Branch v. Tunnell

• Citation: 937 F.2d 1382
• Decision Date: 27 June 1991
• Docket Number: No. 89-35383,89-35383
• Parties: Jerry L. BRANCH, Sylvia Branch, Colby Branch, Plaintiffs-Appellees, v. Dale L. TUNNELL, Individually and as Special Agent of Bureau of Land Management, State of Montana, John D. LaFaver, Individually and as Director of Revenue, Peter Donnelly, Individually and as Revenue Agent for Montana Department of Revenue, Joe Doe I, Individually and as employee of Montana Department of Revenue, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1382

937 F.2d 1382

60 USLW 2036

Jerry L. BRANCH, Sylvia Branch, Colby Branch, Plaintiffs-Appellees, v. Dale L. TUNNELL, Individually and as Special Agent of Bureau

of Land Management, State of Montana, John D. LaFaver,

Individually and as Director of Revenue, Peter Donnelly,

Individually and as Revenue Agent for Montana Department of

Revenue, Joe Doe I, Individually and as employee of Montana

Department of Revenue, Defendants-Appellants.

No. 89-35383.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1990.

Decided June 27, 1991.

Ann Southworth, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Robert J. Waller, Veeder & Broeder, Billings, Mont., for plaintiffs-appellees.

Before HALL, THOMPSON and LEAVY, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Dale L. Tunnell, a Special Agent of the Bureau of Land Management ("BLM"), appeals the denial of his motion to dismiss a Bivens action on grounds of qualified immunity. The district court had jurisdiction under 28 U.S.C. Sec. 1343. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. Sec. 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We reverse.

I

In early 1987, Special Agent Tunnell began investigating whether Jerry L. Branch, a Shelby, Montana businessman, was avoiding royalty payments on federal natural gas leases. ¹ Branch was the president and controlling interest owner of Branch Oil and Gas Company ("Branch Oil"). At the time, Branch Oil sold the gas produced from its federal leases to Aloe Ventures Gathering System ("Aloe Ventures"), a joint venture in which Branch Oil owned a 42.95% interest. During the course of his investigation, Tunnell came to suspect that this was not an arm's length relationship and that the price at which Branch Oil sold its gas to Aloe Ventures (and from which its federal royalty payment was based) was below-market. He believed that Aloe Ventures, which he suspected was effectively controlled by Branch, was in turn selling the gas to the Montana Power Company at a higher price.

Tunnell then sought and obtained warrants from a United States magistrate to search Branch's home and office. He submitted a four-page, single-spaced affidavit in support of his warrant application, setting out in some detail the evidence he had obtained about the alleged royalty evasion scheme. The affidavit attributed a good portion of this information to Peter Donnelly, a revenue agent employed by the Montana Department of Revenue. The warrants were executed on July 16, 1987. No criminal charges were filed against Branch after his home and office were searched.

On June 22, 1988, Branch and members of his family brought a Bivens ² action against Tunnell, Donnelly, and John LaFaver, Director of the Montana Department of Revenue. ³ The complaint alleges a violation of "[t]he right of Plaintiffs to be secure in their persons and effects against unreasonable search and seizure under the Fourth and Fourteenth Amendments to the Constitution of the United States." It asserts that Branch was the victim of a conspiracy by the Montana Department of Revenue to obtain confidential corporate documents from Aloe Ventures. Branch claims that the search warrant was a pretext to secure those documents. ⁴ Tunnell's part in this conspiracy is described in two short paragraphs:

19. On or about July 15, 1987, Defendant Dale L. Tunnell submitted an Affidavit and Application for Search Warrant to a U.S. Magistrate, Dirk Larsen. In said Affidavit, Tunnell set forth the inaccurate information provided by Donnelly in an effort to establish probable cause for the issuance of a search warrant. In addition to the information provided by Defendant Donnelly, Defendant Tunnell included other information in his Affidavit which he knew or should have known was false.

....

24. The Search Warrant issued by the U.S. Magistrate Dirk Larsen was void because much of the information set forth in the Application and Affidavit in Support of Search Warrant filed by Defendant Dale L. Tunnell is false and unsubstantiated.

On October 3, 1988, Tunnell moved to dismiss Branch's suit on grounds of qualified immunity, arguing that under the objective qualified immunity standard established by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), Branch had failed to allege sufficient facts to establish a violation of a statutory or constitutional right. The district court, which had allowed Branch to depose Donnelly and LaFaver over Tunnell's objections, stayed further discovery while the motion to dismiss was under consideration. On December 2, 1988, the court denied Tunnell's motion. Relying on Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the court concluded that "[t]he defense of qualified immunity usually turns on the circumstances and motivations of the defendant and, therefore, ordinarily cannot support the grant of a Fed.R.Civ.P. 12(b)(6) motion for failure to state a claim upon which relief can be granted.... Because there exist genuine issues of material fact regarding Tunnel's [sic] claim of qualified immunity, the court is constrained to deny the motion to dismiss."

On December 9, 1988, Tunnell moved for reconsideration and a continued stay of discovery pending a ruling on that motion. The court granted the stay on December 12. On January 17, 1989, before the court ruled on his motion for reconsideration, Tunnell filed a motion for summary judgment, again arguing that Branch had failed to allege sufficient facts to defeat his qualified immunity defense.

On April 11, 1989, the district court denied Tunnell's motion for reconsideration, but took his motion for summary judgment under advisement, announcing its intention to allow discovery to proceed before issuing a ruling. ⁵ The court did not narrow or otherwise restrict the scope of discovery. Tunnell timely appealed from the denial of his motion for reconsideration, and the district court stayed all proceedings pending the outcome of this appeal.

II

We review de novo the denial of a qualified immunity defense. Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989); Tribble v. Gardner, 860 F.2d 321, 323 (9th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989).

III

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions ... 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." Under this standard, the focus of the inquiry generally is on the "objective reasonableness" of the official's conduct as measured by reference to "clearly established law." See, e.g., id; Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Mills v. Graves, 930 F.2d 729, 731 (9th Cir.1991); Floyd v. Laws, 929 F.2d 1390, 1393 (9th Cir.1991); Ortiz v. Van Auken, 887 F.2d 1366, 1368 (9th Cir.1989).

By shifting the focus of the qualified immunity inquiry to an objective standard, ⁶ the Harlow Court sought to shield government officials from the substantial costs that attend "[j]udicial inquiry into subjective motivation," particularly "broad-ranging discovery and the deposing of numerous persons." 457 U.S. at 817, 102 S.Ct. at 2737. After Harlow, "bare allegations of malice" are insufficient to subject government officials either to the costs of trial or the burdens of discovery. Id. at 817-18, 102 S.Ct. at 2738. Harlow requires district courts to dismiss such "insubstantial" lawsuits at the earliest possible stage of a lawsuit.

A

There is a tension, however, between Harlow 's emphasis on "objective reasonableness" and cases in which the "clearly established law" at issue contains a subjective element, such as motive or intent. While the Supreme Court has yet to rule on how Harlow should be applied in those cases, ⁷ a number of circuits have held that Harlow does not preclude consideration of subjective factors (unrelated to knowledge of the law) in assessing a defendant's entitlement to qualified immunity. Siegert v. Gilley, 895 F.2d 797, 801 (D.C.Cir.1990) aff'd on other grounds, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 648 (10th Cir.1988); Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir.1988); Kenyatta v. Moore, 744 F.2d 1179, 1185 (5th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2141, 85 L.Ed.2d 498 (1985); Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984).

The District of Columbia Circuit, mindful of Harlow 's concerns about the costs of judicial inquiry into subjective motivation, has adopted a heightened pleading standard in cases in which subjective intent is an element of the alleged constitutional tort. Siegert, 895 F.2d at 801-02; Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Martin v. D.C. Metro. Police Dep't, 812 F.2d 1425, 1435 (D.C.Cir.1987); Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir.1986); Hobson v. Wilson, 737 F.2d 1, 29 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). This heightened pleading standard assures that "[b]are allegations of improper purpose, like the bare allegations of malice rejected in Harlow, do not suffice to drag officials into the mire of discovery." Smith, 807 F.2d at 200 (citations omitted). ⁸ Under that standard, plaintiffs must include in their complaint nonconclusory allegations containing evidence of unlawful intent or face dismissal prior to the taking of any discovery. Whitacre, 890 F.2d at 1171; Hobson, 737 F.2d at 29. Those allegations must "constitute direct as opposed to merely circumstantial evidence of the intent."...