Chavez v. United States

• Decision Date: 20 June 2012
• Docket Number: No. 10–17659.,10–17659.
• Citation: 2012 Daily Journal D.A.R. 8339,683 F.3d 1102,12 Cal. Daily Op. Serv. 6906
• Parties: Jose CHAVEZ, husband and Maria Elena Chavez, wife, Plaintiffs–Appellees, v. UNITED STATES of America, Defendant, and James W. Ziglar; David Aguilar; Ralph Hunt; Alvaro Obregon; Felix Chavez; Michael Campbell, Border Patrol Agents, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

683 F.3d 1102

12 Cal. Daily Op. Serv. 6906

2012 Daily Journal D.A.R. 8339

Jose CHAVEZ, husband and Maria Elena Chavez, wife, Plaintiffs–Appellees,

v.UNITED STATES of America, Defendant,andJames W. Ziglar; David Aguilar; Ralph Hunt; Alvaro Obregon; Felix Chavez; Michael Campbell, Border Patrol Agents, Defendants–Appellants.

No. 10–17659.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 10, 2012.

Filed June 20, 2012.

Barbara Herwig and Teal Miller (argued), Civil Division, Department of Justice, for the defendants-appellants.

Armand Salese (argued) and Ned Garn, Tucson, AZ, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, Senior District Judge, Presiding. D.C. No. 4:01–cv–00245–FRZ–JJM.

Before: J. CLIFFORD WALLACE and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF, Senior District Judge.^*

Opinion by Judge JED S. RAKOFF; Concurrence by Judge WALLACE.

OPINION

RAKOFF, Senior District Judge:

Between 1995 and 2001, plaintiffs Jose and Maria Elena Chavez operated a shuttle service between Sasabe, Arizona and Tucson, Arizona. Plaintiffs allege that Border Patrol agents stopped their shuttle repeatedly and in violation of their Fourth Amendment rights. Based on these allegations, the plaintiffs bring claims not only against the agents who stopped them, but also against supervisors who they claim reviewed and directed the stops. We hold that plaintiffs' conclusory allegations fail to state a claim against all of the supervisors but one, a direct participant in the stops.

FACTUAL ALLEGATIONS

In December of 2001, Jose and Maria Elena Chavez filed a “ Bivens ” action alleging, among other things, that Border Patrol agents had violated their Fourth Amendment rights. According to the complaint, the plaintiffs operated a shuttle service that, beginning in the Fall of 1995, made two or three round trips each day between Sasabe, Arizona and Tucson, Arizona. The shuttle never crossed the border with Mexico. Both plaintiffs and the majority of their passengers are Hispanic. Plaintiffs have no training in identifying illegal aliens, and the Border Patrol, in response to an inquiry plaintiffs filed with their Congressman, allegedly informed the plaintiffs (through their Congressman) that the plaintiffs had no responsibility for assessing their passengers' immigration status.

Plaintiffs allege that, beginning in 1995, roving Border Patrol agents stopped their shuttle on “almost a daily basis.” They allege that, because they traveled at speeds of up to sixty-five miles per hour, Border Patrol agents could not possibly have discerned “particular features of individual vehicles or their occupants reasonably probative of drug trafficking, alien smuggling or related wrongdoing, except, perhaps, in a small percentage of exceptional cases,” and so the agents had no basis for making the stops. Instead, plaintiffs allege, the stops were based principally on “the Latin, Hispanic or Mexican appearance of drivers and/or other occupants of vehicles.” Plaintiffs allege that agents occasionally referred to passengers as “wetbacks” and used profanity. An agent also allegedly told plaintiffs that plaintiffs should be able to identify illegal aliens by their uncleanliness and offensive odor. The average stop, according to the complaint, lasted five to thirty minutes.

Plaintiffs also allege that the agents have threatened plaintiffs, demanded that plaintiffs refund their passengers' fares, required plaintiffs to reverse course, confiscated plaintiffs' van, and removed personal property from it. According to plaintiffs, agents became angry if they did not find illegal aliens aboard the shuttle. Agents allegedly did not ask for consent before searching the shuttle, and plaintiffs never gave such consent.

In addition to suing various border patrol agents, the plaintiffs also bring claims against supervisors within the Border Patrol, specifically, James Ziglar, the “Acting Commissioner” of the Immigration and Naturalization Service (“INS”), David Aguilar, the Chief Border Patrol Agent for the Tucson sector, and Ralph Hunt, Alvaro Obregon, Felix Chavez, and Michael Campbell, who all hold supervisory positions in the Border Patrol (collectively, the “supervisory defendants”). Plaintiffs allege that Ziglar, by virtue of his position as Acting Commissioner, bore responsibility for overseeing and supervising Border Patrol functions at the sector level. In the course of such supervision, Ziglar allegedly reviewed and approved each Chief Border Patrol Agent's enforcement program before allowing its implementation. As for Aguilar, as Chief Border Patrol Agent for the Tucson sector, he had direct responsibility for the ongoing activities of Border Patrol agents in that sector.

Plaintiffs allege that, “at various times,” they complained about the frequent stops to Hunt, Obregon, Felix Chavez, and Campbell. Because the stops continued despite their complaints and the supervisory defendants' responsibilities, the plaintiffs allege that the supervisory defendants “personally reviewed and, thus, knowingly ordered, directed, sanctioned or permitted” the allegedly unconstitutional stops.

Finally, plaintiffs allege that Hunt and Obregon personally participated in stops. First, after a Border Patrol agent arrested Maria Elena Chavez, Obregon allegedly interrogated her for four to five hours. Next, plaintiffs claim that Hunt personally stopped them on at least two occasions. During one such stop in the Winter of 2000–2001, Hunt allegedly required Jose Chavez to refund the passengers' fares. During another stop in August of 2000, Hunt allegedly took the keys to plaintiffs' van after discovering that passengers did not have appropriate documentation. In connection with this same stop, a different Border Patrol agent allegedly transported Jose Chavez to the “Three Points area” and left him there.

PROCEDURAL BACKGROUND

In August of 2002, the district court dismissed the claims against Ziglar, Aguilar, Hunt, Obregon, Felix Chavez, and Campbell, concluding that plaintiffs had failed “to specifically allege that any Defendant Supervisor was personally involved or linked to any of Plaintiffs' alleged constitutional deprivations.” This Court reversed. Chavez v. United States, 226 Fed.Appx. 732, 736 (9th Cir.2007). We concluded that:

The complaint adequately alleges the personal involvement of the supervisors in the unconstitutional patrols. Specifically, it alleges that the defendants “personally reviewed and, thus, knowingly ordered, directed, sanctioned or permitted the roving patrol[s].” The complaint also alleges that the unconstitutional patrols were exacerbated by a lack of reporting requirements, and that the Chavezes complained to Hunt, Obregon, Chavez, and Campbell about the allegedly unlawful stops. Furthermore, the complaint alleges that Aguilar knew of the roving patrols and deliberately sanctioned them.

An unconstitutional policy and practice can be inferred from the complaint's description of directed and repeated roving patrols, the allegation that the supervisors sanctioned them, and the allegation that the agents had supervisory authority.

Id. (quoting cmplt. ¶ 26).¹

After the Ninth Circuit reinstated plaintiffs' Bivens claims against the supervisory defendants, the Supreme Court decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In light of Iqbal, the supervisory defendants filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The district court denied the motion, finding that the supervisory defendants failed to provide a plausible nondiscriminatory explanation for the alleged stops. Moreover, the district court held that plaintiffs did not need to allege that the supervisory defendants directly participated in constitutional violations. Instead, citing Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991), the district court held that the plaintiffs had plausibly alleged that the supervisory defendants had either knowingly refused to terminate a series of acts they reasonably should have known would cause constitutional violations, acquiesced in constitutional deprivations by subordinates, or displayed reckless or callous indifference to others' rights.

The supervisory defendants now appeal from that decision. We have jurisdiction to hear this appeal because “a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). While the district court here did not address the issue of qualified immunity, the supervisory defendants raised qualified immunity as a defense in their answer to the complaint, and both their motion under Rule 12(c) and their objections to the Magistrate Judge's Report and Recommendation made frequent reference to qualified immunity. Thus, by failing to address the question of qualified immunity, the district court denied the supervisory defendants' defense sub silentio.

Where an appellate court has jurisdiction to review the denial of a qualified immunity defense, it also has jurisdiction to review predominantly legal issues, such as the sufficiency of a complaint, that are “inextricably intertwined with” and “directly implicated by” the issue of qualified immunity. Ashcroft v. Iqbal, 556 U.S. 662, 673, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). Accordingly, we have jurisdiction to review both whether the supervisory defendants have qualified immunity—which turns on legal issues such as whether they allegedly violated “clearly established” r...