Raquel Chavez v. WYNAR

Opinion

RAQUEL CHAVEZ, Case No. 18-cv-02252-BLF

Plaintiff, ORDER GRANTING DEFENDANT’S v. MOTION FOR JUDGMENT ON THE PLEADINGS [Re: ECF No. 162] Defendant.

After six years of whittling down allegations in a once-sprawling complaint, Defendant Roahn Wynar brings this motion for judgment on the pleadings to dismiss the case’s final cause of action, a Bivens claim alleging that Defendant unlawfully detained and questioned Plaintiff Raquel Chavez during the execution of a search warrant in violation of her Fourth Amendment rights. ECF No. 162 (“Mot.”); ECF No. 169 (“Reply”). Plaintiff opposes the motion. ECF No. 167 (“Opp.”). Like the instant action, Bivens too has been pared down in recent years, as determined by the Supreme Court’s recent Abbasi, Hernandez, and Egbert decisions. In light of these recent decisions and after careful consideration, the Court GRANTS Defendant’s motion. A. Factual Background The following allegations are taken from Plaintiff’s Second Amended Complaint, which the Court takes as true for this motion. ECF No. 70 (“SAC”). On the morning of July 11, 2017, at around 9:20 a.m., Wynar and other FBI agents executed a search warrant on Life Savers Concepts Association (“Life Savers”) offices in Sunnyvale, California. Id. ¶¶ 23–25. During the search, four Life Savers employees, including Plaintiff Raquel Chavez (“Raquel”) were held in the main employees were released, Plaintiff continued to be detained. Id. ¶ 54, 56. While detained, Plaintiff was placed in a chair, prevented from leaving, and questioned by Wynar and another agent. Id. ¶¶ 58–64. Plaintiff was detained and questioned for four hours, long after the search concluded at 10:00 a.m. Id. ¶ 97. B. Procedural Background The SAC alleges a host of constitutional violations, but six years of litigation have pared the allegations down to a single remaining claim: Plaintiff’s Fourth Amendment Bivens claim for unreasonable detention and interrogation. ECF No. 84; ECF No. 121 (“SJ Order”) at 25; ECF No. 140 at 5. Specifically, the Court found at summary judgment that a triable issue of fact remained as to “whether Defendant detained Raquel incommunicado and used the threat of continued detention to coerce Raquel to submit to an interrogation, and in turn, whether Defendant’s conduct violated Raquel’s Fourth Amendment rights as a matter of law.” SJ Order at 14. The Court continued “that there is a genuine dispute of material fact as to whether (1) Raquel voluntarily consented to further questioning by Defendant or whether she was ordered to stay and answer questions before she could depart; (2) the length of time that Raquel was detained after the other Plaintiffs were released; and (3) whether Raquel was held incommunicado during her further detention.” Id. On September 1, 2023, Defendant filed the instant motion. Trial is set for July 2024. Under Rule 12(c), “[a]fter the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Rule 12(c) is a vehicle for summary adjudication, but the standard is like that of a motion to dismiss.” Tibarom NV, Inc. v. Shell Oil Prod. U.S., No. 3:08-cv-60-BES-VPC, 2008 WL 11404229, at *1 (D. Nev. Sept. 24, 2008) (internal quotation marks omitted). “Judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.” Rose v. Chase Bank USA, N.A., 513 F.3d 1032, 1036 (9th Cir. 2008) (brackets and internal quotation marks omitted). In 1971, the Supreme Court recognized for the first time an implied right of action against federal officers for constitutional violations. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff Webster Bivens alleged that the officers “manacled [him] in front of his wife and children, and threatened to arrest the entire family,” “searched the apartment from stem to stern,” and took him “to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.” Id. at 389. The Court held that Bivens was entitled to sue federal agents for damages arising out of the unlawful arrest and search, in violation of his Fourth Amendment rights. Id. at 389–90. Since Bivens, the Supreme Court has fashioned new causes of action under the Constitution only twice—first, for a former congressional staffer’s Fifth Amendment sex- discrimination claim, see Davis v. Passman, 442 U.S. 228 (1979); and second, for a federal prisoner’s inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980). More common though, is the Supreme Court’s refusal to recognize an implied damages remedy against federal officials. See Egbert v. Boule, 596 U.S. 482, 486 (2022) (the Court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations”) (collecting cases). “Nonetheless, rather than dispense with Bivens altogether, [the Supreme Court has] emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Id. at 491 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].” Ibid. “‘[E]ven a single sound reason to defer to Congress’ is enough to require a court to refrain from creating such a remedy.” Id. (quoting Nestle USA, Inc. v. Doe, 593 U.S. 628, 635 (2021). “To inform a court’s analysis of a proposed Bivens claim, [the Supreme Court’s] cases have framed the inquiry as proceeding in two steps.” Id. at 492. “[T]he first question a court must ask . . . is whether the claim arises in a new Bivens context[.]” Abbasi, 582 U.S. at 147. A case presents a new context if it “is different in a meaningful way from previous Bivens cases decided unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 137). “While [the Supreme Court’s] cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 596 U.S. at 492. The Court addresses the two Abbasi steps in turn. A. New Context The Court first addresses whether Plaintiff’s claim arises in a new Bivens context; namely whether it “is different in a meaningful way from previous Bivens cases decided by [the Supreme Court].” Abbasi, 582 U.S. at 147. In Abbasi, the Supreme Court outlined the following non- exhaustive “list of differences that are meaningful enough to make a given context a new one”:

A case might differ in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the official action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or [7] the presence of potential special factors that previous Bivens cases did not consider. Id. at 139–40. The Supreme Court’s “understanding of a ‘new context’ is broad.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). The Supreme Court “regard[s] a context as ‘new’ if it is ‘different in a meaningful way from previous Bivens cases decided by this Court.’” Id. (quoting Abbasi, 582 U.S. at 147). Defendant’s arguments center on how the presence of a warrant affects the fifth Abbasi factor, legal mandate. See Mot. at 1. Defendant argues that in Bivens, “the warrantless nature of the intrusion was the central feature of that plaintiff’s Fourth Amendment claim.” Id. at 4–5. Defendant notes that here, “the alleged detention and interrogation of Plaintiff occurred during the execution of a search warrant” which “implicitly carries limited authority to detain occupants of the premises.” Id. at 6 (citing Michigan v. Summers, 452 U.S. 692, 705 (1981)). Thus, Defendant argues, because he was executing a search warrant, he was “acting, at least to some extent, under a Zubkova v. United States, No. 3:22-cv-00171-BEN-KSC, 2023 WL 2468948, at *12 (S.D. Cal. Mar. 10, 2023)). Plaintiff’s response seeks primarily to distinguish two cases cited in Defendant’s motion. Plaintiff argues that the Court should not consider Massaquoi v. FBI, No. 22-55448, 2023 WL 5426738 (9th Cir. Aug. 23, 2023), because it is unpublished and does not address legal mandate. Opp. at 4–5. Plaintiff further argues that the Court should reject Zubkova and a line of cases cited therein because they concern “agents [who] lied or misrepresented facts in the application for warrants” and that here, Plaintiff “is not challenging the validity of the warrant but the unlawful manner of its execution.” Id. at 5–6. As an initial matter, the Court will not engage in analysis of and comparison to lower court Bivens cases. “In assessing whether a context is ‘new,’ the Supreme Court has instructed us not to examine Bivens cases in the lower courts, but only ‘the three cases in which the [Supreme] Court has implied a damages action.’” Pettibone v. Russell, 59 F.4th 449, 455 (9th Cir. 2023) (quoting Egbert, 596 U.S. at 492). Thus, the Court need not examine the facts in or make comparisons to Massaquoi and Zubkova. Instead, the Court must compare the legal mandates of the Bivens officers and Wynar. In Bivens, plaintiff Webster Bivens alleged that following an arrest at and warrantless search of his home, he “was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.” 403 U.S. at 389. Here, the SAC alleges that Plaintiff was detained and interrogated by Wynar during and after execution of the search warrant on Life Savers. See SAC ¶¶ 23, 97, 114. Plaintiff alleges that the “FBI agents, specifically Wynar, and including the Doe Defendants, made use of a search warrant for documents – all of which were turned over – as a pretext to conduct interrogations of individuals who were detained without any legal basis.” SAC ¶ 88. The SAC further alleges that “[a]lthough the search for documents described in the search warrant was completed by approximately 10:00 a.m., FBI agents, specifically Wynar, and including the Doe Defendants, remained on site for approximately four hours during which time they detained all four plaintiffs and questioned them.” Id. ¶ 97. set forth in the Fourth Amendment. However, as Defendant points out, it is well-established that the Supreme Court allows officers executing a search warrant “the limited authority to detain the occupants of the premises while a proper search is conducted.” Summers, 452 U.S. at 705; see also Muehler v. Mena, 544 U.S. 93, 98 (2005) (“An officer’s authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.’”) (quoting Summers, 452 U.S. at 705 n.19). This additional authority alone is enough to show that Wynar was acting under a different legal mandate than the agents in Bivens, who conducted the interrogation at a courthouse and without a warrant. Because the federal agents in Bivens and here were both bound by the Fourth Amendment’s protection against unreasonable search and seizure, the arguable extension of Bivens is modest at best. But the Supreme Court has held that “even a modest extension is still an extension.” Abbasi, 582 U.S. at 147. While Bivens and this case do involve similar allegations of detention and interrogation and thus arguably present “‘almost parallel circumstances’ or a similar ‘mechanism of injury,’ these superficial similarities are not enough to support the judicial creation of a cause of action.” Egbert, 596 U.S. at 495 (quoting Abbasi, 582 U.S. at 139). Finally, the Court notes that other factors may distinguish this case from Bivens, but only addresses those arguments set forth in Defendants’ motion. At the hearing, Plaintiff argued that the alleged conduct is a clear Fourth Amendment violation under Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003). Indeed, in Ganwich, the Ninth Circuit held in a section 1983 action that an interrogation during the execution of a search warrant was a Fourth Amendment violation. Id. at 1118. But the Court’s job here is to evaluate whether the SAC alleges a new Bivens context (and specifically whether Wynar was acting under a different legal mandate than the officers in Bivens), not whether the SAC alleges a Fourth Amendment violation. Here, an answer to the latter question does not resolve the former; even if the alleged interrogation was a Fourth Amendment violation, that has no bearing on how the search warrant affects Wynar’s legal mandate. Because Wynar was executing a search warrant, he was acting under a different legal B. Alternative Remedy Having found that Plaintiff’s claim presents a new Bivens context, the Court turns to Abbasi’s second step. This step requires the Court to “concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Abbasi, 582 U.S. at 136. In Egbert, the Court emphasized an “utmost deference” to Congress: “[i]f there are alternative remedial structures in place, ‘that alone,’ like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.’” 596 U.S. at 493 (quoting Abbasi, 582 U.S. at 137). “[A]dministrative, statutory, equitable, and state law remedies” can be adequate alternative remedial structures for the purpose of a Bivens analysis. Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018). Alternative remedies need not “provide complete relief for the plaintiff,” Bush v. Lucas, 462 U.S. 367, 388 (1983), because “the focus is whether the Government has put in place safeguards to prevent constitutional violations from recurring.” Egbert, 596 U.S. at 498 (internal citation omitted). “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Id. Courts regularly find that administrative procedures for reporting alleged misconduct are adequate alternative remedial structures sufficient to foreclose Bivens relief. See, e.g., Egbert, 596 U.S. at 497 (Border Patrol internal investigations of complaints are an alternative remedy); Mejia v. Miller, 61 F.4th 663, 669 (9th Cir. 2023) (Bureau of Land Management complaints to the “Office of Inspector General or other appropriate authority matters” provide administrative alternative remedy); Pettibone, 59 F.4th at 457 (reporting to the Department of Homeland Security Inspector General as an alternative remedial structure). Administrative remedies are also available for conduct involving FBI agents. Massaquoi, 2023 WL 5426738, at *3 (“OIG procedures are adequate alternative remedies for Bivens purposes” that constituted “a dispositive special factor”); Zubkova, 2023 WL 2468948, at *13 (“the alternative remedy available through the [Federal Tort Claims Act (“FTCA”)] constitutes a special factor that forecloses Plaintiffs’ Bivens claim”). 1 (OIG complaint) and Zubkova (FTCA claim) are available here. Plaintiff does not dispute the 2 general availability of either alternative remedy, Opp. at 9-11, but noted at the hearing that an 3 FTCA claim is no longer available to Plaintiff due to the age of the case. 4 The Court agrees with Defendant that both an FTCA claim and an OIG complaint are 5 adequate alternative remedies available to address the conduct of FBI agents such as Defendant. 6 The existence of either, or in this case both, constitutes a special factor that is reason enough for 7 the Court not to infer a new Bivens cause of action. See Egbert, 596 U.S. at 493. That an FTCA 8 claim is no longer available to Plaintiff is not relevant to the Court’s analysis; all Egbert requires 9 of an alternative remedy is that it is “sufficient to secure an adequate level of deterrence,” not that 10 each remedy is available to Plaintiff. See id. at 498. 1 1 12 Defendant has met both Abbasi steps. First, Defendant has shown that he was acting under 13 a different legal mandate than the officers Bivens, and that Plaintiffs claim is therefore a new 14 Bivens context. Second, Defendant shown that alternative remedies, an OIG complaint and an 3 15 FTCA action, are available, and each constitutes a special factor that alone is enough to limit 16 inferring a new Bivens cause of action. Thus, Plaintiff's Bivens claim fails as a matter of law. 2 17 || IV. ORDER Z 18 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Roahn Wynar’s 19 motion for judgment on the pleadings is GRANTED. 20 21 Dated: February 29, 2024

BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28