Carolyn Martin v. Naval Criminal Investigative Service;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN MARTIN,
Plaintiff - Appellee,
v.
NAVAL CRIMINAL INVESTIGATIVE
SERVICE; et al.,
Defendants,
and
GERALD MARTIN, “Jerry,” NCIS
Special Agent,
Defendant - Appellant.
No. 11-56717
D.C. No. 3:10-cv-01879-WQH-
MDD
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted August 5, 2013
Pasadena, California
FILED
SEP 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**
Naval Criminal Investigative Service Special Agent Gerald Martin appeals
the partial denial of his motion to dismiss, on qualified immunity grounds, this
constitutional tort suit under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), alleging retaliation in violation of the
First Amendment. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the
collateral order doctrine, see Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we affirm.
1. The complaint adequately pleads a violation of the First Amendment. Taken
as a whole, the allegations in the complaint establish that Special Agent Martin
“took action that ‘would chill or silence a person of ordinary firmness from future
First Amendment activities.’” Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232
(9th Cir. 2006) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d
1283, 1300 (9th Cir.1999)). The alleged early-morning confrontation at Plaintiff
Carolyn Martin’s home, which could not have served any valid law enforcement
purpose, renders plausible the notion that “deterrence [of protected activity] was a
** The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
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substantial or motivating factor in” Special Agent Martin’s conduct. Sloman v.
Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). The record reasonably supports the
inference that Special Agent Martin was aware of Ms. Martin’s protected activity
at the time this incident took place. See Watison v. Carter, 668 F.3d 1108, 1114
(9th Cir. 2012) (“Because direct evidence of retaliatory intent rarely can be pleaded
in a complaint, allegation of a chronology of events from which retaliation can be
inferred is sufficient to survive dismissal.”).
That, in combination with the complaint’s other allegations of a perpetual
and pretextual investigation, is sufficient to allow the case to proceed until the
record is sufficiently developed to reveal whether Special Agent Martin acted with
an impermissible purpose. Cf. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,
901 (9th Cir. 2008); see also Ford v. City of Yakima, 706 F.3d 1188, 1194 n.2 (9th
Cir. 2013) (“[T]hat determination should be left to the trier of fact once a plaintiff
has produced evidence that the officer’s conduct was motivated by retaliatory
animus.”). At this procedural stage, taken as true, the complaint alleges facts
sufficient to support the conclusion that Special Agent Martin, through his “own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009).
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2. The law prohibiting Special Agent Martin’s alleged conduct is clearly
established. “The question is not whether an earlier case mirrors the specific facts
here. Rather, the relevant question is whether ‘the state of the law at the time gives
officials fair warning that their conduct is unconstitutional.’” Ellins v. City of
Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013) (quoting Bull v. City & Cnty. of
San Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (en banc)). Our precedent has
long provided notice to law enforcement officers “that it is unlawful to use their
authority to retaliate against individuals for their protected speech,” Ford, 706
F.3d at 1195, “even if probable cause exists for” the challenged law enforcement
conduct, Skoog, 469 F.3d at 1235. “[A]ny reasonable police officer would have
understood that Skoog’s prohibition on retaliatory police action,” though
elaborated in the context of a retaliatory seizure of property, “extended to [other]
typical police actions.” Ford, 706 F.3d at 1196. These surely include detention,
surveillance, and service of a bogus violation notice. Cf. Sloman, 21 F.3d at 1469
(recognizing a claim under the First Amendment where a police officer “used his
official powers, specifically his power to warn, cite, and arrest, to retaliate against
[the] exercise of . . . free speech rights”).
3. There are no alternative avenues of relief available to Ms. Martin or other
“special factors counselling hesitation” in recognizing a Bivens remedy in this case.
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See Wilkie, 551 U.S. at 550 (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)).
We have long recognized that such a remedy is available to redress allegations of
retaliation against protected speech by federal law enforcement officers. See
Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986). Although we more
recently held that the Administrative Procedure Act generally “provide[s] the
backup or default remedies for all interactions between individuals and all federal
agencies,” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir.
2009), here no APA remedy is available because there is no “final agency action”
for Ms. Martin to challenge, see 5 U.S.C. § 704. Rather, “[a]n investigation, even
one conducted with an eye to enforcement, is quintessentially non-final as a form
of agency action.” Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770, 781
(9th Cir. 2000). The very gravamen of Ms. Martin’s complaint is that the alleged
retaliatory “investigation” of her is pretextual and perpetually open, rendering the
APA’s provision for judicial review of “final” agency actions particularly illusory.
Finally, that this appeal partially concerns events that occurred on a military
base is not a “special factor” sufficient to distinguish this case from Gibson.
United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S.
296 (1983), are inapposite because Ms. Martin’s lawsuit involves neither claims
brought by servicemen against their superior officers nor “injuries that ‘arise out of
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or are in the course of activity incident to service.’” Stanley, 483 U.S. at 684
(quoting Feres v. United States, 340 U.S. 135, 146 (1950)). The other authorities
upon which Special Agent Martin relies are equally inapplicable because Ms.
Martin does not allege that she has been barred from a military base, much less that
such an exclusion is the source of her constitutional injury. Cf. United States v.
Albertini, 472 U.S. 675, 686-87 (1985); Greer v. Spock, 424 U.S. 828, 838 (1976);
Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 892-93 (1961). Rather, she
claims that a federal law enforcement official harassed and intimidated
her—including at her own home, far from any military installation—because the
content of her constitutionally protected speech was unfavorable to him. Those
allegations “do not implicate military discipline in any meaningful way,”
Schoenfeld v. Quamme, 492 F.3d 1016, 1025 (9th Cir. 2007), and describe
precisely the type of injury for which Gibson already recognizes a Bivens remedy.
AFFIRMED.
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Martin v. Martin, 11-56717
SILVERMAN, Circuit Judge, dissenting:
I have scoured the complaint and I have drawn all reasonable inferences in
plaintiff’s favor. Yet I still fail to see where plaintiff has plausibly alleged that
anything this particular defendant supposedly did – even assuming he acted
unprofessionally, improperly, or overzealously – was in retaliation for the exercise
of her First Amendment rights, as opposed to being in furtherance of an
investigation into plaintiff’s reported misuse of her credentials, an investigation
that he was summoned to and did not initiate. Because plaintiff failed to state a
plausible constitutional violation, defendant Martin was entitled to qualified
immunity. I would reverse the district court’s denial of the motion to dismiss and
direct the district court to grant plaintiff leave to amend her complaint.
FILED
SEP 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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