Dwight Brunoehler v. Jeremy Tarwater ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWIGHT C. BRUNOEHLER, No. 16-56634
Plaintiff-Appellant, D.C. No.
2:15-cv-00688-DMG-JEM
v.
JEREMY R. TARWATER; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted April 10, 2018
Pasadena, California
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.
Dwight Brunoehler appeals the district court’s dismissal of his claims under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971), and the Wiretap Act, 18 U.S.C. § 2520 et seq. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
I.
Dismissal for failure to state a claim is reviewed de novo. Dougherty v. City
of Covina, 654 F.3d 892, 897 (9th Cir. 2011). A party’s standing to bring a claim is
reviewed de novo. Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir.
2016), cert. denied, 137 S. Ct. 1377 (2017). “All allegations of material fact are
taken as true and construed in the light most favorable to the nonmoving party.”
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
II.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
1. Bivens Claims
Brunoehler seeks Bivens relief for claims that FBI Special Agents Jeremy
Tarwater and Charles Koepke (the Agents) intercepted his telephone
conversations, obtained search warrants, and arrested him without probable cause,
2 16-56634
in violation of the Fourth Amendment.1 The district court dismissed Brunoehler’s
Bivens claims for failure to state a claim, concluding that alternative processes
could remedy his alleged harms.
“Bivens established that the victims of a constitutional violation by a federal
agent have a right to recover damages against the official in federal court despite
the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14,
18 (1980). However, the Supreme Court has since “adopted a far more cautious
course before finding implied causes of action.” Ziglar v. Abbasi, 137 S. Ct. 1843,
1855 (2017). Thus, the “first question” we must consider is whether this “case is
different in a meaningful way from previous Bivens cases decided by” the Supreme
Court. Id. at 1864 (internal quotation marks omitted). If a case is “meaningfully
different” from Bivens or its progeny, we then consider “whether there were
alternative remedies available or other sound reasons to think Congress might
1
While Brunoehler at times summarizes his claims in a single sentence,
Brunoehler alleges separate claims. Although, as the Dissent asserts, there is some
link between the allegedly illegal wiretap and unlawful search and arrest,
Brunoehler alleges that the Agents invaded his privacy on two separate occasions.
The Dissent states that because Brunoehler failed to allege an illegal wiretap claim,
all related claims fail. However, Bivens relief turns, in part, on what other forms of
relief are available. See Ziglar, 137 S. Ct. at 1858. Here, Brunoehler alleges two
different violations of his Fourth Amendment rights—the wiretap, and search and
arrest—each of which require a separate Bivens analysis where the possible relief
is different under the separate claims. Brunoehler’s failure to allege the wiretap
claim does not foreclose the opportunity to allege the unlawful search and arrest
claims. We find that Brunoehler alleges sufficient factual matter to state two
plausible Bivens claims. See Iqbal, 556 U.S. at 678.
3 16-56634
doubt the efficacy or necessity of a damages remedy in a suit like this one.” Id. at
1865 (internal quotation marks omitted).
A. Bivens: Wiretap
Brunoehler contends that the district court erred when it dismissed his claim
for unlawful wiretapping. Ziglar provides that a meaningful difference from Bivens
may be the application of another “legal mandate” to the allegedly unconstitutional
conduct. Id. at 1860. Here, the Wiretap Act was another “legal mandate under
which the [Agents were] operating.” Id. Given the Supreme Court’s observation
that “even a modest extension is still an extension” of Bivens, we conclude that the
application of an extensive statutory scheme like the Wiretap Act constitutes a
meaningful difference from Bivens, which concerned only the Fourth Amendment.
Id. at 1864.
Further, under Ziglar, an extension of Bivens is not available here. “[I]f there
is an alternative remedial structure present in a certain case, that alone may limit
the power of the Judiciary to infer a new Bivens cause of action.” Id. at 1858.
“Alternative remedial structures” may take many forms, including statutory
remedies. Id. Because the Wiretap Act provides for damages when agents
improperly obtain wiretaps, Brunoehler had an adequate alternative remedy for his
alleged harm. That Brunoehler’s claims under the Wiretap Act ultimately failed for
lack of standing does not mean he did not have access to alternative remedies, but
4 16-56634
rather that he lacked standing to challenge the wiretaps at issue. Thus, in light of
the available alternative remedies, we decline to extend Bivens in this context, and
conclude that the district court did not err when it dismissed Brunoehler’s claim for
unlawful wiretapping.
B. Bivens: Search and Arrest
Brunoehler next contends that the district court erred in dismissing his
claims for unlawful search and arrest.
First, Brunoehler sufficiently alleges that the Agents arrested him without
probable cause. In Bivens, the Supreme Court held that the complaint, “fairly
read,” sufficiently alleged “that the arrest was made without probable cause” even
though it did “not explicitly state that the agents had no probable cause . . . [rather
it alleged] that the arrest was ‘done unlawfully, unreasonably and contrary to
law.’” 403 U.S. at 389 & n.1. Here, Brunoehler unequivocally alleges that the
search and arrest lacked probable cause.2 As the Supreme Court determined in
Bivens that there was no failure in sufficiency of allegations despite the absence of
the words “probable cause,” we also conclude there is no such failure here where
2
Additionally, while Brunoehler fails to allege a claim based on the unlawful
wiretap, we note that the district court judge dismissed the criminal case against
Brunoehler on the government’s motion after testimony revealed that the Agents
provided false and/or incomplete information in the wiretap application. These
facts and Brunoehler’s allegations, taken as true, sufficiently allege that the Agents
did not have probable cause to search and arrest Brunoehler. See Iqbal, 556 U.S. at
678.
5 16-56634
Brunoehler more specifically alleges the lack of probable cause. Contrary to the
Dissent’s assertion, the Supreme Court’s jurisprudence is clear that particularity is
not the standard for stating a claim. See Iqbal, 556 U.S. at 678. Further, the
Dissent’s argument that Brunoehler failed to challenge the basis for the Grand Jury
indictment similarly fails. Brunoehler does allege that the Grand Jury lacked
probable cause, pointing to the insufficiency and issues in evidence that the Agents
produced and relied upon to obtain the indictment against him.3 At the motion to
dismiss stage, we find that Brunoehler stated sufficient factual matter, taken as
true, that it is plausible the Agents arrested him without probable cause. See Iqbal,
556 U.S. at 678.
Second, Brunoehler’s search and arrest claim does not extend Bivens. In
Bivens, the plaintiff alleged that federal agents searched his home for narcotics and
handcuffed him without probable cause. 403 U.S. at 389. Here, Brunoehler alleges
that the Agents obtained search warrants and arrested him in his home without
probable cause.4 Instead of drug crimes, Brunoehler was arrested for securities
3
Brunoehler alleges,“[o]ne of the few statements by Mr. Brunoehler which were
mentioned in the Indictment was his statement that there was ‘monkey business’
going on at Biostem. Defendants purposefully and intentionally took that statement
completely out of context. Mr. Brunoehler’s statement regarding ‘monkey
business’ is not by any objective standard, evidence that he committed any crime.”
4
The Dissent contends that the Agents were operating under a different “legal
mandate,” the warrant, which makes the case meaningfully different from Bivens.
This argument is not persuasive. The Agents cannot rely on their own misconduct,
which Brunoehler challenges through sufficient allegations, to bar Brunoehler’s
6 16-56634
violations. But the difference in the underlying criminal charges is not the kind of
“meaningful difference” envisioned in Ziglar; regardless of the crime alleged, the
requirement of probable cause is the same under the Fourth Amendment. See 137
S. Ct. at 1859–60.
Moreover, Ziglar does not require that there be perfect factual symmetry
between a proffered Bivens claim and Bivens itself. Rather, Ziglar explicitly
preserved “the continued force, or even the necessity, of Bivens in the search-and-
seizure context in which it arose.” Id. at 1856. We therefore conclude that
Brunoehler’s unlawful search and arrest claims are not “meaningfully different”
from Bivens, which involved the same claims—albeit for different crimes—in
virtually the same search-and-seizure context. Thus, Brunoehler’s allegation of
unlawful search and arrest does not seek an extension of Bivens, and the district
court erred when it dismissed those claims.
2. Wiretap Act Violation Claims
Brunoehler also asserts claims under the Wiretap Act, namely that the
Agents’ applications for the initial wiretaps (the Possino Wiretaps) did not meet
the “necessity” requirement. He alleges that information obtained from the
Possino Wiretaps was used to obtain a later wiretap (the Mazur Wiretap) that
Bivens claim. See Groh v. Ramirez, 540 U.S. 551 (2004) (recognizing, in a Bivens
cause of action, that an officer who prepares the invalid warrant may not argue that
he relied on the judge’s assurance that the warrant was valid).
7 16-56634
intercepted his communications. The district court concluded that Brunoehler only
had standing to challenge the Mazur Wiretap application. Brunoehler argues that
he has standing to challenge all of the wiretap applications cited in his second
amended complaint, including the Possino Wiretaps.
Standing to challenge a wiretap is limited to those “whose Fourth
Amendment rights were violated by the interception.” United States v. Gonzalez,
Inc., 412 F.3d 1102, 1116 (9th Cir. 2005), amended on denial of reh’g, 437 F.3d
854 (9th Cir. 2006). “The touchstone for Fourth Amendment standing analysis is
whether the individual asserting her right to challenge the interception had a
reasonable expectation of privacy in the place where the wiretap was used.” Id. at
1116; see also United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (“[A]
defendant may move to suppress the fruits of a wire-tap only if his privacy was
actually invaded; that is, if he was a participant in an intercepted conversation, or if
such conversation occurred on his premises.”).
As applied here, Brunoehler cannot extend his standing to challenge the
Mazur Wiretap application to include the Possino Wiretap applications. Brunoehler
does not allege that the Possino Wiretaps targeted him or intercepted any of his
calls. He thus fails to allege how he had a reasonable expectation of privacy in the
calls captured with the Possino Wiretaps. Gonzalez, Inc., 412 F.3d at 1116.
Therefore, even if the Mazur Wiretap application relied on the proceeds of the
8 16-56634
Possino Wiretaps, those proceeds did not implicate Brunoehler’s Fourth
Amendment rights, or by extension his standing under the Wiretap Act. Because
Brunoehler appears to challenge only wiretap applications he has no standing to
challenge, he has failed to state a claim. See Vaughn v. Bay Envtl. Mgmt., Inc., 567
F.3d 1021, 1024 (9th Cir. 2009). Accordingly, the district court did not err in
concluding that Brunoehler lacks standing to challenge the wiretaps at issue in his
complaint. 5
III.
In sum, we reverse the district court’s dismissal of Brunoehler’s Bivens
claim to the extent he claims the Agents issued a search warrant and arrested him
without probable cause, but affirm its dismissal of his Bivens claim to the extent he
claims the Agents subjected him to an unlawful wiretap. We also affirm the district
court’s dismissal of Brunoehler’s Wiretap Act claims for lack of standing.
AFFIRMED in part, REVERSED in part, and REMANDED.
5
Notably, Brunoehler’s second amended complaint challenges only the necessity
of the Possino Wiretaps, not the Mazur Wiretap.
9 16-56634
FILED
Brunoehler v. Tarwater, et al, No. 16-56634 JUL 19 2018
CARLOS T. BEA, Circuit Judge, dissenting in part MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the Majority that Dwight Brunoehler’s Wiretap Act claim
should be dismissed because he does not have standing to challenge the wiretap he
alleges was based on a faulty application. However, I think Brunoehler has entirely
failed to state a claim under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 91 S. Ct. 1999 (1971). I therefore respectfully dissent in part.
I.
Dwight C. Brunoehler was indicted on January 29, 2013 for conspiracy to
commit securities fraud in connection with a pump-and-dump scheme 1 involving
Biostem, the company for which Brunoehler served as Chief Executive Officer
(CEO). The case against Brunoehler was eventually dismissed, but not before
Brunoehler was indicted by a Grand Jury and subsequently arrested and charged.
Brunoehler alleges that he was arrested after the government gathered evidence
from unlawfully obtained wiretaps.
1
A “pump and dump” scheme is a scheme whereby a person issues press releases
or other public information in order artificially to inflate the price of a stock (the
pump). When the investing public purchases the stock, and the stock price is
sufficiently high, the co-conspirators then sell their shares in coordination and stop
promoting the stock (the dump), causing the value of the stock to crater, but netting
the co-conspirators a hefty profit.
1
1. The Possino Wiretap
Beginning in May 2010, a cooperating witness notified the FBI of a pump
and dump scheme involving a company called Sports Endurance, Inc., or SENZ.
The alleged participants in the scheme involving SENZ were individuals Regis
Possino, Colin Nix, Tarun Mendiratta, and seven other individuals. In March 2011,
the United States applied for wiretaps of Possino’s and Nix’s cell phones, along
with two landline phones located at their businesses. The Government’s
applications attached a 110 page affidavit in support, signed by FBI Special Agent
Jeremy R. Tarwater, one of the two defendants in this case. Judge Dale S. Fisher,
District Judge (C.D. Cal.), approved the Possino wiretap the same day.
In April and May 2011, the United States applied for three follow-up wiretap
applications, all for Possino phones. Two were supported by affidavits by the other
individual defendant in this case, FBI Special Agent Charles E. Koepke, and the
other was supported by an affidavit signed by Agent Tarwater.
Brunoehler was not mentioned in the Possino wiretap applications – not as a
target, subject or otherwise. Further, Brunoehler does not allege in the Second
Amended Complaint (SAC) – the operative Complaint in this case – that any of his
conversations was intercepted by the Possino wiretaps.
2
2. The Mazur Wiretap
The Possino wiretaps provided the government with evidence of other
market manipulation schemes. As a result, the Government on June 27, 2011 filed
a new wiretap application naming Sherman Mazur and Ari Kaplan as the lead
target subjects, and their cellphones as target phones (the Mazur wiretap). That
same day, Judge Fischer approved the Mazur wiretap application. Brunoehler was
not named in the Mazur wiretap application, and was not a target suspect.
However, Brunoehler’s conversations were intercepted when Mazur’s
cellphone discussions were tapped regarding a possible pump and dump of
Biostem, the company for which Brunoehler served as CEO. Brunoehler was
therefore added as a target subject in the first application to extend the Mazur
wiretaps. Brunoehler admits that the Government acquired sufficient evidence to
justify an indictment against him on the basis of the Mazur wiretaps. SAC ¶ 50. A
Grand Jury indicted Brunoehler, and on February 13, 2013 Brunoehler was
subsequently arrested.
3. Allegations of misconduct against the Government
The defendants, including Brunoehler, moved to suppress the wiretaps. 18
U.S.C. § 2518(1)(c) requires that each wiretap application include “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
3
to be too dangerous.” This is dubbed the “necessity requirement.” U.S. v.
Blackmon, 273 F.3d 1204, 1206 (9th Cir. 2001). In the March 2011 affidavit in
support of the Possino wiretap applications, and in the subsequent affidavits which
extended the Possino wiretap, the Government did not state or mention that
Sherman Mazur – who would become a target of the Mazur wiretap – had
previously cooperated with the FBI. The application also failed to discuss whether
working with Mazur again could be an adequate alternative to the Possino tap – a
potentially crucial fact for the determination of whether the Possino wiretap was
“necessary.”
Judge Stephen V. Wilson, District Judge (C.D. Cal.), held three days of
hearings regarding suppression of the Possino and Mazur wiretaps in February
2014. After the hearings, Judge Wilson ordered further briefing on whether the
Government had met the necessity requirement.
After the briefing schedule was set, but prior to the submission of briefs, the
Government determined that it would not use the evidence obtained from both the
Possino and Mazur wiretaps. The Government then moved the district court to
dismiss the Mazur case against all defendants, including Brunoehler. The court
granted the motion. 2
2
The case against Possino and his co-defendants continued, even without the
benefit of the wiretaps. Multiple defendants ended up pleading guilty. To be clear,
Brunoehler was not a defendant in the Possino case, and Brunoehler does not
4
After the Mazur case was dismissed, Brunoehler filed the instant action
against Agents Tarwater and Koepke, the FBI’s case agents in the Possino and
Mazur investigations, along with the other unnamed agents involved in the two
cases.
otherwise allege that Biostem as a “pump and dump” vehicle was discussed by any
of the speakers intercepted in the Possino wiretaps.
5
II.
A. Wiretap Act Claims
The Majority is correct that Brunoehler does not have standing to bring
claims under the Federal Wiretap Act, 18 U.S.C. § 2510 et. seq. (the Wiretap Act).
The Wiretap Act authorizes an action by a “person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in violation” of the
law. 18 U.S.C. § 2520 (a). An aggrieved person under the Wiretap Act is a “person
who was a party to any intercepted wire, oral, or electronic communication or a
person against whom the interception was directed.” 18 U.S.C. § 2510(11). “The
Supreme Court has interpreted these provisions [in the Wiretap Act] as limiting
standing to challenge wiretaps to persons whose Fourth Amendment Rights were
violated by the interception.” United States v. Gonzalez, 412 F.3d 1102, 1116 (9th
Cir. 2005), amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).
There are two wiretaps at issue in this case: the Possino wiretap, on which
Brunoehler does not allege that he was recorded, and the Mazur wiretap, on which
Brunoehler alleges (and the Government acknowledges) Brunoehler was recorded.
Because Brunoehler has not alleged that he was recorded on the Possino
wiretap, he failed to allege that the Government actually injured him in connection
with that wiretap. Brunoehler therefore may not use the Possino wiretap to
establish his standing in this case.
6
By contrast, Brunoehler was recorded on the Mazur wiretap, meaning that he
is an “aggrieved person” under the Act with respect to that wiretap. 18 U.S.C. §
2510(11). However, Brunoehler does not allege that there was anything wrong
with the Mazur wiretap application, or that his rights were otherwise violated in
connection with the Mazur wiretap. He therefore failed to allege he suffered an
injury from the Mazur wiretap.
Taken together, Brunoehler has failed to show that he was aggrieved in any
way by the wiretaps: the Possino wiretap did not record him, and Brunoehler has
not alleged any claim for relief arising from the Mazur wiretap. 3
3
Even if the Complaint could be read to allege that the Mazur wiretap was
improperly obtained because it was based on information from the Possino
wiretap, that claim would fail. A defendant may not challenge the fruit of an illegal
search if he lacks standing to challenge that search. See Wong Sun v. United States,
371 U.S. 471, 492 (1963) (finding that defendant could not seek the exclusion of
drugs illegally seized from a co-defendant because the illegal seizure “invaded no
right of privacy or person or premises which would entitle [the defendant] to object
to its use at trial.”). Multiple circuits have extended this logic to wiretap evidence
as well. See, e.g., United States v. Fury, 554 F.2d 522, 526 (2d Cir. 1977) (finding
that defendant “cannot challenge [the first wiretap] indirectly by seeking to
suppress evidence from [the subsequent wiretap] on the ground that the
[subsequent wiretap] was authorized in part on the basis of information from the
[first wiretap].”). See also United States v. Gibson, 500 F.2d 854, 855 (4th Cir.
1974) (finding “fruit of the poisonous tree” principle would not permit defendant
to challenge a wiretap that did not target him, even though that wiretap lead to
information implicating the defendant); United States v. Scasino, 513 F.2d 47, 51
(5th Cir. 1975) (finding that “one cannot assert indirectly what he cannot assert
directly,” meaning the “defendants have no standing to suppress evidence from” a
wiretap that did not intercept those defendants’ communications.); United States v.
Williams, 580 F.2d 578, 583 n. 21 (D.C. Cir. 1978) (“…an accused is unable to
attack in this indirect fashion those wiretaps that he could not challenge directly.”).
7
B. Bivens Claim
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 91
S. Ct. 1999 (1971), the Supreme Court considered whether a plaintiff had a private
right of action against federal officers for a Fourth Amendment violation. In that
case, federal officers entered Bivens’s apartment, manacled Bivens in front of his
wife and children, threatened to arrest his family, and searched his apartment.
Bivens was then interrogated, booked, and subjected to a strip search. Bivens
alleged that the arrest and search were effected without a warrant or probable
cause. Id. at 389. The Court ruled that it would enforce a damages remedy against
the federal officers despite the absence of any statutory authorization for such suit.
Such extra-statutory constitutional claims against federal officers have
subsequently been referred to as “Bivens claims.”
Since Bivens was decided, however, Bivens claims have been recognized in
only two subsequent Supreme Court cases: a claim against a Congressman by an
administrative assistant who claimed she was fired because she was a woman,
Davis v. Passman, 442 U.S. 228 (1979), and a claim by a prisoner’s estate who
sued federal jailers for failing to treat the prisoner’s asthma. Carlson v. Green, 446
U.S. 14 (1980). As the Supreme Court noted last year, “[t]hese three cases –
Bivens, Davis, and Carlson – represent the only instances in which the Court has
As shown, Brunoehler lacks standing to challenge the Possino wiretaps; he cannot
claim it yielded tainted fruit to invalidate the Mazur wiretap.
8
approved of an implied damages remedy under the Constitution itself.” Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017).4 The Court also noted in Ziglar that Bivens was
the product of an “ancien regime…[when] the Court assumed it to be a proper
judicial function to provide such remedies as are necessary to make effective a
statute’s purpose,” and that therefore “it is possible that the analysis in the Court’s
three Bivens cases might have been different if they were decided today.” Id. at
4
The Court in Ziglar also noted cases in which a Bivens remedy was not
recognized.
For example, the Court declined to create an implied damages remedy
in the following cases: a First Amendment suit against a federal
employer, Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct. 2404, 76
L.Ed.2d 648 (1983); a race-discrimination suit against military
officers, Chappell v. Wallace, 462 U.S. 296, 297, 304–305, 103 S.Ct.
2362, 76 L.Ed.2d 586 (1983); a substantive due process suit against
military officers, United States v. Stanley, 483 U.S. 669, 671–672,
683–684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); a procedural due
process suit against Social Security officials, Schweiker v.
Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988);
a procedural due process suit against a federal agency for wrongful
termination, FDIC v. Meyer, 510 U.S. 471, 473–474, 114 S.Ct. 996,
127 L.Ed.2d 308 (1994); an Eighth Amendment suit against a private
prison operator, Malesko, supra, at 63, 122 S.Ct. 515; a due process
suit against officials from the Bureau of Land Management, Wilkie v.
Robbins, 551 U.S. 537, 547–548, 562, 127 S.Ct. 2588, 168 L.Ed.2d
389 (2007); and an Eighth Amendment suit against prison guards at a
private prison, Minneci v. Pollard, 565 U.S. 118, 120, 132 S.Ct. 617,
181 L.Ed.2d 606 (2012).
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).
9
1857. 5 “As a result,” the Supreme Court “urged caution before
extending Bivens remedies into any new context.” Id.There is a four step process to determine whether a Bivens claim may be
brought.
First, because Bivens claims are “implied private action[s] for damages
against federal officers alleged to have violated a citizen’s constitutional rights,”
W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009), we
must determine as a preliminary matter whether the plaintiff has actually pleaded
that his constitutional rights were violated.
Second, assuming there has been a constitutional violation, we determine
whether the Bivens claim represents a “new context” for Bivens, or is instead
governed squarely by one of Bivens, Davis, or Carlson. The Ziglar Court ruled that
“[i]f the case is different in a meaningful way from previous Bivens cases decided
by this Court, then the context is new.” Id.Third, assuming that the claim is an “extension” of Bivens, we decide
whether “any alternative, existing process for protecting the interests” exists.
5
The term “ancien regime,” or “old regime,” is a term first used to describe the
Bourbon monarchy of France, which was in power from the Late Middle Ages
through to the French Revolution of 1789 – a form of government which has never
been reimposed in the next 229 years. It has been 38 years since a Bivens claim has
been recognized by the Court. In the Court’s reckoning, 38 years without a
successful Bivens claim makes such claims “ancien.”
10
Wilkie v. Robbins, 551 U.S. 537, 550 (2007). If such an alternative exists, the
Bivens claim will fail.
Finally, we are instructed to consider whether “even in the absence of an
alternative…special factors counselling hesitation before authorizing a new kind of
federal litigation” exist. Id.i. Brunoehler fails to plead a cognizable injury
The Majority’s first error is its failure to recognize that Brunoehler’s
complaint does not allege any cognizable constitutional injury. This error arises
from the Majority’s mistaken finding that Brunoehler alleged two unrelated Bivens
claims: one claim based on a faulty wiretap, and the other based on his arrest.
In reality, the alleged “injuries” are inextricably linked: Brunoehler claims 1)
he was improperly surveilled, and 2) as a result of that improper surveillance, he
was arrested. As Brunoehler himself summarizes his claims: “But for the omission
that there were other less-intrusive, normal investigative procedures open to them,
the wiretap orders would not have been issued and Mr. Brunoehler would not have
been indicted and arrested, or suffered damages as a consequence.” SAC ¶ 50. See
also id., ¶ 52: “This claim for relief is brought pursuant to Bivens for violations of
Mr. Brunoehler’s rights … because the Named Agents, Unknown Agents and
Supervisory personnel Agents monitored and intercepted and monitored [sic] Mr.
Brunoehler’s telephone conversations, applied for, obtained and executed search
11
warrants for documents concerning Mr. Brunoehler [and] caused Mr. Brunoehler
to be indicted and arrested without probable cause.”
Brunoehler’s injury, then, flowed from the allegedly illegal wiretaps.
However, as the Majority itself recognizes, Brunoehler has not stated a claim that
he suffered any injures from those allegedly illegal wiretaps wiretaps: he does not
have standing to challenge the Possino wiretap because he was not recorded on it,
and he has not alleged that there was any deficiency in the Mazur wiretap to make
it illegal. There can be no Bivens claim if there is no cognizable constitutional
harm to be remedied. Here, Brunoehler pleaded none.
The Majority appears to credit Brunoehler’s statement that he was “arrested
without probable cause.” The Majority therefore determines that Brunoehler has a
separate basis for claiming a Fourth Amendment harm – his arrest “without
probable cause,” entirely apart from the allegedly problematic wiretap. However,
there is a fatal flaw to the Majority’s ruling: Brunoehler does not sufficiently plead
that he was arrested “without probable cause.”
Brunoehler’s SAC contains no particularized allegations of official
wrongdoing apart from allegations related to the wiretaps. While Brunoehler
repeats throughout the SAC the allegation that he was arrested “without probable
cause,” it appears that what he means by that phrase is that he was arrested on the
basis of information which was improperly obtained in the wiretaps. Brunoehler
12
does not allege the Grand Jury which indicted him prior to his arrest did so without
probable cause to believe that he had committed the crime for which he was
charged. More importantly, he does not explain how, despite the Grand Jury
indictment, the federal officers lacked “probable cause” to arrest him. Indeed, such
a claim would be quite difficult to make, as “[a] warrant of arrest can be based
upon an indictment because the Grand Jury's determination that probable cause
existed for the indictment also establishes that element for the purpose of issuing a
warrant for the apprehension of the person so charged.” United States v.
Greenberg, 320 F.2d 467, 471 (9th Cir. 1963). See also Garmon v. Lumpkin Cty.,
Ga., 878 F.2d 1406, 1409 (11th Cir. 1989) (“When an arrest warrant is based upon
an indictment, the Grand Jury's determination that probable cause existed to return
the indictment also establishes that probable cause existed for the issuance of
an arrest warrant for the person charged.”). Brunoehler does not impugn in any
detail the evidence used to support the warrant for his arrest, nor explain why that
evidence does not suffice to support probable cause for the arrest.6
6
The Majority notes that “the district court judge dismissed the criminal case
against Brunoehler on the government’s motion after testimony revealed that the
Agents provided false and/or incomplete information in the wiretap application,”
and contends that such dismissal supports Brunoehler’s claim that the officers
lacked probable cause to arrest him. Slip Op. at *5. The dismissal of the case is a
red herring, and the Majority’s statement to the contrary is flatly irreconcilable
with its ruling on the Wiretap Act claim itself. The Majority recognizes that there
are two wiretaps at issue in this case: 1) the Possino tap; and 2) the Mazur tap. The
Majority also acknowledges that 1) Brunoehler has no standing to challenge the
13
In other words, to the extent that Brunoehler alleged that he was “arrested
without probable cause,” he failed to do so with the required factual particularity.
In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made clear that
to “survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face,” and that a
“claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Brunoehler has alleged no facts from which we can draw the
reasonable inference that his arrest was based on anything other than the probable
cause found by the Grand Jury Indictment and generated by the wiretaps – wiretaps
which he has no basis to challenge.
Thus, Brunoehler’s failure to plead any constitutional injury is fatal to his
Bivens claim.
ii. Brunoehler’s arrest is an “extension” of Bivens
Possino tap, and 2) Brunoehler failed to allege any defect with the application in
support of the Mazur tap. Slip Op., Part II.2. The Majority therefore (correctly)
rules that Brunoehler’s claims under the Wiretap Act should be dismissed. How
then is the Government’s voluntary dismissal of its criminal case, following the
revelation that there was a possible defect with the affidavit in support of the
Possino wiretap, suddenly relevant to the Bivens claim? It is not. The Majority
states that the Agents cannot “rely on their own misconduct” to generate probable
cause to arrest Brunoehler. Slip op. at *7. But again, there is no “misconduct”
alleged with respect to the Mazur wiretap – the actual wiretap on which Brunoehler
was recorded. Brunoehler has no basis to challenge the Mazur wiretap to support
his Wiretap Act claim. He does not suddenly have a basis to challenge it or the
probable cause it generated to support his Bivens claim.
14
The Majority’s second error is its determination that Brunoehler’s arrest
does not represent a “new context” for Bivens purposes, even if his arrest was
somehow “without probable cause” despite the existence of a valid Grand Jury
indictment.
The Majority states,
In Bivens, the plaintiff alleged that federal agents searched his home
for narcotics and handcuffed him without probable cause. 403 U.S. at
389. Here, Brunoehler alleges that the Agents obtained search
warrants and arrested him in his home without probable cause. Instead
of drug crimes, Brunoehler was arrested for alleged securities
violations. But this is not the kind of “meaningful difference”
envisioned in Ziglar; regardless of the crime alleged, the requirement
of probable cause is the same under the Fourth Amendment.
Moreover, Ziglar did not require perfect factual symmetry
between a proffered Bivens claim and Bivens itself. Rather, Ziglar
explicitly preserved “the continued force, or even the necessity of
Bivens in the search-and-seizure context in which it arose.” Id. at
1856. We therefore conclude that Brunoehler’s unlawful search and
arrest claims are not “meaningfully different” from Bivens, which
involved the same claims–albeit for different crimes–in virtually the
same search-and-seizure context. Thus, Brunoehler’s allegation of
unlawful search and arrest does not seek an extension of Bivens, and
the district court erred when it dismissed those claims.
Slip Op. at 7. In Ziglar, the Court stated that “[t]he proper test for determining
whether a case presents a new Bivens claim is as follows. If the case is different in
a meaningful way from previous Bivens cases decided by this Court, then the
context is new.” Ziglar, 137 S. Ct. at 1859-60 (Kennedy, J.). The Court then gave a
non-exhaustive list of what may be “meaningful” differences:
15
the rank of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of judicial
guidance as to how an officer should respond to the problem or the
emergency to be confronted; the statutory or other legal mandate
under which the officer was operating…or the presence of other
special factors that previous Bivens cases did not consider.
Ziglar, 137 S. Ct. at 1859-60.
The Majority concludes that Brunoehler’s arrest was not meaningfully
different than Bivens’s. The Majority is incorrect, because Bivens was subjected to
a warrantless arrest, see Bivens, 403 U.S. at 389-90, and Brunoehler was arrested
pursuant to a warrant which followed a Grand Jury indictment. The difference is
crucial: the officers whom Brunoehler now sues were operating under a different
“legal mandate,” Ziglar, 137 S. Ct. at 1860, than were the officers in Bivens, who
executed a warrantless search without probable cause. As a result, per Ziglar, the
difference between our case and Bivens is “meaningful.” Id. 7
7
Even if we were to find that the evidence used by the Grand Jury to support its
indictment was the fruit of a Fourth Amendment violation, that would have no
effect on the validity of the Grand Jury indictment or the arrest. As we noted
in United States v. Zielezinski, 740 F.2d 727, 729 (9th Cir. 1984), "Grand juries can
properly indict suspects on the basis of hearsay,...evidence seized in violation of
the Fourth Amendment,...or evidence obtained in violation of the Fifth
Amendment." (internal citations omitted). See also United States v. Calandra, 414
U.S. 338, 344–45, 94 S. Ct. 613, 618, 38 L. Ed. 2d 561 (1974) ("The grand jury's
sources of information are widely drawn, and the validity of an indictment is not
affected by the character of the evidence considered.")." An arrest based on a
warrant which follows a valid Grand Jury indictment does not violate the Fourth
Amendment.
16
iii. Other remedies are available
Because there was a “meaningful” difference between Bivens’ warrantless
arrest and Brunoehler’s arrest by execution of an arrest warrant issued based on his
Grand Jury indictment, a correct Bivens analysis would examine and determine
whether “any alternative, existing process for protecting the interests” exists.
Wilkie, 551 U.S. at 550. Such an alternative process does exist: remedies under the
Federal Wiretap Act, 18 U.S.C. § 2510 et. seq. The Federal Wiretap Act identifies
the crimes for which investigating agents may use wiretaps (18 U.S.C. § 2516),
describes the procedure for obtaining a wiretap (18 U.S.C. § 2518), and, most
importantly, provides a civil damages remedy for violating its provisions, 18
U.S.C. § 2520, totally separate from Bivens.
The civil damages remedy provides a successful claimant with
(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
(2) damages under subsection (c) and punitive damages
in appropriate cases; and
(3) a reasonable attorney’s fee and other litigation costs
reasonably incurred. [And]
(c)…
(2)…
(A) the sum of the actual damages suffered by the
plaintiff…
18 U.S.C. § 2520(b)-(c).
The breadth of the available relief in the Wiretap Act obviates the need for a
Bivens action, even one based on a supposed arrest “without probable cause.” It is
17
undisputed that each of Brunoehler’s allegations is traceable to the allegedly
problematic wiretaps. In addition to receiving “actual damages suffered” by a
violation of the Act, the Wiretap Act makes available punitive damages, along with
attorney’s fees and costs. Should Brunoehler prevail in a Wiretap Act claim, then,
he might be compensated for each of the Bivens claims he alleges, and then some.
Brunoehler argues “the District Court negated, undermined or removed its
own premise by dismissing Brunoehler’s alternatives – thereby demonstrating the
absence of any alternative.” (emphasis in original). In other words, he thinks the
Wiretap Act is not an adequate alternative remedy because the district court
dismissed his flawed8 Wiretap Act claim.
This argument is not persuasive. Ziglar did not require that a litigant succeed
in utilizing his available alternatives – what matters to our analysis is that those
alternatives are available to be used in the first place. It is undisputed that
Brunoehler’s allegations stem from the allegedly illegal wiretaps. The Wiretap Act
provides precisely the remedy he seeks through Bivens for any harm which arises
from those wiretaps. Brunoehler should not prevail under Bivens as a result of the
weak case he has under this available alternative. Cf. Minneci v. Pollard, 565 U.S.
118, 130, 132 S. Ct. 617, 625 (2012) (explaining that a Bivens alternative need
only provide “roughly similar incentives for potential defendants to comply with
8
See Wiretap Act Claims, ante, Part II.A.
18
the Eighth Amendment while also providing roughly similar compensation to
victims of violations.”)
III.
The basic premise of a Bivens claim is that a plaintiff has suffered an injury
to his constitutional rights. Each of Brunoehler’s claims flows from wiretaps which
he has no right to challenge, and from which he suffered no constitutional injury.
The Bivens claim therefore fails.
Even if we read Brunoehler’s complaint to state a claim for an illegal arrest,
the Bivens claim still would not lie, for the simple reason that such arrest was made
upon a warrant supported by probable cause based on the Grand Jury’s indictment.
Further, where an adequate alternative remedy is available, the court may not
extend a Bivens claim into a new context. The Wiretap Act provides such an
adequate alternative.
The district court’s dismissal of Brunoehler’s Bivens claim should be
affirmed in full. I therefore respectfully dissent in part.
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