No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Case: /01/2012 ID: DktEntry: 27 Page: 1 of 44 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CAROLYN MARTIN, Plaintiff-Appellee, v. NAVAL CRIMINAL INVESTIGATIVE SERVICE; MARK D. CLOOKIE, NCIS Director; WADE JACOBSON, NCIS Acting Special Agent in Charge; MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, Staff Judge Advocate, Marine Corps Recruit Depot San Diego; RAY MABUS, Secretary of the Navy; JOHN DOES 1-7, Defendants, and GERALD MARTIN, NCIS Special Agent, Defendant-Appellant. On Appeal from the District Court for the Southern District of California REPLY BRIEF FOR DEFENDANT-APPELLANT GERALD MARTIN STUART F. DELERY Assistant Attorney General LAURA E. DUFFY United States Attorney BARBARA L. HERWIG (202) TEAL LUTHY MILLER (202) Attorneys, Appellate Staff Civil Division Department of Justice 950 Pennsylvania Ave. NW, Room 7234 Washington, DC

2 Case: /01/2012 ID: DktEntry: 27 Page: 2 of 44 TABLE OF CONTENTS Page INTRODUCTION I. PLAINTIFF S BRIEF MAKES SEVERAL ASSERTIONS THAT FIND NO SUPPORT IN HER COMPLAINT, AND IT DOES NOT SHOW THAT SHE HAS PLAUSIBLY ALLEGED THAT SPECIAL AGENT MARTIN RETALIATED AGAINST HER... 3 A. Special Agent Martin s Legitimate Law Enforcement Motive is Relevant to Assessing the Plausibility of Plaintiff s Complaint and Shows that the Complaint Fails to Satisfy Iqbal B. Plaintiff Repeatedly Mischaracterizes Her Own Allegations Neither the Complaint Nor the Other Materials on Which Plaintiff Relies Show That Special Agent Martin Began Investigating Her Soon after Plaintiff Testified in a Trial Involving Agent Martin The Complaint Does Not Allege That Special Agent Martin Fabricated the Report That Plaintiff Presented False Credentials The Complaint Does Not Support The Allegation That Special Agent Martin Participated in an Unfounded and Humiliating Roadside Search and Seizure of Plaintiff... 18

3 Case: /01/2012 ID: DktEntry: 27 Page: 3 of The Complaint Does Not Support the Allegations That Special Agent Martin Attempted to Derail Plaintiff s Career or Harassed Her With the Questionable If Not Fraudulent Violation Notice C. Common Sense Shows that the Complaint Should be Dismissed II. III. IV. PLAINTIFF HAS NOT SHOWN THAT THE ALLEGED CONSTITUTIONAL VIOLATION WAS CLEARLY ESTABLISHED PLAINTIFF SHOULD NOT BE GIVEN AN OPPORTUNITY TO AMEND HER COMPLAINT PLAINTIFF S RELIANCE ON POST-APPEAL MATERIALS FROM THE RECORD BELOW IS IMPROPER V. PLAINTIFF S ARGUMENT THAT THIS COURT HAS ALREADY RECOGNIZED THE BIVENS REMEDY SHE SEEKS FAILS TO GRAPPLE WITH RECENT SUPREME COURT PRECEDENT OR THE SPECIAL FACTORS AND ALTERNATIVE REMEDIES AT ISSUE HERE CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE -ii-

4 Case: /01/2012 ID: DktEntry: 27 Page: 4 of 44 TABLE OF AUTHORITIES Cases: Page Alliance Shippers, Inc. v. S. Pac. Transp. Co., 858 F.2d 567 (9th Cir. 1988) Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 2, 4, 7, 14, 19, 22, 28, 30 Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007)... 4 Bruns v. National Credit Union Ass n, 122 F.3d 1251 (9th Cir. 1997)... 15, 16 Bush v. Lucas, 462 U.S. 367 (1983) Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) Carlson v. Green, 446 U.S. 14 (1980) Chappell v. Wallace, 462 U.S. 296 (1983) Dietrich v. John Ascuaga s Nugget, 548 F.3d 892 (9th Cir. 2008)... 9 Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) iii-

5 Case: /01/2012 ID: DktEntry: 27 Page: 5 of 44 Greer v. Spock, 424 U.S. 828 (1976) Hartman v. Moore, 547 U.S. 250 (2006)... 8, 9 Hope v. Pelzer, 536 U.S. 730 (2002) Karl v. City of Mountlake Terrace, F.3d, 2012 WL (9th Cir. 2012) Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012) May Trucking Co. v. Oregon Dept. of Transp., 388 F.3d 1261 (9th Cir. 2004) Minneci v. Pollard, U.S., 132 S. Ct. 617 (2012) , 30, 31 Mirmehdi v. United States, 662 F.3d 1073 (9th Cir. 2011) Mundy v. Weinberger, 554 F. Supp. 811 (D.D.C. 1982) Reichle v. Howards, 132 S. Ct. 815 (2011)... 9 Saucier v. Katz, 533 U.S. 194 (2001)... 22, 23 United States v. Albertini, 472 U.S. 675 (1985)... 24, 34 -iv-

6 Case: /01/2012 ID: DktEntry: 27 Page: 6 of 44 United States v. Hawkins, 249 F.3d 867 (9th Cir. 2001) United States v. Hensley, 469 U.S. 221 (1985) United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976) United States v. Stanley, 483 U.S. 669 (1987) Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010)... 8 W. Radio Servs. v. United States Forest Service, 578 F.3d 1116 (9th Cir. 2009) Whiteley v. Warden, 401 U.S. 560 (1971) Wilkie v. Robbins, 551 U.S. 537 (2007)... 9, 30 Zemel v. Rusk, 381 U.S. 1 (1965) Statutes: 5 U.S.C. 706(1) v-

7 Case: /01/2012 ID: DktEntry: 27 Page: 7 of 44 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No CAROLYN MARTIN, Plaintiff-Appellee, v. NAVAL CRIMINAL INVESTIGATIVE SERVICE; MARK D. CLOOKIE, NCIS Director; WADE JACOBSON, NCIS Acting Special Agent in Charge; MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, Staff Judge Advocate, Marine Corps Recruit Depot San Diego; RAY MABUS, Secretary of the Navy; JOHN DOES 1-7, Defendants, and GERALD MARTIN, NCIS Special Agent, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT GERALD MARTIN INTRODUCTION Special Agent Martin s motion to dismiss plaintiff s retaliation claim should have been granted on three separate grounds: plaintiff s complaint fails to include specific facts plausibly suggesting that Special Agent Martin retaliated against her; plaintiff has failed to establish that the alleged violation of her rights was a violation of clearly established law; and there is no implied

8 Case: /01/2012 ID: DktEntry: 27 Page: 8 of 44 right of action for retaliation in these circumstances. Each of these is a sufficient, independent ground for reversing the district court s decision. The key question for the first of these three grounds is whether the specific facts alleged in plaintiff s complaint plausibly suggest that Special Agent Martin retaliated against plaintiff in violation of the First Amendment. See Ashcroft v. Iqbal, 556 U.S. 662, (2009). Our opening brief explained that the factual allegations in plaintiff s complaint fail to satisfy this standard because facts that at most weakly suggest some theoretical basis for retaliation do not give rise to a plausible inference of retaliation where they are coupled with facts that strongly suggest that the allegedly retaliatory acts were legitimate. Plaintiff s allegation that she testified in several cases in which military defendants prevailed at trial provides at most a weak link to NCIS (and no specific link to Special Agent Martin). And as we will show, plaintiff s suggestion in her response brief that Special Agent Martin was involved in a case against one of her clients shortly before his first encounter with plaintiff is not supported by the documents she cites. The absence of any specific facts suggesting that Special Agent Martin had a retaliatory motive, coupled with the facts that strongly suggest that Special Agent Martin had a -2-

9 Case: /01/2012 ID: DktEntry: 27 Page: 9 of 44 legitimate law enforcement motive, is grounds for reversing the district court s decision refusing to dismiss the retaliation claim. The second ground for reversal is that plaintiff cannot point to any law that put Special Agent Martin on notice that his investigation might implicate plaintiff s First Amendment rights. Because there are no cases that establish that plaintiff was exercising her First Amendment rights or how the First Amendment applies to law enforcement officials investigating an individual s use of credentials onboard military installations, plaintiff cannot show that the alleged violation was clearly established. The third ground on which plaintiff s retaliation claim should be dismissed is that there is no implied damages remedy for plaintiff s claim. Plaintiff s contention that this Court adopted the remedy she seeks in Gibson v. United States is misplaced; Gibson does not address the alternative remedy or special factors at issue here. I. PLAINTIFF S BRIEF MAKES SEVERAL ASSERTIONS THAT FIND NO SUPPORT IN HER COMPLAINT, AND IT DOES NOT SHOW THAT SHE HAS PLAUSIBLY ALLEGED THAT SPECIAL AGENT MARTIN RETALIATED AGAINST HER To survive a motion to dismiss, plaintiff s complaint must plausibly suggest that Special Agent Martin personally violated her constitutional -3-

10 Case: /01/2012 ID: DktEntry: 27 Page: 10 of 44 rights. See Iqbal, 556 U.S. at 678. Our opening brief explained that plaintiff s claim that Special Agent Martin personally retaliated against her should have been dismissed because it fails Iqbal s plausibility standard. Her bare allegation that he harassed and intimidated plaintiff on account of her defense investigations, ER 82 (complaint 26), must be disregarded under Iqbal, which provides that naked assertion[s] of illegal conduct devoid of further factual enhancement do not suffice. Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The specific facts that remain do not plausibly suggest that retaliation was the but-for cause for Special Agent Martin s investigation. Plaintiff responds (at 21) that her allegation that Special Agent Martin had a retaliatory motive must be accepted because whether Special Agent Martin had a legitimate reason to investigate her is a question of fact beyond the scope of this appeal. But Rule 8 imposes a plausibility standard under which a complaint must contain allegations plausibly suggesting (not merely consistent with) a violation of law. Twombly, 550 U.S. at 557, 561. Under this standard, plaintiff must plead specific facts that make it plausible that Special Agent Martin took the actions alleged in the -4-

11 Case: /01/2012 ID: DktEntry: 27 Page: 11 of 44 complaint in order to harass or intimidate her for her protected activity; she is not entitled to discovery simply on the basis of her ultimate allegation that Special Agent Martin had an illegal motive, especially because her specific factual allegations suggest he had a legitimate one. Critically, even assuming that plaintiff engaged in protected First Amendment activity (which Special Agent Martin does not concede), her complaint fails to allege that Special Agent Martin was aware of that activity. For that reason alone, the district court should have dismissed the retaliation claim against Special Agent Martin. Stripped of her current efforts to enhance it, plaintiff s complaint alleges that Special Agent Martin did three things (1) he arrived at the scene of the search of plaintiff s car after other officers had already searched the car and took her credentials after they were confiscated by an unidentified agent at the direction of the Defense Intelligence Agency, ER 84 (complaint 37-38); (2) he informed a state agency that NCIS was investigating plaintiff for impersonating a federal officer, ER 86 (complaint 45); and (3) he issued a citation to plaintiff for impersonating a federal officer, ER (complaint 48-50). These specific facts do not support an -5-

12 Case: /01/2012 ID: DktEntry: 27 Page: 12 of 44 inference that retaliation was a but-for cause of Special Agent Martin s acts. Plaintiff tries to get away from this fundamental weakness in her complaint by two routes: she argues that Special Agent Martin s legitimate law enforcement motive is irrelevant to assessing her complaint, and she attempts to rehabilitate her complaint by mischaracterizing the allegations it contains. This Court should reject both efforts. A. Special Agent Martin s Legitimate Law Enforcement Motive is Relevant to Assessing the Plausibility of Plaintiff s Complaint and Shows that the Complaint Fails to Satisfy Iqbal Plaintiff argues (at 25-27) that her complaint should survive dismissal so long as the facts in her complaint give rise to a plausible inference that her First Amendment activity was a substantial factor motivating Special Agent Martin, without regard to whether he had a legitimate law enforcement objective as well. According to plaintiff, because Special Agent Martin would bear the burden at trial of proving that he would have taken the same actions regardless of her speech, the plausibility of her allegations should be assessed without reference to other possible explanations for Special Agent Martin s action. In other words, plaintiff argues that, whether Special Agent Martin had a non-retaliatory reason for acting is irrelevant to the plausibility of her -6-

13 Case: /01/2012 ID: DktEntry: 27 Page: 13 of 44 complaint, because that non-retaliatory reason would not negate plaintiff s prima facie case and would instead be an affirmative defense. Plaintiff s argument is foreclosed by Iqbal. In Iqbal, the plaintiffs alleged that the defendants discriminated against high-interest detainees on account of their ethnicity or religion. The Iqbal Court concluded that plaintiff s complaint did not give rise to a plausible inference of illegal discrimination in part because, even though the allegations in the complaint were consistent with petitioners purposefully designating detainees of high interest because of their race, religion, or national origin, given more likely explanations, they do not plausibly establish this purpose. 556 U.S. at 681. If plaintiff s view of Iqbal s plausibility standard were correct, those more likely explanations would have been irrelevant to assessing the plausibility of the allegation that defendants acted on account of impermissible factors. Nothing in Iqbal s plausibility analysis turns on whether particular allegations are relevant to an affirmative defense, and plaintiff s argument that it should cannot be reconciled with Rule 8. That rule requires the pleader to demonstrate an entitlement to relief. A complaint that includes concessions that undermine the plaintiff s theory that she is entitled to relief -7-

14 Case: /01/2012 ID: DktEntry: 27 Page: 14 of 44 does not meet this standard, even if those concessions would show disentitlement to relief by way of establishing an affirmative defense. To illustrate, if plaintiff s argument were correct, then a defendant could not successfully move to dismiss a complaint that was plainly filed out of time, because an expired statute of limitations is an affirmative defense. But that is not the law; a statute of limitations defense may be raised by a motion to dismiss if the running of the statute is apparent on the face of the complaint. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (internal quotation marks omitted). Plaintiff s contention that this Court should disregard Special Agent Martin s legitimate law enforcement motive in assessing the plausibility of her complaint also cannot be reconciled with Hartman v. Moore, 547 U.S. 250, 260 (2006). In Hartman, the Supreme Court held that a plaintiff alleging retaliatory prosecution must plead and prove the absence of probable cause. 547 U.S. at 252. The court explained that a legitimate law enforcement motive is relevant to assessing the plausibility of a retaliation claim because [i]t may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad -8-

15 Case: /01/2012 ID: DktEntry: 27 Page: 15 of 44 motive does not amount to a constitutional tort if that action would have been taken anyway. Id. at 260; see also Wilkie v. Robbins, 551 U.S. 537, 558 n.10 (2007) (rejecting the proposition that the presence of malice or spite in an official s heart renders any action unconstitutionally retaliatory, even if it would otherwise have been done for legitimate reasons); Dietrich v. John Ascuaga s Nugget, 548 F.3d 892, 901 (9th Cir. 2008) (noting with disfavor that nearly every retaliatory First Amendment claim would survive to trial if plaintiffs could show but-for retaliation simply by pointing to prior negative 1 interactions with law enforcement personnel). B. Plaintiff Repeatedly Mischaracterizes Her Own Allegations Plaintiff s brief summarizes her allegations (at 22) as follows: the facts in the record, taken as true, show that soon after Plaintiff testified in a trial involving Special Agent Martin he fabricated the cause for an indefinite and unresolved investigation of Plaintiff, participated in an unfounded and 1 As our opening brief notes (at 36 n.5), the Supreme Court s disposition in Reichle v. Howards, 132 S. Ct. 815 (2011), may affect the continuing viability of this Court s decisions suggesting that an officer may be liable for retaliatory arrest even when he has objective probable cause for the arrest, and thus may provide further support for Special Agent Martin s argument that plaintiff s retaliation claim is not viable in light of his legitimate law enforcement interest in investigating her use of credentials. -9-

16 Case: /01/2012 ID: DktEntry: 27 Page: 16 of 44 humiliating roadside search and seizure of Plaintiff, attempted to derail her career by making a specious report to California state authorities, and harassed Plaintiff at her home in the early morning hours with the questionable if not fraudulent violation notice. But as we now show, the complaint does not support these assertions, and neither do the other materials on which plaintiff relies. 1. Neither the Complaint Nor the Other Materials on Which Plaintiff Relies Show That Special Agent Martin Began Investigating Her Soon after Plaintiff Testified in a Trial Involving Agent Martin Plaintiff s brief repeatedly asserts that Special Agent Martin began investigating her shortly after she testified in a trial involving Special Agent Martin: [a]ppellant Gerald Martin s own evidence shows that he was involved in a UCMJ prosecution against one of Plaintiff s clients at the time he and his associates began to retaliate against her, Pl. Br. at 3; [s]oon after she testified in a case involving Agent Martin, he initiated an outrageous campaign of harassment, intimidation, and retaliation against her, id. at 8; shortly after Plaintiff testified in a criminal case involving Agent Martin, he and his collaborators subjected Plaintiff to multiple unfounded vehicle stops and interrogations, id. at 15. She contends that these assertions find support -10-

17 Case: /01/2012 ID: DktEntry: 27 Page: 17 of 44 in filings from military court proceedings in United States v. Nash. Id. at 3 n.2 (citing ER 37-75). Plaintiff s contention that Special Agent Martin began investigating her shortly after she testified in Nash is an implicit response to the showing in our opening brief (at 31-32) that the complaint fails to allege that Special Agent Martin had any awareness of plaintiff s work as a defense investigator or any involvement in the military criminal cases described in her complaint. As we explained, plaintiff s failure to make these assertions is significant because plaintiff s theory is that her efficacy as a defense investigator gave Special Agent Martin a motive to retaliate against her. Plaintiff s attempt to get around her failure to show any connection between Special Agent Martin and her defense work is unconvincing; the Nash record does not show that Special Agent Martin began investigating her shortly after she testified in that case. While plaintiff testified in May 2009 during a pretrial hearing in Nash, ER 51-61,the subject of her testimony had nothing to do with Special Agent Martin. See id. Moreover, nothing in the materials from Nash on which plaintiff relies establishes that Special Agent Martin was present at the hearing in May 2009, or that his eventual -11-

18 Case: /01/2012 ID: DktEntry: 27 Page: 18 of 44 involvement in the Nash case had anything to do with the substantive charges against Nash. The Nash record instead shows that plaintiff herself involved Special Agent Martin in Nash when her client (Staff Sergeant Nash) filed a motion arguing that the case against him should be dismissed because NCIS s investigation into plaintiff s use of credentials reflected unlawful command influence. The pages that plaintiff cites show that Special Agent Martin was waiting outside the courtroom to testify as a government rebuttal witness on the unlawful command influence motion. ER 68; see also ER 69-70; ER That motion was made on November 12, 2009, i.e., after May 2009 (and indeed, after July 23, 2009, the date on which Special Agent Martin informed plaintiff that he had received a report from a Military Police officer that she had presented NCIS credentials). ER 39. The Nash record also makes clear that, had he been called to testify, the subject of Special Agent Martin s testimony would have related not to the substantive charges against Nash, but to the unrelated NCIS investigation of plaintiff s misuse of her credentials. ER 67-68,

19 Case: /01/2012 ID: DktEntry: 27 Page: 19 of 44 Moreover, even if plaintiff could establish that Special Agent Martin was aware of her defense work based on Nash, she would still be left with an attenuated inference of motive based on her having testified for the defense in that single case. That inference would not be enough to survive a motion to dismiss under Iqbal, because it is too speculative to make it plausible that the but-for cause for Special Agent Martin s investigation was retaliation. In sum, no specific factual assertions in the complaint, and nothing in the record from Nash, suggests a direct connection between Special Agent Martin and plaintiff s defense work. Plaintiff has simply failed to allege any facts showing that Special Agent Martin was aware of her work. Accordingly, the most that plaintiff could possibly be said to have is a weak inference regarding a theoretical retaliatory motive based on her general claims regarding her efficacy, without any evidence tying Special Agent Martin to that theoretical motive. That is not sufficient to survive dismissal. -13-

20 Case: /01/2012 ID: DktEntry: 27 Page: 20 of The Complaint Does Not Allege That Special Agent Martin Fabricated the Report That Plaintiff Presented False Credentials Plaintiff s repeated assertions (Br. 8, 10, 16, 17, 22, 23, 30) that Special Agent Martin fabricated his reasons for investigating her is unsupported by any specific factual allegations in her complaint. According to plaintiff, (Br. 23), Paragraph 37 of the complaint alleges Agent Martin made a false allegation. That is incorrect. Paragraph 37 states that NCIS Special Agent Martin arrived soon after the search with another marked MP vehicle. Agent Martin told Ms. Martin that he had received a call from an MP reporting that Ms. Martin had presented NCIS credentials at the Camp Pendleton gate. Ms. Martin denied this false allegation. She also pointed out how absurd the allegation appeared in light of the search that had just taken place which failed to turn up any false documents or false identification. None of the defendants ever had reasonable suspicion or probable cause to believe that Ms. Martin had presented NCIS credential or otherwise impersonated an NCIS officer. 2 ER 84. The reference in the third sentence of this paragraph to plaintiff s denial of this false allegation is most naturally read to describe what immediately precedes it: that is, the allegation that Ms. Martin had 2 The last sentence of this paragraph is a legal conclusion that is not entitled to the presumption of truth under Iqbal. See 556 U.S. at

21 Case: /01/2012 ID: DktEntry: 27 Page: 21 of 44 presented NCIS credentials at the Camp Pendleton gate. See May Trucking Co. v. Oregon Dept. of Transp., 388 F.3d 1261, 1268 (9th Cir. 2004) (discussing the grammatical principle that [r]eferential and qualifying phrases, where no contrary intention appears, refer solely to the last antecedent ) (citation omitted). It is not a denial of Special Agent Martin s statement that he had received a call from an MP reporting that allegation. In other words, while Paragraph 37 does assert that the allegation that Special Agent Martin received was false, it does not question the reality that Special Agent Martin in fact received the allegation. Even when the facts are construed in the light most favorable to plaintiff, the complaint simply does not assert that Special Agent Martin fabricated the report from the MP, and even a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Bruns v. National Credit Union Ass n, 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks omitted). Surely plaintiff would have made such an assertion directly if she had any factual basis for doing so; just as surely, her complaint does not make that assertion. Viewing the complaint in the light most favorable -15-

22 Case: /01/2012 ID: DktEntry: 27 Page: 22 of 44 to plaintiff does not require this Court to read into it allegations that it does not contain and cannot support. See id. Plaintiff could not credibly allege that Special Agent Martin fabricated the call from the MP because she has no factual grounds for making such an allegation. By her own account, she was not present for the call from the MP to Special Agent Martin, and she alleges no facts that suggest she might have a basis for knowing that Special Agent Martin did not receive it. On the contrary, the other specific facts she alleges suggest that he did receive the MP s call. Plaintiff alleges that, a little less than a month before Special Agent Martin informed plaintiff that he had received the MP s call, she had an encounter with an MP in which he asked to see her credentials and she produced them from inside her Defense Intelligence Agency ( DIA ) credential holder. ER 82 (complaint 28). The complaint also acknowledges, as our opening brief explains (at 29), that she mentioned her DIA credentials to a MP officer on the day on which her car was searched. ER 80 (complaint 30) These facts, together with her allegation that her photo was on the be on the lookout board at another NCIS field office, ER 86 (complaint 47), confirm that the military was interested in her use of -16-

23 Case: /01/2012 ID: DktEntry: 27 Page: 23 of 44 credentials onboard military installations and had reason to be. Moreover, there is testimony from Nash that the investigation into plaintiff s use of credentials included a claim that plaintiff told one of the main gate guards that she was a NCIS agent. ER 72. As plaintiff s arguments implicitly recognize, the MP s call is significant because it provided a legitimate law enforcement motive for Special Agent Martin s acts. The call provided him with probable cause to believe that plaintiff had violated the law. The fellow officer rule provides that law enforcement officers can act on directions and information transmitted by one officer to another, and that they cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information. United States v. Hensley, 469 U.S. 221, 231 (1985) (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)); see also Whiteley v. Warden, 401 U.S. 560, 568 (1971). Under that rule, Special Agent Martin was entitled to act on the MP s call. And his non-retaliatory motive for investigating plaintiff makes her unsupported allegation that he has a retaliatory motive implausible. -17-

24 Case: /01/2012 ID: DktEntry: 27 Page: 24 of The Complaint Does Not Support The Allegation That Special Agent Martin Participated in an Unfounded and Humiliating Roadside Search and Seizure of Plaintiff Plaintiff is wrong that her complaint alleges that Special Agent Martin participated in the roadside search of her car. The complaint states that, on July 23, 2009, Special Agent Martin arrived at the scene soon after the search. ER 84 (complaint 37). It alleges no involvement by Special Agent Martin in the search. The district court s decision denying plaintiff s Fourth Amendment Bivens claim against Special Agent Martin confirms this, concluding that the complaint fails to allege facts to support an inference that Agent Martin instigated, encouraged, or solicited the detention and search. ER 9. This is not an isolated example of plaintiff attempting to show that her claim should be allowed to proceed by relying on allegations that have nothing to do with Special Agent Martin. She makes a number of references to Special Agent Martin s associates and collaborators, asserting (at 15), for example, that Special Agent Martin and his collaborators subjected Plaintiff to multiple unfounded vehicle stops, even though her complaint contains no allegation that Special Agent Martin was present for any of the -18-

25 Case: /01/2012 ID: DktEntry: 27 Page: 25 of 44 three stops it describes. She likewise argues (at 19-20) that her allegation that Special Agent Martin s collaborators harassed and intimidated her make it more plausible that he did, too. As our opening brief explained (at 31-32), however, plaintiff s assertions regarding the acts of other individuals do not strengthen her claim against Special Agent Martin; her claim for damages against him must stand or fall on allegations concerning him specifically. Iqbal limited personal liability under Bivens by making clear that a plaintiff must plead that each Government-official defendant, through the official s own individual actions, has violated the Constitution. 556 U.S. at 676 (emphasis added). Plaintiff is wrong to suggest that allegations concerning other individuals in NCIS make it more plausible that Special Agent Martin personally violated her rights; if anything, the fact that she cannot make similar allegations against Special Agent Martin undermines her claim against him and shows that she is attempting to establish guilt by association. 4. The Complaint Does Not Support the Allegations That Special Agent Martin Attempted to Derail Plaintiff s Career or Harassed Her With the Questionable If Not Fraudulent Violation Notice Plaintiff s allegations that Special Agent Martin informed the State of California that she was being investigated for improper use of credentials -19-

26 Case: /01/2012 ID: DktEntry: 27 Page: 26 of 44 and that he served her with a citation for impersonating a federal officer do not show that he attempted to derail her career or that he harassed her. Nothing supports the suggestion that reporting the investigation to California was retaliatory; rather, as the entity with responsibility for licensing private investigators, the California agency had an interest in the investigation. Moreover, plaintiff submitted a declaration in Nash stating that it was another officer not Special Agent Martin who initially contacted the state agency in an apparent attempt to have me punished. ER 45; see also ER 86 (complaint 45) (alleging that Captain Barnett contacted the state with questions about alleged unlicensed activity by [plaintiff] ); ER 48 (report by state agency indicating that agency contacted Special Agent Martin to follow up on Captain Barnett s original contact). Special Agent Martin s having served plaintiff with a citation similarly fails to suggest that his investigation was retaliatory. The citation specifically references the date on which plaintiff s car was stopped at Camp Pendleton and her Defense Intelligence Agency credentials were seized. ER 93. In light of plaintiff s admission that she had displayed her Defense Intelligence Agency credential holder while identifying herself at Camp Pendleton in the -20-

27 Case: /01/2012 ID: DktEntry: 27 Page: 27 of 44 past, ER 82 (complaint 28), and considering that the Defense Intelligence Agency directed that her credentials should be confiscated, ER 82, 84 (complaint 30, 38), the most plausible inference to draw regarding Special Agent Martin s motive for serving the citation was that he was providing her with notice of a charge, even if she is correct that the citation was technically flawed. Plaintiff s suggestion (at 17) that the flaws in the violation notice make the notice harassing unjustifiably equates a failure to adhere to requirements governing the use of such a notice with evidence of malice. Likewise, her suggestion (at 18) that the lack of a federal felony charge against her shows that the investigation was retaliatory equates the exercise of prosecutorial discretion with evidence of retaliation. The decision not to charge plaintiff with a federal felony cannot be considered evidence that the investigation into her use of credentials was suspicious. C. Common Sense Shows that the Complaint Should be Dismissed Plaintiff invokes common sense and argues (at 18-20) that Special Agent Martin s motives must have been retaliatory because the investigation was lengthy, her picture was posted inside the entrance gate to the base, and -21-

28 Case: /01/2012 ID: DktEntry: 27 Page: 28 of 44 there was a ten-month gap between the July 2009 search and the date on which Special Agent Martin served her with the violation notice. But it is plaintiff s own refusal to recognize the reasonableness of investigating the credentials and activities of an individual who regularly enters a military base that fails to take account of common sense. See Iqbal, 556 U.S. at 679 (in assessing plausibility of complaint, reviewing court should draw on its judicial experience and common sense. ). As the military judge who heard the unlawful command influence motion in Nash concluded, in light of the allegations made against her, whether or not true, an investigation into her status and actions aboard military installations and in the course of investigating military cases represents a legitimate government interest. ER II. PLAINTIFF HAS NOT SHOWN THAT THE ALLEGED CONSTITUTIONAL VIOLATION WAS CLEARLY ESTABLISHED As our opening brief explained (at 36-37), Special Agent Martin is entitled to qualified immunity unless plaintiff can show that it would have been clear to a reasonable officer in Special Agent Martin s position that his alleged conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001). -22-

29 Case: /01/2012 ID: DktEntry: 27 Page: 29 of 44 Like the district court, plaintiff defines (at 27-31) the right in question in this case too broadly in attempting to establish that it was clearly established. Plaintiff suggests (at 27) that her allegations describe a violation of clearly established law because [f]or decades it has been clear that no government official may intentionally retaliate against a citizen based on protected speech. But that broad proposition is not adequate to clearly establish the constitutional constraints on an officer in this particular context; the Supreme Court has made clear that whether a right was clearly established must be [determined] in light of the specific context of the case, not as a broad general proposition. Saucier, 533 U.S. at 201. While plaintiff is correct that general legal principles can clearly establish the scope of a right when they apply with obvious clarity, Hope v. Pelzer, 536 U.S. 730, 741 (2002) (internal quotation marks omitted), this case is far from an obvious one. Plaintiff s specific activities and the military context for them mean that general legal principles about a law enforcement officer s duty of nonretaliation in dealing with the general public did not provide Special Agent Martin with notice about the scope of plaintiff s rights. -23-

30 Case: /01/2012 ID: DktEntry: 27 Page: 30 of 44 The case on which the district court and plaintiff rely to conclude that the violation was clearly established contains a very general statement that [s]tate action designed to retaliate against and chill political expression strikes at the heart of the First Amendment. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). That statement is too general to provide notice to Special Agent Martin that his investigation into plaintiff s activities might violate her First Amendment rights in the context he confronted. Gibson does not concern a civilian contractor s criminal-defense activities on a military base. It thus does not establish that the First Amendment protected plaintiff s ability to work as a criminal defense investigator on a military base. United States v. Albertini, 472 U.S. 675, (1985), which holds that individuals can be barred from military bases otherwise open to the public consistent with the First Amendment, makes clear that the balance of First Amendment interests is different on a military base. Similarly, the cases on which plaintiff relies in her brief and in her 28(j) letter citing supplemental authorities (filed May 28, 2012) to show that it was clearly established that she engaged in protected speech do not concern paid testimony by a defense investigator and therefor do not establish that -24-

31 Case: /01/2012 ID: DktEntry: 27 Page: 31 of 44 plaintiff s testimony qualifies as protected speech. Karl v. City of Mountlake Terrace, F.3d, 2012 WL (9th Cir. 2012), for example, concerns subpoenaed testimony by a public employee in her capacity as a private citizen touching on matters of public concern. Id. at *6. Plaintiff s testimony as a defense investigator serves her clients interests and addresses no issue of public concern. Finally, plaintiff s work is not, as she claims, akin to that of a journalist. But even if it were, journalists do not get a free pass to roam anywhere they please. Cf. Zemel v. Rusk, 381 U.S. 1, 17 (1965) ( the prohibition of unauthorized entry into the White House diminishes the citizen s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right ). All of these factors give rise to doubt about the scope of plaintiff s rights and Special Agent Martin s constitutional duties. In light of those doubts, the district court erred in concluding that plaintiff had alleged a violation of clearly established law. Her failure to do so is an independent and sufficient basis for reversing the district court s decision. -25-

32 Case: /01/2012 ID: DktEntry: 27 Page: 32 of 44 III. PLAINTIFF SHOULD NOT BE GIVEN AN OPPORTUNITY TO AMEND HER COMPLAINT This Court should reject plaintiff s suggestion (at 11) that her retaliation claim against Special Agent Martin should be remanded to the district court so that she can amend her allegations. The protections of qualified immunity are significantly eroded when a plaintiff who files a complaint that fails to plausibly allege a claim against an individual federal official is allowed, as a matter of course, to amend the complaint after the defendant does the work of spelling out the deficiencies in the complaint. Plaintiff has failed to explain what allegations she might add to her complaint to make her claim plausible. See Alliance Shippers, Inc. v. S. Pac. Transp. Co., 858 F.2d 567, 571 (9th Cir. 1988) (rejecting argument for amendment because plaintiff did not indicate how it proposed to amend its complaint ). And as we have just explained (at 22-25), plaintiff has failed to establish that the right in question was clearly established, which means that amendment would be futile. For these reasons and in light of the significant burdens this litigation has already placed on Special Agent Martin, this Court should reverse the district court s decision and remand with instructions to dismiss the Bivens claim against Special Agent Martin. -26-

33 Case: /01/2012 ID: DktEntry: 27 Page: 33 of 44 IV. PLAINTIFF S RELIANCE ON POST-APPEAL MATERIALS FROM THE RECORD BELOW IS IMPROPER Plaintiff s reliance repeated reliance (e.g., 6 n.3, 19, 20) on an answer to her claim for injunctive relief that was filed by other defendants during the pendency of this appeal is improper and underscores her disregard for the 3 proper scope of qualified immunity. Plaintiff lacked a plausible claim against Special Agent Martin when she filed her complaint, but chose to seek damages from him in his personal capacity anyway. Now she ignores the fact that qualified immunity entitled him not just to immunity from damages, but immunity from discovery as well, and attempts to use discovery on other claims against other defendants to get past the deficiencies in her complaint (or, as explained above, to obtain a do-over by amending her complaint after obtaining discovery against other defendants). As Iqbal explains, Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than 3 The answer does not in any event strengthen plaintiff s claim against Special Agent Martin. It states that NCIS was investigating plaintiff s use of credentials, but does not describe Special Agent Martin s participation in the investigation. -27-

34 Case: /01/2012 ID: DktEntry: 27 Page: 34 of 44 conclusions. 556 U.S. at This Court should not allow plaintiff to get around this principle by relying on post-appeal materials. V. PLAINTIFF S ARGUMENT THAT THIS COURT HAS ALREADY RECOGNIZED THE BIVENS REMEDY SHE SEEKS FAILS TO GRAPPLE WITH RECENT SUPREME COURT PRECEDENT OR THE SPECIAL FACTORS AND ALTERNATIVE REMEDIES AT ISSUE HERE Our opening brief explained (at 40-41) that courts must take account of context when considering whether to make common law damages available under Bivens for a particular claim. As this Court recognized in Mirmehdi v. United States, 662 F.3d 1073 (9th Cir. 2011) (rh g petition pending), the appropriate context to consider when determining whether to imply a Bivens remedy is a potentially recurring scenario that has similar legal and factual components. Id. at 1079 (internal quotation marks omitted). Plaintiff s contention (at 31-33) that Gibson v. United States is controlling precedent that establishes that there is a Bivens remedy for her claim fails to recognize this point. She defines the particular remedy at issue much too broadly, characterizing it as a remedy for retaliation by law enforcement officers in violation of the First Amendment. -28-

35 Case: /01/2012 ID: DktEntry: 27 Page: 35 of 44 Just this term, the Supreme Court confirmed that courts must define the remedy in question more narrowly than that, taking account of the identity of the defendant and the particular factual and legal context at issue. In Minneci v. Pollard, U.S., 132 S. Ct. 617 (2012), the Court confronted the question whether to imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison for deliberate indifference to the plaintiff s medical needs. 132 S. Ct. at 620. The Court described the context for the proposed remedy as follows a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, the conduct allegedly amounts to a violation of the Eighth Amendment, and the conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here). Id. at 626. The Court refused to recognize the proposed remedy so-defined, even though it had previously recognized a remedy for an Eighth Amendment claim based on federal government officials deliberate indifference to a federal prisoner s medical needs in Carlson v. Green, 446 U.S. 14 (1980). It explained that it was rejecting the -29-

36 Case: /01/2012 ID: DktEntry: 27 Page: 36 of 44 proposed remedy because in the case of a privately employed defendant, state tort law provides an alternative, existing process capable of protecting the constitutional interests at stake. 132 S. Ct. at 623 (quoting Wilkie, 551 U.S. at 550). According to the Minneci Court, the existence of that alternative here constitutes a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. Id. Carlson is to the claim in Minneci as Gibson is to the claim in this case. This Court s recognition of a Bivens claim for First Amendment retaliation in Gibson is not dispositive as to whether to recognize a remedy here, where the factual context gives rise to special factors not present in Gibson and plaintiff has an alternative remedy that was not considered in Gibson. Instead, deciding whether to imply a remedy requires considering the availability of alternative remedies and whether any special factors counsel hesitation in allowing a Bivens claims to proceed. As our opening brief explained (at 42), implied causes of action are disfavored, Iqbal, 556 U.S. at 675 (citing Bush v. Lucas, 462 U.S. 367 (1983)). Indeed, for more than thirty years the Supreme Court has consistently rejected invitations to recognize new Bivens remedies, concluding in a -30-

37 Case: /01/2012 ID: DktEntry: 27 Page: 37 of 44 number of cases that the existence of alternative remedies or special factors counselling hesitation in judicial lawmaking made it inappropriate to imply a new remedy. See Minneci, 132 S. Ct. at 622 (internal quotation marks omitted). Those same factors make it inappropriate to imply a remedy here. W. Radio Servs. v. United States Forest Service, 578 F.3d 1116, 1123 (9th Cir. 2009), makes clear that the APA provides an alternative remedy to plaintiff such that no Bivens remedy should be implied here. Plaintiff s contentions about the length of the investigation or her uncertainty regarding whether it has concluded provide no meaningful basis for distinguishing W. Radio, because the APA provides a remedy for agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. 706(1). Plaintiff does not otherwise offer a substantive response regarding W. Radio and the APA, arguing instead (at 32-34) that this Court should not follow W. Radio and Wilkie because those cases do not explicitly overrule Gibson. But as we have just explained, Gibson does not consider the APA remedy, and therefor does not control the question. Additionally, as our opening brief showed (at 46-50), there are special factors present here and not present in Gibson that counsel hesitation in -31-

38 Case: /01/2012 ID: DktEntry: 27 Page: 38 of 44 implying a Bivens remedy. The Supreme Court has made clear that the potential for intrusion on military matters counsels hesitation. See United States v. Stanley, 483 U.S. 669, (1987); Chappell v. Wallace, 462 U.S. 296, 297, 305 (1983). Plaintiff focuses (at 34) on her civilian status and does not answer the key point regarding special factors: her claim against Special Agent Martin concerns her access to a military base to participate in the military justice system, and the security of military bases and the functioning of the military justice system is of special concern to the United States. For purposes of analyzing the special factors question, what matters is not plaintiff s identity, but rather the nature of the suit and the consequences flowing from it. Lebron v. Rumsfeld, 670 F.3d 540, 554 (4th Cir. 2012). The remedy plaintiff seeks will affect how officers prevent unauthorized persons from entering restricted military bases and how the military handles prosecutions of service members accused of crimes. Recognizing a retaliatory investigation damages action against federal officials responsible for securing military bases would come at too high a cost. Such a remedy would tend to deter legitimate investigations. Because -32-

39 Case: /01/2012 ID: DktEntry: 27 Page: 39 of 44 liability for retaliation turns in part on a jury s evaluation of subjective intent, the retaliatory-investigation tort contemplated by plaintiff lacks an objective anchor that would enable an officer to predict his potential liability. An officer conducting an investigation for legitimate reasons might accordingly worry that circumstantial evidence would cause a jury to think his acts were retaliatory. And that circumstantial evidence might often be the same evidence that led to the investigation in the first place. An official in these circumstances would face an unpleasant choice between, on one hand, forgoing the investigation and, on the other, inviting litigation by carrying it out. This concern about chilling legitimate investigation has particular weight in this context. The Supreme Court has repeatedly made clear that courts should be reluctant to allow constitutional claims to proceed when there is a potential for intrusion by the judiciary on matters that have constitutionally and legislatively been delegated to the executive and the military. See Greer v. Spock, 424 U.S. 828, (1976) (rejecting a First Amendment challenge to military regulations limiting political activities on bases); Cafeteria Workers v. McElroy, 367 U.S. 886, (1961) (holding that -33-

40 Case: /01/2012 ID: DktEntry: 27 Page: 40 of 44 the Constitution provides no right for an individual to engage in private employment on a military base); United States v. Albertini, 472 U.S. 675, (1985) (exclusion of plaintiff from military base did not violate the First Amendment); see also United States v. Hawkins, 249 F.3d 867, 875 (9th Cir. 2001) (finding no Fourth Amendment violation regarding a search of a car inside a military base in part because of [t]he Government s interest in maintaining national security and promoting public safety on base roadways ). Moreover, Special Agent Martin s actions also concern plaintiff s participation in the military justice system; reviewing plaintiff s claim would require the court to intrude on the military justice system by examining her role and her rights as an investigator for military defendants in it, even though the Nash court has already heard and rejected the argument that NCIS s investigation into plaintiff s use of credentials was improper. As our opening brief explained (at 49), the Uniform Code of Military Justice relies on the military justice system not a damages remedy to protect the rights of litigants. See Mundy v. Weinberger, 554 F. Supp. 811, 823 n.37 (D.D.C. 1982) (finding that the Uniform Code of Military Justice afforded plaintiff a -34-