Davis v. Wernick

DONOVAN DAVIS, JR., Plaintiff, v. EPHRAIM WERNICK, Defendant.

Case No. 19-cv-3327 (CRC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 29, 2021

MEMORANDUM OPINION

Federal inmate Donovan Davis, Jr., proceeding pro se, has sued former Assistant United States Attorney Eprhaim Wernick for allegedly ordering the destruction of a laptop computer belonging to Davis following the conclusion of Davis's criminal fraud prosecution. Davis alleges that Wernick's actions deprived him of property in violation of the Due Process Clause of the Fifth Amendment and related Constitutional provisions. He seeks monetary damages. Wernick moves to dismiss the complaint, arguing that Davis has stated neither a recognized Bivens action nor, in the alternative, a viable tort claim. The Court agrees and will grant the motion.

I. Background

The Court draws the following background from Mr. Davis's November 2019 complaint unless otherwise noted. Mr. Wernick presumably contests many of the allegations.

A jury convicted Davis of federal fraud offenses in 2015 and he is currently serving a lengthy prison sentence. See Davis v. Federal Bureau of Investigation, No. 18-cv-0086, 2019 WL 2870729, at *1 (D.D.C. July 3, 2019) (Cooper, J.); Compl. at 1. Davis alleges that in 2008 he relinquished a personal laptop to the United States Secret Service. Compl. at 2. That laptop purportedly contained "trade secrets, personal images, and intellectual property" as well as "data [which] showed that" former AUSA Wernick "and others conspired to deceive a federal district court" during the course of Davis's prosecution. Compl. at 2, 4. In the ensuing years, the laptop remained in the custody of the Secret Service and was never searched or returned to Davis. Compl. at 3. Davis maintains that the Secret Service was instructed not to dispose of the laptop while the direct appeals of his conviction were still pending. Compl. at 4. Wernick nevertheless ordered the destruction of the laptop in 2017, according to Davis, "in order to conceal Mr. Wernick's participation in obstructing justice." Compl. at 4.

Davis contends that Wernick's direction to destroy the laptop constituted a deprivation of property without due process of law in violation of the Fifth Amendment of the United States Constitution. Compl. at 5-6.¹ Davis requests "actual, compensatory, and consequential damages" and claims that the "cost of recovering and reproducing the destroyed property exceeds $100,000." Compl. at 6-7. Wernick moves to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted.

II. Legal Standards

In order to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeciding such a motion, the Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which a court may take judicial notice, and matters of public record. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).

III. Analysis

A. Potential Bivens Claim

Davis seeks damages against a federal officer for an alleged violation of a constitutional right and his claims do not arise out of any cause of action previously authorized by Congress. As a result, the claims must rest, if at all, on an implied constitutional cause of action such as that recognized by the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See K.O. v. U.S. Immigration and Customs Enforcement, 468 F. Supp. 3d 350, 363 (D.D.C. 2020). And, because the Supreme Court has not recognized an implied cause of action against an individual federal officer for damages due to destruction of property in violation of the Due Process Clause of the Fifth Amendment, Davis's claims must satisfy the standards the Supreme Court outlined in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), for the recognition of new implied constitutional causes of action for damages.

Under Ziglar, 137 S.Ct. at 1859-60, a plaintiff seeking recognition of a new implied cause of action for damages under the Constitution must meet a demanding two-part test. First, courts inquire as to whether the case "presents a new Bivens context," which requires determining whether the circumstances of the case differ in a "meaningful way" from "previous Bivens cases decided by" the Supreme Court. Id. Those differences can consist of a difference in "the constitutional right at issue." Id. at 1860. If the case presents a new context, then the court asks whether any "special factors counsel[] hesitation" against recognizing the cause ofaction. Id. at 1857 (internal quotation marks and citation omitted). This second "inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Id. at 1857-58. In applying this test, Ziglar emphasized that recognizing new constitutional implied causes of action was a "disfavored judicial activity." Id. at 1857 (internal quotation marks and citation omitted).

As explained below, Davis cannot overcome this high bar for recognition of his claims. Nor can he salvage his claims by recasting them as torts. The Court will therefore grant Wernick's motion to dismiss.

1. New context

There can be no question that Davis's assertion of an implied cause of action based on an alleged deprivation of property in violation of the Due Process Clause of the Fifth Amendment presents a "new context" under Ziglar, 137 S.Ct. at 1859-60. As Ziglar explained, a claim presents a new context when it raises a constitutional challenge that differs from previous Bivens cases. Id. The three Bivens cases the Court referenced—Bivens itself, Carlson v. Green, 446 U.S. 14, 17 (1980), and Davis v. Passman, 442 U.S. 228, 248-49 (1979)—concerned, respectively, the Fourth Amendment, the Eighth Amendment, and a due process claim alleging gender discrimination under the Fifth Amendment. Id. at 1854-55. The Supreme Court has not previously recognized an implied cause of action for deprivations of property under the Fifth Amendment. See id. at 1855 (noting that "these three cases . . . represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself"). Accordingly, Davis's claims present a "new [] context" requiring the Court to consider if thereare "special factors counsel[ling] hesitation" against recognizing an implied cause of action here. Id. at 1859-60. There are.

2. Special factors counselling hesitation

Although the Supreme Court "has not defined the phrase 'special factors counselling hesitation,'" it has explained that "the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Ziglar, 137 S.Ct. at 1857-58. "[T]o be a special factor counselling hesitation, a factor must cause a court to hesitate before answering that question in the affirmative." Id. at 1858 (internal quotation marks omitted). One special factor singled out by the Court in Ziglar was the presence of "an alternative remedial structure . . . for protecting the injured party's interest." Id. (cleaned up). Here, the presence of at least two alternative remedial structures which could vindicate Davis's interest in his property provide just the sort of special factors counselling against recognizing a new Bivens action based on a property deprivation under the Fifth Amendment.

First, plaintiffs seeking damages for the destruction or taking of property under the Fifth Amendment may bring a claim under the Tucker Act. See 28 U.S.C. § 1491; Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1328 n.12 (2020) (discussing implied causes of action and noting that "[a]lthough there is no express cause of action under the [Fifth Amendment's] Takings Clause, aggrieved owners can sue through the Tucker Act under our case law" (citations omitted)); Monarch Ins. Co. of Ohio v. D.C., 353 F. Supp. 1249, 1252-53 (D.D.C. 1973) aff'd sub nom. Aetna Ins. Co. v. United States, 497 F.2d 683 (D.C. Cir. 1974) (noting that "if plaintiff's claim of denial of due process arises solely from its claim of a taking without just compensation, plaintiff has a recognized cause of action under the Tucker Act . . .")(internal quotation marks omitted). Although such a suit must be brought against the United States, rather than an individual officer, see, e.g., Van Drasek v. Lehman, 762 F.2d 1065, 1069-70 (D.C. Cir. 1985), it suffices for the special factors analysis that the alternative remedy in question vindicate the plaintiff's interest, not that it render a particular defendant liable for damages, see Ziglar, 137 S.Ct. at 1858, 1862-63.

Ziglar further observed that the presence of a more limited alternative remedial scheme may provide a negative inference as to Congress's intent to create a damages action against a federal officer, as the balance of policy considerations in creating such an action is for Congress to properly strike. See id. at 1865 (noting, in the context of prisoner abuse claims, that "legislative action suggesting that Congress does not want a damages remedy is itself a factor counselling hesitation"). Congress's adoption of a more particular form of relief for property deprivations thus counsels against implying a damages remedy. See id.; Wilson v. Libby, 535 F.3d 697, 705-06 (D.C. Cir 2008) (observing that "[a] remedial statute need not provide full relief to the plaintiff to qualify as a special factor"); Kizas v. Webster, 707 F.2d 524, 534 n.42 (D.C. Cir. 1983...