Terry et al v. Newell et al, No. 2:2012cv02659 - Document 68 (D. Ariz. 2013)

Court Description: ORDER granting 52 Motion to Dismiss for Lack of Jurisdiction; granting 53 Motion to Dismiss for Lack of Jurisdiction; granting 53 Motion to Dismiss for Failure to State a Claim. Signed by Judge David G Campbell on 11/15/2013.(DGC, nvo)

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Terry et al v. Newell et al 1 Doc. 68 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kent Terry, et al., No. CV-12-02659-PHX-DGC Plaintiffs, 10 11 v. 12 ORDER William Newell, et al., 13 Defendants. 14 15 Defendant Emory Hurley has filed a motion to dismiss (Doc. 52), as have 16 Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya 17 English, and William McMahon (Doc. 53). The motions are fully briefed. For the 18 following reasons, the Court will grant Defendants’ motions to dismiss.1 19 I. Background Facts. 20 Plaintiffs are the parents of Border Patrol Agent Brian Terry, who was killed by 21 Mexican drug cartel operatives while on duty in the Arizona desert on December 15, 22 2010. 23 Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya 24 English, and William McMahon are agents and officers with the United States 25 Department of Alcohol, Tobacco, Firearms and Explosives (“ATF Defendants”). Defendant Emory Hurley is an Assistant United States Attorney (“AUSA”). 26 27 1 28 The request for oral argument is denied because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). Dockets.Justia.com 1 Plaintiffs allege that Mexican drug cartels funded and operated a firearms 2 trafficking ring in the Phoenix-metropolitan area in 2009. Doc. 32, ¶ 77-78. Straw 3 purchasers with clean backgrounds would certify to Federal Firearms Licensees that they 4 were buying firearms for personal use and would then transfer them to cartel operatives. 5 Id., ¶ 50, 79, 91. Plaintiffs allege that AUSA Hurley and the ATF Defendants “created, 6 organized, implemented, and/or participated in a plan – code named ‘Operation Fast and 7 Furious’ – to facilitate the distribution of dangerous firearms to violent criminals.” Id., 8 ¶ 2. The alleged strategy of Operation Fast and Furious (the “Operation”) was to allow 9 illegally purchased firearms to transfer into the hands of violent criminals, a practice 10 known as “gunwalking.” Id., ¶ 65. Such gunwalking, it was hoped, would result in the 11 arrest of high ranking members of the Mexican drug cartel who were expected to procure 12 the traced firearms from straw purchasers within the United States. Id., ¶¶ 78-79, 94. In 13 furtherance of the Operation, AUSA Hurley and the ATF Defendants allegedly hindered 14 other ATF agents and other law enforcement agencies from impeding the firearms 15 trafficking conspiracy. Id., ¶ 94. Defendants intended to run interference with other law 16 enforcement agencies until Defendants could obtain a wiretap which they believed would 17 enable them to dismantle the entire organization. Id., ¶¶ 94, 111, 140, 143. 18 Plaintiffs allege the ATF Defendants identified Lone Wolf Trading Company as 19 one source of weapons sold to straw purchasers. Defendants monitored straw sales by 20 means of a hidden camera installed at Lone Wolf. Id., at 97. Plaintiffs allege that the 21 ATF Defendants instructed Lone Wolf to continue making sales to suspicious purchasers 22 and to share intelligence with them. Id., ¶ 100. Lone Wolf allegedly sold 619 weapons 23 to straw purchasers between October 15 and December 31, 2010. Id., ¶¶ 107-08. 24 On December 15, 2010, Agent Terry was shot and killed in the desert near Rio 25 Rico, Arizona, eighteen miles inside the U.S.-Mexico border. Plaintiffs allege that two of 26 the weapons found at the scene had been sold by Lone Wolf and gunwalked by 27 Defendants. Id., ¶¶ 121, 123, 160. Plaintiffs assert that their son’s death resulted from 28 Defendants’ failure to intercept the illegally purchased weapons. -2- Id., ¶¶ 418, 429. 1 Plaintiffs’ Bivens action relies on a state-created danger theory and seeks compensatory 2 and punitive damages against AUSA Hurley, the ATF Defendants, and Lone Wolf for 3 loss of familial association and on behalf of Agent Terry’ estate, under the Fifth 4 Amendment Due Process Clause. Id., ¶¶ 9-10, 428, 444, 448, 450. 5 II. Legal Standard. 6 Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). 7 Defendants mount a facial attack on the Court’s subject matter jurisdiction rather than 8 contesting specific factual allegations of the complaint. 9 challenge, the Court assumes all of Plaintiffs’ factual allegations to be true and draws all 10 reasonable inferences in their favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 11 2009).2 12 III. In resolving such a facial Analysis. 13 In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. 403 U.S. 14 388 (1971), the Supreme Court “recognized for the first time an implied private action for 15 damages against federal officers alleged to have violated a citizen’s constitutional rights.” 16 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Bivens court “proceed[ed] on 17 the theory that a right suggests a remedy.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). 18 Bivens allows a plaintiff to bring an action for damages against individual federal 19 officials for violating the Fourth Amendment despite the absence of any federal statute 20 authorizing such an action. See Bivens, 403 U.S. at 397. The Supreme Court has also 21 recognized Bivens actions to redress violations of the Fifth and Eighth Amendments. See 22 Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). 23 Since its 1980 decision in Carlson, the Supreme Court has “consistently refused to 24 extend Bivens liability to any new context or new category of defendants.” Malesko, 534 25 U.S. at 68. The Court instead has asked whether Congress intended courts to devise a 26 new Bivens remedy, and has declined to extend Bivens to embrace other constitutional 27 28 2 Defendants also move to dismiss under Rule 12(b)(6). Because the Court will grant the motion under Rule 12(b)(1), this order will not discuss Rule 12(b)(6). -3- 1 violations. See, e.g., Chappell v. Wallace, 462 U.S. 296, 297 (1983) (declining to find an 2 implied right of action for military personnel who allegedly suffered racial discrimination 3 at the hands of superior officers); Bush v. Lucas, 462 U.S. 367, 368 (1983) (declining to 4 find an implied right of action for a federal civil-service employee who allegedly suffered 5 violations of his First Amendment rights); Wilkie v. Robbins, 551 U.S. 537, 561-62 6 (2007) (declining to find an implied right of action for a landowner who allegedly 7 suffered harassment and intimidation by federal officials in violation of the Fourth and 8 Fifth Amendments). 9 In Wilkie, the Supreme Court identified a two-step analysis for determining the 10 appropriateness of a Bivens remedy. Id. at 550; W. Radio Servs. v. U.S. Forest Service, 11 578 F.3d 1116, 1120 (9th Cir. 2009). 12 alternative, existing process for protecting” the plaintiff’s interests “amounts to a 13 convincing reason for the Judicial Branch to refrain from providing a new and 14 freestanding remedy in damages.” Wilkie, 551 U.S. at 550. Such an alternative remedy 15 raises the inference that Congress “expected the Judiciary to stay its Bivens hand.” Id. at 16 554. “When the design of a government program suggests that Congress has provided 17 what it considers adequate remedial mechanisms for constitutional violations that may 18 occur in the course of its administration, [the Supreme Court has] not created additional 19 Bivens remedies.” Schweiker v. Chilicky, 487 U.S. 410, 423 (1988).3 First, the Court determines whether “any 20 In Bush, the Supreme Court declined to recognize a Bivens action even though it 21 assumed a First Amendment violation had occurred and acknowledged that “existing 22 remedies do not provide complete relief for the plaintiff.” 462 U.S. at 388. Noting that 23 24 25 26 27 28 3 Plaintiffs cite Carlson for the proposition that a Bivens action may be precluded only “when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” or when there are special factors counseling hesitation. Doc. 64 at 4 (emphasis in original). To the extent Carlson requires a clear statement from Congress before a remedial structure can preclude a Bivens action, that requirement has been repudiated by the Supreme Court. See Schweiker, 487 U.S. at 423; see also W. Radio Servs., 578 F.3d at 1120 (“[S]o long as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to its judgment.”). -4- 1 Congress is more competent than the Judiciary to carry out the necessary “balancing [of] 2 governmental efficiency and the rights of employees,” the Court refused to “decide 3 whether or not it would be good policy to permit a federal employee to recover damages 4 from a supervisor who has improperly disciplined him for exercising his First 5 Amendment rights.” Id. at 389-390. “So long as the plaintiff ha[s] an avenue for some 6 redress, bedrock principles of separation of powers foreclose judicial imposition of a new 7 substantive liability.” Malesko, 534 U.S. at 69. 8 At the second step of the Wilkie analysis, the Court asks whether there are “factors 9 counseling hesitation” before finding an implied Bivens right of action. Wilkie, 551 U.S. 10 at 550. Even where Congress has given plaintiffs no damages remedy for a constitutional 11 violation, the Court has declined to create a right of action under Bivens when doing so 12 “would be plainly inconsistent with Congress’ authority in this field.” Chappell, 462 13 U.S. at 304. For example, the Court found that “the unique disciplinary structure of the 14 Military Establishment and Congress’ activity in the field” constituted special factors 15 counseling against finding a Bivens remedy for enlisted military personnel against 16 superior officers. Id. at 304. 17 This case can be resolved at step one of the Wilkie analysis. Congress has 18 provided a comprehensive remedial scheme for Agent Terry’s estate and survivors. The 19 Federal Employees Retirement System (“FERS”), 5 U.S.C. §§ 8401, et. seq., the Federal 20 Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101, et. seq., and the Public 21 Safety Officer Benefits Acts (“PSOBA”), 42 U.S.C. § 3796, all provide benefits for the 22 survivors of federal employees who are killed in the course of their employment. These 23 existing remedies “amount[] to a convincing reason for the Judicial Branch to refrain 24 from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550. 25 The FERS provides disability and death benefits to federal employees or their 26 survivors. 5 U.S.C. §§ 8402(b)(2)(B), 8403, 8424, 8432, 8441-8451; 5 C.F.R. 27 §§ 843.101, et seq. Under 5 U.S.C. §§ 8442(b)(1)(A) and 8462(e), a surviving spouse 28 may receive 50% of the deceased employee’s final annual basic pay, plus a $15,000 -5- 1 payment adjusted to reflect inflation. Section 8443 provides benefits for a deceased 2 employee’s surviving children. Section 8424 permits the parents of a deceased employee 3 to recover benefits if the employee left no designated beneficiary, spouse, or children. 4 The FECA establishes a “comprehensive and exclusive compensation scheme for 5 federal employees.” Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006). 6 The FECA provides that “[t]he United States shall pay compensation . . . for the disability 7 or death of an employee resulting from personal injury sustained while in the 8 performance of his duty[.]” 5 U.S.C. § 8102(a). The FECA permits a spouse to receive 9 up to 50% of a deceased employee’s monthly pay. 5 U.S.C. § 8133(a)(1). Children and 10 parents of a deceased employee can also recover FECA benefits under certain 11 circumstances. 5 U.S.C. §§ 8133(a)(3)-(4). Most relevant here, FECA specifically states 12 that it is the exclusive source of liability to the employee, spouse, or next of kin. Id. 13 § 8116(c); United States v. Lorenzetti, 467 U.S. 167, 169 (“[T]he United States’ liability 14 for work-related injuries under FECA is exclusive[.]”). Indeed, several federal district 15 courts have found that the availability of FECA remedies precludes a Bivens claim. See 16 Richards v. C.I.A., 837 F. Supp. 2d 574, 578 (E.D. Va. 2011); Rivera v. Smith, No. 1:10- 17 CV-01015 AWIGSA, 2011 WL 902097, at *4 (E.D. Cal. March 15, 2011); Williams v. 18 Young, 769 F. Supp. 2d 594, 600 n.6 (S.D.N.Y. 2011); Briscoe v. Potter, 355 F. Supp. 2d 19 30, 41-42 (D. D.C. 2004) aff’d, 171 Fed. App’x. 850 (D.C. Cir. 2005), cert. denied, 547 20 U.S. 1128 (2006); Hightower v. U.S., 205 F. Supp. 2d 146, 157-58 (S.D.N.Y. 2002). In 21 addition, the Ninth Circuit has held that the FECA is relevant in a special factor analysis 22 precluding recognition of a Bivens action brought by an injured employee or his 23 survivors. Berry v. Hollander, 925 F.2d 311, 315 (9th Cir. 1991). 24 The PSOBA provides benefits to survivors of federal and other law enforcement 25 officers killed in the line of duty. 42 U.S.C. § 3796(a)(1)-(5). The PSOBA also provides 26 educational funding to the dependents of deceased public safety officers. 42 U.S.C. 27 §§ 3796(d), et seq. Along with the FECA, the PSOBA has been cited by federal district 28 courts in declining to imply a Bivens right of action. Rivera, 2011 WL 902097 at *4 n.2. -6- 1 Plaintiffs argue that these federal statutes do not foreclose a Bivens claim because 2 Plaintiffs have had no opportunity to adjudicate their claims in a public forum before a 3 neutral arbiter. Doc. 59 at 6; Doc 64 at 5. The Supreme Court and Ninth Circuit have not 4 required, however, that federal remedies provide a full panoply of due process protections 5 before a Bivens action is precluded. To the contrary, Bivens actions are foreclosed 6 “where Congress has provided some mechanism for relief that it considers adequate to 7 remedy constitutional violations.” Moore v. Glickman, 113 F.3d 988, 991 (9th Cir. 1997) 8 (emphasis added). 9 Plaintiffs further argue that the federal statutes cited above “offer no . . . forum for 10 the vindication of a constitutional claim against a federal officer.” Doc. 64 at 6, 7. The 11 Supreme Court has held, however, that “the presence of alleged unconstitutional conduct 12 that is not separately remedied under the statutory scheme [does not] imply that the 13 statute has provided ‘no remedy’ for the constitutional wrong at issue.” Schweiker, 487 14 U.S. at 427-28 (emphasis in original). Thus, a Bivens action may be precluded where 15 statutory remedies do not separately provide relief for the alleged constitutional 16 violations that caused injury. 17 Plaintiffs argue that a Bivens claim should not be precluded in this case because 18 the statutory scheme provides no separate deterrence for government wrongdoing, a 19 primary policy reason for creating the Bivens remedy in the first place. Doc. 59 at 6. 20 Wilkie explained, however, that “any freestanding damages remedy for a claimed 21 constitutional violation has to represent a judgment about the best way to implement a 22 constitutional guarantee; it is not an automatic entitlement no matter what other means 23 there may be to vindicate a protected interest, and in most instances we have found a 24 Bivens remedy unjustified.” 551 U.S. at 500. Plaintiffs seem to suggest that the strong 25 deterrent policies undergirding Bivens permit a court to imply a damages action where 26 the available statutory remedies compensate a plaintiff for injuries but do not also 27 adequately discourage a government agent’s misconduct. 28 Bivens, a damages action would be implied whenever a remedial statutory scheme fails to -7- Under such a reading of 1 impose a penalty of some sort on the government actor who caused the injury. The Court 2 cannot accept such a broad interpretation of Bivens. The Supreme Court has made clear 3 during the last 30 years that it is not the prerogative of the judiciary to create Bivens 4 causes of action whenever a judge deems a Congressional remedial scheme to be 5 deficient in some respect. Wilkie, 551 U.S. at 550, 554; Malesko, 534 U.S. at 69; 6 Schweiker, 487 U.S. at 423; Chappell, 462 U.S. at 304. 7 Plaintiffs argue that permitting the PSOBA to be construed in a manner that 8 precludes a Bivens action would “conflict with the goal of attempting to remediate the 9 harm from a fallen officer’s death in service of their country.” Doc. 64 at 6-7. Plaintiffs 10 seem to argue that construing the PSOBA – a statute designed to provide relief to the 11 survivor of an officer killed in the line of duty – in a manner that precludes a Bivens 12 action defeats the goal of providing compensation to families. But the compensation 13 available under the PSOBA is intended to remedy precisely the harm that Plaintiffs have 14 suffered, namely the tragic death of their son. It is not the proper role of this Court to 15 second-guess the remedial scheme established by Congress, find it insufficient, and 16 impose an additional judicially-crafted remedy. 17 The Court recognizes that Plaintiffs have suffered a great loss, and that any 18 financial remedy is likely insufficient to redress their injury. But as the Supreme Court 19 has made clear, the bedrock principle of separation of powers counsels against judicially- 20 created remedies when Congress has established a remedial scheme. Congress has done 21 so here, and the Court therefore concludes that a Bivens action cannot be implied. 22 23 24 IT IS ORDERED that Defendants’ motions to dismiss (Docs. 52, 53) are granted. Dated this 15th day of November, 2013. 25 26 27 28 -8-

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