Mirmehdi v. United States

Decision Date03 November 2011
Docket NumberNo. 09–55846.,09–55846.
Citation2011 Daily Journal D.A.R. 16167,11 Cal. Daily Op. Serv. 13567,662 F.3d 1073
PartiesMohammad MIRMEHDI; Mostafa Mirmehdi; Mohsen Mirmehdi; Mojtaba Mirmehdi, Plaintiffs–Appellants, v. UNITED STATES of America; Mario Lopez; John Ashcroft; Robert S. Mueller, III; James W. Ziglar; Michael Garcia, Esquire; Christopher Castillo; James MacDowell, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Paul L. Hoffman, Schonbrun DeSimone Seplow Harris Hoffman & Harrison LLP, Venice, CA, argued the cause and filed the briefs for the plaintiffs-appellants. With him on the briefs were Michael Seplow, Adrienne Quarry, and Victoria Don, Schonbrun DeSimone Seplow Harris Hoffman & Harrison LLP, Venice, CA.

Andrew D. Silverman, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C., argued the cause and filed the briefs for the defendants-appellees. With him on the brief were Jeremy S. Brumbelow, Tony West, Timothy P. Garren, and Andrea W. McCarthy, Department of Justice, Civil Division, Washington, D.C.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:06–cv–05055–R–PJW.

Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Concurrence by Judge SILVERMAN.

OPINION

O'SCANNLAIN, Circuit Judge:

We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention.

I

Mohammad, Mostafa (Michael), Mohsen, and Mojtaba Mirmehdi (collectively the Mirmehdis) are four citizens of Iran who came to the United States at various times, purportedly due to their long-standing opposition to that nation's theocratic regime. In 1978, Michael arrived on a student visa. Having abandoned the degree that earned him entry into the United States, he became a real estate agent in 1985. Mohsen, Mojtaba, and Mohammad joined Michael in California in the early 1990s. Mohsen and Mohammad also became real estate agents. Unable to pass the real estate licensing exam, Mojtaba worked in construction.

In 1998, the Mirmehdis applied for political asylum with the assistance of an attorney named Bahram Tabatabai. Tabatabai falsified certain details in the Mirmehdis' applications. After Tabatabai was arrested for immigration fraud in March 1999, he agreed to cooperate with federal authorities. As part of his plea bargain, Tabatabai spoke to Special Agents Christopher Castillo of the Federal Bureau of Investigation and J.A. MacDowell of the Immigration and Naturalization Service regarding their ongoing investigation of a terrorist group known as the Mujahedin-e Khalq (“MEK”). Though he later recanted, Tabatabai told Castillo and MacDowell that the Mirmehdis were supporters of the group, which was founded on an antipathy for the Iranian government.

Based on this information, agents arrested the Mirmehdis for immigration violations in March 1999. Michael, Mojtaba, and Mohsen were released on bond later that year; Mohammad was released in September 2000.

On October 2, 2001, immigration authorities revoked the Mirmehdis' bond, largely based on a document known as the “L.A. Cell Form,” a handwritten piece of paper that has become the subject of considerable litigation and is at the center of this case. The government has always maintained that the Form lists members, affiliates, and supporters of the MEK. During the Mirmehdis' bond revocation proceedings, Castillo testified that the FBI seized the document from an MEK facility and that a confidential informant told him of its significance.

The Mirmehdis have always denied their involvement in the MEK and allege that Castillo and MacDowell knew from the start that the document was really just a list of attendees at a rally hosted by the National Council of Resistance of Iran (“NCRI”). It is undisputed that the MEK was listed as a terrorist group in 1997 and is affiliated with the NCRI. But the Mirmehdis assert that they attended the rally before that classification occurred.

The Mirmehdis also assert that Castillo concocted evidence to convince immigration authorities to revoke their bond. They claim that the cooperating witness never existed and that Castillo unreasonably continued to rely upon Tabatabai, even after he recanted. Castillo's motive, the Mirmehdis contend, was to pressure them into giving up information about the MEK that they did not possess.

The Mirmehdis' assertions are not new. They raised them on direct appeal of their detention, during the merits proceeding related to their asylum applications, and in a federal petition for a writ of habeas corpus. Almost all such forms of relief were denied. The Mirmehdis were, however, granted withholding of removal because they had demonstrated a likelihood of mistreatment if removed to Iran, and because the government failed to establish that they were engaged in terrorist activity as defined by statute.

Their immigration proceedings at last final, the Mirmehdis were released from detention in March 2005. The Mirmehdis subsequently brought this suit naming as defendants: Attorney General John Ashcroft, FBI Director Robert Mueller, INS Commissioners James Ziglar and Michael Garcia, the City of Santa Ana, the City of Las Vegas, MVM, Inc., Castillo, MacDowell, several named prison guards, John Does 1–10, and the United States. They raised a number of claims including unlawful detention, inhumane detention conditions, witness intimidation, and the intentional infliction of emotional distress.

The district court dismissed almost all of the Mirmehdis' claims for either lack of personal jurisdiction or failure to state a cause of action. The parties later settled all claims except those against Castillo and MacDowell for unlawful detention and conspiracy to violate their civil rights, against Castillo for intimidation of a witness, and against the United States for false imprisonment. The district court entered a final judgment, and the Mirmehdis timely appealed the claims to which they did not stipulate.

II

The Mirmehdis first appeal the dismissal of their claim against Castillo and MacDowell for wrongful detention under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 Whether such a claim presents a cognizable legal theory has been an open question in this circuit. See Wong v. United States INS, 373 F.3d 952, 961 (9th Cir.2004); see also Sissoko v. Rocha, 412 F.3d 1021, 1028 (9th Cir.2005), withdrawn and replaced, 509 F.3d 947 (9th Cir.2007).2

A

In the past, we have suggested that “federal courts have inherent authority to award damages to plaintiffs whose federal constitutional rights were violated by federal officials.” Papa v. INS, 281 F.3d 1004, 1009 (9th Cir.2002). But as the Supreme Court has since reminded us, “any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Such a cause of action “is not an automatic entitlement no matter what other means there may be to vindicate a protected interest.” Id. (emphasis added).

Indeed, [i]n the 38 years since Bivens, the Supreme Court has repeatedly rejected Bivens claims outside the context discussed in that specific case and has “extended it twice only: in the context of an employment discrimination claim in violation of the Due Process Clause, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and in the context of an Eighth Amendment violation by prison officials, [ Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ].” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir.2009) (en banc). The Supreme Court has refused to extend Bivens to: violations of federal employees' First Amendment rights by their employers, Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); harms suffered incident to military service, United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550, (1987); denials of Social Security benefits, Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); decisions by federal agencies, FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); actions by private corporations operating under federal contracts, Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); or retaliation by federal officials against private landowners, Wilkie, 551 U.S. at 562, 127 S.Ct. 2588.

The Court has also “recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Sosa v. Alvarez–Machain, 542 U.S. 692, 727, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (citing inter alia Malesko, 534 U.S. at 68, 122 S.Ct. 515). Such a decision implicates grave separation of powers concerns because the “creation of a private right of action raises [policy choices] beyond the mere consideration whether primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion.” Id. For such reasons, the Court has instructed the federal courts to “respond [ ] cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker, 487 U.S. at 421, 108 S.Ct. 2460.

It quickly becomes apparent, however, that this query has a logical predicate—whether we would need to extend Bivens in order for illegal immigrants to recover for unlawful detention during deportation proceedings. Only after answering in the affirmative, would we need to turn to the issue of whether we ought to extend Bivens to such a context. Arar, 585 F.3d at 572.

B

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