LYTTLE v. The UNITED STATES OF AMERICA et al
Filing
73
NOTICE OF FILING of Supplemental Authority filed by Dean Caputo, Dashanta Faucette, Robert Kendall, and the United States of America (Attachments: # 1 Exhibit Slip Opinion) (Cutler, David)
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Only the Westlaw citation is currently available.
United States Court of Appeals,
Ninth Circuit.
Mohammad MIRMEHDI; Mostafa Mirmehdi;
Mohsen Mirmehdi; Mojtaba Mirmehdi,
Plaintiffs–Appellants,
v.
UNITED STATES of America; Mario Lopez; John
Ashcroft; Robert S. R–PJW Mueller, III; James W.
Ziglar; Michael Garcia, Esquire; Christopher
Castillo; James Macdowell, Defendants–Appellees.
No. 09–55846.
Argued and Submitted Aug. 30, 2011.
Filed Nov. 3, 2011.
Paul L. Hoffman, Schonbrun DeSimone Seplow
Harris Hoffman & Harrison LLP, Venice, CA, argued the cause and filed the briefs for the plaintiffsappellants. With him on the briefs were Michael
Seplow, Adrienne Quarry, and Victoria Don,
Schonbrun DeSimone Seplow Harris Hoffman &
Harrison LLP, Venice, CA.
Jeremy S. Brumbelow, United States Department of
Justice, Torts Branch, Civil Division, Washington,
D.C., filed the briefs for the defendants-appellees.
With him on the brief were Tony West, Timothy P.
Garren, and Andrea W. McCarthy, Department of
Justice Civil Division, Washington, D.C.
Appeal from the United States District Court for the
Central District of California, Manuel L. Real, District
Judge,
Presiding.
D.C.
No.
2:06–cv–05055–R–PJW.
Before ARTHUR L. ALARCÓN, DIARMUID F.
O'SCANNLAIN, and BARRY G. SILVERMAN,
Circuit Judges.
OPINION
O'SCANNLAIN, Circuit Judge:
*1 We are asked to decide, among other things,
whether an alien not lawfully in the United States
may sue for monetary damages claiming constitutionally invalid detention.
I
Mohammad, Mostafa (“Michael”), Mohsen,
and Mojtaba Mirmehdi (collectively the “ Mirmehdis ”) are four citizens of Iran who came to the
United States at various times, purportedly due to
their long-standing opposition to that nation's theocratic regime. In 1978, Michael arrived on a student
visa. Having abandoned the degree that earned him
entry into the United States, he became a real estate
agent in 1985. Mohsen, Mojtaba, and Mohammad
joined Michael in California in the early 1990s.
Mohsen and Mohammad also became real estate
agents. Unable to pass the real estate licensing exam, Mojtaba worked in construction.
In 1998, the Mirmehdis applied for political
asylum with the assistance of an attorney named
Bahram Tabatabai. Tabatabai falsified certain details in the Mirmehdis' applications. After
Tabatabai was arrested for immigration fraud in
March 1999, he agreed to cooperate with federal
authorities. As part of his plea bargain, Tabatabai
spoke to Special Agents Christopher Castillo of the
Federal Bureau of Investigation and J.A. MacDowell of the Immigration and Naturalization Service
regarding their ongoing investigation of a terrorist
group known as the Mujahedin-e Khalq (“MEK”).
Though he later recanted, Tabatabai told Castillo
and MacDowell that the Mirmehdis were supporters of the group, which was founded on an antipathy for the Iranian government.
Based on this information, agents arrested the
Mirmehdis for immigration violations in March
1999. Michael, Mojtaba, and Mohsen were released
on bond later that year; Mohammad was released in
September 2000.
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On October 2, 2001, immigration authorities
revoked the Mirmehdis' bond, largely based on a
document known as the “L.A. Cell Form,” a handwritten piece of paper that has become the subject
of considerable litigation and is at the center of this
case. The government has always maintained that
the Form lists members, affiliates, and supporters
of the MEK. During the Mirmehdis' bond revocation proceedings, Castillo testified that the FBI
seized the document from an MEK facility and that
a confidential informant told him of its significance.
Mirmehdis were released from detention in March
2005. The Mirmehdis subsequently brought this
suit naming as defendants: Attorney General John
Ashcroft, FBI Director Robert Mueller, INS Commissioners James Ziglar and Michael Garcia, the
City of Santa Ana, the City of Las Vegas, MVM,
Inc., Castillo, Mac–Dowell, several named prison
guards, John Does 1–10, and the United States.
They raised a number of claims including unlawful
detention, inhumane detention conditions, witness
intimidation, and the intentional infliction of emotional distress.
The Mirmehdis have always denied their involvement in the MEK and allege that Castillo and
MacDowell knew from the start that the document
was really just a list of attendees at a rally hosted
by the National Council of Resistance of Iran
(“NCRI”). It is undisputed that the MEK was listed
as a terrorist group in 1997 and is affiliated with the
NCRI. But the Mirmehdis assert that they attended
the rally before that classification occurred.
The district court dismissed almost all of the
Mirmehdis' claims for either lack of personal jurisdiction or failure to state a cause of action. The
parties later settled all claims except those against
Castillo and MacDowell for unlawful detention and
conspiracy to violate their civil rights, against
Castillo for intimidation of a witness, and against
the United States for false imprisonment. The district court entered a final judgment, and the Mirmehdis timely appealed the claims to which they did
not stipulate.
The Mirmehdis also assert that Castillo concocted evidence to convince immigration authorities to revoke their bond. They claim that the cooperating witness never existed and that Castillo
unreasonably continued to rely upon Tabatabai,
even after he recanted. Castillo's motive, the
Mirmehdis contend, was to pressure them into giving up information about the MEK that they did not
possess.
*2 The Mirmehdis' assertions are not new.
They raised them on direct appeal of their detention, during the merits proceeding related to their
asylum applications, and in a federal petition for a
writ of habeas corpus. Almost all such forms of relief were denied. The Mirmehdis were, however,
granted withholding of removal because they had
demonstrated a likelihood of mistreatment if removed to Iran, and because the government failed
to establish that they were engaged in terrorist
activity as defined by statute.
Their immigration proceedings at last final, the
II
The Mirmehdis first appeal the dismissal of
their claim against Castillo and MacDowell for
wrongful detention under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403
FN1
U.S. 388 (1971).
Whether such a claim
presents a cognizable legal theory has been an open
question in this circuit. See Wong v. United States
INS, 373 F.3d 952, 961 (9th Cir.2004); see also Sissoko v.. Rocha, 412 F.3d 1021, 1028 (9th Cir.2005),
withdrawn and replaced, 509 F.3d 947 (9th
FN2
Cir.2007).
FN1. The district court dismissed these
claims based on its conclusion that the
Mirmehdis had no constitutional right not
to be detained pending deportation proceedings. We do not reach this issue because, even assuming such a violation, we
must still decide whether Bivens provides
for a theory for recovery. Wilkie v. Rob-
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bins, 551 U.S. 537, 550 (2007); see also
Shaw v. Cal. Dep't of Alcoholic Beverage
Control, 788 F.2d 600, 603 (9th Cir.1986)
(“We may affirm the judgment on any
basis supported by the record even if the
district court did not rely on that basis.”).
FN2. The Mirmehdis argue that we have,
in fact, recognized an immigrant's right to
pursue a Bivens action citing Papa, 281
F.3d 1004. But because cases like Papa
did not squarely present the issue, it remains open. See Berry v. Hollander, 925
F.2d 311, 314 & n. 3, 316 (9th Cir.1991)
(concluding that no Bivens action exists for
government employees despite previously
allowing such claims).
A
In the past, we have suggested that “federal
courts have inherent authority to award damages to
plaintiffs whose federal constitutional rights were
violated by federal officials.” Papa v.. INS, 281
F.3d 1004, 1009 (9th Cir.2002). But as the Supreme
Court has since reminded us, “any freestanding
damages remedy for a claimed constitutional violation has to represent a judgment about the best way
to implement a constitutional guarantee.” Wilkie v.
Robbins, 551 U.S. 537, 550 (2007). Such a cause of
action “is not an automatic entitlement no matter
what other means there may be to vindicate a protected interest.” Id. (emphasis added).
Indeed, “[i]n the 38 years since Bivens, ” the
Supreme Court has repeatedly rejected Bivens
claims outside the context discussed in that specific
case and has “extended it twice only: in the context
of an employment discrimination claim in violation
of the Due Process Clause, Davis v. Passman, 442
U.S. 228 (1979); and in the context of an Eighth
Amendment violation by prison officials, [ Carlson
v. Green, 446 U.S. 14 (1980) ].” Arar v. Ashcroft,
585 F.3d 559, 571 (2d Cir.2009) (en banc). The Supreme Court has refused to extend Bivens to: violations of federal employees' First Amendment rights
by their employers, Bush v. Lucas, 462 U.S. 367
(1983); harms suffered incident to military service,
United States v. Stanley, 483 U.S. 669, (1987);
denials of Social Security benefits, Schweiker v.
Chilikcy, 487 U.S. 412 (1988); decisions by federal
agencies, FDIC v. Meyer, 510 U.S. 471 (1994); actions by private corporations operating under federal contracts, Corr. Servs. Corp. v. Malesko, 534
U.S. 61 (2001); or retaliation by federal officials
against private landowners, Wilkie, 551 U.S. at 562.
*3 The Court has also “recently and repeatedly
said that a decision to create a private right of action is one better left to legislative judgment in the
great majority of cases.” Sosa v. Alvarez–Machain,
542 U.S. 692, 727 (2004) (citing inter alia Malesko,
534 at 68). Such a decision implicates grave separation of powers concerns because the “creation of a
private right of action raises [policy choices] beyond the mere consideration whether primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without
the check imposed by prosecutorial discretion.” Id.
For such reasons, the Court has instructed the federal courts to “respond [ ] cautiously to suggestions
that Bivens remedies be extended into new contexts.” Schweiker, 487 U.S. at 421.
It quickly becomes apparent, however, that this
query has a logical predicate—whether we would
need to extend Bivens in order for illegal immigrants to recover for unlawful detention during deportation proceedings. Only after answering in the
affirmative, would we need to turn to the issue of
whether we ought to extend Bivens to such a context. Arar, 585 F.3d at 572.
B
To answer this question requires us to enter by
a narrow gate. Examining the availability of a Bivens remedy at a “high level of generality” would
“invite claims in every sphere of legitimate governmental action” touching, however tangentially, on a
constitutionally protected interest. Wilkie, 551 U.S.
at 561. Examining the question at too low a level of
generality would invite never ending litigation because “every case has points of distinction.” Arar,
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585 F.3d at 572. As such, we join our sister circuit
and “construe the word ‘context’ as it is commonly
used in law: to reflect a potentially recurring scenario that has similar legal and factual components.”
Id.
Deportation proceedings are such a context,
unique from other situations where an unlawful detention may arise. It is well established that immigrants' remedies for vindicating the rights which they
possess under the Constitution are not coextensive
with those offered to citizens. See, e.g., Reno v.
Am.-Arab Anti–Discrim. Comm., 525 U.S. 471, 488
(1999) (“AADC ”) (“As a general matter ... an alien
unlawfully in this country has no constitutional
right to assert selective enforcement as a defense
against his deportation.”). Therefore, deportation
proceedings constitute the relevant “environment of
fact and law” in which to “decide whether to recogFN3
nize a Bivens remedy.” Arar, 585 F3d at 572.
FN3. By identifying this as the appropriate
frame of reference, we do not hold that an
illegal alien may never bring a Bivens
claim. Instead, we merely recognize that
because Congress has the ability to “make
rules as to aliens that would be unacceptable if applied to citizens,” Demoore v.
Kim, 538 U.S. 510, 521–22 (2003) (citing
inter alia Reno v. Flores, 507 U.S. 292,
305–06 (1993) (“Thus, ‘in the exercise of
its broad power over immigration and naturalization,’ Congress regularly makes
rules that would be unacceptable if applied
to citizens.”)), we must consider whether
an immigrant may bring a Bivens claim to
vindicate certain constitutional rights separately from whether a citizen may bring
such a Bivens claim.
C
Having identified the appropriate context, we
now must apply the Supreme Court's test from
Wilkie, in which it “distilled its 35–year history of
Bivens jurisprudence into a two-step analysis .” W.
Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d
1116, 1120 (9th Cir.2009). First we must
“determine [ ] whether there is ‘any alternative, existing process for protecting’ the plaintiffs' interests.” Id. If there is such an alternative remedy,
our inquiry stops. If there is not, we proceed to the
next step and “ask[ ] whether there nevertheless are
‘factors counseling hesitation’ before devising such
an implied right of action.” Id . The Mirmehdis'
claim for unlawful detention founders at both
obstacles.
*4 The Mirmehdis could—and did—challenge
their detention through not one but two different remedial systems. As the Second Circuit stated:
“Congress has established a substantial, comprehensive, and intricate remedial scheme in the context of immigration.” Arar, 585 F.3d at 572. The
availability of habeas is another remedy. See
Rauschenberg v. Williamson, 785 F.2d 985, 987–88
(11th Cir.1986). The Mirmehdis took full advantage of both.
We are unpersuaded by the Mirmehdis' assertions they are nonetheless entitled to a Bivens remedy because neither the immigration system nor
habeas provides monetary compensation for unlawful detention. “Even where Congress has given
plaintiffs no damages remedy for a constitutional
violation, the Court has declined to create a right of
action under Bivens when doing so ‘would be
plainly inconsistent with Congress' authority in
th[e] field.’ “ W. Radio Servs. Co., 578 F.3d at 1120
(quoting Chappell v. Wallace, 462 U.S. 296, 304
(1983)). Indeed, “[s]o long as Congress' failure to
provide money damages ... has not been inadvertent, courts should defer to its judgment.” Berry v.
Hollander, 925 F.2d 311, 314 (9th Cir.1991)
(internal quotation marks omitted).
Congress's failure to include monetary relief
can hardly be said to be inadvertent, given that despite multiple changes to the structure of appellate
review in the Immigration and Nationality Act,
Congress never created such a remedy. See Schweiker, 487 U .S. at 423, 425 (1988) (considering
“frequent and intense” congressional attention to
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“the design of a Government program [to] suggest[
] that Congress has provided what it considers adequate remedial mechanisms for constitutional violations”).
The complexity and comprehensiveness of the
existing remedial system is another factor among a
broad range of concerns counseling hesitation before allowing a Bivens remedy. Id. at 423; see also
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 280
(1997); see also Saul v. United States, 928 F.2d
829, 840 (9th Cir.1991) (considering the Civil Service Reform Act).
Furthermore, immigration issues “have the natural tendency to affect diplomacy, foreign policy,
and the security of the nation,” which further
“counsels hesitation” in extending Bivens. Arar,
585 F.3d at 574. As the Supreme Court has noted,
concerns that always mitigate against “subjecting
the prosecutor's motives and decisionmaking to outside inquiry” have particular force in the immigration context. AADC, 525 U.S. at 490 (internal quotation marks omitted). Rather than mere “disclosure
of normal domestic law-enforcement priorities and
techniques” such cases often involve “the disclosure of foreign-policy objectives and (as in this case)
foreignintelligence products.” Id. at 490–91.
Accordingly, we decline to extend Bivens to allow the Mirmehdis to sue federal agents for
wrongful detention pending deportation given the
extensive remedial procedures available to and invoked by them and the unique foreign policy considerations implicated in the immigration context.
III
*5 The Mirmehdis next appeal the dismissal of
their claims against Castillo for witness intimidation and against both Castillo and MacDowell for
conspiracy to intimidate a witness pursuant to 42
FN4
U.S.C. § 1985(2),
arguing that the district court
erred by failing to find prejudice. Specifically, they
argue that but for Castillo's supposed threats,
Tabatabai was ready, willing, and able to testify
that they were not supporters of the MEK.
FN4. To the extent that the Mirmehdis
bring a separate claim for conspiracy selectively to enforce immigration laws, such
a claim does not exist. The Supreme Court
has stated that for reasons implicating the
constitutional separation of powers, “an
alien unlawfully in this country has no
constitutional right to assert [a claim of]
selective enforcement” of immigration
laws. AADC, 525 U.S. at 488.
But “[a]llegations of witness intimidation ...
will not suffice for a cause of action [under section
1985 ] unless it can be shown the litigant was
hampered in being able to present an effective
case.” David v. United States, 820 F.2d 1038, 1040
(9th Cir.1987) (emphasis omitted). This rule applies
to both witness intimidation and conspiracy to intimidate a witness. Id. at 1040; see also Rutledge
v. Ariz. Bd. of Regents, 859 F.2d 732, 735–36 (9th
Cir.1988).
Even assuming that the Mirmehdis could have
been prejudiced by the absence of a witness that the
relevant fact finder had dismissed as not credible,
the outcome of the Mirmehdis' immigration proceedings demonstrate that they were not so harmed.
FN5
According to the Mirmehdis, Tabatabai would
have rebutted Castillo's testimony that they were involved with the MEK. As such, his testimony
would have helped them to establish that they were
eligible for withholding of removal because they
were not involved with any terrorist activities as
defined by 8 U.S.C. § 1182(a)(3)(B)(i). See also 8
U.S.C. § 1231(b)(3)(B). But the Mirmehdis were
awarded withholding of removal even without
Tabatabai's testimony. Therefore, they could not
have been prejudiced by any alleged wrongdoing.
FN6
FN5. “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers
evidence outside the pleadings, it must
normally convert the 12(b)(6) motion into
a Rule 56 motion for summary judgment,
and it must give the nonmoving party an
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opportunity to respond.” United States v.
Ritchie, 342 F.3d 903, 907 (9th Cir.2003).
But because the Mirmehdis referred to
their related habeas and immigration cases
on the face of their complaint, we may take
judicial notice of any matters of public record. See Emrich v. Touche Ross & Co.,
846 F.2d 1190, 1198 (9th Cir.1988).
FN6. We are not persuaded by the Mirmehdis' fallback argument that Tabatabai's
testimony would have allowed them to reopen the bond determination because we
see no evidence that they tried to do so,
even after the IJ's initial decision in 2002.
IV
The Mirmehdis also appeal the dismissal of
their claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U .S.C. § 1346,
arguing that they have stated a claim for false imprisonment under California law.
We do not reach this contention because even
if true, the Mirmehdis' claim still would fall outside our jurisdiction. “The United States, as a sovereign, may not be sued except insofar as it consents to be sued.” Rooney v. United States, 634 F.2d
1238, 1241 (9th Cir.1980). The FTCA does waive
that immunity for certain torts, but it is subject to
both procedural and substantive exceptions which
“must be strictly interpreted.” Id. (citing United
States v. Sherwood, 312 U.S. 584, 590 (1941)). One
such exception is that the United States may not be
sued “based upon the exercise or performance or
the failure to exercise or perform a discretionary
function ..., whether or not the discretion involved
FN7
be abused.” 28 U.S.C. § 2680(a).
FN7. Though neither party raised this exception, because the applicability of an
FTCA exception affects our jurisdiction,
we must consider it sua sponte. See Morris
v. United States, 521 F.2d 872, 875 & n. 1
(9th Cir.1975).
To determine whether conduct falls within this
exception, we must first determine if the
“challenged conduct involves an element of judgment or choice” and then if “the conduct implements social, economic or political policy considerations.” Nurse v. United States, 226 F.3d 996, 1001
(9th Cir.2000) (citing Berkovitz v. United States,
486 U.S. 531, 536 (1988)). Because the decision to
detain an alien pending resolution of immigration
proceedings is explicitly committed to the discretion of the Attorney General and implicates issues
of foreign policy, it falls within this exception. Cf.
Medina v. United States, 259 F.3d 220, 229 (4th
Cir.2001) (“Even though the INS ultimately decided not to pursue the deportation of Medina, we
are fully satisfied that the initial decision to initiate
proceedings and arrest him was the type of agency
conduct Congress intended to immunize in the discretionary function exception.”); Wright v. United
States, 719 F.2d 1032, 1035 (9th Cir.1983) (“The
decision whether or not to prosecute a given individual is a discretionary function for which the
FN8
United States is immune from liability.”).
FN8. This does not immunize the conduct
of the officers who made the arrest at an
operational level from judicial review.
Wright, 719 F.2d at 1035. But, for the reasons discussed above, the Mirmehdis have
not stated a claim on those grounds.
V
*6 Finally, the Mirmehdis appeal the denial of
their motion to amend their complaint, arguing that
they should be allowed an opportunity to comply
with the heightened pleading requirements of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
“[R]equests for leave [to amend] should be granted
with ‘extreme liberality,’ “ particularly when a
complaint was filed before Twombly and fails for
lack of sufficient factual content. Moss v. U.S.
Secret Serv., 572 F.3d 962, 972 (9th Cir.2009).
However, a party is not entitled to an opportunity to
amend his complaint if any potential amendment
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would be futile. See, e.g., May Dep't Store v.
Graphic Process Co., 637 F.2d 1211, 1216 (9th
Cir.1980). As the Mirmehdis' woes are not caused
by insufficient allegations of factual content, no potential amendments would change the outcome.
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END OF DOCUMENT
VI
For the forgoing reasons, the decision of the
district court is
AFFIRMED.
SILVERMAN, Circuit Judge, concurring:
Although I concur in the opinion of the court, I
write separately to emphasize that this case does
not present the issue of whether illegal immigrants
could ever bring a Bivens action. In fact, we have
previously allowed an illegal immigrant to bring a
Bivens action. See Papa v. United States, 281 F.3d
1004, 1010–11 (9th Cir.2002) (holding that immigrant could bring Bivens action for alleged due process violations during immigration detention).
However, in this case, I agree with my colleagues that the plaintiffs lack an implied right of
action under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388
(1971). As Judge O'Scannlain aptly points out, the
plaintiffs had available, and indeed availed themselves of, the comprehensive immigration and
habeas remedial mechanisms created by Congress,
a factor that counsels against recognizing a Bivens
action here. See Kotarski v. Cooper, 866 F.2d 311,
312 (9th Cir.1989). And the immigration context in
which this case arose implicates sensitive issues of
“diplomacy, foreign policy, and the security of the
nation,” further counseling against allowing a Bivens action. See Arar v. Ashcroft, 585 F.3d 559,
574 (2d Cir.2009) (en banc). Thus, I agree that Bivens does not provide a cause of action for illegal
immigrants claiming unlawful detention pending
removal proceedings.
C.A.9 (Cal.),2011.
Mirmehdi v. U.S.
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