Ellawendy v. Department of the Army et al, No. 3:2021cv05273 - Document 66 (N.D. Cal. 2022)

Court Description: ORDER GRANTING MOTION TO DISMISS. Signed by Judge William H. Orrick on 12/19/2022. (jmd, COURT STAFF) (Filed on 12/19/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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Ellawendy v. Department of the Army et al Doc. 66 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 1 of 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABDEL FATAH ELLAWENDY, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 21-cv-05273-WHO ORDER GRANTING MOTION TO DISMISS v. JASON TAKAGAKI, et al., Re: Dkt. Nos. 53, 64 Defendants. 12 13 Defendant Jason Takagaki moves to dismiss the complaint brought by pro se plaintiff 14 Abdel Fatah Ellawendy, who alleges that Takagaki violated his Fourth Amendment rights when 15 Takagaki seized Ellawendy’s laptop and detained him. The sole remaining claim in this case is 16 asserted under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1999), but arises 17 in a new context not previously recognized under Bivens or its progeny. Two special factors 18 counsel hesitation about extending Bivens into this new territory: at least two alternative remedial 19 structures, which Ellawendy utilized, and the military/Department of Defense context in which his 20 claim arises. This warrants dismissal of Ellawendy’s claim with prejudice, as any amendment 21 would be futile because he cannot cure these problems. 22 BACKGROUND 23 Ellawendy was a civilian instructor at the Department of Defense (“DoD”)’s Defense 24 Language Institute Foreign Language Center (“DLIFLC”), located on the United States Army’s 25 Presidio of Monterey Garrison. See Second Am. Compl. (“SAC”) [Dkt. No. 15] ¶ 9. In 26 November 2017, he alleges that he began to receive harassing messages from an ex-girlfriend on 27 his work phone and email, prompting him to contact the Presidio of Monterey police. Id. ¶ 14. A 28 few days later, Takagaki—identified in the SAC as a “federal official and an investigator for the Dockets.Justia.com Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 2 of 13 1 2 In mid-March 2018, Ellawendy alleges that Takagaki “raided” his office and said that he 3 was seizing Ellawendy’s laptop “for investigation.” Id. ¶ 17. According to Ellawendy, Takagaki 4 did this without a warrant. Id. 5 Two days later, Ellawendy went to the Presidio of Monterey police station to retrieve his 6 laptop, where he alleges that Takagaki “lured [him] to an investigation room,” “directed false 7 accusation[s]” at him, and “started threatening to get [him] fired.” Id. ¶ 18. Takagaki then 8 allegedly told Ellawendy that Takagaki wanted his personal laptop. Id. When Ellawendy refused, 9 Takagaki “started to intimidate [him],” and said, “We will take you now to your home in the 10 United States District Court Northern District of California Department of the Army”—contacted Ellawendy about his report. Id. ¶¶ 4, 15. police car and you are going to give me your personal laptop.” Id. 11 According to Ellawendy, “Takagaki kidnapped [him] in the police car,” drove to 12 Ellawendy’s apartment, and told him to give Takagaki his personal laptop. Id. When Ellawendy 13 again refused, Takagaki allegedly threatened him. Id. Ellawendy contends that because Takagaki 14 was armed and threatening him, he “had no choice” but to give him the laptop. Id. Takagaki and 15 Ellawendy then returned to the police station, where Ellawendy alleges he was unlawfully 16 detained for more than two hours. Id. 17 Ellawendy alleges that he made multiple grievances and complaints to an unnamed 18 supervisor, the inspector general, and the DLIFLC commander. Id. ¶ 20. He contends that the 19 Army retaliated against him by falsely accusing him of misusing government property and time, 20 and by terminating him in April 2018. Id. ¶ 21. In May of that year, Ellawendy filed a complaint 21 with the Equal Employment Opportunity Commission (“EEOC”) “regarding the discrimination, 22 the violation of civil rights and retaliation [he] suffered.” Id. ¶ 22. 23 He filed this lawsuit on July 8, 2021, the first of three cases he filed in this district arising 24 from his termination of employment. Dkt. No. 1. Ellawendy alleged causes of action against the 25 Army, Presidio of Monterey Police Department, and Takagaki for hostile work environment and 26 retaliation violations of Title VII, violations of the First and Fourth Amendments, a 42 U.S.C. § 27 1983 violation based on the Fourteenth Amendment, abuse of office, and connivance. Id. After 28 Magistrate Judge Nathanael M. Cousins recommended dismissing most of the claims with leave to 2 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 3 of 13 1 amend, Ellawendy filed a largely identical amended complaint. Dkt. Nos. 5, 11, 13. I adopted 2 Judge Cousins’ Report and Recommendation, dismissing Ellawendy’s abuse of office claim 3 (restyled as an “official misconduct” claim in the amended complaint) without leave to amend, 4 and the Title VII and section 1983 claims with leave to amend. Dkt. No. 13. 5 6 Dkt. No. 15. I dismissed his Title VII and Fourteenth Amendment claims without leave to amend, 7 but allowed his Fourth Amendment claim against Takagaki to proceed. Dkt. No. 19. Takagaki 8 then filed this motion to dismiss. Dkt. No. 53. 9 10 United States District Court Northern District of California Ellawendy then filed his SAC, which I reviewed pursuant to 28 U.S.C. § 1915(e)(2)(B). LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 11 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the 12 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 13 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff 14 pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for 15 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This 16 standard is not akin to a probability requirement, but there must be “more than a sheer possibility 17 that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading 18 of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative 19 level.” Twombly, 550 U.S. at 555, 570. 20 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 21 court accepts his allegations as true and draws all reasonable inferences in his favor. Usher v. City 22 of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as 23 true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 24 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 25 Pro se complaints are held to “less stringent standards than formal pleadings drafted by 26 lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Where a plaintiff is proceeding pro se, the 27 court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of 28 any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se 3 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 4 of 13 1 pleadings must still allege facts sufficient to allow a reviewing court to determine whether a claim 2 has been stated. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 If the court dismisses the complaint, it “should grant leave to amend even if no request to 4 amend the pleading was made, unless it determines that the pleading could not possibly be cured 5 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making 6 this determination, the court should consider factors such as “the presence or absence of undue 7 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 8 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport 9 Package Express, 885 F.2d 531, 538 (9th Cir.1989). DISCUSSION 10 United States District Court Northern District of California 11 In Bivens, the Supreme Court allowed a damages action against federal officials for alleged 12 Fourth Amendment violations. 403 U.S. at 397. Bivens essentially functions as a judicially 13 created federal analog to section 1983, which allows plaintiffs to seek damages for constitutional 14 violations by state officials. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017) (comparing 15 Bivens to section 1983). 16 In the decades since Bivens was decided, the Supreme Court has kept its scope narrow, 17 recognizing only two additional causes of action under Bivens—for a former congressional 18 staffer’s Fifth Amendment sex-discrimination claim and a federal prisoner’s Eighth Amendment 19 inadequate-care claim—while routinely rejecting invitations to add to the list. See Egbert v. 20 Boule, 142 S. Ct. 1793, 1802 (2022); see also Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) 21 (“[F]or almost 40 years, we have consistently rebuffed requests to add to the claims allowed under 22 Bivens.”). Indeed, “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar, 23 137 S. Ct. at 1857 (citation omitted). As recently as this summer, the Court again described 24 recognizing a Bivens cause of action as “an extraordinary act that places great stress on the 25 separation of powers.” Egbert, 142 S. Ct. at 1806 n.3 (citation omitted). 26 There is a two-step inquiry for analyzing claims brought under Bivens. See id. at 1803. 27 First, the court must ask whether the claim “arises in a new context or involves a new category of 28 defendants.” Hernandez, 140 S Ct. at 743 (citation omitted). The Court has cautioned that “our 4 United States District Court Northern District of California Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 5 of 13 1 understanding of a ‘new context’ is broad,” and that a context is “new” “if it is different in a 2 meaningful way from previous Bivens cases decided by this Court.” Id. (citation omitted). 3 If the claim arises in a new context, the court then asks “whether there are any special 4 factors that counsel hesitation” about extending Bivens to that new context. Id. (citations and 5 modifications omitted). In other words, if the court has “reason to pause because applying Bivens 6 in a new context or to a new class of defendants,” the request to extend Bivens is denied. Id. The 7 Supreme Court has not set forth an exhaustive list of what those reasons might be, but generally 8 considers whether there are “special factors indicating that the judiciary is at least arguably less 9 equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” 10 Egbert, 142 S. Ct. at 1803 (citation and quotation marks omitted). A single reason to pause is 11 enough to decide against extending Bivens. See id. When a plaintiff asserts a claim under Bivens that has not previously been recognized, the 12 13 two-step inquiry essentially asks “a single question: whether there is any reason to think that 14 Congress might be better equipped to create a damages remedy.” Id. 15 I. Whether Ellawendy’s Bivens Claim Arises in a New Context 16 Takagaki’s primary argument is that Ellawendy’s claim should be dismissed because it 17 presents a new Bivens context and special factors counsel hesitation about extending Bivens to 18 cover it. Mot. to Dismiss (“MTD”) [Dkt. No. 53] 2:5-13. Takagaki is correct. 19 To determine whether Ellawendy’s claim presents a new Bivens context, it is not enough 20 that his claim arises under the Fourth Amendment, as did the claim in Bivens. “A claim may arise 21 in a new context even if it is based on the same constitutional provision as a claim in a case in 22 which a damages remedy was previously recognized.” Hernandez, 140 S. Ct. at 743. This is true 23 even when the case at hand has “significant parallels to one of the Court’s previous Bivens cases,” 24 as “even a modest extension is still an extension.” Ziglar, 137 S. Ct. at 1864. Instead, I must 25 focus on whether Ellawendy’s claim “involve[s] a new context, i.e., one that is meaningfully 26 different.” Hernandez, 140 S. Ct. at 743. 27 28 The Supreme Court has recognized a Bivens cause of action in three instances: against narcotics agents accused of arresting a man and searching his home without a warrant; against a 5 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 6 of 13 1 member of Congress for alleged sex-based discrimination; and against federal prison officials for 2 failing to treat an inmate’s asthma, resulting in his death. See Bivens, 403 U.S. at 389; Davis v. 3 Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). 4 5 to this case. But the context in which Ellawendy’s claim arises is meaningfully different than that 6 in Bivens. In Bivens, the plaintiff accused narcotics agents of entering his apartment, handcuffing 7 and arresting him, threatening to arrest his entire family, searching his apartment “from stem to 8 stern,” and then taking the plaintiff to a federal courthouse where he was interrogated, booked, and 9 strip searched. 403 U.S. at 389. He alleged that the agents made a warrantless arrest and search, 10 United States District Court Northern District of California As the only Fourth Amendment case on the list, Bivens itself provides the closest context lacked probable cause, and used unreasonable force. Id. 11 The new context here is that Ellawendy’s claim arises from actions purportedly taken by a 12 police officer assigned to a military installation as part of an investigation into events related to an 13 instructor at a DoD institution. See SAC ¶¶ 14-15. Ellawendy argues that Takagaki is a federal 14 police officer, “not . . . military personnel,” and therefore his claim is not asserted against a new 15 category of defendants. Oppo. [Dkt. No. 55] ¶ 5. But the SAC alleges that Takagaki is a 16 “[D]epartment of the Army official” and a “federal official and an investigator for the Department 17 of the Army.” SAC ¶¶ 4, 9. Whether Takagaki was a civilian or enlisted police officer, the 18 alleged seizures (of Ellawendy and his laptop) still occurred in the military/DoD context. 19 Ellawendy was an U.S. Army employee who taught at a school located on an Army installation. 20 He contacted police stationed on that Army installation after receiving threats on his work devices. 21 See id. ¶¶ 9, 14. The purportedly unlawful seizures occurred at the hands of an Army official. See 22 id. ¶¶ 4, 9, 18. The SAC does not specify whether Ellawendy’s apartment was also located on the 23 Army installation, but it does allege that he was taken back to the police station and unlawfully 24 detained there. See id. ¶ 18. 25 There is a military/DoD throughline in Ellawendy’s claim that is not found in Bivens. 26 Although both allege unlawful seizures under the Fourth Amendment, “almost parallel 27 circumstances or a similar mechanism of injury . . . are not enough to support the judicial creation 28 of a cause of action.” See Egbert, 142 S. Ct. at 1805. Instead, the military/DoD context of 6 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 7 of 13 1 Ellawendy’s claim renders it meaningfully different from the three Bivens contexts the Supreme 2 Court has recognized. 3 United States District Court Northern District of California 4 II. Whether Any Special Factors Counsel Hesitation About Extending Bivens I must next consider whether any special factors counsel hesitation about extending Bivens 5 to cover this new context. Takagaki raises two that give me such pause: the alternative remedial 6 structures that are in place, and the military/DoD context of the claim. See MTD at 6:27-12:2. 7 A. Alternative Remedial Structures 8 This summer, the Supreme Court reiterated that “a court may not fashion a Bivens remedy 9 if Congress has already provided, or has authorized the Executive to provide, ‘an alternative 10 remedial structure.’” Egbert, 142 S. Ct. at 1804 (citing Ziglar, 137 S. Ct. at 1858); see also 11 Ziglar, 137 S. Ct. at 1863 (“when alternative methods of relief are available, a Bivens remedy 12 usually is not”). As the Court explained in Ziglar: 13 14 15 For if Congress has created any alternative, existing process for protecting the injured party’s interest that itself may amount to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. 16 137 S. Ct. at 1858 (citations and modifications omitted). As the Ninth Circuit has recognized, 17 these alternative remedial structures “can take many forms, including administrative, statutory, 18 equitable, and state law remedies.” Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018). In 19 Hernandez and Egbert, the Court declined to extend Bivens in part because alternative remedial 20 structures—in the form of investigation processes—were in place and had been utilized. See 21 Egbert, 142 S. Ct. at 1806. 22 Takagaki argues that not only were alternative remedial structures available to Ellawendy, 23 but that Ellawendy pursued them. MTD at 7:18-21 (citing SAC ¶¶ 6, 20). The SAC alleges that 24 Ellawendy “made multiple grievances,” including to “the supervisor, the IG, and the commander 25 of the DLIFLC in addition to reporting the official misconduct and filing a police report of the 26 incident.” SAC ¶ 20. It further alleges that he filed a charge with the EEOC. Id. ¶ 6. 27 Two of those processes are most relevant here. Beginning with the inspector general, 28 Takagaki notes that 5 U.S.C. § 301 allows the head of an Executive or military department to 7 United States District Court Northern District of California Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 8 of 13 1 “prescribe regulations for . . . the conduct of its employees.” See MTD at 7:8-10. He then points 2 to 10 U.S.C. § 7020, which establishes an Inspector General of the Army who shall “inquire into 3 and report upon the discipline, efficiency, and economy of the Army.” See id. at 7:8-15. Army 4 Regulation 20-1 outlines the duties of inspectors general throughout the Army, which include the 5 investigation of “violations of policy, regulation, or law; mismanagement; unethical behavior; 6 fraud; or misconduct.” See Inspector General Activities and Procedures, Army Reg. 20-1, Ch. 7- 7 1(a), https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN8255_AR20-1_FINAL.pdf 8 (last accessed Dec. 15, 2022). 9 Takagaki also points to the EEOC, which Congress created and bestowed upon the 10 authority to “prevent any person from engaging in any unlawful employment practice,” in part by 11 investigating charges that an employer has engaged in such a practice. See MTD at 8:25-9:12; see 12 also 42 U.S.C. § 2000e-4, e-5. Such charges may be filed “by or on behalf of a person claiming to 13 be aggrieved.” 42 U.S.C. § 2000e-5(b). 14 Ellawendy does not dispute that he sought alternative remedies; instead, his argument is 15 that those remedies were ineffective. Oppo. ¶¶ 7-8. He contends that when he invoked “the 16 available Army and government channels . . . instead of solving the problem the Department of the 17 Army elected to terminate” him. Id. ¶ 7. He further argues that the Army “conducted a mock 18 investigation to cover up for the officer misconduct,” meaning the “alternative processes were 19 meaningless.” Id. ¶ 8. 20 In Egbert, the respondent filed a grievance against the Border Patrol agent whose actions 21 were at issue, prompting a year-long internal investigation into the agent’s conduct. See 142 S. Ct. 22 at 1806. In holding that this was an alternative remedial structure foreclosing a cause of action 23 under Bivens, the Supreme Court rejected the argument that the Border Patrol’s process was 24 inadequate because the respondent could not participate and had no right to judicial review of an 25 adverse decision. Id. As the Court wrote: 26 27 28 [T]he question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts. 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. That is 8 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 9 of 13 1 2 United States District Court Northern District of California 3 true even if a court independently concludes that the government’s procedures are not as effective as an individual damages remedy. Id. at 1807 (citation and quotation marks omitted). Ellawendy effectively asks me to second-guess the remedial processes that Congress 4 and/or the Executive Branch created by superimposing a Bivens remedy atop them. As alleged, 5 Ellawendy filed complaints with both the inspector general and the EEOC. SAC ¶¶ 6, 20. The 6 former is tasked with investigating complaints alleging violations of policy, regulation, or law; the 7 latter with investigating charges of unlawful employment practices. Ellawendy’s allegations—that 8 Takagaki violated his Fourth Amendment rights against unreasonable seizure—would fall within 9 the inspector general’s purview as a violation of the law. To the extent that Takagaki’s alleged 10 acts constituted unlawful employment practices, they were also encompassed by Ellawendy’s 11 EEOC charge. See id. ¶ 22 (alleging that Ellawendy filed the EEOC complaint “regarding the 12 discrimination, the violation of civil rights and retaliation [he] suffered”). 13 Ellawendy’s complaint alleges that “[d]espite the numerous complaints made against Jason 14 Takagaki regarding discrimination and violation of civil rights the department of the Army never 15 took any disciplinary action against him” and instead terminated Ellawendy “to cover up for 16 [Takagaki’s] misconduct.” Id. ¶ 24. Ellawendy may disagree with the results of the remedial 17 processes that he invoked, but that does not necessarily mean that those processes were 18 inadequate. And any question of whether they were in fact adequate is “a legislative 19 determination that must be left to Congress, not the federal courts.” See Egbert, 142 S. Ct. at 20 1807. The Court was clear in this conclusion in Egbert; I must follow it here. The adequacy of 21 these remedial processes is not for me to assess. Congress and the Executive set forth alternative 22 remedial structures that covered Ellawendy’s claim against Takagaki, meaning a special factor 23 exists that counsels hesitation before extending Bivens into this context. 24 25 Although this alone is enough to dismiss Ellawendy’s claim, another special factor exists that also gives me pause: the military/DoD context in which it arises. 26 B. Military/DoD Context 27 The Supreme Court has at least twice declined to extend Bivens to military affairs. In 28 Chappell v. Wallace, 462 U.S. 296, 304 (1983), it determined that “the unique disciplinary 9 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 10 of 13 1 structure of the military establishment and Congress’ activity in the field constitute ‘special 2 factors’ which dictate that it would be inappropriate to provide enlisted military personnel a 3 Bivens-type remedy against their superior officers.” In particular, the Court noted the “special 4 relationships that define military life” that “supported the military establishment’s power to deal 5 with its own personnel.” Id. at 305. “The most obvious reason,” the Court wrote, “is that courts 6 are ill-equipped to determine the impact upon discipline that any particular intrusion upon military 7 authority might have.” Id. (citation omitted). 8 United States District Court Northern District of California 9 Four years later, the Supreme Court made clear that the “special factors counselling hesitation—the unique disciplinary structure of the military establishment and Congress’ activity 10 in the field—extend beyond the situation in which an officer-subordinate relationship exists.” 11 United States v. Stanley, 483 U.S. 669, 683-84 (1987) (citation and quotation marks omitted). The 12 Court expressly held that “no Bivens remedy is available for injuries that arise out of or are in the 13 course of activity incident to service.” Id. at 684 (same). In other words, a Bivens remedy is not 14 available in the military context “even where the defendants were alleged to have been civilian 15 personnel.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (citing Stanley, 483 16 U.S. at 681). 17 Since Chappell and Stanley were decided, lower courts have declined to extend Bivens in 18 the military context, even when the plaintiffs were not current or former active-duty members of 19 the military. For example, the Fourth Circuit declined to extend Bivens to constitutional claims 20 brought by a federal civil servant employed by the United States Navy against a group of 21 defendants that included a school principal and social worker who were DoD employees, arising 22 from conduct that allegedly occurred on a Navy installation. Doe v. Meron, 929 F.3d 153, 161 23 (4th Cir. 2019). The court determined that “[m]ultiple special factors counsel against such 24 extension,” the first of which being that “Doe’s claims arose in a military context.” Id. at 169. 25 Similarly, in Doe v. United States, 381 F. Supp. 3d 573, 583-84 (M.D.N.C. 2019), the 26 district court declined to extend Bivens to cover constitutional claims brought by parents alleging 27 that their children had been abused by an instructor at DoD-operated elementary schools. The 28 court noted that the case did not “present the same concerns generally associated with litigation 10 United States District Court Northern District of California Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 11 of 13 1 involving our military” in that it was not an incident-to-service case, did not involve enlisted 2 personnel seeking a Bivens remedy against their superior officers, and did not “involve sensitive 3 issues of national security or the administration of a uniquely defense-orientated institution in the 4 same manner as another case involving the DoD might.” Doe, 381 F. Supp. 3d at 618. 5 Nonetheless, the court held, “[t]he DoD context of this case is the most significant special factor 6 counselling hesitation.” Id. at 617. In particular, the court noted that “[t]he relevant alleged acts 7 and omissions did occur on a United States military base” and involved “regulations and 8 employees of” a civilian agency of the DoD. Id. at 618. 9 The military and DoD presence here gives me similar pause. This case involves an Army 10 employee and instructor at a DoD-led school located on an Army installation. See SAC ¶ 9. The 11 alleged acts giving rise to Ellawendy’s claim were committed by a “department of the Army 12 official.” Id. And at least some of those acts allegedly happened on the Army installation, 13 including Ellawendy’s detention and the genesis of Takagaki’s investigation (the messages from 14 Ellawendy’s ex-girlfriend left on his work phone and email). See id. ¶¶ 14, 18. Ellawendy’s claim 15 relates to DoD and Army operations, even if only in the civilian setting. 16 Ellawendy argues that his claim “does not involve military personnel or military affairs,” 17 contending that Takagaki “is neither [] military personnel nor a service member” and instead a 18 “civilian federal police officer.” Oppo. ¶ 6. But Ellawendy acknowledges that his complaint “was 19 made to the Department of the Army where the plaintiff was assigned for work.” Id. And he does 20 not otherwise contest Takagaki’s arguments that Ellawendy’s duties as an assistant professor at 21 DLIFLC “were intertwined with that institution’s function of preparing military members to 22 protect American national security interests” and that Takagaki’s alleged misconduct “relates to 23 his investigation of plaintiff’s workplace activity and therefore his fitness as an instructor,” 24 meaning it “bears directly on plaintiff’s duties at a military academic establishment.” MTD at 25 11:12-19. Moreover, Takagaki contends, because both he and Ellawendy were DoD employees, 26 “[a]djudicating this claim arising from the plaintiff’s military employment would thus interfere 27 with the military’s constitutionally delegated authority over its personnel.” Id. at 11:21-24. 28 I agree with Takagaki. Ellawendy cannot escape the military/DoD context in which his 11 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 12 of 13 1 claim originates. And “courts traditionally have been reluctant to intrude upon the authority of the 2 Executive in military and national security affairs unless Congress specifically has provided 3 otherwise.” Ziglar, 137 S. Ct. at 1861 (citation omitted). I see no indication that Congress has 4 provided otherwise. Here there are two reasons to pause before applying Bivens in this context 5 and I decline to do so. See Egbert, 142 S. Ct. at 1803 (“If there is even a single reason to pause 6 before applying Bivens in a new context, a court may not recognize a Bivens remedy.”) (citation 7 and quotation marks omitted). A Bivens extension is not warranted for the reasons articulated above. Ellawendy’s claim 8 9 against Takagaki is DISMISSED with prejudice because amendment cannot cure it.1 III. 10 There is another reason that warrants dismissing Ellawendy’s claim. A “Bivens action can 11 United States District Court Northern District of California Whether Ellawendy’s Claim is Barred on Other Grounds 12 be maintained against a defendant in his or her individual capacity only, and not in his or her 13 official capacity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 14 1157, 1173 (9th Cir. 2007) (citation omitted). “This is because a Bivens suit against a defendant in 15 his or her official capacity would merely be another way of pleading an action against the United 16 States, which would be barred by the doctrine of sovereign immunity.” Id. (same). Because 17 “[s]overeign immunity is jurisdictional in nature,” “there is no subject matter jurisdiction unless 18 sovereign immunity is waived.” DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1127 (9th 19 Cir. 2019) (citation omitted). Although Takagaki does not raise this issue in his motion to dismiss, courts “must raise 20 21 issues concerning our subject matter jurisdiction sua sponte.” Bernhardt v. Cty. of Los Angeles, 22 279 F.3d 862, 871 (9th Cir. 2002). “If the court determines at any time that it lacks subject matter 23 jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Per the complaint, Ellawendy sued Takagaki “in his official capacity.” SAC ¶ 1. The case 24 25 law makes clear that this is not permissible. In addition to the above-mentioned issues with 26 27 28 I need not address Takagaki’s arguments that the Military Claims Act is an additional alternative remedial structure or that potential burdens on government operations also counsel hesitation about extending Bivens. See MTD at 9:13-10:10, 12:3-13:3. There are enough special factors that do so without considering these arguments. 12 1 Case 3:21-cv-05273-WHO Document 66 Filed 12/19/22 Page 13 of 13 1 Ellawendy’s claim, this too warrants dismissal. CONCLUSION 2 Takagaki’s motion is GRANTED and Ellawendy’s claim against Takagaki is DISMISSED 3 4 with prejudice. Because this is the only surviving claim in the case, it is DISMISSED.2 IT IS SO ORDERED. 5 6 Dated: December 19, 2022 7 8 William H. Orrick United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Ellawendy filed two other matters that can be resolved here. First is a request that I order the production of Takagaki’s personnel file, which Ellawendy asserts that he sought from the Army under the Freedom of Information Act (“FOIA”) and was denied. See Dkt. No. 56. Takagaki opposed on various grounds. Dkt. No. 57. Ellawendy’s request is DENIED. Although FOIA grants district courts the power to “order the production of any agency records improperly withheld from the complainant,” this case is not the proper vehicle for Ellawendy to seek such relief. See 5 U.S.C. § 552(a)(4)(B). FOIA requires agencies to make certain information public; Takagaki is an individual and the relevant agency, the Army, is not a defendant in this case. See id. § 552(a). Moreover, the denial letter Ellawendy submitted in support of his request came from the Defense Contract Audit Agency, which audits DoD contracting offices. See Dkt. No. 60. It is unclear whether the Army in fact withheld the requested records from Ellawendy, warranting any action by the court. Ellawendy later filed a motion to compel, styled as a Pitchess motion, also seeking Takagaki’s personnel file. Dkt. No. 64. Although a criminal defendant can compel certain police personnel records under Pitchess in state court, “Pitchess procedures do not apply in federal court.” Daniels v. Villanueva, No. 20-CV-01169, 2021 WL 5933104, at *1 (C.D. Cal. Jan. 29, 2021); see also Garrett v. Macomber, No. 16-CV-1336, 2019 WL 6330269, at *8 (E.D. Cal. Nov. 26, 2019) (stating that “a Pitchess motion is not the proper method for obtaining peace officer personnel records” in federal civil rights cases); Morris v. Barra, No. 10-CV-2642, 2012 WL 4900203, at *4 (S.D. Cal. Oct. 15, 2012) (same). Moreover, it does not appear that Ellawendy followed the proper procedure for attempting to obtain this discovery, as outlined in Section 4 of my Standing Order for Civil Cases. In any case, because I am dismissing Ellawendy’s claim, any need for discovery is now moot. 13

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