PATEL v. LIU et al

Filing 23

MEMORANDUM OPINION re: 18 Defendants' Motion to Dismiss. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 09/25/2024. (lcapm1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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KASHYAP PATEL,
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Plaintiff,
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v.
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Case No. 23-cv-2699 (APM)
JESSIE K. LIU, et al.,
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Defendants.
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_________________________________________ )
MEMORANDUM OPINION
I.
During the 2016 presidential election, the Department of Justice (“DOJ”) and the Federal
Bureau of Investigation (“FBI”) opened an investigation, called Crossfire Hurricane, into the
relationship between then-candidate Donald Trump’s campaign and Russia. Compl., ECF No. 1,
¶¶ 26–27 [hereinafter Compl.]. In early 2017, the U.S. House of Representatives Permanent Select
Committee on Intelligence (“HPSCI”) began to investigate the FBI’s handling of Crossfire
Hurricane. In April of that year, Plaintiff Kashyap Patel joined the HPSCI as a senior counsel. Id.
¶¶ 39–40. By that fall, the HPSCI was preparing to release its findings in what would come to be
known as the Nunes Memo. Id. ¶ 54. Before its release, a draft was shared with certain highranking individuals at the DOJ and FBI. Id. ¶ 55.
On November 20, 2017, Plaintiff alleges that the DOJ, without probable cause, “obtained
a grand jury subpoena to access [his] personal information as part of a politically motivated
investigation.” Id. ¶ 56. The recipient of the subpoena, Google LLC, produced Plaintiff’s
subscriber information to the DOJ weeks later. Id. ¶ 59. Fast forward five years. Plaintiff learned

about the records demand for the first time in December 2022, when Google disclosed to him that
“DOJ had issued its subpoena for information related to his personal accounts.” Id. ¶ 61.
Plaintiff now brings a single Bivens claim asserting a Fourth Amendment violation against
various DOJ and FBI officials, whom he believes were responsible for issuing the subpoena to
Google. Id. Those officials are: (1) former U.S. Attorney for the District of Columbia Jessie Liu;
(2) former Deputy Attorney General Rod Rosenstein; (3) former Principal Associate Deputy
Attorneys General Robert Hur and Edward O’Callaghan; (4) FBI Director Christopher Wray; (5)
an unnamed Assistant U.S. Attorney; and (6) an unnamed special agent for the FBI who signed
the affidavit in support of the search warrant. Id. ¶¶ 13–19, 72. Plaintiff seeks damages and
injunctive relief. Id. ¶ 77.
Defendants moved to dismiss the complaint. Defs.’ Mot. to Dismiss, ECF No. 18. They
contend that there is no Bivens remedy here, they are entitled to qualified immunity, and injunctive
relief is unavailable. Defs.’ Mem. of P&A in Supp. of Defs.’ Mot., ECF No. 18 [hereinafter Defs.’
Mem.], at 5–27. For the reasons that follow, the motion is granted.
II.
A.

Bivens Remedy

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court “held that, even absent statutory authorization, it would enforce a
damages remedy to compensate persons injured by federal officers who violated the prohibition
against unreasonable search and seizures.” Ziglar v. Abbasi, 582 U.S. 120, 130–31 (2017). After
Bivens, the Court twice more recognized an implied cause of action to remedy other alleged
constitutional violations.

See id. at 131 (citing Davis v. Passman, 442 U.S. 228 (1979)

(recognizing Fifth Amendment Due Process Clause gave the plaintiff a damages remedy for gender

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discrimination)) and Carlson v. Green, 446 U.S. 14 (1980) (holding that the Eighth Amendment’s
Cruel and Unusual Punishment Clause gave the plaintiff a damages remedy for the failure to
provide medical treatment)).
More recently, however, the Supreme Court has made clear that “expanding the Bivens
remedy is now a ‘disfavored’ judicial activity.” Id. at 135 (citation omitted). That shift is
explained by the Court’s adoption of “a far more cautious course before finding implied causes of
action.” Id. at 132. As a result, for almost 40 years, the Court has “consistently refused to extend
Bivens to any new context or new category of defendants.” Id. at 135 (quoting Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 68, (2001)).
To determine the availability of a Bivens remedy, courts must first ask whether the case
presents “‘a new Bivens context’—i.e., is it meaningfully different from the three cases in which
the Court has implied a damages action[.]” Egbert v. Boule, 596 U.S. 482, 483 (2022) (internal
quotation marks and citations omitted). If the context is not new, the analysis stops there and the
claim can proceed. If, however, a claim arises in a new context, the court must determine whether
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.’” Id. at 492
(quoting Ziglar, 582 U.S. at 136). If such “special factors” exist, the Bivens claim fails; if not, it
can proceed.
1.

New Context

To determine whether “[a] case might differ in a meaningful way,” and thus present “a new
Bivens context,” courts look to a non-exhaustive list of factors, including: “the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the official action; . . . the

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statutory or other legal mandate under which the officer was operating; [and] the risk of disruptive
intrusion by the Judiciary into the functioning of other branches[.]” Ziglar, 582 U.S. at 139–40.
This case presents a “new Bivens context.” In Bivens, the Court recognized an implied
cause of action under the Fourth Amendment for damages against various federal narcotics agents
who made a warrantless entry of the plaintiff’s apartment, searched it, and arrested him on
narcotics charges, all without probable cause. See Bivens, 403 U.S. at 389. Here, in sharp contrast,
Plaintiff has sued high-ranking DOJ and FBI officials about their alleged approval of a grand jury
subpoena to a provider of online electronic communication services. This case therefore does not
closely resemble Bivens. See Attkisson v. Holder, 925 F.3d 606, 621 (4th Cir. 2019) (finding a
“new context” when the defendants “held much higher ranks than the line-level FBI agents sued
in Bivens,” and the claim was “based on unlawful electronic surveillance” that “present[ed] wildly
different facts and a vastly different statutory framework from a warrantless search and arrest”).
Plaintiff argues that because he alleges a Fourth Amendment violation involving an
unconstitutional search, his case is not meaningfully different from Bivens itself. Pl.’s Mem. of
P&A in Opp’n to Defs.’ Mot. to Dismiss, ECF No. 21 [hereinafter Pl.’s Opp’n], at 8. But the
Court’s Bivens jurisprudence demands more specific similarity. “A claim may arise in a new
context even if it is based on the same constitutional provision as a claim in a case in which a
damages remedy was previously recognized.” Hernandez v. Mesa, 589 U.S. 93, 103 (2020).
Plaintiff further contends that this case involves “run-of-the-mill challenges to ‘standard law
enforcement operations.’” Pl.’s Opp’n at 9 (quoting Jacobs v. Alam, 915 F.3d 1028, 1038 (6th
Cir. 2019)). There is a world of difference, however, between “a claim against FBI agents for
handcuffing a man in his own home without a warrant,” Ziglar, 582 U.S. at 140, and Plaintiff’s

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claim, which arises from the alleged retaliatory issuance of a grand jury subpoena by high-ranking
law enforcement officials.
2.

Special Factors

Having found that Plaintiff’s claim presents a “new Bivens context,” the court considers
whether any “special factors” counsel against extending a Bivens remedy here. That inquiry
“concentrate[s] 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.” Id. at 136.
If “there is any reason to think that Congress might be better equipped to create a damages
remedy,” then the court must decline to extend Bivens to a new context. Egbert, 596 U.S. at 492
(emphasis added).
In this case, the presence of alternative remedial schemes forecloses Bivens relief. See id.
at 493 (“If 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.’” (quoting
Ziglar, 582 U.S. at 137)). For one, Congress has legislated with respect to privacy protections for
electronic records and provided remedies for violations. The Stored Communications Act,
18 U.S.C. § 2701 et seq., offers a civil damages remedy for the improper subpoenaing of electronic
records like the materials sought here. Id. § 2707. What’s more, through the Inspector General
Act, 5 U.S.C. § 401-24, an individual may report allegations of federal employee misconduct to
the DOJ Office of the Inspector General. Other courts have found that the availability of this
process forecloses a Bivens remedy. See, e.g., Arias v. Herzon, 680 F. Supp. 3d 61, 68 (D.N.H.
2023); House v. Nat’l Park Serv., No. 22-cv-970 (SCY), 2024 WL 3401049, at *5 (D.N.M. July
12, 2024).

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Plaintiff counters that these remedies do not provide complete relief, Pl.’s Opp’n at 12, but
an alternative remedy need not do so to foreclose a Bivens claim. Egbert, 596 U.S. at 493. The
existence of these remedies indicates that Congress is better equipped than the courts to provide a
cause of action. Cf. id. at 497 (holding that the existence of the Border Patrol’s grievance process
foreclosed Bivens relief).
Plaintiff’s remaining arguments are similarly unavailing. He contends that there are no
special factors counseling hesitation because this case does not involve a national security dispute.
Pl.’s Opp’n at 9–10. But the absence of a national security concern alone does not warrant
recognition of a Bivens remedy. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (no Bivens
remedy available in landowner’s retaliation suit against Bureau of Land Management); Minneci v.
Pollard, 565 U.S. 118, 127 (2012) (no Bivens remedy available in Eighth Amendment prisoner
suit against private prison company). Plaintiff also points out that courts commonly handle
subpoena disputes. Pl.’s Opp’n at 10. His claim, however, does not involve a contest over whether
certain materials must be produced. Instead, he asserts that high-ranking officials sought to punish
him for his political views through the issuance of a grand jury subpoena. See Compl. ¶¶ 57, 64,
68. Finally, Plaintiff argues that, because Congress would be met with backlash if it provided a
damages remedy in this instance, the court should recognize one. Pl.’s Opp’n at 10. That
contention is speculative at best and, in any event, is not a valid ground upon which to extend a
Bivens remedy.
In conclusion, because this matter involves a “new context” and special factors caution
against a Bivens remedy, Plaintiff fails to state a claim.

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B.

Qualified Immunity

Defendants argue in the alternative that qualified immunity warrants dismissal even if
Bivens would supply a cause of action here. See Defs.’ Mem. at 18. The court agrees.
Officials “generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The court evaluates a
defendant’s qualified immunity defense by determining (1) whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right and (2) whether the right at issue
was clearly established at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). Here, Plaintiff’s claim fails on prong one.
Plaintiff’s Complaint alleges that the subpoena lacked probable cause, thus violating the
Fourth Amendment. Compl. ¶ 75 (“Specifically, the subpoena represented an unreasonable search
and seizure of Mr. Patel’s private personal information without probable cause.”). But that
allegation does not make out a Fourth Amendment violation, because the probable cause standard
does not govern grand jury subpoenas. See United States v. R. Enters., Inc., 498 U.S. 292, 297
(1991).
In his opposition to Defendants’ motion, Plaintiff concedes the inapplicability of the
probable cause standard and attempts to recast his Complaint as challenging the subpoena’s
breadth. Pl.’s Opp’n at 14. But Plaintiff cannot amend his pleading through his opposition brief.
Statewide Bonding, Inc. v. DHS, 980 F.3d 109, 117 n.5 (D.C. Cir. 2020) (refusing to address an
argument raised for the first time in opposition to the defendant’s motion to dismiss because it “is
axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss”

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(quoting Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000))).
Defendants thus are entitled to qualified immunity.
C.

Equitable Relief

Plaintiff also seeks “[i]njunctive relief preventing those agents who improperly
investigated Mr. Patel from being involved in future proceedings against him, whether judicial or
investigatory,” and the “[d]estruction of any and all records that the FBI and DOJ obtained from
their subpoena to Mr. Patel.” Compl. ¶ 77. But Plaintiff has not plausibly established standing for
the former relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding that a plaintiff
seeking injunctive relief must demonstrate that they are “likely to suffer future injury from” the
same alleged misconduct). And the latter remedy is not available under Bivens where, as here, the
defendants are sued only in their individual capacities. See Higazy v. Templeton, 505 F.3d 161,
169 (2d Cir. 2007) (“The only remedy available in a Bivens action is an award for monetary
damages from defendants in their individual capacities.”); Ministerio Roca Solida v. McKelvey,
820 F.3d 1090, 1093 (9th Cir. 2016) (“[W]e join our sister circuits in holding that relief under
Bivens does not encompass injunctive and declaratory relief where, as here, the equitable relief
sought requires official government action.”).
IV.
For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 18, is granted. A final,
appealable order accompanies this Memorandum Opinion.

Dated: September 25, 2024

Amit P. Mehta
United States District Court Judge

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