Terry et al v. Newell et al

Filing 68

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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kent Terry, et al.,

No. CV-12-02659-PHX-DGC
Plaintiffs,

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v.

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ORDER

William Newell, et al.,

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Defendants.

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Defendant Emory Hurley has filed a motion to dismiss (Doc. 52), as have

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Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya

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English, and William McMahon (Doc. 53). The motions are fully briefed. For the

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following reasons, the Court will grant Defendants’ motions to dismiss.1

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I.

Background Facts.

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Plaintiffs are the parents of Border Patrol Agent Brian Terry, who was killed by

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Mexican drug cartel operatives while on duty in the Arizona desert on December 15,

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2010.

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Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya

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English, and William McMahon are agents and officers with the United States

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Department of Alcohol, Tobacco, Firearms and Explosives (“ATF Defendants”).

Defendant Emory Hurley is an Assistant United States Attorney (“AUSA”).

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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).

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Plaintiffs allege that Mexican drug cartels funded and operated a firearms

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trafficking ring in the Phoenix-metropolitan area in 2009. Doc. 32, ¶ 77-78. Straw

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purchasers with clean backgrounds would certify to Federal Firearms Licensees that they

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were buying firearms for personal use and would then transfer them to cartel operatives.

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Id., ¶ 50, 79, 91. Plaintiffs allege that AUSA Hurley and the ATF Defendants “created,

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organized, implemented, and/or participated in a plan – code named ‘Operation Fast and

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Furious’ – to facilitate the distribution of dangerous firearms to violent criminals.” Id.,

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¶ 2. The alleged strategy of Operation Fast and Furious (the “Operation”) was to allow

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illegally purchased firearms to transfer into the hands of violent criminals, a practice

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known as “gunwalking.” Id., ¶ 65. Such gunwalking, it was hoped, would result in the

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arrest of high ranking members of the Mexican drug cartel who were expected to procure

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the traced firearms from straw purchasers within the United States. Id., ¶¶ 78-79, 94. In

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furtherance of the Operation, AUSA Hurley and the ATF Defendants allegedly hindered

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other ATF agents and other law enforcement agencies from impeding the firearms

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trafficking conspiracy. Id., ¶ 94. Defendants intended to run interference with other law

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enforcement agencies until Defendants could obtain a wiretap which they believed would

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enable them to dismantle the entire organization. Id., ¶¶ 94, 111, 140, 143.

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Plaintiffs allege the ATF Defendants identified Lone Wolf Trading Company as

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one source of weapons sold to straw purchasers. Defendants monitored straw sales by

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means of a hidden camera installed at Lone Wolf. Id., at 97. Plaintiffs allege that the

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ATF Defendants instructed Lone Wolf to continue making sales to suspicious purchasers

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and to share intelligence with them. Id., ¶ 100. Lone Wolf allegedly sold 619 weapons

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to straw purchasers between October 15 and December 31, 2010. Id., ¶¶ 107-08.

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On December 15, 2010, Agent Terry was shot and killed in the desert near Rio

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Rico, Arizona, eighteen miles inside the U.S.-Mexico border. Plaintiffs allege that two of

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the weapons found at the scene had been sold by Lone Wolf and gunwalked by

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Defendants. Id., ¶¶ 121, 123, 160. Plaintiffs assert that their son’s death resulted from

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Defendants’ failure to intercept the illegally purchased weapons.

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Id., ¶¶ 418, 429.

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Plaintiffs’ Bivens action relies on a state-created danger theory and seeks compensatory

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and punitive damages against AUSA Hurley, the ATF Defendants, and Lone Wolf for

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loss of familial association and on behalf of Agent Terry’ estate, under the Fifth

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Amendment Due Process Clause. Id., ¶¶ 9-10, 428, 444, 448, 450.

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II.

Legal Standard.

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Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).

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Defendants mount a facial attack on the Court’s subject matter jurisdiction rather than

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contesting specific factual allegations of the complaint.

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challenge, the Court assumes all of Plaintiffs’ factual allegations to be true and draws all

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reasonable inferences in their favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.

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2009).2

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III.

In resolving such a facial

Analysis.

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In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. 403 U.S.

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388 (1971), the Supreme Court “recognized for the first time an implied private action for

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damages against federal officers alleged to have violated a citizen’s constitutional rights.”

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Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Bivens court “proceed[ed] on

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the theory that a right suggests a remedy.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).

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Bivens allows a plaintiff to bring an action for damages against individual federal

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officials for violating the Fourth Amendment despite the absence of any federal statute

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authorizing such an action. See Bivens, 403 U.S. at 397. The Supreme Court has also

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recognized Bivens actions to redress violations of the Fifth and Eighth Amendments. See

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Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980).

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Since its 1980 decision in Carlson, the Supreme Court has “consistently refused to

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extend Bivens liability to any new context or new category of defendants.” Malesko, 534

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U.S. at 68. The Court instead has asked whether Congress intended courts to devise a

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new Bivens remedy, and has declined to extend Bivens to embrace other constitutional

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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).
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violations. See, e.g., Chappell v. Wallace, 462 U.S. 296, 297 (1983) (declining to find an

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implied right of action for military personnel who allegedly suffered racial discrimination

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at the hands of superior officers); Bush v. Lucas, 462 U.S. 367, 368 (1983) (declining to

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find an implied right of action for a federal civil-service employee who allegedly suffered

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violations of his First Amendment rights); Wilkie v. Robbins, 551 U.S. 537, 561-62

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(2007) (declining to find an implied right of action for a landowner who allegedly

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suffered harassment and intimidation by federal officials in violation of the Fourth and

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Fifth Amendments).

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In Wilkie, the Supreme Court identified a two-step analysis for determining the

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appropriateness of a Bivens remedy. Id. at 550; W. Radio Servs. v. U.S. Forest Service,

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578 F.3d 1116, 1120 (9th Cir. 2009).

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alternative, existing process for protecting” the plaintiff’s interests “amounts to a

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convincing reason for the Judicial Branch to refrain from providing a new and

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freestanding remedy in damages.” Wilkie, 551 U.S. at 550. Such an alternative remedy

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raises the inference that Congress “expected the Judiciary to stay its Bivens hand.” Id. at

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554. “When the design of a government program suggests that Congress has provided

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what it considers adequate remedial mechanisms for constitutional violations that may

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occur in the course of its administration, [the Supreme Court has] not created additional

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Bivens remedies.” Schweiker v. Chilicky, 487 U.S. 410, 423 (1988).3

First, the Court determines whether “any

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In Bush, the Supreme Court declined to recognize a Bivens action even though it

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assumed a First Amendment violation had occurred and acknowledged that “existing

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remedies do not provide complete relief for the plaintiff.” 462 U.S. at 388. Noting that

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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.”).
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Congress is more competent than the Judiciary to carry out the necessary “balancing [of]

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governmental efficiency and the rights of employees,” the Court refused to “decide

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whether or not it would be good policy to permit a federal employee to recover damages

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from a supervisor who has improperly disciplined him for exercising his First

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Amendment rights.” Id. at 389-390. “So long as the plaintiff ha[s] an avenue for some

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redress, bedrock principles of separation of powers foreclose judicial imposition of a new

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substantive liability.” Malesko, 534 U.S. at 69.

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At the second step of the Wilkie analysis, the Court asks whether there are “factors

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counseling hesitation” before finding an implied Bivens right of action. Wilkie, 551 U.S.

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at 550. Even where Congress has given plaintiffs no damages remedy for a constitutional

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violation, the Court has declined to create a right of action under Bivens when doing so

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“would be plainly inconsistent with Congress’ authority in this field.” Chappell, 462

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U.S. at 304. For example, the Court found that “the unique disciplinary structure of the

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Military Establishment and Congress’ activity in the field” constituted special factors

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counseling against finding a Bivens remedy for enlisted military personnel against

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superior officers. Id. at 304.

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This case can be resolved at step one of the Wilkie analysis.

Congress has

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provided a comprehensive remedial scheme for Agent Terry’s estate and survivors. The

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Federal Employees Retirement System (“FERS”), 5 U.S.C. §§ 8401, et. seq., the Federal

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Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101, et. seq., and the Public

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Safety Officer Benefits Acts (“PSOBA”), 42 U.S.C. § 3796, all provide benefits for the

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survivors of federal employees who are killed in the course of their employment. These

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existing remedies “amount[] to a convincing reason for the Judicial Branch to refrain

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from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550.

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The FERS provides disability and death benefits to federal employees or their

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survivors.

5 U.S.C. §§ 8402(b)(2)(B), 8403, 8424, 8432, 8441-8451; 5 C.F.R.

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§§ 843.101, et seq. Under 5 U.S.C. §§ 8442(b)(1)(A) and 8462(e), a surviving spouse

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may receive 50% of the deceased employee’s final annual basic pay, plus a $15,000

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payment adjusted to reflect inflation. Section 8443 provides benefits for a deceased

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employee’s surviving children. Section 8424 permits the parents of a deceased employee

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to recover benefits if the employee left no designated beneficiary, spouse, or children.

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The FECA establishes a “comprehensive and exclusive compensation scheme for

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federal employees.” Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006).

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The FECA provides that “[t]he United States shall pay compensation . . . for the disability

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or death of an employee resulting from personal injury sustained while in the

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performance of his duty[.]” 5 U.S.C. § 8102(a). The FECA permits a spouse to receive

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up to 50% of a deceased employee’s monthly pay. 5 U.S.C. § 8133(a)(1). Children and

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parents of a deceased employee can also recover FECA benefits under certain

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circumstances. 5 U.S.C. §§ 8133(a)(3)-(4). Most relevant here, FECA specifically states

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that it is the exclusive source of liability to the employee, spouse, or next of kin. Id.

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§ 8116(c); United States v. Lorenzetti, 467 U.S. 167, 169 (“[T]he United States’ liability

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for work-related injuries under FECA is exclusive[.]”). Indeed, several federal district

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courts have found that the availability of FECA remedies precludes a Bivens claim. See

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Richards v. C.I.A., 837 F. Supp. 2d 574, 578 (E.D. Va. 2011); Rivera v. Smith, No. 1:10-

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CV-01015 AWIGSA, 2011 WL 902097, at *4 (E.D. Cal. March 15, 2011); Williams v.

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Young, 769 F. Supp. 2d 594, 600 n.6 (S.D.N.Y. 2011); Briscoe v. Potter, 355 F. Supp. 2d

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30, 41-42 (D. D.C. 2004) aff’d, 171 Fed. App’x. 850 (D.C. Cir. 2005), cert. denied, 547

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U.S. 1128 (2006); Hightower v. U.S., 205 F. Supp. 2d 146, 157-58 (S.D.N.Y. 2002). In

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addition, the Ninth Circuit has held that the FECA is relevant in a special factor analysis

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precluding recognition of a Bivens action brought by an injured employee or his

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survivors. Berry v. Hollander, 925 F.2d 311, 315 (9th Cir. 1991).

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The PSOBA provides benefits to survivors of federal and other law enforcement

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officers killed in the line of duty. 42 U.S.C. § 3796(a)(1)-(5). The PSOBA also provides

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educational funding to the dependents of deceased public safety officers. 42 U.S.C.

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§§ 3796(d), et seq. Along with the FECA, the PSOBA has been cited by federal district

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courts in declining to imply a Bivens right of action. Rivera, 2011 WL 902097 at *4 n.2.

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Plaintiffs argue that these federal statutes do not foreclose a Bivens claim because

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Plaintiffs have had no opportunity to adjudicate their claims in a public forum before a

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neutral arbiter. Doc. 59 at 6; Doc 64 at 5. The Supreme Court and Ninth Circuit have not

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required, however, that federal remedies provide a full panoply of due process protections

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before a Bivens action is precluded. To the contrary, Bivens actions are foreclosed

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“where Congress has provided some mechanism for relief that it considers adequate to

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remedy constitutional violations.” Moore v. Glickman, 113 F.3d 988, 991 (9th Cir. 1997)

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(emphasis added).

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Plaintiffs further argue that the federal statutes cited above “offer no . . . forum for

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the vindication of a constitutional claim against a federal officer.” Doc. 64 at 6, 7. The

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Supreme Court has held, however, that “the presence of alleged unconstitutional conduct

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that is not separately remedied under the statutory scheme [does not] imply that the

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statute has provided ‘no remedy’ for the constitutional wrong at issue.” Schweiker, 487

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U.S. at 427-28 (emphasis in original). Thus, a Bivens action may be precluded where

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statutory remedies do not separately provide relief for the alleged constitutional

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violations that caused injury.

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Plaintiffs argue that a Bivens claim should not be precluded in this case because

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the statutory scheme provides no separate deterrence for government wrongdoing, a

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primary policy reason for creating the Bivens remedy in the first place. Doc. 59 at 6.

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Wilkie explained, however, that “any freestanding damages remedy for a claimed

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constitutional violation has to represent a judgment about the best way to implement a

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constitutional guarantee; it is not an automatic entitlement no matter what other means

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there may be to vindicate a protected interest, and in most instances we have found a

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Bivens remedy unjustified.” 551 U.S. at 500. Plaintiffs seem to suggest that the strong

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deterrent policies undergirding Bivens permit a court to imply a damages action where

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the available statutory remedies compensate a plaintiff for injuries but do not also

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adequately discourage a government agent’s misconduct.

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Bivens, a damages action would be implied whenever a remedial statutory scheme fails to

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Under such a reading of

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impose a penalty of some sort on the government actor who caused the injury. The Court

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cannot accept such a broad interpretation of Bivens. The Supreme Court has made clear

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during the last 30 years that it is not the prerogative of the judiciary to create Bivens

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causes of action whenever a judge deems a Congressional remedial scheme to be

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deficient in some respect. Wilkie, 551 U.S. at 550, 554; Malesko, 534 U.S. at 69;

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Schweiker, 487 U.S. at 423; Chappell, 462 U.S. at 304.

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Plaintiffs argue that permitting the PSOBA to be construed in a manner that

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precludes a Bivens action would “conflict with the goal of attempting to remediate the

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harm from a fallen officer’s death in service of their country.” Doc. 64 at 6-7. Plaintiffs

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seem to argue that construing the PSOBA – a statute designed to provide relief to the

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survivor of an officer killed in the line of duty – in a manner that precludes a Bivens

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action defeats the goal of providing compensation to families. But the compensation

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available under the PSOBA is intended to remedy precisely the harm that Plaintiffs have

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suffered, namely the tragic death of their son. It is not the proper role of this Court to

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second-guess the remedial scheme established by Congress, find it insufficient, and

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impose an additional judicially-crafted remedy.

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The Court recognizes that Plaintiffs have suffered a great loss, and that any

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financial remedy is likely insufficient to redress their injury. But as the Supreme Court

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has made clear, the bedrock principle of separation of powers counsels against judicially-

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created remedies when Congress has established a remedial scheme. Congress has done

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so here, and the Court therefore concludes that a Bivens action cannot be implied.

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IT IS ORDERED that Defendants’ motions to dismiss (Docs. 52, 53) are
granted.
Dated this 15th day of November, 2013.

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