Ernst Zundel v. Eric Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0120p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiffs-Appellants, -
ERNST C. ZUNDEL; INGRID A. ZUNDEL,
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No. 10-6012
v.
,
>
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ERIC H. HOLDER, JR.; IMMIGRATION AND
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NATURALIZATION SERVICE; UNITED STATES
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OF AMERICA; MICHAEL J. CONWAY; JIMMY
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MOUNCE; GARY SLAYBAUGH; JANET
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NAPOLITANO; JAMES BERRONG; DOES I
Defendants-Appellees. -
through X,
N
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 03-00105—Thomas A. Varlan, District Judge.
Argued: January 20, 2012
Decided and Filed: May 7, 2012
Before: SILER, CLAY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Bruce Leichty, LAW OFFICES OF BRUCE LEICHTY, Clovis, California
for Appellants. Christopher W. Hollis, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Suzanne H. Bauknight, ASSISTANT UNITED STATES
ATTORNEY, Knoxville, Tennessee, Norman H. Newton, CRAWFORD, CRAWFORD
& NEWTON, Maryville, Tennessee, for Appellees. ON BRIEF: Bruce Leichty, LAW
OFFICES OF BRUCE LEICHTY, Clovis, California for Appellants. Christopher W.
Hollis, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Suzanne
H. Bauknight, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee,
Norman H. Newton, CRAWFORD, CRAWFORD & NEWTON, Maryville, Tennessee,
for Appellees.
1
No. 10-6012 Zundel, et al. v. Holder, et al. Page 2
_________________
OPINION
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ROGERS, Circuit Judge. Ernst Zundel, a German citizen, and his wife, Ingrid
Zundel, a United States citizen, appeal the district court’s dismissal of their claims
stemming from Mr. Zundel’s deportation in 2003. Mr. Zundel entered the United States
in March 2000 under the Visa Waiver Pilot Program (VWPP), 8 U.S.C. § 1187. He
subsequently filed for permanent resident status under 8 U.S.C. § 1255. But he failed
to appear for or reschedule the hearing on his application and was subsequently
deported. The Zundels filed a petition for writ of habeas corpus, a petition for writ of
mandamus, a claim for injunctive relief under the Administrative Procedure Act, and a
Bivens action on behalf of Mrs. Zundel for loss of consortium and companionship. The
district court dismissed Mr. Zundel’s petition for writ of habeas corpus. On appeal, this
court converted his habeas petition into a petition for review under the REAL ID Act of
2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, and denied the petition. Zundel v.
Gonzalez, 230 F. App’x 468 (6th Cir. 2007) (Zundel II). The district court then
dismissed the Zundels’ remaining claims and denied their motion to amend their
complaint for a third time. Mr. Zundel’s challenge to the determination that he last
entered the United States under the VWPP is barred by the doctrine of res judicata. In
addition, Mr. Zundel has not shown that this court has subject matter jurisdiction over
his challenge to the bar of inadmissibility imposed as a consequence of his removal.
Finally, Mrs. Zundel’s Bivens claim for loss of consortium and companionship fails to
state a claim upon which relief can be granted, and Mr. Zundel’s proposed Bivens claim
fails on statute of limitations grounds.
I.
This appeal marks the Zundels’ third appearance before this court in this action.
Zundel v. Berrong, 106 F. App’x 331 (6th Cir. 2004) (Zundel I); Zundel II, 230 F. App’x
468. Ernst Zundel is a German citizen who, prior to entering the United States in 2000,
lived in Canada for 42 years. Mr. Zundel entered the United States on March 12, 2000,
No. 10-6012 Zundel, et al. v. Holder, et al. Page 3
under the VWPP, 8 U.S.C. § 1187.1 This pilot program permitted aliens from certain
countries to enter the country as non-immigrant visitors without a visa for a period not
to exceed ninety days if the alien waived “any right . . . to contest, other than on the basis
of an application for asylum, any action for removal of the alien.” 8 U.S.C.
§ 1187(b)(2). Zundel left the country shortly after his March arrival but returned on May
21, 2000—before the ninety-day period expired.
Zundel eventually moved to Sevier County, Tennessee, where he lived with his
wife, Ingrid, whom he had married on January 19, 2000. He applied for permanent
residency under 8 U.S.C. § 1255 on the basis of his marriage. The Immigration and
Naturalization Service (INS)2 notified Zundel that he would be interviewed on June 12,
2001, at the Memphis INS office. Zundel’s attorney, however, could not attend the
scheduled hearing and purportedly made a written request to reschedule the interview
on May 23, 2001. The INS did not contact him to reschedule the interview. Nor did the
agency contact Zundel’s attorney after he allegedly sent a follow-up letter on May 23,
2002, again asking to reschedule the interview. Zundel’s INS file does not contain a
record of either request. In the meantime, on January 30, 2002, the INS denied Zundel’s
application for permanent residence because he failed to appear for the hearing on June
12, 2001.
Zundel’s next contact with the INS occurred on February 5, 2003, when he was
arrested at his home by officers of the Sevier County Sheriff’s Department, acting in
coordination with the INS. Officers transported Zundel to the Blount County,
Tennessee, jail. At the time, officers provided him with a letter, entitled “Decision,” that
explained that his failure to appear for his scheduled interview and his subsequent failure
to reschedule or withdraw his application for permanent residence resulted in its
termination because it was deemed abandoned. The letter informed Zundel that he could
1
The Pilot Program was made permanent on October 30, 2000. See Visa Waiver Permanent
Program Act, Pub. L. No. 106-396, 114 Stat. 1637 (2000).
2
The INS has been abolished and its functions transferred to the Department of Homeland
Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C.
§§ 101–557.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 4
not appeal the decision. That same day, officials also presented Zundel with a Warrant
of Deportation. On February 13, 2003, the Zundels filed in the district court a “Writ of
Habeas Corpus, Petition for Temporary Restraining Order and Preliminary Injunction,
Complaint for Constitutional Violations, Petition to Set Bond.” This petition challenged
Mr. Zundel’s detention and pending deportation by the INS. The district court denied
the Zundels’ request for emergency relief without entering a judgment. The Zundels
appealed.
On February 14, 2003, this court denied the Zundels’ request for an emergency
motion to stay removal. On February 17, 2003, the INS deported Zundel, releasing him
into Canadian custody. Upon his departure, the INS provided Zundel with a notice
informing him that, under 8 C.F.R. § 217.4(b)(1), he qualified as an alien deportable
under one or more sections of the Immigration and Nationality Act (INA) § 237,
8 U.S.C. § 1227. The notice informed Zundel that he was prohibited from entering,
attempting to enter, or being in the United States for a period of ten years from the date
of his departure pursuant to § 212(a)(9) of the INA, 8 U.S.C. § 1182(a)(9). Further,
because Zundel had been in the United States unlawfully for more than a year, the notice
stated that he was prohibited from entering, attempting to enter, or being in the United
States for an additional ten years to run consecutively with the first ten years. See
8 U.S.C. § 1182(a)(9)(B)(i)(II). Thus, Zundel’s bar of inadmissibility would run twenty
years from the date of his departure. The notice then warned Zundel of potential
criminal penalties should he enter, attempt to enter, or be found in the United States
without the Attorney General’s express consent.
After Zundel’s departure, this court determined that his removal to Canada
rendered his requests for preliminary relief moot. Zundel I, 106 F. App’x at 334. We
remanded because the Zundels’ requests for permanent relief—i.e., a writ of habeas
corpus vacating Mr. Zundel’s deportation order and damages for alleged constitutional
violations—required the district court’s consideration prior to any review by this court.
First in September 2004 and again in November 2004, the Zundels filed amended
petitions for a writ of habeas corpus, a writ of mandamus, injunctive relief under the
No. 10-6012 Zundel, et al. v. Holder, et al. Page 5
Administrative Procedure Act (APA), 5 U.S.C. §§ 702, et seq., and a Bivens claim for
damages by Mrs. Zundel. The district court dismissed the habeas petition for lack of
subject matter jurisdiction. On a second appeal, this court converted the habeas petition
into a petition for review as required by the recently enacted REAL ID Act of 2005, Pub.
L. No. 109-13, Div. B, 119 Stat. 231. Zundel II, 230 F. App’x at 472. We determined
we could not review Zundel’s claim that the removal decision was motivated by the
federal government’s hostility directed at his political beliefs; 8 U.S.C. § 1252(g) does
not permit review of the Attorney General’s discretionary decision to “commence
proceedings.” As for Zundel’s claim that the INS erroneously determined that he
entered the country under the VWPP and thereby waived his right to contest his removal,
§ 1252(g) did not bar judicial review of that decision. Even so, we held that because
Zundel’s most recent entry into the United States on May 21, 2000, occurred within the
ninety-day admission period for which he had been provided a waiver under the VWPP,
he waived, under 8 U.S.C. § 1187(b)(2), his right to contest removal. We therefore
denied his petition for review. Zundel II, 230 F. App’x at 476. We did not address
Zundel’s claims for injunctive relief under the APA, nor did we consider his mandamus
claim or Mrs. Zundel’s Bivens action.
The federal defendants moved to dismiss the Zundels’ remaining claims on
March 25, 2008. James Berrong, Sheriff of Blount County, Tennessee, also filed a
renewed motion to dismiss. The Zundels then sought to amend their pleadings a third
time. The proposed Third Amended Complaint and Petition removed Mr. Zundel’s
petition for writ of habeas corpus but added substantive allegations concerning Mr.
Zundel’s February 2003 arrest in Tennessee; amended the prayer for relief to “state and
clarify” the Zundels’ claims for writ of mandamus and injunctive relief under the
Administrative Procedure Act; added a claim for Bivens damages on behalf of Mr.
Zundel; converted the official capacity claims against federal defendants John Ashcroft
and Tom Ridge into individual capacity claims; and added Condoleeza Rice as a federal
defendant.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 6
The district court concluded that Zundel’s various amended complaints and
petitions (including his proposed amendments) essentially restated his initial request for
judicial review of the INS’s discretionary decision to issue an order of removal and were
therefore barred by 8 U.S.C. § 1252(g)—the same issue considered by this court in
Zundel II. The district court then dismissed his claims under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. Further, the district court
denied the Zundels’ motion to file a Third Amended Complaint and Petition as futile
because the amendments failed to cure the jurisdictional defects and because they could
not withstand a motion to dismiss. The district court held that any reconsideration of the
denial of Zundel’s adjustment application was abandoned by operation of law at the time
of his deportation pursuant to 8 C.F.R. § 245.2(a)(4)(ii)(A). Zundel also failed to raise
his proposed Bivens claim within the applicable statute of limitations period. Further,
his relation-back argument under Federal Rule of Civil Procedure 15(c) also failed
because the allegations related to a set of transactions and occurrences different from
those asserted in the prior pleadings. The district court next dismissed Mrs. Zundel’s
Bivens action, holding that the loss of spousal consortium was not a constitutional right
that may be asserted by a spouse in a Bivens action. Even if such a right existed, the
district court held that the federal defendants were entitled to qualified immunity.
Finally, the district court held that Mrs. Zundel did not sue federal defendants Michael
Conway, Gary Slaybough, Jimmy Mounce, and Sheriff Berrong (even if found to have
been acting under color of federal law) in their individual capacities;3 only in the
proposed Third Amended Complaint and Petition did Mrs. Zundel assert an individual
capacity Bivens claim against Attorney General John Ashcroft and Secretary Tom Ridge.
The district court also concluded that neither Attorney General Ashcroft nor Secretary
Ridge was ever personally served as required by Federal Rule of Civil Procedure 4(i)(3).
The district court subsequently denied the Zundels’ motion for reconsideration.
3
At oral argument, the attorney for federal defendants Michael Conway, Gary Slaybough, and
Jimmy Mounce conceded that the three had been sued and served in their individual capacities by Mrs.
Zundel.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 7
On appeal, Zundel claims that the VWPP did not control his last entry into the
United States. He also argues that the district court had subject matter jurisdiction over
his challenge to the twenty-year bar of inadmissibility imposed as a consequence of his
deportation. The Zundels challenge the district court’s denial of Mr. Zundel’s motion
to amend his complaint to add a Bivens claim and the court’s conclusion that Mrs.
Zundel failed to state a claim upon which relief could be granted in her action for Bivens
damages.
II.
The VWPP controlled Zundel’s last entry into the United States on May 21,
2000. Therefore, he may not claim that he actually entered the country as a parolee and
that he did not waive any rights upon entry, including his asserted right to challenge the
lawfulness of his removal. Zundel argued, and this court decided, the applicability of
the VWPP waiver in Zundel II. We decline to revisit that determination.
In Zundel II, Zundel claimed that the INS erroneously determined that he had
entered the country under the VWPP, meaning he waived his right to contest his
removal. 230 F. App’x at 475. Zundel legally entered the United States on March 12,
2000, under the VWPP, 8 U.S.C. § 1187. He executed a Form I-791 or Form I-94W,
VWPP Information Form, whereby he waived his right to review or appeal an
immigration officer’s determination as to his admissibility or to contest any action in
deportation, excluding an application for asylum. On appeal, Zundel argued that his re-
entry into the United States in May 2000 was not governed by the VWPP even though
it occurred within the ninety-day period for which he had been provided a VWPP visa
waiver. This court concluded otherwise and held that Zundel waived his right to contest
his removal pursuant to § 1187(b)(2) of the VWPP, and there is no basis to revisit that
determination.
Zundel did not suffer a Suspension Clause violation because, as he claims, he
was not given an administrative evidentiary hearing to prove he never waived his rights
No. 10-6012 Zundel, et al. v. Holder, et al. Page 8
under the VWPP.4 He acknowledges that he has not been deprived of habeas relief. He
nevertheless contends that he is still entitled to seek relief that would be “equivalent” to
the relief afforded by a writ of habeas corpus because his previous habeas petition was
converted into a petition for review. The district court did not address this argument.
Zundel made a similar argument regarding the need for a hearing that this court
rejected when considering his petition for review in Zundel II. 230 F. App’x at 473. He
previously claimed that converting his habeas petition into a petition for review under
the REAL ID Act would constitute a violation of the Suspension Clause in the absence
of a hearing. Id. This court disagreed:
[T]he REAL ID Act draws no distinction between cases in which a
hearing on the merits of the habeas petition has been held and cases in
which there has been no hearing. Thus, the fact that [Zundel] has not had
a hearing on the merits of his habeas petition does not preclude treating
the habeas petition as a petition for review. . . . [Zundel] has not shown
that a petition for review fails to provide an adequate opportunity for
review of his challenge to his removal and is therefore an inadequate
substitute for the writ, such that treating the habeas petition as a petition
for review would result in a violation of the Suspension Clause.
Id. In another case, this court noted that because a petition for review provides an alien
with the availability of the same scope of review as a writ of habeas corpus, facially at
least, this limitation on habeas relief does not violate the Suspension Clause. Muka v.
Baker, 559 F.3d 480, 485 (6th Cir. 2009).
III.
In his proposed Third Amended Complaint and Petition, Zundel challenges the
INS notice he received upon deportation informing him that he may not enter the country
for a period of twenty years. He argues that the two ten-year bars should not run
consecutively and, in the alternative, that he is not subject to either bar. Zundel’s
challenge to the twenty-year bar of inadmissibility is not ripe for consideration.
4
Zundel did in fact receive a hearing in the district court on November 2, 2004, and November 18,
2004. He describes the proceeding as “a rushed in absentia federal court hearing without benefit of any
discovery rights or evidentiary opportunities after his removal.” Appellant Br. at 14.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 9
The notice provided to Zundel, the equivalent of a Form I-294, is just that—a
notice. It warns the deported alien of the potential criminal penalties associated with any
subsequent illegal reentry. See, e.g., United States v. Fernandez-Cabrera, 625 F.3d 48,
50 (1st Cir. 2010); United States v. Miranda-Ramirez, 309 F.3d 1255, 1257–58 (10th
Cir. 2002); United States v. Mendez-Casillas, 272 F.3d 1199, 1205 n.8 (9th Cir. 2001).
The notice is a “document with no relevant legal force.” United States v. Perez-Torres,
15 F.3d 403, 406 (5th Cir. 1994). Even in cases where a deported alien received an
erroneous Form I-294 misstating the criminal penalties resulting from illegal reentry,
courts have held that such receipt does not provide an appropriate basis for limiting a
defendant’s sentence; nor does this receipt transform a statutorily authorized sentence
into a due process violation. United States v. Cruz-Flores, 56 F.3d 461, 463–64 (2d Cir.
1995).
The district court reached the same conclusion—that Zundel’s claim is not
reviewable—but on different grounds. The court held that Zundel waived his right to
challenge the bars of inadmissibility because he last entered the country under the
VWPP. As a result, the twenty-year bar was not reviewable. This court may affirm the
district court’s dismissal of a plaintiff’s claims on grounds not relied upon by the district
court. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009). Because
Zundel’s claim is not ripe for consideration, we need not reach the waiver question under
8 U.S.C. § 1187(b).
That the notice Zundel received upon his departure has no legal effect does not
deprive him of recourse. First, Mrs. Zundel may file a Form I-130, Petition for Alien
Relative, on his behalf. Next, should he choose, Zundel may apply for reentry into the
United States and raise his concerns about the consecutive application of the bars of
inadmissibility with the appropriate consular official. If he is ultimately denied
admission, he will stand in the same position with respect to any further recourse as
someone who received no notice.
Finally, because the notice has no present legal effect, there is no basis for
exercising our extraordinary power of issuing a writ of mandamus under 28 U.S.C.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 10
§ 1361. Moreover, nothing in the Administrative Procedure Act trumps a proper
ripeness basis for denying judicial review.
IV.
Zundel also requests that this court order the United States Citizenship and
Immigration Services (USCIS) to adjudicate his motion for reconsideration of its denial
of his adjustment of status application. This court lacks jurisdiction over Zundel’s
request because 8 U.S.C. § 1252(g) bars the court from hearing any claim arising from
the Attorney General’s decision to adjudicate (or not adjudicate) cases.
When Zundel failed to appear for his June 2001 interview with the INS, the
agency denied his application and deemed it “abandoned.” Zundel later filed a motion
for reconsideration, which he claims has yet to be adjudicated. The district court
determined that it could not review the denial of his adjustment of status application
because his application was abandoned by operation of law upon his deportation under
8 C.F.R. § 245.2(a)(4)(ii)(A). This appears correct. Zundel, however, claims that the
district court misconstrued his request. According to Zundel, he has not requested
review of the denial of his application. Rather, he requested that the district court order
the USCIS to complete its administrative review of his motion. Zundel has not shown
any statutory or regulatory basis for requiring further consideration of a motion that the
agency has determined to have been abandoned. Although styled a request to complete
review, the agency has made clear that it deems the application to have been abandoned.
Any further “consideration” would only confirm that. Because the law provides that
deportation results in abandonment, there can be no point to requiring further agency
action.
V.
Mrs. Zundel has not stated a constitutional claim under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for loss of
companionship and consortium. Mrs. Zundel contends that, as of February 5, 2003 (the
date of Mr. Zundel’s arrest), she was deprived of the right to her husband’s
No. 10-6012 Zundel, et al. v. Holder, et al. Page 11
companionship and consortium. She expands her claim in her Third Amended
Complaint and Petition to allege that she was also deprived of the benefits of marriage.
In dismissing her claim under Federal Rule of Civil Procedure 12(b)(6), the district court
held that the loss of spousal consortium is not a constitutional right that may be asserted
by a spouse in a Bivens action, and the court deemed her proposed amendment to be
futile. In any event, the court concluded, the defendants would be entitled to qualified
immunity.
Under Bivens, the Supreme Court has recognized a cause of action against federal
officials for certain constitutional violations when no alternative processes exist to
protect the plaintiff’s interests and no special factors counsel against recognizing the
cause of action. 403 U.S. 388; Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir.
2010) (citing Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). Through her Bivens claim,
Mrs. Zundel essentially seeks to circumvent the administrative process governing the
U.S. immigration system and receive damages for what she claims is her husband’s
unlawful deportation. She claims that the federal defendants and Sheriff Berrong, by
deporting her husband, have unconstitutionally interfered with her right to consortium
and companionship with her husband. She frames this right in strong terms, equating
the freedom to marry with the freedom to cohabit with one’s spouse. Even if the
Constitution protects one’s right to consortium and companionship, something we need
not decide, it does not protect the unlimited right Mrs. Zundel asks this court to
recognize.
The Seventh Circuit in Niehus v. Liberio, 973 F.2d 526 (7th Cir. 1992), cautioned
against a similar broad interpretation of consortium. Acknowledging that the Supreme
Court has recognized that the freedom to marry is a liberty interest protected by the Due
Process Clause, id. at 532 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Zablocki v.
Redhail, 434 U.S. 374, 383–86 (1978); Turner v. Safley, 482 U.S. 78, 94–99 (1987)), and
that the sexual dimension of marriage is one of the principal interests encompassed by
the right to consortium as recognized in Griswold v. Connecticut, 381 U.S. 479 (1965),
the court nevertheless declined to embrace an expansive view of a constitutionally
No. 10-6012 Zundel, et al. v. Holder, et al. Page 12
protected right to consortium, Niehus, 973 F.2d at 534. Deprivations of the lesser
services included within the term “consortium” are not deprivations of liberty
contemplated under the Constitution. Id. At one end of the spectrum, the court noted
that a loss of consortium could be as minor and transient as a wife’s losing a month’s
help from her husband in performing household chores; at the other end it could be “as
major as the loss of all spousal services consequent upon an injury that renders the
injured spouse a human vegetable.” Id. In the end, the court declined to recognize the
broad right proposed by the plaintiff.
Like the plaintiff in Niehus, Mrs. Zundel argues that not only is one’s liberty
interest in companionship and consortium protected by the Constitution, but also that the
right is without limitation. The practical effect of endorsing her interpretation would
provide every citizen spouse with a claim for monetary damages should the alien spouse
be lawfully deported. Moreover, her reading would permit individuals whose spouses
have been lawfully incarcerated to sue for damages based on the government’s
involvement in prohibiting their cohabitation during the period of incarceration. In the
prison context, the Supreme Court has recognized a constitutionally protected right to
marriage, Turner, 482 U.S. at 96, but it has not recognized a constitutional right to
engage in contact visits or conjugal visits while incarcerated. See Gerber v. Hickman,
291 F.3d 617, 621 (9th Cir. 2002) (citing Ky. Dep’t of Corrs. v. Thompson, 490 U.S.
454, 460 (1989) (no due process right to unfettered visitation); Block v. Rutherford, 468
U.S. 576, 585–88 (1984) (pretrial detainees have no constitutional due process right to
contact visits)).
Moreover, Mrs. Zundel is not prevented from living with her husband—she
simply may not do so in the United States so long as her husband is lawfully barred from
entering this country. We need not decide whether the Constitution ever protects one’s
right to companionship and consortium, nor whether the spouse of an alien may ever
maintain a Bivens action based on the deprivation of such right. Suffice it to say Mrs.
Zundel may not maintain a claim for the unqualified right she asserts in this context.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 13
VI.
The district court properly denied Mr. Zundel’s attempt to add a Bivens claim
against the federal defendants and Blount County Sheriff James Berrong because that
claim was asserted after the applicable statute of limitations had run and thus could not
survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). In his proposed Third
Amended Complaint filed on June 2, 2008, Zundel alleges that, while incarcerated in the
Blount County Jail in 2003, a “swat team” pulled him and other inmates from their beds
and dragged them down a hall where “barking, salivating dogs snarled two feet from
their faces.” Zundel maintains that Sheriff Berrong knew of these acts and functioned
as a contracting party or agent for the federal government in committing the acts.
Zundel also alleges that Attorney General Ashcroft and Secretary Ridge directed this
abuse. Because these acts occurred in Tennessee in 2003 and the applicable statute of
limitations for Bivens claims in Tennessee is one year, see Tenn. Code Ann. § 28-3-
104(a)(3); Mason v. Dep’t of Justice, 39 F. App’x 205, 207 (6th Cir. 2002), Zundel’s
claim made in 2008 was not timely.
Zundel incorrectly argues that the court should apply a six-year limitation period
as set forth in Tenn. Code Ann. § 28-3-109(a)(2). That statute requires that “[a]ctions
against the sureties of guardians, executors and administrators, sheriffs, clerks, and other
public officers, for nonfeasance, misfeasance, and malfeasance in office” be brought
within six years after the cause of action accrued. Tenn. Code Ann. § 28-3-109(a)(2).
Zundel characterizes his Bivens claim as one for a sheriff’s “nonfeasance, misfeasance,
and malfeasance” in an attempt to avoid the one-year limitations period. In his view,
because a Bivens action is nonstatutory, and because Tenn. Code Ann. § 28-3-104 states
that the one-year period applies to claims brought under federal civil rights statutes, of
which a Bivens claim is not, the one-year period is inapplicable to his Bivens claim.
This court has previously explained that “[i]n addressing the timeliness of a
federal constitutional damages action, ‘the settled practice has been to adopt a local time
limitation as federal law if it is not inconsistent with federal law or policy to do so.’”
Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) (quoting Wilson v. Garcia,
No. 10-6012 Zundel, et al. v. Holder, et al. Page 14
471 U.S. 261, 266–67 (1985)). This practice applies to § 1983 actions and to Bivens
actions because neither the Federal Constitution nor the § 1983 statute provides
timeliness rules governing implied damages. Id. (citing McSurely v. Hutchison, 823 F.2d
1002, 1005 (6th Cir. 1987)). Here, Zundel has not shown that applying the Tennessee
one-year limitations period for personal tort actions is inconsistent with federal law or
policy. Nor can Zundel point to any cases applying Tennessee’s six-year limitations
period to a Bivens claim. Moreover, the Tennessee provision on which Zundel relies
appears to address actions involving the abuse or misuse of a public office by a
sheriff—a claim of a different sort than Zundel’s.
Further, nothing prohibited Zundel from amending his complaint to allege this
claim within the applicable limitations period. First, even though Zundel twice appealed
decisions of the district court, the nature of those appeals meant that the district court
retained jurisdiction to act on other aspects of the action not related to the appeals.
Second, Zundel showed that he knew this and was capable of continuing to litigate the
matter.
On February 13, 2003, Zundel filed a writ of habeas corpus, a petition for a
temporary restraining order and preliminary injunction, and a complaint for
constitutional violations. That same day, the district court denied his request for
emergency relief (i.e., an injunction against his transfer and against his detention without
bond) without entering a judgment. The following day, February 14, 2003, Zundel filed
a notice of appeal. This court then interpreted the district court’s action as merely a
denial of preliminary relief from Zundel’s deportation order and concluded that his
request was moot in light of his deportation. Zundel I, 106 F. App’x at 334. Zundel’s
request for permanent relief—a writ of habeas corpus—remained for the district court’s
decision. This court’s mandate issued on September 27, 2004, over nineteen months
after Zundel filed his notice of appeal.
“As a general rule, an effective notice of appeal divests the district court of
jurisdiction over the matter forming the basis for the appeal.” N.L.R.B. v. Cincinnati
Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). However, “an appeal from an order
No. 10-6012 Zundel, et al. v. Holder, et al. Page 15
granting or denying a preliminary injunction does not divest the district court of
jurisdiction to proceed with the action on the merits.” Moltan Co. v. Eagle-Picher
Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (quoting 9 M. Moore, B. Ward & J.
Lucas, Moore’s Federal Practice ¶ 203.11, at 3–54 (2d ed. 1989)). The district court
retains some jurisdiction to continue deciding other issues during the pendency of an
interlocutory appeal. Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1528–29 (6th Cir.
1992) (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)).
Even though Zundel’s first appeal only concerned the denial of preliminary relief from
removal, he failed to move during the pendency of the appeal to amend his complaint
and add his claim.
Nor did Zundel amend his complaint to add this particular claim after this court
issued its first mandate on September 27, 2004. Zundel filed an amended complaint and
petition on September 24, 2004, and again on November 10, 2004, without including the
claim. When the district court dismissed Zundel’s habeas petition several months later
on February 9, 2005, the court’s judgment made clear that it “shall not stay or terminate
the remaining causes of action as to any claims or parties.” Zundel filed his second
notice of appeal that same day—February 9, 2005. He acknowledged the district court’s
judgment when, in a motion to amend his complaint to allow for the naming of new
United States appointees (Attorney General Alberto Gonzales and Department of
Homeland Security Secretary Michael Chertoff), he stated that the district court’s order
made it clear that his remaining claims had not been stayed or terminated. The district
court denied his motion as procedurally improper on March 8, 2005. On April 15, 2005,
the district court subsequently denied the federal defendants’ motion to dismiss the
remaining claims during the pendency of the appeal. Even so, Zundel continued to
litigate the action, issuing subpoenas to federal employees. Only in October 2005 did
the federal defendants move for a protective order and stay of discovery on the pending
claims, which the district court granted. At this point, over a year had passed since this
court issued its mandate following Zundel’s first appeal.
No. 10-6012 Zundel, et al. v. Holder, et al. Page 16
Zundel may not escape the limitations period by claiming that he did not learn
of the grounds for his Bivens claim until 2006. He alleges that he discovered the
existence of a “federal program of dog intimidation” inflicted on inmates in U.S. county
jails at that time. As the district court correctly held, the alleged misconduct involving
dogs, standing alone, could have supported a Bivens claim even without evidence of
organized federal misconduct.
Finally, Zundel’s claims do not relate back for purposes of Federal Rule of Civil
Procedure 15(c). The allegations of abuse at the Blount County Jail pertained to a new
set of conduct, transactions, and occurrences that were distinct from those raised in
Zundel’s Initial Petition, as well as his First and Second Amended Complaints. Under
Fed. R. Civ. P. 15(c), a party may add a new legal theory to an amended pleading so long
as it arises out of the same transaction or occurrence. Hall v. Spencer Cnty., Ky., 583
F.3d 930, 934 (6th Cir. 2009). While Fed. R. Civ. P. 15(c)(2) does not define the scope
of the terms “conduct, transaction, or occurrence,” the court should ask “whether the
party asserting the statute of limitations defense had been placed on notice that he could
be called to answer for the allegations in the amended pleading.” Id. (quoting Bledsoe
v. Cmty. Health Sys., Inc., 501 F.3d 493, 516 (6th Cir. 2007)). Here, Zundel mentioned
the “dog terrorization” issue on May 17, 2006, in his motion to modify the district
court’s stay and to amend him complaint. But as noted by the district court, his previous
pleadings were based solely on his arrest and deportation—not on abuse he allegedly
suffered at the Blount County Jail. The federal defendants were not on notice that they
could be called to answer for these allegations.
Because Zundel did not attempt to add his claim within the applicable statute of
limitations, the district court correctly denied his motion to amend the complaint and add
the claim. We need not reach the federal defendants’ argument that § 1252(g) also bars
Zundel’s claim.
VII.
For the foregoing reasons, we affirm the judgment of the district court.