Can a Bivens action be brought against private individuals who have acted in concert with federal agents so as to have been acting under color of federal law?

This court recently discussed a similar argument in Fonda v. Gray, 707 F.2d 435, 437 (9th Cir.1983), where we noted that no case has yet expressly recognized a Bivens cause of action against private parties, but declined to decide the issue because there was insufficient evidence in that case that the private individuals deliberately participated in the federal agents' allegedly unconstitutional activities.

Here, too, we may assume without deciding that a Bivens action may be brought against private individuals who have acted in concert with federal agents so as to have been "acting under color of federal law." The district court's order was still proper. As plaintiff acknowledges, under his theory the individual tribal officials would be entitled to claim the same qualified immunity accorded state and federal officials in section 1983 and Bivens actions; they are immune insofar as their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). The district court found that these tribal officials unquestionably were acting within the scope of their official capacities, and pursuant to the opinions of the BIA as to the validity and propriety of the assignments under federal regulations. Their actions were fully consistent with these government regulations

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D. Injunctive Relief