Unus v. Kane

anee, Service, Alcohol, we AFFIRM order of arbitra- nue Bureau of To Firearms, Immigration and tion. bacco Service, Naturalization United States Service, Secret Defendant.

No. 07-2191. United States Appeals, Court of Fourth Circuit.

Argued: Dec. 2008. Decided: May Aysha UNUS; Unus, Nudrat Hanaa

Plaintiffs-Appellants, Unus,

Iqbal Plaintiff, KANE, Special Agent,

David U.S. Immi

gration Enforcement; and Customs Katz; Aarons, Roger Special

Rita

Agent, DHS-ICE; Barnett, Camille

Special Agent, DHS-ICE; Byron

Braggs, Special Agent, ICE; Senior Crandall, Special Agent,

Jennifer

DHS-ICE; Gerardo, Spe Francisco Agent, ICE; Gomez, Spe

cial Antonio Agent, IRS; McMahon,

cial Stasia A.

Special Agent, IRS; Elmer R. Moor

ing, Sr., Inspector; Postal Michael R.

O’Hanlon, Special Agent, IRS; Ken Oland, Special Agent, IRS;

neth W. America;

United States of Michael J.

Zens, Special Agent, United States Se Service, Defendants-Appellees,

cret Agents

All Unknown Named Federal Service,

the United States Customs Immigration

now known as U.S. Enforcement,

Customs Internal Reve Barentzen,

ARGUED: Steven Karl D.C., R. Jo- Washington, Appellants. for Sher, States seph Office United Alexandria, Virginia; Laura Attorney, Handman, Davis, & Tre- Wright Rose maine, L.L.P., D.C., Washington, Ap- for Luque, A. Nancy ON BRIEF: pellees. US, L.L.P., Baker, DLA Piper Mitka T. D.C., for Chuck Washington, Appellants. Attorney, Den- Rosenberg, States United Jr., Assistant United Barghaan, nis C. Attorney, Office of the United States Alexandria, Virginia, Attorney, States for Appellees. Brigham J. Bow- the Federal L.L.P., en, Davis, Tremaine, & Wright D.C., Katz. Appellee for Rita Washington, WILLIAMS, Judge, Before Chief KING, Judges. TRAXLER and Circuit part part by Affirmed in and reversed in KING published opinion. Judge wrote Judge in majority opinion, which Judge joined. TRAXLER Chief separate opinion WILLIAMS wrote dissenting part. in concurring part OPINION KING, Judge: Circuit Aysha appeal and Hanaa Unus Plaintiffs them judgment against entered from on con- Virginia in the Eastern District of and common law tort claims stitutional search allegedly from an unlawful arising They home. Virginia of their northern Kane, David agent, assert that a federal individual, Katz, Rita contra- and another IIIT) by conspir- (including vened the Fourth Amendment entities persons misrepresentations make of fact in suspected of supporting international ter- for rorism, order to obtain a search warrant Agent Kane submitted an affidavit (the “Affidavit”) home. The also maintain Unus magistrate agents that other federal violated the First judge support of applications to obtain Amendments and and Fourth committed locations, search multiple warrants for in- multiple carrying common torts in out law cluding a search warrant for the Unus plaintiffs challenge the search.1 The (the “Warrant”).3 residence On March against dismissal of the claims Kane and 2002, magistrate judge issued the War- Katz; the dismissal of their constitutional and, rant on March eleven federal claims the federal who car- agents and three local police officers exe- search; summary ried out the judg- cuted it. The factual recitation made to the ment award United States on the herein predicated primarily is upon the claims; attorney’s tort award Affidavit, allegations as well as made below, Katz. fees to As we re- their initial complaint, filed verse the fee award and affirm the balance (the 23, on March “Initial Com- judgment. plaint”), and a series of amended com- (the plaints 9, filed on November

I. “First Amended Complaint”), August 29, (the “Second Amended Complaint”), A. (the 5, February and “Third Amend- (“Dr. Unus, Iqbal In March Ph.D. ed Complaint”).4 predicate facts are Unus”), employed by the In- was Islamic also discovery derived from proceedings, (the “HIT”), Thought stitute of Islamic including depositions of the plaintiffs and tax-exempt organization in located Hern- agents the federal involved in the search of don, Unus, wife, Virginia. Aysha, Dr. his the Unus residence. In the context of this and their teenage daughters (including two appeal, spelled the facts are in out Hanaa), plaintiff two-story, lived sin- light most favorable to the plaintiffs. residence, gle-family also Herndon.2 All four of members the Unus household were 1. citizens,

United States and none had a criminal record. September After the 2001 terrorist York,

On March an part D.C., of exten- attacks in Washington, New sive federal investigation group Pennsylvania, of a and Treasury Depart- Katz, Agent 1. In addition daughter present during Kane and was not the search agents have identified eleven federal proceedings. is not in these agents (Byron as defendants: four Customs Crandall, Braggs, Jennifer Francisco Gerar- 3. The Affidavit and its related attachments are do, Aarons); Roger four Internal Reve- 54-190, found at J.A. and the Warrant is (Stasia McMahon, nue Service Antonio (Citations found at J.A. 2735-38. herein to Gomez, O’Hanlon, Michael and Kenneth "J.A__” Appendix refer by to the Joint filed Oland); Immigration an and Naturalization parties appeal.) in this (Camille Barnett); Service a Secret (Michael Zens); postal Service and a 37-49, Complaint 4. The Initial is found at J.A. (Elmer Sr.). inspector Mooring, 1038-60, Complaint the First Amended at J.A. Complaint the Second Amended eighteen at J.A. 1583- years 2. Hanaa Unus was old at the underlying and the Third time of the Amended at events and is a co- plaintiff with her mother. The Unuses’ other J.A. 1686-705. according plaintiffs, to the Quest, Green Green “Operation ment established multi-agency theory task force Katz’s that a wide- latched on to Quest,” a federal finan- investigating domestic operating network was assigned spread terrorist international terrorism support cial at 555 Grove building out of an office (“Green Quest Green Quest”). Herndon, Virginia, and her belief Street of individuals group “a investigating began funding of terrorist that “all roads providing material suspected that [were] Id. at 4 ideology in America lead to 555.” terrorists, money laundering, support omitted). (internal Thus, quotation marks through the use of a vari- tax evasion Kane, persuaded Agent Katz a Green os- companies and ety for-profit of related member, Quest to seek search warrants control, most under charities tensible Grove Street and several related loca- 555 Grove located at of which [were] tions, by fed- despite having been advised Herndon, Affidavit 2. Street, Virginia.” proba- eral that there was no prosecutors that a “web of com- Quest suspected Green ble cause to search. The observe controlled these and charities panies Katz to herself in her referred book individuals,” Eastern na- led “Middle beam,” Quest’s “stealthy guiding as Green Virginia,” in Northern living tionals Group investigation and that the Safa ac- to conduct terrorist-related conspiring investigation, baby, pro- [her] [her] “[her] in the Id. at tivities United States. (internal ject.” quotation Id. at 18 marks organizations several of these Although omitted). educational and charitable in claimed to be nature, that Quest suspected Green merely “paper” organizations in fact 2. terrorist network. Id. of an international urging— On March 2002—at Katz’s at 7. to a Agent Kane submitted Affidavit Quest’s plaintiffs allege that Green magistrate judge support of search war- informed the research

investigation was for applications rant several businesses Katz, expert on the self-professed of Rita ninety-nine Through and residences. tracking organizations of terrorist (after fifty-two redac- pages and exhibits detailing experiences her author of a book tions), the Affidavit that the fed- activi- a researcher of terrorism-related investigating government eral had been Anonymous, States. See ties the United individuals, suspect entities and several (2003).5 Although Hunter Katz Terrorist reference,” ease of the Affidavit “[f]or agent, a federal she has has never been companies of and chari- labeled this “web government, the federal consulted with ” Group.’ ... Affidavit 2 ties as the ‘Safa agencies with in- providing several federal omitted). (emphasis The Affidavit further organizations op- formation about Islamic investigation into explained that a federal erating plain- in the States.6 The United that had been started in Group the Safa “espouses a belief tiffs assert that Katz the late-1990s had revealed Muslim, if one is a terrorist that one is multiple a convoluted web of transac- religion,” impart- virtue of and that she corporations tions between related this belief on the federal ed virtually impossi- it 5. charities that made she trained. First Amended brief, acknowledges According plaintiffs, Katz has been appellate Katz 6. In her $272,000 performed for work for paid of Hunter. See over that she is the author Terrorist government. States Appellee Br. of Katz 8. United investigators to ascertain documents for “seven tax-exempt for federal ble related finally left the money where the Safa Group organizations” revealed that ultimately Group of the Safa went. web many organizations had overlapping Indeed, investigation the current has leadership comprised persons suspected of through layers dollars traced of millions (em- of supporting terrorism. Affidavit 43 and to charities in companies of related omitted). phasis Labeling organiza- these point the Isle of Man—from which Charities,” tions as the “Safa the Affidavit trail cannot followed. practically be stated that all seven of them were located omitted). By the (emphasis Id. at 7-8 Herndon, sharing with five same 555 Affidavit, Kane asserted “individuals “Analysis Grove Street Id. of address. Group [were] associated with the Safa us- above supporting returns and available charities and ing the various affiliated documentation,” explained, the Affidavit companies under their control to transfer “disclosed a series of transactions between money through in convoluted transactions that, related companies when examined in organizations network inter-related entirety, a conspiracy” evidences designed prevent United States individuals, among several “known and un- tracking recipients.” from the ultimate Id. known, through to route money hidden omitted). (emphasis at 8 terrorists, paths to defraud the describing terrorist-financing After Furthermore, United States.” Id. at 44. techniques financial-reporting and federal the Affidavit explained pattern that “the laws, and tax the Affidavit listed several grants and made does not allocations dem- suspected being individuals and entities onstrate the Safa are operating Charities terrorism, involved with international ex- exempt for an an purpose,” assertion that plaining their connection to the Safa Kane supported with extensive financial Group. “Although Safa con- Group omitted). data. Id. at (emphasis In- organiza- sists of over 100 interwoven stead, stated, majority vast funds” leav- tions,” “[t]he Agent investiga- Kane “the approximately Charities, maintained, tion has focused on 20 core the Safa. Kane organizations, associated corpo- and their purportedly were transferred to two chari- rate officers and directors.” Affidavit 41 Man, table trusts the Isle of located on omitted). Moreover, (emphasis the Affida- both of which or had officers trustees who specified vit Group. connected to the Safa Id. at corporation IRS tax files and documents 47. Kane stated that these transactions Street, Grove disclose that 555 500 were the true intended to mask nature of Street, Grove and associated addresses financing terrorism. transactions — corporate offices of Herndon are the Pertinent to the Affi- proceedings, these for active and defunct record over 100 davit listed Dr. the director of one Unus as and tax corporations, partnerships ex- (the Safa organizations Group organization Child Devel- empt charitable that are together by common officers and opment Foundation), woven an advisor to two According to the Virginia (the directors. Sterling others Gift Fund Charitable State, Secretary of 40 ac- approximately Sterling Group), Management corporations tive offices to be and billing well as the “administrative con- Street, located at 555 Grove alone. (the tact for more HIT web sites” for two Id. at 43. America). FIQH and North Council of Dr. posi- Affidavit 38. Because of Unus’s particular, Affidavit organizations, Agent- tions in Kane that IRS and additional tax- these Forms 990 fifteen got she within about door. When had access to Safa Dr. Unus believed Furthermore, door, gun she of the front saw records. feet financial Group run”—which She then inched through a “trash a side window. stated that Kane by Katz— door, conducted allege getting was about ten closer to the within at the disposed of trash had recovered of it. feet residence, docu- “[v]arious and Unus confused, Aysha and Unus Frightened found, indicating that Unus ments were [Hanaa],” “screaming for J.A. began at records Group financial] maintains [Safa downstairs, Aysha came re- and as Hanaa (emphasis omit- at 96-97 house.” Id. his residence, to the rear of the Unus treated information, ted). Kane on such Based sliding glass opened door that towards a cause to believe “probable there was swore backyard. joined Hanaa then her violations” law] of [federal that evidence house, and the first floor of the mother on residence found at the Unus would be living room and called they went into Group financial records. form of Safa time, officers broke 911. At this Id. at 98. battering the front door with a through res- Agent ram. Aarons entered the Unus moved his firearm drawn and idence with upon the information submit- Predicated of the house. As Hanaa de- to the rear Affidavit, judge magistrate ted in the it, agents] “You could hear [the scribed is- cause existed and found that whatever, something, the wood or break targeted The Warrant sued the Warrant. in. It they just storming came and categories of documents twenty separate them, gun and one of them had bunch focusing the search things, me, yelling at ... at and he was pointed money laun- residence on evidence of Unus my phone put hands drop me to evasion, support and material dering, tax Aarons then instructed up.” Id. at 5436. of terrorism. floor, on the handcuffed her Hanaa to sit approx- at beginning March On back, in a placed her her hands behind a.m., agents, eleven federal imately 10:30 occurred, living chair in the room. As this County uniformed Fairfax along with three her Aysha handcuffed with Agent Oland Warrant, officers, si- executed the police her, on a placed behind her sofa hands multaneously the execution of other room. The officers then be- living magistrate search warrants issued in accor- gan searching the Unus residence Quest the Green judge in connection with After an initial dance with the Warrant. Agent Oland initiated the investigation.7 house, of the an showed sweep residence, pounding of the on search Unus Aysha. of the Warrant to copy ordering occupants and the front door search, Aysha Hanaa During the and time, plaintiff Aysha At that open it. family handcuffed in the remained (Dr. wife) Unus in the rear of was Unus Unus’s nearly their residence for four room of home, room, living in the and time, per- During agents this (one hours. daugh- of the Hanaa Unus Unuses’ the restroom mitted the women to use ters), in upstairs, asleep her bedroom. Aysha request, they and allowed upon pounding the officers on the Aysha heard diabetes medication. feet, self-administer her door, again front moved few informed the p.m., Around 2:00 women accompanied this time pounding, heard the they obliged perform were commanding open her to officers by a voice here. are not named as defendants County police officers 7. The three uniformed Fairfax prayers port their afternoon and a ritual cleans- of a search warrant to search the their Muslim faith. ing, accordance with Complaint Plaintiffs’ home.” Initial 9. request An acceded to this and re- (cid:127) First, plaintiffs’ Violation handcuffs, them to allowing moved their Fourth, Fifth, and Fourteenth Amend- prayers. Despite being their al- perform (the rights ment “substantive Bivens al- pray, lowed to were not claim”). All defendants violated the outside the of the presence lowed do so plaintiffs’ rights by constitutional mak- they agents, male nor were allowed to ing misrepresentations material of fact head or their wear scarves cover hands support “to the search of Plaintiffs’ agents while the male or present, they home after knew there was being photographed. they After while same,” no cause for as well as prayed, longer the two women were no in unreasonably executing the War- handcuffed, but remained confined to the rant. Complaint Initial 10. living room for the duration of the search. search, At the conclusion of the (cid:127) Conspiracy to plain- tuith the interfere “ computers seized two six boxes of (the claim”). rights civil tiffs’ residence, documents from the Unus leav- All engaged defendants in a conspira- plaintiffs a copy with the of the War- cy, specific “motivated class- inventory rant and a written of the items based, invidiously discriminatory ani- seized.8 deprive mus to equal Plaintiffs of’ pro- tection of the law. Complaint Initial B. 11. 1. (cid:127) Assault and battery. The Unknown 23, 2004, Aysha On March and Hanaa Agents Named Federal Ay- assaulted Unus, Unus, along Dr. filed the Initial sha and Hanaa Unus “when Kane, Katz, Complaint against Agent barged into their guns home with Agents.”9 “Unknown Named Federal yelled their faces and at drop them to Complaint alleged separate The Initial five telephone put up,” their hands claims, all implicated of which the Un- and battered the women unreason- Named Agents, known Federal and three ably handcuffing them for four hours. implicated which both Kane and Katz. Initial 11-12. These claims were as follows: (cid:127) (cid:127) False imprisonment. The Unknown Conspiracy to violate the Named First, Agents falsely Federal im- Fourth, Fifth, and Fourteenth (the prisoned Aysha “by and Hanaa Amendment Unus rights con- “Bivens claim”).10 directly spiracy restraining All them of defendants con- spired “to fabricate evidence in sup- physical liberty adequate without le- defendants, According plaintiffs, to the part, 10. "[m]ost sued Constitution, documents taken from the Unus home were directly pursuant under the to Appellants returned.” Br. of Further 18. Supreme the Court's 1971 decision in Bivens Quest more, investigation the Green did not Agents v. Six Unknown Named Fed. the Fed. of any result in arrests or indictments. Narcotics, 388, 389, Bureau 403 U.S. of (1971) (authoriz- S.Ct. 29 L.Ed.2d 619 Although plaintiff 9. Dr. named Unus was as a money damages against award of individ- Complaint, in the Initial he not ual officers for violations of Fourth subsequent complaints in the and is not a Amendment). party appeal. to this totality “the of the information light of Complaint Initial gal justification.” multiple provided Affidavit] [in 11. types and other of examples layering of sought compen- both Complaint The Initial financial transactions highly suspicious damages from the de- satory punitive and groups and these various among between under fendants, attorney’s fees as well as [,] probable ... affidavit establishes this 1988. U.S.C. particular and did for this search.” cause 13, 2004, Agent Kane and September On Id. at 1150. Federal moved under separately Katz 10, 2005, February On 12(b)(6) for dis- Procedure Rule of Civil its the district court to reconsider moved Complaint. Initial On Octo- of the missal Complaint. of the First Amended dismissal 29, 2004, the district court dismissed ber 11, 2005, court denied recon On March Kane and Katz without against the claims respect Agent with to Kane sideration bench, the court ex- From the prejudice. Katz, the claims granted but such relief on to that the Initial failed plained Named Federal against the Unknown specific allegedly false state- identify “the Kane, No. 1:04-cv- Agents. See Unus v. a de- that are in the affidavit and ments 2005) (the (E.D.Va. Mar. “Recon falsity be ma- why would scription Order”).11 to Kane was entitled sideration finding the ultimate terial to court qualified immunity, explained, J.A. 1032. cause.” alleged misrepresen of the because “none in the Amended tations described Com constitutes a material false state plaint 9, 2004, Aysha Hanaa On November ment, required deny to Kane as would be Complaint, Amended filed the First Unus immunity against the claims qualified from Kane, Katz, naming Agent and “Un- again Furthermore, at 3. the court him.” Id. Agents” Named Federal as defen- known claims denied reconsideration dants, again pleading and once the claims Katz, that, “the explaining because Complaint. in the Initial an ef- made support to affidavit sufficient [was] greater their claims with allege fort to premised and not on material mis search plaintiffs added additional specificity, the Katz, sup representations, defendant who allegations. factual particularized and more Kane for the affidavit plied information to January response On also government employee, but is not a 12(b)(6) by Agent Rule motions filed Kane claims stated in the cannot be liable for the Katz, district court dismissed the The court Complaint.” Amended Id. va all Complaint, First Amended as to defen- however, cated, aspect January of its dants, ruling, In so prejudice. in the dismissing 2005 order claims from the bench that it had Complaint against Amended the Un First affidavit,” by reading the entire “found Agents, granting Named Federal known “by looking specific allega- at the period forty-five days well as complaint,” ... in the amended discovery tions on the execution of conduct residence, in sufficiently alleged” had “not order search Unus identify the Unknown permit that Kane and Katz had made material them Agents properly in the Affidavit. Federal serve misrepresentations of fact Named that, in them.12 J.A. 1161. The court observed observed, also in a foot- is at J.A. The district court

11. The Reconsideration Order found 12. Order, "[a]ny the Reconsideration that note to 1185-89. 3. explained, “although plaintiffs may not have been aware they when filed the [Ini- April On the district court Complaint tial] that their claims were ruled, response by in to a motion filed groundless, they should have been so Katz, provisions of U.S.C. they aware before filed the [First] Amend- § 1988 authorized her to recover attor Complaint.” Thus, ed at Id. 5. court ney’s successfully defending fees for concluded, Katz was entitled to an award conspiracy § Bivens claims of fees connection with her defense First Amended Complaint. See Unus v. the First Amended Complaint. As a re- (E.D.Va. Kane, No. Apr. 1:04-cv-00312 sult, July on the court awarded (the 2005) Order”).13 Although “Fee attor $41,105.70 $36,856.20 the sum of for at- — ney’s fees are not available in a Bivens $4,249.50 torney’s fees and for costs— action, the court observed that are which it calculated as the fees and costs available for the successful defense of a incurred Katz after filing § 1985 claim. In proceedings, these First Amended Complaint.14 ruled, court the Bivens claims and the § “arose from the same nucleus 4. operative Thus, facts.” Id. at 2. August On the plaintiffs filed explained, “Katz against defended their Second Complaint, Amended replac- closely two related constitutional claims designation of “Unknown Named both upon dismissed based Agents” Federal with the identities of the finding same that no constitutional viola eleven federal who had conducted tion occurred.” Id. at 3. Because of the (the the search of the Unus residence “fed- interrelationship claims made defendants”). agent eral See supra note 1. Katz, against the court concluded that Naming the only, defendants § 1988 attorney’s authorized an fee award the Second Amended alleged spent to her for the time defending the five causes of action: claims, § conspiracy Bivens (cid:127) Violation plaintiffs’ First and alleged in the First Complaint. Amended rights Fourth Amendment (respective-

The district court then assessed whether ly, the “First Amendment Bivens sub- such an appropriate award was under the claim” and the “Fourth Amendment circumstances. “To a merit fee award un subclaim”). Bivens The federal 1988,” observed, der the court “a pre defendants violated the First vailing defendant must demonstrate that rights by Amendment preventing the ‘frivolous, against the claims her were un freely from exercising their reasonable or groundless’ or that ‘the religion by allowing not them to wear litigate continued to after [the their headscarves being photo- while ” clearly became so.’ Fee claims] Order 3 graphed, allowing not them to Staton, (quoting Hutchinson v. 994 F.2d pray presence outside the of the male (4th Cir.1993)). 1076, 1080 Here, the court agents. The federal agent defendants costs, Complaint may requesting Second Amended not include an award of Katz re- Katz, lied on Federal Rule of Civil Procedure claims defendants Kane and 54(d)(1), provides, pertinent part, which against whom this action is dismissed attorney’s "costs —other than fees— prejudice.” Reconsideration Order 5 n. 5. prevailing party.” should be allowed to the appeal, challenge In this do not 13. The Fee Order is at found J.A. 1422-27. the award of costs to Katz. 9, 2005, the United States On December Fourth plaintiffs’ the contravened party as a defendant by using “unconsti- substituted itself rights Amendment the Complaint force in effectu- Amended excessive the Second and tutional —in Second Amended defen- search.” and of the federal ating place the stead assault-and-battery and 17. Complaint dants —for the claims, pursuant to the imprisonment (cid:127) false battery. The and Assault Act, 28 Federal Tort Claims U.S.C. assaulted and bat- agent defendants (the “FTCA”).15 2679(d)(1) § The United “de- they when plaintiffs the tered to dismiss each of those home en States then moved plaintiffs’ upon scended drawn, claims, ju- the court lacked asserting failed to guns their masse with warrant, them because the themselves or show risdiction over identify door, plaintiffs’ front the administrative claims the had failed to file broke down and premises the the forcibly entered mandated under FTCA.16 Plaintiffs.” Second handcuffed 3, 2006, February the district On 20. Complaint Amended States to granted the motion United (cid:127) The federal imprisonment. False assault-and-battery and false dismiss the plain- restrained the agent defendants prejudice, au claims without imprisonment justification when legal tiffs “without sixty thorizing period the plaintiffs, and held they handcuffed appropriate administrative days to file the family in their room them handcuffed stayed also the First claims. The court for over allowing them to leave without period subclaim for a Amendment Bivens plain- four hours while searched months, the outcome of eight pending Second Amended Com- tiffs’ home.” The court then claims. the administrative 19. plaint prejudice the Fourth dismissed with (cid:127) abetting. and The federal Aiding sub-claim, along with Amendment Bivens of, sub- agent defendants each “knew conspiracy aiding-and-abetting and and abet- stantially assisted and aided . the federal claims It ruled that Agents other Federal ted each of the im qualified entitled to defendants were plaintiffs’ constitutional violating” the Bivens munity on Fourth Amendment assaulting, battering, rights, as well sub-claim, legal there was no and that falsely plaintiffs. imprisoning upon aiding-and- which either the basis Complaint 21. Second Amended conspiracy abetting claim or (cid:127) agent defen- The federal Conspiracy. proceed. could agreement an dants each “entered into other to vio- conspired with each 5. constitutional late” filed assault, batter, February On rights, as well as Third Complaint, replead- Amended falsely plaintiffs. imprison the First Amendment Bivens subclaim 21. Second Amended that, a federal court to exercise "[u]pon certifi- In order for 15. The FTCA mandates Attorney jurisdiction General that the de- the Unit- cation over a tort claim States, employee the United [of States] fendant requires that the claim be ed the FTCA acting scope office or em- within the of his presented appropriate Feder- "first ... out of ployment at the time of incident “finally agency” that it be denied” al arose, ... the United States which the claim 2675(a). agency. § 28 U.S.C. party defendant.” shall be substituted as 2679(d)(1). 28 U.S.C. defendants, against agent along the federal order for briefing, additional the court dis- assault-and-battery with the and false im- missed the First Amendment Bivens sub- claims, as well a prisonment new tres- claim against agent the federal defendants claim, pass the United States.17 as moot. 12, 2007, On March the federal de- Their having various claims been either responded fendants and States the United or subject dismissed to adverse summary Third Amended Complaint with mo- awards, judgment judgment and final hav- pursuant tions to dismiss filed to Rule been entered the district court on 12(b)(6). 2, 2007, November timely 11, 2007, By May order of the district appeal. noted this possess jurisdiction We prejudice court dismissed with the First pursuant to 28 U.S.C. 1291.

Amendment subclaim against Bivens defendants, ruling that this II. subclaim was barred the applicable An summary judgment award of is re- limitations, statute of in that the Second Co., viewed de novo. See Phosphate PCS Amended did not relate back to 212, Inc. v. Corp., S. 559 F.3d filing Complaint. of the Initial Norfolk Cir.2009). (4th Summary judgment denied, however, ap- is court the motion of the propriate only where there is no genuine United States dismiss the assault-and- fact, issue of material battery, imprisonment, moving par- false and trespass ty judgment is entitled to claims. as a matter of 56(c). See law. Fed.R.Civ.P. In disposing September On a summary judgment request, a district requested that the court reconsider its dis court must view the light evidence missal of the First Amendment Bivens most favorable to the non-moving party. subclaim, in light of our decision in Good Voorhaar, Rossignol 516, See 316 F.3d (4th Praxair, man v. 494 F.3d 458 Cir. (4th Cir.2003). (en 2007) banc) (addressing doctrine of “relation concerning pleadings), back” We also de a review novo district court’s July which had been rendered on 2007. dismissal of a claim under Federal Rule of In response, the court ordered additional 12(b)(6),examining Civil Procedure wheth briefing on the relation-back issue. er the pleadings adequately have facts, which, true, stated if proven to be

Finally, on November the dis- would entitle them to relief. See Duck trict granted summary judgment worth v. State Admin. Bd. Election the United States on the assault-and-bat- (4th Laws, Cir.2003). 332 F.3d tery, imprisonment, trespass false 12(b)(6) To survive a Rule motion to claims. The court there dis miss, allege enough must genuine was no issue of material fact facts “ ‘to regard right to those raise to relief above the specu claims—the acted reasonably provide under lative level’ and must ‘enough the circumstances facts known conduct, plausible to them at the time of their state claim to relief that is ” summary judgment appro- was therefore on its face.’ Robinson v. Am. Honda Then, (4th priate. Co., Inc., notwithstanding its earlier Motor 551 F.3d claim, trespass entry 17. The first made Third constituted "an unauthorized onto Complaint, alleged Amended that the federal property.” Plaintiffs’ Third Amended Com- agent defendants’ decision to break down the plaint 19. plaintiffs' front door and enter their residence Cir.2009) summary judgment favor of the United Corp. Bell Atl. Twom (quoting 1955, 544, 570, 167 assault-and-battery 127 S.Ct. on the and false bly, 550 U.S. States (2007)). Additionally, a dis L.Ed.2d 929 respect, In that imprisonment claims. qualified immuni dismissal on trict court’s from the bench that the explained court Tru de novo. See ty grounds is reviewed agent defendants had acted “reaso (4th Freeh, 275 F.3d 399 Cir. lock nabl[ly] under the circumstances known to 2001). they the officers at the time took their plaintiffs J.A. 5720. The contend action.” de novo a district

We review by failing properly that the court erred attorney’s that an fee court’s conclusion the facts and draw all inferences in view may be made. See appropriately award s favor, in obliged their a it was to do Co., & Bass v. E.I. DuPont de Nemours considering summary judgment motion. (4th Cir.2003). The F.3d 766 particular, they assert that the court fees, to award such howev court’s decision er, failed to consider statements certain of for abuse of discretion. is reviewed Runyon, 145 F.3d agent indicating See Brodziak the federal defendants (4th Cir.1998). that, search, they at the time of the subjectively concerned not about the Unus

III. being residence connected to terrorism- plaintiffs present separate The five con- activity, they and that related did not an First, appeal. of error on tentions ticipate might that the residence house maintain that the district court erred in See, weapons dangerous persons. e.g., or entering summary judgment in favor of 2927-29, 3190-92, 4315-16, 4348-50, J.A. the United States on the assault-and-bat- 4593-94, Thus, plaintiffs 4809-10. tery imprisonment and false claims. Sec- maintain, agent the federal defendants’ use ond, plaintiffs challenge the court’s executing of force in the Warrant was of the First and Fourth Amend- dismissal unreasonable, summary judgment and against ment Bivens subclaims the federal below, inappropriate. As we Third, agent defendants. disagree with this contention and thus af improperly maintain that the court con- summary firm judgment award on the Agent qual- cluded that Kane is entitled assault-and-battery and false imprison immunity ified on the substantive Bivens ment claims. Fourth, against him. properly summary judg- To review erroneously the court dis- assert assault-and-battery ment on award § conspiracy missed the Bivens claims, imprisonment false we must first finally, they Katz. against claims And con- identify legal principles governing awarding tend that the court erred in at- adjudication. previously As ex- torney’s fees to Katz. We assess each of plained, on December the United these contentions turn.18 for States substituted itself the federal A. proper defendants as the defendant tort Upon on the common law claims. We first address the assertion substitution, erroneously entered the common tort claims the district law appeal, challenge conspiracy against 18. On do not Bivens 1985 claims Kane; disposition trespass, Agent the district court’s the dismissal of the substantive Katz; aiding-and-abetting, against conspiracy claims Bivens claim or the award of States; against the United the dismissal of the costs to Katz. of its judged be- terms reasonableness with the federal defendants against meaning States.19 in the fourth amendment claims the United came for a Constitution provide does not itself the United States and Article FTCA Rather, I, § Constitution of Virginia.” cause of action. 10 of the substantive Commonwealth, claims, the sub- assessing apply Va.App. FTCA we Lewis v. (1997) (internal alleged 493 S.E.2d quota law of the state where stantive omitted). case, place: in the law of the tion A determination of took this marks tort of requires balancing 28 U.S.C. reasonableness the Virginia. of See Commonwealth States, 1346(b); quality 259 “the of the on Medina v. United nature and intrusion (4th Cir.2001). 220, 223 the Fourth inter F.3d individual’s Amendment countervailing governmen ests the Having controlling identified the Young tal at stake.” interests v. Prince law, defini body Virginia’s of we look to Md., George’s County, 751, 355 757 F.3d assault, impris battery, of and false tions (4th Cir.2004) (internal quotation marks Virginia, imprisonment In a false onment. omitted). Importantly, an officer’s con “ person of by direct restraint one is ‘the objective assessed for duct must be reason liberty of another ade physical the without ableness; subjective his motivations have ” legal justification.’ Figg Schroe quate inquiry. no our bearing on See id. at 758- Cir.2002) (4th 625, der, (quot F.3d 637 312 reasonableness,” 59. This “calculus of we Shands, 492, 255 Va. 500 ing Jordan carefully explained, embody have “must (1998)). 215, defines a Virginia 218 S.E.2d for the fact that police allowances officers battery touching “an which is as unwanted split-second are often forced to make judg to, excused, justi nor consented neither tense, ments—in circumstances that are fied,” and an assault as “an act intended to rapidly uncertain the evolving —about either harmful or contact cause offensive necessary amount of force that is in a person apprehension another or of with particular Shiflett, situation.” Park v. 250 contact, and that in that other such creates (4th Cir.2001). 843, F.3d in Finally, 853 person’s apprehension mind a reasonable applying principles, these the reasonable battery.” imminent v. Gar of an Koffman ness of an officer’s actions in connection (2003). nett, 258, 265 Va. 574 S.E.2d 261 of a with the execution search warrant justification being for the act com legal A in light must be assessed circum battery of an or plained will defeat assault existed at the id. stances that time. See Virginia See id. rec Importantly, claim. legally jus police are ognizes officers in to execute using tified reasonable force our begin analysis We with the assault See, lawful v. Eu e.g., duties. Pike claim, mindful that rec- being Virginia has (1956). bank, Va. 90 S.E.2d ognized safety that “the of the officer Thus, judgment in assessing summary the conducting his para- when duties is of award, the we must assess whether federal importance.” mount Harris v. Common- reasonably under agent defendants acted wealth, 241 Va. 400 S.E.2d Virginia law. omitted). (1991) (internal quotation marks claim, In In Virginia, police officer’s this assert that “[a] executing a warrant is federal defendants assaulted them conduct search challenge propri- on the FTCA do not the defendant claims. 19. The ety the substitution of the United States as open a refusal to by entry permit into Unus residence the door as forcing ram, Warrant, entry accordance with the battering pointing also during entry justified entry in forcing at them initial were thus firearms Dyer, into the into residence. Mensh v. the residence. Cf. (4th Cir.1992) F.2d (recognizing First, entry the forced entry justified forced after officers defendants into the Unus feet”). running heard “the sound reasonable did not con residence was Second, Virginia, pointing firearms “[p]rior an assault. stitute entry at the into dwelling, upon the Unus forcing entry police into must: (1) (2) residence under knock; was reasonable the cir identify police themselves (3) the failure of Upon cumstances. the occu officers; indicate reason for them (4) pants to the officers to permit enter presence; period and wait reasonable Warrant, accordance with officers occupants time for answer enter, forcibly were entitled to they where Lewis, (internal S.E.2d at door.” 399 omitted). immediately persons encountered two un quotation marks We have ex them, known to one of whom was on a plained elapse that “the time which must circumstance, telephone. In that offi the knocking after and announcing offi [the cers reasonably entitled to believe identity purpose and breaking before cer’s] that the drawing weapons of was neces the entering exigencies varies with sary in gain order to control of a fluid Ward, each States v. case.” United safety situation and ensure the in all (4th Cir.1999) (internal 188, F.3d 193-94 Summers, volved. Michigan See omitted). quotation In executing marks 692, 702-03, U.S. 101 S.Ct. Warrant, the Oland Agent acknowledged (1981) (“The L.Ed.2d risk of harm to door, on the “pounded” he identified police occupants both the is mini “police,” himself as the announced that he mized if routinely the officers un exercise warrant, had and ordered occupants the situation.”). questioned command of the the “open the residence to door.” J.A. Indeed, the record reflects that the federal Aysha 2944-45.20 Oland saw Unus agent weapons their only defendants drew the next to through window the front door long enough to ensure their safety and and, repeating his open after command to control of situation —once door, her he watched run “down the complied directives, agents’ with the hallway to the back of the at house.” Id. weapons were holstered. period though 2948. This less time— constituted, sure, than a in cir these To be agent the federal defen- minute — cumstances, a reasonable entry wait dants’ forced into the Unus resi- agents.21 assessing reasonableness, In harrowing we dence must have been a experi- see agent the federal as enti ence for plaintiffs. agent defendants The federal however, tled failure of entitled, to consider the defendants were to ex- Agent period Agent 20. In addition to Oland's verbal an- 21. The time between Oland’s entry initial identifying knock and the forced into the nouncement himself and the other Aysha authorities, Unus was sufficient for residence Unus agents as the visual indicators couch, get up place her from the breakfast The identified them as such. table, slowly on bowl walk toward the necks, badges wore defendants around their door, residence, front run to the rear of the County police Fairfax and the three officers (who daughter call out Hanaa to her were in uniform. asleep upstairs), for Hanaa and then to come mother, downstairs, join her and call 911. entering ercise lawful force in Unus use of “[t]he handcuffs is residence, they reasonably force,” thus acted the use of employment and that the drawing pointing weapons. of “such force objectively must be reason- We thus affirm the district court’s sum- able under the circumstances.” Id. at mary judgment award on the assault claim 125 (Kennedy, S.Ct. 1465 J. concurring) in favor of the United States. Connor, (citing Graham 490 U.S. (1989)).22

109 S.Ct. 104 L.Ed.2d 443 Mena, the Court reviewed the rea- We next assess the false im- sonableness of the two to three hour de- claims, prisonment battery which tention of a woman handcuffs in her proceed contend should be allowed to garage along occupants with three other — court. district contend police of her house—while officers con- that the federal defendants battered ducted warranted search of the house for by handcuffing upon entry them them into weapons and a wanted gang member. See residence, and that Unus 544 U.S. at 125 S.Ct. 1465. Examining falsely imprisoned by detaining them them the circumstances surrounding assert- living in handcuffs in the room for several edly detention, unlawful the Court conclud- hours while the Warrant was executed. ed that the officers’ use of handcuffs for consistently recog It has been the duration reasonable, of the search was nized that the Fourth protects Amendment governmental “because the interests out- right citizen’s to be free from unreason weighted] the marginal intrusion.” Id. at Cordero, able seizures. See Valladares 99, Indeed, 125 S.Ct. 1465. Chief Justice (4th Cir.2009). 384, 552 F.3d 388 In Mich Rehnquist carefully explained that the Summers, however, igan v. the Supreme length of a detention in handcuffs —even explained Court that “a warrant to search though lengthy somewhat be bal- —must for contraband founded on cause government’s anced “the continu- implicitly carries with it the limited au ing safety 100, interest.” Id. at 125 S.Ct. thority to detain the occupants of the 1465. The fact that the officers were premises a proper while search is conduct searching a “gang dangerous house for 705, ed.” 452 at U.S. S.Ct. 2587. weapons” justified detention, such a even Moreover, Mena, in Muehler v. the Court though the was not herself a tar- observed that in “[finherent Summers’ au get of the search. Id. occupant thorization to detain an

place authority case, to be searched is the to use In this the viewing facts sur rounding reasonable force to effectuate the deten the imprisonment false claim in 93, 98-99, 1465, tion.” 544 light U.S. plaintiffs, S.Ct. most favorable to the (2005). concurring 161 L.Ed.2d 299 In his plaintiffs were unquestionably Mena, opinion “seized,” Kennedy they Justice further as were confined to their distinguish applies equally 22. The agents seek to the Sum- to situations where are mers and Mena decisions from this case on seeking evidence of federal crimes. See Unit- ground that the detentions in those cases Serv., Inc., Photogrammetric ed States v. Data permissible operative were because 229, (4th Cir.2001) (recognizing 259 F.3d search warrants commanded a search for occupants reasonableness of detention of dur- contraband, whereas the Warrant focused records), abrogated search for on other solely on financial We documents. see this as grounds by Washington, 541 U.S. Crawford difference, however, a distinction without a (2004). 124 S.Ct. 158 L.Ed.2d 177 underlying the rationale Summers and Mena weapons per not either or (mostly only for hours room for several living —and have had handcuffs) sons—a reasonable officer would being residence was while safety concerns under these cir legitimate not, however, Their seizure searched. agents executing cumstances. were defen- The federal unreasonable. of several ddly issued search warrant —one facially valid executing a dants being executed that related warrants residence, the Unus for search warrant day a residence believed to contain unfortunately for and the —at were— money laundering by entities evidence the residence at the occupants of them — assisting international terro suspected the Summers Under time of the search. . objectively, agents did rism Viewed for the feder- it was reasonable precedent, not know whether would be confront to detain the defendants al And, upon entry ed resistance. into the Mena, 544 at See U.S. during the search. residence, encountered Unus (“Mena’s detention for 125 S.Ct. 1465 McMahon, Agent hectic conditions. was reasonable the duration of the search leader, that, upon team stated en search existed because warrant under Summers residence, there was “excite tering occupant....”). an ... and she was voices, plaintiffs’ ment” Notwithstanding the reasonableness “clearly plaintiffs were concerned and wor search, during the detention J.A. 4687. She agitated.” ried and however, remains an issue of wheth- there “possibility that there was a specifi- manner of their er the detention — take some action that plaintiffs] would [the unreasonable. cally, handcuffing —was an would make unstable situation and Mena, at 544 U.S. S.Ct. See agents] something would have to do [the handcuffs consti- (explaining applying at 4689. There get again.” control Id. intrusion”). In order for a “separate tutes fore, initially handcuffing plaintiffs was reasonable, handcuffing such as this to be order pre a reasonable decision—in to in- governmental being “the interests” safety occupant serve officer and and to mar- ,“outweigh[ed] must have voked execute the properly Warrant —and plaintiffs. on the Id. at ginal intrusion” agents’ conduct was thus reasonable.23 99-100, A 125 S.Ct. 1465. determination Furthermore, it not unreasonable was permissible during time which an keep agent for the federal defendants to premises may be occupant a searched for plaintiffs detained handcuffs requires detained in handcuffs the authori- nearly Agent four hours. McMahon stat- objectively balance the interests of ties to plaintiffs placed ed that the in hand- were safety orderly execution of a warrant executing a agents cuffs because the were against occupants’ interests not be- and because “terrorism-related warrant” in handcuffs. ing restrained way had “acted a certain at plaintiffs agent defen- simply, Put the federal entry.” J.A. 4694. McMahon the time of initially that, handcuff the explained “things dants’ decision further after had bit,” upon entry into the Unus resi- a the hand- calmed down she moved Although they was reasonable. cuffs from the back to the front of the dence to make them more comfortable. searching for financial documents exists, occupant to [a] fact that the Warrant connection of an ‘[t]he 23. We observe that the 'justifies of that occu- plaintiffs personally is of home' alone a detention did not concern the " explained pant.' U.S. at n. 125 S.Ct. 1465 import. no Mena that “when a 703-04, Summers, magistrate police (quoting 452 U.S. at neutral has determined that 2587). believe contraband S.Ct. have cause to Id. however, at 4702. At that point, By May order of the district “simply McMahon she agents court ruled that the were entitled ... going wasn’t comfortable from cuffed qualified immunity on the Fourth not cuffed.” Id. at 4704. The totally Bivens claim. Then, Amendment on No- agents reassessed the situation as the vember the court entered sum- however, progressed, entirely search re- mary judgment on the FTCA claims and moving the handcuffs after the women per- dismissed the First Amendment Bivens prayers. subclaim, formed afternoon “It was a ruling that it was moot. As progression just general sense of explained below, judgment because has warrant,” progressing we’re with the been entered on the FTCA claims in favor Id. at 4727. explained. McMahon States, “[I]t of the United the Bivens subclaims just moment,” different McMahon against the federal defendants are recalled, I “and made a different decision statutorily barred, and affirm we the dis- Id. remove the . [to handcuffs].” missals of these claims. It is thus clear that the federal In pursuing an intentional tort claim reasonably defendants assessed the cir- against a federal officer, law enforcement presented, balancing

cumstances the law prospective plaintiff may pursue two alter- safety enforcement interest of both the —of native avenues of relief. may She either the “mar- —with pursue a constitutional ginal imposed plaintiffs. intrusion” on the directly Constitution, officer under the Mena, See 544 U.S. at S.Ct. Bivens, recognized in or may she file a tort such, genuine As there nois issue of mate- claim under the FTCA. Should a fact, rial and the district correctly pursue course, the latter she runs the risk summary judgment awarded to the United that her constitutional claim will be subject States. to the “judgment FTCA’s provision, bar” specifies which B. judgment in an [t]he action under [the turn plaintiffs’ challenge We now to the shall complete FTCA] constitute a bar to the district court’s dismissal the First any claimant, action reason and Fourth Amendment Bivens subclaims matter, of the same subject against the against the agent federal defendants. In employee government of the whose act First Amendment Bivens the subclaim, the or omission gave rise to the claim. plaintiffs agents contend that the violated § 28 U.S.C. 2676. rights freely their religion exercise their (1) by preventing them wearing from We have not heretofore assessed the headscarves covering their hands in scope and ambit of the judgment FTCA (2) front of the agents, photographing male bar provision. plaintiffs contend that them allowing without them to their wear its reach is limited to those situations (3) headscarves, preventing them from a alleged where has the same a Bivens claim in performing prayers their and ritual cleans- wrong separate as a presence such, outside the of the male FTCA claim. As the main- agents. By the Fourth Amendment Bi- tain that the judgment district court’s vens subclaim, the against assert that the them on the FTCA claims does not seized them without cause foreclose their First and Fourth Amend- the execu- ment Bivens they'were during sub-claims, when detained because those tion of the Warrant. predicated subclaims are on different con- Such action, i.e., certain individual claims. the injuries from allege distinct

duct and with the reading would be inconsistent a claims. FTCA text of the statute. assertions Contrary plaintiffs’ to the 2676, §of our scope the respect to tough face Litigants frequently consistently viewed the circuits have sister rarely come without choices—choices provision preclud- as bar judgment FTCA proceedings, In consequence. these government a against claim ing a Bivens claims pursue chose to en- has been judgment employee when agent federal defendants against “arising out of tered on a FTCA as well as under through Bivens transactions, actions, or occurrences” same such, they having judg As risked FTCA. Trentadue claim. Estate the Bivens of to bar operate the FTCA claims ment on States, 397 F.3d Aguilar ex rel. United above, explained theories. As their Bivens (10th Cir.2005); Manning see also properly awarded sum the district (7th States, 546 F.3d v. United on mary judgment to the United States Cir.2008) judgment on (recognizing out claims. Those claims arose the FTCA claim raised in Bivens claim bars FTCA the First subject the “same matter” as of States, 422 suit); Harris v. United same Amendment Bivens sub- and Fourth Cir.2005) (6th (same); F.3d 333-35 of the claims—the execution Warrant — (9th Woods, F.2d Arevalo government whose “employee Cir.1987) (same). claim,” i.e., gave rise to the act or omission such, agent defendants. As the federal sup- § Indeed, plainly the text summary judgment award on the court’s judgment ports interpretation this triggers judgment claims the FTCA § 2676 to have In order for scope. bar’s § plaintiffs’ bar provision all of the claims effect, encompass it must Fourth Amendment Bivens sub- First and regard brought with that could have been defen against claims against respon- to the conduct at issue dants are thus barred. government.” “employee sible decision, the Manning its recent Seventh observe, however, that the FTCA’s We plain language that the Circuit only to “an judgment provision applies bar Congress intended §of 2676 reveals employee of the against action ... against judgment operate for the bar to gave omission whose act or government for the brought against claims a defendant § 2676. The to the claim.” 28 U.S.C. rise “action,” as that underlying conduct relief for sought FTCA claims F.3d at used in 2676. See 546 term is torts the federal de- intentional “action,” observed, the court 433. The term only; pursued were not fendants suit, all elements of civil “incorporates judg- Agent Kane or Katz. The Id. claims within that suit.” including the claims preclude bar thus does not ment (8th Dictionary 31 (citing Black’s Law Katz, must ad- against Kane and and we ed.2004)). Thus, “[b]y acting as a bar to separately. claims dress those action, § any 2676 bars the claims within at 434. Because a claim that action.” Id. C. action, an all related part is a lesser 1. the ambit of claims must come within plaintiffs’ conten- contrast, We next address § In under the 2676. improperly the district court “any bar ac- tion that interpretation, 2676 would qual- to Agent Kane is entitled tion,” pieces bar of that ruled but would not

123 immunity on the substantive Bivens have ified denied Kane’s search warrant appli- cation. Id. him. against support of this claim, plaintiffs assert that Kane con- On the second misrepresentation, such Fourth Amendment travened the mis- assert that Agent Kane mis- representing material facts the Affida- represented magistrate to the judge that specifically, they pursue More on vit. Safa Group money entities transferred in- appeal their theories that Kane made Affidavit, two ternationally. they contend, The First, misrepresentations. such “identifies two distinct categories of sus- (1) pected providing crimes: material falsely sup- that Kane “con- assert port foreign terrorist organizations and Group,’ cocted the term ‘Safa and defined ‘layering’ i.e., up, transactions cover this it to over one comprise hundred ‘related’ engaging in international transfers of mon- individuals, including Dr. Br. of Unus.” ey promote offenses foreign na- Second, Appellants they contend that (2) tions, and conspiracy to defraud the misrepresented Kane Group Safa or- IRS.” of Appellants Br. 32. The plaintiffs ganizations money had transferred inter- that, maintain an actual interna- absent nationally in order to mask the ultimate tional money, transfer of the Affidavit fails particular destination of funds. probable to show cause to believe that any alleged misrepresentation, On the first persons or entities identified therein contend that Agent Kane’s had violated federal law. Group use of the Safa label was “critical” Law enforcement officers are to his assertion that evidence of criminal plead qualified entitled to immunity as an activity could be found at each location for affirmative defense in seeking lawsuits (in- sought which a search warrant was money damages from Henry them. See residence). Thus, cluding the Unus Purnell, (4th 501 F.3d 376-77 Cir. maintain, Group the existence of a Safa 2007). qualified immunity defense link only was the the suspect between “shields an officer from suit when she entities, individuals and permitting Kane that, makes a decision even if constitution necessity showing to avoid the individu- deficient, ally reasonably misapprehends probable alized cause for each location to governing the law the circumstances she Appellants be searched. See Br. of 33-34. confronted.” Brosseau Haugen, According plaintiffs, to the because Dr. 194, 198, U.S. 125 S.Ct. 160 L.Ed.2d suspected committing any Unus was not (2004). An protected officer is crimes, only basis for probable cause qualified immunity unless he is shown to search the Unus residence was Dr. (1) (2) clearly have violated established law Unus’s connection to the Safa Group. The that a reasonable officer should have that, plaintiffs assert had Kane not “con- known. See v. Fitzgerald, Harlow label, Group cocted” the Safa magis- U.S. S.Ct. L.Ed.2d trate judge would have concluded that (1982); Callahan, see also Pearson v. — Affidavit failed to show U.S.-, cause to 129 S.Ct. 172 L.Ed.2d residence, (2009).24 search the Unus and she would 565 employed by Supreme 24. Under sufficiently alleged the test had that the officer violat- Katz, in required plaintiff’s rights. Court Saucier v. courts were ed the constitutional See id. qualified immunity Only question to assess a defense in if the answer to that first was two-step sequence. “yes” See 533 U.S. could the court then assess whether the (2001). right 121 clearly right S.Ct. 150 L.Ed.2d 272 violated was a established First, a court had to the determine if of which a reasonable officer should have 124 analy- violation. Id. at 627-28. immunity constitutional qualified our begin

We only misrepresenta- If—and if—there is a plaintiffs the suf- by assessing whether sis Agent tion, analysis Kane violated then focuses on material- ficiently alleged that Franks, Accepting the See rights. ity misrepresentation. of that their constitutional Miller, 2674; we assess wheth- at allegations, truth of their 438 U.S. S.Ct. sufficiently alleged have er the F.3d at 629. See that Kane violated Constitution. issue, the district addressing In this Marshall Ridpath Bd. Governors of that the from the bench (4th Cir.2006). Univ., F.3d provide “enough plaintiffs had failed to allege Kane contravened suggest Agent that Kane information rights in two Amendment them Fourth recklessly attempted intentionally or Group” label and

ways: by using the “Safa in this magistrate judge filing mislead the Group organizations that Safa by alleging J.A. 1151. The court deter- affidavit.” money outside the United had transferred and that proper mined that “the affidavit is States. affidavit obtaining conduct [Kane’s] Delaware, Supreme In Franks that proper,” concluding thus Kane was an contra- recognized that officer Court immu- “absolutely qualified entitled to he the Fourth Amendment when venes nity.” Id. through the use a search warrant

procures statements, whereby magistrate of false probable otherwise found would not have Affi carefully assessing After 154, 155-56, 98 cause. See 438 U.S. S.Ct. light plaintiffs’ allegations, davit in of the (1978). We have 57 L.Ed.2d 667 agree analysis we with the court’s step assessing initial explained that the that the have failed to conclude determining whether the a Franks is show that Kane violated the Fourth affiant made a false statement “deliberate- “Safa By using Amendment. the term disregard for the ly” or with “reckless only make Group,” Agent not did Kane not George’s County, truth.” Miller v. Prince made no misrepresentation, a factual he Cir.2007). (4th Md., We 475 F.3d representation simply at all. He factual recognized in Miller that applied a label order shorthand [rjeckless can disregard be established persons of the and entities identification that an officer acted with a evidence page the second being investigated. On high degree of awareness of state- [a stated, Affidavit, Kane “For ease of falsity, is, when ment’s] reference, compa to the web I will refer evidence, the affiant must viewing all ... and charities as the ‘Safa nies ” have entertained serious doubts as to omitted). (emphasis Group.’ Affidavit truth of his statements or had obvi- Then, summary,” Kane in his “executive accuracy to doubt the of the ous reasons stated, purpose “For the of this affi again reported. he information davit, group this of individuals omitted). (internal be re quotation organizations operate marks will Id. ” Group.’ Id. at 6-7 allegations “negligence Mere or inno- ferred to as the ‘Safa omitted). mistake,” however, Kane thus made it (emphasis cent do not amount to Pearson, prongs qualified im- id. the Court held which of the two known. See mandatory. munity analysis be first in sequence longer should addressed this is no Rather, light particular may circumstances of See 129 S.Ct. at 818. courts deciding hand.” Id. discretion in case at "exercise sound magistrate judge clear to the that “Safa $200,000 transfers of at least by Safa label, a mere not an Group” attempt Group entities in the United States to Can- probable ada, to short circuit the require- cause plaintiffs’ counsel acknowl- ment; any Kane could used have term to edged that funds did fact end up on the identify persons organizations, these Isle of Man. See J.A. 1144-45 (explaining simply and he chose to use the Group Safa that Safa Group entity gifted funds to Contrary plaintiffs’ allega- Man). label. to the trust on Isle of tions, out, Kane carefully spelled specif- requires Probable cause an affiant detail, ic organizations the individuals and “ probability show ‘a fair that contra suspected of having regarding information band or evidence of a crime will be found crimes, underlying federal and how ” in a particular place.’ United States v. searching specific locations could lead to Grubbs, 547 U.S. 126 S.Ct. discovering evidence of federal law viola- (2006) 164 L.Ed.2d 195 (quoting Illinois v. identify tions. The thus fail to Gates, 213, 238, 103 462 U.S. S.Ct. how Kane’s use of the Group Safa label (1983)). L.Ed.2d 527 That some contradic rose to the level of the unconstitutional tory may available, evidence have been or by conduct contemplated Franks and Mil- may light have come to after Kane submit ler. ted his Affidavit to the magistrate judge, does not defeat the probable existence of

Likewise, plaintiffs’ assertion cause.25 Simply put, the plaintiffs fail to that Agent misrepresented Kane re facts sufficiently allege deliberately garding money international transfers that.Kane — or with disregard reckless for the truth— suspect organizations also merit. lacks any made material misrepresentations of allegation essence of this that Kane .is fact in Constitution, violation of the and we stated in the Affidavit that certain of the therefore affirm ruling of the district suspect persons and organizations had that Kane is entitled to qualified overseas, money transferred when bank immunity on the substantive claim. Bivens records show that no such oc transfers Affidavit, curred. In the primarily Kane D. (1) relied on two sets of documents: IRS Forms 990 submitted Safa Group enti We plaintiffs’ next assess the contention showing ties that there had been financial that the district court erred in dismissing Man; transfers entities on the Isle of conspiracy Bivens 1985 claims (2) statements made during claims, an IRS Katz.26In dismissing those Group entity. audit of a Safa explained that, Further the court I “because ha- more, Kane identified other financial ven’t anything found wrong with the affi- ” Grubbs, 25. We further observe that the con- in’ the Unus residence. 547 U.S. at probable Gates, tention that there was no cause (quoting 126 S.Ct. 1494 462 U.S. at search the Unus residence because Dr. Unus 2317). 103 S.Ct. suspected any misappre- was not crime probable By hends the standard of cause. apparently recognized 26. We have never a Affidavit, Agent sought Kane a search warrant conspiracy claim” as a substantive “Bivens investigate involving financial transactions cause of action. Because the have group organizations individuals sus- failed genuine to establish that there ais issue pected violating federal law. Kane did not claim, regard of material fact with to this have to show cause that Dr. Unus however, we need not address whether such crime, just had committed cognizable. " cause of action is probability 'there a fair [was] contra- band or evidence of a crime be found [would] 126 E. Ms. absolutely cut off

davit, that would J.A. the search.” liability as to Katz’s plaintiffs’ the Finally, we must address above, agree we with explained 1151. As of district court’s award challenge to the have plaintiffs that the the district Recognizing that attorney’s fees to Katz. identify any factual sufficiently failed to § not authorize an 1988 does 42 U.S.C. Affidavit, and the misrepresentations attorney’s fees in a Bivens ac- of award Katz therefore, identify to how failed have Order, observed, tion, in its Fee the court any injury. has caused Katz un- had also sued that the § of action for which a cause der allege that Although the § such a fee award. 1988 authorizes Kane to make Agent conspired Katz § claim and the Thus, the 1985 because of fact to ob misrepresentations material each “arose from conspiracy Bivens claim a Warrant, they allege fail to tain facts, and operative nucleus of the same any tort: causation. of component crucial its both based on the Court dismissed that, in order to estab We have no that there had been constitu- finding conspiracy a of action for lish a cause plaintiffs’ rights,” of tional violation prove must plaintiff § a under § that a 1988 fee Fee Order concluded (1) persons, or more conspiracy a two for Katz’s defense appropriate award was (2) by a class- specific who are motivated 2. After decid- those claims. Fee Order discriminatory animus based, invidiously § a fee ing that 1988 authorized award (3) equal of the deprive plaintiff situation, ruled that Katz this the court rights secured the law enjoyment of legal an for entitled to such award (4) all, injury results in and which filing performed after work (5) an consequence a because, “al- Complaint, Amended First by the defendants act committed overt been though plaintiffs may not have aware conspiracy. in connection with the they filed the [Initial] when (4th Poe, F.3d 1376 Simmons v. they groundless, claims were Cir.1995); Egervary Young, see also before should have been so aware (3d Cir.2004) (recognizing F.3d Id. Complaint.” Amended [First] filed the governs causation” Bivens that “tort law at 5.

analysis). Katz cannot proceedings, these 1988(b), r “prevailing § Pursuant conspiring to violate tortiously be liable fo is party” rights proceedings in certain civil rights because plaintiffs’ constitutional attorney’s fees. Al identify any entitled to recover failed to have Affidavit, 1988 do though explicit provisions in the misrepresentations factual distinguish prevailing plain a foregoing analysis of the not as detailed in the between defendant, the courts prevailing tiff and a against Agent substantive Bivens a distinc have nevertheless drawn such misrepresentation, Kane. Absent such pre controlling precedent, role tion. link between Katz’s Under simply there is no ordinarily is vailing rights plaintiff civil alleged conspiracy result, attorney’s an fee award entitled to receive complained-of injury. As Hensley See claim as a matter of course. failed to state a plaintiffs have Eckerhart, S.Ct. grant relief can be U.S. against Katz on which (“[A] (1983) prevailing 76 L.Ed.2d 40 ed, affirm the district court’s and we must ordinarily recover an attor- plaintiff should the claims her. dismissal of § ney’s special fee unless cir solved plaintiff [under 1988] or when a had an arguable (inter cumstances would render such an award pursuing basis for his or her claim.” (internal quotation omitted)). marks omit unjust.” nal quotation marks pur ted)). applies, A much stricter standard pose distinguishing of between a fee award however, requested when a court is to being plaintiff, made a successful on the prevailing make such an to a defen award hand, one being such an award made See, e.g., dant. Jones v. Continental defendant, to a prevailing other, on the (6th Cir.1986) Corp., 789 F.2d 1232 legitimate arises out of the concern for the (describing rights fee award to civil defen effect” “chilling type that the latter of only dant “extreme sanction” as reserved potential would have on rights award civil misconduct”). “truly egregious for cases of lawyers deciding —and —in Lotz, to initiate whether lawsuits. See 717 prevailing In order for a defen explained, however, F.2d at 932. We have attorney’s dant to be entitled to recover that a court imposes “[w]hen fees on a § under the plaintiffs fees “ plaintiff pressed who has a ‘frivolous’ ‘frivolous, must have been either unrea ” claim, it nothing chills that is worth en sonable, groundless,’ plaintiff or or the “ Staton, couraging.” Hutchinson v. ‘continued litigate must have after [the (4th Cir.1993). ” 1076, 1081 F.2d clearly Realty became so.’ Lotz claim] Co., Inc. Dept. Housing v. U.S. & Urban of (4th Dev., Cir.1983) 717 F.2d case, prevailed this Katz on a claim

(quoting Christiansburg Co. v. Garment § for which 1988 does not authorize a fee EEOC, 434 U.S. 98 S.Ct. (the conspiracy claim), award Bivens as (1978)). Indeed, L.Ed.2d 648 the mere well as on a separate claim for which rights plaintiff fact that a civil lost her case (the § 1988 makes such an authorization frivolous, does not render her claim unrea claim). § below, explained As with- sonable, groundless. Supreme or As the § deciding out whether 1988 authorizes a regard: Court this spent fee award for the time Katz defend- important is that a district court [I]t claims, ing both those we are content to resist the temptation understandable reverse the fee award made to Katz be- engage post reasoning by hoc conclud- cause the claims fail qualify that, because a not did ulti- “frivolous, unreasonable, ground- either or mately prevail, his action must have less.” been unreasonable or without founda- tion. kind hindsight logic This of could a. discourage airtight all but the most claims, for seldom can a prospective The Fee provided specific Order three plaintiff be sure of ultimate success. bases for its ruling that 421-22, Christiansburg, 434 U.S. at 98 should have been aware that their claims 694; Sensations, frivolous, S.Ct. see City unreasonable, also Inc. v. Katz were (6th First, Rapids, groundless. Grand 526 F.3d or the district court (“The Cir.2008) that, emphasized upon Sixth Circuit affirms dismissing the Ini attorney prevailing Complaint, awards of fees de- tial it had [to “warned on only plain- fendants under that any Complaint 1988] when record Amended relitigated already-settled tiffs ... legal specific allegations.” mat- must include ters, attorney and we reverse the Fee 4. But recognizing award Order “[i]nstead groundless,” fees when issues of law remained unre- their claims were plain- Complaint Initial 5. The an Amend search.” filed “plaintiffs explained, alleged support minor thus failed to only included tiffs ed A specific facts. allegations wrongdoing by Katz with insufficient to their changes Second, Complaint and Id. of the Initial comparison misrepresentations.” material however, Complaint, one of the “assert Amended the First the court observed the plaintiffs that the heeded alleged asso reveals misrepresentations ed —that supported in unt and engaged had instructions Dr. court’s ciates of Unus Complaint Amended money transfers —had in the First claims raceable overseas court, spe- “the with, by the by another federal as instructed already rejected been on that are in allegedly were thus false statements court,” plaintiffs cific why Katz against description claims the and a that their affidavit notice to the ultimate Finally, according falsity to the would be material groundless. Id.27 court, for re J.A. 1032. plaintiffs’ finding probable motion cause.” district the based on a continued consideration “was Complaint, Amended In the First probable misunderstanding of the law alia, that Kane and alleged, inter plaintiffs cause, previ that the [had an error Court misrepresenta- Katz made three material Janu to ously] explained (1) in the Affidavit: that Kane tions of fact at 4-5. hearing.” Id. ary term ‘Safa Katz “invented the ” exists; group that no such Group,’ and attorney’s fees to By awarding (2) misrepresented that Kane and Katz Katz, its discre the district court abused Dr. “alleged Group’ ‘Safa ‘member’ tion, plaintiffs’ against claims because investigation had been under since Unus frivolous, unreasonable, or not Katz were (3) 2000”; misrep- that Kane and Katz sanction” of and the “extreme groundless, Group had resented that Safa entities thus unwarranted. awarding such fees is money internationally. First transferred Jones, specifical F.2d at 1232. More 9. The First Amend- Complaint Amended three record reveals that the court’s ly, the Complaint also described how those ed for its fee award are insufficient. bases were material to the misrepresentations i. alleged It probable cause determination. misrepresentation first was “ma- that the First, Order, in the Fee district determination to probable terial to a cause relied, it as a basis for court erred when Dr. home because Unus search Unus award, on its conclusion that the the fee billing and is described as the administra- to their claims replead had failed HIT” in the Affidavit. tive contact for the Initial greater specificity. In the with a link between the HIT Id. Absent simply Complaint, plaintiffs alleged Amended Group, the Safa the First Com- to con- conspired that “Kane and Katz ... asserted, probable there was no plaint relevant allegations trive that there were the Unus residence. The at the homes cause search financial documents located misrepresentation was relevant to second of certain individuals wanted proba- ing, the Affidavit established discussing ruling made "another and that In court,” referring Poultry, the district court was Inc. v. United ble cause. See Mar-Jac States, (N.D. instituted Katz in to a defamation suit Ga. June No. 2:03-cv-00232 Georgia by Group statements Safa entities for not, however, 2004). in- That decision did that Katz made on national television. issue, Ay- attorney’s fee and neither volve an proceedings, the court concluded that those party nor Hanaa Unus was a sha regarding alleged misrepresentation litigation. money was unavail- international transfer probable gave cause issue because it asserted bases of plaintiffs’ claims impression that Dr. false Unus had against Katz. investigation by been under the federal And, government. respect to the iii. misrepresentation,

third the First Amend- Finally, the mere fact that the Complaint explained, ed “Kane and Katz lawyers misunderstood certain legal as- knowingly proffered money a false laun- pects cause issue does not which, dering claim when added to the render the First Amended friv- false claim of a relationship close between olous, unreasonable, or groundless. In- among over one hundred entities and deed, it entirely reasonable for the individuals, the Magistrate convinced lawyers and their to seek court approve warrant to search the Unus of the review search process, warrant be- Thus, although home.” Id. at 10. cause the premised Warrant was least —at plaintiffs’ allegations ultimately failed to to some extent—on Katz’s off-the-wall the- 12(b)(6) motion, survive a Rule the plain- ory that all members of one of the world’s substantially complied tiffs had with the major religions are terrorists. See First court’s earlier instructions when it dis- Amended Complaint 5 (alleging that Katz’s Complaint, missed the Initial and the Fee “belief that all Muslims are terrorists was improperly Order finding relied on a to conveyed to the agents,” including Agent contrary as a basis for the fee award.

Kane). This theory was allegedly es- poused by terrorism, Katz her book on ii. Hunter, called Terrorist in which she also Second, we find unavailing the district referred to herself Quest as the Green pronouncement court’s that the investigation’s “stealthy beam,” guiding groundless claims were because a district Group investigation Safa as “[her] Georgia court in had ruled that the Affida- investigation, baby, project.” [her] [her] probable vit established Although cause. (internal quotation Id. at 18 marks omit- agree we the Affidavit established ted).28 Furthermore, plaintiffs alleged cause, probable Georgia ruling court’s that Katz continually urged had Kane to is neither controlling probative nor here. warrants, And, seek search despite Katz nonparticipants having in the Georgia liti- by been gation, advised “one or more” should not be held federal to prosecutors suffer there Valley its effects. was no Ohio Envtl. Cf. Co., cause to search Coal. v. Aracoma the homes of the Coal 556 F.3d individu- (4th Cir.2009) als 210 associated with the (recognizing Group, that res Safa such as Dr. judicata requires, alia, Unus. See id. at Though inter 6-7.29 ulti- claims parties Furthermore, unsuccessful, same or privies). mately plain- sum of the Georgia ruling Katz, court’s touched on only tiffs’ contentions—that driven alleged misrepresentations, animus, one of the religion-based thus conspired had having potential no impact on the other federal to manufacture probable book, specific allegations 28. These all favorably Mus- 29. In her Katz describes how —about being claiming lims terrorists and Katz Attorney she convinced the United States to investigation as her own —were first approve application an for several search Complaint, made in the First Amended after warrants, including the Warrant search the district court had directed the residence, despite Unus his initial reticence. particularize the claims made in the Initial See Terrorist Hunter 322-23. Complaint. 130 Trani, re- we In DeBauche warrants— unlawful search to obtain

cause prevailing §a 1988 fee award to viewed and warranted certainly nonfrivolous defendant. See 191 F.3d rights civil consideration. judicial careful serious and Cir.1999). (4th litigation, In that Rowe, 449 U.S. Hughes v. Cf. minority-party gubernatorial plaintiff, a (“Even (1980) 66 L.Ed.2d S.Ct. had a host of Virginia, sued candidate dis properly allegations those § con- 1983for under U.S.C. individuals a claim deserved to state missed for failure him deny opportunity spiring careful consideration and received political in a debate conducted participate and the Court Court both the District university. One of the defen- public at a Pack Rodriguez v. Appeals.”); Smithfield dants, and former Gover- a talk show host (4th Inc., n. 4 Co., F.3d Commonwealth, had successful- nor Cir.2003) §of 1988 fee (affirming denial suit, and the court against the ly defended defendant). by prevailing pursued attorney’s fees under him awarded the fee affirming at 503-04. See id. b. Court, Judge Niemeyer em- for our award court and both the district Significantly, plain- nature of the phasized the frivolous support of the fee award—relied Katz—in Supreme claims. “Both the Court tiffs we precedent, where on our Hutchinson court,” been explained, and our he “have prevailing to civil fee awards reinstated does not very clear” that the Constitution 1, 3 See Fee Order rights defendants. actors such as the purely private to apply Hutchinson, 1080); F.2d at Br. (citing defendant, therefore it was well-set- (same). 48, 52 That deci- Appellee Katz § the defen- against 1983 claim tled that sion, however, egre- much more involved Id. at 510. legally groundless. dant was presented Thus, circumstances, than that here. the dis- gious conduct under those Hutchinson, prevailed In the defendants within its discretion trict court was litigation. The fees under 1988. See id. years after of vexatious award had, lost an as plaintiffs election— —who plaintiffs in this case Importantly, explained, “alleged two- Judge Wilkinson against claims conspiracy supported election-rigging conspiracy county-wide First Amended with Katz in the screenplay.” worthy of an Oliver Stone allegations, factual rather than— specific Hutchinson, In rein- 994 F.2d at 1081. conjecture in Hutchinson —with mere awards, panel empha- stating the fee our And this record lacks speculation. narrowly had sur- sized that the any indication that were 12(b)(6) dismiss, Rule motion to vived a spite prolong out of somehow motivated unable to back their and that “were litigation or increase the litigation anything theory conspiracy [at trial] in De- costs. Unlike the claims asserted speculation.” Id. at beyond conjecture and Bauche, against made Katz were not those Furthermore, plainly on baseless causes of predicated by court as motivated legal found the district that ran counter to established action litiga- Rather, revenge prolong against and a desire the claims principles. circumstances, Katz, light by In such a rea- objective tion. See id. in an viewed justified allege unsettling, because discrimi- lawyer, fee awards were deemed sonable though Katz forced for several acts the “defendants were nation-fueled that — not unde- ultimately off a unsuccessful—were years, great expense, and at to fend and careful consider- factually serving baseless.” of serious proved claim that to be awarding fees ation a court of law. Id. at 1081. Katz, the district court thus seems to STEPHENS, Natalie J. engaged hindsight in the “kind of on behalf have logic discourage R.E., Plaintiff-Appellee, could all but the [that] airtight Christiansburg, most claims.” v. 694; at see also U.S. S.Ct. Fletcher, LeBlanc-Sternberg v. 143 F.3d ASTRUE, Michael J. Commissioner (2d Cir.1998) (urging caution in Security, of Social Defendant- assessing fee particularly award Appellant. issues— conspiracy on involving prevailing claims— defendants). result, rights Wright, B.W., civil As a Donna on behalf of claims Katz were neither Plaintiff-Appellee, frivolous, unreasonable, or groundless, the making court abused its discretion prevailing

fee award to Katz as a defen Astrue, Michael J. Commissioner of dant, and we reverse award.30 Security, Social Defendant- Appellant.

IV. foregoing, Pursuant to the we affirm the Anderson, David Plaintiff-Appellee, district court’s dismissal of claims al- Katz, Kane, leged against Agent defendants, as well as its Astrue, Michael J. Commissioner of

summary judgment award in favor of the Security, Social Defendant- reverse, however, States. United We Appellant.

attorney’s fee award made to Katz. Henry Allison, Plaintiff-Appellee,

AFFIRMED IN PART AND RE- VERSED IN PART. v. Astrue,

WILLIAMS, Michael J. Judge, concurring Chief Commissioner of Security, part Defendant- dissenting part: Social Appellant. I agree majority’s with the resolution of the constitutional and common law tort Sharp, Plaintiff-Appellee, Karl by Aysha claims asserted and Hanaa Unus and concur in portions opinion. those of the For the reasons stated in the district Astrue, Michael J. Commissioner of April court’s fee order of howev- Security, Social Defendant- er, I affirm the attorney’s would award of Appellant. fees favor of Rita Katz. I therefore respectfully from Part III.E. dissent Virgil Evans, Plaintiff-Appellee, majority opinion judgment and from the the extent it reverses award. Astrue,

Michael J. Commissioner of Security, Defendant- Social Appellant. they clearly

30. Because the claims Katz were nei- claims after became so. See Fee frivolous, unreasonable, groundless, aspect ther nor Order 5. That of the district court’s litigate ruling did not continue to those is thus undermined.

Case Details

Case Name: Unus v. Kane

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 6, 2009

Citation: 565 F.3d 103

Docket Number: 07-2191

Court Abbreviation: 4th Cir.