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noting that reasonable reliance on advice of counsel factors in favor of finding qualified immunity
Summary of this case from Cars Nw., Inc. v. City of GladstoneOpinion
CV 04-212-MO.
July 19, 2004
OPINION AND ORDER
In this action, plaintiff Morteza Anoushiravani alleges several United States Customs and Border Protection ("Customs") officials violated his Fifth Amendment rights to due process and just compensation by conditioning release of personal property exempt from import regulations on him signing a hold harmless agreement. The agreement would have released Customs and its officials from all liability arising from the seizure, detention, and release of his property. Plaintiff seeks money damages pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens"), declaratory relief, and injunctive relief.
Before the court is defendants' motion to dismiss each of plaintiff's claims (Doc. # 10). Defendants specifically assert (1) plaintiff lacks standing and his claims for injunctive relief are moot; (2) the court lacks personal jurisdiction over defendants Stilwell and Goldfarb; (3) plaintiff fails to state a constitutional claim; and (4) the doctrine of qualified immunity protects defendants from suit. The court GRANTS defendants' motion as to (1) plaintiff's claims for injunctive relief; (2) plaintiff's claims for declaratory relief; and (3) plaintiff's claims for money damages against defendant Megan Fishel. The court DENIES defendants' motion as to plaintiff's claims for money damages against defendants Stilwell and Goldfarb.
I. BACKGROUND
The facts, as alleged by plaintiff and viewed in the light most favorable to him, are as follows. On October 30, 2003, upon plaintiff's return from Iran via Portland International Airport, Customs officials seized from him items they suspected violated the Iranian Transactions Regulations ("ITR"), 31 C.F.R. pt. 560 (2003). On October 31, 2003, plaintiff contacted the Portland Customs office and requested Customs return his property. On January 14, 2004, defendant Megan Fishel, a Portland Customs official, indicated in a letter to plaintiff that "42 compact discs and four cassette tapes of recorded music, one setar, one pipeflute, and five pairs of shoes" were exempt from the ITR. Ms. Fishel further stated plaintiff would forfeit the exempt property unless he signed a document entitled "U.S. Customs Border Protection Hold Harmless Release Agreement" ("hold harmless agreement"). On or about January 20, plaintiff spoke with Ms. Fishel and demanded Customs return his property; she demanded that he first sign a hold harmless agreement; he refused.
A small, four stringed musical instrument.
On January 27, 2004, plaintiff's attorney called defendant Jennifer Stilwell, a lawyer for Customs, and informed her he believed Customs was violating plaintiff's constitutional rights by conditioning return of his exempt property on him signing a hold harmless agreement. Ms. Stilwell and another defendant-Customs lawyer, David Goldfarb, advised the Portland Customs office at times material from their offices in Seattle, Washington. Plaintiff alleges Ms. Stilwell and Mr. Goldfarb (1) advised Ms. Fishel "on the legality of requiring waivers of liability from property owners before returning their exempt property," (2) regularly dispensed "legal advice by telephone and other means to the Portland Customs Office"; and (3) "materially aided" the Portland Customs office's "hold harmless policy" by reviewing and approving the form of the hold harmless agreement.
Plaintiff alleges that "defendant Assistant Chief Counsel Jennifer Stilwell is a paralegal for [Customs]." (Complaint ¶ 8). In the court's experience, a paralegal for the government does not carry the title "Assistant Chief Counsel." Defendants, however, clarified that "defendants Goldfarb and Stilwell are agency attorneys. . . ." (Def. Motion in Support at 5).
At oral argument, plaintiff's counsel clarified this statement by indicating it is meant to include advice given prior to January 14, 2004.
On January 28, Ms. Fishel notified plaintiff's attorney that after consultation with Customs lawyers, "we are returning [the exempt property] to your client without requiring that your client sign a Hold Harmless Agreement." In conversations initiated by plaintiff's attorney whereby plaintiff threatened to challenge the constitutionality of Customs requiring a hold harmless agreement before releasing exempt property, both Ms. Fishel, on January 28, and Ms. Stilwell, on February 5, told plaintiff's attorney the Portland Custom's office "would continue its policy of requesting that owners sign a hold harmless agreement as a condition of return of their exempt property."
Plaintiff further alleges (1) he "plans to use the Portland International Airport to travel to and from Iran and other international destinations in the near future," (2) "he recently received a request from the Mercy Corps asking him to be available to travel to Iran . . . in the near future and upon short notice," and (3) Portland Customs is more likely to seize exempt property from persons of "Persian or Arabian descent" than from persons of other national origin.
II. DISCUSSION
Plaintiff alleges Customs officials violated his Fifth Amendment rights to due process and just compensation for public takings when they conditioned the return of personal property exempt from the ITR, 31 C.F.R. pt. 560, on him releasing the United States and its officials from all potential liability arising out of the seizure, detention, and release of his property. He brings suit for actual and punitive damages pursuant to Bivens, declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201-2202 (2000), and injunctive relief pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702-706 (2000).
Defendants move to dismiss all claims, specifically asserting (1) plaintiff lacks standing and his claim for injunctive relief is moot; (2) the court lacks personal jurisdiction over defendants Stilwell and Goldfarb; (3) plaintiff fails to state a constitutional claim; and (4) the doctrine of qualified immunity protects defendants from suit.
As detailed below, the court dismisses (1) plaintiff's claims for injunctive relief because he lacks standing to bring such claims; (2) plaintiff's Fifth Amendment takings claim under Bivens without prejudice so he may properly bring suit against the United States in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491 (2000), or in this court under 28 U.S.C. § 1346 (2000); (3) plaintiff's Fifth Amendment due process claim under Bivens against defendant Megan Fishel because she is entitled to qualified immunity from suit; and (4) plaintiff's claims for declaratory relief pursuant to the court's discretion under 28 U.S.C. § 2201.
Defendant Steve Gilbert, named by plaintiff "in his official capacity as Area Port Director" of the Portland Customs office, is accordingly dismissed from the case.
The court denies defendants' motion to dismiss plaintiff's Fifth Amendment due process claims under Bivens against Jennifer Stilwell and David Goldfarb. As to these claims, plaintiff's complaint alleges facts necessary to establish standing to sue, possible constitutional violations, and the court's personal jurisdiction over Stilwell and Goldfarb. The court defers judgment on the qualified immunity of Stilwell and Goldfarb until, and if, defendants raise the issue on summary judgment.
A. STANDING
Plaintiff fails to establish standing to sue defendants for injunctive relief, but alleges facts sufficient to establish standing to sue for money damages and declaratory relief. Plaintiff, the party invoking federal jurisdiction, bears the burden of alleging specific facts sufficient to establish standing — "an essential and unchanging part of the case-or-controversy requirement of Article III."Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Furthermore, he "must demonstrate standing separately for each form of relief sought." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), for proposition that "notwithstanding the fact that plaintiff had standing to pursue damages, he lacked standing to pursue injunctive relief").
The court's present conclusion on standing is tied to the procedural posture of this motion, and is not intended to indicate how the court would decide the issue on a motion for summary judgment.
To fulfill the constitutional minimum of standing, the plaintiff must demonstrate (1) a legally recognized actual or imminent injury which is concrete and particularized — i.e, affects the plaintiff "in a personal and individualized way"; (2) a causal connection between actions of the defendants and the alleged injury; and (3) a likelihood that a favorable decision by the court will redress the alleged injury. Defenders of Wildlife, 504 U.S. at 560 n. 1.
1. Plaintiff fails to establish standing to sue for injunctive relief.
Plaintiff's complaint fails to allege facts if true that establish he is suffering or imminently will suffer a cognizable injury which injunctive relief would prevent. While plaintiff need only "plead general factual allegations of injury . . . to survive a motion to dismiss" for lack of standing, LSO, Ltd. v. Stroh, 205 F.3d 1146, 1156 (9th Cir. 2000) (citing Defenders of Wildlife, 504 U.S. at 561), he must allege facts if true that establish a cognizable injury. See Whitmore v. Arkansas, 495 U.S. 149, 158-59 (1990) ("Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be `certainly impending'") (citations omitted); United States v. SCRAP, 412 U.S. 669, 688 (1973) ("pleadings must be something more than an ingenious academic exercise in the conceivable"); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 823 (9th Cir. 2002) (the injury element of standing is the proper basis for a motion to dismiss). Furthermore, plaintiff's "`[p]ast exposure to [allegedly] illegal conduct does not in itself show a present case or controversy regarding injunctive relief. . . .'" Lyons, 461 U.S. at 102 (alteration in original) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).
Unlike the facts alleged by the plaintiff in SCRAP — described by the Court in Whitmore, 495 U.S. at 158, as "the most attenuated injury conferring Article III standing" and "the very outer limit of the law" — no amount of evidence can establish plaintiff's asserted future injury as "certainly impending." See id. at 158, 160. In SCRAP, "an environmental group challenged the Interstate Commerce Commission's approval of a surcharge on railroad freight rates, claiming that the adverse environmental impact of the ICC's action on the Washington metropolitan area would cause the group's members to suffer" certain harms.Whitmore, 495 U.S. at 158-59 (citing SCRAP, 412 U.S. at 678). The allegations of the plaintiffs in SCRAP withstood the government's motion to dismiss because they "may have been able to show at trial that the string of occurrences alleged would happen immediately." Whitmore, 495 U.S. at 159.
Furthermore, like the plaintiffs in Defenders of Wildlife, plaintiffs allegations if true would only evidence "some day" intentions and "do not support a finding of the `actual or imminent' injury" the law requires. See 504 U.S. at 564 (citations omitted). In Defenders of Wildlife, plaintiffs, seeking to withstand summary judgment, submitted affidavits that stated they intended to travel to certain international locations in the future to attempt to observe certain endangered species allegedly negatively impacted by projects facilitated in part by the U.S. government. Id. at 563-64. The Court concluded that the "affiants' profession of an `inten[t]' to return to places they had visited before . . . is simply not enough." Id. at 564 (alteration in original). While the Court noted that "imminence is . . . a somewhat elastic concept," it stated that the concept "cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is ` certainly impending.'" Id. at 564 n. 2 (emphasis in original) (quoting Whitmore, 495 U.S. at 158).
While plaintiff's allegations do not attempt to stretch the concept of imminence as far as those of the plaintiffs inDefenders of Wildlife, his allegations fall beyond the outer limits of "imminence" established by SCRAP. Plaintiff alleges (1) he "plans to use the Portland International Airport to travel to and from Iran and other international destinations in the near future"; (2) "he recently received a request from the Mercy Corps asking him to be available to travel to Iran . . . in the near future and upon short notice"; and (3) Portland Customs is more likely to seize exempt property from persons of "Persian or Arabian descent" than from persons of other national origin. (Complaint ¶¶ 27-28). If true, plaintiff's allegations go only to establish (1) he may travel to Iran; (2) he may return to the United States via Portland International Airport; and (3) Customs may seize from him property exempt from the ITR and condition its return on him signing a hold harmless agreement. Plaintiff's allegations fall outside the limits of imminence recognized by the court because the conditional "may" implicit in plaintiff's allegations demonstrates he can prove only that — that he may be injured. To satisfy the requirements of standing, a plaintiff's allegations if true must prove he will in all likelihood be injured.
In sum, plaintiff's complaint fails to allege facts if true that would establish plaintiff is suffering or imminently will suffer a cognizable injury which injunctive relief would prevent. He thus fails to establish standing to sue for such relief.
2. Plaintiff establishes standing to sue for money damages.
Plaintiff demonstrates his standing to sue for money damages under Bivens by alleging he suffered a concrete and particularized injury to his constitutional right to due process; alleging a causal connection between his injury and the actions of defendants Fishel, Stilwell, and Goldfarb; and praying for actual and punitive damages.
The analysis of plaintiff's takings claim is substantively similar. The court's standing analysis focuses, however, on plaintiff's standing to bring his due process claim because as discussed below the court dismisses the takings claim for another reason.
a. Plaintiff alleges a concrete and particularized injury.
Pursuant to Defenders of Wildlife, 504 U.S. at 560, plaintiff properly alleges a legally recognized actual injury which affects the plaintiff in a personal and individualized way. Defendants assert plaintiff lacks standing to sue for money damages because he "never subjected himself to the alleged `policy' of using hold harmless agreements." (Def. Reply Memo. at 4). They argue he was not injured because he refused to sign the hold harmless agreement and Customs nevertheless returned his property. (Def. Memo. in Support at 9). In support of their argument, defendants citeResnick v. Adams, 348 F.3d 763, 772 (9th Cir. 2003), in which the court found the plaintiff lacked standing to challenge deficiencies in a prison's administration of a special diet program because he failed to participate or even attempt to participate in the program. Resnick is inapposite. The injury upon which plaintiff has standing arises from Custom's allegedly unconstitutional act of depriving him of his property from the time he demanded the exempt property without avail, January 20, 2004, until the time Customs reversed its position and released plaintiff's property, January 28, 2004. (See Complaint ¶¶ 15, 16, 22-24). Thus, his refusal to sign the agreement and the eventual return of his property are irrelevant to the alleged fact that the policy of conditioning release of exempt property on signing a hold harmless agreement temporarily deprived him of property to which he had an unconditional right without due process of law.
Alternatively, the period of deprivation may run from January 14, 2004 — the date Ms. Fishel issued her opinion regarding the subject property's exempt status — to January 28, 2004.
b. Plaintiff alleges a causal connection between his injury and the actions of defendants Fishel, Stilwell, and Goldfarb.
To establish a causal connection between an alleged injury and the conduct complained of, a plaintiff must allege the injury is "`fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Defenders of Wildlife, 504 U.S. at 560-61 (alterations in original) (quotingSimon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).
Plaintiff's complaint alleges facts that if true are sufficient to draw a "fairly traceable" causal connection between his injury and the alleged actions of defendants Fishel, Stilwell, and Goldfarb. The line between plaintiff's alleged injury and Fishel's alleged conduct is straightforward. Plaintiff demanded return of the exempt property to which he had an unconditional right and Fishel denied his demand (See Complaint ¶ 22). The causal connection between plaintiff's alleged injury and the alleged conduct of Stilwell and Goldfarb requires more attention. Defendants assert "[p]laintiff has failed to identify any involvement in this case by Stilwell or Goldfarb prior to the critical, allegedly unconstitutional acts committed by Fishel on January 14 and 20, 2004." (Def. Reply Memo. at 6) (emphasis in original). Plaintiff, however, alleges Stilwell and Goldfarb advised Fishel "on the legality of requiring waivers of liability from property owners before returning their exempt property." (Complaint ¶¶ 7-8). Because on a motion to dismiss plaintiff's "general allegations embrace those specific facts . . . necessary to support" his claim, Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), the court infers a causal connection between plaintiff's alleged injury and the alleged advice of Stilwell and Goldfarb to Fishel, the immediate agent of injury.
See supra note 3.
c. The court can redress plaintiff's alleged injury.
Plaintiff prays for actual and punitive damages against defendants Fishel, Stilwell, and Goldfarb pursuant to Bivens. (Complaint at 9). Furthermore, while at this juncture not dispositive, plaintiff may proceed on a denial of procedural due process claim without proving actual damages; nominal damages are appropriate to protect the "absolute" right to procedural due process. Weinberg v. Whatcom County, 241 F.3d 746, 752 (9th Cir. 2001) (citing Carey v. Piphus, 435 U.S. 247, 266 (1978)).
B. PERSONAL JURISDICTION OVER STILWELL AND GOLDFARB.
Defendants assert the court lacks personal jurisdiction over defendants Stilwell and Goldfarb; however, plaintiff's complaint establishes the court's jurisdiction over them, at least at this stage of the proceeding. The normal rules for establishing personal jurisdiction over a defendant apply in a damages action against a federal official in his individual capacity. Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir. 1985). Under those rules, plaintiff carries the burden of establishing the court's personal jurisdiction over defendants, and the court must analyze personal jurisdiction over each defendant separately. Harris Rutsky Co. Ins. Servs., Inc. v. Bell and Clements Ltd., 328 F.3d 1122, 1128-30 (9th Cir. 2003). On a motion to dismiss without an evidentiary hearing, the plaintiff "`need only demonstrate facts that if true would support jurisdiction over defendant.'" Id. (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)).
The court may exercise personal jurisdiction over a defendant where it comports with the forum state's long-arm statute and due process. Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). Oregon's long-arm statute allows courts to exercise personal jurisdiction "to the outer limits of due process."State ex rel. Hydraulic Servocontrols Corp. v. Dale, 657 P.2d 211, 213 n. 2 (Or. 1982). To determine whether a court's exercise of specific personal jurisdiction over a defendant comports with the requirements of due process, the Ninth Circuit applies a three part test, as follows:
Plaintiff does not allege, nor is there any basis for the court to assert, general personal jurisdiction over defendants Stilwell and Goldfarb.
(1) the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.Harris Rutsky, 328 F.3d at 1129 (quoting Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1485 (9th Cir. 1993)). Plaintiff establishes the court's personal jurisdiction over defendants Stilwell and Goldfarb by alleging facts if true that meet the requirements of the this three part test.
1. Plaintiff alleges Stilwell and Goldfarb purposefully directed activities toward Oregon and its residents.
"Physical contact with the forum state is not a necessary condition" for the court to conclude defendants purposefully directed activities at the forum state. Id. at 1130. A defendant purposefully directs activities at the forum state for the purposes of personal jurisdiction if his or her activities comport with the "effects" test, which is as follows: (1) the defendant committed an intentional act; (2) the defendant expressly aimed the act at the forum state; and (3) the act allegedly caused harm which was primarily suffered in the forum and the defendant knew the harm was likely to be suffered in the forum state. Harris Rutsky, 328 F.3d at 1131 (citing Calder v. Jones, 465 U.S. 783 (1984);Core-Vent, 11 F.3d at 1486). Plaintiff alleges Stilwell and Goldfarb advised Fishel "on the legality of requiring waivers of liability from property owners before returning their exempt property." (Complaint ¶¶ 7-8). Defendants contend plaintiff's allegations regarding Stilwell and Goldfarb do not establish the court's jurisdiction over them because plaintiff's "complaint . . . is premised entirely upon assumptions regarding legal advice given from their office in Seattle"; that "[t]he mere provision of legal advice does not constitute purposeful availment and the exercise of jurisdiction over [Stilwell and Goldfarb] for such attenuated contacts would not be reasonable." (Def. Memo. in Support at 12).
Defendants' argument relies primarily on Sher v. Johnson, 911 F.2d 1357, 1363 (9th Cir. 1990), for the proposition that "[o]ut of state legal representation does not establish purposeful availment. . . ." (See Def. Memo. in Support at 11). The present action is distinguished from Sher on the facts. InSher, the plaintiff, a California resident, brought suit in a federal district court in California against several Florida lawyers for alleged malpractice arising out of the lawyers' representation of plaintiff in a criminal matter in Florida. 911 F.2d at 1360. The plaintiff sought out the lawyers in Florida, and the lawyers directed their activities in the matter giving rise to the malpractice claim exclusively within Florida. Id. at 1362. The court determined the lawyers contacts with California did not evidence "the deliberate creation of a `substantial connection' with California" — the contacts were rather merely "`random, fortuitous, or attenuated.'" Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 479-80 (1985)). In other words, in relation to the plaintiff, the defendants in Sher were "out of state representation" — i.e., Florida lawyers representing a California resident — but within the framework of personal jurisdiction, they purposefully directed their activities only within Florida and thus were appropriately not subject to the jurisdiction of a federal court in California.
Unlike the lawyers in Sher, Stilwell and Goldfarb purposefully directed activities at the forum state by advising Fishel, an official at the Portland Customs office, on the legality of requiring a hold harmless agreement before releasing exempt property to persons whose property had been seized at Portland International Airport — persons who are presumably in large part residents of the forum state. Furthermore, the alleged actions of Stilwell and Goldfarb meet the "effects" test for personal jurisdiction because (1) they allegedly "committed an intentional act" — they advised Fishel on the legality of requiring a hold harmless agreement before releasing exempt property; (2) they expressly aimed the act at the forum state — they knew Fishel implemented the policy in Oregon; and (3) the act allegedly caused harm which was suffered in Oregon, and logically, Stilwell and Goldfarb knew the harm would be suffered in Oregon. See Harris Rutsky, 328 F.3d at 1131.
2. Plaintiff's claim arises out of the alleged forum-related activities of Stilwell and Goldfarb.
The Ninth Circuit uses the "but for" test to determine whether a plaintiff's claim arises out the forum-related activities of a defendant. Id. at 1131-32 (citing Ballard, 65 F.3d at 1500). Employing the "but for" test, the court must determine the answer to the following question: but for Stilwell's and Goldfarb's contacts with Oregon, would plaintiff's claims have arisen? See Ballard, 65 F.3d at 1500 (setting forth form of question).
Defendant contends that "[b]ecause the only acts alleged against Stilwell and Goldfarb arose after the allegedly unconstitutional actions of Megan Fishel, plaintiff's claimed injury could not have been `caused' by [them]." (Def. Reply Memo. at 7). Plaintiff, however, alleges Stilwell and Goldfarb advised Fishel "on the legality of requiring waivers of liability from property owners before returning their exempt property." (Complaint ¶¶ 7-8). Furthermore, plaintiff connects the "but for" dots, as follows: "[b]ut for defendant[s] Goldfarb['s] and Stilwell's advice, [d]efendant Fishel would not (1) have demanded a [hold harmless agreement] as a condition to the return of exempt property; [or] (2) withheld plaintiff's exempt property when he refused to sign the [agreement]. . . ." (Pl. Response at 18). Reading plaintiff's allegations in the light most favorable to him, the logic of plaintiff's response is sound; thus, he carries his burden on the "but for" test.
See supra note 3.
3. Defendants fail to demonstrate the court's exercise of jurisdiction over Stilwell and Goldfarb would be unreasonable.
If a plaintiff meets its burden on the "purposeful direction" and "but for" prongs of the personal jurisdiction analysis, the burden shifts to the defendant to "`present a compelling case that the presence of some other considerations would render jurisdiction unreasonable'" — i.e., to establish that the court's exercise of jurisdiction does not comport with fair play and substantial justice. Harris Rutsky, 328 F.3d at 1129, 1132 (quoting Burger King, 471 U.S. at 477). Defendants fail to meet this substantial burden. The sum of their argument on reasonableness is, at best, as follows: "[t]he mere provision of legal advice does not constitute purposeful availment and the exercise of jurisdiction over these two defendants for such attenuated contacts would not be reasonable." (Def. Memo. in Support at 12).
In sum, plaintiff establishes the court's jurisdiction over defendants Stilwell and Goldfarb by alleging facts if true that establish they purposefully directed acts at Oregon that gave rise to plaintiffs claims. Furthermore, defendants fail to present a compelling case that the court's exercise of jurisdiction over Stilwell and Goldfarb would be unreasonable.
C. TAKINGS CLAIM
Plaintiff does not have an implied cause of action underBivens for a Fifth Amendment takings claim because he has an express cause of action for such a claim under the Tucker Act, 28 U.S.C. § 1491. The right to sue federal officials for constitutional torts under Bivens "is not absolute." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). This rule is consistent with the Court's caution in Bivens that an action against government officials will not lie where there are special factors that counsel hesitation in implying non-statutory remedies. Adams, 355 F.3d at 1183 (citing Bivens, 403 U.S. at 396). A special factor that precludes a Bivens claim exists "[w]here Congress has provided some mechanism for relief."Adams, 355 F.3d at 1183-84 (emphasis in original) (quotingBerry v. Hollander, 925 F.2d 311, 313 (9th Cir. 1991)).
The Tucker Act, 28 U.S.C. § 1491, provides a statutorily defined mechanism for asserting claims against the United States for just compensation for public takings. Eastern Enter. v. Aphel, 524 U.S. 498, 520 (1998) ("a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute");United States v. Mitchell, 463 U.S. 206, 216 (1983) (in order for a claim to be "cognizable under the Tucker Act," it "must be one for money damages against the United States"); Weiss v. Lehman, 642 F.2d 265, 267 (9th Cir. 1981). Furthermore, 28 U.S.C. § 1346(a)(2) gives federal district courts concurrent jurisdiction over such claims when they do not exceed $10,000. Thus, whether plaintiff could bring a Tucker Act claim in this court depends on the compensation plaintiff alleges he is due. See Weiss, 642 F.2d at 267 n. 3.
The court in Weiss eventually allowed a plaintiff's takings claim to proceed under a Bivens cause of action because it determined that the Tucker Act-Fifth Amendment just compensation claim was less than equally effective as theBivens remedy. The court noted that the Bivens remedy provided for trial by jury and served as a greater deterrent to unconstitutional acts by government officers. 642 F.2d at 267-68. The Ninth Circuit, however, decided Weiss before the Supreme Court's decisions in Bush v. Lucas, 462 U.S. 367, 375-76 (1983), and Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), ushered in the "special factor" other remedy analysis set forth in the first paragraph of this section.
While the Tucker Act is jurisdictional only, the Takings Clause of the Fifth Amendment provides the substantive right enforceable against the United States for money damages. Weiss, 642 F.2d at 267 (citing United States v. Testan, 424 U.S. 392, 398 (1976);United States v. Causby, 328 U.S. 256, 267 (1946)). In sum, because the Tucker Act, in coordination with the Fifth Amendment, provides an express remedy for plaintiff's takings claim against defendant Fishel, the court does not imply a cause of action for such claims under Bivens. Furthermore, because plaintiff failed to allege an amount of compensation due for the alleged taking, the court is unable to sua sponte convert plaintiff's takings claim under Bivens into one under the Tucker Act. Accordingly, the court dismisses plaintiff's takings claim without prejudice so he may amend his complaint to state a cause of action under the Tucker Act. If plaintiff alleges he is due compensation greater than $10,000, he should file his Tucker Act claim in the Court of Federal Claims.
D. DUE PROCESS CLAIM
Defendants contend the court should dismiss plaintiff'sBivens claims for failure to state a claim; they assert he fails to assert a possible constitutional violation. (Def. Memo. in Support at 5-8). Plaintiff, however, alleges facts sufficient to show defendants possibly violated his Fifth Amendment right to due process. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). To properly state a claim underBivens, plaintiff must allege facts necessary to establish a possible constitutional violation arising from defendants' actions under the color of law. Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003).
Defendants do not contest they were acting under color of federal law.
The Fifth Amendment prohibits the government from depriving a person of property without due process of law — i.e., "underlying authority and competent procedural protections." Vance, 345 F.3d at 1090. Plaintiff alleges he demanded return of exempt property to which he had an unconditional right and Fishel denied his demand (See Complaint ¶ 22). Tying Stilwell and Goldfarb to the deprivation, plaintiff alleges they advised Fishel "on the legality of requiring waivers of liability from property owners before returning their exempt property." (Id. ¶¶ 7-8); see Kwai Fun Wong v. INS, ___ F.3d ___, No. 02-35727, 2004 WL 1418012, at *10 (9th Cir. June 25, 2004) ("direct, personal participation is not necessary to establish liability for a constitutional violation") (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). He alleges this denial temporarily deprived him of his property. (See Complaint ¶¶ 23-24). The court infers from the complaint that defendants failed to afford him any procedural protections preceding or subsequent to the alleged deprivation.
Defendants do not contend they provided plaintiff with due process before temporarily depriving him of his exempt property; rather, they contend their actions and policy comport with the Constitution. They cite a series of cases for the proposition that conditioning return of seized property or dismissal of criminal claims on securing a release agreement is consistent with the Constitution and the public policy that favors settlement of disputes. These cases include Town of Newton v. Rumery, 480 U.S. 386, 397-98 (1987); Lynch v. City of Alhambra, 880 F.2d 1122, 1126-27 (9th Cir. 1989); and Diamond Game Enter. v. Howland, No. CV-98-1242-ST, 1999 WL 397743, at *7-9 (D. Or. Mar. 23, 1999). (Def. Memo in Support at 5-8). To the trained eye, each of these cases is easily distinguished because each depends on the parties settling a bona fide dispute; in each case the government had a right to a person's property or the grounds to prosecute the person for a crime. In this case the government fails to establish it had a right to the property at times material; the government had determined the subject property exempt from the ITR and notified plaintiff of its determination. Thus, as alleged, the hold harmless agreement served not as a tool of settlement but as a condition on plaintiff exercising his right to the exempt property. This condition served to temporarily deprive plaintiff of his property without due process of law. Therefore, plaintiff's complaint, taken in the light most favorable to him, states a claim underBivens because defendants' actions square with a possible violation his Fifth Amendment due process rights.
At page 2, note 1 of their reply memorandum, defendants note that "[w]hen Megan Fishel decided to return some of the personal items to the plaintiff, she exercised her discretion pursuant to 19 U.S.C. § 1618; however, because [the Office of Foreign Assets Control] was not involved in the decision to return these particular items, there was nothing equivalent to a final, judicial determination that the returned merchandise was exempt." Defendants' statement appears to run contrary to the interplay of § 1618 and the ITR, 31 C.F.R. pt. 506. As alleged, the subject property is exempt from the regulations pursuant to 31 C.F.R. § 560.201(c) (Information and informational materials) or authorized for importation by 31 C.F.R. § 560.524 (Household goods and personal effects). Thus, the property was not subject to forfeiture. Section 1618 authorizes Customs officials to remit property subject to forfeiture upon existence of certain mitigating factors. Because the property in question was not subject to forfeiture, defendant Fishel could not have been operating under § 1618. This conclusion is not incompatible with the conclusion that Fishel was operating in a discretionary manner within the framework of qualified immunity. See infra note 14 and accompanying text.
E. QUALIFIED IMMUNITY
Defendants assert they are entitled to qualified immunity from suit. (Def. Memo. in Support at 5-8). Applying the law to the facts plaintiff alleges yields qualified immunity for defendant Fishel. However, as for defendants Stilwell and Goldfarb, the court determines it imprudent to rule on qualified immunity without additional facts and, thus, reserves judgment on the question. Under the doctrine of qualified immunity, a government official performing a discretionary function is entitled not to stand trial or face the other burdens of litigation if the official's conduct does not violate clearly established statutory or constitutional rights. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Plaintiff contends defendant Fishel was acting in a non-discretionary manner when she conditioned the return of plaintiff's property on him signing a hold harmless agreement because, pursuant to the ITR, 31 C.F.R. pt. 506, "defendants did not have discretion to withhold plaintiff's property after determining it to be exempt." (Pl. Response at 14). As a preliminary matter, the court determines the ITR fail to specify the precise action a official must take when the official determines an item exempt. The ITR thus creates discretionary, as opposed to ministerial, authority. See Davis v. Scherer, 468 U.S. 183, 197 n. 14 (1984); Browning v. Vernon, 44 F.3d 818, 822 n. 5 (9th Cir. 1995). In other words, while the exemption provisions of the ITR determine plaintiff's unconditional right to his property, they leave to the Customs official some discretion in how to effectuate return of the property. Defendants' argument regarding the "clearly established" inquiry of the qualified immunity analysis, see infra Part II.E.1.b, logically encompasses its position on discretion.
Qualified immunity is "`an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (emphasis in original) (quotingMitchell, 472 U.S. at 526). The Supreme Court has, accordingly, "`repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'" Id. at 201. (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991));see also Kwai Fun Wong, 02-35727, 2004 WL 1418012, at *1 (providing that "government officials are entitled to raise the qualified immunity defense immediately, on a motion to dismiss the complaint, to protect against the burdens of discovery and other pre-trial procedures) (citing Behrens v. Pelletier, 516 U.S. 299, 308 (1996)); but see id. (providing that the somewhat peculiar "confluence of [the] procedural doctrines" of notice pleading and qualified immunity raises concern when courts are "called upon to decide far-reaching constitutional questions on a nonexistent factual record").
A court required to rule on whether a defendant is entitled to qualified immunity faces a two step inquiry. First, the court must determine whether the facts, taken in the light most favorable to the party asserting the injury, show the defendant's conduct violated a constitutional right. Saucier, 533 U.S. at 201. The above section on whether plaintiff asserts a constitutional claim, supra Part II.D, answers this threshold question in the affirmative.
Second, the court must determine whether the subject constitutional right was clearly established. Saucier, 533 U.S. at 201. A right is clearly established if the "`contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987));see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (second step is designed to protect "all but the plainly incompetent"). The plaintiff bears the burden of proving the right was clearly established. Alford v. Haner, 333 F.3d 972, 977 (9th Cir. 2003) (citing Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991)).
The reasonable official standard enunciated by Saucier andAnderson, similar to the reasonable person standard in a typical tort case, varies depending on the particular official's position. See generally Kit Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L.Rev. 597, 619-622 (1989) (citing in support of the proposition case law from every circuit including the Ninth Circuit — Schlegel v. Gebout, 841 F.2d 937, 945 (9th Cir. 1988); Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987); Shouse v. Ljunggren, 792 F.2d 902, 906 (9th Cir. 1986)); see also Ramirez v. Butte Silver Bow County, 298 F.3d 1022, 1027-28 (9th Cir. 2002) ("Law enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances. . . . What's reasonable for a particular officer depends on his role in the search" — differentiating between "lead officers" and "line officers"). For example, "a state attorney general . . . can reasonably be expected to know more about current constitutional doctrine than the cop on the beat. Thus, a constitutional right may become clearly established for the state attorney general before it becomes clearly established for local police officers." Kinports, supra, at 621. Similarly, in this case, what is clearly established to a reasonable Customs lawyer may vary from what is clearly established to a front line Customs official.
Furthermore, while the "clearly established" standard must be satisfied "in light of the specific context of the case,"Saucier, 533 U.S. at 201, satisfaction of the standard does not require precedent directly on point, see Vance, 345 F.3d at 1094; see also Boyd v. Benton County, ___ F.3d ___, Nos. 02-35776, 02-35777, 2004 WL 1433532, at *6 (9th Cir. June 28, 2004) (a plaintiff's "`constitutional rights may be clearly established in the absence of a case on all fours prohibiting [the] particular manifestation of unconstitutional conduct [at issue]'") (alterations in original) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)).
1. Fishel entitled to qualified immunity
Plaintiff fails to demonstrate a reasonable official in Fishel's position would understand what she did violated plaintiff's constitutional right to due process; therefore, as to defendant Fishel, plaintiff's right to be free from a condition in the form of a hold harmless agreement on the return of exempt property was not clearly established.
a. Plaintiff's contentions
Plaintiff alleges that "Megan Fishel is a Fines, Penalties, and Forfeitures Officer" for the Portland Customs office. (Complaint ¶ 6). The court takes notice that a "Fines, Penalties, and Forfeitures Officer" is a front line Customs official. Accordingly, to determine whether defendant Fishel is entitled to qualified immunity, the court must determine whether at the time of plaintiff's alleged injury by the actions of defendant Fishel, a reasonable front line Customs official would clearly understand that the actions of defendant Fishel illegally deprived plaintiff of property without due process of law.
Plaintiff contends it is "plain that where the government has concluded that plaintiff is entitled to possession of his property, it may not withhold that property, conditionally or otherwise." (Pl. Response at 15-16) (citing Lee v. Thornton, 538 F.2d 27, 30 (2d Cir. 1976); Lowther v. United States, 480 F.2d 1031, 1033-34 (10th Cir. 1973); Vance, 345 F.3d at 1190-94; DeNieva v. Reyes, 966 F.2d 480, 485-86 (9th Cir. 1992)). In Lee, Customs seized appellants' motor vehicles pursuant to various crimes. 538 F.2d at 28. Appellants challenged the constitutionality of the seizures, and the court held that "in failing to provide appellants with an adequate opportunity to contest the detention of their property, the contested statutes as here applied violated appellants' fifth amendment right to due process." Id. at 29. DeNieva is similar in substance to Lee for the present purposes. See DeNieva, 966 F.2d at 485-86 (defendant detained plaintiff's passport "for a potentially indefinite period without a hearing"). Unlike Lee andDeNieva, which speak to the proper procedures for notice and hearing after seizure, the present case revolves around the proper procedure on release of property.
In Lowther, "officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service [("ATF")] in the process of executing a search warrant seized [certain firearms] from the residence of [the] plaintiff." 480 F.2d at 1032. The government subsequently prosecuted him for possession of the firearms. Id. He demanded ATF remit the firearms to him; he was subsequently acquitted on the criminal charges stemming from possession of the firearms. Id. ATF denied his request for remission; it had destroyed the firearms. Id. at 1032-33. The court determined plaintiff had a valid claim for compensation under the Tucker Act. Id. at 1035. While Lowther and the present case are similar in that the plaintiffs had an unconditional right to their property, Lowther differs because it speaks not to a temporary deprivation arising out of conditioning the return of property, but to the effect of destruction of property on the rights of plaintiff and his subsequent remedy.
Finally, in Vance, the Nevada Department of Prisons ("NDOP") required all inmates, to be eligible for prison employment, to sign a fiscal agreement that authorized prison officials to deduct from the inmate's savings account "`the cost of any expense incurred by NDOP on [the inmate's] behalf, whether [the inmate] incurred the expense voluntarily or involuntarily.'" 345 F.3d at 1086-87 (alterations in original). The plaintiff-inmates refused to sign the fiscal agreement and the NDOP accordingly released them from prison employment. Id. at 1087. The court held the coercive deductions and retaliation sounded of possible constitutional violations. Id. at 1091-93. The setting and facts of Vance make analogy between it and the present case attenuated at best.
While case law need not be on all fours or even closely analogous to clearly establish a constitutional right, see Boyd, ___ F.3d ___, Nos. 02-35776, 02-35777, 2004 WL 1433532, at *6, the cases cited by plaintiff in support of its position do not clearly put a reasonable front line Customs official on notice that requiring a hold harmless agreement before returning exempt property violates a person's constitutional rights.
b. Defendants' contentions
Defendants cite a series of cases that could shape the reasonable front line Customs official's understanding of what is legal in the subject circumstances. These cases, including Town of Newton v. Rumery, 480 U.S. 386, 397-98 (1987); Lynch v. City of Alhambra, 880 F.2d 1122, 1126-27 (9th Cir. 1989); andDiamond Game Enter. v. Howland, No. CV-98-1242-ST, 1999 WL 397743, at *7-9 (D. Or. Mar. 23, 1999), support the proposition that conditioning return of seized property or dismissal of criminal claims on securing a release agreement is consistent with the Constitution and the public policy that favors settlement of disputes. The cases involve resolution of bona fide disputes — ones in which the government has a legitimate claim to one's property or liberty. The present case does not involve such a dispute; the government determined the property exempt, and the plaintiff had an unconditional right to the property.
To the trained eye, this distinction is relatively straightforward; however, to the untrained eye — the "cop on the street" or, in this case, the reasonable front line Customs official — such a distinction starts to blur. The front line customs official should understand, for example, that requiring a hold harmless agreement is legal — i.e, consistent with the cases cited by defendants — when the Customs official exercises discretion under 19 U.S.C. § 1618 and remits or mitigates a fine or forfeiture in regards to property to which Customs has seized. The result of a Customs official determining property is exempt from import regulations can be facially very similar to the result of a Customs official's actions under § 1618 — Customs relinquishes control of seized property. To understand a hold harmless agreement is a legal quid pro quo in a § 1618 situation but an unconstitutional condition in an exemption situation goes beyond what is expected from the reasonable front line Customs official.
c. Advice of counsel
Furthermore, as alleged by plaintiff, defendant Fishel either sought out or was furnished advice from counsel regarding the legality of requiring a hold harmless agreement before returning exempt property. (Complaint ¶¶ 7-8). While receiving advice from counsel on the legality of a course of action does not demand a conclusion of qualified immunity, Stevens v. Rose, 298 F.3d 880, 884 (9th Cir. 2002), reasonable reliance on advice of counsel factors in favor of a finding of immunity, Los Angles Police Protective League v. Gates, 907 F.2d 879, 888 (9th Cir. 1990). See also Vance, 345 F.3d at 1094 n. 14 (citing same).
In sum, plaintiff fails to show a reasonable front line Customs official would understand that the actions of defendant Fishel illegally deprived plaintiff of property without due process of law. While plaintiff alleges facts to support a possible constitutional violation, the case law, as set forth by plaintiff and defendants, is not so clear that a reasonable front line Customs official should be able to understand its nuances and consistently apply its teachings.
2. The Court defers judgment on qualified immunity for Stilwell and Goldfarb.
Defendants Stilwell and Goldfarb are lawyers for Customs. As such, to determine whether they are entitled to qualified immunity, the court must determine whether a reasonable lawyer in their positions would understand that the alleged advice giving rise to the actions of defendant Fishel illegally deprived plaintiff of property without due process of law. Unlike defendant Fishel, a front line Customs official, defendants Stilwell and Goldfarb are trained in the law, trained in its jargon and sometimes subtle distinctions. Furthermore, as lawyers for a federal law enforcement agency, an agency on the front lines of the inevitable conflict between government action and individual rights, they are expected to be well versed in core due process jurisprudence.
No precedent appears directly on point to put Stilwell and Goldfarb on notice that they could not advise Customs officials to condition release of personal property exempt from import regulations on a person signing a hold harmless agreement. However, "when an [official's] conduct `is so patently violative of [a] constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous preexisting case law is not required to show that the law is clearly established.'" Boyd, ___ F.3d ___, Nos. 02-35776, 02-35777, 2004 WL 1433532, at *6 (quoting Deorle, 272 F.3d at 1286). The court thus must determine whether the alleged actions of Stilwell and Goldfarb — advising a front line official that it was legal to require a hold harmless agreement before returning exempt property — were so egregious that a reasonable lawyer for a federal law enforcement agency, without direct or closely analogous case law on point, would have known that such advice would lead to the violation of a person's right to due process.
Based on plaintiff's serious allegations, the court is not prepared at this point to grant qualified immunity to Stilwell and Goldfarb. The court, however, views the question of Stilwell's and Goldfarb's qualified immunity as involving lightly treaded legal theories and refuses to contribute "to the development of legal doctrine that has lost its moorings in the empirical world, and that might never need to be determined were the case permitted to proceed, at least to the summary judgment stage." See Kwai Fun Wong v. INS, ___ F.3d ___, No. 02-35727, 2004 WL 1418012, at *1 (9th Cir. June 25, 2004). The court, therefore, declines to specifically deny qualified immunity to Stilwell and Goldfarb by applying a more fully developed version of the above-enunciated standard to the skeletal set of alleged facts in plaintiff's complaint. The court accordingly defers judgment on the qualified immunity of Stilwell and Goldfarb until, and if, defendants raise the issue on summary judgment. The court will determine at the Rule 16 conference whether the parties need preliminary discovery narrowly tailored to the issue of Stilwell's and Goldfarb's qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 593 n. 14 (1998) ("Harlow sought to protect officials from the costs of broad reaching discovery, 457 U.S. at 818, and we have since recognized that limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment based on qualified immunity.").
F. DECLARATORY JUDGEMENT
The court dismisses plaintiff's claims for declaratory relief. Plaintiff's standing to sue for an alleged constitutional violation, as set forth supra Part II.A.2, satisfies the jurisdictional prerequisites of the Declaratory Judgment Act, 28 U.S.C. § 2201-2202. However, § 2201 provides a court " may declare the rights and other legal relations of any interested party seeking such declaration." (emphasis added). This language authorizes, rather than commands, a court to consider a claim for declaratory relief. Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); see also Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995) ("In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration."); Government Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1225 n. 5 (9th Cir. 1998) (noting that courts, in exercise of their discretion, may consider the "`availability and relative convenience of other remedies'") (quoting American States Ins. Co. v. Kearns, 15 F.3d 142, 145 (9th Cir. 1994) (Garth, J., concurring)). Pursuant to its discretion, the court dismisses plaintiff's claims for declaratory relief because adjudicating such claims would require the court and the parties to engage in unnecessary redundancy. Adjudicating plaintiff's claims for declaratory relief would require the same inquiry and yield the same result on the question of liability as plaintiff's claim for damages — i.e., the court will hold the defendants liable for damages underBivens only if the finder of fact determines they violated plaintiff's constitutional rights.
III. CONCLUSION
The court dismisses (1) plaintiff's claims for injunctive relief because he lacks standing to bring such claims; (2) plaintiff's Fifth Amendment takings claim under Bivens without prejudice so he may properly bring suit against the United States in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491, or in this court under 28 U.S.C. § 1346; (3) plaintiff's Fifth Amendment due process claim under Bivens against defendant Megan Fishel because she is entitled to qualified immunity from suit; and (4) plaintiff's claims for declaratory relief pursuant to its discretion under 28 U.S.C. § 2201.
The court denies defendants' motion to dismiss plaintiff's Fifth Amendment due process claims under Bivens against Jennifer Stilwell and David Goldfarb. As to these claims, plaintiff's complaint alleges facts necessary to establish standing to sue, possible constitutional violations, and the court's personal jurisdiction over Stilwell and Goldfarb. The court defers judgment on the qualified immunity of Stilwell and Goldfarb until, and if, defendants raise the issue on summary judgment.
IT IS SO ORDERED.