Williams v. Keller et al
MEMORANDUM DECISION AND ORDER GRANTING 50 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ted Stewart on 2/17/2021. (reb)
Case 1:19-cv-00079-TS Document 57 Filed 02/17/21 PageID.239 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT A. WILLIAMS,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
CHALON KELLER, HEIDI GIBSON,
NED KING, RANDY TITUS, DAVID
BOLTON, UNITED STATES OF
AMERICA, and JOHN and JANE DOES IXX,
Case No. 1:19-CV-79 TS
District Judge Ted Stewart
This matter is before the Court on Defendants’ Motion to Dismiss. For the reasons
discussed below, the Motion will be granted.
Plaintiff Scott A. Williams was employed by Northrop Grumman as a Technical Lead
and Logistics Advisor in the Hill Air Force Base Foreign Military Sales F-16 International
Branch. In February 2016, Plaintiff was indicted in this Court on two counts of unlawful
exportation of goods from the United States; false statement in a document; and conversion of
property of the United States. The charges stemmed from actions allegedly taken by Mr.
Williams during his employment. The charges were eventually dismissed on a motion by the
United States. Plaintiff now brings this action against the United States and those individuals—
civilian Air Force employees—allegedly involved in providing the evidence that led to the now-
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dismissed federal charges. Plaintiff asserts a claim for malicious prosecution alleging that
Defendants knowingly and recklessly supplied false and misleading information and/or omitted
material facts. Defendants seek dismissal.
II. MOTION TO DISMISS STANDARD
When considering whether to dismiss a Bivens claim, courts apply the standard for a
failure to state a claim upon which relief may be granted. 1 Under this standard, all well-pleaded
factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed
in the light most favorable to Plaintiff as the nonmoving party. 2 Plaintiff must provide “enough
facts to state a claim to relief that is plausible on its face,” 3 which requires “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” 4 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” 6 As the Court in Iqbal stated,
only a complaint that states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief will . . . be a
Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir. 2005).
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Case 1:19-cv-00079-TS Document 57 Filed 02/17/21 PageID.241 Page 3 of 8
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to relief. 7
THE UNITED STATES
The United States argues, 8 and Plaintiff agrees, 9 that a Bivens action cannot be
maintained against the United States. 10 Therefore, the United States will be dismissed as a
Plaintiff also asserts a Bivens claim against the individual Defendants. Defendants argue
that Plaintiff has failed to state claim for relief under Bivens. The parties do not distinguish the
alleged actions of the individual Defendants but instead address them collectively as a whole.
The Court will do the same.
In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 11 the
Supreme Court held that an individual may recover damages against federal officials for
violating Fourth Amendment rights. 12 In that case, the plaintiff alleged that federal agents had
unlawfully entered and searched his apartment; arrested him for narcotics violations; handcuffed
Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted).
Docket No. 50, at 16.
Docket No. 53, at 9.
FDIC v. Meyer, 510 U.S. 471, 485–86 (1994); Farmer v. Perrill, 275 F.3d 958, 963
(10th Cir. 2001).
403 U.S. 388 (1971).
Id. at 397.
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him in front of his family; threatened to arrest his family; then took him to jail where he was
interrogated, booked, and strip-searched. 13 The Court noted that “the Fourth Amendment does
not in so many words provide for its enforcement by an award of money damages for the
consequences of its violation.” 14 However, where the “case involve[d] no special factors
counseling hesitation in the absence of affirmative action by Congress,” monetary damages
could be an available remedy. 15
Since Bivens was issued, the Supreme Court has extended it on just two other
occasions. 16 Together, “[t]hese three cases . . . represent the only instances in which the Court
has approved of an implied damages remedy under the Constitution itself.” 17 The Supreme
Court has recently “made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.” 18 The Court’s hesitancy to expand Bivens is based on “separation-of-powers
principles” regarding whether the courts or Congress should decide whether to recognize a new
damages remedy. 19 “The answer most often will be Congress.” 20
Id. at 389.
Id. at 396.
Davis v. Passman, 442 U.S. 228, 245–48 (1979) (allowing damages for gender
discrimination in violation of the Due Process Clause of the Fifth Amendment); Carlson v.
Green, 446 U.S. 14, 18–23 (1980) (allowing damages for failure to provide adequate medical
care in violation of the Eighth Amendment).
Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).
Id. at 1857 (quoting Iqbal, 556 U.S. at 675).
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The Supreme Court has adopted a two-part framework for evaluating potential Bivens
claims. The first question is “whether a case presents a new Bivens context.” 21 “If the case is
different in a meaningful way from previous Bivens cases decided by this Court, then the context
is new.” 22 Defendants argue, 23 and Plaintiff concedes, 24 that his claim presents a new Bivens
context. Thus, the Court moves to the next step.
Second, the Court considers whether special factors counsel against expanding Bivens
into a new context. 25 The Supreme Court has not defined with certainty what constitutes a
special factor. 26 However, “the inquiry must concentrate 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. Thus, to be a ‘special factor counselling hesitation,’ a
factor must cause a court to hesitate before answering that question in the affirmative.” 27
Defendants identify two special factors: the presence of alternative remedial processes
and intrusion into executive branch functions. The Supreme Court has noted that “when
alternative methods of relief are available, a Bivens remedy usually is not.” 28 Defendants point
to the existence of extensive procedural rights articulated in rules and statutes that protect an
accused person. Defendants also reference the Hyde Amendment and the Unjust Conviction and
Id. at 1859.
Docket No. 50, at 10–12.
Docket No. 53, at 12–13.
Ziglar, 137 S. Ct. at 1857.
Id. at 1857–58.
Id. at 1863.
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Imprisonment Statute, which provide money damages to individuals subject to federal criminal
prosecution in certain circumstances. Defendant argues that these provisions reflect
Congressional decision as to whom should be compensated in cases involving wrongful
Plaintiff counters that he is unable to receive relief under these provisions because the
government voluntarily dismissed its case against him. But his “ineligibility for these remedies
actually cuts against recognizing a new cause of action.” 29 “The fact that Congress has expressly
provided a damages remedy for some victims of this particular type of injury, but not for others,
suggests that it considered the issue and made a deliberate choice.” 30 The Supreme Court has
stated that “legislative action suggesting that Congress does not want a damages remedy is itself
a factor counseling hesitation” 31 and “the silence of Congress is relevant.” 32
Next, Defendants argue that extending Bivens here “will require extensive investigation
and discovery that impairs the agency’s function.” 33 One of the factors that caused the Court to
hesitate to extend Bivens in Ziglar was that doing so “would require courts to interfere in an
intrusive way with sensitive functions of the Executive Branch.” 34 The same concern is present
here. In order for Plaintiff to prevail, he “would need to show that [Defendants’] allegedly false
Farah v. Weyker, 926 F.3d 492, 501–02 (8th Cir. 2019).
Id. at 502.
Ziglar, 137 S. Ct. at 1865.
Id. at 1862.
Docket No. 50, at 14.
Ziglar, 137 S. Ct. at 1861.
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information was what established probable cause for [his] arrest and detention” 35 “This type of
showing would invite a wide-ranging inquiry into the evidence available to investigators,
prosecutors, and the grand jury.” 36 Relatedly, the “secrecy of grand jury proceedings” counsels
against extending Bivens. 37
A related concern is the potential effect on the willingness of government employees to
participate in internal investigations should those employees be exposed to potential monetary
damages. The Supreme Court has stated that “if there are sound reasons to think Congress might
doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law
and correcting a wrong, the courts must refrain from creating the remedy in order to respect the
role of Congress in determining the nature and extent of federal-court jurisdiction under Article
III.” 38 Here, “[i]t is sufficient for the Court to recognize that ‘Congress might doubt the efficacy
or necessity of a damages remedy’ because there is a risk that it would interfere with
prosecutorial discretion, disincentivize law enforcement from sharing information with
prosecutors, and disincentivize private citizens from sharing information with law
Plaintiff correctly argues that this case does not involve other special factors identified by
the Supreme Court, such as national security or foreign policy concerns. However, the various
Farah, 926 F.3d at 500.
Karkalas v. Marks, No. 19-948, 2019 WL 3492232, at *12 (E.D. Pa. July 31, 2019).
Ziglar, 137 S. Ct. at 1858.
Boudette v. Sanders, No. 18-cv-02420-CMA-MEH, 2019 WL 3935168, at *7 (D. Colo.
Aug. 19, 2019) (quoting Ziglar, 137 S. Ct. at 1865).
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factors identified by the Supreme Court are not exhaustive. Plaintiff similarly argues that the
factors identified by Defendants do not counsel hesitation. Yet this case presents some of the
same concerns found in Ziglar. In the end, it is better for Congress to determine whether
monetary damages are an appropriate remedy for the harm alleged by Plaintiff. Therefore, the
Court declines to extend Bivens here.
It is therefore
ORDERED that Defendants’ Motion to Dismiss (Docket No. 50) is GRANTED.
DATED this 17th day of February, 2021.
BY THE COURT:
United States District Judge
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