# Petition for Writ of Certiorari — Morgan v. United States (No. 06-87) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1194%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 COPENEONED BUR IO svc vicceccesescsvscesceseoecrossenrvnrnererseees 1 BT LG ASOT 1 CONSTITUTIONAL PROVISIONS AND STATUTES it fy | me DERE NSRAN RR SEM oe RIN opene ee 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 ....... CI a estes casenss evtcechitmonscacucdcuesimncluataisnegs settee 26 29 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. 40 42 44 47 49 52 61 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)............ Vil 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. 1X 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 I, DU va sctccncascevevecreverveensenceresveverersvenses passim FEDERAL RULES ree No cneucnnesniueseucoos 13, 14 ss chcpmiukacdunrunenseveutereennerecs 8 os . sepasipeutenbeenveeveesvavereers 8 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 a pehissvandenvevenvonseneonneennees 28 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. 6 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). 8 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. 9 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 10 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 11 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 12 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 13 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). 14 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 15 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) 16 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 17 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 18 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 19 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). 20 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. 21 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. 22 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). 23 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. 24 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. 25 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.” 26 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 27 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. 28 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 29 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 I 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. II 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). A 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. B 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. C 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.” D 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.’ I 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 II 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 IV 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) V. 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) i 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. ————-—-- ta 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. od a 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. 4 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 defendant [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1194%3A1. Public record. Not legal advice.