LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 80

RESPONSE TO OBJECTION to 75 Memorandum and Recommendations by Dean Caputo, Dashanta Faucette, Robert Kendall. (Cutler, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
ICE DEFENDANTS’
Plaintiff,
)
RESPONSE IN OPPOSITION
)
TO PLAINTIFF’S MEMORANDUM
v.
)
AND RECOMMENDATION OF
)
MAGISTRATE JUDGE
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 72
Defendants.
)
Local Rule 72.4
____________________________________)
ICE DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S OBJECTION
TO MEMORANDUM AND RECOMMENDATION OF MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, Federal Rule of Civil Procedure 72, and Local Civil Rule
72.4, Dashanta Faucette, Dean Caputo, and Robert Kendall (collectively the “ICE defendants”)
respectfully submit this response to “Plaintiff‟s Objection to Memorandum and Recommendation
of Magistrate Judge” ( “Pl.‟s Obj.”). D-E 79. In his objection, Plaintiff, Mark Daniel Lyttle,
requests that this Court reject the portion of U.S. Magistrate Judge Webb‟s Memorandum and
Recommendation (“M&R”), D-E 75, addressing the Fifth Amendment due process and equal
protection claims against the ICE defendants (Counts 1-2).1 But as the Magistrate Judge
correctly stated, such implied causes of action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), are not cognizable because of the special
factors presented in this case. In suggesting otherwise, Plaintiff fails to appreciate the particular
1

On December 1, 2011, the ICE defendants and the United States filed consolidated
objections on behalf of all the federal defendants in this case, objecting to those portions of the
M&R that recommend denying their motions to dismiss. D-E 78. For many of the same reasons
discussed below, the ICE defendants specifically contested the Magistrate Judge‟s
recommendation to allow Lyttle‟s Fourth Amendment claim against them (Count 3) to proceed.

context at issue, overlooks the alternative remedial process that was available to him, and
repeatedly addresses the wrong legal questions. In the end, Lyttle unwittingly verifies that his
“due process” claim is nothing more than a duplicative Fourth Amendment claim cloaked in a
Fifth Amendment label, warranting the dismissal of Count 1 for that reason alone.
DISCUSSION
I.

Plaintiff Fails To Appreciate The Legally Relevant Context At Issue In This Case
As the M&R discusses at length, the Supreme Court‟s reluctance to expand Bivens to

new contexts is beyond debate. See M&R at 23-24 (discussing Correctional Servs. Corp. v.
Malesko, 534 U.S. 61 (2001)); see also id. at 19 (collecting cases).2 Plaintiff even concedes this
point, acknowledging that the Supreme Court has cautioned against extending Bivens to any
“„new context or new category of defendants.‟” Pl.‟s Obj. at 5 (quoting Malesko, 534 U.S. at
68). At the heart of Lyttle‟s objection to the M&R, though, is his unfounded belief that the
Magistrate Judge “incorrectly characterized” the constitutional claims in this case “as requiring
an extension of Bivens liability to a new context.” Id. Indeed, Lyttle asserts that his due process
claim does not arise in any new context because such claims are “generally cognizable under
Bivens.” See Pl.‟s Obj. at 6 (citing no authority). But by concentrating on the general
constitutional provision at issue (e.g., the Fifth Amendment‟s due process clause) instead of the
unique factual circumstances underlying that claim, Lyttle ignores the legally relevant context in
this case: his placement in immigration-removal proceedings. See Wilson v. Libby, 498 F. Supp.
2d 74, 86 (D.D.C. 2007), aff’d, 535 F.3d 697 (D.C. Cir. 2008) (dismissing First and Fifth

2

See, e.g., Aschcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (“Because implied causes of
actions are disfavored, the Court has been reluctant to extend Bivens liability to any new context
or new category of defendants.”) (internal quotations omitted); accord Judicial Watch, Inc. v.
Rossotti, 317 F.3d 401, 409 (4th Cir. 2004) (“In the more than thirty years since Bivens, the
Court has been very hesitant to imply other private actions for money damages.”).
-2-

Amendment Bivens claims on special factors grounds, noting that Bivens actions are “contextspecific” and “not recognized Amendment by Amendment in a wholesale fashion”). 3
As the ICE defendants explained in their own objections, see D-E 78 at 19, “deportation
proceedings constitute the relevant „environment of fact and law‟ in which to „decide whether to
recognize a Bivens remedy.‟” Mirmehdi v. United States, – F.3d – , No. 09-55846, 2011 WL
5222884, at *3 (9th Cir. Nov. 3, 2011) (quoting Arar v. Ashcroft, 585 F.3d 559, 572) (2d Cir.
2009), cert. denied, 130 S. Ct. 3409 (2010)). And it is undeniable that a wrongful detention in
the specific “context” of removal proceedings is “unique from other situations where an unlawful
detention may arise.” Id. Because Lyttle‟s constitutional claims arise in the removal context,
this Court should not extend Bivens beyond its limited reach: “With Mirmehdi, wrongful
immigration custody pending removal join[ed] the list of rejected Bivens extensions.”
D’Alessandro v. Chertoff, No. 10-cv-927A, 2011 WL 6148756, at *4-5 (W.D.N.Y. Dec. 12,
2011) (dismissing Fourth, Fifth, and Eighth Amendment Bivens claims challenging nearly
seventeen months of allegedly wrongful detention in removal proceedings).
But Lyttle fails to identify and address this relevant context, instead focusing on the mere
constitutional provision underpinning his claim. The fact that Plaintiff misses the mark is all the
more surprising given his recitation of Supreme Court cases precluding Bivens liability because
of unique factual circumstances. See Pl.‟s Obj. at 5-6. For example, Lyttle underscored the
Court‟s refusal to extend Bivens to two distinct areas – the “federal employment” and “social
welfare” contexts. Pl.‟s Obj. at 6. (citing Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v.
Chilicky, 487 U.S. 412, 425 (1988) (internal quotations omitted)). Indeed, the Supreme Court in
Chilicky expressly rejected the extension of a Bivens remedy via a due process claim because of
3

To be clear, the Supreme Court has stated that “a Bivens action alleging a violation of
the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in
others.” FDIC v. Meyer, 510 U.S. 471, 484 n.9 (1994) (emphasis added).
-3-

the particular circumstances presented in that case. Chilicky, 487 U.S. at 424-29. Although
Lyttle must surely recognize (in light of the case law that he cites) that the special factors
analysis is a context-specific inquiry, his analysis here relies on the unsupported assertion that
due process claims are “generally” permissible under Bivens. Pl.‟s Obj. at 6. Put simply, “it is
not enough for [Lyttle] to point to cases recognizing Bivens actions under the . . . Fifth
Amendment[] generally.” Wilson, 498 F. Supp. 2d at 86. Because Lyttle‟s placement in removal
proceedings underlies all of his constitutional claims (Counts 1-3), the Court should not extend
Bivens liability into this new context.
II.

Plaintiff Overlooks The Alternative Remedial
Process Available To Remedy Wrongful Detention In Removal Proceedings
Apart from overlooking the legally relevant context at issue, Plaintiff erroneously

concludes that the “lack of an alternative remedy” is an additional “justification for allowing
Bivens liability in this case.” Pl.‟s Obj. at 6. This is wrong as a matter of both law and fact.
Under the Supreme Court‟s most recent formulation of the special factors doctrine, the inquiry is
not whether there exists a specific, “alternative remedy,” id., but whether there is an “alternative,
existing process” for vindicating the constitutional interests at stake, Wilkie v. Robbins, 551 U.S.
537, 550 (2007) (emphasis added); see also Bush, 462 U.S. at 388 (“The question is not what
remedy the court should provide for a wrong that would otherwise go unredressed.”) (emphasis
added); Holly v. Scott, 434 F.3d 287, 290 (4th Cir. 2006) (“[N]either the absence nor the
incompleteness of such a [comprehensive] scheme represents an invitation for a court to step in
to correct what it may perceive as an injustice toward an individual litigant.”); D-E 52 at 6-7.4
By focusing on specific remedies, Lyttle addresses the wrong question.

4

See also Libby, 535 F.3d at 709 (explaining that it is a “significant flaw” when
determining whether to create a Bivens remedy to “focus on the necessity of a remedy at all”)
-4-

As we emphasized in previous briefing, D-E 52 at § I.A; D-E 78 at 20, the
comprehensive and exclusive remedial scheme applicable here is the Immigration and
Nationality Act (the “INA”). See 8 U.S.C. §§ 1252 (a)(2)(D), 1252(b)(9), 1252(g) (establishing
appellate review of claims arising from removal proceedings). The Ninth Circuit recently
confirmed that the INA includes such procedures, expressly adopting the Second Circuit‟s view
that “„Congress has established a substantial, comprehensive, and intricate remedial scheme in
the context of immigration.‟” Mirmehdi, 2011 WL 5222884, at *4 (quoting Arar, 585 F.3d at
572). In fact, the plaintiffs in Mirmehdi brought claims challenging their placement in removal
proceedings based on falsified evidence (not unlike Lyttle claims here), but the Ninth Circuit
“decline[d] to extend Bivens to allow the [plaintiffs] to sue federal agents for wrongful detention
pending deportation given the extensive remedial procedures available.” Id. at *4; see also
D’Alessandro, 2011 WL 6148756, at *4. That same remedial process was available to Lyttle.
Even if we ignore the Supreme Court‟s instructions and focus on the existence of specific
remedies (as Plaintiff prefers), Lyttle‟s assertion that “[t]he INA provides no remedy for
individuals found to have been unlawfully deported” is nevertheless misleading. Pl.‟s Obj. at 6.
Had Lyttle actually invoked the administrative procedures available under the INA, and
presented his constitutional challenges concerning his placement in removal proceedings to the
immigration judge, the Board of Immigration Appeals, and the court of appeals, he could have
received a remedy far more significant than the one he claims is now unavailable: his release
from custody before being deported to Mexico.5 D-E 63 at 3. As the Supreme Court has
(emphasis added); W. Radio Servs. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009),
cert. denied., 130 S. Ct. 2402 (2010).
5

Plaintiff again addresses the wrong question when asserting that the potential remedies,
if any, under the Fourth Amendment and the Federal Tort Claims Act would be inadequate to
compensate him for due process violations. See Pl.‟s Obj. at 6-7.
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recognized, an equitable remedy that brings about the cessation of an ongoing infringement is
generally considered more weighty and important than one providing a backward-looking award
of civil damages. See United States v. Stanley, 483 U.S. 669, 683 (1987); Nixon v. Fitzgerald,
457 U.S. 731, 754 n.37 (1982) (observing “there is a lesser public interest in actions for civil
damages than . . . in criminal prosecutions,” and stating “it is not true that our jurisprudence
ordinarily supplies a remedy in civil damages for every legal wrong”). Although it did not create
a supplemental damages remedy, “Congress‟s failure to include monetary relief [in the INA] can
hardly be said to be inadvertent.” Mirmehdi, 2011 WL 5222884, at *4; D-E 63 at 3 n.4; see also
D’Alessandro, 2011 WL 6148756, at *4 (“[T]his Court will not craft an additional remedy of
money damages that is contemplated nowhere in the immigration statutes and regulations.”).6
III.

Plaintiff’s Claims Undercut Congress’s Plenary Power To Regulate Immigration
Plaintiff appreciates neither the particular context at issue nor the remedial process

established by Congress. And he fails to cite any Supreme Court or Fourth Circuit cases
extending Bivens liability to claims that challenge the decision to commence removal
proceedings. On the contrary, the Supreme Court has repeatedly recognized that the political
branches have plenary power over immigration, and courts generally afford substantial deference
to Congress and the Executive Branch in this field. D-E 78 at 20 (citing D-E 52 at 10-11
(collecting cases)). For that reason, the Magistrate Judge correctly acknowledged that certain
constitutional constraints, including due process and equal protection standards, “„do not limit
the federal government‟s power to regulate either immigration or naturalization.‟” M&R at 25-26
6

Even though the plaintiff in D’Alessandro successfully invoked habeas and was not
deported, that distinction is inconsequential because the same remedial procedures were
available to Lyttle at the time he was detained. See 8 U.S.C. § 1252; see also Hernandez v.
Gonzalez, 424 F.3d 42, 42-43 (1st Cir. 2005) (explaining that individuals may challenge the fact
of their detention in removal proceedings via habeas). That Lyttle neither sought habeas relief
nor appealed the order of removal does not entitle him to a backwards-looking damages remedy.
-6-

(quoting Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2010)). In short, the Fourth Circuit has
recognized that “„the power to expel or exclude aliens [i]s a fundamental sovereign attribute
exercised by the Government‟s political departments largely immune from judicial control.‟”
Appiah, 202 F.3d at 710 (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).
Although conceding that Congress‟s power in the field is plenary, Lyttle objects that as a
“U.S. citizen who asserts Bivens claims against federal agents who [deliberately] violated his
constitutional rights,” his constitutional claims “in no way implicate[] Congress‟[s] plenary
power to make laws regulating immigration.” Pl.‟s Obj. at 9-10. But for the reasons explained
above, his Bivens claims do exactly that – i.e., they circumvent federal law aimed to streamline
claims arising from removal proceedings into a single petition for review. See Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 486 (1999) (“AADC”) (describing
amendments to the INA “protecting the Executive‟s discretion from the courts” to be “the theme
of the legislation”). Indeed, Lyttle‟s due process and equal protection claims, which challenge
the decision to commence removal proceedings on the basis of allegedly coerced statements and
his perceived race/ethnicity, are precisely the types of claims that Congress excluded from
district court review.7 See 8 U.S.C. § 1252(g) (except as otherwise provided by the INA, “no
court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence [removal] proceedings….”)
(emphasis added); see also AADC, 525 U.S. at 487 (vacating lower court decision because court
lacked jurisdiction under § 1252(g) to consider constitutional claim that the government
selectively targeted the plaintiffs for deportation because of their political affiliation). Even the
7

As the Magistrate Judge correctly recognized, Plaintiff‟s due process claim is actually a
duplication of his Fourth Amendment claim that he was detained without probable cause. We
discuss that issue separately below. See infra § IV.
-7-

Supreme Court has recognized that the traditional concerns associated with prosecutorial
discretion are “greatly magnified in the deportation context.” AADC, 525 U.S. at 490; accord
Mirmehdi, 2011 WL 5222884, at *4; D-E 78 at 22. In light of the INA, “Congress could hardly
have been more clear and unequivocal” that district courts may not review claims arising from
the decision to commence removal proceedings. Mapoy v. Carroll, 185 F.3d 224, 230 (4th Cir.
1999); accord Malik v. Gonzalez, 213 F. App‟x 173, 174-75 (4th Cir. 2007).8
As we also discussed in the Federal Defendants‟ objections, see D-E 78 at 22-23, courts
have declined to review Bivens claims in cases virtually identical to Lyttle‟s. See D-E 63 at 2-3.
The Fifth Circuit, for example, held that it could not review plaintiff‟s Fifth Amendment due
process and equal protection claims brought under Bivens because the alleged conspiracy to
deport the plaintiff arose from the discretionary actions described in § 1252(g). Foster v.
Townsley, 243 F.3d 210, 214-15 (2001). Likewise, the Ninth Circuit held that § 1252(g) barred a
false arrest Bivens claim because the detention arose from the “decision to commence expedited
removal proceedings.” Sissoko v. Rocha, 509 F.3d 947, 950 (9th Cir. 2007). And in Khorrami v.
Rolince, 493 F. Supp. 2d 1061 (N.D. Ill. 2007), the court dismissed a Bivens claim because the
plaintiff‟s detention was “a direct outgrowth of the decision to commence proceedings.” Id. at
1068; see also Guardado v. United States, 744 F. Supp. 2d. 482, 488-89 (E.D. Va. 2010) (finding
that claims arising from commencing removal proceedings are precluded by 1252(g)).
8

In addition, the special factors inquiry does not turn on whether immigration officials
would “have de facto absolute immunity to violate the Fifth Amendment” in the absence of a
Bivens remedy, as Lyttle erroneously suggests. D-E 79 at 7; see also id. at 10 (predicting that
ICE would discriminate “with impunity” absent a damages remedy). The Supreme Court has
rejected Lyttle‟s argument in no uncertain terms: “the availability of a damages action under the
Constitution for particular injuries . . . is a question logically distinct from immunity to such an
action on the part of particular defendants.” Stanley, 483 U.S. at 684. To be sure, “Bivens itself
explicitly distinguished the question of immunity from the question whether the Constitution
directly provides the basis for a damages action against individual officers.” Id. (citing Bivens,
403 U.S. at 397).
-8-

In this case, Lyttle‟s Fifth Amendment claims – alleging that he was unconstitutionally
charged on the basis of coerced admissions and his perceived race/ethnicity – “bear[] more than
a cursory relationship to the decision to commence proceedings. Khorammi, 493 F. Supp. 2d at
1068. Such allegations are “connected directly and immediately” to the decision to charge
Lyttle. Humphries v. Various Federal USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999)
(dismissing First Amendment Bivens claim pursuant to § 1252(g)). In short, placing him in
removal proceedings “provide[s] the most direct, immediate, and recognizable cause of
[Plaintiff‟s] injury.” Id. at 945. This Court should dismiss Lyttle‟s Bivens claims, putting an end
to his “thinly veiled attempt to evade the dictates of § 1252.”9 Mapoy, 185 F.3d at 230.
IV.

Plaintiff Inadvertently Demonstrates
That His Due Process Claim Duplicates His Fourth Amendment Claim
As a final matter, the Magistrate Judge did not err in finding that Lyttle‟s due process

claim is just a carbon copy of his Fourth Amendment claim. See M&R at 25. Ironically, Lyttle‟s
own words provide the clearest support for this view:
“The crux of Plaintiff‟s claim is that, by deliberately ignoring the overwhelming
evidence of his U.S. citizenship and nonetheless commencing and prosecuting
removal proceedings against him, the ICE Defendants „deported or caused Mr.
Lyttle to be deported without reasonable basis or lawful authority.‟”
9

To the extent Plaintiff contends that the INA is inapplicable to U.S. citizens, see, e.g.,
Pl.‟s Obj. at 9 (noting that Lyttle is an “American-born U.S. citizen”), we have explained in our
own objections why that distinction is meaningless. D-E 78 at 23-24. To recap, the INA was
enacted in part pursuant to Congress‟s authority to establish rules with respect to alienage, see
Mirmehdi, 2011 WL 5222884, at *3, but the procedures at issue are without question available to
anyone subject to removal proceedings, regardless of their citizenship, see, e.g., 8 U.S.C. §
1252(b)(5); 8 U.S.C. § 1503; see also Villalba v. U.S. Attorney General, 301 F. App‟x 905, 907
(11th Cir. 2008); Demore v. Kim, 538 U.S. 510, 523 (2003) (“[D]eportation proceedings would
be vain if those accused could not be held in custody pending the inquiry into their true
character.”) (internal quotations and citations omitted). Because aliens and citizens alike may
invoke the INA‟s remedial procedures, the fact that Lyttle was classified as a suspected alien
does not alter the special factors analysis.

-9-

Pl.‟s Obj. at 7-8 (quoting FAC ¶ 129) (emphasis in original). In a nutshell, Lyttle is claiming
here that the ICE defendants violated his “due process” rights by charging and placing him in
removal proceedings without probable cause. But that is the same as his Fourth Amendment
claim. See FAC ¶¶ 141-42 (alleging that the ICE defendants violated his “constitutional right to
be free from unreasonable seizures” by unlawfully detaining him in removal proceedings absent
probable cause); see also D-E 52 at 29-30. And as the ICE defendants emphasized in their
motion to dismiss, D-E 52 at 14-15, the claim that Plaintiff was prosecuted without a “reasonable
basis” (i.e., probable cause) is not cognizable under the Fifth Amendment. See Albright v.
Oliver, 510 U.S. 266, 271-75 (1994) (rejecting due process claim alleging malicious prosecution
because such a claim is cognizable, if it all, only under the Fourth Amendment); accord Lambert
v. Williams, 223 F.3d 257, 261 (4th Cir. 2000) (explaining that a “malicious prosecution claim . .
. is properly understood as a Fourth Amendment claim for unreasonable seizure which
incorporates certain elements of the common law tort”); see also Wallace v. Kato, 549 U.S. 384,
390 (2007) (explaining that a constitutional malicious prosecution claim under the Fourth
Amendment seeks to remedy the “wrongful institution of legal process”).
Lyttle also asserts that the “the separate act of deportation violated his constitutional right
to liberty without due process.” Pl.‟s Obj. at 9. But as we explained in prior briefing, the ICE
defendants in this case did not deport Lyttle or make the decision to deport him. D-E 52 at 27.
Again, Lyttle concedes elsewhere in his objection that the “crux” of his due process claim is that
the ICE defendants “commenc[ed]” removal proceedings absent probable cause. Pl.‟s Obj. at 7.
The direct result of charging Lyttle was his mandatory detention in removal proceedings, subject
to the eventual decision of removability by a trier-of-fact (in this case, an immigration judge in

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Atlanta). As the M&R aptly summarized, “the ICE defendants did not make the determination
that Plaintiff now asserts was not guarded by due process.”10 M&R at 25.
CONCLUSION
For the foregoing reasons, the ICE defendants respectfully request that the Court accept
the portion of the M&R addressing the Fifth Amendment Bivens claims and dismiss Counts 1-2.

Respectfully submitted this 19th day of December 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D‟ALESSIO, JR.
Acting Director, Torts Branch
JAMES R. WHITMAN
Trial Attorney, Torts Branch
/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]

THOMAS G. WALKER
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
10

Because the ICE defendants did not make the decision to deport Lyttle, his assertion
that a due process claim in this case would provide an important “deterrent effect” is likewise
baseless. Pl.‟s Obj. at 8.
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310 New Bern Avenue
Suite 800 Federal Building
Raleigh, N.C. 27601-1461
Tel: (9l9) 856-4530
Fax: [phone]
E-mail: [e-mail]
N.C. Bar No. 33826
Attorneys for Dashanta Faucette,
Dean Caputo, and Robert Kendall

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that on December 19, 2011, I electronically filed the
foregoing using the Court‟s CM/ECF system, which will send notification of such filing to the
following counsel of record:
COUNSEL FOR PLAINTIFF:
Jeremy L. McKinney
[e-mail]

Ann Marie Dooley
[e-mail]

Michael E. Johnson
[e-mail]

Brian P. Watt
[e-mail]

Alexandria J. Reyes
[e-mail]

Katherine L. Parker
[e-mail]

Judy Rabinovitz
[e-mail]
COUNSEL FOR DEFENDANT NORTH CAROLINA DEPARTMENT OF CORRECTION:
Joseph Finarelli
[e-mail]

/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]