NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DWIGHT C. BRUNOEHLER, 

Plaintiff-Appellant, 

 v. 

JEREMY R. TARWATER; et al., 

Defendants-Appellees.

No. 16-56634 

D.C. No. 

2:15-cv-00688-DMG-JEM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted April 10, 2018

Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.

Dwight Brunoehler appeals the district court’s dismissal of his claims under 

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), and the Wiretap Act, 18 U.S.C. § 2520 et seq. We have jurisdiction 

pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Irene M. Keeley, United States District Judge for the 

Northern District of West Virginia, sitting by designation.

FILED

JUL 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-56634 

I.

Dismissal for failure to state a claim is reviewed de novo. Dougherty v. City 

of Covina, 654 F.3d 892, 897 (9th Cir. 2011). A party’s standing to bring a claim is 

reviewed de novo. Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 

2016), cert. denied, 137 S. Ct. 1377 (2017). “All allegations of material fact are 

taken as true and construed in the light most favorable to the nonmoving party.” 

Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

II.

“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 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id.

1. Bivens Claims

Brunoehler seeks Bivens relief for claims that FBI Special Agents Jeremy 

Tarwater and Charles Koepke (the Agents) intercepted his telephone 

conversations, obtained search warrants, and arrested him without probable cause,
3 16-56634 

in violation of the Fourth Amendment.

1 The district court dismissed Brunoehler’s 

Bivens claims for failure to state a claim, concluding that alternative processes 

could remedy his alleged harms. 

“Bivens established that the victims of a constitutional violation by a federal 

agent have a right to recover damages against the official in federal court despite 

the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 

18 (1980). However, the Supreme Court has since “adopted a far more cautious 

course before finding implied causes of action.” Ziglar v. Abbasi, 137 S. Ct. 1843, 

1855 (2017). Thus, the “first question” we must consider is whether this “case is 

different in a meaningful way from previous Bivens cases decided by” the Supreme 

Court. Id. at 1864 (internal quotation marks omitted). If a case is “meaningfully 

different” from Bivens or its progeny, we then consider “whether there were 

alternative remedies available or other sound reasons to think Congress might 

 

1 While Brunoehler at times summarizes his claims in a single sentence, 

Brunoehler alleges separate claims. Although, as the Dissent asserts, there is some

link between the allegedly illegal wiretap and unlawful search and arrest, 

Brunoehler alleges that the Agents invaded his privacy on two separate occasions. 

The Dissent states that because Brunoehler failed to allege an illegal wiretap claim, 

all related claims fail. However, Bivens relief turns, in part, on what other forms of 

relief are available. See Ziglar, 137 S. Ct. at 1858. Here, Brunoehler alleges two 

different violations of his Fourth Amendment rights—the wiretap, and search and 

arrest—each of which require a separate Bivens analysis where the possible relief 

is different under the separate claims. Brunoehler’s failure to allege the wiretap

claim does not foreclose the opportunity to allege the unlawful search and arrest 

claims. We find that Brunoehler alleges sufficient factual matter to state two

plausible Bivens claims. See Iqbal, 556 U.S. at 678.
4 16-56634 

doubt the efficacy or necessity of a damages remedy in a suit like this one.” Id. at 

1865 (internal quotation marks omitted).

A. Bivens: Wiretap

Brunoehler contends that the district court erred when it dismissed his claim 

for unlawful wiretapping. Ziglar provides that a meaningful difference from Bivens

may be the application of another “legal mandate” to the allegedly unconstitutional 

conduct. Id. at 1860. Here, the Wiretap Act was another “legal mandate under 

which the [Agents were] operating.” Id. Given the Supreme Court’s observation 

that “even a modest extension is still an extension” of Bivens, we conclude that the 

application of an extensive statutory scheme like the Wiretap Act constitutes a 

meaningful difference from Bivens, which concerned only the Fourth Amendment.

Id. at 1864. 

Further, under Ziglar, an extension of Bivens is not available here. “[I]f there 

is an alternative remedial structure present in a certain case, that alone may limit 

the power of the Judiciary to infer a new Bivens cause of action.” Id. at 1858. 

“Alternative remedial structures” may take many forms, including statutory 

remedies. Id. Because the Wiretap Act provides for damages when agents 

improperly obtain wiretaps, Brunoehler had an adequate alternative remedy for his 

alleged harm. That Brunoehler’s claims under the Wiretap Act ultimately failed for 

lack of standing does not mean he did not have access to alternative remedies, but 
5 16-56634 

rather that he lacked standing to challenge the wiretaps at issue. Thus, in light of 

the available alternative remedies, we decline to extend Bivens in this context, and

conclude that the district court did not err when it dismissed Brunoehler’s claim for 

unlawful wiretapping.

B. Bivens: Search and Arrest

Brunoehler next contends that the district court erred in dismissing his 

claims for unlawful search and arrest.

First, Brunoehler sufficiently alleges that the Agents arrested him without 

probable cause. In Bivens, the Supreme Court held that the complaint, “fairly 

read,” sufficiently alleged “that the arrest was made without probable cause” even 

though it did “not explicitly state that the agents had no probable cause . . . [rather 

it alleged] that the arrest was ‘done unlawfully, unreasonably and contrary to 

law.’” 403 U.S. at 389 & n.1. Here, Brunoehler unequivocally alleges that the 

search and arrest lacked probable cause.

2 As the Supreme Court determined in 

Bivens that there was no failure in sufficiency of allegations despite the absence of 

the words “probable cause,” we also conclude there is no such failure here where 

 

2 Additionally, while Brunoehler fails to allege a claim based on the unlawful 

wiretap, we note that the district court judge dismissed the criminal case against

Brunoehler on the government’s motion after testimony revealed that the Agents 

provided false and/or incomplete information in the wiretap application. These 

facts and Brunoehler’s allegations, taken as true, sufficiently allege that the Agents 

did not have probable cause to search and arrest Brunoehler. See Iqbal, 556 U.S. at 

678.
6 16-56634 

Brunoehler more specifically alleges the lack of probable cause. Contrary to the 

Dissent’s assertion, the Supreme Court’s jurisprudence is clear that particularity is 

not the standard for stating a claim. See Iqbal, 556 U.S. at 678. Further, the 

Dissent’s argument that Brunoehler failed to challenge the basis for the Grand Jury 

indictment similarly fails. Brunoehler does allege that the Grand Jury lacked 

probable cause, pointing to the insufficiency and issues in evidence that the Agents

produced and relied upon to obtain the indictment against him.

3 At the motion to 

dismiss stage, we find that Brunoehler stated sufficient factual matter, taken as 

true, that it is plausible the Agents arrested him without probable cause. See Iqbal, 

556 U.S. at 678.

Second, Brunoehler’s search and arrest claim does not extend Bivens. In 

Bivens, the plaintiff alleged that federal agents searched his home for narcotics and 

handcuffed him without probable cause. 403 U.S. at 389. Here, Brunoehler alleges 

that the Agents obtained search warrants and arrested him in his home without 

probable cause.4Instead of drug crimes, Brunoehler was arrested for securities 

 

3 Brunoehler alleges,“[o]ne of the few statements by Mr. Brunoehler which were 

mentioned in the Indictment was his statement that there was ‘monkey business’ 

going on at Biostem. Defendants purposefully and intentionally took that statement 

completely out of context. Mr. Brunoehler’s statement regarding ‘monkey 

business’ is not by any objective standard, evidence that he committed any crime.”

4 The Dissent contends that the Agents were operating under a different “legal 

mandate,” the warrant, which makes the case meaningfully different from Bivens.

This argument is not persuasive. The Agents cannot rely on their own misconduct, 

which Brunoehler challenges through sufficient allegations, to bar Brunoehler’s 
7 16-56634 

violations. But the difference in the underlying criminal charges is not the kind of 

“meaningful difference” envisioned in Ziglar; regardless of the crime alleged, the 

requirement of probable cause is the same under the Fourth Amendment. See 137 

S. Ct. at 1859–60.

Moreover, Ziglar does not require that there be perfect factual symmetry 

between a proffered Bivens claim and Bivens itself. Rather, Ziglar explicitly 

preserved “the continued force, or even the necessity, of Bivens in the search-andseizure context in which it arose.” Id. at 1856. We therefore conclude that 

Brunoehler’s unlawful search and arrest claims are not “meaningfully different”

from Bivens, which involved the same claims—albeit for different crimes—in 

virtually the same search-and-seizure context. Thus, Brunoehler’s allegation of

unlawful search and arrest does not seek an extension of Bivens, and the district 

court erred when it dismissed those claims. 

2. Wiretap Act Violation Claims

Brunoehler also asserts claims under the Wiretap Act, namely that the 

Agents’ applications for the initial wiretaps (the Possino Wiretaps) did not meet 

the “necessity” requirement. He alleges that information obtained from the

Possino Wiretaps was used to obtain a later wiretap (the Mazur Wiretap) that 

 

Bivens claim. See Groh v. Ramirez, 540 U.S. 551 (2004) (recognizing, in a Bivens 

cause of action, that an officer who prepares the invalid warrant may not argue that 

he relied on the judge’s assurance that the warrant was valid). 
8 16-56634 

intercepted his communications. The district court concluded that Brunoehler only 

had standing to challenge the Mazur Wiretap application. Brunoehler argues that

he has standing to challenge all of the wiretap applications cited in his second 

amended complaint, including the Possino Wiretaps. 

Standing to challenge a wiretap is limited to those “whose Fourth 

Amendment rights were violated by the interception.” United States v. Gonzalez, 

Inc., 412 F.3d 1102, 1116 (9th Cir. 2005), amended on denial of reh’g, 437 F.3d 

854 (9th Cir. 2006). “The touchstone for Fourth Amendment standing analysis is 

whether the individual asserting her right to challenge the interception had a 

reasonable expectation of privacy in the place where the wiretap was used.” Id. at

1116; see also United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (“[A]

defendant may move to suppress the fruits of a wire-tap only if his privacy was 

actually invaded; that is, if he was a participant in an intercepted conversation, or if 

such conversation occurred on his premises.”).

As applied here, Brunoehler cannot extend his standing to challenge the 

Mazur Wiretap application to include the Possino Wiretap applications. Brunoehler 

does not allege that the Possino Wiretaps targeted him or intercepted any of his 

calls. He thus fails to allege how he had a reasonable expectation of privacy in the 

calls captured with the Possino Wiretaps. Gonzalez, Inc., 412 F.3d at 1116. 

Therefore, even if the Mazur Wiretap application relied on the proceeds of the 
9 16-56634 

Possino Wiretaps, those proceeds did not implicate Brunoehler’s Fourth 

Amendment rights, or by extension his standing under the Wiretap Act. Because 

Brunoehler appears to challenge only wiretap applications he has no standing to 

challenge, he has failed to state a claim. See Vaughn v. Bay Envtl. Mgmt., Inc., 567 

F.3d 1021, 1024 (9th Cir. 2009). Accordingly, the district court did not err in 

concluding that Brunoehler lacks standing to challenge the wiretaps at issue in his 

complaint. 5

III.

In sum, we reverse the district court’s dismissal of Brunoehler’s Bivens

claim to the extent he claims the Agents issued a search warrant and arrested him 

without probable cause, but affirm its dismissal of his Bivens claim to the extent he 

claims the Agents subjected him to an unlawful wiretap. We also affirm the district 

court’s dismissal of Brunoehler’s Wiretap Act claims for lack of standing.

AFFIRMED in part, REVERSED in part, and REMANDED. 

 

5 Notably, Brunoehler’s second amended complaint challenges only the necessity 

of the Possino Wiretaps, not the Mazur Wiretap. 
1

Brunoehler v. Tarwater, et al, No. 16-56634

CARLOS T. BEA, Circuit Judge, dissenting in part

I agree with the Majority that Dwight Brunoehler’s Wiretap Act claim 

should be dismissed because he does not have standing to challenge the wiretap he 

alleges was based on a faulty application. However, I think Brunoehler has entirely 

failed to state a claim under Bivens v. Six Unknown Named Agents of Federal 

Bureau of Narcotics, 91 S. Ct. 1999 (1971). I therefore respectfully dissent in part. 

I.

Dwight C. Brunoehler was indicted on January 29, 2013 for conspiracy to 

commit securities fraud in connection with a pump-and-dump scheme1 involving 

Biostem, the company for which Brunoehler served as Chief Executive Officer 

(CEO). The case against Brunoehler was eventually dismissed, but not before 

Brunoehler was indicted by a Grand Jury and subsequently arrested and charged.

Brunoehler alleges that he was arrested after the government gathered evidence 

from unlawfully obtained wiretaps.

 1 A “pump and dump” scheme is a scheme whereby a person issues press releases 

or other public information in order artificially to inflate the price of a stock (the 

pump). When the investing public purchases the stock, and the stock price is 

sufficiently high, the co-conspirators then sell their shares in coordination and stop 

promoting the stock (the dump), causing the value of the stock to crater, but netting 

the co-conspirators a hefty profit. 

FILED

JUL 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

1. The Possino Wiretap 

Beginning in May 2010, a cooperating witness notified the FBI of a pump 

and dump scheme involving a company called Sports Endurance, Inc., or SENZ. 

The alleged participants in the scheme involving SENZ were individuals Regis 

Possino, Colin Nix, Tarun Mendiratta, and seven other individuals. In March 2011, 

the United States applied for wiretaps of Possino’s and Nix’s cell phones, along 

with two landline phones located at their businesses. The Government’s 

applications attached a 110 page affidavit in support, signed by FBI Special Agent 

Jeremy R. Tarwater, one of the two defendants in this case. Judge Dale S. Fisher, 

District Judge (C.D. Cal.), approved the Possino wiretap the same day. 

In April and May 2011, the United States applied for three follow-up wiretap 

applications, all for Possino phones. Two were supported by affidavits by the other 

individual defendant in this case, FBI Special Agent Charles E. Koepke, and the 

other was supported by an affidavit signed by Agent Tarwater. 

Brunoehler was not mentioned in the Possino wiretap applications – not as a 

target, subject or otherwise. Further, Brunoehler does not allege in the Second 

Amended Complaint (SAC) – the operative Complaint in this case – that any of his 

conversations was intercepted by the Possino wiretaps. 
3

2. The Mazur Wiretap 

The Possino wiretaps provided the government with evidence of other 

market manipulation schemes. As a result, the Government on June 27, 2011 filed 

a new wiretap application naming Sherman Mazur and Ari Kaplan as the lead 

target subjects, and their cellphones as target phones (the Mazur wiretap). That 

same day, Judge Fischer approved the Mazur wiretap application. Brunoehler was 

not named in the Mazur wiretap application, and was not a target suspect. 

However, Brunoehler’s conversations were intercepted when Mazur’s 

cellphone discussions were tapped regarding a possible pump and dump of 

Biostem, the company for which Brunoehler served as CEO. Brunoehler was 

therefore added as a target subject in the first application to extend the Mazur 

wiretaps. Brunoehler admits that the Government acquired sufficient evidence to 

justify an indictment against him on the basis of the Mazur wiretaps. SAC ¶ 50. A 

Grand Jury indicted Brunoehler, and on February 13, 2013 Brunoehler was 

subsequently arrested.

3. Allegations of misconduct against the Government

The defendants, including Brunoehler, moved to suppress the wiretaps. 18 

U.S.C. § 2518(1)(c) requires that each wiretap application include “a full and 

complete statement as to whether or not other investigative procedures have been 

tried and failed or why they reasonably appear to be unlikely to succeed if tried or 
4

to be too dangerous.” This is dubbed the “necessity requirement.” U.S. v. 

Blackmon, 273 F.3d 1204, 1206 (9th Cir. 2001). In the March 2011 affidavit in 

support of the Possino wiretap applications, and in the subsequent affidavits which 

extended the Possino wiretap, the Government did not state or mention that 

Sherman Mazur – who would become a target of the Mazur wiretap – had 

previously cooperated with the FBI. The application also failed to discuss whether 

working with Mazur again could be an adequate alternative to the Possino tap – a 

potentially crucial fact for the determination of whether the Possino wiretap was

“necessary.” 

Judge Stephen V. Wilson, District Judge (C.D. Cal.), held three days of 

hearings regarding suppression of the Possino and Mazur wiretaps in February 

2014. After the hearings, Judge Wilson ordered further briefing on whether the 

Government had met the necessity requirement. 

After the briefing schedule was set, but prior to the submission of briefs, the 

Government determined that it would not use the evidence obtained from both the

Possino and Mazur wiretaps. The Government then moved the district court to 

dismiss the Mazur case against all defendants, including Brunoehler. The court 

granted the motion.2

 2 The case against Possino and his co-defendants continued, even without the 

benefit of the wiretaps. Multiple defendants ended up pleading guilty. To be clear, 

Brunoehler was not a defendant in the Possino case, and Brunoehler does not 
5

After the Mazur case was dismissed, Brunoehler filed the instant action 

against Agents Tarwater and Koepke, the FBI’s case agents in the Possino and 

Mazur investigations, along with the other unnamed agents involved in the two 

cases. 

 

otherwise allege that Biostem as a “pump and dump” vehicle was discussed by any 

of the speakers intercepted in the Possino wiretaps. 
6

II.

A. Wiretap Act Claims 

The Majority is correct that Brunoehler does not have standing to bring 

claims under the Federal Wiretap Act, 18 U.S.C. § 2510 et. seq. (the Wiretap Act). 

The Wiretap Act authorizes an action by a “person whose wire, oral, or electronic 

communication is intercepted, disclosed, or intentionally used in violation” of the 

law. 18 U.S.C. § 2520 (a). An aggrieved person under the Wiretap Act is a “person 

who was a party to any intercepted wire, oral, or electronic communication or a 

person against whom the interception was directed.” 18 U.S.C. § 2510(11). “The 

Supreme Court has interpreted these provisions [in the Wiretap Act] as limiting 

standing to challenge wiretaps to persons whose Fourth Amendment Rights were 

violated by the interception.” United States v. Gonzalez, 412 F.3d 1102, 1116 (9th 

Cir. 2005), amended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006). 

There are two wiretaps at issue in this case: the Possino wiretap, on which 

Brunoehler does not allege that he was recorded, and the Mazur wiretap, on which 

Brunoehler alleges (and the Government acknowledges) Brunoehler was recorded. 

Because Brunoehler has not alleged that he was recorded on the Possino

wiretap, he failed to allege that the Government actually injured him in connection 

with that wiretap. Brunoehler therefore may not use the Possino wiretap to 

establish his standing in this case. 
7

By contrast, Brunoehler was recorded on the Mazur wiretap, meaning that he 

is an “aggrieved person” under the Act with respect to that wiretap. 18 U.S.C. § 

2510(11). However, Brunoehler does not allege that there was anything wrong 

with the Mazur wiretap application, or that his rights were otherwise violated in 

connection with the Mazur wiretap. He therefore failed to allege he suffered an

injury from the Mazur wiretap. 

Taken together, Brunoehler has failed to show that he was aggrieved in any 

way by the wiretaps: the Possino wiretap did not record him, and Brunoehler has 

not alleged any claim for relief arising from the Mazur wiretap.3

 3 Even if the Complaint could be read to allege that the Mazur wiretap was 

improperly obtained because it was based on information from the Possino 

wiretap, that claim would fail. A defendant may not challenge the fruit of an illegal 

search if he lacks standing to challenge that search. See Wong Sun v. United States, 

371 U.S. 471, 492 (1963) (finding that defendant could not seek the exclusion of 

drugs illegally seized from a co-defendant because the illegal seizure “invaded no 

right of privacy or person or premises which would entitle [the defendant] to object 

to its use at trial.”). Multiple circuits have extended this logic to wiretap evidence 

as well. See, e.g., United States v. Fury, 554 F.2d 522, 526 (2d Cir. 1977) (finding 

that defendant “cannot challenge [the first wiretap] indirectly by seeking to 

suppress evidence from [the subsequent wiretap] on the ground that the 

[subsequent wiretap] was authorized in part on the basis of information from the 

[first wiretap].”). See also United States v. Gibson, 500 F.2d 854, 855 (4th Cir. 

1974) (finding “fruit of the poisonous tree” principle would not permit defendant 

to challenge a wiretap that did not target him, even though that wiretap lead to 

information implicating the defendant); United States v. Scasino, 513 F.2d 47, 51 

(5th Cir. 1975) (finding that “one cannot assert indirectly what he cannot assert 

directly,” meaning the “defendants have no standing to suppress evidence from” a 

wiretap that did not intercept those defendants’ communications.); United States v. 

Williams, 580 F.2d 578, 583 n. 21 (D.C. Cir. 1978) (“...an accused is unable to 

attack in this indirect fashion those wiretaps that he could not challenge directly.”).
8

B. Bivens Claim

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 91 

S. Ct. 1999 (1971), the Supreme Court considered whether a plaintiff had a private 

right of action against federal officers for a Fourth Amendment violation. In that 

case, federal officers entered Bivens’s apartment, manacled Bivens in front of his 

wife and children, threatened to arrest his family, and searched his apartment. 

Bivens was then interrogated, booked, and subjected to a strip search. Bivens 

alleged that the arrest and search were effected without a warrant or probable 

cause. Id. at 389. The Court ruled that it would enforce a damages remedy against 

the federal officers despite the absence of any statutory authorization for such suit. 

Such extra-statutory constitutional claims against federal officers have 

subsequently been referred to as “Bivens claims.” 

Since Bivens was decided, however, Bivens claims have been recognized in 

only two subsequent Supreme Court cases: a claim against a Congressman by an 

administrative assistant who claimed she was fired because she was a woman, 

Davis v. Passman, 442 U.S. 228 (1979), and a claim by a prisoner’s estate who 

sued federal jailers for failing to treat the prisoner’s asthma. Carlson v. Green, 446 

U.S. 14 (1980). As the Supreme Court noted last year, “[t]hese three cases –

Bivens, Davis, and Carlson – represent the only instances in which the Court has 

 

As shown, Brunoehler lacks standing to challenge the Possino wiretaps; he cannot 

claim it yielded tainted fruit to invalidate the Mazur wiretap. 
9

approved of an implied damages remedy under the Constitution itself.” Ziglar v. 

Abbasi, 137 S. Ct. 1843 (2017).4 The Court also noted in Ziglar that Bivens was 

the product of an “ancien regime...[when] the Court assumed it to be a proper 

judicial function to provide such remedies as are necessary to make effective a 

statute’s purpose,” and that therefore “it is possible that the analysis in the Court’s 

three Bivens cases might have been different if they were decided today.” Id. at 

 4 The Court in Ziglar also noted cases in which a Bivens remedy was not 

recognized. 

For example, the Court declined to create an implied damages remedy 

in the following cases: a First Amendment suit against a federal 

employer, Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct. 2404, 76 

L.Ed.2d 648 (1983); a race-discrimination suit against military 

officers, Chappell v. Wallace, 462 U.S. 296, 297, 304–305, 103 S.Ct. 

2362, 76 L.Ed.2d 586 (1983); a substantive due process suit against 

military officers, United States v. Stanley, 483 U.S. 669, 671–672, 

683–684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); a procedural due 

process suit against Social Security officials, Schweiker v. 

Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); 

a procedural due process suit against a federal agency for wrongful 

termination, FDIC v. Meyer, 510 U.S. 471, 473–474, 114 S.Ct. 996, 

127 L.Ed.2d 308 (1994); an Eighth Amendment suit against a private 

prison operator, Malesko, supra, at 63, 122 S.Ct. 515; a due process 

suit against officials from the Bureau of Land Management, Wilkie v. 

Robbins, 551 U.S. 537, 547–548, 562, 127 S.Ct. 2588, 168 L.Ed.2d 

389 (2007); and an Eighth Amendment suit against prison guards at a 

private prison, Minneci v. Pollard, 565 U.S. 118, 120, 132 S.Ct. 617, 

181 L.Ed.2d 606 (2012).

Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). 
10

1857.5 “As a result,” the Supreme Court “urged caution before 

extending Bivens remedies into any new context.” Id. 

There is a four step process to determine whether a Bivens claim may be 

brought. 

First, because Bivens claims are “implied private action[s] for damages 

against federal officers alleged to have violated a citizen’s constitutional rights,” 

W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009), we 

must determine as a preliminary matter whether the plaintiff has actually pleaded 

that his constitutional rights were violated. 

Second, assuming there has been a constitutional violation, we determine 

whether the Bivens claim represents a “new context” for Bivens, or is instead 

governed squarely by one of Bivens, Davis, or Carlson. The Ziglar Court ruled that 

“[i]f the case is different in a meaningful way from previous Bivens cases decided 

by this Court, then the context is new.” Id. 

Third, assuming that the claim is an “extension” of Bivens, we decide

whether “any alternative, existing process for protecting the interests” exists. 

 5 The term “ancien regime,” or “old regime,” is a term first used to describe the 

Bourbon monarchy of France, which was in power from the Late Middle Ages 

through to the French Revolution of 1789 – a form of government which has never 

been reimposed in the next 229 years. It has been 38 years since a Bivens claim has 

been recognized by the Court. In the Court’s reckoning, 38 years without a 

successful Bivens claim makes such claims “ancien.”
11

Wilkie v. Robbins, 551 U.S. 537, 550 (2007). If such an alternative exists, the 

Bivens claim will fail. 

Finally, we are instructed to consider whether “even in the absence of an 

alternative...special factors counselling hesitation before authorizing a new kind of 

federal litigation” exist. Id. 

i. Brunoehler fails to plead a cognizable injury

The Majority’s first error is its failure to recognize that Brunoehler’s 

complaint does not allege any cognizable constitutional injury. This error arises 

from the Majority’s mistaken finding that Brunoehler alleged two unrelated Bivens 

claims: one claim based on a faulty wiretap, and the other based on his arrest. 

In reality, the alleged “injuries” are inextricably linked: Brunoehler claims 1)

he was improperly surveilled, and 2) as a result of that improper surveillance, he 

was arrested. As Brunoehler himself summarizes his claims: “But for the omission 

that there were other less-intrusive, normal investigative procedures open to them, 

the wiretap orders would not have been issued and Mr. Brunoehler would not have 

been indicted and arrested, or suffered damages as a consequence.” SAC ¶ 50. See 

also id., ¶ 52: “This claim for relief is brought pursuant to Bivens for violations of 

Mr. Brunoehler’s rights ... because the Named Agents, Unknown Agents and 

Supervisory personnel Agents monitored and intercepted and monitored [sic] Mr. 

Brunoehler’s telephone conversations, applied for, obtained and executed search 
12

warrants for documents concerning Mr. Brunoehler [and] caused Mr. Brunoehler 

to be indicted and arrested without probable cause.”

Brunoehler’s injury, then, flowed from the allegedly illegal wiretaps. 

However, as the Majority itself recognizes, Brunoehler has not stated a claim that

he suffered any injures from those allegedly illegal wiretaps wiretaps: he does not 

have standing to challenge the Possino wiretap because he was not recorded on it, 

and he has not alleged that there was any deficiency in the Mazur wiretap to make 

it illegal. There can be no Bivens claim if there is no cognizable constitutional 

harm to be remedied. Here, Brunoehler pleaded none. 

The Majority appears to credit Brunoehler’s statement that he was “arrested 

without probable cause.” The Majority therefore determines that Brunoehler has a 

separate basis for claiming a Fourth Amendment harm – his arrest “without 

probable cause,” entirely apart from the allegedly problematic wiretap. However, 

there is a fatal flaw to the Majority’s ruling: Brunoehler does not sufficiently plead 

that he was arrested “without probable cause.”

Brunoehler’s SAC contains no particularized allegations of official 

wrongdoing apart from allegations related to the wiretaps. While Brunoehler 

repeats throughout the SAC the allegation that he was arrested “without probable 

cause,” it appears that what he means by that phrase is that he was arrested on the 

basis of information which was improperly obtained in the wiretaps. Brunoehler 
13

does not allege the Grand Jury which indicted him prior to his arrest did so without 

probable cause to believe that he had committed the crime for which he was 

charged. More importantly, he does not explain how, despite the Grand Jury 

indictment, the federal officers lacked “probable cause” to arrest him. Indeed, such 

a claim would be quite difficult to make, as “[a] warrant of arrest can be based 

upon an indictment because the Grand Jury's determination that probable cause 

existed for the indictment also establishes that element for the purpose of issuing a 

warrant for the apprehension of the person so charged.” United States v. 

Greenberg, 320 F.2d 467, 471 (9th Cir. 1963). See also Garmon v. Lumpkin Cty., 

Ga., 878 F.2d 1406, 1409 (11th Cir. 1989) (“When an arrest warrant is based upon 

an indictment, the Grand Jury's determination that probable cause existed to return

the indictment also establishes that probable cause existed for the issuance of 

an arrest warrant for the person charged.”). Brunoehler does not impugn in any

detail the evidence used to support the warrant for his arrest, nor explain why that 

evidence does not suffice to support probable cause for the arrest.6

 6 The Majority notes that “the district court judge dismissed the criminal case 

against Brunoehler on the government’s motion after testimony revealed that the 

Agents provided false and/or incomplete information in the wiretap application,” 

and contends that such dismissal supports Brunoehler’s claim that the officers 

lacked probable cause to arrest him. Slip Op. at *5. The dismissal of the case is a 

red herring, and the Majority’s statement to the contrary is flatly irreconcilable 

with its ruling on the Wiretap Act claim itself. The Majority recognizes that there 

are two wiretaps at issue in this case: 1) the Possino tap; and 2) the Mazur tap. The 

Majority also acknowledges that 1) Brunoehler has no standing to challenge the 
14

In other words, to the extent that Brunoehler alleged that he was “arrested 

without probable cause,” he failed to do so with the required factual particularity. 

In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made clear that 

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,” and that a 

“claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Brunoehler has alleged no facts from which we can draw the 

reasonable inference that his arrest was based on anything other than the probable 

cause found by the Grand Jury Indictment and generated by the wiretaps – wiretaps 

which he has no basis to challenge. 

Thus, Brunoehler’s failure to plead any constitutional injury is fatal to his 

Bivens claim. 

ii. Brunoehler’s arrest is an “extension” of Bivens 

 

Possino tap, and 2) Brunoehler failed to allege any defect with the application in 

support of the Mazur tap. Slip Op., Part II.2. The Majority therefore (correctly) 

rules that Brunoehler’s claims under the Wiretap Act should be dismissed. How 

then is the Government’s voluntary dismissal of its criminal case, following the 

revelation that there was a possible defect with the affidavit in support of the 

Possino wiretap, suddenly relevant to the Bivens claim? It is not. The Majority

states that the Agents cannot “rely on their own misconduct” to generate probable 

cause to arrest Brunoehler. Slip op. at *7. But again, there is no “misconduct” 

alleged with respect to the Mazur wiretap – the actual wiretap on which Brunoehler 

was recorded. Brunoehler has no basis to challenge the Mazur wiretap to support 

his Wiretap Act claim. He does not suddenly have a basis to challenge it or the 

probable cause it generated to support his Bivens claim. 
15

The Majority’s second error is its determination that Brunoehler’s arrest 

does not represent a “new context” for Bivens purposes, even if his arrest was 

somehow “without probable cause” despite the existence of a valid Grand Jury 

indictment. 

The Majority states, 

In Bivens, the plaintiff alleged that federal agents searched his home 

for narcotics and handcuffed him without probable cause. 403 U.S. at 

389. Here, Brunoehler alleges that the Agents obtained search 

warrants and arrested him in his home without probable cause. Instead 

of drug crimes, Brunoehler was arrested for alleged securities 

violations. But this is not the kind of “meaningful difference” 

envisioned in Ziglar; regardless of the crime alleged, the requirement 

of probable cause is the same under the Fourth Amendment.

Moreover, Ziglar did not require perfect factual symmetry 

between a proffered Bivens claim and Bivens itself. Rather, Ziglar

explicitly preserved “the continued force, or even the necessity of 

Bivens in the search-and-seizure context in which it arose.” Id. at 

1856. We therefore conclude that Brunoehler’s unlawful search and 

arrest claims are not “meaningfully different” from Bivens, which 

involved the same claims–albeit for different crimes–in virtually the 

same search-and-seizure context. Thus, Brunoehler’s allegation of 

unlawful search and arrest does not seek an extension of Bivens, and 

the district court erred when it dismissed those claims. 

Slip Op. at 7. In Ziglar, the Court stated that “[t]he proper test for determining 

whether a case presents a new Bivens claim is as follows. If the case is different in 

a meaningful way from previous Bivens cases decided by this Court, then the 

context is new.” Ziglar, 137 S. Ct. at 1859-60 (Kennedy, J.). The Court then gave a 

non-exhaustive list of what may be “meaningful” differences: 
16

the 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 the 

emergency to be confronted; the statutory or other legal mandate 

under which the officer was operating...or the presence of other 

special factors that previous Bivens cases did not consider. 

Ziglar, 137 S. Ct. at 1859-60. 

The Majority concludes that Brunoehler’s arrest was not meaningfully 

different than Bivens’s. The Majority is incorrect, because Bivens was subjected to 

a warrantless arrest, see Bivens, 403 U.S. at 389-90, and Brunoehler was arrested 

pursuant to a warrant which followed a Grand Jury indictment. The difference is 

crucial: the officers whom Brunoehler now sues were operating under a different 

“legal mandate,” Ziglar, 137 S. Ct. at 1860, than were the officers in Bivens, who

executed a warrantless search without probable cause. As a result, per Ziglar, the 

difference between our case and Bivens is “meaningful.” Id.

7

 7 Even if we were to find that the evidence used by the Grand Jury to support its 

indictment was the fruit of a Fourth Amendment violation, that would have no 

effect on the validity of the Grand Jury indictment or the arrest. As we noted 

in United States v. Zielezinski, 740 F.2d 727, 729 (9th Cir. 1984), "Grand juries can 

properly indict suspects on the basis of hearsay,...evidence seized in violation of 

the Fourth Amendment,...or evidence obtained in violation of the Fifth 

Amendment." (internal citations omitted). See also United States v. Calandra, 414 

U.S. 338, 344–45, 94 S. Ct. 613, 618, 38 L. Ed. 2d 561 (1974) ("The grand jury's 

sources of information are widely drawn, and the validity of an indictment is not 

affected by the character of the evidence considered.")." An arrest based on a 

warrant which follows a valid Grand Jury indictment does not violate the Fourth 

Amendment.
17

iii. Other remedies are available 

Because there was a “meaningful” difference between Bivens’ warrantless 

arrest and Brunoehler’s arrest by execution of an arrest warrant issued based on his 

Grand Jury indictment, a correct Bivens analysis would examine and determine 

whether “any alternative, existing process for protecting the interests” exists.

Wilkie, 551 U.S. at 550. Such an alternative process does exist: remedies under the 

Federal Wiretap Act, 18 U.S.C. § 2510 et. seq. The Federal Wiretap Act identifies 

the crimes for which investigating agents may use wiretaps (18 U.S.C. § 2516), 

describes the procedure for obtaining a wiretap (18 U.S.C. § 2518), and, most 

importantly, provides a civil damages remedy for violating its provisions, 18 

U.S.C. § 2520, totally separate from Bivens. 

The civil damages remedy provides a successful claimant with 

(1) such preliminary and other equitable or declaratory 

relief as may be appropriate; 

(2) damages under subsection (c) and punitive damages 

in appropriate cases; and 

(3) a reasonable attorney’s fee and other litigation costs 

reasonably incurred. [And]

(c)...

(2)...

(A) the sum of the actual damages suffered by the 

plaintiff...

18 U.S.C. § 2520(b)-(c). 

The breadth of the available relief in the Wiretap Act obviates the need for a 

Bivens action, even one based on a supposed arrest “without probable cause.” It is 
18

undisputed that each of Brunoehler’s allegations is traceable to the allegedly 

problematic wiretaps. In addition to receiving “actual damages suffered” by a 

violation of the Act, the Wiretap Act makes available punitive damages, along with 

attorney’s fees and costs. Should Brunoehler prevail in a Wiretap Act claim, then, 

he might be compensated for each of the Bivens claims he alleges, and then some. 

Brunoehler argues “the District Court negated, undermined or removed its 

own premise by dismissing Brunoehler’s alternatives – thereby demonstrating the 

absence of any alternative.” (emphasis in original). In other words, he thinks the 

Wiretap Act is not an adequate alternative remedy because the district court 

dismissed his flawed8 Wiretap Act claim. 

This argument is not persuasive. Ziglar did not require that a litigant succeed

in utilizing his available alternatives – what matters to our analysis is that those 

alternatives are available to be used in the first place. It is undisputed that 

Brunoehler’s allegations stem from the allegedly illegal wiretaps. The Wiretap Act 

provides precisely the remedy he seeks through Bivens for any harm which arises 

from those wiretaps. Brunoehler should not prevail under Bivens as a result of the 

weak case he has under this available alternative. Cf. Minneci v. Pollard, 565 U.S. 

118, 130, 132 S. Ct. 617, 625 (2012) (explaining that a Bivens alternative need 

only provide “roughly similar incentives for potential defendants to comply with 

 8 See Wiretap Act Claims, ante, Part II.A. 
19

the Eighth Amendment while also providing roughly similar compensation to 

victims of violations.”) 

III.

The basic premise of a Bivens claim is that a plaintiff has suffered an injury 

to his constitutional rights. Each of Brunoehler’s claims flows from wiretaps which 

he has no right to challenge, and from which he suffered no constitutional injury. 

The Bivens claim therefore fails. 

Even if we read Brunoehler’s complaint to state a claim for an illegal arrest, 

the Bivens claim still would not lie, for the simple reason that such arrest was made 

upon a warrant supported by probable cause based on the Grand Jury’s indictment. 

Further, where an adequate alternative remedy is available, the court may not 

extend a Bivens claim into a new context. The Wiretap Act provides such an 

adequate alternative. 

The district court’s dismissal of Brunoehler’s Bivens claim should be 

affirmed in full. I therefore respectfully dissent in part.