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Ninth Circuit Declines to Extend Liability for Military Seizure
Opinion Says Attempt to Hold Army Officer Civilly Responsible Over Purportedly Illegal Seizure of Laptop Presents New Context Under Case Law Disfavoring Broadening of Such Claims Against Federal Agents
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held that a claim by a former civilian instructor at a U.S. Department of Defense language institute alleging that an Army police officer illegally seized his personal laptop in violation of the Fourth Amendment was properly dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
In a memorandum opinion filed Friday, signed by Circuit Judges Consuelo M. Callahan, Roopali H. Desai, and Ana de Alba, the court found that the case would improperly expand liability for federal defendants under the 1971 U.S. Supreme Court case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics because it presents a “new context” of imposing liability for a search and seizure conducted in a military setting.
Unlike 42 U.S.C. §1983, under which plaintiffs seek damages for constitutional violations by state agents, no statutory authority exists for imposing liability on federal actors for interfering with an individual’s constitutionally protected rights.
In Bivens, the high court, for the first time. allowed a damages action to proceed against federal narcotics officers over an allegedly illegal search and seizure, reasoning that every constitutional wrong must have a remedy. Since that decision, courts have recognized the case as announcing a judicially created analog to 42 U.S.C. §1983, allowing for the imposition of liability against federal actors.
Following the decision, the Supreme Court has cautioned against expanding Bivens claims to new contexts, recognizing that the case implicates the separation of powers by creating causes of action without legislative authority.
It said in its 2019 decision in Hernandez v. Mesa that if a claim “arises in a new context or involves a new category of defendants” such that it recognizing it would constitute an expansion of the doctrine, courts are to consider whether there are any factors that counsel “hesitation” to allow the case to go forward. If so, the request to extend Bivens is to be denied.
Complaint Filed
The question before the Ninth Circuit arose after Abdel Ellawendy filed a complaint in 2021 against Jason Takagaki, described in the operative pleading as “a Federal official and an investigator for the Department of the Army,” and then-Secretary of the Army Christine E. Wormuth. According to the plaintiff:
“Ellawendy is a dedicated and long-serving Army employee who endured a hostile work environment at the Defense Language Institute in Monterey, California, where he served as a civilian instructor from October 2002 through April 2018. The abuse…Ellawendy suffered at the hands of…Takagaki…included violation of civil rights….”
In the operative complaint, he asserts a Fourth Amendment claim.
He says that after he made a report to the local police department about purportedly harassing phone calls by his ex-girlfriend, Takagaki deleted the allegedly offensive voice messages in November 2017.
Ellawendy claims that he was then forcibly taken home by Takagaki, who ordered him to retrieve his personal laptop, which was taken by the officer and never returned.
After the plaintiff filed grievances with his supervisors, he claims his employment was terminated in April 2018.
Takagaki filed a motion to dismiss under Rule 12(b)(6), and Senior District Court Judge William H. Orrick of the Northern District of California granted it. He found that there is the military/Department of Defense “context of Ellawendy’s claim renders it…different from the…Bivens contexts the Supreme Court has recognized.”
In Friday’s opinion, the Ninth Circuit affirmed the dismissal.
Meaningfully Different
The panel opined that the case is “meaningfully different” from previous Bivens decisions, saying:
“Both Ellawendy and Officer Takagaki were employed by the Army when this case arose….The military/Department of Defense backdrop of Ellawendy’s claim distinguishes it from previous Bivens cases. Moreover, Officer Takagaki represents a ‘new category of defendants’ by virtue of his employment as a police officer employed by the Army on an active Army installation.”
Pointing out that a Bivens remedy is unavailable if there are “special factors” indicating that the judiciary is “at least arguably less equipped than Congress” to decide whether a damages claim should proceed, they remarked that “[t]he availability of an alternative remedial structure” will preclude the application of Bivens to a new context even if it does not provide complete relief.
In the present case, they reasoned:
“Here, Ellawendy made multiple grievances to an unnamed supervisor…and the Inspector General, prior to filing his complaint….Though the grievance procedure does not offer Ellawendy complete relief, it fulfills the purpose of Bivens, which is ‘to deter the officer’ accused of the constitutional violation.”
The case is Ellawendy v. Takagaki, 22-16980.
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