Petition for Writ of Certiorari — Morgan v. United States (No. 06-87)

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In The

Supreme Court of the Anited States

GREG ALAN MORGAN.

Petitioner.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MELBOURNE B. WEDDLE

Counsel of Record

LAW OFFICES OF

MELBOURNE B. WEDDLE

P. O. Box 593

Santa Barbara, CA 93102

(805) 966-1038

QUESTIONS PRESENTED

Whether the court of appeals erred in concluding that

this Court’s decision in Foman v. Davis, 371 U.S. 178

(1962) grants district courts’ discretion to deny an amend-

ment asserted under the first sentence of Fed.R.Civ.P.

15(a)? (Second Appeal).

Whether the court of appeals erred in holding that

“military bases” are exempt from the probable cause

requirement of the Fourth Amendment to the United

States Constitution? (First Appeal).

PARTIES TO THE PROCEEDINGS

AND CORPPORATE DISCLOSURE STATEMENT

Petitioner is Greg Morgan, an individual.

Respondents are: The United States Of America; The

United States Department Of Defense; William Cohen, in

his capacity as Secretary of the Department Of Defense;

The United States Air Force; General Richard Reynolds,

as an individual and in his capacity as Commander, Flight

Test Center, USAF; Colonel Edward Deiulio, as an indi-

vidual and in his former capacity as Base Commander of

Edwards Air Force Base, USAF; Colonel Neil Rader, as an

individual and in his capacity as Commander of Edwards

Air Force Base Security Forces, USAF; C. Eric Broughton,

as an individual and in his capacity as Sergeant, USAF;

Kenneth Erichsen, as an individual and in his capacity as

Sergeant, USAF; Eric Goodson, as an individual and in his

capacity as Airman, USAF; and DOE’s 1 through 10,

inclusive.

No party to this petition is a corporation or controlled

by a corporation.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........c.cccccccsecesessesceseeeeveeeee i

PARTIES TO THE PROCEEDINGS AND COR-

PORATE DISCLOSURE STATEMENT .........0.c0000.- ii

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CONSTITUTIONAL PROVISIONS AND STATUTES

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A. Events, May 16, 1999............. pny Aa Ne i,

REASONS FOR GRANTING THE PETITION ............

A. ARCUMENT - First Question ......................04.

1. The Court of Appeals Conflicts With This

Court’s Precedents in Foman-Davis...........

2. There Is Direct And Acknowledged Conflict

ND SRE SIE scien ccveinectceccetsonsspnengeeee

3. There Is Direct And Acknowledged Conflict

With The Seventh Circuit.............0.0.00.00000..

4. The Circuits Are In Conflict With This

Court’s Statements In Mayle-Felix.............

B. ARGUMENT - Second Question.......................

1. The Ninth Circuit Court Of Appeals Has

Decided A Question Of Federal Law That

Should Be Settled By This Court ...............

2. The Court of Appeals Conflicts With This

Court’s Precedents in Cafeteria-McElroy .......

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TABLE OF CONTENTS -— Continued

Page

APPENDIX

Court of Appeals Opinion: Morgan v. United States

et al., 166 Fed. Appx. 292 (9th Cir. February 7,

Court of Appeals Opinion: Morgan v. United States

et al., 323 F.3d 776 (9th Cir. March 18, 2003)........ App. 6

Court of Appeals Opinion: Morgan v. United States

et al., 60 Fed. Appx. 180 (9th Cir. March 18,

SEED cichiainictsicasblnancnenicnadasenladedeseiidcaneeiadebadeaiveiinieeds App. 16

District Court Order Granting Plaintiff's Motion

for Amended Findings of Facts (February 27,

BNE ic cic acenipeis ceca ccateidinlanalp abianansonmindumedbuinierecdeaveods App. 21

District Court Findings of Facts and Conclusions of

Law (Amended) (February 27, 2004)........0.....00.. App. 24

District Court Order Granting Defendant’s Two

Motions for Summary Adjudication (Amended)

CI TGs NN essen dd rivannevicacenectinionasiocsiass App. 31

District Court Amended Judgment (February 27,

SER cu svestacceashontenmcanbenicitinte basa nbudebaeirebieseaiciitael App. 33

District Court Order Denying Plaintiff's Motion to

Compel the Return of His Deposition Transcripts

of Defendants Goodson and Broughton (February

es OT aaricksnn dens acuunacsctadesabenasuiipabencscengertlMenadaes App. 35

District Court Order Denying Plaintiff’s

Fed.R.Civ.P. 8(c) Strike Motion (February 2,

BINT belosicskscssiciadds vd dacemdendaaianendtan aap dtecualaredaendinar ata App. 37

TABLE OF CONTENTS -— Continued

- Page

District Court Order Denying as Moot, Order to

Certify the Question to the Ninth Circuit Court of

Appeals — Whether Plaintiff Has a Right to File an

Amended Complaint Under the First Sentence of

Fed.R.Civ.P. 15(a) (October 6, 2003) .....c.cccscessesseeee App.

District Court Order Granting Plaintiff's Motion to

File an Amended Complaint Under the Second

Part of Fed.R.Civ.P. 15(a) (October 3, 2003)......... App.

District Court Order Striking Plaintiff's 05-02-03

First Amended Complaint and 06-09-03 First

Amended Complaint (August 28, 2003)................ App.

Reporter’s Transcript of Proceedings Motion (June

Si OUND visiduaucisiccsn ciseudovdbatiencuiadetecmteabiui vacatraneisuaie App.

District Court Order Status Conference Addressing

the Efforts to File an First Amended Complaint

and Filing and Spreading the Mandate (May 19,

SPUD caicvisdsissentiveieiitccinctiedueumistentinsseatiaaien App.

District Court Order Rejecting the 05-02-03 First

Amended Complaint (August 28, 2003)................ App.

District Court Order Denying Reconsideration of its

Fed.R.Civ.P. 12(b)(6) Order (January 25, 2001)...App.

District Court Order Granting Defendant’s

Fed.R.Civ.P. 12(b)6) Motion (November 15,

California Superior Court Order Dismissing Crimi-

nal Charges (September 23, 1999)........0. App.

Court of Appeals Order Denying Petition for

Rehearing and Rehearing En Banc (April 19,

I Ricki suis ndetskastatdeneddebdraiinatiacsicemaate App.

TABLE OF CONTENTS - Continued

Plaintiff’s Notice of Appeal of the District Court’s

November 15, 2000 Order Granting Defendant’s

Fed.R.Civ.P. 12(b)(6) Motion (March 7, 2001)......

Plaintiff’s Original Complaint (redacted) (May 15,

IIIT ciate cnsschssce adele iedinstcd ca vaeleueeaalan idcsednaemian eaiediian

Plaintiff's First Amended Complaint (redacted)

es ITE Ghsvlichiceihsnnscsadiianensiisidhieenasdanan analideaioemiligaaein

Extract Civil Docket (September 29, 2004)............

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TABLE OF AUTHORITIES

Page

CASES

Acevedo-Villalobos v. Hernandez, 22 F.3d 384 (1st

I ice caireecen gence eel ere Re aha Sem ta 17

Allwaste, Inc. v. Hecht, 65 F.3d 1523 (9th Cir. 1995)........ 13

Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir.

I seensknrccsicietistaabedh ck caladenaadocan takes saicanbicsmio mcs 19

Bivens v. Six Unknown Fed. Narcotics Agents, 403

ee te CD iach <0 Seabee chess sadmediiddaldadaeaaiaiombadaeodi 3, 20

Brown v. Texas, 460 U.S. 730 (1983).............cccceeeceeeeseeeees 27

Cafeteria & Restaurant Workers v. McElroy, 367

es I INTE h onicchscsshsddaebcicticdiddaleiaieedncoiocbacetasdiods 23, 26

Calderon v. Kansas Dept. of Social & Rehabilitation

Services, 181 F.3d 1180 (10th Cir. 1999)... 17

Chandler v. Miller, 520 U.S. 305 (1997) ....... 0. eee eee eee 27

Clardy v. Duke University, 299 F.2d 368 (4th Cir.

I ceceikintecdeteciscandeitalaicncactsiieideiednndabihinibteebibsdcad siecstamnnpanwseas 19

Commissioner v. Sunnen, 333 U.S. 591 (1948).....0..000000... 15

Costantini v. Trans World Airlines, 681 F.2d 1199

I CI Fe ihsse coco uiticeccceieaieieche te ataideceaninckeankn 15, 16

zeremcha v. International Ass’n of Mach. & Aero.

Workers, 724 F.2d 1552 (11th Cir. 1984) ................. 18, 19

Doe v. United States (In re Doe), 58 F.3d 494 (9th

BE Fe alli aiccascrecoinersiiecitecsimaisaabeessiaeaeaah 13, 14

Flower v. United States, 407 U.S. 197 (1972) ............. 23, 24

Foman v. Davis, 371 U.S. 178 (1962)....... 0. eee eee passim

Greer v. Spock, 424 U.S. SEB (IGT) ...cccccccocsecesescconseesenveses 28

Vill

TABLE OF AUTHORITIES - Continued

Page

Healthsouth Rehab. Hosp. v. Am. Nat'l Red Cross,

SE Fk Te Ce Ge Te waivesitinsisinniiasatisitteenens 18

Hill v. City of Indianapolis, 17 F.3d 1016 (7th Cir.

DG) scisstavicossttcrsntitininiiieniaieieapeanaa 19, 20 ©

Howard v. Commissioners of Louisville, 344 U.S.

Ek __:_ Onp REL HERA HEO NID Arte eee RAW ETD ARIS NSDIEY gony Hat Oi os fe 26

Katz v. United States, 389 U.S. 347 (1967)..................0000 25

Mayle v. Felix, __. U.S. __, 125 S.Ct. 2562, 162

Li. TE De GEE Ge wsdcesvtnstatcaseetstneeens 10, 12, 21, 22, 23

McCutchen v. City of Montclair, 73 Cal. App. 4th

TEFEN itisisuttnntiniichoanibiesancasdmaanoaaae 3

Michigan v. Tyler, 456 U.S. 499 (1978)... eee eeeeeeeeeees 27

Nguyen v. United States, 792 F.2d 1500 (9th Cir.

TIO onisisctsvcserciinstisniotoinigicealedrintek eens tae 13

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)... 15, 16

Pavelic & LeFlore v. Marvel Entertainment Group,

Div. of Cadence Industries Corp., 493 U.S. 120

CTT eiiosoicieiinivswisscablaitcdccmmibetetiasada cata age pe See 9

Quartana v. Utterback, 789 F.2d 1297 (8th Cir. 1986) ....... 17

Schreiber Distributing v. Serv-Well Furniture Co.,

806 F.2d 1393 (9th Cir. 1986).......... iad watadacaae, ees Bales ee 13

South Dakota v. Opperman, 428 U.S. 364 (1976)............. 27

Swanson v. United States Forest Service, 87 F.3d

Se Ce Ce, TE ktcsreikarncccnid citi a ee 14

United States v. Ellis, 547 F.2d 863 (5th Cir. 1977).......... 28

United States v. Jenkins, 986 F.2d 76 (4th Cir.

TABLE OF AUTHORITIES — Continued

ee as sasuepesuasoreneccesberts 28

Weisman v. LeLandais, 532 F.2d 308 (2nd Cir. 1976)... 17, 18

Whitaker v. City of Houston, Texas, 963 F.2d 831

SST Se ER I 18

CONSTITUTION

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FEDERAL RULES

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ss chcpmiukacdunrunenseveutereennerecs 8

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I ID oo ccncvexeuseveresnvsserscesveuveveancenceess 4,19, 25

els ie cscerernsvassenysvesvutersctovsencetsvecers passim

ES | a anevesevsens 7.

PEGAEW LE, UE Docc cessevecsccosevesessesee SE a ne 8

recs csc beads vaviienixavséveuresseversseeesuctenesen 18

ec bu sawn euandbssinevoshvavesseens 18

STATUTES

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Se 2D ceunsineeseundeudeasesuanivieeesbeenses 3

Neen ss cauessanivbesvesensvoeveeiearecece. sabse 3

Ne ca vusspsinteavewnveutensebeceubensvenss 6

Neen a ove ubdduwaunnkuestuvadiinevexehexpessers 3

TABLE OF AUTHORITIES -— Continued

Page

MISCELLANEOUS

15 Moore’s Federal Practice — Civil § 15.09-15.14

> EEE ES I Mac eae Ae iE eS Mops AN PE TSS 13, 17

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 166

Fed. Appx. 292, and is reprinted in the Appendix to the

Petition (“Pet. App.”) at 1-5.' The District Court’s opinion

is unreported, and is printed at Pet. App. 31-32 (Amended

Order), Pet. App. 24-30 (Amended Findings of Uncontro-

verted Fact and Conclusions of Law), and Pet. App. 21-23

(Amended Findings).

The two opinions of the Court of Appeals for the prior

appeal is reported at 60 Fed. Appx. 180 and is reprinted at

Pet. App. 6-15 and 323 F.3d 776, and is reprinted at Pet.

App. 16-20. The District Court’s opinion is unrepoited and

is reprinted at Pet. App. 55-58.

The Superior Court’s opinion is unreported and is

printed at Pet. App. 59-60.

JURISDICTION

The Court of Appeals entered its judgment on Febru-

ary 28, 2006 and denied the petition for panel rehearing

and the petition for rehearing en banc April 19, 2006

printed at Pet. App. 61. This Court has jurisdiction under

28 U.S.C. § 1254(1).

' As this concludes the action below, all opinions of the court of

appeals are now ripe.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

This case involves provisions of the Fourth Amend-

ment of the United States Constitution and Federal Rules

of Civil Procedure 15(a) (Fed.R.Civ.P.).

The Fourth Amendment provides: “The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.” See U.S. Const. amend. IV.

Fed.R.Civ.P. 15(a) provides: “A party may amend the

party’s pleading once as a matter of course at any time

before a responsive pleading is served or, if the pleading is

one to which no responsive pleading is permitted and the

action has not been placed upon the trial caiendar, the

party may so amend it at any time within 20 days after it

is served. Otherwise a party may amend the party’s

pleading only by leave of court or by written consent of the

adverse party; and leave shall be freely given when justice

so requires. A party shall plead in response to an amended

pleading within the time remaining for response to the

original pleading or within 10 days after service of the

amended pleading, whichever period may be the longer,

unless the court otherwise orders.” See Fed.R.Civ.P. 15(a).

STATEMENT OF THE CASE

It is fair to say, this is one of the most important

Fourth Amendment cases to reach this Court. Resolution

of the question presented here will largely determine the

value, indeed the very significance of our Constitution for

generations to come. The case arrives after the span of two

separate appeals, three opinions and over four years in the

Ninth Circuit Court of Appeals without respondents’ ever

answering what should have been the operative complaint.

Respondents (defendants) operate or administer an

administrative scheme on a National level, designed to

admit or deny entry to military installations. Near an

“Installation Entry Point,” petitioner (plaintiff) was asked

to consent to a vehicle search he denied the request.

Petitioner was charged with various state offences and

prosecuted in California Municipal Court. Adjudicating a

pretrial suppression motion,’ the Municipal Court Judge

held the “administrative goal * * * must_provide the least

intrusive invasion of privacy” in rejecting argument that -

“implied consent” overrode an “express refusal.” The

charges were terminated in petitioner’s favor because the

goals of administrative search no longer controlled the

situation — the remedy upon denial was to require peti-

tioner to leave. Pet. App. 59-60. Petitioner filed a civil

rights action in district court.’

On the first appeal, the Ninth Circuit on its own

accord determined to “decide when a search conducted at

the entry gate to a military base is reasonable.” Pet. App.

6, 323 F.3d at 778. The Ninth Circuit reversed the district

* In California, a Penal Code § 1538.5 proceeding is a preliminary

hearing and an adversary judicial proceeding, designed to litigate the

issue of probable cause. See, e.g., McCutchen v. City of Montclair, 73

Cal. App. 4th 1138 (1999).

* Asserting jurisdiction under 28 U.S.C. § 1331 (Federal Question),

§ 1331, § 1343, and Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971).

court’s Fed.R.Civ.P. 12(b)(6) order which terminated the

action with prejudice in favor of defendants.’ The district

court’s order held the defendants were “not required to

have probable cause to stop, i1 spect and/or search plaintiff

and his vehicle, or detain and arrest the plaintiff.” Pet.

App. 55-58. Rejecting that holding, the Ninth Circuit held:

“The district court’s reasoning goes too far in allowing a

categorical exception to the probable cause rule for all

searches on closed military bases” and imposed its own

standard, “implied consent.” Pet. App. 15, 323 F.3d at 782

(emphasis added).

Reiterating the district court’s conclusion, the Ninth

Circuit held, “section 1983 * * * requires action under the

color of state law” because the complaint failed to “allege”

a status as both a “federal and local employee” and upon

the premise of a Pet. App. 18, 60 Fed. Appx. 180 at 181

“stop, search, and seize,” the gate guards sequentially

“initiated the law enforcement activities at issue * * *

within the course and scope of their Base security duties.”

Id. The Ninth Circuit acknowledged, in its own words,

that plaintiff raised “several other issues on appeal,

including the propriety of the dismissal of his section 1983

claims.” Pet. App. 7 fn2, 323 F.3d at 778, fn2 (emphasis

added). Included however, were instructions for the dis-

trict court “to determine the propriety of dismissal” upon

“development of the factual record.” Pet. App. 11, 323 F.3d

at 780 (emphasis added). The court restored the action,

remanding “to the district court for further proceedings on

* The action was terminated in the early stages, before discovery

had commenced, and before respondents submitted a “responsive

pleading.”

a more complete factual record” upon a surviving “Bivens

claim.” Pet. App. 15, 323 F.3d at 782 (emphasis added).

Facts obtained, not from respondents but from a prior

FOIA’ response long overdue, confirmed the administra-

tive character of the search regime. Pet. App. 70-72.

The 5 lb. box included many documents previously un-

known,’ as well as a transcript of a tape recording secre-

tively made on the date of the incident. Pet. App. 73.’ The

documents detailed the procedures required under the

administrative search scheme and answered many ques-

tions. The question “whether implied consent was present”

turned unexpectedly — the answer, clearly no. Pet. App. 73

q 24-1.

The answer was no because the regulations provide —

demand that the gate guards refuse entry to the “Installa-

tion” as a consequence to denying the request (consent) to

search. Preserving the administrative character of the

search regime, the regulations establishing it, divested the

“Federal Officers” of all law enforcement authority — they

were without power to act “under color of federal law.” The

transcript confirmed that the “law enforcement activities

at issue” were possible only because one of the defendants,

* Freedom of Information Request.

* The new documents also established missing critical elements of

the evidentiary timeline and demonstrated that the documents

presented to the state district attorney were vetted then altered. The

altered documents coupled with the documents withheld, concealed

respondents’ full involvement and true motives. Because of the coinci-

dence of timing, the unfolding of the procedural processes in the state

court and in the district court, petitioner was prevented from obtaining

the new documents at any time sooner.

' Petitioner had prior knowledge of the existence of a tape re-

cording, but had no prior knowledge of its content.

a full time deputy sheriff, invoked his state power (direct

state action). The events as provided in defendants’ police

report were not, as advertised, a “stop, search, and seize”;

it was a search incident to arrest, an arrest possible only

because a state “peace officer” was present. See C.P.C.

§ 148(a) (resisting, delaying, or obstructing a California

Peace Officer). “Implied consent” had no relevancy to the

events.

The distinct court had not held conclusively, in dis-

missing the action, the complaint unsalvageable, “It does

not appear Plaintiff could state a claim * * * if allowed to

amend.” Pet. App. 57 7 6 (emphasis added). Defendants

had not answered the complaint, and plaintiff had been

deprived of his right to amend “once,” when the action was

terminated. The Ninth Circuit had restored the action to

determine the “propriety of dismissal” and for “further

proceedings” upon facts to determine if plaintiff “impliedly

consented to the search.” If “implied consent” were to be

determined, some quantifiably measurable standard was

necessary. The facts obtained demanded the complaint be

amended to assert a foundation of an administrative

search.

On remand, plaintiff endeavored to amend his plead-

ing “once as a matter of course,” on three separate occa-

sions. On 05-02-03, the first instance, the clerk

erroneously recorded it as “lodged” and not filed. Seeking

to correct the error, on 05-13-03, the first amended com-

plaint was re-filed. The clerk repeats the error, again

* The decision of the Ninth Circuit was issued on 03-18-03, the

mandate was issued on 05-12-03, and the district court received and

lodged it on 05-13-03, filing it on 05-16-03.

recording it as “lodged” and not filed. Six days later on 05-

19-03, the district court, on its own, orders a status confer-

ence for 06-09-03, for “filing and spreading mandate” and

to “address issue of notice of document discrepancy at-

tempted’ filing of the first amended complaint.” Pet. App.

47, 48. During the status conference, the district court

apparently unaware, learns that a “responsive pleading”

had not been filed; declares the first amended complaint

“should be filed with the court,” the first amended com-

plaint is again filed. Pet. App. 44, 46.

On 08-29-03, the district court sua sponte orders the

06-09-03 amended complaint stricken stating it was filed

“without leave of the court” and also orders the 05-02-03

first amended complaint stricken stating: “No CCAP order

has been filed & spread. The case has never been re-

opened.” Pet. App. 42. On 08-28-03, petitioner motions to

file a first amended complaint and on 09-08-03 follows

with a motion for “certification and order” for a permissive

appeal to the Ninth Circuit, to settle the question of the

right to “amend the party’s pleading once as a matter of

course at any time before a responsive pleading is served.”

On 10-03-03, after full briefing, the district court grants

the motion to amend the complaint and denies as moot the

motion for “certification and order” for a permissive appeal

to the Ninth Circuit on 10-06-03. Pet. App. 39. When the

district court granted the motion to amend the complaint,

* No disposition was issued upon the 05-13-03 first amended

complaint and its existence in the record is scarcely evidenced. The

clerk's Docket Report provides: “and wil [sic] also address issue of notice

of document discrepancy re attempted filing of the first amended

complaint.” Pet. App. 101 (emphasis added).

the discovery schedule set during the status conference of

06-09-03 had expired.

The district court grants summary adjudication in

favor of defendants, not-upon the first amended complaint,

but upon the original complaint by declaring the amended

complaint “barred by the doctrines of res judicata and the

law of mandate.” Pet. App. 29 J 3-4 (“all claims in the first

amended complaint * * * are barred by the doctrines of res

judicata and the law of mandate”). Elimination of the first

amended complaint worked a chain reaction; the factual

foundation that the searches are administrative searches —

gone, and all motions” directed at advancing that factual

assertion were denied including the Fed.R.Civ.P. 56(f)

relief. Pet. App. 32 (holding “that any form of relief * * *

would [not] result in * * * facts essential to preclude * * *

summary adjudication”).

On the second appeal, the Ninth Circuit affirmed the

district court’s summary adjudication granted in favor of

defendants. The Ninth Circuit endorsed not only the

district court’s adjudication upon wrong facts; but also the

district court’s conclusion that passing an equivocal

welcome sign was implied consent. The true facts of an

In its own words, the Ninth Circuit stated as “extensive” the

“history of this litigation.” Pet. App. 12, 166 red. Appx. 292, 294. The

history following the 10-03-03 order granting the amended complaint

erupted as a result of plaintiffs’ effort to exforce the legal status of the

first amended complaint. These effe«s \~ suded multiple motions for

discovery orders, judicial notice and “F Faith and Credit” of the state

court decision, resetting the discovery scidule and trial date, protective

order, strike under Fed.R.Civ.P. 8(b), Fed.R.Civ.P 8(c), and Fed.R.Civ.P.

56(f), temporary stay for time to request the Ninth Circuit for recall of

mandate and others. The -district court simply denied petitioner's

motions without explanation; the reason became apparent in granting

summary adjudication.

administrative search gone badly were missing because

the right to amend was denied. Whereas, the district court

rationalized its denial of the right to amend by the Ninth

Circuit’s “affirm[ance] in every respect,” the Ninth Circuit

rationalized it’s denial though its erroneous holding that a

district court had the discretion to deny the right to

amend. The result was a circular, but breathtaking repu-

diation of the Fourth Amendment. The dilemma was

created because the Ninth Circuit misreads this Court’s

holding in Foman v. Davis, 371 U.S. 178 (1962) (Foman-

Davis) and thus believes Fed.R.Civ.P. 15(a) gives a district

court discretion to deny amendments, contrary to the

express terms of Rule 15(a).

Notwithstanding an amended complaint, respondents

obtained summary adjudication upon the original com-

plaint. The Ninth Circuit affirmed this adjudication

because it refused to apply the first sentence of rule 15(a).

Its refusal is a radical departure from the principle that

courts are to “apply the text, not improve upon it.” See

Pavelic & LeFlore v. Marvel Entertainment Group, Div. of

Cadence Industries Corp., 493 U.S. 120, 126 (1989). The

Ninth Circuit read Foman-Davis not as endorsing, but as

rejecting this established principle. The Ninth Circuit’s

policy is that a district court has unlimited discretion to

deny the right of a pleader to amend once. Foman-Davis

did not purport to decide how the first sentence of Rule

15(a) applies. Indeed, it left such questions open. Foman-

Davis manifestly did not dictate the result the Ninth

Circuit reached in this unbroken single numbered action.

Not surprisingly, every circuit that has endeavored to

fashion a meaningful amendment policy encompassing the

first sentence of the rule based upon Foman-Davis second

sentence determination has reached diametrically opposed

conclusions on these same issues.

Review is urgently needed not only to resolve the

conflict between the Circuits, but more importantly to

clarify the applicability and meaning of the rule. Indeed,

this Court’s recent statements in Mayle v. Felix, ___ US.

__, 125 S.Ct. 2562, 2569, 162 L. Ed. 2d 582 (2005) (Mayle-

Felix) addressing the first sentence of Rule 15(a) indicate

that all Circuits’ policy regarding amendment are overly

broad and infirm. Left undisturbed, the Ninth Circuit’s

decision effectively insulates any defendant from suit

nationwide, where a defendant has hidden the true facts

and a plaintiff does not have full possession of those facts,

before a suit is filed. Indeed, the Ninth Circuit’s decision

threatens the very foundations of notice pleading. Resolu-

tion of the question presented here will largely determine

the rights of civil litigants to amend once as a matter of

course.

A. Events, May 16, 1999

On 05-16-99, at 09:41, plaintiff was stopped outside of

the “Installation” entry of Edwards AFB, California. Three

gate guards approached plaintiff’s vehicle. One of the gate

guards (defendant “Goodson”), supervised by the other

two, reading the prepared statement from an Air Force

Form, asked plaintiff for permission to search his vehicle.

Plaintiff denied the request. For the next 27 minutes, the

gate guards sought to extract consent, the tools of which

included harassing, threatening and intimidating plaintiff.

Their efforts were rebuffed, and on at least 17 different

occasions, plaintiff said “no.” At no time did the gate

guards follow their orders and instruct — or allow — plain-

tiff to leave. |

The gate guards retreated visibly angry to an area

approximately 12 feet behind plaintiff’s vehicle and

conferred among themselves. After a period of time,

plaintiff exited the vehicle to use the public telephone. The

telephone was located across the roadway, in a building

called the “Visitor Reception Center.” When plaintiff was

halfway across the roadway, some 25-30 feet away from

the gate guards, he heard a shout from behind. Turning

around to face the shout, plaintiff said “What?” defendant

Broughton (“Broughton”) shouted, “Get back in your car.”

Plaintiff replied, “I’m late for work, and need to use the

telephone ... am I under arrest?” Broughton replied “No!”

At that instant one of the other gate guards shouted

“FREEZE.” Broughton screamed “COVER ME” and all the

gate guards grabbed their weapons. Plaintiff did not move

for fear of his life.

Broughton then ran towards plaintiff, smashing into

him; then handcuffed him. Broughton then walked plain-

tiff to the Visitor Reception Center. Goodson and an

Airman Fultz were ordered to watch over the handcuffed

plaintiff at gunpoint. Broughton then ordered defendant

Erichsen (“Erichsen”) to assist him in searching plaintiff’s

vehicle. During that search, an unloaded handgun belong-

ing to plaintiff’s wife, a police officer, was discovered (she

was on the base pistol team). The weapon was described

by Broughton and Erichsen as being “in plain view.”

However, the vehicle was locked and outside of Morgan’s

immediate control.

Approximately 40 minutes later, plaintiff, a prisoner,

was driven into the “Installation” to security police

headquarters. Plaintiff in handcuff’s was locked in a small

room, and then subjected to an intense, illegal custodial

interrogation. Plaintiff invoked his right to counsel and

demanded that he be read his rights, many times over,

neither of which were provided to him. Approximately 4

hours later, defendants summoned Deruty Ian Chandler of

the Kern County Sheriff’s Departmeat who transported

plaintiff to the county jail.

REASONS FOR GRANTING THE PETITION

There are conflicts in the circuits regarding interpre-

tations of Fed.R.Civ.P. 15(a) and Foman-Davis, which have

recently been identified by Mayle-Felix. This Court’s

determination is necessary on the following question:

Whether the court of appeals erred in concluding that this

Court’s decision in Foman-Davis, grants courts discretion

to deny an amendment asserted under the first sentence of

Fed.R.Civ.P. 15(a)? The second question presents excep-

tionally important questions of federal law: Whether the

court of appeals erred in holding that “military bases” are

exempt from the probable cause requirement of the Fourth

Amendment to the United States Constitution?

A. ARGUMENT - First Question

The Ninth Circuit Court Of Appeals Impermissi-

bly Allows The Denial Of The Right To Amend A

Parties Pleading Once

As an initial matter, Rule 15(a) allows a party to

amend its pleading as of right “at any time before a

responsive pleading is served.” Fed.R.Civ.P. 15(a). When a

claim is altered or added through an amendment as of

right, the plain language of Rule 15(a) does not give a

district court or an appellate court the power to deny the

right. The right is immutable and the power to terminate

the right does not rest with the courts, it rests exclusively

at the hands of a responding party who must take affirma-

tive action defined by reference in Fed.R.Civ.P. 7(a), e.g.,

“answer.”

1. The Court of Appeals Conflicts With This

Court’s Precedents in Foman-Davis

In Foman-Davis this Court held “Rule 15(a) declares

that leave to amend ‘shall be freely given when justice so

requires’; this mandate is to be heeded.” The Ninth Circuit

interpreting Foman-Davis does not cutoff the right after

dismissal for failure to state a claim, Allwaste, Inc. v.

Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995); does not cutoff

the right after summary judgment, Doe v. United States

(In re Doe), 58 F.3d 494, 497 (9th Cir. 1995) — summary

judgment case); does not cutoff the right after losing an

appeal; Nguyen v. United States, 792 F.2d 1500, 1503 (9th

Cir. 1986). The rationale is “The policy in favor of allowing

amendments is extremely liberal”’ and any submission

other than those defined in Fed.R.Civ.P. 7(a), is not a

responsive pleading within the meaning of the rule. See

e.g., Schreiber Distributing v. Serv-Well Furniture Co., 806

F.2d 1393, 1401 (9th Cir. 1986). Thus, generally in circum-

stances like the present, where part of an action survives

appeal, and no responsive pleading is filed, an amendment

is proper.

" Quoting 3-15 Moore’s Federal Practice-Civil § 15.11 (2006).

Yet the court believes that Rule 15(a) (as the Ninth

Circuit has over broadly interpreted Foman-Davis) allows

a court to “cutoff” at any stage, the right to amend if the

court determines (even before submission) that an amend-

ment cannot save the action and justifies its determina-

tion upon any of the factors provided in Foman-Davis, e.g.,

(1) prejudices the opposing party; (2) is sought in bad

faith; (3) produces an undue delay in litigation; or (4) is

futile. See e.g., Doe v. United States (In re Doe), 58 F.3d

494, 497 (9th Cir. 1995) (paying homage to the first sen-

tence then declares “a district court should grant leave to

amend * ** unless it determines that the pleading could

not possibly be cured by the allegation of other facts.”)

(Internal citation omitted, emphasis added.) Where a

district court provides “justification,” the Ninth Circuit

reviews the denial of the right for “abuse of discretion” and

where a district court fails to provide “justification,” an

abuse of that discretion is generally found. Swanson uv.

United States Forest Service, 87 F.3d 339, 343 (9th Cir.

1996).

One striking feature of Foman-Davis and the main

bone of contention was that this Court never stated the

text of the first sentence, but explicitly stated the text in

the second sentence and the discretion for a court to grant

or deny an amendment flows from the latter not the

former. Because the case did not involve the first sentence

of Rule 15(a), “the grant or denial of an opportunity to

amend” is not within the discretion, or even the court’s

jurisdiction. The plain language of the first sentence

declares the right to amend is immutable, terminated only

by the responding party taking one or more of the elected

courses of action provided in Rule 7(a) or otherwise by the

party seeking to amend, exercising “once” the right. The

Ninth Circuit's over broad inclusion of the first sentence in

its Rule 15(a) jurisprudence declares that sentence mean-

ingless.

The Ninth Circuit implicitly recognized that its broad

interpretation was problematic when it echoed the deter-

mination in Costantini v. Trans World Airlines, 681 F.2d

1199, 1201 (9th Cir. 1982). Costantini-Trans World Airlines

was a case where the entire action was involuntarily

dismissed and the dismissal was affirmed on appeal. No

part of the original action survived. The plaintiff subse-

quently filed another action quickly on the heels of the

prior action and the defendant successfully claimed the

involuntary dismissal of the prior action operated as res

judicata (collateral estoppel).

The Ninth Circuit then went on to apply “res judicata”

in this case; as it thought Costantini-Trans World Airlines

dictated. Yet the factual context here differs from Costan-

tini-Trans World Airlines in critical ways, the case at bar

is the same ongoing single numbered action, and the

amendments arose from a change in facts essential to the

prior judgment. See Commissioner v. Sunnen, 333 U.S.

591, 599 (1948).

Ignoring the carefully circumscribed nature of the

Court’s amendment analysis, the Ninth Circuit held that

res judicata barred the amendments, thus, misreading

virtually every decision dictating that res judicata applies

to a completed lawsuit.” Specifically, the court held that

" See e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, fn5

(1979). “Under the doctrine of res judicata, a judgment on the merits in

a prior suit bars a second suit involving the same parties or their

privies based on the same cause of action. Under the doctrine of

collateral estoppel, on the other hand, the second action is upon a

(Continued on following page)

petitioner’s amended claims “were either already litigated,

or should have been raised in his original Complaint” — a

standard that appears nowhere in Costantini-Trans World

Airlines itself or in the law of res judicata. The factual

context here differs from Costantini-Trans World Airlines

in critical ways, raising important issues that were either

expressly reserved or simply not presented by that case.

Ninth Circuit followed its unfounded interpretation

that Foman-Davis granted broad discretion, by affirming

the district court’s multiple strikes of the amendment filed

by right and upholding the summary adjudication even

where an amended complaint should have superseded the

original complaint in all respects. The court viewed the

amended complaint filed by right as irrelevant because

Foman-Davis, in its view, gave lower courts discretion to

deny the amendment. As a consequence, courts could also,

without any actual or constructive notice, ignore the

amendment and no abuse would be found.

By forcing the square peg of this case into the round

hole of its overly broad Foman-Davis interpretation, the

Ninth Circuit created a completely novel test for reviewing

the denial of amendments filed by right; unmoored from

law or logic. The test poses a grave threat to the very

balance between litigants that the federal rules intended

to provide, hinders the disposition of litigation on the

merits and fosters the perception that the pleadings are

ends in themselves.

different cause of action and the judgment in the prior suit precludes

relitigation of issues actually litigated and necessary to the outcome of

the first action.” Jd. ie

2. There Is Direct And Acknowledged Conflict

Within The Circuits

The Ninth Circuit’s view creates a direct and ac- _

knowledged conflict with every other circuit, who then do

not agree between themselves and in light of this Court’s

ruling in Foman-Davis it is hardly surprising that the

decision below diverges markedly from every other cir-

cuit’s law on the core question that this case presents.

In describing the divergence, Moore’s Treatise states:

“The federal circuits disagree, however, as to whether the

plaintiff’s right to amend without leave terminates with

dismissal, and this distinction is directly tied to whether

the dismissal is considered a final and appealable order” 3-

15 Moore’s Federal Practice — Civil § 15.12 (3d ed. 2006).

The divergence materializes over the terms “complaint” or

“action,” that is, whether dismissal of a complaint or

dismissal of the action terminates the right to amend.

What evolved essentially, is that the circuits split into

three major camps, with each camp not precisely in

agreement with the others in its own camp.

Differing from the Ninth Circuit, the First, Second,

Eight and Tenth Circuits hold that, unless the court

expressly grants leave to amend, an order dismissing the

complaint is final, terminating plaintiff’s right to amend

once as a matter of course. See Acevedo-Villalobos v.

Hernandez, 22 F.3d 384, 389 (1st Cir. 1994); Weisman v.

LeLandais, 532 F.2d 308, 309 (2nd Cir. 1976); Quartana v.

Utterback, 789 F.2d 1297, 1300 (8th Cir. 1986); Calderon v.

Kansas Dept. of Social & Rehabilitation Services, 181 F.3d

1180, 1185 (10th Cir. 1999). When a district court orders

the complaint dismissed without expressly granting leave

to amend, the decision is final and there is no right to

amend. A plaintiff must appeal or move to reopen the case

under Fed.R.Civ.P. 59(e) or 60(b) and then move again for

leave to amend. /d., 532 F.2d at 309.

The Fifth and Eleventh Circuits split the line between

the distinction of “complaint” and “action” and rather focus

on intent. An order dismissing-the complaint is not a

dismissal of the action unless it also states the right is

denied or otherwise indicates no amendment is possible.

Whitaker v. City of Houston, Texas, 963 F.2d 831, 835 (5th

Cir. 1992); Czeremcha v. International Ass’n of Mach. &

Aero. Workers, 724 F.2d 1552, 1554 (11th Cir. 1984).

The Fourth Circuit however has not weighed in on

such distinction. Taking a literal view that Foman-Davis

decided the entire meaning of Rule 15(a) and in its view a

district court has exclusivity to grant or deny an amend-

ment; thereby avoiding the controversy. See Healthsouth

Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1010

(4th Cir. 1996) (holding that the “decision to grant a party

leave to amend its pleadings rests within the sound

discretion of the district court”) (citing Foman-Davis, other

citations omitted). Thus where a district court has exclu-

sive discretion, a plaintiff’s “right” is irrelevant and a

district court need not “articulate grounds for denying a

plaintiff’s leave to amend” and if it chooses not to, it “does

not amount to an abuse of discretion.” Jd., at 1010 (inter-

nal citation omitted).

The common thread apparent in all the above refer-

enced circuits is not whether a distinction exists between

“complaint” and “action,” but rather when a district court

can exercise its discretion to deny an amendment by

right. The Eleventh Circuit perhaps makes this point

perfectly clear and illuminates the tension which causes

the drawing of distinctive lines. “We believe that this

approach is consistent with Rule 15’s liberal mandate that

leave to amend be ‘freely given when justice so requir¢s,’

without granting the plaintiff carte blanche power to

reopen a case at will by filing an amendment.” See 724 F.2d

at 1554-1555 (emphasis added) citing a Fourth Circuit

Rule 12(b)(6) case, Clardy v. Duke University, 299 F.2d

368, 369-370 (4th Cir. 1962).

The statement exposes the collision between Foman-

Davis’s demand that leave be “freely given” and interpre-

tations excluding the first sentence of Rule 15(a). The first

sentence of Rule 15(a) does not, however, illuminate any

other circumstances when amendment of the complaint is

or is not appropriate except “once” and “at any time.”

Fed.R.Civ.P. 15(a). The plain language of the Federal

Rules and the equitable goal of merits determination

compel this result, a result that Foman-Davis endorsed,

not rejected. If discretion is wanted, the lower courts

cannot do so by fiat; the rulemaking process requires

amendment. Given this, it is unsurprising that the rheto-

ric used by the federal courts is notice pleading. The

reality, however, is the lower court practice — using all

manner of degree of discretion — denies the result and

upsets the balance between parties the rules intend to

provide.

The Seventh Circuit however, stands apart in that

regard. The court held in Hill v. City of Indianapolis, 17

F.3d 1016, 1018 (7th Cir. 1994), where the plaintiff indi-

cated the desire to amend by right, the dismissal below

cannot constitute a final judgment until all matters

relating to the action were terminated. See also Bieneman

v. City of Chicago, 838 F.2d 962, 963 (7th Cir. 1988) (no

final judgment because court did not decide all issues).

This approach is more consistent with the text of the first

sentence. In each case, the Seventh Circuit did not review

for “abuse of discretion” but for error. This approach is

more consistent with the language of the rule.

3. There Is Direct And Acknowledged Conflict

With The Seventh Circuit

The Ninth Circuit and the Seventh Circuit are in

direct conflict over what a plaintiff must show to establish

that the right to amend was denied. The Ninth Circuit

requires a showing that a district court “abused discretion”

in denying an amendment by right. See Pet. App. 3, 166

Fed. Appx. 292, 294 (holding that “The district court

properly dismissed * * * the non-Bivens claim raised in his

Bivens complaint”). Thus, where a plaintiff has a substan-

tial basis to amend, the district court can exercise “discre-

tion” and preempt that right, without reviewing the

amendment, and on appeal the burden rests with the

plaintiff to prove abuse.” -

' The Seventh Circuit, in contrast, predicts not

whether amendments are possible, see 17 F.3d at 1016

(holding that the district court had an “obligation to

review” an amended complaint, it is insufficient merely to

presume that an amendment would be futile), but where

the right remains “dismissal [based upon] the original

complaint * * * could not possibly constitute a final judg-

ment” id., and that the action cannot terminate until the

amended complaint assumes its proper standing (holding

that “absence of a ruling on the Amended Complaint,

the case was not ‘closed,’”). Jd. Thus, where a plaintiff

* In the case at bar, this issue is presented from both appeals.

expresses a desire to amend, the burden is not upon the

plaintiff to prove abuse, but upon the district court to

grant the right and adjudicate upon the amended pleading

before the case is ripe for an appeal.

4. The Circuits Are In Conflict With This Court’s

Statements In Mayle-Felix

Recently in Mayle-Felix this Court indicated that

Foman-Davis was not a matter intended to adjudicate the

first sentence of Rule 15(a). Jacoby Lee Felix was con-

victed of first-degree murder and second-degree robbery.

During his trial, Felix argued that the admission into

evidence of his confession to the police violated his 5th

Amendment right against self-incrimination and also

argued that his 6th Amendment right to confront wit-

nesses testifying against him was violated at trial.

After exhausting his state appeals, Felix filed a

habeas corpus petition asserting only the 6th Amendment

Confrontation Clause claim. Later, Felix filed an amend-

ment to his petition, reasserting the 5th Amendment

claim. The district court rejected the 5th Amendment

claim as time barred under the Antiterrorism and Effec-

tive Death Penalty Act (AEDPA).

The Ninth Circuit Court reversed in a 2-to-1 decision,

reasoning that Felix’s coerced confession claim “arises

from the same transaction — his trial and conviction in

state court” thus relates back to the original petition

under Fed.R.Civ.P. 15(c)2), an amendment was proper

notwithstanding the AEDPA one year statute of limita-

tions.

On review, this Court reversed the Ninth Circuit,

holding that Felix’s amended petition did not relate back

to the date of his original timely-filed petition because

“conduct, transaction, or occurrence” were not the same as

“trial, conviction, or sentence” and thus the amended

petition supported by new facts that differed in both time

and type was untimely under Fed.R.Civ.P. 15(c)(2).

While not the issue on review, discussion turned on

the meaning of Rule 15(a) over concern if this Court were

to adopt as Felix urged, the view of the Ninth Circuit, that

a petition could be amended after the one year statute of

limitations. Felix argued (and the Ninth Circuit held)

however, that Rule 15(a) arms district courts with ample

power to deny leave to amend when justice so requires.

This Court implicitly affirmed that view to be wrong. In

rejecting that argument, this Court stated the “argument

overlooks a pleader’s right to amend without leave of court

‘any time before a responsive pleading is served’.” Mayle-

Felix at 2574.

This Court’s“ statement affirms that the first sen-

tence has meaning, and makes clear, the Ninth Circuit’s

view that Foman-Davis swallowed all of Rule 15(a) is

wrong. Where “leave of court” is not an element of the

“pleader’s right to amend,” the district court has no

discretion to either approve or deny the amendment. The

'* The dissent also elucidated the outer parameters of Rule 15(a),

stating the “opportunity to amend as a matter of course, without

permission of the trial court, exists only before the responsive pleading

is served, and even then only once * * * . After one amendment, or after

the government files the answer *** the prisoner may not amend

without the court’s leave or the government’s consent * * * .” Id. at 2575

‘emphasis added).

clarifications provided in Mayle-Felix does, by implication,

disturb those circuits’ standard of review founded upon

discretion and lend support to the Seventh Circuit’s view

that a district court is simply wrong to deny the right.

B. ARGUMENT - Second Question

The Fourth Amendment provides: “The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV.

The facts of this case are a blend between two of this

Court’s precedents. In Flower v. United States, 407 U.S.

197, 198 (1972) (Flower-United States),” this Court re-

versed a conviction for distributing leaflets on a military

base where the “fort commander chose not to exclude the

public from the street where petitioner was arrested” and

where “there [wa]s no sentry post or guard at either

entrance or anywhere along the route” and “traffic flowed

through the post on this and other streets 24 hours a day”

(citations omitted). In Cafeteria & Restaurant Workers v.

McElroy, 367 U.S. 886, 896 (1961) (Cafeteria-McElroy),”

this court upheld the authority of the commander of a

military base to deny employment to a civilian cook

through the summary revocation of her identification

badge thereby preventing her from passing through the

entrance of the military installation. |

}

)

A first amendment case.

** A fifth amendment case.

The facts of this case are similar to Flower-United

States, in that a nine-mile highway running west-east

leading to the “installation entry control point” is under

concurrent legislative jurisdiction of both the State of

California and the federal government; patrolled by Kern

County Sheriff’s deputies, is “open” for public use and to

the south is a wetlands preserve administered by various

state and federal agencies. The facts are similar to

Cafeteria-McElroy, in that the north side of the highway is

paralleled by a barbed wire fence with attached warning

signs, an “installation entry control point” at the end

marked by a gate, with armed guards, a warning sign, a

visitor reception center” and regulations codifying the

procedures for entering the “installation.” Pet. App. 26.

1. The Ninth Circuit Court Of Appeals Has De-

cided A Question Of Federal Law That Should

Be Settled By This Court

In deciding “when a search conducted at the entry

gate to a military base is reasonable” the Ninth Circuit

declared “searches on closed military bases have long been

exempt from +he usual Fourth Amendment requirement of

probable cau 2.” Pet. App. 13, 323 F.3d 776, 778, citing

United States v. Jenkins, 986 F.2d 76 (4th Cir. 1993).The

Fourth Amendment received its first blow when the court

rejected the probable cause requirement in favor of the

reduced standard of reasonableness holding that “implied

consent” excepted the probable cause rule even in the face

" Including the Department of Defense.

" The visitor reception center is open for pubic use, for those

seeking entry to the installation.

of an express denial.” The court further held “a person

may impliedly consent to a search on a military base.”

On the second appeal, the Fourth Amendment re-

ceived its second blow when the Ninth Circuit affirmed the

district court’s implementation of “implied consent” — a

“welcome” sign provided notice of the existence of a federal

enclave, thus any expectations of privacy, gone. See Pet.

App. 27 9 15 (finding that the “incident occurred * * *

[{jJust before the guard gate” meaning upon the public

highway) (emphasis added). The Fourth Amendment

received its final blow when the Ninth Circuit reiterated a

prior declaration it made in the first appeal, “we ‘affirmed

the district court in every respect * * *’” engulfing district

court’s prior 12(b)(6) order declaring that probable cause is

“not required *** to stop, inspect and/or search * * *

detain and arrest.” Pet. App. 2, 166 Fed. Appx. 292, 293-

294. The Ninth Circuit perfected the elimination of the

Fourth Amendment with its combined rulings, holding

that a traveler who crosses a federal property line, which

includes in its name, “base” has no privacy expectations

and can be summarily seized and searched. However, the

premise that property interests control the right of the

government to search and seize has been discredited. See

Katz v. United States, 389 U.S. 347, 353 (1967).

The final result upholds the initial false presumption

that “bases have long been exempt from the usual Fourth

Amendment requirement of probable cause.” Pet. App. 13,

323 F.3d 776, 781. Yet this Court has never endorsed such

* Pet. App. 8, 323 F.3d 776, 779. “Goodson informed Morgan that

he wished to search Morgan’s vehicle and asked Morgan if he would

consent to a vehicle search. Morgan refused.”

notion and this Court has rejected the notion of carving

territorial holes in the states. The existence of enclave

does not and has never altered the geographical structure

of the state of California. This was the findings in Howard

v. Commissioners of Louisville, 344 U.S. 624, 627 (1953).

The highway where the incident occurred was open to the

public and is under concurrent jurisdiction with the State

of California. The highway is patrolled by state law en-

forcement. By the express terms of the Ninth Circuit’s

false premise, “searches on closed military bases have long

been exempt from the usual Fourth Amendment require-

ment of probable cause” creates a peculiarity the state

officers patrolling that stretch of highway are no longer

constrained by the strictures of the Fourth Amendment.

2. The Court of Appeals Conflicts With This

Court’s Precedents in Cafeteria-McElroy

The Ninth Circuit’s decision here conflicts with this

Court’s determination in Cafeteria-McElroy. In Cafeteria-

McElroy, this Court held that a “commanding officer”

possesses “the historically unquestioned power *** to

exclude civilians from the area of his command,” in answer

to the question, “[w]las the commanding officer * * *

authorized to deny * * * access to the installation * * * ?”

Id., at 893, 889. The unquestioned power to exclude does

not translate into an unfettered right to search outside of

installation.”

* The Department of Defense Dictionary explains the distinction of

the terms base and installation. An Installation is the area wherein

security might be imposed. A base contains one or more installations,

including property that is “open.” a

Absent suspicion of criminal wrongdoing, a search or

seizure may not be conducted for the purpose of discover-

ing evidence of a crime. “To be reasonable under the

Fourth Amendment, a search ordinarily must be based on

individual suspicion of wrongdoing.” Chandler v. Miller,

520 U.S. 305, 313 (1997). The only exceptions to this rule

occur when the government seeks goals “beyond the

normal need for law enforcement.” Jd. See also Michigan v.

Tyler, 436 U.S. 499, 512 (1978); Brown v. Texas, 460 U.S.

730, 743 (1983); South Dakota v. Opperman, 428 U.S. 364,

373 (1976).

In Brown, this Court permitted the introduction of

evidence discovered in a roadblock to ensure that all

motorists are licensed. This Court recognized, however,

that there was “no suggestion that the roadblock was a

pretext whereby evidence of narcotics might be uncovered

in ‘plain view.’” Jd., at 743. Roadblocks and suspicionless

seizures of automobiles have been permitted where the

government has been able to identify a goal separate from

criminal enforcement, a valid public interest that is imme-

diately served through the roadblock itself. Specifically, this

Court has permitted a roadblock to ensure the integrity of

international borders and to ensure the safety of the

motoring public. These exceptions are consistent with the

Court’s recognition that when “concerns other than crime

detection *** are alleged in justification of a Fourth

Amendment intrusion, courts must undertake a context-

specific inquiry, examining closely the competing private

and public interests advanced by the parties.” Chandler v.

Miller, 520 U.S. 305, 314 (1997). The public interest

justified an administrative exception limited by clear and

defined procedures.

Here the military has promulgated regulations con-

trolling entry to its installations. These procedures are

commensurate with the right to exclude — are the terms

set for entry. Regulations established at military installa-

tions are deserving of special consideration. See, generally,

Greer v. Spock, 424 U.S. 828, 837-38 (1976). The Ninth

Circuit held that United States v. Ellis, 547 F.2d 863 (5th

Cir. 1977) and United States v. Jenkins, 986 F.2d 76 (4th

Cir. 1993), provided authority for its erroneous premise

that “military bases have long been exempt from the usual

Fourth Amendment requirement of probable cause.” Both

of those cases are distinguishable upon the facts and law.

Jenkins recognized the defendant had passed through

the gate of the installation. Ellis also recognized the

distinction of passing through the gate and “installation”

versus “base.” See, also United States v. Vaughan, 475 F.2d

1262, 1264 (10th Cir. 1973) (holding “once within [installa-

tion] the area where security was imposed, a search

conducted without probable cause and without consent

could be proper”). See, also 18 USCS § 1382, “Whoever

*** goes upon any military *** installation, for any

purpose prohibited by law or lawful regulation; or Who-

ever reenters or is found within * ** installation, * * *

Shall be fined under this title or imprisoned not more than

six months, or both.”

The regulations promulgated are designed to protect

the interest of the military installation. Those regulations

call for express consent. The military has determined their

needs justify an administrative search at the entrance of

an installation, not a blanket exception to the areas it has

chosen not to secure; no emergency exists at an entry gate

or any point before. The Ninth Circuit was wrong in

creating another exception to the Fourth Amendment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MELBOURNE B. WEDDLE

Counsel of Record

LAW OFFICES OF

MELBOURNE B. WEDDLE

P. O. Box 593

Santa Barbara, CA 93102

(805) 966-1038

App. 1

Greg Alan MORGAN, Plaintiff-Appellant, v.

UNITED STATES OF AMERICA; WILLIAM COHEN,

Former Secretary of Defense; UNITED STATES AIR

FORCE; RICHARD REYNOLDS, General; EDWARD

DEIULIO, Colonel; NEIL RADER, Colonel; C. ERIC

BROUGHTON, Master Sergeant; KENNETH

ERICHSEN, Master Sergeant; ERIC GOODSON,

Airman, Defendants-Appellees.

Nos. 04-55758, 04-55761.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

166 Fed. Appx. 292; 2006-U.S.App. LEXIS 2942

October 31, 2005**, Submitted

**This panel unanimously finds this case

suitable for decision without oral argument.

See Fed. R. App. P. 34(a)(2).

February 7, 2006, Filed

COUNSEL: For GREG ALAN MORGAN, Plaintiff-

Appellant: Melbourne B. Weddle, Esq., Santa Barbara,

CA; Sue Ann Howard, Esq., SUE A. HOWARD ated

OFFICES, Lancaster, CA.

For UNITED STATES OF AMERICA, WILLIAM COHEN,

FORMER SECRETARY OF DEFENSE, UNITED STATES

AIR FORCE, RICHARD REYNOLDS, GENERAL, ED-

WARD DEIULIO, COLONEL, NEIL RADER, COLONEL,

C. ERIC BROUGHTON, MASTER SERGEANT, KEN-

NETH ERICHSEN, MASTER SERGEANT, ERIC

GOODSON, AIRMAN, Defendant-Appellees: John E.

Nordin, II, Esq., Sara R. Robinson, AUSA, USLA — OF-

FICE OF THE U.S. ATTORNEY, Civil & Tax Divisions,

Los Angeles, CA.

App. 2

JUDGES: Before T.G. NELSON, PAEZ, and TALLMAN,

Circuit Judges.

OPINION: MEMORANDUM*

This is Morgan’s second appeal to this Court. See

Morgan v. United States, 60 Fed. Appx. 180 (9th Cir. 2003);

Morgan v. United States, 323 F.3d 776 (9th Cir. 2003). In

the first appeal, we “affirmed the district court in every

respect, except with regard to the court’s dismissal of the

Bivens claim.” Morgan, 60 Fed. Appx. at 181. In a sepa-

rately filed published opinion, we remanded Morgan’s

Bivens claim in order “to allow the development of a-more

complete factual record to determine whether implied

consent was present here.” Morgan, 323 F.3d at 778. The

parties are familiar with the extensive history of this

litigation and therefore we will not recount it again here.

We affirm the district court in every respect.

The district court did not abuse its discretion by

denying Morgan’s motion to extend the discovery cut-off

and motion date. See Martel v. County of Los Angeles, 56

F.3d 993, 995 (9th Cir. 1995) (“[A] district court’s decision

to deny a continuance sought for the purposes of obtaining

discovery will be disturbed only ‘upon the clearest showing

that denial of discovery results in actual and substantial

prejudice to the complaining litigant.’”) (Sablan v. Dep't of

Fin., 856 F.2d 1317, 1321 (9th Cir. 1988)). The district

court had already granted Morgan one continuance and

given that the Bivens action was filed in May 2000, Mor-

gan had more than sufficient time to conduct discovery.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by Ninth

Cir. R. 36-3.

App. 3

The district court properly dismissed Morgan’s claim

under the Federal Tort Claims Act (FTCA) (D.C. No. CV-

03-02372-RSWL), as well as the non-Bivens claim raised in

his Rivens complaint (D.C. No. CV-00-05221-RSWL), as

they were all barred by res judicata. See Costantini v.

Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982)

(“The doctrine of res judicata (or claim preclusion) bar(«)

all grounds for recovery which could have been asserted,

whether they were or not, in a prior suit between the same

parties ... on the same cause of action.” (internal quota-

tion marks omitted)). This court may affirm the district

court on any ground supported by the record. Olsen v.

Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

Morgan first attempted to raise his FTCA claim

during his first appeal; however, this Court ruled that he

had waived that claim because Morgan had failed to

properly present it before the district court. Morgan, 60

Fed. Appx. at 182 (“This claim was not raised in the

Complaint and is presented for the first time on appeal. It

is waived and we do not consider it.”). Furthermore, the

non-Bivens claims that Morgan attempted to raise in his

Bivens complaint were either already litigated, or should

have been raised in his original Complaint. Therefore,

Morgan is barred from pursuing these claims based on the

doctrine of res judicata. See Costantini, 681 F.2d at 1202

(ruling that a cause of action raised in a instant lawsuit

was barred by res judicata because it was identical to one

raised in the prior suit).

As for Morgan’s Bivens claim, the district court

granted the defendants’ motion for summary adjudication,

ruling that the defendants were entitled to judgment as a

matter of law because, (1) the federal officers were pro-

tected by qualified immunity; or (2) Morgan impliedly

App. 4

consented to the search by presenting himself at the gate.

We review the district court’s grant of summary judgment

de novo: Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004). Although the court must draw all reasonable

inferences in Morgan’s favor, the court need not draw an

unreasonable inference or accept conclusory allegations.

See Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69

F.3d 337, 345 (9th Cir. 1995) (“Such conclusory or specula-

tive testimony is insufficient to raise a genuine issue of

fact to defeat summary judgment.”).

After the defendants met their burden of showing a

lack of evidence to support’s Morgan’s claims, the burden

then shifted to Morgan to set forth specific facts showing

that there is a genuine issue for trial. Celotex Corp. v.

Catrett, 477 U.S. 317,324, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986). Rather than respond to the defendants’ motion

for summary adjudication, Morgan chose to file a Rule

56(f) request seeking a continuance of the summary

judgment proceedings.’

Since Morgan failed to submit any affidavits or

declarations to contradict the evidence submitted by the

defendants, the district court found the following facts to

be uncontroverted: (1) at the time of the incident, Edwards

AFB was a closed base; 2) Morgan was transferred to the

' Morgan also challenges the district court’s denial of his Rule 56(f)

request. Again, this incident occurred in 1999 and the Bivens action

was originally filed in 2000. Morgan had ample opportunity to conduct

discovery and his Rule 56(f) motion provided only conclusory and

speculative statements. We therefore hold that the district court did not

abuse its discretion in denying Morgan’s Rule 56(f) motion. See Jones v.

Blanas, 393 F.3d 918, 918 (9th Cir. 2004) (stating that a district court’s

decision not to permit additional discovery prior to considering a

summary judgment motion is reviewed for an abuse of discretion).

App. 5

Base in 1998; (3) Morgan regularly commuted to work; (4)

Morgan’s route to work was dominated by highway signs

indicating “Edwards AFB” and “NASA-DRYDEN Flight

Research Center”; (5) the base property line was marked

by fences with steel posts and barbed wire; (6) there were

signs on the fences that read: “Warning: U.S. Air Force

Installation. It is unlawful to enter this area without

permission of the Installation Commander. Sec. 21. Inter-

nal Security Act of 1950: 50 U.S.C. § 797. While on this

installation all personnel and the property under their

control are subject to search”; (7) the same sign was posted

just before the guard gate where the incident occurred;

and (8) since 1993, new FAA employees are routinely

informed by an FAA Administrative Officer that they and

their vehicles are subject to search at any time when they

are present themselves at Edwards AFB or enter or leave

the base. Based on the circumstances presented at the

time of the incident, the district court did not err in

concluding that Morgan had impliedly consented to the

search. See Morgan, 323 F.3d at 782 (“As the Fourth

Circuit noted, the ‘circumstances [of a military base]

combine to puncture any reasonable expectations of

privacy for a civilian who enters a closed military base.’”)

(quoting United States v. Jenkins, 986 F.2d 76, 79 (4th Cir.

1993) (alteration in original)).

AFFIRMED.

App. 6

GREG ALAN MORGAN, Plaintiff-Appellant, v.

UNITED STATES OF AMERICA; WILLIAM COHEN,

Former Secretary of Defense; UNITED STATES AIR

FORCE; RICHARD REYNOLDS, General; EDWARD

DE IULIO, Colonel; NEIL RADER, Colonel; C. ERIC

BROUGHTON, Master Sergeant; KENNETH

ERICHSEN, Master Sergeant; ERIC GOODSON,

Airman, Defendants-Appellees.

No.-01-55471

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

323 F.3d 776; 2003 U.S. App. LEXIS 4833; 2003 Cal.

Daily Op. Service 2387; 2003 Daily Journal DAR 3027

August 6, 2002, Argued and Submitted,

Pasadena, California

March 18, 2003, Filed

COUNSEL: Melbourne B. Weddle and Sue Ann Howard,

Law Offices of Melbourne B. Weddle, Santa Barbara,

California, for the appellant.

Leon W. Weidman, John E. Nordin II, and Sara R. Robin-

son, United States Attorney’s Office, for the appellee.

JUDGES: Before: Thomas G. Nelson, Richard A. Paez,

and Richard C. Tallman, Circuit Judges. Opinion by Judge

Tallman.

OPINION BY: Richard C. Tallman

OPINION:

TALLMAN, Circuit Judge:

As a matter of first impression in this Circuit, we

must decide when a search conducted at the entry gate to

a military base is reasonable. Because such installations

App. 7

often warn of the possibility of search as a condition to

entry, a warrantless search of a person seeking to enter a

military base may be deemed reasonable based on the

implied consent of the person searched. We remand to the

district court to allow the development of a more complete

factual record to determine whether implied consent was

present here.

Greg Morgan was a civilian air traffic controller

employed by the Federal Aviation Administration (“FAA”)

on Edwards Air Force Base (the “Base”) in Kern County,

California. Morgan alleges that on May 16, 1999, federal

officers violated Morgan’s Fourth Amendment rights when

they conducted a suspicionless search of his vehicle at the

entry gate to the Base. Morgan brought a Bivens claim,

which the district court dismissed pursuant to Fed. R. Civ.

P. 12(b)(6). The district court based its dismissal on the

closed nature of the active military Base,’ but Morgan’s

Complaint contains no allegations as to the status of the

installation. We hold that the district court could not

dismiss Morgan’s Bivens claim on the record then before it.

We remand Morgan’s claim so that the trial court may

properly consider on a fully developed factual record

whether he impliedly consented to the search. We affirm

in a separately filed memorandum disposition the district

court’s rulings dismissing all other claims brought by

Morgan.”

' “Closed” in this context meaning not open to the public, as

opposed to “nonoperational.”

* Morgan raises several other issues on appeal, including the

propriety of the dismissal of his section 1983 claims, and whether fees

and costs should have been imposed on his attorney pursuant to Rule

11(c)(1)(A).

App. 8

Morgan’s Complaint alleges the following facts, which

we regard as true, making all reasonable inferences in

favor of Morgan. See Zimmerman v. City of Oakland, 255

F.3d 734, 737 (9th Cir. 2001). Morgan is a civilian em-

ployed by the FAA at the Base. He drove his wife’s 1998

Jeep Cherokee to work on the morning of May 16, 1999. As

was occasionally required, Morgan displayed his FAA

identification badge at the entry gate to the Base. Instead

of allowing Morgan to continue through the entry gate,

however, Airman Eric Goodson, a Base security officer,

instructed Morgan to stop his car on the side of the road.

Morgan complied. Reading from a script on a clipboard,

Goodson informed Morgan that he wished to search

Morgan’s vehicle and asked Morgan if he would consent to

a vehicle search. Morgan refused, explaining that he did

not want to be late for work.

Two other officers, Master Sergeants C. Eric

Broughton and Kenneth Erichsen, then conferred with

Goodson at the rear of Morgan’s car. Broughton asked for

Morgan’s vehicle registration, driver’s license, and insur-

ance papers. All three officers then returned to the rear of

the vehicle. Morgan concluded that he was going to be late

for work. He got out of his car and walked toward the

guard shack to telephone his employer. Broughton ordered

Morgan to get back in his vehicle. Morgan asked if he

was under arrest, to which Broughton responded, “No.”

Broughton then yelled, “Cover me.” Erichsen and Goodson

grasped the handles of their firearms, and Broughton

handcuffed Morgan.

Broughton informed Morgan that he was not free to

leave the location or move about freely. Broughton

App. 9

searched Morgan’s person and emptied the contents of

Morgan’s pockets. The three officers subsequently

searched Morgan’s Jeep and discovered an unloaded nine-

millimeter semi-automatic pistol. Morgan was placed in a

small locked room until the Kern County Sheriff’s De-

partment transported him to a local jail.

Morgan alleges that he was never informed of his

constitutional rights or the charges against him, and was

not provided with an attorney upon his request.

Ultimately, Morgan was charged under California

Penal Code §§ 148(a) (resisting, delaying, or obstructing

an officer), 12025(a) (carrying a concealed firearm),

12031(a) (carrying a loaded firearm), and California

Vehicle Code § 14601.1(a) (driving when one’s driving

privilege is suspended or revoked). Although Morgan was

prosecuted for the Penal Code violations, a Kern County

Municipal Court commissioner later determined that there

was no probable cause to search Morgan’s vehicle or to

initiate criminal proceedings against him. All state

charges were subsequently dismissed.

Morgan then filed a civil rights action in the United

States ‘istrict Court for the Central District of California

alleging twenty-five causes of action against the United

States of America, the Department of Defense, the United

States Air Force, Secretary of Defense William Cohen,

Major Genetal Richard Reynolds. Colonel Edward De

Iulio, Lieutenant Colonel Neil Rader, Broughton, Erichsen,

and Goodson.

The defendants moved to dismiss pursuant to Rule

12(b\(6). Facts not alleged in the Complaint were asserted

in the motion papers, including an accompanying declara-

tion from an Air Force officer. After the district court heard

App. 10

oral argument from both parties, it dismissed all claims

with prejudice. Morgan subsequently moved for reconsid-

eration, attaching his own lengthy declaration of the

factual events. The district court denied Morgan’s motion

for reconsideration.

Morgan seeks damages pursuant to Bivens v. Six

Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619,

91 S. Ct. 1999 (1971), arguing that appellees violated his

constitutional rights under the Fourth Amendment.’

Morgan claims the district court erred in dismissing

his Bivens claim when it held that probable cause was not

required to stop, search, and seize his vehicle on a closed

military-installation. We review the district court’s dis-

missal of Morgan’s action de novo. See Vestar Dev. II, LLC

v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir.

2001).

The United States, relying on Branch v. Tunnell, 937

F.2d 1382 (9th Cir. 1991), maintains that a heightened

pleading standard should be applied in this case because

the government asserted the defense of qualified immu-

nity before the district court. Branch required application

* Morgan’s Complaint names Air Force personnel Reynolds, De

Iulio, Rader, Broughton, Erichsen, and Goodson in regard to this claim.

To the extent Morgan's suit is against agents of the United States in

their official capacities, his reliance on Bivens is misplaced. Morgan can

only sue these officers in their individual capacities. See Vaccaro v.

Dobre, 81 F.3d 854, 857 (9th Cir. 1996).

App. 11

of a heightened pleading standard for complaints in which

subjective intent is an element of the constitutional tort.

See Housley v. United States, 35 F.3d 400, 401 (9th Cir.

1994). The government’s argument is foreclosed by our

recent decision in Galbraith v. County of Santa Clara, 307

F.3d 1119 (9th Cir. 2002). In Galbraith, we overruled

Branch on the basis of intervening Supreme Court prece-

dent. Jd. at 1125. Heightened pleading standards no longer

apply to constitutional claims involving improper motives.

The traditional Rule 12(b)(6) standards govern our analy-

sis of Morgan’s Complaint.

Morgan’s Complaint sufficiently sets forth the ele-

ments of a Bivens claim by alleging a violation of his

constitutional rights by agents acting under the color of

federal law. Morgan alleges that his car was unreasonably

searched in violation of the Fourth Amendment. Morgan

also alleges that the defendants were acting under the

color of federal law at the time of the search. Further,

nothing in Morgan’s Complaint admits of probable cause

to conduct the search. Thus, dismissal under Rule 12(b)(6)

was inappropriate.

But that does not end our inquiry. Because we are

remanding this case to the district court for further devel-

opment of the factual record to determine the propriety of

dismissal, we consider under what circumstances the

search of Morgan’s car would satisfy the requirements of

the Fourth Amendment. All of Morgan’s Bivens claims

depend upon the search’s failure to comply with the

Fourth Amendment.

App. 12

The fundamental principle “of the Fourth Amend-

ment’ is reasonableness. The Fourth Amendment does not

proscribe all state-initiated searches and seizures; it

merely proscribes those which are unreasonable.” Florida

vu. Jimeno, 500 U.S. 248, 250, 114 L. Ed. 2d 297, 111 S. Ct.

1801 (1991) (footnote inserted and internal citation omit-

ted). A search “conducted without a warrant is ‘per se

unreasonable under the Fourth Amendment — subject only

to a few specifically established and well delineated

exceptions.” United States v. Hawkins, 249 F.3d 867, 872

(9th Cir. 2001) (quoting Minnesota v. Dickerson, 508 U.S.

366, 372, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993)). And

“[wlhile the Fourth Amendment generally prohibits

warrantless searches without probable cause, it is subject to

a few narrow” exceptions. United States v. Molina-Tarazon,

279 F.3d 709, 712 (9th Cir. 2002). However, even where an

exception to the probable cause rule is appropriate, the

“irreducible constitutional requirement of reasonableness”

still applies. Jd.

A search not supported by probable cause may still be

reasonable if the subject of the search consents to it.

Jimeno, 500 U.S. at 252. Such consent may be express or

implied. Torbet v. United Airlines, Inc., 298 F.3d 1087,

1089 (9th Cir. 2002). Our sister circuits have applied the

implied consent exception to the probable cause require-

ment in the context of searches on military bases. In

United States v. Ellis, 547 F.2d 863 (5th Cir. 1977), the

* The Fourth Amendment provides: “The right of the people to be

secure in their persons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized.” U.S. CONST. amend. IV (emphasis added).

App. 13

Fifth Circuit considered a challenge to a search of a

vehicle on a Naval Air Station. The Ellis court assumed

that there was no probable cause for the search. Jd. at 866.

Even so, the court concluded that the search was reason-

able because the defendant impliedly consented to have

his car searched. Jd. The Fifth Circuit stated that the

defendant “certainly should have realized that his actions

in presenting his vehicle to the guard at the entrance to

the Air Station with an implied request to drive aboard

carried the possibility of an inspection then and there.” Jd.

The Fifth Circuit approved the search, holding that the

“right to make a search pursuant to such consent does not

turn on the presence of probable cause.” Jd.

The Fourth Circuit also examined the Fourth Amend-

ment’s application on military bases. In United States v.

Jenkins, 986 F.2d 76 (4th Cir. 1993), the defendant argued

that a search conducted on Andrews Air Force Base was

without probable cause and therefore in violation of the

Fourth Amendment. Jd. at 78. The district court agreed

with the defendant and suppzessed the evidence seized

during a search of the defendant’s car. Jd. The government

appealed the district court’s nolding, arguing “that the

district court erred by not recognizing an ‘implied consent’

exception to the requirement of probable cause for closed

military bases.” /d.

The Fourth Circuit agreed with the government and

reversed. The court initially noted that “searches on closed

military bases have long been exempt from the usual

Fourth Amendment requirement of probable cause. The

rationale is the same for why the base is closed in the first

place: to protect a military installation that is vital to

national security.” Jd. (citations omitted). The court then

specifically approved the government’s argument that

App. 14

implied consent could obviate the probable cause require-

ment. The court held that:

[T]he validity of [the defendant’s] search [did not]

turn on whether he gave his express consent to

search as a condition of entering the base. Con-

sent is implied by the totality of all the circum-

stances. The barbed-wire fence, the security

guards at the gate, the sign warning of the possi-

bility of search, and a civilian’s common-sense

awareness of the nature of a military base — all

these circumstances combine to puncture any

reasonable expectations of privacy for a civilian

who enters a closed military base.

Id. at 79 (internal quotation marks and citation omitted).

We also have previously recognized the implied

consent exception to the probable cause requirement,

although not in the context of searches on military instal-

lations. In Torbet, an airline passenger filed a 42 U.S.C.

§ 1983 action alleging that he was subjected to a suspi-

cionless search. 298 F.3d at 1088. We held that an airline

passenger “impliedly consented to the random search by

placing his bag on the x-ray conveyor belt,” regardless of

whether the x-ray revealed any suspicious contents. Jd. at

1089.

We now join the Fourth and Fifth Circuits and hold

that a person may impliedly consent to a search on a

military base. As the Fourth Circuit noted, the “circum-

stances [of a military base] combine to puncture any

reasonable expectations of privacy for a civilian who

enters a closed military base.” Jenkins, 986 F.2d at 79. Our

holding in Torbet supports our conclusion. A person pre-

senting himself at a military gate is similar to a person

presenting himself at a security checkpoint at an airport,

App. 15

and in both situations there may be implied consent for a

search.”

In dismissing Morgan’s claim, the district court

suggested that probable cause was not needed to-search

Morgan’s car because the search occurred on a closed

military base. The district court’s reasoning goes too far in

allowing a categorical exception to the probable cause rule

for all searches on closed military bases. While the district

court was correct that probable cause may not be needed in

this case, the probable cause requirement is only obviated if

the defendant impliedly consented to the search. The bare

facts alleged in Morgan’s Complaint do not allow a deter-

mination of whether he impliedly consented to the search.

Therefore, the district court’s Rule 12(b)(6) dismissal of

Morgan’s Bivens claim is reversed, and that claim alone is

remanded to the district court for further proceedings on a

more complete factual record.

AFFIRMED in Part; REVERSED in Part; and

REMANDED. Each party shall bear its own costs.

* Our decision today was anticipated somewhat by our opinion in

United States v. Banks, 539 F.2d 14 (9th Cir. 1976), in which we noted

that authority existed “for the proposition that a civilian is subject to

search and arrest by military authorities without probable cause or his

consent on a ‘closed’ military base,” but declined to address that specific

issue. /d. at 16 n. 3.

App. 16

GREG ALLAN MORGAN, Plaintiff-Appellant, v.

UNITED STATES OF AMERICA; WILLIAM COHEN,

Former Secretary of Defense; UNITED STATES

AIR FORCE; RICHARD REYNOLDS, General;

EDWARD DE IULIO, Colonel; NEIL RADER, Colonel;

C. ERIC BROUGHTON, Master Sergeant;

KENNETH ERICHSEN, Master Sergeant;

ERIC GOODSON, Airman, Defendants-Appellees.

No. 01-55471

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

60 Fed. Appx. 180; 2003 U.S. App. LEXIS 4978

August 6, 2002, Argued and Submitted,

Pasadena, California

March 18, 2003, Filed

COUNSEL: For GREG ALLAN MORGAN, Plaintiff-

Appellant: Melbourne B. Weddle, Esq., Santa Barbara,

CA.

For UNITED STATES OF AMERICA, WILLIAM COHEN,

UNITED STATES AIR FORCE, RICHARD REYNOLDS,

EDWARD DEIULIO, NEIL RADER, C. ERIC BROUGHTON,

KENNETH ERICHSEN, ERIC GOODSON, Defendants-

Appellees: John E. Nordin, II, Esq., Sara R. Robinson, AUSA,

USLA — OFFICE OF THE U.S. ATTORNEY, Los Angeles,

CA.

JUDGES: Before: T.G. NELSON, PAEZ, and TALLMAN,

Circuit Judges.

App. 17

OPINION: MEMORANDUM*

Before: T.G. NELSON, PAEZ, and TALLMAN, Circuit

Judges.

Greg Morgan, a civilian employed as an air traffic

controller by the Federal Aviation Administration on

Edwards Air Force Base (the “Base”), appeals the district

court’s Rule 12(b\(6) dismissal of his 42 U.S.C. § 1983

claims alleging that federal officers, their supervisors, and

governmental entities violated his Fourth Amendment

rights by searching his vehicle at the entry gate to the

Base.’ Morgan also asserts a Federal Torts Claim Act

violation, appeals the district court’s order dismissing his

federal and state eavesdropping claims, and contends the

district court erred in sanctioning his counsel.

We affirm the district court in every respect, except

with regard to the court’s dismissal-of the Bivens claim.’

Morgan asserts in his brief that Master Sergeant C.

Eric Broughton was acting under color of state law as an

off-duty California peace officer when Broughton arrested

Morgan and allegedly violated Morgan’s constitutional

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as may be provided by

Ninth Circuit Rule 36-3.

* Morgan failed to properly present his 42 U.S.C. § 1985(1) & (3)

claims on appeal. Both claims are therefore deemed waived. See Int?

Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin

Jasha, Inc., 752 F.2d 1401, 1404-05 (9th Cir. 1985).

* We reverse the dismissal of Morgan’s Bivens claim in a separate

published opinion filed today.

App. 18

rights, thereby giving rise to a claim based on 42 U.S.C.

§ 1983. Yet, Morgan’s Complaint alleged only “that

Broughton “was and is at all times relevant herein, a

member and/or employee of Defendant AIR FORCE, of

Edwards Air Force Base.” The Complaint never alleged

Broughton’s status as both a federal and local employee.

Consequently, Morgan’s Complaint failed to state a cause

of action under section 1983, which requires action under

the color of state law. Accordingly, the district court did not

abuse its discretion in denying Morgan’s motion for “re-

consideration” of this issue. See Kona Enters., Inc. v.

Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).

Similarly, Morgan’s allegation on appeal _ that

Broughton conspired or acted in concert with state officials

to deprive Morgan of his civil rights is without merit.‘

Federal officers acting within the course and scope of their

Base security duties initiated the law enforcement activi-

ties at issue. The federal officers notified the Kern County

Sheriff’s Department that Morgan needed to be taken into

custody for booking. Because the county officers were

acting at the bequest of federal agents, if they were acting

jointly, it was under federal law. See Billings v. United

States, 57 F.3d 797, 801 (9th Cir. 1995). Section 1983 does

not provide a cause of action against federal officers acting

under color of federal law. See id. The district court prop-

erly dismissed this portion of Morgan’s civil rights claim.

* Contrary to the government’s contention, Morgan raised this

issue in his motion for reconsideration, and thus it has not been waived.

See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992).

* While Morgan’s Complaint names defendants Broughton, Erich-

sen, and Goodson in connection to this claim, Morgan’s appeal implie

cates only Broughton.

App. 19

Morgan claims that his arrest gives rise to a claim

under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

This claim was not raised in the Complaint and is pre-

sented for the first time on appeal. It is waived and we do

not consider it. See Harden v. Roadway Package Sys., Inc.,

249 F.3d 1137, 1141 (9th Cir. 2001).

Ill

Morgan contends that Broughton violated 18 U.S.C.

§ 2511 and California Penal Code § 632 when Broughton

tape-recorded Morgan’s conversation with the federal

officers. Pursuant to section 2511(2)\(c) & (d), Broughton

could lawfully intercept the oral communication because

he was a party to the communication he recorded. Thus,

no “eavesdropping” occurred within the meaning of section

2511. Cf. Lopez v. United States, 373 U.S. 427, 439, 10

L. Ed. 2d 462, 83 S. Ct. 1381 (1963) (holding, in the Fourth

Amendment context, that the use of recording device was

not eavesdropping because the government agent was a

party to the conversation).

We also affirm the dismissal of Morgan’s claim based

on California Penal Code § 632. That statute specifically

allows the recording of public conversations that may be

reasonably expected to be overheard. Cal. Penal Code

§ 632(c). Morgan’s Complaint alleges a conversation in a

public area that would be reasonably expected to be

overheard.

App. 20

Morgan claims the district court erred by awarding

costs and fees incurred by the government in opposing the

frivolous Rule 11 motion filed by his attorney. The evi-

dence supports the district court’s imposition of fees and

costs under Rule 11(c)(1)(A). There was no abuse of discre-

tion. See Christian v. Mattel, Inc., 286 F.3d 1118, 1126,

1131-32 (9th Cir. 2002).

AFFIRMED in Part; REVERSED in Part; and

REMANDED.

App. 21

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, __ ) CV 00-5221 RSWL (RCx)

Plaintiff, ORDER

+. ) (Filed Feb. 27, 2004)

THE UNITED STATES OF

AMERICA: THE UNITED

STATES DEPARTMENT OF

DEFENSE; WILLIAM COHEN,

in his capacity as Secretary of

the Department of Defense;

THE UNITED STATES AIR

FORCE; GENERAL RICHARD

REYNOLDS, as an individual

and in his capacity as

Commander, Flight Test Center,

USAF; COLONEL EDWARD

DETIULIO, as an individual and

in his capacity as Base Com-

mander of Edwards Air Force

Base, USAF; COLONEL NEIL

RADER, as an individual! and

in his capacity as Commander

of Edwards Air Force Base

Security Forces, USAF; C. ERIC

BROUGHTON, as an individual

and in his capacity as Sergeant,

USAF; KENNETH ERICHSEN,

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his capacity

as Airman, USAF; and DOES 1

through 10, inclusive.

Defendants.

App. 22 |

Before the Court is Plaintiff’s Motion Pursuant to

Rule 59 Amending the Findings, Conclusions, and Judg-

ment in CV 00-5221 and CV 03-2372. The matter was

scheduled to be heard by this Court on February 2, 2004,

but- was taken off calendar pursuant to Rule 78 of the

Federal Rules of Civil Procedure for disposition based on

the papers filed. After consideration of the papers filed in

this matter, this Court rules as follows on issues associ-

ated with CV 00-5221.

Pursuant to Rule 59(e), the Court amends its Decem-

ber 23, 2003 Findings of Uncontroverted Fact and Conclu-

sions of Law, deleting the third conclusion of law which

provided that Plaintiff failed to exhaust his administrative

remedies under the Federal Tort Claims Act (“FTCA”).

This conclusion is inappropriate here because Plaintiff did

not bring any claims under the FTCA in this case.

Plaintiff, however, has failed to demonstrate any other

reason to modify the Findings of Uncontroverted Fact and

Conclusions of Law. Plaintiff argues for the first time in

this motion that the day of the incident was his day off;

thus, the Court need not consider this argument. See

Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th

Cir. 1995).

But if this Court considered the argument, in light of

the multitude of evidence supporting the conclusion that

Plaintiff was going to work, Plaintiff’s new evidence fails

to create a genuine issue of material fact that he was on

his day off. Thus,. Plaintiff’s claim is covered by FECA and

this Court lacks subject matter jurisdiction.

But even if this Court has subject matter jurisdiction,

Plaintiff’s claims fail for the reasons set forth in the

App. 23

Amended Findings of Uncontroverted Fact and Conclu-

sions of Law filed in CV 00-5221 on this day.

IT IS SO ORDERED.

DATED: 2-27-04 RONALD S.W. LEW

RONALD S.W. LEW

United States District Judge

App. 24

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, ) CV 00-5221 RSWL (RCx)

Plaintiff, ) AMENDED FINDINGS

: ) OF UNCONTRO-

VERTED FACT AND

THE UNITED STATES OF . CONCLUSIONS OF LAW

AMERICA: THE UNITED) sie Feb, 27, 2008)

DEFENSE; WILLIAM COHEN,

in his capacity as Secretary of

the Department of Defense;

THE UNITED STATES AIR

FORCE; GENERAL RICHARD

REYNOLDS, as an individual

and in his capacity as

Commander, Flight Test Center,

USAF; COLONEL EDWARD

DEIULIO, as an individual and

in his capacity as Base Com-

mander of Edwards Air Force

Base, USAF; COLONEL NEIL

RADER, as an individual and

in his capacity as Commander

of Edwards Air Force Base

Security Forces, USAF; C. ERIC )

BROUGHTON, as an individual ?

and in his capacity as Sergeant, )

USAF; KENNETH ERICHSEN, ”

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his capacity

as Airman, USAF; and DOES 1

through 10, inclusive.

New mee Nee eee eee ee ee”

eee ee eee ee ee”

Defendants.

App. 25

After consideration of the papers in support of and in

opposition to Defendants’ Motions for Summary Adjudica-

tion, the court makes the following findings of uncontro-

verted fact and conclusions of law.

UNCONTROVERTED FACTS

1. Plaintiff is a civilian employed by the Federal

Aviation Administration (“FAA”) who worked at Edwards

Air Force Base (“Edwards AFB”).

2. On May 15, 2000, Plaintiff filed a Complaint with

twenty-five causes of action against the United States, the

Department of Defense, the Air Force, William Cohen (in

his capacity as Secretary of the Department of Defense),

and various officers in their individual and official capaci-

ties. Plaintiff alleged violations of 42 U.S.C. §1983, 42

U.S.C. §1985(1) and (3), Bivens’, and eavesdropping in

violation of 18 U.S.C. §2511 and California Penal Code

§ 632.

3. Plaintiff alleged that on May 16, 1999, federal

officers, their supervisors, and governmental entities

violated his constitutional rights by searching his vehicle,

detaining him, arresting him, and impermissibly eaves-

dropping on him at the entry gate to the base.

4. This court’s order, dismissing the Complaint with

prejudice pursuant to FRCP 12(b)(6), was entered on

November 15, 2000.

’ Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

App. 26

5. On appeal, the Ninth Circuit affirmed this court’s

ruling “in every respect, except with regard to the court’s

dismissal of the Bivens claim.”

6. At the time of the incident, Edwards AFB was a

closed base, meaning it was not open to the public.

7. Plaintiff was transferred to the FAA’s High Desert

Terminal Radar Approach Control center (“TRACON”) at

Edwards AFB at or around August 30, 1998.

8. He was transferred from a TRACON on another

Air Force Base near Tucson, Arizona.

9. From the time Plaintiff was assigned to Edwards

AFB until the incident on May 16, 1999, he regularly

commuted from the Palmdale and Lancaster areas to the

west entry gate of Edwards AFB.

10. The exit from California State Highway 14 on

Plaintiff’s regular route was dominated by highway signs

indicating “Edwards AFB” and “NASA-DRYDEN Flight

Research Center. ...”

11. Once Plaintiff passed the Edwards AFB property

line, he would have passed a 15 by 8 foot sign which stated:

“WELCOME TO EDWARDS AFB home of the UNITED

STATES PREMIER FLIGHT TEST/RESEARCH FACIL-

ITY.”

12. The Base property line was marked by fences

with steel posts and barbed wire.

13. Signs sized 15 by 18 inches were posted on the

fences and read: “WARNING: U.S. Air Force Installation.

It is unlawful to enter this area without permission of the

Installation Commander. Sec. 21. Internal Security Act of

App. 27

1950: 50 U.S.C. § 797. While on this installation all per-

sonnel and the property under their control are subject to

search.”

14. In addition to the signs posted on the fences, on

the left side of the road there was a larger sign (approxi-

mately 36 by 32 inches) with the same warning and an

additional statement that “This area is patrolled by

military working dog teams.”

15. Just before the guard gate where the incident

occurred on the right side of the road was a white sign

approximately 36 by 32 inches with red and black lettering

that also read: “WARNING: U:S. Air Force Installation. It

is unlawful to enter this area without permission of the

Installation Commander. Sec. 21. Internal Security Act of

1950: 50 U.S.C. § 797. While on this installation all per-

sonnel and the property under their control are subject to

search.”

16. The guard gate was located well inside the

perimeter of Edwards AFB in a desolate area. The configu-

ration of the guard gate clearly would have suggested to

any reasonable individual that it was a secured entrance.

17. Beyond the guard gate, there were other items

indicative of a military base such as signs warning motor-

ists they were adjacent to a firing range, military aircraft,

airplane hangers, and other facilities.

18. All the guard gates at Edwards AFB were staffed

24 hours a day, 365 days a year with Air Force Security

Force members.

19. The Security Forces that guard the gate were

uniformed and armed with loaded weapons at all times.

The Security Forces wore what the Defendants who were

App. 28

at the scene in this case were wearing: a battle dress

utility (“BDU”) uniform, a black nylon equipment belt that

includes a holster, a loaded 9 millimeter Barreta handgun,

a spare magazine, and handcuffs. On the left side of their

chests they wore Air Force Security Force cloth badges and

an Air Force patch, and on the right side of their chests,

they wore a patch bearing their names.

20. Prior to May 16, 1999, Plaintiff had routinely

been stopped at the guard gate and asked for identifica-

tion.

21. Since 1993, new FAA employees have been

orientated routinely by an FAA Administrative Officer who

informs them that Edwards AFB security has the right to

search them and their vehicles at any time when they are

present at the Edwards AFB or enter or leave the Edwards

AFB.

22. FAA personnel also are told routinely that they

are subject to search by and the orders of the military

authorities when they are on the Edwards AFB and that it

is their duty as FAA personnel to comply with Security

Force personnel.

CONCLUSIONS OF LAW

1. Plaintiff has an exclusive remedy for his injuries

under the Federal Employee Compensation Act (“FECA”).

Thus, this court has no subject matter jurisdiction over

any of his claims against the United States and its in-

strumentalities. See Moe v. United States, 326 F.3d 1065,

1068 (9th Cir. 2003).

2. The instrumentalities of the United States in this

suit are the Department of Defense, the Air Force, and the

App. 29

individual Defendants sued in their official capacity. See

Gnotta v. United States, 415 F.2d 1271, 1277 (8th Cir.

1969), cert. denied, 397 U.S. 934 (1970).

3. Even if this court has subject matter jurisdiction,

all claims in the first amended complaint, except the

Bivens claim the Ninth Circuit remanded, are barred by

the doctrines of res judicata and the law of mandate.

4. All claims in the first amended complaint that

were originally alleged and then dismissed, except the

Bivens claim the Ninth Circuit remanded, also are barred

by the law of the case and res judicata.

5. Even if the court has subject matter jurisdiction,

all the claims against supervisors such as William Cohen,

General Richard Reynolds, Colonel Edward Deiulio, and

Colonel Neil Rader fail because these individuals cannot

be held liable under respondeat superior for violations of

42 U.S.C. § 1983 or Bivens claims. See Terrell v. Brewer,

935 F.2d 1015, 1018 (9th Cir. 1991); Redman v. County of

San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991).

6. And to the extent Plaintiff attempts to hold the

supervisors liable for their personal actions, Plaintiff has

failed to establish a causal connection between any super-

visory act and the alleged constitutional violations. See

Sanders v. Kennedy, 794 F.2d 478, 483-484 (9th Cir. 1986).

7. The three individual officers at the May 16, 1999

incident (C. Eric Broughton, Kenneth Erichsen, and Eric

Goodson) also are shielded from suit for all their alleged

actions by qualified immunity. The officers were perform-

ing discretionary functions and did not violate any clearly

established statutory or constitutional rights.

App. 30

8. But even if the court has subject matter jurisdic-

tion over the remanded Bivens claim and Defendants do

not enjoy qualified immunity, Defendants did not violate

Plaintiff’s Constitutional rights because no genuine issue

of material fact exists as to whether Plaintiff impliedly

consented to the search. The totality of the circumstances

punctured any reasonable expectation of privacy that

Plaintiff might have had. Thus, Plaintiff impliedly con-

sented to the search and his Fourth Amendment rights

were not violated. See Morgan v. United States of America,

323 F.3d 776, 782 (9th Cir. 2003); United States v. Jenkins,

986 F.2d 76, 79 (4th Cir, 1993). Defendants are entitled to

prevail as a matter of law on the Bivens claim remanded

by the Ninth Circuit.

9. Finally, Defendants are not liable for damages

under the theories alleged because no genuine issue of

material fact exists concerning whether Plaintiff sustained

any damages as a result of the alleged actions. He did not.

10. Defendants are entitled to prevail as a matter of

law on all claims.

IT IS SO ORDERED.

DATED: 2-27-04 RONALD S.W. LEW

RONALD S.W. LEW

United States District Judge

App. 31

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, ) CV 00-5221 RSWL (RCx)

Plaintiff, ) AMENDED ORDER

v (Filed Feb. 27, 2004)

THE UNITED STATES OF

AMERICA; THE UNITED

STATES DEPARTMENT OF

DEFENSE; WILLIAM COHEN,

in his capacity as Secretary of

the Department of Defense;

THE UNITED STATES AiR

FORCE; GENERAL RICHARD

REYNOLDS, as an individual

and in his capacity as

Commander, Flight Test Center,

USAF; COLONEL EDWARD

DEIULIO, as an individual and

in his capacity as Base Com-

mander of Edwards Air Force

Base, USAF; COLONEL NEIL

RADER, as an individual and

in his capacity as Commander

of Edwards Air Force Base

Security Forces, USAF; C. ERIC

BROUGHTON, as an individual

and in his capacity as Sergeant,

USAF; KENNETH ERICHSEN,

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his capacity

as Airman, USAF; and DOES 1

through 10, inclusive.

tll ee ee ee ee ee oo ee ee ae a

Defendants.

App. 32

Before the Court are Defendants’ two motions for

summary adjudication and Plaintiff’s motion pursuant to

Rule 12(f), striking Defendants’ Rule 8(b) answers to the

first amended complaint. After a hearing in this Court on

December 22, 2003 and consideration of the papers and

argument submitted, this Court rules as follows.

In his opposition papers, Plaintiff requests relief

pursuant to Rule 56(f). Plaintiff has failed utterly to make

a good faith showing that any form of relief, including the

continuance Plaintiff requests, would result in the discov-

ery of facts essential to preclude the grant of Defendants’

motions for summary adjudication. Defendants’ motions

are not premature. This Court DENIES Plaintiff’s re-

quest under Rule 56(f). x

This Court GRANTS Defendants’ two motions for

summary adjudication on all claims against all Defen-

dants for the reasons stated in the Findings of Uncontro-

verted Fact and Conclusions of Law adopted by this Court

on this same day.

Because this order disposes of all of Plaintiff’s claims,

this Court finds Plaintiff’s motion pursuant to Rule 12(f)

MOOT.

IT IS SO ORDERED.

DATED: 2-27-04 RONALD S.W. LEW

RONALD S.W. LEW

United States District Judge

App. 33

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, _ ) CV 00-5221 RSWL(RCx)

Plaintiff, AMENDED JUDGMENT

(Filed Feb. 27, 2004)

THE UNITED STATES OF

AMERICA; THE UNITED

STATES DEPARTMENT OF

DEFENSE; WILLIAM COHEN,

in his capacity as Secretary of

the Department of Defense;

THE UNITED STATES AIR

FORCE; GENERAL RICHARD

REYNOLDS, as an individual

and in his capacity as

Commander, Flight Test Center, ’

USAF; COLONEL EDWARD

DEIULIO, as an individual and

in his capacity as Base Com-

mander of Edwards Air Force

Base, USAF; COLONEL NEIL

RADER, as an individual and

in his capacity as Commander

of Edwards Air Force Base

Security Forces, USAF; C. ERIC

BROUGHTON, as an individual

and in his capacity as Sergeant,

USAF; KENNETH ERICHSEN,

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his capacity

as Airman, USAF; and DOES 1

)

through 10, inclusive. .

Defendants.

App. 34

This court granted Defendants’ motions for summary

adjudication on December 22, 2003 on all claims, against

all Defendants. Thus, judgement is hereby entered dis-

missing Plaintiff Greg Allen Morgan’s claims against

- Defendants with prejudice.

IT IS SO ORDERED.

DATED: 2-27-04 RONALD S.W. LEW

RONALD S.W. LEW

United States District Judge

App. 35

Sue Ann Howard, Esq. # 164265

LAW OF}"ICES OF SUE ANN HOWARD

44421 10th Street West, Suite H

Lancaster, CA 93534

Telephone: (661) 726-9000

Attorney for Plaintiff Greg Alan Morgan

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

GREG ALAN MORGAN, |Case No.: CV 00-5221 RSWL

Plaintiff, (RCx)

vs. [PROPOSED] ORDER

“THE UNITED STATES GRANTING PLAINTIFF'S EX

OF AMERICA, et al., PARTE APPLICATION FOR

AN ORDER REQUIRING

Defendants DEFENDANTS TO RETURN

THE DEPOSITION TRAN-

SCRIPTS OF DEFENDANTS

BRAD GOODSON AND C.

ERIC BROUGHTON

(Filed Feb. 2, 2004)

[DENIED]

Based upon the ex-parte application,

IT IS ORDERED, Defendants shall transmit the

Deposition Transcripts of Brad Goodson and C. Eric

Broughton to the Offices of Counsel for Plaintiff located at

44421 10th Street West, Suite H, Lancaster, CA 93534, by

overnight service within 48 hours after this order is

granted.

App. 36

IT IS FURTHER ORDERED, In the event Counsel for

Defendants does not produce the Deposition Transcripts of

Brad Goodson and C. Eric Broughton as stated above,

Defendants shall pay the sum of three times the original

cost in the amount of six thousand sixteen dollars and fifty

cents ($6016.50), payable to Plaintiff as reasonable costs

and fees, and shall so advise Plaintiff of their inability to

transmit said Deposition Transcripts within 48 hours after

this order is granted.

DATED: January 2, 2004

/s/ {legible}

United States Distriet-Court

Magistrate Judge

Presented by,

/s/ Sue Ann Howard

Sue Ann Howard

Attorney for Plaintiff

App. 37

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALAN MORGAN CASE NUMBER

PLAINTIFF(S), CV 00-5221-RSWL(RCx)

v. ORDER STRIKING

THE UNITED STATES FILED DOCUMENT

OF AMERICA, et al. FROM THE RECORD

DEFENDANT(S) (Filed Dec. 15, 2003)

WHEREAS, the document listed below was improp-

erly filed for the following reason:

Pursuant to Local Rule 7-11, motions hearing date “may”

be continued with stipulation of parties. No such stipula-

tion being submitted nor has the Court ordered such a

continuation.

IT IS HEREBY ORDERED that the documents shall

be stricken from the record and shall not be considered by

the Court:

Document Entitled: Pitf Greg Morgan’s Notice of Motion

and Motion to Strike Defts’ Answers to the First Amended

Complaint (Amended for Change of Hearing Date).

IT IS FURTHER ORDERED that the documents shall

not be returned to the filing party; however, the Clerk

shall note on the case docket that the documents are

stricken from the record.

DATED: 12-15-03 RONALD S.W. LEW

United States District Judge

App. 38

cc: Appeals Department

Pro Se Department

App. 39

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL

CASE NO. CV_00-5221-RSWL DATED: October 6, 2003

TITLE: GREG ALLAN MORGAN v. U.S.A.

PRESENT: HONORABLE RONALD S.W. LEW, JUDGE

Kelly Davis Not Present

Court Clerk Court Reporter

ATTORNEYS FOR PLAINTIFFS:

ATTORNEYS FOR DEFENDANTS:

Not Present Not Present

PROCEEDINGS: (IN CHAMBERS)

Pitf’s Motion for Order and Certification by District Court

is DENIED AS MOOT.

App. 40

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, __ ) CV 00-5221 RSWL

Plaintiff, ORDER

Vv (Filed Oct. 3, 2003)

THE UNITED STATES OF

AMERICA; THE UNITED

STATES DEPARTMENT OF

DEFENSE; WILLIAM COHEN,

in his capacity as Secretary of

the Department of Defense;

THE UNITED STATES AIR

FORCE; GENERAL RICHARD

REYNOLDS, as an individual

and in his capacity as

Commander, Flight Test Center,

USAF; COLONEL EDWARD

DEIULIO, as an individual and

in his capacity as Base Com-

mander of Edwards Air Force

Base, USAF; COLONEL NEIL

RADER, as an individual and

in his capacity as Commander

of Edwards Air Force Base

Security Forces, USAF; C. ERIC

BROUGHTON, as an individual

and in his capacity as Sergeant,

USAF; KENNETH ERICHSEN,

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his capacity

as Airman, USAF; and DOES 1

through 10, inclusive.

)

Defendants.

App. 41

Before the Court is Plaintiff’s motion for leave to file

a first amended complaint pursuant to Federal Rule of

Civil Procedure 15(a). The Court finds justice requires

granting the motion and thus, GRANTS the motion.

IT IS SO ORDERED.

DATED: 10-3-03 RONALD S.W. LEW

RONALD S.W. LEW

United States District Judge

App. 42

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALAN MORGAN CASE NUMBER

PLAINTIFF(S), CV 00-5221-RSWL(BQRx)

i ORDER STRIKING

THE UNITED STATES FILED DOCUMENTS

OF AMERICA, et al. FROM THE RECORD

DEFENDANT(S) (Filed Aug. 28, 2003)

WHEREAS, the document listed below was improp-

erly filed for the following reason:

On May 2, 2003, plaintiff counsel attempted to file a First

Amended Complaint, which was properly discrepancied at

the Intake Window. On June 9, 2003, plaintiff filed a First

Amended Complaint, without leave of the Court.

IT IS HEREBY ORDERED that the First Amended

Complaint shall be stricken from the record and shall not

be considered by the Court:

Other: Defendant USA’s Motion to Strike and Dismiss

First Amended Complaint set for September 15, 2003, is

withdrawn and taken off calendar by the Court.

IT IS FURTHER ORDERED that the documents shall

not be returned to the filing party; however, the Clerk

shall note on the case docket that the documents are

stricken from the record.

DATED: Aug 28, 2003 RONALD S.W. LEW

United States District Judge/

Magistrate Judge

App. 43

cc: Appeals Department

Pro Se Department

App. 44

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE RONALD S.W. LEW, JUDGE PRESIDING

GREG MORGAN, )

Plaintiff CERTIFIED COPY

vs. ) No. CV 00-5221

UNITED STATES )

OF AMERICA, ‘

Defendant. )

REPORTER’S TRANSCRIPT OF PROCEEDINGS

MOTION

Los Angeles, California

Monday, June 9, 2003

* * *

[5] MR. NORDIN: We have not yet answered on

behalf of the three Biven’s defendants who remain in the

case.

THE COURT: Have they been served?

MR. NORDIN: Excuse me?

THE COURT: Have they been served? Okay. I

asked a question, but you have to determine whether or

not all the people have been properly served, and get the

answers properly filed. The discovery dates remain. You

ought to get this action going.

App. 45

MR. NORDIN: We'll do that. If I may file an

appropriate response, it will be an answer, of course,

within 30 days. I’m going to be out of town for much of the

next three weeks is why I ask for so much time.

THE COURT: How do we know if they have

been) served?

MR. NORDIN: We'll find out and address the

matter by then.

THE COURT: You talk to counsel. You talk to

counsel.

MR. NORDIN: Very well.

THE COURT: Thank you.

MS. HOWARD: One more thing, Your ‘onor. [6]

Sorry. We were here for today on a discrepancy. We tried to

file a first amended complaint, and the clerk would not

take it because they hadn’t received 4 hard copy for the

remand from the Ninth Circuit. They still wouldn’t take it,

and we would like to file a first amended complaint.

THE COURT: Has there been an answer?

MS. HOWARD: No.

THE COURT: By anyone?

MS. HOWARD: No.

THE COURT: None of the Biven’s defendants

have been served?

MS. HOWARD: No, they have been served. We

have a first amended complaint we would like to file.

App. 46

THE COURT: Have any of the Biven’s defen-

dants answered?

MS. HOWARD: No, Your Honor.

THE COURT: It should be filed with the court.

MS. HOWARD: We’ll do that. Thank you so

much.

App. 47

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MINUTES — APPEALS

Case No. CV 00-5221-RSWL Date: May 19, 2003

Court of Appeals No. 01-55471

Title: GREG ALLAN MORGAN vy. U:S.A., et al.

————-—--

PRESENT: HONORABLE RONALD S.W. LEW

Kelly Davis Not present

Court Clerk Court Reporter

ATTORNEY FOR ATTORNEY FOR

PLAINTIFF: DEFENDANT:

Not present Not present

PROCEEDINGS: FILING AND SPREADING MAN-

DATE OF THE NINTH CIRCUIT

COURT OF APPEALS

IN COURT X IN CHAMBERS _ (No hearing

X COUNSEL NOTIFIED necessary)

The Court ORDERS that the mandate of the Ninth Circuit

Court of Appeals:

____ Affirming ~—s-Remanding —____ Reversing and

Remanding

XX Affirming in part, Reversing in part and

REMANDED

____ Dismissing Appeal!

aie

is hereby filed and spread upon the minutes of this Dis-

trict Court.

App. 48

XX_ This case is set for status conference on June 9, 2003

at 9:00 am. The Court’s address is 312 N. Spring Street,

Fifth Floor, Los Angeles, CA. 90012. This Court will also

address the issue of the Notice of Document Discrepancy

regarding the attempted filing of the First Amended

Complaint.

(ENTERED MAY 20 2003) X_ MAKE JS-5

MINUTE FORM CV 48 Initials of Deputy Clerk KD

MINUTES —- APPEALS

App. 49

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

NOTICE OF DOCUMENT DISCREPANCIES

(Filed Aug. 28, 2003)

To: & US. District Judge/

CL) U.S. Magistrate Judge Lew

From: _M Martinez

, Deputy Clerk

Date Received: —_ 5/2/03

Case No.: _CV00-5221 Case Title: _Morgan vy The USA

Document Entitled:

(P) lst Amended Complaint

Upon the submission of the attached document(s), it was

noted that the following discrepancies exist:

(1) Local Rule 11-3.1

C} Local Rule 11-3.8

(J Local Rule 11-4.1

C Local Rule 19-1

C}) Local Rule 15-1

C1) Local Rule 11-6

1) Local Rule 11-8

CL) Local Rule 83-1.5

C) Local Rule +3 6.1

C) Local Rule 56-1

Document not legible

Lacking name, address, phone

number

No copy provided for judge

Complaint/Petition includes more

than ten (10) Does or fictitiously

named parties

Proposed amended pleading not

under separate cover

Memorandum/brief exceeds 25 pages

Memorandum/brief exceeding i0

pages shall contain table of contents

No Certification of Interested Parties

and/or no copies

Written notice of motion lacking or

timeliness of notice incorrect

Statemer® of uncontroverted facts

and/or proposed judgment lacking

App. 50

LJ Local Rule 56-2 Statement of genuine issues of

material fact lacking

C) Local Rule 7-19.1 Notice to other parties of ex parte

application lacking

(J Local Rule 16-6 Pretrial conference order not signed

by all counsel

() FRCvP Rule 5(d) No proof of service attached to docu-

ment(s)

Other: Case Termed 11/15/00. Appeal filed 3/5/01

No CCAP Order has not been filed & spread.

Case has never been reopened

Note: Please refer to the court’s Internet website at

www.cacd.uscourts.gov for local rules and appli-

cable forms.

ORDER OF THE JUDGE/MAGISTRATE JUDGE

IT IS HEREBY ORDERED:

(] The document is to be filed and processed. The filing

date is ORDERED to be the date the document was

{illegible] “received but not filed” with the Clerk.

Counsel* is advised that any further failure to comply

with the Local Rules may lead to penalties pursuant

to Local Rule 83-7.

Date U.S. District/Magistrate Judge

Kk) The document is NOT to be filed, but instead RE-

JECTED, and is ORDERED returned to *counsel.

*Counsel shall immediately notify, in writing, all par-

ties previously served with the attached documents

* The term “counsel” as used herein also includes any pro se party.

See Local Rule 1-3.

App. 51

that said documents have not been filed with the

Court.

8-28-03 /s/ Ronald S.W. Lew

Date U.S. District/Magistrate Judge

App. 52

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

JOHN E. NORDIN II (SBN 049680)

Assistant United States Attorney

Assistant Chief, Civil Division

SARA R. ROBINSON (SBN 147437)

Assistant United States Attorney

Room Suite 7516 Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-3552/6585

Facsimile: (213) 894-7819

Attorneys for Defendants,

United States of America, et al.

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

GREG ALLAN MORGAN, ) No. CV. 00-5221-RSWL(BQRx)

Plaintiff, {Prepesed] ORDER DENYING

s ) PLAINTIFF'S MOTION

' FOR RECONSIDERATION

UNITED STATES am

OF AMERICA et al.. (Filed Jan. 25 2001)

)

Defendants.

The motion for reconsideration filed on behalf of

plaintiff Greg Allan Morgan, came on regularly for hearing

on January 8, 2001. Plaintiff appeared through his coun-

sel, Sue Ann Howard, Esq., and defendants appeared

App. 53

through the United States Attorney for the Central Dis-

trict of California, by John E. Nordin II, Assistant United

States Attorney, Assistant Chief, Civil Division. The Court

having had sufficient time to consider the moving papers,

the opposition papers, plaintiff’s ex-parte application and

the opposition thereto, as well as the arguments of plain-

tiff’s counsel, made the following findings and order:

(1) Plaintiff brought the instant motion pursuant to

Fed.R.Civ.P. 59(e) and Local Rule 7.16. Plaintiff argues

that the Court committed obvious error in granting Defen-

dants’ Motion to Dismiss the Action, embodied in the

Order Dismissing the Action With Prejudice, entered

November 16, 2000. Plaintiff also proffered new theories

and evidence in the motion for reconsideration.

(2) Plaintiff has not demonstrated the existence of

new facts or law which were not known to plaintiff, or

which could not have been known had reasonable diligence

been exercised prior to the hearing of the motion to dis-

miss. Nor has plaintiff shown that this court manifestly

failed to consider the facts and law presented. Plaintiff has

shown no basis for granting the motion for reconsideration

under Fed.R.Civ.P 59(e), Local Rule 7.16, or under any

other provision of law. The Court considered all arguments

raised by plaintiff and determined motion should be

denied.’ |

’ The Court noted that plaintiff has filed a motion seeking sanc-

tions against defendants and their attorneys. Plaintiff may wish to

consider whether such motion should be withdrawn in light of the

Court's ruling on the motion for reconsideration.

App. 54

Therefore,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that plaintiff’s motion for reconsideration of the

order dismissing action with prejudice, entered November

16, 2000, is denied. Said order of dismissal remains in

effect.

DATED: January 25, 2001.

/s/ Ronald S.W. Lew

RONALD S.W. LEW

United States District Judge

Presented by:

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief Civil Division

/s/ John E. Nordin Il

JOHN E. NORDIN Il

Assistant United States Attorney

Assistant Chief, Civil Division

Attorneys for defendants

United States of America, et al.

App. 55

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

JOHN E. NORDIN II (SBN 049680)

Assistant United States Attorney

Assistant Chief, Civil Division

SARA R. ROBINSON (SBN 147437)

Assistant United States Attorney

Room Suite 7516 Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-3552/6585

Facsimile: (213) 894-7819

Attorneys for Defendants,

United States of America, et al.

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

GREG ALLAN MORGAN, ) No. CV. 00-5221-RSWL (BQRx)

Plaintiff, {Propesed]

é ’ ORDER DISMISSING

, ACTION WITH IC

pear chalga ) (Filed Nov. 15 2000)

Defendants. )

The motion to dismiss the action filed on behalf of

defendants, the United States of America, Secretary of

Defense William Cohen, the United States Air Force,

General Richard Reynolds, Colonel Edward Deiulio,

App. 56

Colonel Neil Rader, MSgt. C. Eric Broughton, MSgt.

Kenneth Erichsen, and Airman Eric Goodson, on Septem-

ber 14, 2000, came on regularly for hearing on October 30,

2000. Plaintiff appeared through his counsel, Sue Ann

Howard, Esq., and defendants appeared through the

United States Attorney for the Central District of Califor-

nia, by John E. Nordin II, Assistant U.S. Attorney, Assis-

tant Chief, Civil Division. Also present on behalf of

defendants was Capt. Dina L. Bernstein, AFLSA/JACL,

Air Force General Litigation Division, Rosslyn, VA. Based

upon the moving and opposition papers, and all other

documents filed herein, as well as the arguments of

plaintiff’s counsel, the Court makes the following findings

and order:

(1) The complaint does not allege that the defen-

dants conspired with or acted in concert with state offi-

cials, accordingly, the first through eighth causes of action

based upon 42 U.S.C. § 1983 are dismissed pursuant to

Rule 12(b)(6).

(2) The court is not required to accept the conclusory

allegations that plaintiff was deprived of his constitutional

rights because of his discharge of his alleged official and

regulatory duties as an alleged officer of the FAA. Plaintiff

has not alleged facts sufficient to support such an allega-

tion. Accordingly, the ninth through twelfth causes of

action based upon 42 U.S.C. § 1985f1) are dismissed

pursuant to Rule 12(b)(6).

(3) Plaintiff has not alleged any racial or any other

invidious, class-based discrimination, and thus has not

stated a claim under 42 U.S.C. § 1985(3). Griffin uv.

Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct 1790, 29

L.Ed.2d 338 (1971). Accordingly, the thirteenth through

cm a ee ee

App. 57

the sixteenth causes of action are dismissed pursuant to

Rule 12(b)(6).

(4) As Edwards Air Force Base is a closed base, the

defendants were not required to have probable cause to

stop, inspect and/or search plaintiff and his vehicle, or to

detain, and arrest the plaintiff. Plaintiff’s constitutional

tort or Bivens claims (Bivens v. Six Unknown Named

Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971)), are based upon the assertion that defendants’

actions were undertaken without probable cause. Accord-

ingly, the seventeenth through the twenty-fourth causes of

action are dismissed pursuant to Rule 12(b)(6).

(5) Plaintiff has not stated a claim based upon

eavesdropping or the making of a tape recording. Accord-

ingly, the twenty-fifth cause of action is dismissed pursu-

ant to Rule 12(b)(6).

(6) It does not appear that plaintiff could state a

claim upon which relief could be granted if allowed to

amend. Therefore,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED, that this action is dismissed with prejudice.

DATED: November 15, 2000.

/s/ RONALD S W LEW

RONALD S.W. LEW

United States District Judge

Presented by:

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief Civil Division

/s/ John E. Nordin Il

JOHN E. NORDIN II

Assistant United States Attorney

Assistant Chief, Civil Division

Attorneys for defendants

United States of America, et al.

App. 59

IN THE SUPERIOR COURT,

EAST DIVISION,

MOJAVE BRANCH

OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF KERN

CASE NO. MM036748A

DECISION

PEOPLE V. MORGAN

The sole issue before the Court is whether the warn-

ing sign at the entrance of Edwards Air Force Base justi-

fied the search a car of a civilian employee. The People

contend that it did, as a matter of implied consent upon

entering the Base. The Defendant contends that it did not

after expressly denying consent to search.

It is stipulated that there was no probable cause. 50

U.S.C. 727 provides that it is a Federal misdemeanor to

violate the regulation or order of the Secretary of Defense or

his delegated military commander. The military commander

of the Base evidently promulgated the rule that all vehicles

entering the Base are subject to search. The Court accepts

that he has valid security reasons to do so. This justifies an

administrative search, not a probable cause search.

Neither side cited authority whether an implied

consent can be overridden by an expressed refusal. The

Mathis case does not go to the issue. The Court is finding

that at the entrance, at least, an express refusal to allow a

search negates an implied consent. The circumstances at

the entrance dictate that persons be allowed to leave as an

alternative to the administrative search. This was the

reasoning of the Estes case. The circumstances would be

different if the vehicle had passed the entrance. The

App. 60

regulations must provide the least_intrusive invasion of

privacy to accomplish the administrative goal.

Defendant’s motion is granted.

/s/ David L. Eckert 9/23/99

David L. Eckert, Commissioner

App. 61

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREG ALAN MORGAN,

Plaintiff-Appellant,

UNITED STATES

OF AMERICA,

Defendant-Appellee.

GREG ALAN MORGAN,

Plaintiff-Appellant,

UNITED STATES

OF AMERICA,

Metendants-Appellees.

No. 04-55758

D.C. No. CV-03-02372-RSWL

Central District of

California, Los Angeles

ORDER

No. 04-55761

D.C. No. CV-00-05221-RSWL

Central District of

California, Los Angeles

(Filed Apr. 19, 2006)

Before: T'G. NELSON, PAEZ, and TALLMAN, Circuit Judges.

The panel has voted to deny the petition for panel

rehearing. Judges Paez and Tallman have voted to deny

the petition for rehearing en

recommends.

The full court has been

bane and Judge Nelson so

advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied.

App. 62

UNITED STATE DISTRICT COURT

THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

~- GREG ALLAN MORGAN

Plaintiff

No. 00-5221-RSWL(BQRx)

NOTICE OF APPEAL

(Filed Mar. 7, 2001)

)

VS. )

UNITED STATES )

OF AMERICA et al.

Defendants )

NOTICE OF APPEAL

NOTICE OF APPEAL is given that Greg Allan Mor-

gan, Plaintiff in the above named case, hereby appeals to

the Ninth Circuit Court of Appeals, from an ORDER

dismissing Plaintiff’s case on 11-15-00, entered on 11-16-

00, and from an ORDER denying a timely MOTION under

Rule 59%e). The Rule 59(e) motion was filed within 10

working days after the entry of the ORDER on 11-29-00. A

rule 59(e) motion filed prior to the entry of judgment is

considered timely.

This appeal is filed pursuant to Fed. R. App.P 4(A) 4

wherein the time for appeal runs from the date of the entry

of the ORDER on the Rule 59%e) motion. The ORDER

entered on 01-25-01 finally disposed of Plaintiff’s action,

although a JUDGMENT was not entered. As the United

States Government is a party to the action the time for

appeal is 60 days after the final order or judgment. The

App. 63

ORDER appears to be a final disposition, but there is no

separate judgment document.

Respectfully submitted,

Dated: March 5, 2001 /s; Melbourne B. Weddle

MELBOURNE B. WEDDLE

Attorney for Appellant

Greg Allan Morgan

P. O. Box 593

Santa Barbara, CA 93102

App. 64

Sue Ann Howard, Esq. # 164265

LAW OFFICES OF SUE ANN HOWARD

44421 10th Street West, Suite H

Lancaster, CA 93534

‘Telephone: (661) 726-9000

Attorney for Plaintiff Greg Alan Morgan

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREG ALLEN MORGAN, Case No.: 00-05221

Plaintiff, COMPLAINT FOR

Ve DAMAGES AND

: DEMAND FOR

THE UNITED STATES OF JURY TRIAL

AMERICA; THE UNITED

1. Violation of 42 U.S.C.

STATES DEPARTMENT a

OF DEFENSE; WILLIAM 1963 Chaneious Fyone-

COHEN, in his capacity as cution in Violation of

Ss : the FOURTH Amend-

ecretary of the Department

Of Defense; THE UNITED mae

STATES AIR FORCE; 2. Conspiracy to Violate

GENERAL RICHARD 42 U.S.C. 1983

REYNOLDS, as an individual (Malicious Prosecution

and in his capacity as in Violation of the

Commander, Flight Test | FOURTH Amendment)

Center, USAF; COLONEL

nee awe Rene nen Ona 1983 (Unlawful Search

individual and in his former ; a6

; . and Seizure in Viola-

capacity as Base Commander tion of the FOURTH

3. Violation of 42 U.S.C.

of Edwards Air Force Base

. and FOURTEENTH

USAF; COLONEL NE IL Amendments)

RADER, as an individual and

in his capacity as Commander | 4. Conspiracy to Violate

of Edwards Air Force Base 42 U.S.C. 1983 (Unlaw-

Security Forces, USAF; ful Search and Seizure

C. ERIC BROUGHTON, in Violation of the

App. 65

as an individual and in his

capacity as Sergeant, USAF;

KENNETH ERICHSEN,

as an individual and in his

capacity as Sergeant, USAF;

ERIC GOODSON, as an

individual and in his

capacity as Airman, USAF;

and DOFS | through 10,

inclusive.

Defendants

* *

FOURTH and FOUR-

TEENTH Amendments

. Violation of 42 U.S.C.

1983 (False Arrest/

Imprisonment in Viola-

tion of the FOURTH

and FOURTEENTH

Amendments)

. Conspiracy to Violate

42 U.S.C. 1983 (False

Arrest/Imprisonment

in Violation of the

FOURTH and

FOURTEENTH

Amendments)

_ Violation of 42 U.S.C.

1983 (Malicious Abuse

of Process in Violation

of the FOURTEENTH

Amendment)

ALLEGATIONS RELEVANT TO

ALL CAUSES OF ACTION

(Filed May 15, 2000)

20. Plaintiff on information and belief and upon such

belief alleges that Defendants, and each of them, not only

performed prosecutorial acts relevant to this action, but

performed purely investigatory acts which ordinarily are

reserved and/or conducted by police officers, including but

not limited to, having security personnel perform a war-

rantless search of Plaintiff’s automobile without consent;

arresting Plaintiff without probable cause; manufacturing

probable cause to search based upon a small crack in the

App. 66

bottom of Plaintiff's windshield; arresting Plaintiff based

upon manufactured probable cause; denying Plaintiff the

right to counsel and failing to provide the appropriate

Miranda warnings to Plaintiff.

21. On or about May 16, 1999, Plaintiff drove his 1998

Jeep Cherokee onto Edwards Air Force Base in order to go

to work.

22. Plaintiff presented his Federal Aviation Administra-

tion identification badge as is sometimes required upon

entering Edwards Air Force Base.

23. Plaintiff was then signaled to stop and was ap-

proached by a security officer and ordered to pull off to the

side of the road. Plaintiff complied.

24. Plaintiff parked his vehicle on the right hand side of

the road as instructed.

25. Three security officers identified as Defendants

BROUGHTON, ERICHSEN and GOODSON approached

Plaintiff's vehicle.

26. Defendant GOODSON informed Plaintiff that he

wanted to perform a vehicle search and began reading,

from a clipboard, a prepared statement.

¥ 3 Defendant GOODSON then asked Plaintiff if he

would consent to a search, Plaintiff denied consent.

28. Plaintiff informed Defendants that he did not want to

be late for work.

29. After Plaintiff refused the voluntary search all three-

security officers identified as Defendants BROUGHTON,

ERICHSEN and GOODSON, walked to the rear of Plain-

tiff’s vehicle, huddled and held a conversation.

App. 67

30. Defendant BROUGHTON came back to Plaintiff's

car and demanded Plaintiff's driver’s license, proof of

insurance and registration.

31. Defendant BROUGHTON grabbed Plaintiff’s driver’s

license and registration and insurance documents and

walked to the back of Plaintiff’s vehicle.

32. Plaintiff, realizing he was going to be late for work,

exited his vehicle and proceeded to walk to the guard

shack to place a telephone call to his employer.

33. While Plaintiff was walking towards the guard shack,

Defendant BROUGHTON said to Plaintiff “Get back into

your car.”

34. Plaintiff asked if he was under arrest. Defendant

BROUGHTON told Plaintiff “No”.

35. Defendant BROUGHTON suddenly yelled, “Cover

”

36. The two other security personnel, Defendants

ERICHSEN and GOODSON and/or DOES 1-10, grabbed

their gun handles while Defendant BROUGHTON placed

handcuffs on Plaintiff.

37. Defendant BROUGHTON then searched Plaintiffs

person and emptied Plaintiff’s pockets.

38. Defendants BROUGHTON, ERICHSEN, GOODSON

and/or DOES 1-10 then proceeded to search Plaintiff's

vehicle in which was found an unloaded nine-millimeter

semi-automatic gun.

39. At no time was Plaintiff apprised of his Constitu-

tional rights nor was Plaintiff told of the alleged charges

against him.

App. 68

40. Subsequently, Plaintiff was turned over to the

Kern County Sheriff’s Department and transported to jail.

41. Plaintiff was charged with violations of Califor-

nia Penal Code sections 12025(A)(1), 12031, 148(A) and

Vehicle Code section 14601.0(A).

42. Plaintiff was prosecuted in the Kern County |

Municipal Court for the aforementioned penal code viola-

tions.

43. The Honorable David L. Eckert determined that

there was no probable cause to search.

44, On People’s Motion all charges were dismissed

against Plaintiff.

App. 69

Sue Ann Howard, Esq. # 164265

LAW OFFICES OF SUE ANN HOWARD

44421 10th Street West, Suite H

Lancaster, CA 93534

Telephone: (661) 726-9000

Attorney for Plaintiff Greg Alan Morgan

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

GREG ALAN MORGAN, Icase No.: CV 00-5221

Plaintiff, ea oe

PLAINTIFF'S FIRST

(AMENDED COMPLAINT

THE UNITED STATES OF |AND COMPLAINT FOR

AMERICA; THE UNITED |DAMAGES AND DEMAND

STATES DEPARTMENT |FOR JURY TRIAL

OF DEFENSE; WILLIAM

COHEN, in his capacity as

Secretary of the Depart-

vs.

1. Bivens Action (Unrea-

sonable Seizure in Viola-

tion of the FOURTH

ment Of Defense; THE

UNITED STATES AIR Amendment)

FORCE; GENERAL RICH- /2. Violation of 42 U.S.C. 1983

ARD REYNOLDS, as an (Unlawful Arrest, Search,

individual and in his and Seizure in Violation of

capacity as Commander, the FOURTH Amendment)

phe gibi pr SAF; 3. Bivens Action (Unlawful

DEIULIO, as an individual rrven, Search, and Sei-

zure in Violation of the

and in his former capacity FOURTH Amendment)

as Base Commander of

Edwards Air Force Base, 4. Violation of 42 U.S.C.

USAF; COLONEL NEIL ' 1983 (Malicious Prosecu-

RADER, as an individual | tion in Violation of the

and in his capacity as FOURTH Amendment)

App. 70

Commander of Edwards 5. Bivens Action (Malicious

Air Force Base Security Prosecution in Violation

Forces, USAF; C. ERIC of the FOURTH Amend-

BROUGHTON, as an ment)

ei ei 6. Violation of 42 U.S.C. 1983

USAF: KENNETH (Malicious Abuse of Proc-

ee ess in Violation of the

ERICHSEN, as an individ- FOURTH and FOUR-

ual and in his capacity as

Sergeant, USAF; ERIC TEENTH Amendments)

* * *

behavior and/or actions of Defendants UNITED STATES,

DOD, COHEN, AIR FORCE, REYNOLDS, DEIULIO,

RADER, BROUGHTON, ERICHSEN, GOODSON and/or

DOES 1-10 were flagrant abuses of power granted to them

under the laws of the United States and/or under the laws

of the State of California.

19. At all times relevant to this action the Defendants

UNITED STATES, DOD, COHEN, AIR FORCE, REY-

NOLDS, DEIULIO, RADER, BROUGHTON, ERICHSEN,

GOODSON and/or DOES 1-10 were acting under color of

either state of federal law.

20. The Plaintiff resided within this district at all times

relevant in this action.

FACTS RELEVANT TO ALL CAUSES OF ACTION

The “Closed Base” Administrative Regime

21. The “Closed Base” administrative regime is a euphe-

mistic term describing the act of stopping (seizing) a

person at the entrance of a federal enclave to inspect his or

her identification documents. Possession, display and accep-

tance of proper identification documents, acknowledge that

App. 71

the person “belongs to the enclave” and establishes the

person’s right of entry, terminating the seizure. Those not

possessing proper identification documents are denied

entry, but thereafter may enter, subject to restrictions.

Such restrictions may include, signing a consent waiver

that allows unrestricted searches in exchange for passage

to enter i.e. Air Force Form 75, “CONSENT TO SEARCH”.

The “Base Entry Point Check”

Administrative Regime

22. The “Base Entry Point Check” is a distinctly separate

administrative regime. The “Base Entry Point Check” was

developed for military purpose, applicable to DOD “per-

sonnel” only and bottomed in authority derived from

Uniform Code of Military Justice (UCMJ). SFS Form 12,

the local form used to conduct “Base Entry Point Checks”

states the purpose is for discovering e..dence of criminal

activity (contraband and stolen property) thereby preserv-

ing the “security of the command”. The terms “personnel”

and “security of the command” possess clear and specific

meanings under the statutes and regulations, and can

never apply to Plaintiff by virtue of his status, among

other things. “Base Entry Point Checks” are not conducted

on all entrants, nor are they conducted on a continuous

basis. Weeks may pass between “Base Entry Point

Checks.” Military “personnel” must submit to “Base Entry

Point Checks” and do so through a special needs exemp-

tion of their constitutional rights granted by the Military

Court of Appeals. All other persons do so by theory of

“consent” evidenced by waiver. In some circumstances,

failure to consent may cause administrative sanctions upon

those who choose not to give “consent” i.e. termination of

employment if DOD has control over the employee. In all

App. 72

circumstances when consent is denied, many regulations

require “All vehicles, ask the driver for permission to

examine the vehicle and its contents. If permission is

refused ... advise all occupants that they cannot enter the

base unless the vehicle is examined” AFH 31-218.

Freedom Of Information Act (FOIA) Material

23. On or about November of 2002, Plaintiff received a

five pound box of evidence, obtained through a FOIA

request, containing a partial copy of an administrative file,

assembled by Defendant Air Force. Much of the contents

were “expunged” but contained blank placeholders for the

expunged material. Some sections contained information

relevant to claims made herein, however specific parts of

that information were “redacted”. Other parts of the

administrative file contained affidavits, as well as some

military orders stamped “FOR OFFICIAL USE ONLY’,

not ordinarily obtainable through public means and were

not previously known to Plaintiff. In addition, a significant

portion of the file was dedicated to Lexis-Nexis printouts

of caselaw centering upon the status of state officials

acting in a federal capacity.

24. The police report filed by Defendants’ contained a

statement “BROUGHTON recorded much of this on his

pocket recorder” indicating that the events of May 16,

1999 had been recorded. The administrative file contained

a partial transcription of the tape recording referenced in

Defendants’ police report as well as other “Brady material”

that had not been previously or properly disclosed under

discovery rules in the underlying criminal matter. Thus

certain facts asserted herein are materially supported by

{Defendant’s) transcription of the tape and affidavits

App. 73

signed by them and Plaintiff was not aware of these

materials until receipt of the FOIA material.

FOIA | caterial - Transcription

of Tape Recording (TTR).

The transcription of the tape recording contains a total of

47 pages. Of those 47 pages, only the first 15'/ contain

conversational material, the remaining 31‘ pages were

expunged. Of the 15'/ pages, some of the conversational

material was intentionally omitted (redacted) as indicated

by a “—”, but by inference and totality of the conversation it

is not difficult to understand that the redacted words or

phrases were clearly damaging to Defendants. Only one or

two of the statements attributable to Plaintiff suffer the

same redactions. Due to the length of the transcription

and other indicators, the recorder appears to have run

most of the time Plaintiff was in custody, not only re-

cording conversations with Plaintiff, but also conversa-

tions Defendant’s held outside of Plaintiff’s presence. The

most relevant portions of the transcription are as follows:

1) Plaintiff was arrested and not merely

detained.

“He got out of his car and was — (redacted, ap-

pears to be saying “arrested and”)... the search

was pursuant to the resisting arrest’/TTR.

2) Defendant BROUGHTON was the ar-

resting official.

Voice: “I know about Kern. Jack is just to dou-

ble check on that authorization for searching of

the car.”

App. 74

Defendant BROUGHTON: “We don’t. need it.

The search — he got out of his car and was - I

hooked him up for a 148 - the search was pur-

suant to the resisting arrest”/TTR

3) Defendant BROUGHTON’s apparent use

of his state authority.

Defendant BROUGHTON: “Well I'd be happy to

explain the law to you because I am well versed

in the laws of search and seizure.’/TTR

Plaintiff: “Uh hum. The laws or Air Force Regu-

lations?”/TTR

Defendant BROUGHTON: “No. ... State of

California laws as they apply to you.”"/TTR

And later, Defendant BROUGHTON discussing

the necessity to obtain probable cause several

hours after Plaintiff was arrested.

Defendant BROUGHTON: “We don’t need it.

The search — he got out of his car and was — I

hooked him up for a 148 — the search was pursu-

ant to the resisting arrest.”/TTR. Other infer-

ences are present based upon the totality of the

file, containing legal material which indicates

great concern about this statement and the fol-

lowing statement made well after Plaintiff’s ar-

rest.

Defendant Broughton: “You're going to be booked

for PC 148(a), which is obstructing myself in the

performance of my duties.”/TTR

App. 75

4) Several hours after Plaintiff was ar-

rested Defendants try to establish a

foundation to justify the initial “resist-

ing arrest”. Discussion focuses upon

Plaintiffs drivers’ license.

Voice: “AS for as the suspension, it’s hard to in-

terpret because it’s another state ... ” Voice: It

says, “Suspended, court action required,” that

means that court action may be required before

it gets reinstated. So we're going to go ahead and

charge him with a suspension —?”/TTR

The Kern County Assistant District Attorney

later determined this allegation was baseless and

declined to prosecute.

Unsure of the status of Plaintiff’s drivers’

license, attention turns to whether Plaintiff

is under the influence.

Defendant BROUGHTON: “What I am going to

do right now is to give you a quick exam. I'll let

you get up and let you sit in this chair, if you

want.’/TTR

Plaintiff: “Yeah.”/TTR

Defendant BROUGHTON: “What I am going to

do right now is I’m going to give you a quick ex-

amination to determine if you are under the in-

fluence of either drugs or alcohol, okay? So go

ahead and sit here” [Background noise] “Do me a

favor.”/TTR

Voice: “Sure.”/TTR

Defendant BROUGHTON: “In the - in my

black bag in the back seat ~.”/T'TR (Defendant

BROUGHTON may be referring to bag in his

automobile and property believed to be of Fresno

County).

App. 76

Voice: “Uh huh.’/TTR

Defendant BROUGHTON: “There’s a_ green

canvas bag inside.”/TTR

Voice: [(naudible]...

Defendant BROUGHTON: There's a green can-

vas bag inside my black bag with a stethoscope,

we'll need that... "/TTR

Plaintiff: “I’m not going to submit to any test

because I’m not drunk and you had no right to do

this, understand?”/TTR

Defendant BROUGHTON: “I have a right to

give you an examination.”"/TTR

Plaintiff: “For what?’/TTR

Defendant BROUGHTON: [Redacted by tran-

scriber]

Plaintiff: “What probable cause?”/TTR

Defendant BROUGHTON: “ — of any illegal

substances of alcohol —”

5) The search followed the arrest and not

under the auspice of any administra-

tive regime.

Defendant BROUGHTON: “the search was

pursuant to the resisting arrest.”/TTR.

6) Plaintiff was subjected to a custodial

interrogation without benefit of his at-

torney and after numerous demands

for one.

Plaintiff: “I’m not going to submit to any test

because I’m not drunk and you had no right to do

this, understand?’/TTR

App. 77

Defendant BROUGHTON: “I have the right to

give you an examination.’/TR

Plaintiff: For what?”/TTR

Defendant BROUGHTON: “~.” The redaction by

inference Defendant BROUGHTON is using the

words “probable cause.”

Plaintiff: “What probable cause?”/TTR

Defendant BROUGHTON: “To see if you are

under the influence — ."/TTR The conversation

continues, Defendant BROUGHTON questions

Plaintiff, and Plaintiff refuses to answer.

Plaintiff: “You get me an attorney.”/TTR

Defendant BROUGHTON refuses and Plaintiff

repeats this demand several times throughout

the custodial interrogation.

7) During the interrogation period, Plaintiff

demands that Defendant BROUGHTON

“Mirandize” him, Defendant Broughton

refuses.

Plaintiff “I want you to advise me of my

rights."/TTR

Defendant BROUGHTON: “I don’t have to ad-

vise you of your rights. .”/TTR

8) Acknowledge that Plaintiff’s hand-

cuff’s were ex» essively tight.

Voice (of a unkne « officer talking to another

unknown officer): “ —- handcuffs — one of the cuffs

was so tight.”"/TTR

App. 78

9) Plaintiff refused to cooperate with the

interrogation; Defendant BROUGHTON

is obviously frustrated and reports his

frustration to presumably a superior.

THE SUPERIOR ORDERS THE BEAT-

ING OF Plaintiff.

Voice (most likely Defendant BROUGHTON): “I

think if he’s under the influence of anything it’s

probably going to be weed. He’s refusing to give

us his home address, “I can’t remember.” What’s

your social security number, “I can’t remem-

ber.”"/TTR

Voice (presumably a superior): “Beat it out of

him.”/TTR

Thereafter, the tape recording obviously termi-

nates for a period of time. -

FOIA Material - SFS Form 12

25. The SF Form 12 provided to Plaintiff under discovery

during the criminal proceeding had been altered. The copy

received under FOIA contained information not previously

known to Plaintiff. The discovery copy had a black rectan-

gular block running the forms lengths positioned in the

upper two-thirds of the form. It appeared that the block

was just bar separating different parts of the form. Such

was not the case.

26. The copy received under the FOIA was remarkably

different because it did not contain the black bar, but

contained instructions to the Defendant police officers.

Comparing the forms side by side, it become apparent that

the black bar was not a black bar at all, but a section of

the form expunged of critical information by a black

App. 79

marker. A marker was used to expunge the following

words: “REFUSALS [relating to refusal to consent to the

voluntary search] will be advised to depart the instal-

lation ...” Thus the expunged information states Defen-

dants had a duty to ask Plaintiff to leave the installation

in the event that consent was denied.

27. The top third of the form contains the following

information in original emphasis:

“Good morning/afternoon/evening sir/ma’am, I’m of

the 95th Security Forces Squadron. I’m conducting Base

Entry Point Checks as authorized by the Installation

Commander ... The purpose of this inspection is to

discover contraband and prevent removal of government

property.... Will you consent to the inspection? I'd

like for you to turn off your ignition, open all compart-

ments (glove box, trunk, etc.) and have all passengers exit

the vehicle, THANK YOU.”

FMIA Material - Defendant’s Police Report

28. The Police Report provided to Plaintiff under discov-

ery during the criminal proceeding had been altered. The

copy received under FOIA contained information not

previously known to Plaintiff. The discovery copy had

parts of Defendant ERICHSEN’s rendition of event

blacked out. The copy received under the FOIA was

remarkably different. The FOIA copy had different sec-

tions of blacked out, indicating that the original does not

contain any blacked out sections. On the discover copy, the

words and phrases expunged were the following:

“_ BROUGHTON took [Plaintiff] into custody

for violation of PC148 (a), obstructing/delaying

law enforcement ... BROUGHTON searched

App. 80

[Plaintiff's] vehicle, incident to his apprehen-

sion.”

However, on the FOIA copy the above words are not

blacked out and clearly material as the arrest for “resting

arrest” preceded the search and the search did not occur

under authority of any administrative regime.

Material Events

29. Plaintiff herein is an Air Traffic Controller and

employee/officer of the Federal Aviation Administration

(FAA), Department of Transportation (DOT), (FAA is one

of several federal agencies that have independent opera-

tions on the enclave, others include NASA, Postal Service

ect., and of the total employed (10173), over seventy- five

percent are non-military or a 3/1 ratio).

30. On or about May 16, 1999, at approximately 09:41

a.m., Plaintiff drove his 1998 Jeep Cherokee and arrived

at the west gate entrance of “Edwards Air Force Base”,

after traveling eastward for approximately nine miles on

Rosamond Blvd, a divided highway of concurrent state and

federal jurisdictions and after passing a large stationary

monument which states in very large letters, “Welcome to

Edward Air Force Base”.

31. This stationary monument is located just outside of

the city of Rosamond, on land managed by the Department

of the Interior and the State of California. After traveling

on the divided highway for approximately nine miles, one

passes a very small and illegible sign approximately five

hundred yards before the entrances of the enclave, in an

area wherein the speed is reducing from 45 mph to 25

mph, which stands far to the right of the divided highway,

App. 81

warning DoD “personnel” that they may be subject to

search. Plaintiff thereafter, approached a stop sign, on the

two lane highway, with a wide open gate, much like the

entrance of a national park, not barbed wired, with mili-

tary personnel sitting in a building with large panes of

glass called the “visitor control center”, drinking coffee or

playing cards.

32. Plaintiff presented his identification badge issued

under authority of the Department of Transportation,

Federal Aviation Administration, showing clearly that

Plaintiff was employed at a location within the interior of

the Federal Enclave to the security police officer who

walked outside of the visitor control center to Plaintiff's

car. The Federal Aviation Administration under Congres-

sional mandate maintains and staffs a facility within the

interior of the enclave and guarantees Plaintiff’s right of

access to its facilities and the protections of all rights

under the Constitution of the United States. The military

by agreement and statute is bound to allow FAA persons

unrestricted access to FAA facilities. (Air Force Regula-

tions state that the Base Commander is responsible to “set

up entry controls to deter unauthorized people from

entering the installation” and to “make sure that these

controls allow authorized personnel to enter and leave the

base efficiently” in support of the “Closed Base” adminis-

trative regime. ).

33. The security police officer later identified as Defen-

dant GOODSON, examined Plaintiff’s government identifi-

cation, as pursuant to the “Closed Base” administrative

regime. Plaintiff’s employer maintains a facility upon

Edwards AFB and Defendant GOODSON accepted Plain-

tiff’s identification as valid, Plaintiff belongs to the enclave.

App. 82

Plaintiff did not enter the base or an area wherein security

was imposed.

34. Defendant GOODSON then ordered Plaintiff to pull

over to the side of the road; Plaintiff asked “Why”. Without

answering, Defendant GOODSON again ordered Plaintiff to

pull over to the side of the road. Plaintiff complied and

parked his vehicle on the south side of the divided highway,

abeam to the visitor control center that was now to the

north and left of Plaintiff’s vehicle.

35. GOODSON, leading two other military security police

personnel later identified as Defendant’s BROUGHTON and

ERICHSEN, walked south crossing the divided highway,

from the visitor control center and approached the drivers’

window of Plaintiff’s vehicle.

36. Plaintiff rolled his window down and asked “May I

help you?” Defendant GOODSON, holding a clipboard

began to read from the attached SFS Form 12, “Good

morning sir, I’m Airman GOODSON of the 95th Security

Forces Squadron. I’m conducting “Base Entry Point

Checks” as authorized by the Installation Commander .. .

The purpose of this inspection is to discover contraband

and prevent removal of government property. ... Will you

consent to the inspection?” (Air Force Regulations delegate

to the Base Commander to determine “when, where, and

how” to implement “Base Entry Point Check” policy).

37. Defendant GOODSON asked Plaintiff’s consent to

authorize a search of his vehicle and evidence such con-

sent by signing a waiver contained on the clip board.

38. Plaintiff denied consent in clear and unambiguous

terms, “No”, and did not sign the waiver or otherwise consent

to be searched either explicitly or implicitly what-so-ever

App. 83

and he informed the law enforcement officers that he could

not be late for work after being told that the search would

take thirty to forty-five minutes.

39. Standard procedures for these unreasonable inspec-

tions require the occupants to open all locked compart-

ments, exit the vehicle while drug dogs are introduced into

the interior of the car and runaround inside, and every

corner of the car inspected. It is common place for the

police to remove door panels as well as open any item in

the car, locked or not, all in the name of looking for drugs

and usually takes in excess of 30-45 minutes.

40. Another component of the “Base Entry Point Check”

is the requirement for it to be “random”, it is most defi-

nitely not. The Base Commander selects the time period

when the inspection regime is implemented, but that

authority is delegated all the way down the chain of

command to the execution level. Weeks may pass between

inspections, but once authorized, the officers have discre-

tion on who is searched (regulations required selection of

every 5th or 8th vehicle, but this is rarely enforced or

supervised thus giving power to the individual officer to

select the randomness as was done in the present matter).

When authorized, certain times of the day are. forbidden

due to volume of traffic to name a few.

41. Defendants BROUGHTON, ERICHSON AND

GOODSON persisted with attempts to persuade Plaintiff

to give permission and allow the voluntary search for ap-

proximately ten additional minutes. The tactics utilized by

Defendants BROUGHTON, ERICHSON AND GOODSON,

included, but were not limited to, intimidations threats,

trickery, lies, deceits, harsh tones and profanity, all in

violation of numerous orders and regulations that require

App. 84

Defendant’s BROUGHTON, ERICHSON AND GOODSON

to cease attempts to gain permission to conduct a Base

Entry Point administrative search once consent is denied. At

one point in their efforts Defendant BROUGHTON ap-

proached Plaintiffs vehicle and shouted “ARE YOU GOING

TO LET US SEARCH THIS F*CKING CAR OR WHAT!”

42. Plaintiff denied consent to the “Base Entry Point

Check” on at least seventeen occasions. These denials

came after Plaintiff had cooperated with and met the

requirements of the “Closed Base” administrative regime.

Defendant GOODSON accepted Plaintiff’s identification

as valid. Plaintiff’s government identification plainly

states that he is authorized to enter the enclave under

authority of the Department of Transportation, Federal

Aviation Administration and “belongs to the enclave”

43. The instruction and statement that Defendants were

reading were contained on their SFS Form 12 “[tl]he

purpose of this inspection is to discover contraband and

prevent removal of government property ... ” and [wiill

you consent to the inspection?, and “REFUSALS ...: will

be advised to depart the installation... ”).

44. The police report filed by Defendants and received by

Plaintiff weeks after the event, acknowledges that Plain-

tiff refused giving permission on at least three occasions

e.g. “AlC GOODSON requested MORGAN’s consent to

inspect his vehicle, which MORGAN denied.”

45. After the officers failed to gain Plaintiff's permission to

grant the voluntary inspection, Defendants BROUGHTON,

superior in rank, ordered Defendants ERICHSEN and

GOODSON to follow him without saying anything further

to Plaintiff.

App. 85

46. Defendants BROUGHTON, ERICHSEN and GOODSON

retreated next to a police cruiser located approximately fifteen

feet behind Plaintiff’s vehicle.

47. Plaintiff observing in his rear view mirror, all three

officers standing in a circle next to the left front tire,

talking among themselves. Plaintiff waiting anxiously and

predicting further harassment prepared his driver’s

license, vehicle registration and insurance card.

48. After approximately five minutes, Defendant

BROUGHTON walked from the police cruiser to the rear

window driver's side of Plaintiff's vehicle. The window was

halfway down and Defendant BROUGHTON leaned to it,

and in an angry voice demanded Plaintiff’s driver’s

license, insurance papers and registration.

49. Plaintiff complied having the documents at the ready,

placed his arm halfway out the window. Defendant

BROUGHTON, standing from behind and with consider-

able for

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