                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CAROLYN MARTIN,                                  No. 11-56717

              Plaintiff - Appellee,              D.C. No. 3:10-cv-01879-WQH-
                                                 MDD
  v.

NAVAL CRIMINAL INVESTIGATIVE                     MEMORANDUM*
SERVICE; et al.,

              Defendants,

  and

GERALD MARTIN, “Jerry,” NCIS
Special Agent,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                       Argued and Submitted August 5, 2013
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**

      Naval Criminal Investigative Service Special Agent Gerald Martin appeals

the partial denial of his motion to dismiss, on qualified immunity grounds, this

constitutional tort suit under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), alleging retaliation in violation of the

First Amendment. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the

collateral order doctrine, see Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007);

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we affirm.

1.    The complaint adequately pleads a violation of the First Amendment. Taken

as a whole, the allegations in the complaint establish that Special Agent Martin

“took action that ‘would chill or silence a person of ordinary firmness from future

First Amendment activities.’” Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232

(9th Cir. 2006) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d

1283, 1300 (9th Cir.1999)). The alleged early-morning confrontation at Plaintiff

Carolyn Martin’s home, which could not have served any valid law enforcement

purpose, renders plausible the notion that “deterrence [of protected activity] was a



       **
             The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.

                                          2
substantial or motivating factor in” Special Agent Martin’s conduct. Sloman v.

Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). The record reasonably supports the

inference that Special Agent Martin was aware of Ms. Martin’s protected activity

at the time this incident took place. See Watison v. Carter, 668 F.3d 1108, 1114

(9th Cir. 2012) (“Because direct evidence of retaliatory intent rarely can be pleaded

in a complaint, allegation of a chronology of events from which retaliation can be

inferred is sufficient to survive dismissal.”).

      That, in combination with the complaint’s other allegations of a perpetual

and pretextual investigation, is sufficient to allow the case to proceed until the

record is sufficiently developed to reveal whether Special Agent Martin acted with

an impermissible purpose. Cf. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,

901 (9th Cir. 2008); see also Ford v. City of Yakima, 706 F.3d 1188, 1194 n.2 (9th

Cir. 2013) (“[T]hat determination should be left to the trier of fact once a plaintiff

has produced evidence that the officer’s conduct was motivated by retaliatory

animus.”). At this procedural stage, taken as true, the complaint alleges facts

sufficient to support the conclusion that Special Agent Martin, through his “own

individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009).




                                            3
2.     The law prohibiting Special Agent Martin’s alleged conduct is clearly

established. “The question is not whether an earlier case mirrors the specific facts

here. Rather, the relevant question is whether ‘the state of the law at the time gives

officials fair warning that their conduct is unconstitutional.’” Ellins v. City of

Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013) (quoting Bull v. City & Cnty. of

San Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (en banc)). Our precedent has

long provided notice to law enforcement officers “that it is unlawful to use their

authority to retaliate against individuals for their protected speech,” Ford, 706

F.3d at 1195, “even if probable cause exists for” the challenged law enforcement

conduct, Skoog, 469 F.3d at 1235. “[A]ny reasonable police officer would have

understood that Skoog’s prohibition on retaliatory police action,” though

elaborated in the context of a retaliatory seizure of property, “extended to [other]

typical police actions.” Ford, 706 F.3d at 1196. These surely include detention,

surveillance, and service of a bogus violation notice. Cf. Sloman, 21 F.3d at 1469

(recognizing a claim under the First Amendment where a police officer “used his

official powers, specifically his power to warn, cite, and arrest, to retaliate against

[the] exercise of . . . free speech rights”).

3.     There are no alternative avenues of relief available to Ms. Martin or other

“special factors counselling hesitation” in recognizing a Bivens remedy in this case.


                                                4
See Wilkie, 551 U.S. at 550 (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)).

We have long recognized that such a remedy is available to redress allegations of

retaliation against protected speech by federal law enforcement officers. See

Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986). Although we more

recently held that the Administrative Procedure Act generally “provide[s] the

backup or default remedies for all interactions between individuals and all federal

agencies,” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir.

2009), here no APA remedy is available because there is no “final agency action”

for Ms. Martin to challenge, see 5 U.S.C. § 704. Rather, “[a]n investigation, even

one conducted with an eye to enforcement, is quintessentially non-final as a form

of agency action.” Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770, 781

(9th Cir. 2000). The very gravamen of Ms. Martin’s complaint is that the alleged

retaliatory “investigation” of her is pretextual and perpetually open, rendering the

APA’s provision for judicial review of “final” agency actions particularly illusory.

      Finally, that this appeal partially concerns events that occurred on a military

base is not a “special factor” sufficient to distinguish this case from Gibson.

United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S.

296 (1983), are inapposite because Ms. Martin’s lawsuit involves neither claims

brought by servicemen against their superior officers nor “injuries that ‘arise out of


                                           5
or are in the course of activity incident to service.’” Stanley, 483 U.S. at 684

(quoting Feres v. United States, 340 U.S. 135, 146 (1950)). The other authorities

upon which Special Agent Martin relies are equally inapplicable because Ms.

Martin does not allege that she has been barred from a military base, much less that

such an exclusion is the source of her constitutional injury. Cf. United States v.

Albertini, 472 U.S. 675, 686-87 (1985); Greer v. Spock, 424 U.S. 828, 838 (1976);

Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 892-93 (1961). Rather, she

claims that a federal law enforcement official harassed and intimidated

her—including at her own home, far from any military installation—because the

content of her constitutionally protected speech was unfavorable to him. Those

allegations “do not implicate military discipline in any meaningful way,”

Schoenfeld v. Quamme, 492 F.3d 1016, 1025 (9th Cir. 2007), and describe

precisely the type of injury for which Gibson already recognizes a Bivens remedy.

      AFFIRMED.




                                           6
                                                                                FILED
Martin v. Martin, 11-56717                                                      SEP 05 2013

                                                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS



SILVERMAN, Circuit Judge, dissenting:



      I have scoured the complaint and I have drawn all reasonable inferences in

plaintiff’s favor. Yet I still fail to see where plaintiff has plausibly alleged that

anything this particular defendant supposedly did – even assuming he acted

unprofessionally, improperly, or overzealously – was in retaliation for the exercise

of her First Amendment rights, as opposed to being in furtherance of an

investigation into plaintiff’s reported misuse of her credentials, an investigation

that he was summoned to and did not initiate. Because plaintiff failed to state a

plausible constitutional violation, defendant Martin was entitled to qualified

immunity. I would reverse the district court’s denial of the motion to dismiss and

direct the district court to grant plaintiff leave to amend her complaint.
