Scott A. Williams v. Chalon Keller

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
SCOTT A. WILLIAMS,
Plaintiff - Appellant,
v.
CHALON KELLER; HEIDI GIBSON;
NED KING; RANDY TITUS; DAVID
BOLTON; UNITED STATES OF
AMERICA; JOHN and JANE DOES
I-XX,
Defendants - Appellees.
No. 21-4022
(D.C. No. 1:19-CV-00079-TS)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
_________________________________
Plaintiff Scott A. Williams appeals the district court’s Fed. R. Civ. P. 12(b)(6)
dismissal of his malicious prosecution claims against the above-named federal
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 1, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 1

-- 1 of 12 --

2
officials under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
The following factual summary is derived from the complaint. Mr. Williams
was employed by STS Systems Integration (SSI), a defense contractor doing work for
the Air Force at Hill Air Force Base (HAFB) related to the acquisition of F-16
aircraft by the Indonesia Air Force (IDAF). In March 2013, he and several Air Force
civilian employees, including defendants Heidi Gibson and Randy Titus, met with
representatives of the IDAF to discuss its need for F-16 components and parts.
During the conference, an IDAF officer asked Mr. Williams to show him a technical
order with drawings of the cockpit in the F-16 aircraft the IDAF was going to
acquire. Believing he was authorized to do so, Mr. Williams gave the IDAF officer
the drawings. When Mr. Williams realized the data transfer may have been
premature, he informed Mr. Titus. They then retrieved the drawings from the IDAF.
Several weeks later, Ms. Gibson told defendant Ned King, the section chief
over the F-16 Indonesia program, she thought Mr. Williams’s disclosure of the
drawings was inappropriate. Mr. King reported this to defendant Chalon Keller, the
deputy director of the F-16 International Branch at HAFB. Together, they reported
the alleged security violation to security manager Donalene Knowley.
1 The district court dismissed the United States as a defendant after
Mr. Williams conceded it was not a proper defendant in a Bivens action. See Farmer
v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). He does not appeal that ruling.
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 2

-- 2 of 12 --

3
In April 2013, at the request of IDAF officials, Mr. Williams arranged for
spare brake assemblies to be shipped to Indonesia for installation on one of the
IDAF’s F-16s. He alleged that he believed the shipment was consistent with Air
Force policy, but the defendants claimed it violated Air Force regulations and that he
had made the shipment to advance his own interests to the detriment of the Air Force.
SSI terminated Mr. Williams in May 2013. He alleged his termination was the
result of Mr. Keller’s and Mr. King’s insistence that SSI remove him from the F-16
foreign military sales program because of the data transfer and parts shipment.
The Office of Special Investigations at HAFB began an investigation of
Mr. Williams’s sharing of the F-16 drawings with the IDAF officer and his shipment
of the brake assemblies to the IDAF. Mr. Keller, Ms. Gibson, Mr. King, and
Mr. Titus provided statements to defendant David Bolton, the lead investigator.
In February 2016, a grand jury returned an indictment against Mr. Williams
on two counts of unlawful exportation of goods from the United States, false
statement in a document, and conversion of property of the United States. The
indictment was based in part on information developed by Mr. Bolton’s investigation,
including the statements provided by the other defendants. Mr. Williams was
detained in county jail for four days.
In July 2017, the district court dismissed the indictment on a motion by the
United States. Mr. Williams then brought this action alleging he was subjected to a
malicious prosecution in violation of the Fourth Amendment based on the
defendants’ allegedly false statements about him during the investigation. He sought
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 3

-- 3 of 12 --

4
damages under the authority of Bivens. The district court dismissed the complaint
under Rule 12(b)(6), concluding Mr. Williams failed to state a plausible claim under
Bivens because (1) his claims arose in a context different from Supreme Court
precedents, and (2) there were significant reasons for declining to create a new
Bivens cause of action. This appeal followed.
DISCUSSION
Mr. Williams contends the district court erred by dismissing his complaint.
But he largely ignores the basis for the court’s decision—that his claims are not
cognizable under Bivens—and focuses instead on fact-based arguments about the
merits of his claims. We conclude the district court properly dismissed the claims as
legally insufficient to state a plausible Bivens claim, and we therefore do not address
Mr. Williams’s merits arguments.
A. Standard of Review
As an initial matter, we note that although Mr. Williams was represented by
counsel in district court, he is proceeding pro se on appeal. We thus read his filings
liberally, but we “cannot take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005).
We review the district court’s Rule 12(b)(6) dismissal de novo. Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 4

-- 4 of 12 --

5
(2009) (internal quotation marks omitted). In conducting our review, we accept all
well-pleaded factual allegations as true, view them in the light most favorable to the
plaintiff, and draw all reasonable inferences in his favor. Brooks v. Mentor
Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021), petition for cert. filed (U.S.
June 25, 2021) (No. 20-1822). Our duty “is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.” Smith, 561 F.3d
at 1098 (internal quotation marks omitted).
B. Bivens Standards
In Bivens, the Supreme Court recognized an implied cause of action for
damages against federal officers alleged to have violated a citizen’s Fourth
Amendment rights. See 403 U.S. at 396-97. But the Court has recognized that “it is
a significant step under separation-of-powers principles for a court to determine that
it has the authority, under the judicial power, to create and enforce a cause of action
for damages against federal officials in order to remedy a constitutional violation.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017). Accordingly, the Court has warned
that when tasked with determining “who should decide” if a damages remedy is
available, “[t]he correct answer most often will be Congress.” Hernandez v. Mesa,
140 S. Ct. 735, 750 (2020) (internal quotation marks omitted). Since Bivens was
decided, the Court has proceeded cautiously and, with only two exceptions, has
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 5

-- 5 of 12 --

6
refused to extend Bivens to new contexts and new categories of defendants. Abbasi,
137 S. Ct. at 1857-59 (internal quotation marks omitted). 2
Consistent with the Court’s view that further expansion of the Bivens remedy
is “disfavored,” Iqbal, 556 U.S. at 675, the two-part test established in Abbasi places
significant obstacles in the path to recognition of an implied cause of action where
there is no statute authorizing a claim for money damages. First, courts must
determine whether a claim “presents a new Bivens context.” Abbasi, 137 S. Ct. at
1859. The context is new if the case differs “in a meaningful way” from the Court’s
previous Bivens cases. Id. “A claim may arise in a new context even if it is based on
the same constitutional provision as a claim in a case in which a damages remedy
was previously recognized.” Hernandez, 140 S. Ct. at 743.
Second, if the plaintiff’s claim presents a new Bivens context, courts must
consider whether “there are special factors counselling hesitation in the absence of
affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857 (internal quotation
marks omitted). The focus of the special-factors inquiry is “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 1858. “[T]o be a
special factor counselling hesitation, a factor must cause a court to hesitate before
2 The two exceptions are Davis v. Passman, 442 U.S. 228, 248-49 (1979)
(permitting an employee of a member of Congress to bring a Bivens action alleging
gender discrimination under the Due Process Clause of the Fifth Amendment), and
Carlson v. Green, 446 U.S. 14, 18-20 (1980) (allowing a federal prisoner to pursue
an Eighth Amendment claim under Bivens for deliberate indifference to serious
medical needs by prison officials).
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 6

-- 6 of 12 --

7
answering that question in the affirmative.” Id. (internal quotation marks omitted).
The “special factors” at issue here are (1) whether a Bivens action “would require
courts to interfere in an intrusive way with sensitive functions of the Executive
Branch,” id. at 1861; (2) whether Congress has taken other action in the area without
authorizing a damages remedy, see id. at 1862; and (3) whether a “remedial
structure” is already in place to address constitutional violations, even if it does not
go as far as a Bivens remedy might, id. at 1858, 1862-63. When factors like these are
present, it is “less probable that Congress would want the Judiciary to entertain a
damages suit,” id. at 1858, so we must “reject the request” to expand Bivens,
Hernandez, 140 S. Ct. at 743.
C. Application
Applying that analytical framework here, we have no trouble concluding that
Mr. Williams’s claims do not fall within the narrow spectrum of claims for which the
Supreme Court has approved a Bivens remedy. He conceded in district court that his
claims “establish a new Bivens context” because they are meaningfully different from
the Fourth Amendment claim at issue in Bivens. R. at 143. Thus, the only question
we must answer is whether this is one of the unusual situations in which we are “well
suited . . . to consider and weigh the costs and benefits of allowing a damages action
to proceed.” Abbasi, 137 S. Ct. at 1858. We conclude it is not, because we agree
with the district court that the intrusion into executive-branch functions and presence
of alternative remedial processes counsel against extending Bivens here.
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 7

-- 7 of 12 --

8
First, expanding Bivens here would interfere with executive branch functions
in several important ways. To prove his claims, Mr. Williams would have to
establish that the defendants provided false information knowingly or with reckless
disregard for the truth, and that probable cause would not have existed without that
information. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (to prevail on
Fourth Amendment claim alleging misrepresentations in warrant affidavit, defendant
had to show false statements were necessary to probable cause finding); see also
Hartman v. Moore, 547 U.S. 250, 252, 265-66 (2006) (to prove First Amendment
retaliatory prosecution claim, plaintiff must show lack of probable cause). The jury
considering Mr. Williams’s claims would have to examine the evidence available to
investigators, prosecutors, and the grand jury, then decide whether the grand jury
would have voted to indict him without the allegedly false information the defendants
provided. The fact that litigating his claims would require delving into executive
charging decisions and compromising the secrecy of grand jury proceedings counsels
against extending Bivens. 3 Cf. Wayte v. United States, 470 U.S. 598, 607-08 (1985)
(recognizing in selective prosecution case “that the decision to prosecute is
particularly ill-suited to judicial review” and identifying “substantial concerns that
make the courts properly hesitant to examine the decision whether to prosecute”);
United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (“[T]he proper
3 We recognize that some suits under 42 U.S.C. § 1983 pose similar risks. But
we presume Congress has done the cost benefit analysis and decided the potential
encroachment is worth it, and recognizing a new Bivens claim in this context would
require us to make that balancing determination without congressional guidance.
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 8

-- 8 of 12 --

9
functioning of our grand jury system depends upon the secrecy of grand jury
proceedings.” (internal quotation marks omitted)). The fact that fear of potential
financial liability may chill federal employees’ willingness to participate in internal
investigations also counsels against extending Bivens here. See Anderson v.
Creighton, 483 U.S. 635, 638 (1987) (recognizing that “permitting damages suits
against government officials can entail substantial social costs, including the risk that
fear of personal monetary liability and harassing litigation will unduly inhibit
officials in the discharge of their duties”).
Second, Congress has provided a statutory damages remedy for some victims
of wrongful prosecution and tortious conduct by federal employees but not for others,
which reflects a deliberate policy decision that we should not disrupt. The Hyde
Amendment permits defendants in criminal cases to recover attorney’s fees when the
government’s position was vexatious, frivolous, or in bad faith. Pub. L. No. 105-119,
§ 617, 111 Stat. 2440, 2519 (1997). And under the unjust conviction and
imprisonment statutes, a person who can show his conviction was reversed or set
aside because he was not guilty of the offense is entitled to recover damages based on
the length of his unjust incarceration. See 28 U.S.C. §§ 1495, 2513(a). Congress has
also established a statutory framework for remedying torts committed by federal
officers—the Federal Tort Claims Act (FTCA). See Hernandez, 140 S. Ct. at 748
(considering scope of FTCA remedies in determining whether to create a new Bivens
remedy). It waives the federal government’s sovereign immunity for many tort
claims but expressly exempts from that waiver most claims arising from malicious
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 9

-- 9 of 12 --

10
prosecution. 28 U.S.C. § 2680(h). 4 Congress’s decision not to expose most federal
employees to liability for malicious prosecutions under the FTCA does not
necessarily mean it would do the same if it were to enact legislation covering
constitutional claims against federal employees, 5 but the limited scope of the FTCA’s
waiver of immunity weighs against our expansion of the Bivens remedy to cover
Mr. Williams’s malicious prosecution claims. See Hernandez, 140 S. Ct. at 748.
The fact that statutory remedies may be unavailable to Mr. Williams does not
affect our special-factors analysis. 6 See United States v. Stanley, 483 U.S. 669, 683
(1987) (explaining that “it is irrelevant to a special factors analysis whether the laws
currently on the books afford [the plaintiff] . . . an adequate federal remedy for his
injuries” (internal quotation marks omitted)); see also Schweiker v. Chilicky,
487 U.S. 412, 414, 425 (1988) (declining to imply a Bivens remedy for due process
claims stemming from the denial of Social Security benefits despite unavailability of
compensatory damages under alternate remedial scheme). The special factor that
counsels hesitation is not whether Congress has established a remedy for the plaintiff,
but whether it has established a remedial structure and whether judicially created
4 The exception does not apply to investigative or law enforcement officers.
28 U.S.C. § 2680(h).
5 The FTCA does not apply to a civil action brought against a federal
employee for a constitutional violation. See 28 U.S.C. § 2679(b)(2).
6 We recently dismissed Mr. Williams’s appeal of the district court’s entry of
summary judgment for the United States on his FTCA claims and the dismissal of the
action without prejudice for lack of subject matter jurisdiction. Williams v. United
States, 852 F. App’x 378, 379 (10th Cir. 2021).
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 10

-- 10 of 12 --

11
remedies would upset the balance Congress struck. See Abbasi, 137 S. Ct. at 1857-58
(explaining that “[w]hen an issue involves a host of considerations that must be
weighed and appraised, it should be committed to those who write the laws rather
than those who interpret them,” and that when “Congress has designed its regulatory
authority in a guarded way, . . . it [is] less likely that Congress would want the
Judiciary to interfere” (internal quotation marks omitted)).
We conclude that these concerns provide “sound reasons to think Congress
might doubt the efficacy or necessity of a damages remedy” here. Id. at 1858; see
Annappareddy v. Pascale, 996 F.3d 120, 137-38 (4th Cir. 2021) (declining to extend
Bivens remedy to Fourth Amendment malicious prosecution claim, citing existence of
alternative remedial structure for persons wrongly charged or convicted and judicial
interference in executive branch investigations and prosecutorial functions); Cantú v.
Moody, 933 F.3d 414, 423-24 (5th Cir. 2019) (same, citing, among other factors, the
FTCA and “the length of time Congress has gone without statutorily creating a
Bivens-type remedy for this context”); Farah v. Weyker, 926 F.3d 492, 500-02
(8th Cir. 2019) (same, citing intrusion into executive functions and existence of
alternative remedial schemes). Accordingly, the district court properly dismissed
Mr. Williams’s claims as legally insufficient. And because his claims are not
cognizable under Bivens, we do not address his merits-based arguments.
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 11

-- 11 of 12 --

12
CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
Appellate Case: 21-4022 Document: 010110584799 Date Filed: 10/01/2021 Page: 12

-- 12 of 12 --