Drewniak et al v. US Customs and Border Protection et al

2021 | Cited 0 times | D. New Hampshire | April 8, 2021


Jesse Drewniak v. Civil No. 20-cv-852-LM Opinion No. 2021 DNH 071 P U.S. Customs and Border Protection et al.

O R D E R Plaintiff Jesse Drewniak brings this suit against U.S. Customs and Border Protection, U.S. Border Patrol, 1

Chief Patrol Agent Robert N. Garcia of the Swanton Sector of the U.S. Border Patrol, and Agent Mark A. Qualter of the U.S. Border Patrol. 2

Drewniak alleges that defendants violated his Fourth Amendment rights by seizing him without reasonable suspicion at a traffic checkpoint erected for the primary purpose of discovering and prosecuting drug crimes. Drewniak sues Qualter in his individual capacity for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Drewniak sues CBP and Garcia for injunctive and declaratory relief, alleging that there is a substantial risk his rights will again be violated if CBP and Garcia are not enjoined from conducting additional checkpoints in New Hampshire.

1 For simplicity, the court will refer to these two defendants (U.S. Customs

2 U.S. Border Patrol Agent Jeremy Forkey as a defendant. On November 23, 2020, the parties filed a stipulation stating that Drewniak voluntarily dismissed Forkey without prejudice pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.

Qualter moves to dismiss the claim against him pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting, inter alia, that it is not cognizable in a Bivens action. See doc. no. 19. CBP and Garcia separately move claim against them pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that Drewniak lacks standing to seek injunctive and declaratory relief. See doc. no. 20. For the reasons discussed (doc. no. 19) but motion (doc. no. 20).

STANDARDS OF REVIEW Under Rule 12(b)(6), the court must accept the factual allegations in the plausible claim upon whi Foley v. Wells Fargo Bank,

N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (citation and internal quotation marks

that allows the court to draw the reasonable inference that the defendant is liable Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Rule 12(b)(1), jurisdiction in one of two ways: (1) by challenging the sufficiency of the allegations relied upon in the complaint to support jurisdiction; or (2) by challenging the accuracy of those allegations. See Hernández-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st Cir. 2005); see also 5B Arthur R. Miller et al., Fed. Prac. & Proc. Civ. § 1350

(3d ed.) differs depending on the challenge brought. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). Where a

review is the same as the Rule 12(b)(6) standard. See Sevigny v. United States, Civ. No. 13-cv-401-PB, 2014 WL 3573566, at *2-3 (D.N.H. July 21, 2014); Valentin, 254 F.3d at 363 allegations, those allegations court must address the merits of the jurisdictional claim by resolving the factual Valentin, 254 F.3d at 363. A challenge to the must be supported quality, id., and the court may consider the proffered materials in resolving the

Rule 12(b)(1) motion without converting it into a motion for summary judgment, see Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002). Here, CBP and Garcia have attached a declaration prepared by Garcia to their Rule 12(b)(1) motion. See doc. no. 20-2. The declaration contains assertions they are likely to conduct

additional checkpoints. The court will therefore consider declaration in highlighting the relevant facts below and in resolving challenge. See Gonzalez, 284 F.3d at 287-88.

BACKGROUND CBP has conducted numerous temporary traffic checkpoints in New Hampshire over the last several years. Although it conducted no such checkpoints from 2012 through 2016 due to lack of resources, the agency obtained necessary funding and personnel to re-initiate the use of checkpoints in 2017. 3

That year, the its plans to conduct traffic checkpoints in New Hampshire. Doc. no. 20-2 ¶ 9. Agency counsel reviewed the and CBP management at both the local and national level ultimately approved the order. Id. conducting traffic checkpoints in New Hampshire.

At CBP checkpoints, agents stop every vehicle traveling on the roadway where the checkpoint is located. When a vehicle begins approaching a checkpoint, bout their citizenship status. Agents also use

trained dogs - through the primary checkpoint. CBP dogs are trained to detect persons concealed

in traveling vehicles as well as narcotics. If a dog alerts, agents direct the vehicle to a secondary checkpoint area for further investigation.

3 - checkpoints in New Hampshire in 2017, neither his declaration nor complaint make clear when, prior to 2012, CBP last conducted a checkpoint program in the State.

CBP conducted two checkpoints in New Hampshire in 2017 one in August and one in September. It conducted an additional four checkpoints in 2018 one in

August, and one in September. CBP then conducted four more checkpoints in 2019 one in April, one in May, one in June during Laconia Motorcycle Week, and one in September. 4

Most of these checkpoints lasted multiple days. Seven took place on I - in Woodstock, including the checkpoint occurring August 25-27, 2017.

Drewniak is a resident of Hudson, New Hampshire, and is an avid outdoorsman. He travels to the White Mountains region of New Hampshire from his home in Hudson at least fifty times each year during fishing season, which generally lasts from March to November. During ice fishing season, which lasts from December to February, he travels to the White Mountains an additional ten times to enjoy outdoor recreation. In traveling to the White Mountains, Drewniak generally drives on I-93, which is the most direct route to the region from his home and which passes through the town of Woodstock, New Hampshire. On August 26, 2017, Drewniak was returning home with his friends on I-93 from a fishing trip in the White Mountains. CBP agents stopped Drewniak vehicle, along with every other vehicle travelling through Woodstock on I-93, at the Woodstock checkpoint taking place on that date. As vehicle approached

4 in New Hampshire since September 2019.

the primary checkpoint location, CBP agents asked Drewniak and his friends about side window. As they did so, another agent circled the vehicle with a trained dog. The agent handling the dog signaled to the agent questioning Drewniak and his friends, who then told t to proceed to the secondary checkpoint area. 5 Once the vehicle arrived at the secondary checkpoint area, agents instructed Drewniak and his friends to exit. Qualter then searched the vehicle along with his canine partner. However dog failed to alert to any detectable odors. After completing his search, Qualter shouted at Drewniak in close proximity and in a threatening manner Drewniak told Qualter that there was demanded that Drewniak retrieve it. Drewniak entered the vehicle and removed a

small quantity of hash oil in a container, turning it over to Qualter. Qualter then gave the hash oil to Sergeant Millar of the Woodstock Police Department, who was standing nearby. 6

Sergeant Millar charged Drewniak with violating New Controlled Drug Act. See RSA ch. 318-B; RSA 318-B:2-c, III, V

punishable only by a fine).

5 Drewniak was a passenger in the vehicle. 6 Local and State Police assisted CBP in carrying out the August 2017 checkpoint.

In his subsequent state court prosecution, Drewniak filed a motion to suppress. The presiding judge gra , concluding that the CBP occurring during the initial citizenship questioning constituted a search under the New Hampshire Constitution requiring reasonable suspicion. See doc. no. 1-1. Because the court found that CBP lacked reasonable suspicion, it ruled that the search violated Part I, Article 19 of the New Hampshire Constitution. The court further ruled that the State could not avoid suppression merely because federal rather than state officers conducted the unlawful search. 7 Drewniak thereafter initiated this lawsuit. His complaint brings two counts. Count I alleges that Qualter violated ts by searching and seizing him at the August 2017 checkpoint. Drewniak sues Qualter in his individual capacity for damages under Bivens. Count II alleges that CBP and Garcia have a practice of erecting unconstitutional traffic checkpoints in New Hampshire Fourth Amendment rights were violated at the August 2017 checkpoint as a result of this practice. Drewniak seeks declaratory relief under this count, as well as injunctive relief precluding CBP and Garcia (who is sued only in his official capacity) from operating additional traffic checkpoints on I-93.

7 The court also found that the August 2017 checkpoint violated the United States Constitution because its primary purpose was drug interdiction, not immigration enforcement.

Defendants filed two motions to dismiss. See doc. nos. 19 & 20. Qualter moves to dismiss Count I. See doc. no. 19. CBP and Garcia move to dismiss Count II. See doc. no. 20. The court considers motions separately below.

DISCUSSION I. Qualter Qualter argues that Count I must be dismissed because the claim alleged therein is not cognizable in a Bivens action. He further argues that Count I must be dismissed because Qualter is entitled to qualified immunity. In the alternative, Qualter argues that he is entitled to summary judgment on the basis of qualified immunity. The court begins by analyzing whether Drewniak may bring his claim against Qualter under Bivens.

A. Bivens Actions Are Disfavored 42 U.S.C. § 1983 permits plaintiffs to bring damages suits against state officials for constitutional violations. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). No analogous statutory cause of action exists for suits against federal officials. See id. In Bivens, the Supreme Court held that the Fourth Amendment contained an implied cause of action enabling plaintiffs to bring damages suits against federal officials for violating their right to be free from unreasonable searches and seizures. See González v. Vélez, 864 F.3d 45, 52 (1st Cir. 2017) (citing

Bivens, 403 U.S. at 389, and Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67 (2001)). In the years that followed, Bivens came to stand for the proposition that there exists a to § 1983 actions against state officials implicit in the Constitution itself. Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011). Not all constitutional claims are cognizable in a Bivens action, however. Bivens itself involved a Amendment rights by searching his home and arresting him without a warrant or probable cause, and by using excessive force to effect his arrest. See Bivens, 403 U.S. at 389. The Supreme Court thereafter recognized the availability of Bivens actions in two additional contexts: a suit brought by a Congressional staffer against a Congressman alleging that the staffer had been fired because of her sex in violation of the Fifth Amendmentguarantee, see Davis v. Passman, 442 U.S. 228, 229-32 (1979); and a suit brought by a federal prisoner mother against prison officials alleging that the prisoner had been deprived of on cruel and unusual punishment, see Carlson v. Green, 446 U.S. 14, 16-19 (1980). cases Bivens, Davis, and Carlson represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Abbasi, 137 S. Ct. at 1855. Bivens, Davis, and Carlson were decided at a time when the Supreme Court took a different approach to recognizing implied causes of action than it follows now. Id. -20th century, . . . the Court assumed it to be a proper judicial

the court would imply Id. (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964) Bivens extended this practice to claims based on Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020).

In the years following the Bivens Id.; see, e.g., Bush v. Lucas, 462 U.S. 367, 373-74 (1983).

pursues its purposes at all costs, aking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue Hernandez, 140 S. Ct. at 741-42 (quoting Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 234 (2013) this reason, finding that a damages remedy is implied by a provision that makes no

Id. at 742; see also Abbasi, 137 S. Ct. at 1858 (noting a damages remedy requires an assessment of its impact on governmental operations the individual burdens on Government employees who are sued personally as well as tort and monetary liability mechanisms of the legal system . . . to bring about the proper formulation The Court has gone so far to note that

implied damages Bivens cases might Abbasi, 137 S. Ct. at 1856.

This notion -Carlson decisions. Following its more cautious approach to recognizing implied causes of action, the Supreme Court has uniformly refused to extend Bivens after Carlson despite numerous opportunities to do so. See Bush, 462 U.S. at 368; Chappell v. Wallace, 462 U.S. 296, 297, 304-05 (1983); United States v. Stanley, 483 U.S. 669, 671-72, 683-84 (1987); Schweiker v. Chilicky, 487 U.S. 412, 414-15, 418 (1988); FDIC v. Meyer, 510 U.S. 471, 473-74 (1994); Malesko, 534 U.S. at 63-65; Wilkie v. Robbins, 551 U.S. 537, 547-48, 562 (2007); Minneci v. Pollard, 565 U.S. 118, 120-21 (2012); Abbasi, 137 S. Ct. at 1853-54, 1858, 1869; Hernandez, 140 S. Ct. at 739-40. Indeed, Abbasi expressed what one Court of Appeals deemed pen hostility to recognizing additional Bivens actions. Tun-Cos v. Perrotte, 922 F.3d 514, 521 (4th Cir. 2019). consistent refusal to expand Bivens over the last forty years, the Bivens cause of action was further expansion of the doctrine, it is beyond question that Bivens remedy is now a Berry v. Federal Bureau of Investigation, Civ. No. 17- cv-143-LM, 2018 WL 708155, at *3 (D.N.H. Feb. 5, 2018) (quoting Abbasi, 137 S. Ct. at 1857); see also Hernandez, 140 S. Ct. at 750-53 (Thomas, J., concurring, joined by Gorsuch, J.) (calling on the Court to abandon the Bivens doctrine in its entirety).

B. The Modern Bivens Analysis

Bivens, as recently clarified in Abbasi and Hernandez -step analysis is used to determine whether a particular constitutional claim is cognizable in an implied cause of action for damages. Bistrian v. Levi, 912 F.3d 79, 89-90 (3d Cir. 2018) (quoting Vanderklok v. United States, 868 F.3d 189, 200 (3d Cir. 2017)); see Hernandez, 140 S. Ct. at 743. Hernandez, 140 S. Ct. at 743 (quoting

Malesko, 534 U.S. at 68). A context is new different in a meaningful way Bivens, Davis, and Carlson. Abbasi, 137 S. Ct. at 1859-60; accord Tun-Cos, 922 F.3d at 522-23. , and can arise even when the plaintiff alleges a violation of the same constitutional Bivens cases. Abbasi, 137 S. Ct. at 1859, 1865; see also Hernandez, 140 S. Ct. at 743 context even if it is based on the same constitutional provision as a claim in a case

(declining to infer Bivens action for Fourth Amendment claim against Border Patrol agent).

Bivens cases include:

[T]he rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or

emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. Abbasi, 137 S. Ct. at 1860. Given understanding of what constitutes a meaningful difference from its three prior Bivens the new- Id. at 1865; see Hernandez, 140 S. Ct. at 743. Bivens action is available. See Tun-Cos, 922 F.3d at 522-23. However, if the claim

seeks to extend Bivens to a new context or category of defendants, the court proceeds to the second step of the analysis. See Abbasi, 137 S. Ct. at 1860. At the second step of the analysis, the court must determine whether there are against expanding Bivens. Id. at 1857 (quoting Carlson, 446 U.S. at 18). Although the Supreme Court has not attempted to set forth an exhaustive list of what constitutes a special factor counseling hesitation, it has stated that the analysis primarily focuses -of-

congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Id. at 1857-58; accord Hernandez, 140 S. Ct. at 743; see, e.g., Abbasi, 137 S. Ct. at 1860 (concluding that potential for a Bivens action to require discovery into the deliberations behind a challenged executive branch policy was a special factor counseling hesitation); see also Alvarez v. U.S. Immigration & Customs Enforcement, 818 F.3d 1194, 1206 (11th Cir. 2016) (noting

comprehensiveness of available statutory schemes, national security concerns, and eling hesitation (quoting Arar v. Ashcroft, 585 F.3d 559, 573 (2d Cir. 2009) (en banc))); Arar, 585 F.3d at 573

s remarkably Arar, 585 F.3d at 574 Id. A factor counsels hesitation it. Id.; see also Abbasi, 137 S. Ct. at 1858 might doubt the efficacy or necessity of a damages remedy . . . the courts must refrain (emphasis added)); Tun-Cos, 922 F.3d at 525 determinin might doubt .

In sum, i Bivens in a new Bivens action. Hernandez, 140 S. Ct. at 743. Having set the stage, the court now

analyzes whether Drewniak may bring his claim against Qualter in a Bivens action.

C. Claim Arises in a New Context and Against a New

Category of Defendants claim arises in a context that meaningfully differs from the Bivens cases. First, stinct from Bivens, Davis, and

Carlson. Abbasi, 137 S. Ct. at 1860. Garcia, and Qualter claim authority to erect interior checkpoints including the

August 2017 checkpoint at which Drewniak was detained pursuant to the Immigration and Nationality Act and its implementing regulations. See 8 U.S.C. § 1357(a)(3) (authorizing warrantless searches of any vehicle located within a reasonable distance from any external boundary of the United States . . . for the purpose of patrolling the border to prevent the illegal entry of aliens into the United ; 8 C.F.R. § 287.1(a)(2) as miles from any external boundary of the United States ). The officials sued in the

Bivens cases did not operate under the INA. These diverging legal mandates constitute meaningful differences from the Supreme Bivens jurisprudence. See Abbasi, 137 S. Ct. at 1860; Loumiet v. United States, 948 F.3d 376, 382 (D.C. Cir. 2020) which the . . . officials were operating is different from the ones in Bivens, Davis,

and Carlson b Bivens triumvirate).

Drewniak argues that the INA, and immigration enforcement more broadly, is irrelevant to an analysis of whether his claim would extend Bivens to a new context. He argues that this court must, at the motion to dismiss stage, assume the truth of his allegation that Qualter was not operating under authority of the INA because primary purpose in stopping Drewniak was general drug interdiction, not preventing illegal entries at the border. However, while this allegation may show that Qualter exceeded the authority granted him by § 1357(a)(3) and its accompanying regulations, it does not show that the INA is irrelevant to an analysis of Bivens context.

The complaint alleges that CBP routinely conducts traffic checkpoints across the country are . . . for the purpose of detecting and apprehending undocumented individuals attempting to travel further into the interior of the United States after 1 ¶¶ 31-33. The thrust of ting the August 2017 checkpoint and others like it authority, its actual purpose was general crime control an end which CBP is not

authorized to pursue under § 1357(a)(3). However, the fact that puts at issue checkpoints under the INA makes his claim ose advanced in the Bivens cases none of which involved the INA or the

authority granted therein. Abbasi, 137 S. Ct. at 1859. Thus, recognizing a Bivens

Even if Drewniak d no new context, however, his claim seeks to extend Bivens to a new category of defendants. Bivens cases

Bivens Davis Carlson. Abbasi, 137 S. Ct. at 1860. Here, Drewniak seeks damages from a Border Patrol agent. Recognizing a Bivens action against a Border Patrol agent would require extending Bivens to a new category of defendants. See Boule v. Egbert, 980 F.3d 1309, 1313 (9th Cir. 2020) Bivens rather than of the F.B.I. ; Tun-Cos, 922 F.3d at 525 extend Bivens liability to a new category of defendants ICE agents ); Loumiet, 948 F.3d at 378, 382 (concluding that officials from the Office of the Comptroller of the Currency constituted a new category of defendants for Bivens purposes). Thus s claim against Qualter is brought in a new Bivens context and seeks damages from a new category of defendants, the court must proceed to the second step of the analysis and consider whether special factors counsel hesitation against extending Bivens.

D. Multiple Special Factors Counsel Hesitation The Supreme Court has recognized that special factors exist if Congress has an alternative remedial structure Abbasi, 137 S. Ct. at 1858

(brackets omitted) (quoting Wilkie, 551 U.S. at 550). Alvarez, 818 F.3d at 1206 (quoting Schweiker, 487 U.S. at 423) Congress has established an , brought, Bivens Id. (quoting Schweiker, 487 U.S. at 436); accord González, 864 F.3d at 54-55. Courts have held that the INA is an alternative remedial structure counseling hesitation against extending Bivens to contexts implicating the Act. See Tun-Cos, 922 F.3d at 526; Alvarez, 818 F.3d at 1208; De La Paz v. Coy, 786 F.3d 367, 377-78 (5th Cir. 2015); Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir. 2012). For the following reasons, the court agrees with the opinions of these courts and concludes that the careful attention paid by Congress to the INA and its regulations counsel hesitation against augmenting the INA with a judicially-inferred damages action.

First, the INA contains numerous guardrails to protect against constitutional violations. For example, a CBP agent may conduct a warrantless search of a person or his possessions only if the agent 8

U.S.C. § 1357(c). in a criminal investigation unless a specific exception to the warrant requirement is

authorized by statute or recognize 8 C.F.R. § 287.9(a). In addition, INA regulations limit the categories of officers and agents who may exercise search authority under the Act and requires officers within the permitted categories to complete specified training. 8 C.F.R. § 287.5(d). And CBP is required to promulgate uct relating to searches and seizures. See 8 C.F.R. § 287.9(a).

The INA also places limits on warrantless arrests. It authorizes CBP agents to make warrantless arrests for cond only if the agent has reasonable grounds to believe the person arrested has committed a felony or an immigration violation. 8 U.S.C. § 1357(a)(4)-(5); see also 8 C.F.R. § 287.8(c)(2)(i) shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States. ). Even then, an agent may only effect a felony arrest if the agent the enforcement of the immigration laws at the time of the arrest and if there is a 8 U.S.C. § 1357(a)(5). If there

8 C.F.R. § 287.8(c)(2)(ii).

Further, the INA includes training requirements and an internal review process. See De La Paz, 786 F.3d at 376 ( [these] standards of 8 U.S.C.

§ 1357(a)(5))). With respect to training, the INA requires the implementation of

may be made; (3) preclude officers from effecting warrantless felony arrests the officer has received certification as having completed a training program which

covers under which they can be made. 8 U.S.C. § 1357(a)(5).

With respect to the internal review process, INA regulations provide that

standards of Homeland Security. 8 C.F.R. § 287.10(b). Any alleged violations investigated expeditiously Id. § 287.10(a). for the referred promptly for Id. § 287.10(c).

In sum, created by Congress and implemented by the Executive pursuant to Congressional directive and duly- promulgated regulations suggests that a judicially-superimposed damages action Hernandez, 140 S. Ct. at

743; see De La Paz, 922 F.3d at 375-77. The comprehensive nature of the INA and the choices made by Congress as to how to violations ought to be redressed support the notion that the absence of an individual damages remedy against immigration officers was intended. See De La Paz, 786 F.3d at 377-78. And while Drewniak argues that existing remedial schemes would fail to adequately redress the constitutional violation he alleges,

careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy Bush, 462 U.S. at 388; accord, e.g., Mack v. Yost, 968 F.3d 311, 320 (3d Cir. 2020); see also Stanley, 483 U.S. at 683 whether the laws currently on the books afford [plaintiff] for his ; Tun-Cos, 922 F.3d at 526-27 ( ument that Bivens action should be inferred due to fact that INA protections often do not redress constitutional violations that because the elaborate remedial scheme provided for in the INA suggested that Congress remedy against ICE agents for their allegedly wrongful c ); Barron v. United States, 998 F. Supp. 117, 121 (D.N.H. 1999) scheme, the comprehensiveness of the scheme suggests that Congress intended it to

. In sum, t gives the court

Bivens in [this] new context or to [this] new class Hernandez, 140 S. Ct. at 743; see also Arar, 585 F.3d at 574.

Hesitation is further counseled by the fact that, although Congress has amended the INA numerous times since its enactment in 1952, it has never seen fit to provide an individual damages remedy against immigration officers for actions undertaken in the course of their duties. See Tun-Cos, 922 F.3d at 527; De La Paz, 786 F.3d at 377; see also REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302; Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214; Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978; Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; Act of Oct. 20, 1976, Pub. L. No. 94-571, 90 Stat. 2703; Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911. pertaining to immigration enforcement matters

De La Paz, 786 F.3d at 377 (quoting Schweiker, 487 U.S. at 423); see also Alvarez, 818 F.3d at 1209 Bivens

Further counseling hesitation is the fact that other forms of judicial relief are potentially available to redress the constitutional violation alleged. The Supreme Court has stated that, when other alternative forms of judicial relief are

available, a Bivens remedy usually is not. Abbasi, 137 S. Ct. at 1863 (quoting Minneci, 565 U.S. at 124)); see, e.g., id. at 1862-63 (concluding that the possibility of injunctive or habeas relief was a special factor counseling hesitation against inferring a Bivens action). Bivens purposes, do not Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020); see, e.g., Minneci, 565 U.S. at 127-30 (concluding that state tort law provided an adequate alternative avenue for relief precluding creation of a Bivens action). Here, Drewniak had the opportunity to contest the constitutionality of the August 2017 checkpoint in his state court criminal proceeding by seeking and obtaining suppression of the drugs seized from his vehicle. Where Drewniak

primary purpose in erecting the traffic checkpoint was discovering and prosecuting drug crimes, the possibility that evidence unlawfully obtained from that checkpoint will be excluded from any resulting state criminal trial provides CBP agents to comply with the Fourth Amendment as does a Bivens action. Minneci, 565 U.S. at 130; see also Callahan, 965 F.3d at 524 Bivens (quoting Minneci, 565 U.S. at

129)); ., Civ. No. 15-cv-177-LM, 2017 WL 899972, at *3 (D.N.H. Mar. 6, 2017) (same). In addition, the possibility that Drewniak may obtain injunctive relief in this very case counsels hesitation against allowing a damages action against Qualter to proceed. See Abbasi, 137 S. Ct. at 1862.

Another special factor counseling hesitation is the potential effect on national security that may arise from grafting an implied damages action against CBP officers onto the remedial structure already provided by Congress, the Executive, and the Judiciary via separate avenues. See Hernandez, 140 S. Ct. at 746; Arar 585 F.3d at 575. National security concerns are relevant to the special factors inquiry for at least two reasons: (1) [n]ational security . . . is the [Constitutional] prerogative of the Congress and the President, Abbasi, 137 S. Ct. at 1861 (citing U.S. Const. Art. I, § 8; Art II, § 1, § 2); and (2) the Judiciary has comparatively Arar, 585 F.3d at 575 (citing, inter alia, Boumediene v. Bush, 553 U.S. 723, 797 (2008) President and some designated Members of Congress . . . federal judges [do not] begin the day with briefings that may describe new and serious threats to our ); see Hernandez, 140 S. Ct. at 743 (noting that separation of powers and institutional competence concerns are central to a special factors analysis).

prevent the illegal entry of dangerous pers of its main [statutory] terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States. Hernandez, 140 S. Ct. at 746 (quoting 6 U.S.C. § 211(c)(5)). Judicial efforts to regulate CBP statutorily-prescribed duties by inferring a constitutional damages action

would [ve] national security implications Id. at 747. For example, Bivens liability could deter agents from vigorous enforcement duties. De La Paz, 786 F.3d at 379. And Bivens suits concerning immigration

law-enforcement priorities -policy objectives and foreign- Id. (ellipsis omitted) (quoting Mirmehdi, 689 F.3d at 983).

That is especially true where, as here, a plaintiff challenges an agent or motivation for engaging in a particular enforcement practice. Even if . . . i.e. conduct at the August 2017 checkpoint, claim that the checkpoint was erected for an impermissible purpose conducting interior traffic checkpoints. Abbasi, 137 S. Ct. at 1860. whole course of the discussions and deliberations that led to the policies and Id. If the judiciary were to recognize a Bivens action against CBP officers in this context, damages actions and their attendant disruptive inquiries may proliferate. See De La Paz, 786 F.3d at 379. Because recognizing a Bivens action in this context would create a tangible risk of disclosing matters of national security as well as unwarranted judicial intrusion into an area in which the Judiciary lacks comparative constitutional authority and

competence the court is not inclined to entertain request to extend Bivens.

In conclusion, multiple special factors counsel hesitation in recognizing the availability of a Bivens action in this context. Because Drewniak seeks to extend Bivens to a new context, and because special factors counsel hesitation against doing so, a Bivens action is not available.

E. Summary Bivens actions are disfavored. Under the rigorous two-step inquiry mandated by governing Supreme Court jurisprudence, it is difficult to infer a damages action for claims that differ in even modest ways from those advanced in Bivens, Davis, and Carlson. Here, a principled application of this analysis leads to the conclusion that Drewniak may not pursue his constitutional claim against Qualter in an implied action for damages. 8 motion to dismiss Count I of the complaint (doc. no. 19).

II. CBP and Garcia s Motion to Dismiss injunctive and declaratory relief against CBP and Garcia (who is sued only in his

8 arguments that Count I should be dismissed or that Qualter should be awarded summary judgment on Count I on the basis of qualified immunity.

official capacity). Drewniak alleges that CBP and Garcia violated his Fourth Amendment rights by erecting the August 2017 checkpoint at which his vehicle was stopped and searched conducting his rights will again be violated at a future checkpoint. Doc. no. 1 ¶¶ 108, 115. Drewniak seeks declaratory relief and to enjoin unconstitutional Border Patrol Id. ¶¶ 112-13. CBP and Garcia move to dismiss Count II, arguing that Drewniak lacks standing to pursue injunctive and declaratory relief. See doc. no. 20.

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. Const gives meaning to these c Id. (footnote and brackets omitted) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). standin [he] concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will Petrello v. City of Manchester, Civ. No. 16- cv-008-LM, 2017 WL 3972477, at *16 (D.N.H. Sept. 7, 2017) (quoting Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)); accord Perez-Kudzma v. United States, 940 F.3d 142, 144-45 (1st Cir. 2019). Here, CBP and Garcia contest only the first element of this test: whether Drewniak has

Where a plaintiff seeks equitable or declaratory relief, the fact of a prior injury does not satisfy the requirement that an actual or imminent. See Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992) (citing Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)); Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997); see also Friends of the Earth, 528 U.S. at 185 (explaining that the . Where equitable or declaratory relief is sought, a and immediate threat . . . that [he] will Gray v. Cummings,

917 F.3d 1, 19 (1st Cir. 2019) (quoting Frank, 968 F.2d at 1376); see Lyons, 461 U.S. at 104 (allegation again future failed to demonstrate standing to pursue declaratory relief). A plaintiff demonstrates a sufficient threat of future injury for Article III purposes if the threatened injury is alleged injury will occur. Susan B. Anthony List, 573 U.S. at 158 (quoting Clapper v. Amne USA, 568 U.S. 398, 409, 414 n.5 (2013)); see also Berner, 129 F.3d at 24 (concluding that plaintiff had standing to pursue injunctive relief where he

Here, CBP and Garcia contend that Drewniak has failed to demonstrate a sufficient likelihood that he will be detained at a future checkpoint on I-93 in Woodstock because he has a to the White Mountains in the future. Doc. no. 20 opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992), CBP and Garcia argue that Drewniak has alleged only an intention to travel to the White Mountains , which, they contend, is not sufficient to demonstrate an actual or imminent injury.

than a vague intent to travel on I-93 in Woodstock at some point in the future. In Lujan, the plaintiffs various wildlife and environmental organizations sought an injunction requiring the Secretary of the Interior to promulgate a regulation that would interpret a provision of the Endangered Species Act of 1973 to apply extraterritorially. See Lujan, 504 U.S. at 558-59. Plaintiffs alleged that, absent

rate of extinction of endangered and thr Id. at 562. The Secretary sought summary judgment on standing grounds. See id. at 559. Plaintiffs

Id. at 563-64. harm sufficient for standing

to seek injunctive relief. Id. at 564 without any description of concrete plans, or indeed any specification of when the some day will be ry that our cases Id. (emphasis omitted). insufficient in Lujan. Drewniak, a resident of Hudson, New Hampshire, is an avid

outdoorsman who travels to the White Mountains virtually every week of the year

is I-93, and he often takes that route. In light of these factual allegations assumed to be true at the motion to dismiss stage 9

the - on a near-weekly basis is the Supreme Court rejected in Lujan. See Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2018 WL 2170323, at *10 (D. Mass. May 9, 2018) travel

relevant location); see also Berner, 129 F.3d at 24-25 (concluding that the plaintiff an attorney had standing to seek to enjoin in the courtroom because attorney regularly appeared before the judge).

9 allegations of future travel or the frequency with which he travels to the White Mountains. The court therefore assumes these allegations to be true. See Valentin, 254 F.3d at 364.

CBP and Garcia further contend that Drewniak has failed to establish a no. 20-1

at 12. In support of this contention, they submit a declaration prepared by Garcia in November 2020 in -initiation of immigration checkpoints is contingent upon operational needs, manpower, and 10

Doc. no. 20-2 ¶ 12. For several reasons, this argument and the supporting declaration are not persuasive.

First, they fail to meaningfully Garcia have a policy or practice of conducting traffic checkpoints in New

Hampshire. Courts have held that plaintiffs have standing to pursue injunctive or declaratory relief when the constitutional violations complained of stem from pattern of . . . McBride v. Cahoone,

820 F. Supp. 2d 623, 634 (E.D. Pa. 2011) (collecting cases); see, e.g., Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st Cir. 2003) (concluding that plaintiff had

which caused a prior injury ; see also LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985) repeatedly upheld the

10 As previously noted, the court may consider this declaration in resolving the Rule 12(b)(1) motion without converting it into a motion for summary judgment. See González, 284 F.3d at 287-88.

, amended on other grounds, 796 F.2d 309 (9th Cir. 1986).

The rationale for permitting injunctive or declaratory relief to abate a pervasive practice or official policy is that, where a past injury is alleged to be due to the practice or policy, there is a substantial likelihood that the injury will recur. See, e.g., Charlotte E. ex rel. Deshawn E. v. Safir, 156 F.3d 340, 344-45 (2d Cir. 1998); Alasaad, 2018 WL 2170323, at *10 (concluding that plaintiffs had standing to seek

rather upon recurring conduct authorized by official policies ; Dudley, 333 F.3d at 299. Here, Drewniak alleges that he was detained as a consequence of CBP and Garcia pattern or practice of conducting traffic checkpoints in New Hampshire. the notion that detention resulted from an official practice or policy.

For example, it is undisputed that CBP and Garcia conducted at least ten checkpoints in New Hampshire between 2017 and 2019, many of which lasted for multiple days. The supports the existence of an official practice or policy. See Floyd v. City of New York, 283 F.R.D. 153, 170 (S.D.N.Y. 2012). Furthermore, G uses traffic

thoroughfares from the U.S.-Canadian border to major cities in the interior such as

Doc. no. 20-2 ¶ 4. Garciassertion strategic import in carrying

duties further supports the notion that the August 2017 checkpoint was erected pursuant to an official practice or policy. See Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 979-80 (D. Ariz. 2011) (plaintiffs had standing to pursue injunctive relief authority to engage in the complained-

In addition, -initiat[ing] for such checkpoints CBP counsel and which was ultimately approved by both local and national CBP management. Doc. no. 20- 2 ¶¶ 8-9. The traffic checkpoints in New Hampshire further supports standing. See Charlotte E., 156 F.3d at 345 recurring injury because the [challenged] activities are authorized by a written memorandum of understanding between the [city counsel] and the Police

Finally, the court is not persuaded by that future checkpoints are unlikely or that CBP no longer has a policy to conduct checkpoints

in New Hampshire. Garcia states in his declaration only that no checkpoints are currently planned, and that the re-initiation of checkpoints depends on available resources. However, Garcia fails to explain the reason that no checkpoints are currently planned. He does not state that the agency has abandoned the use of checkpoints as an enforcement tool. Nor does he state that the agency lacks sufficient resources to conduct checkpoints; he merely states that erecting checkpoints requires resources. In other words, no explanation for the lack of currently scheduled checkpoints. Given the recent and recurring history of checkpoints on I-

duties, and the extensive planning and approval process that went into the 2017 re- initiation of checkpoints in New Hampshire, the court cannot conclude from the mere fact that no checkpoints are currently scheduled that additional checkpoints are unlikely. Drewniak has sufficiently demonstrated standing at the pleading stage. He has plausibly alleged that he travels along I-93 in Woodstock on a frequent basis, and CBP and Garcia fail to persuasively contest allegation that they have a practice or policy of conducting checkpoints in that area. For these reasons,

complaint (doc. no. 20).

CONCLUSION motion to dismiss Count I of the complaint (doc. no. 19) is granted. . 20) is denied.



Landya McCafferty United States District Judge

April 8, 2021 cc: Counsel of Record.

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