Brunoehler v. Tarwater
| Decision Date | 19 July 2018 |
| Docket Number | No. 16-56634,16-56634 |
| Parties | DWIGHT C. BRUNOEHLER, Plaintiff-Appellant, v. JEREMY R. TARWATER; et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*Appeal from the United States District Court for the Central District of California
Argued and Submitted April 10, 2018 Pasadena, California
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.
Dwight Brunoehler appeals the district court's dismissal of his claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Wiretap Act, 18 U.S.C. § 2520 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
Dismissal for failure to state a claim is reviewed de novo. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). A party's standing to bring a claim is reviewed de novo. Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016), cert. denied, 137 S. Ct. 1377 (2017). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Brunoehler seeks Bivens relief for claims that FBI Special Agents Jeremy Tarwater and Charles Koepke (the Agents) intercepted his telephone conversations, obtained search warrants, and arrested him without probable cause,in violation of the Fourth Amendment.1 The district court dismissed Brunoehler's Bivens claims for failure to state a claim, concluding that alternative processes could remedy his alleged harms.
"Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18 (1980). However, the Supreme Court has since "adopted a far more cautious course before finding implied causes of action." Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). Thus, the "first question" we must consider is whether this "case is different in a meaningful way from previous Bivens cases decided by" the Supreme Court. Id. at 1864 (internal quotation marks omitted). If a case is "meaningfully different" from Bivens or its progeny, we then consider "whether there were alternative remedies available or other sound reasons to think Congress mightdoubt the efficacy or necessity of a damages remedy in a suit like this one." Id. at 1865 (internal quotation marks omitted).
Brunoehler contends that the district court erred when it dismissed his claim for unlawful wiretapping. Ziglar provides that a meaningful difference from Bivens may be the application of another "legal mandate" to the allegedly unconstitutional conduct. Id. at 1860. Here, the Wiretap Act was another "legal mandate under which the [Agents were] operating." Id. Given the Supreme Court's observation that "even a modest extension is still an extension" of Bivens, we conclude that the application of an extensive statutory scheme like the Wiretap Act constitutes a meaningful difference from Bivens, which concerned only the Fourth Amendment. Id. at 1864.
Further, under Ziglar, an extension of Bivens is not available here. "[I]f there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action." Id. at 1858. "Alternative remedial structures" may take many forms, including statutory remedies. Id. Because the Wiretap Act provides for damages when agents improperly obtain wiretaps, Brunoehler had an adequate alternative remedy for his alleged harm. That Brunoehler's claims under the Wiretap Act ultimately failed for lack of standing does not mean he did not have access to alternative remedies, butrather that he lacked standing to challenge the wiretaps at issue. Thus, in light of the available alternative remedies, we decline to extend Bivens in this context, and conclude that the district court did not err when it dismissed Brunoehler's claim for unlawful wiretapping.
Brunoehler next contends that the district court erred in dismissing his claims for unlawful search and arrest.
First, Brunoehler sufficiently alleges that the Agents arrested him without probable cause. In Bivens, the Supreme Court held that the complaint, "fairly read," sufficiently alleged "that the arrest was made without probable cause" even though it did "not explicitly state that the agents had no probable cause . . . [rather it alleged] that the arrest was 'done unlawfully, unreasonably and contrary to law.'" 403 U.S. at 389 & n.1. Here, Brunoehler unequivocally alleges that the search and arrest lacked probable cause.2 As the Supreme Court determined in Bivens that there was no failure in sufficiency of allegations despite the absence of the words "probable cause," we also conclude there is no such failure here whereBrunoehler more specifically alleges the lack of probable cause. Contrary to the Dissent's assertion, the Supreme Court's jurisprudence is clear that particularity is not the standard for stating a claim. See Iqbal, 556 U.S. at 678. Further, the Dissent's argument that Brunoehler failed to challenge the basis for the Grand Jury indictment similarly fails. Brunoehler does allege that the Grand Jury lacked probable cause, pointing to the insufficiency and issues in evidence that the Agents produced and relied upon to obtain the indictment against him.3 At the motion to dismiss stage, we find that Brunoehler stated sufficient factual matter, taken as true, that it is plausible the Agents arrested him without probable cause. See Iqbal, 556 U.S. at 678.
Second, Brunoehler's search and arrest claim does not extend Bivens. In Bivens, the plaintiff alleged that federal agents searched his home for narcotics and handcuffed him without probable cause. 403 U.S. at 389. Here, Brunoehler alleges that the Agents obtained search warrants and arrested him in his home without probable cause.4 Instead of drug crimes, Brunoehler was arrested for securitiesviolations. But the difference in the underlying criminal charges is not the kind of "meaningful difference" envisioned in Ziglar; regardless of the crime alleged, the requirement of probable cause is the same under the Fourth Amendment. See 137 S. Ct. at 1859-60.
Moreover, Ziglar does not require that there be perfect factual symmetry between a proffered Bivens claim and Bivens itself. Rather, Ziglar explicitly preserved "the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose." Id. at 1856. We therefore conclude that Brunoehler's unlawful search and arrest claims are not "meaningfully different" from Bivens, which involved the same claims—albeit for different crimes—in virtually the same search-and-seizure context. Thus, Brunoehler's allegation of unlawful search and arrest does not seek an extension of Bivens, and the district court erred when it dismissed those claims.
Brunoehler also asserts claims under the Wiretap Act, namely that the Agents' applications for the initial wiretaps (the Possino Wiretaps) did not meet the "necessity" requirement. He alleges that information obtained from the Possino Wiretaps was used to obtain a later wiretap (the Mazur Wiretap) thatintercepted his communications. The district court concluded that Brunoehler only had standing to challenge the Mazur Wiretap application. Brunoehler argues that he has standing to challenge all of the wiretap applications cited in his second amended complaint, including the Possino Wiretaps.
Standing to challenge a wiretap is limited to those "whose Fourth Amendment rights were violated by the interception." United States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (9th Cir. 2005), amended on denial of reh'g, 437 F.3d 854 (9th Cir. 2006). "The touchstone for Fourth Amendment standing analysis is whether the individual asserting her right to challenge the interception had a reasonable expectation of privacy in the place where the wiretap was used." Id. at 1116; see also United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) ().
As applied here, Brunoehler cannot extend his standing to challenge the Mazur Wiretap application to include the Possino Wiretap applications. Brunoehler does not allege that the Possino Wiretaps targeted him or intercepted any of his calls. He thus fails to allege how he had a reasonable expectation of privacy in the calls captured with the Possino Wiretaps. Gonzalez, Inc., 412 F.3d at 1116. Therefore, even if the Mazur Wiretap application relied on the proceeds of thePossino Wiretaps, those proceeds did not implicate Brunoehler's Fourth Amendment rights, or by extension his standing under the Wiretap Act. Because Brunoehler appears to challenge only wiretap applications he has no standing to challenge, he has failed to state a claim. See Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009). Accordingly, the district court did not err in concluding that Brunoehler lacks standing to challenge the wiretaps at...
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