddy v. Pascale,
996 F.3d 120, 137
 (4th Cir. 2021)
(citing Ziglar,
582 U.S. at 141
); Ahmed v. Weyker,
984 F.3d 564, 570-71
 (8th Cir. 2020), cert. denied sub. nom Mohamud
v. Weyker,
142 S.Ct. 2833
 (2022). Henry’s complaint—that
the Marshals failed to take her claims of innocence seriously—
raises a host of policy questions about the role of the Marshals
Service after they apprehend a suspect on a warrant for a crime
they did not investigate. To name but four of these questions
we see: How strong must a claim of innocence announced after
arrest be before it must be investigated by a marshal? When,
as here, marshals and state law enforcement officers both hear
protestations of innocence, which should investigate? How in-
depth of an investigation must they perform, and when?

       We grant that, asking those questions in this case, a
reasonable observer could conclude the answers are not hard
to find and would impose minimal burdens on the Marshals.
Henry’s request was modest: merely that her fingerprints be
compared to the Absconder’s. But it is for Congress, not the
judiciary to “balance[] the costs and benefits” of a cause of


at 140 (identifying “the rank of the officers involved” as a
“meaningful” difference in our Bivens jurisprudence).




                              14
action against the Marshals bottomed on their failure to
investigate Henry’s claims of innocence. Farah,
926 F.3d at 501
. The legislature must decide whether the “potential
encroachment” on the executive branch’s investigatory
function “is worth it.”
Id.
 Accordingly, concerns for
separation of powers counsel hesitation before we endorse a
Bivens suit in a new context. Egbert,
596 U.S. at 491
. So we
will not do so here.

             C. Henry’s Other Claims Also Fail.

       The TAC includes two claims that do not rely on Bivens.
Both fail.

       Henry alleges that the Marshals are liable under
42 U.S.C. § 1985
(3) 6 because they “conspired to deprive [her] of
equal protection under law.” TAC ¶ 117. To state a claim
under that statute, a plaintiff must show that “some racial, or
perhaps otherwise class-based, invidiously discriminatory
animus [lay] behind the conspirators’ action.” Bray v.
Alexandria Women’s Health Clinic,
506 U.S. 263, 268-69
(1993) (quoting Griffin v. Breckenridge,
403 U.S. 88, 102
(1971) (alteration in original)). Henry asserts that her
treatment was a result “of her lower economic status,” and her
race, sex, and national origin (she is “a black woman from
Jamaica”). TAC ¶ 59. But we need not accept this bare
conclusion, and she offers no other allegations to support it.
Iqbal,
556 U.S. at 678-79
.


6
  The TAC does not specify which subsection of
42 U.S.C. § 1985
 this count relies on. In her briefing, Henry identifies
subsection (3).




                              15
       Henry also brings a cumulative claim under a provision
of the New Jersey Civil Rights Act (“NJCRA”), which she says
provides her an action against the Marshals for violations of
her constitutional rights. N.J.S.A. § 10:6-2(c). In response, the
Marshals direct us to the Westfall Act,
102 Stat. 4563
-67
(1988), which made the Federal Tort Claims Act “the exclusive
remedy for most claims against [federal] Government
employees arising out of their official conduct.” Hui v.
Castaneda,
559 U.S. 799, 806
 (2010);
28 U.S.C. § 2679
(b)(1).
Henry offered no counterargument in her papers or at oral
argument. The Westfall Act only offers two exceptions to its
exclusivity—one for Bivens actions, and the other for actions
under federal statutes.
28 U.S.C. § 2679
(b)(2); United States
v. Smith,
499 U.S. 160, 166-67
 (1991). A suit under the
NJCRA fits neither. 7
                                *****




7
  Judge Porter does not join this paragraph holding that Henry
lacks a converse-1983 cause of action under New Jersey law
because the NJCRA creates a remedy for violations of
substantive constitutional rights committed by “person[s]
acting under color of law,” and the Marshals were “acting
under color of [federal] law” in connection with Henry’s arrest.
N.J.S.A. § 10:6-2(c). Judge Porter is not confident that the
Westfall Act bars suits “brought for a violation of the
Constitution of the United States” like Henry’s.
28 U.S.C. § 2679
(b)(2)(A). But even if Henry has a cause of action under
the NJCRA, Judge Porter would reverse because “Henry’s
mistaken-identity arrest was . . . constitutionally valid” and the
Marshals are thus entitled to qualified immunity. Part II.B,
supra.




                               16
        We thus reverse the order of the District Court denying
the Marshals’ motion to dismiss and remand to that Court for
it to dismiss Henry’s claims against the Marshals.




                              17