Quinones-Pimentel v. CannonQuinones-Pimentel v. Cannon
Rafael F. Castro Lang for appellants.
Daniel Aguilar, Appellate Staff Attorney, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, W. Stephen Muldrow, United States Attorney, and Mark B. Stern, Appellate Staff Attorney, Civil Division, United States Department of Justice, were on brief, fоr appellees Nicholas W. Cannon, Douglas A. Leff, Brad Rex, Lance Lange, Kevin Pearson, Andrew Baker, Chris Kuhn, Celia Mahler, Clay Rehrig, Noah Eames, Justin Turner, Mark Etheridge, Clint Nafay, Juan Galarza, Jason Lopez, and United States of America.
Kronsky K. Sherer, with whom Chad M. Hagan, Hagan Noll & Boyle, LLC, Jose L. Ramirez-Coll, and Antonetti Montalvo & Ramirez-Coll were on brief, for appellees Emily Rinkel, Jordan Smith, Kevin Gedeon, and Bert Eichhorn.
THOMPSON, Circuit Judge. After being subjected to alleged unconstitutional searches and seizures, Appellants filed suit seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 Disagreeing with Appellants’ take on the matter, Appellees filed motions to dismiss, which the district court granted. Appellants, unhappy with the district court‘s decision, brought the case to us. Having carefully considered all arguments, we affirm, albeit on narrower reasoning than the district court.
I.
To begin, we turn to the factual2 and procedural background (appropriately abbreviated) for context.
Believing that Naicom was a threat to their business, the Dish and NagraStar Appellees investigated Naicom for piracy. Despite not finding any evidence to support their investigation, the Dish and NagraStar Appellees complained tо the FBI Appellees, alleging that Naicom was running a pirate operation. According to Appellants, the Dish and NagraStar Appellees did so to secure their own participation in the execution of search warrants of Naicom‘s offices and Data Center and, while performing said searches, get access to Naicom‘s confidential intellectual property and trade secrets.
Starting in September 2017, the Dish and NagraStar Appellees worked with the FBI Appellees during the FBI‘s criminal investigation of Naicom. This investigation culminatеd in the AUSA and FBI Appellees securing two search warrants: one for Naicom Corporation, located at 701 Ponce de Leon, Suite 208, and one for Naicom‘s Data Center, located at 4SS N2 Via Josefina.
Appellants say that these warrants were procured based upon knowingly false and perjured statements.
On August 27, 2019, the FBI, Dish, and NagraStar Appellees searched Suite 208 and seized documents, two hard drives, two USB drives, one cell phone, and one tablet, all containing business trade secrets and intellectual property information. During that search, the same Appellees searched Suite 207, which was the headquarters of Vega‘s other business, Artist Designs & Management Corporation (also an Appellant here), despite being informed by a Naicom staff member that Suite 207 belonged to an independent business and was not included in the search warrant. In Appellants’ view, this search was beyond the scope of the warrant and, therefore, warrantless.
That same day, several of the FBI, Dish, and NagraStar Appellees also searched Naicom‘s Data Center. Present at the time of the search was Quinоnes, who witnessed the FBI Appellees allow the Dish and NagraStar Appellees to access and search Naicom‘s computers, servers, and hardware and to take photographs. For his part, Quinones asked for a chance to demonstrate that Naicom was a legitimate business. Finding no evidence of criminal activity, the AUSA and FBI Appellees instructed Quinones and Vega to report to the San Juan FBI offices for an interview. There, Quinones and Vega answered the FBI, Dish, and NagraStar Appellees’ questions and eventually asked to end the interview due to the Dish and NagraStar Appellees’ questioning regarding Naicom‘s technology.
Wanting their property returned, Appellants filed a motion to that effect under
Appellants now claim three Bivens causes of action for money damages related to the searches and seizures. In Count One, they say that Appellees conspired with each other to use false evidence and statements in support of the affidavit used to acquire the search warrants -- all in violation of Franks v. Delaware, 438 U.S. 154 (1978).4 Count Two says that Appellees’ search of Suite 207, the site of Vega‘s Artist Designs & Management Corporation, exceeded the scope of the Naicom Corporation search warrant because Suite 207 belonged to a separate business and was not included in the search warrant, whereas Count Three says that Appellees’ second search of Naicom‘s Data Center exceeded the scope of the Data Center search warrant because it had been searched two days prior.
The district court dismissed Appellants’ complaint, concluding that their claims arose within a new context of Bivens, and special factors at issue counseled against extending relief to Appellants’ claims (more on this later). This timely appeal followed.
II.
Appellants’ appeal hinges upon whether the district court correctly applied Bivens and its progeny to the claims at issue here, which we review de novo. González v. Vélez, 864 F.3d 45, 50 (1st Cir. 2017). Before getting to our assessment, we take a deep dive into the Bivens landscape.
A.
Our Constitution does not expressly provide for money damages for constitutional wrongs. In re Fin. Oversight & Mgmt. Bd., 41 F.4th 29, 44-45 (1st Cir. 2022). A federal statute enacted by Congress in 1871, nevertheless, does provide for money damages against state actors who violate the Constitution. See
Bivens then entered the scene in 1971. There, “federal agents . . . allegedly manacled the plaintiff and threatened his family while arrеsting him for narcotics violations.” Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022) (citing Bivens, 403 U.S. at 397). The Supreme Court “held that a
In this same vein, the Supreme Court expanded Bivens to two more contexts. First up was Davis v. Passman, 442 U.S. 228, 229-31, 248-49 (1979), where the Supreme Court allowed a damages action pursuant to the Fifth Amendment‘s Equal Protection Clause against a Congressperson for sex discrimination towards a member of their staff. Second was Carlson v. Green, 446 U.S. 14, 16, 20-23 (1980), where the Supreme Court extended Bivens to include an Eighth Amendment violation in which federal prison officials failed to provide adequate medicаl treatment for a prisoner‘s asthma, resulting in his death.
Since these cases were decided, however, the Supreme Court has charted a significantly different path, consistently refusing “to extend the Bivens doctrine to new settings.” González, 864 F.3d at 52; see Hernández v. Mesa, 140 S. Ct. 735, 743 (2020) (gathering Supreme Court cases declining to extend Bivens). This hesitance stems from the Supreme Court‘s recognition that “it is a significant step under separation-of-powers principles for a court to determine that it [as opposed to Congress] has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” Abbasi, 582 U.S. at 133. Indeed, in a recent trio of cases, the Supreme Court observed “that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” id. at 135 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); that ”Bivens, Davis, and Carlson were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated,” Hernández, 140 S. Ct. at 741 (quoting Abbasi, 582 U.S. at 132); and that “[i]f there is a rational reason to think that [Congress rather than the courts is who should decide whether to provide a damages remedy] -- as it will be in most every case, . . . no Bivens action may lie,” Egbert, 142 S. Ct. at 1803 (internal citation omitted).
All that said, the Supreme Court has never overruled Bivens and, most recently, clarified how courts should assess such claims. See Egbert, 142 S. Ct. at 1803; see also Abbasi, 582 U.S. at 134 (“[I]t must be understood that this opinion is nоt intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.“). To start, we must ask whether the case presents a new Bivens context, which boils down to whether the case is meaningfully different from Bivens, Davis, and Carlson. Egbert, 142 S. Ct. at 1803. What makes a difference “meaningful” is a bit unclear, but the Supreme Court has given us a few guideposts:
A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as tо how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not consider.
Abbasi, 582 U.S. at 139-40. A meaningful difference can also include a new category of defendants. Egbert, 142 S. Ct. at 1803. While the Supreme Court has instructed that “the new-context inquiry is easily satisfied,” it has also cautioned that “[s]ome differences, of course, will be so trivial that they will not suffice to create a new Bivens context.” Abbasi, 582 U.S. at 149; see also Snowden v. Henning, 72 F.4th 237, 243-44 (7th Cir. 2023) (“That a difference must be ‘meaningful’ suggests that some degree of variation will not preclude a Bivens remedy.” (emphasis theirs)). If the case presents no meaningful differences (and thus no new context), the analysis ends there and relief under Bivens is available. See Hicks v. Ferreyra, 64 F.4th 156, 166 (4th Cir. 2023).
If, however, the court decides that the case does present a new Bivens context, its next and final question is whether there are any “special factors” counseling against extending Bivens. Egbert, 142 S. Ct. at 1803. “Special factors” are also not clearly defined, but we know that they include, at least, “alternative remedial structures,” such that if Congress has already given a would-be Bivens plaintiff a way to redress the constitutional violation, the Bivens suit cannot proceed. Id. at 1804. At bottom, this question looks to whether “the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.‘” Id. at 1803 (quoting Abbasi, 582 U.S. at 136). The absence of any special factors means Bivens relief is available, while the presence of special factors means such relief is unavailable. See Hernández, 140 S. Ct. at 743.
The entire analysis ultimately collapses -- the Supreme Court tells us -- into a single, fundamental inquiry: “whether there is any reason to think that Congress might be better equipped to create a damagеs remedy.” Egbert, 142 S. Ct. at 1803. Synthesizing all this together, the modern Bivens analysis involves a factual comparison to the facts of Bivens itself (or Davis, or Carlson, depending on the case), with an emphasis on avoiding any extension of Bivens to meaningfully new factual circumstances. With this backdrop laid out, we turn to our assessment of Appellants’ claims.
B.
Starting with the new-context step, there is no dispute that the most similar Supreme Court case between Bivens, Davis, and Carlson to the case here is Bivens itself. Remember, Bivens “authorized a damages action against federal officials for alleged violations of the Fourth Amendment.” Id. at 1799. So too here are Appellants attempting to vindicate their Fourth Amendment rights. We know, however, that this similarity, by itself, is insufficient to qualify this case as presеnting the same context as in Bivens. Hernández, 140 S. Ct. at 743 (“A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.“). What‘s worse (at least for Appellants) is that the similarities between Bivens and this case also end there.
As we mentioned, the relevant analysis involves a factual comparison, and the facts of Bivens cannot be viewed generally. See, e.g., Egbert, 142 S. Ct. at 1805; Mays v. Smith, 70 F.4th 198, 204 (4th Cir. 2023) (“But citation to the constitutional provision alone is insufficiently granular for the new-context inquiry.” (citing, e.g., Hernández, 140 S. Ct. at 743)); Tun-Cos v. Perrotte, 922 F.3d 514, 524 (4th Cir. 2019) (“Arguing at so general a level . . . only
The district court noted several differences that it considered meaningful, including that 1) the challenged conduct differed from the challenged conduct in Bivens; 2) a warrant was issued and ran against a business, as oppоsed to an individual; 3) the harm to Appellants was not a result of Appellees’ direct actions, but rather a result of intervening decisions by various actors; 4) Appellants’ claims required different proof than what was required in Bivens; and 5) the claims were brought against a new category of defendants, prosecutors. We need not comment upon whether any of these differences individually would suffice to make this a new context because together, the differences in the challenged conduct -- including the issuance of a warrant, which ran against a business -- and in the defendants -- including the prosecutors and private, corporate employees -- suffice (when viewed collectively) to show that this case differs meaningfully from Bivens and therefore presents a new context.
To explain, take first the law enforcement actions at issue here, which differ entirely from those at issue in Bivens. See, e.g., Abbasi, 582 U.S. at 140 (listing “the generality or specificity of the official action” as a meaningful difference); Xiaoxing Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) (differentiating from Bivens an appellant‘s Fourth Amendment claims because they “concern a different breed of law enforcement misconduct“); Annappareddy v. Pascale, 996 F.3d 120, 136 (4th Cir. 2021) (differentiating from Bivens an appellant‘s Fourth Amendment claims because the “alleged misdeeds here are different from those in Bivens” (citation and internal quotation marks omitted)); Ahmed v. Weyker, 984 F.3d 564, 568 (8th Cir. 2020) (differentiating from Bivens an appellant‘s Fourth Amendment claims because “the sorts of actions being challenged here are different” (citation and internal quotation marks omitted)). Comparing these two sets of facts, the federal officers in Bivens handcuffed and arrested the appellant and, without a warrant, searched his apartment and his person through a visual strip search. Bivens, 403 U.S. at 389. Here, on the other hand, no one was handcuffed or arrested and no one‘s home nor their person (naked or otherwise) was searched without a warrant.5 What‘s more,
Take second the defendants in this case, who are not just federal line-level investigative officers (as was the case in Bivens) but also include federal prosecutors and private, corporate employees allegedly working with the government. Egbert, 142 S. Ct. at 1803 (identifying as an “example[] of [a] new cоntext[] . . . a case that involves a new category of defendants” (citation and internal quotation marks omitted)). Neither Bivens, Davis, nor Carlson involved claims against prosecutors, and several courts, including one of our sister circuits, have determined that prosecutors are a new category of defendants. See, e.g., Annappareddy, 996 F.3d at 134; Jones v. District of Columbia, No. 21-cv-03117, 2022 WL 2904171, at *5 (D.D.C. July 22, 2022); Greenlaw v. Klimek, No. 4:20-CV-311, 2021 WL 6112784, at *6 (E.D. Tex. Dec. 27, 2021); Martin v. Gray, No. 20-CV-741, 2021 WL 3855566, at *4 (E.D. Wis. Aug. 27, 2021); Hornoff v. Waller, No. 2:19-cv-00198, 2020 U.S. Dist. LEXIS 198578, at *56 (D. Me. Oct. 20, 2020). This conclusion makes good sense, as the Supreme Court‘s “watchword” in Bivens’ cases “is caution[,]” due to the separation-of-powers
Similarly, neither Bivens, Davis, nor Carlson involved claims against private, corporate employees. Appellants suggest that this court has previously greenlit Bivens claims against private parties, and the district court expressed confusion over this court‘s caselaw on the topic. Compare Stoutt v. Banco Popular de P.R., 320 F.3d 26, 33 (1st Cir. 2003) (“The Supreme Court has already limited Bivens actions by refusing to extend them to private entities acting under color of federal law.” (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001))); Fletcher v. R.I. Hosp. Trust Nat‘l Bank, 496 F.2d 927, 932 n.8 (1st Cir. 1974) (“[T]here is no cause of action against private parties acting under color of federal law or custom.“), with Gerena v. P.R. Legal Servs., Inc., 697 F.2d 447, 448-52 (1st Cir. 1983) (assuming that a private corporation can be a governmental aсtor and, therefore, liable for damages under Bivens).
Whatever confusion there was, the Supreme Court dispelled it, see Minneci v. Pollard, 565 U.S. 118, 126 (2012) (”Carlson, however, was a case in which a federal prisoner sought damages from personnel employed by the government, not personnel employed by a private firm. . . . And for present purposes that fact -- of employment status -- makes a critical difference.” (emphasis theirs) (internal citation omitted)), meaning that the inclusion here of private, corporate employees as defendants contributes to this context being nеw.
It is of no moment that -- as Appellants point out -- this case also involved the specific acts of line-level agents in the course of enforcing ordinary criminal laws and that there is some judicial guidance on the alleged Fourth Amendment violations at play here.8 See Abbasi, 582 U.S. at 140 (explaining that meaningful differences include “the rank of the officers involved; the constitutional right at issue; . . . the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [and] the statutory or other legal mandate under which thе officer was operating“). That is so because “even a modest extension is still an extension,” id. at 147, and the differences in the challenged conduct, combined with the inclusion of multiple new categories of defendants, are sufficient to render this context new.
C.
As we find that Appellants’ claims arise in a new Bivens context, we
Appellants’ claims involve allegations of unlawful searches of their businesses and seizure of relevant property. And
Rule 41(g) provides cold comfort -- Appellants (understandably) tell us -- because it does not provide for damages.9 In their view, any alternative remedy need not be “perfectly congruent” with Bivens, but it must be, at minimum, “adequate” and “roughly similar.” This argument falls flat because it has been squarely rejected by our judicial superiors. The Supreme Court has recently made plain that “existing remedies [need] not provide complete relief,” Egbert, 142 S. Ct. at 1804 (citation and internal quotation marks omitted); see also González, 864 F.3d at 54-55 (“The fact that other or different relief might be available . . . if constitutional tort suits were permitted” is not a “basis for extending” Bivens claims.), and that remedies such as injunctions and writs of habeas corpus, which likewise do not provide for damages, are sufficient to foreclose Bivens relief and qualify as alternative remedies, Abbasi, 582 U.S. at 144-45.
Notably, when assessing an alternative remedy, the Supreme Court has clarified that “the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial rеmedy.” Egbert, 142 S. Ct. at 1804 (citation and internal quotation marks omitted). There is reason here to think Congress is so equipped. The
The upshot of all this is that
III.
To round out our analysis is our conclusion: Having determined that Appellants’ claims arise in a new factual scenario and involve special factors, we affirm the district court‘s dismissal of Appellants’ Bivens claims.12