#126, Drano Series
       


    The Court's Dismissal of Meuse's
    Bivens Claims
    &
    Brian Meuse's 
    Motion to Reconsider Sua Sponte Dismissal of Bivens Claims
    ~~~~~

    STF (America's Most Wanted) and FOX TV moved to dismiss arguing that they were only reporting what the FBI agents told them and therefore whetherthe FBI was telling the truth or lying, America's Most Wanted and FOX could not be held liable.

    This is known as a fair report privilege.

    Meuse argued that the broadcasters were not reporting NEWS, they were doing a private, feature story. 

    U.S. District Court Judge Edward Harrington made no mention of the privilege in his decision.  He, sua sponte  (on his own spontaneously), decided 

    • that Meuse had pled "Bivens claims" (a claim under   federal, not state, law),
      •  
    • that the U.S. Supreme Court had recently ruled that people could not sue PRIVATE CORPORATIONS for violating a federal law, and 

    • that he therefore had to dismiss Meuse's Bivens or     federal claims.

    Barb, surprised by the left hook, disagreed and moved the judge to reconsider his decision    At the same time, she filed a Notice of Appeal of the dismissal of Meuse's claims against STF/AMW and FOX TV.  Below are both the court's decision and Meuse's Motion to Reconsider.  Barb knew that the other private corporations would come in arguing the grounds supplied by the judge.

    This motion started a firestorm. 

    • STF/AMW and FOX TV opposed the motion to reconsider.   They then had to write about Bivens claims.

    • On behalf of Meuse, Barb wrote a Reply and moved for leave (permission) to file the Reply to that opposition, for she had not had an opportunity to test their theory.  (7/1/04) They had not written about Bivens or federal claims in their original motion.  That had been the judge's doing.
      •    
    • STF/AMW and FOX TV opposed Meuse's motion for leave to reply to them.  This time they attached several documents never-before-seen by Meuse or Barb or the cops (whom Barb had asked in Meuse's criminal trial) or the state-court judges or even the assistant district attorneys.  They were documents only the FBI Special Agents claimed to have seen them. The docs were:
      •  
      • a Criminal Complaint, USA v. Meuse
      • an affidavit by Special Agent Charles P. Kelly
      • an UNsigned federal warrant
        •  
    • Barb said, Holy Cow!  Of course, I want to reply to them, so wrote another Reply to their new opposition and filed it with the necessary motion for leave to file the document  (7/5/04)
      •    
    • and supplemented her opposition (7/7/04)
      •   
    • By golly, STF/AMW and FOX TV did NOT want Barb to discuss the never-before-seen documents.  Given that Barb had determined that those documents were fabricated after the fact, she fought back and again replied and moved for leave to file (7/8/04)

    • One more opposition from STF/AMW and FOX TV was hand-delivered by courier again. (7/9/04)

    • Barb will move to strike their last opposition. 
        •  
      • They tried to prove there was a federal case in October 2000 when there was not, 
        •   
      • they tried to prove there was an affidavit filed in November 2000 when there was not, 
        •   
      • they tried to prove there was a federal arrest warrant in November 2000 when there was not. 

      <>Enough is enough!!!!!!   The lying, the deception, the corruption must stop.  Had the family court acted the many times Meuse asked, this fight today would not  be happening. 

      By the way STF/AMW and FOX TV 's lawyers are with the firm who won the tobacco case and wants $$$$billions of dollars in legal fees from the City of Boston.
    You can read this firestorm in Drano #127, which Barb will html after this one. 
     
    ~~~~~

     
     

    -1-
     

     


     

     
     
     
    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MASSACHUSETTS

    CIVIL ACTION: 

    --------------------------------------------------- 

    Brian J. Meuse 
    Plaintiff 

    v. 

    Susan Pane,
    Rosalyn Stults,
    Lt. Detective Daniel R. Moynihan, in his official and individual capacities, 
    Captain Donald Thompson, in his official and individual capacities,
    City of Haverhill, Massachusetts,
    Louis Freeh, in his official capacity, 
    Charles S. Prouty, in his official and individual capacities, 
    Charles P. Kelly, in his official and individual capacities, 
     FOX Television Stations, Inc.,
    America’s Most Wanted,
    National Center for Missing and Exploited Children,
    Wal-Mart Stores, Inc.
    Defendants 

    --------------------------------------------------- 

    Now comes Plaintiff Brian J. Meuse ["Meuse"] and moves this Honorable Court to reconsider the motions of Defendants Fox Television Stations, Inc. ["FOX" or "FOX TV"], and STF Productions, Inc. ["STF" or "STF/AMW"], to dismiss all counts of the Second Amended Verified Complaint ["Complaint"]. [The arguments below are listed in the margin.]\1/

    FN1

    1. Where this court has original jurisdiction under 28 U.S.C. §1331, the federal-question statute, and where federal law forms an "ingredient" of the action, even if nonfederal issues are also involved, federal jurisdiction exists.
    2. Where there is absolutely no allegation that Meuse violated any federal law and only averments that Meuse was falsely accused of violating a state statute, Meuse’s Complaint was brought under both the color of state law -- not federal statutes -- and the color of the federal constitution.
    3. Federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the Fourth and Fifth Amendments. 
    4. The seminal Bivensaction applies.
    5. Meuse’s claims fall within the two extensions of Bivens jurisprudence in the 30 years between Bivens and Correctional Services v. Malesko.
    6. Private status is not a "special factor counseling hesitation" that would preclude a Bivens claim.
    7. Correctional Services Corp. v. Malesko, a 3-2-4 decision, is not definitive on the issue of whether a Bivens claim is available to a private entity. 
    8. Whether "state action" exists depends on the facts and circumstances of each case.
    9. Where FOX and STF/AMW were federal actors violating both state and federal constitutions, Meuse can maintain both §1983 and Bivens claims against them.
        10. a.     A private corporation that engages in federal action is as accountable 
                as a private corporation that engages in state action.
    10. Where Meuse’s constitutional claims are established, the state law claims are within the pendent jurisdiction of this court.
    As grounds for this motion, Meuse states that this court wrongly focused on the FBI to determine whether the movants FOX and STF were acting under the color of federal or state law. For instance, it can be inferred:

    • that FOX was both a "state" and "federal" actor [discussed infra],\2/ 
          •  
        FN2     "Because the doctrine encompassing both concepts – [federal and state governmental action] -- is commonly known as "state action," we use this term to refer to federal government action of significance in establishing the governmental involvement requisite for the assertion of constitutional rights." Dobyns v. E-Systems, Inc., 667 F. 2d 1219, 1220 n. 1 (5th Cir.1982). Hammons v. Norfolk Southern Corp., 156 F.3d 701, 704 (6th Cir. 1998) (same).

    • that STF was both a "state" and "federal" actor [discussed, infra], 
    • that FBI Agent Prouty was a governmental official using his official position to encourage FOX TV and STF to cooperate with and allow him to give his personal opinions to defame Meuse in order to effect Meuse’s arrest and imprisonment, 
    • that a profitable business relationship existed between the FBI agents, FOX, STF/AMW, NCMEC, and Wal-Mart, and 
    • that conspiring with them in an elaborate scheme were the other natural defendants. 

    This court decided that private entities FOX and STF could not be held liable because (1) "a Bivens claim was not available against a private entity even if that entity is acting under color of federal law" and (2) "Section 1983 applies only to persons acting ‘under color of state law.’"

    Meuse contends (1) that this court did not consider the exceptions available to him in this area of law and (2) that the facts in this case do not lend support to the blanket statements of law cited by this court. The facts supporting Meuse’s contrary position demonstrate the several flaws in the court’s rationale follow: 

    Meuse contends (1) that this court did not consider the exceptions available to him in this area of law and (2) that the facts in this case do not lend support to the blanket statements of law cited by this court. The facts supporting Meuse’s contrary position demonstrate the several flaws in the court’s rationale follow: 

    1. no one – FOX, STF, the FBI agents,\3/ or the other defendants -- has averred, asserted, contended, or alleged that the FBI was acting under federal law;
        2.  
        FN3 Though served, the FBI has neither filed a responsive leading nor returned a waiver.
    2. FBI Agent Prouty\4/ violated constitutional amendments by intentionally executing\5/ a facially invalid state warrant and misrepresenting that he had a federal warrant -- which Meuse and even the defendant Haverhill officers have never seen [Amended Complaint [hereafter "Comp."] ¶¶ 218-219, 223-224; see also ¶¶215, 217, 221-222, Exhs. Y-Z];
      3.  
        FN4  Nowhere in Meuse’s Complaint or Amended Complaints did he aver that Agent Kelly was involved with FOX or STF/AMW. At the time of filing his pleadings, Meuse had only evidence – testimonial and tape – that Agent Prouty was involved with those two entities.

        FN5  "[W]hen a federal official commits an unconstitutional act, he is necessarily acting outside his official capacity." Schowengerdt, 823 F.2d 1328, 1333 (9th Cir. 1987) (internal citations omitted).

    3. the FBI agents were acting under the color of state law, according to Defendant Captain Thompson [Comp. ¶226];\6/
      4.  
        FN6   The captain testified bizarrely that "an unlawful flight is how the FBI enters a case. That gives them the jurisdiction, the authority to enter the case and to conduct a search. Charles Kelly, the FBI agent, obtained the unlawful flight warrant"[Comp. ¶226]. The captain had no proof that the so-called "flight" was "unlawful," and had not seen the warrant. Defendant Detective Moynihan testified that the FBI "put out that [Meuse] was a fleeing felon" [Comp. ¶303].
    4. there was, however, no unlawful flight warrant – at least, it has never ever been seen by anyone known to be involved in the Meuse case anywhere from Massachusetts to Oklahoma, where he was captured;
    5. the FBI agents told FOX and STF/AMW that they wanted, in so many words, "to get this guy Meuse" because he violated a state law, to wit, M.G.L. c. 265, §26A, the parental kidnapping statute,\7/ and was a "fleeing felon" [see note 6 in margin];
      6.  
        FN7 If the FBI agents ordered or recruited FOX and STF/AMW to help capture Meuse without an explanation, FOX and STF/AMW were acting under color of federal authority

        If the FBI agents ordered or recruited FOX and STF/AMW to help capture Meuse with an explanation, FOX and STF/AMW were acting under color of state law. FOX and STF/AMW were publishing not just something the FBI agents told them, but published an exaggeration and enhancements of what the FBI agents told them, to wit, Meuse had violated state law.

    6. no federal statute was implicated, so the alleged flight had to be from state law;
    7. FOX and STF/AMW were working with the FBI agents because they were looking for Meuse for allegedly violating state law, not federal law;
    8. FOX, STF, and FBI agents were defaming Meuse both under federal and state law;
    9. FOX, STF, and FBI agents were falsely accusing Meuse of violating state law, not federal law;
    10. Meuse, in fact, was subsequently tried for a violation of a state law, not federal law;
    11. Agent Prouty appears to have been acting on his own;
    12. Kelly was acting under orders from Prouty, his supervisor and head of the Boston office, Agent Prouty;
    13. FBI agents contacted FOX25News Boston, a subdivision of FOX TV, for the planned interview to be played on the Unsolved Mysteries of New England; 
    14. there has traditionally been a liaison from the federal government to the "America's Most Wanted" television show;\8/ 
      15.  
        FN8 The former government liaison to AMW, William Scigliano, is now the Chief Executive Officer and President of IQ Biometrix, which hosts and manages the AMW website. This is a piece of evidence of the elaborate, on-going scheme from which FOX and STF’s advertising revenues became considerable.
        15.  FOX and STF/AMW perform a job "that was traditionally exclusively performed by the
               government," to wit, the displaying of Wanted posters;
        16.  there is no evidence whatsoever as to the authority under which the FBI agents were working; 
        17.  in his Complaint, Meuse did not invoke any federal statue, but invoked many Amendments to
               the United States Constitution.

    Ironically, federal common law supports Meuse’s Bivens claims against FBI Agents Prouty and Kelly, but, as said supra, the FBI have not returned their waiver and have not filed and served a pleading responsive to Meuse’s Complaint or to either of Meuse’s Amended Complaints. Also ironically, FOX and STF/AMW did not attack Meuse’s Bivens claims in their motions to dismiss. Consequently this is Meuse’s first opportunity to address the issue raised sua sponte by this court. Meuse contends that it would have been more appropriate had the court requested briefs on the issue before dismissing Meuse’s federal claims against FOX TV and STF/AMW and remanding the state claims against the two entities to state court.\9/ At the very least, the pending state claims against FOX TV and STF/AMW must be tried at the same time and in the same court as the claims against all the other defendants.
    FN9 It is anticipated that now the other corporations will seek dismissal on the grounds the court has raised, and if the court allows their motions, Meuse will find himself prosecuting half the defendant co-conspirators in federal court and the other half in state court. Trying the same conspiracy in different courts makes the Local Rule 16.1 certifications into shams, in that the efficient administration of justice in the courts will not be furthered.

    Moreover, even when the claims against them are in state court, the FOX and STF/AMW witnesses will still be summonsed into federal court for depositions and testimony. They are indispensable witnesses, if not parties, to the conspiracies and other claims. Fed.R.Civ.P. 19(a). Even as Meuse’s claims continue in this court against other defendants, FOX’s and STF/AMW’s involvement will not only be undiminished in federal court, it will replicated in state court. The only difference will be that this court will have allowed them to escape accountability and liability in the federal court.

    At the very least, were the Bivens claims to remain dismissed in federal court, the state law actions should remain in federal court to be tried with the remainder of the case.
     

    ARGUMENTS

    1. Where this court has original jurisdiction under 28 U.S.C. §1331, the federal-question statute, and where federal law forms an "ingredient" of the action, even if nonfederal issues are also involved, federal jurisdiction exists.

    Where federal law forms an "ingredient" of the action, even if nonfederal issues are also involved, federal jurisdiction exists. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). Ex parte Young, 209 U.S. 123, 160 (1908) ("If the question of unconstitutionality, with reference, at least, to the Federal Constitution, be first raised in a Federal court, that court . . . has the right to decide it . . . ."); Okpalobi v. Foster, 244 F.3d 405, __ n. 64 (5th Cir. 2001) (en banc) (Benavides, C.J., concurring in part and dissenting in part) (same), citing Osborne [sp], at 846-51. 

    Further, insofar as Meuse’s claims arise under the U.S. Constitution, his causes of action against the private corporations arise under federal law for purposes of § 1331 [Comp. ¶1]: 

    The federal question jurisdiction statute, 28 U.S.C. § 1331, states that "t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1994).
    Sallen v. Corinthians Licenciamentos Ltda, 273 F.3d 14, 2001.C01.0000473 at ¶42 <http://www.versuslaw.com> (1st Cir. 2001) (reversing and remanding on jurisdictional grounds). 
    Under the federal-question statute, 28 U.S.C. § 1331, the original jurisdiction of the district courts is triggered if the action "aris[es] under the Constitution, laws, or treaties of the United States." All that is required is the federal question. Osborn v. Bank of United States, 22 U.S. (9 Wheat) 738, 822 (1824) (Marshall, C.J.); . . .
    Ortega v. Star-Kist Foods, Inc., No. 02-2530, 2004.C01.0000231 at ¶61 < http://www.- versuslaw.com> (1st Cir. 2004).

    Thus, where this court has jurisdiction [Sallen, infra, 2001.C01.0000473 at ¶41, citing Osborn, 817]; and where federal common law supports Meuse’s Bivens claims against the private corporations under the prong addressing the deprivation of federal constitutional rights, the claims against FOX and STF/AMW must remain in federal court.

    Moreover, given that FOX and AMW (a) were motivated by the charisma of money and mystique of power,\10/ (b) cooperated with the FBI agents to deprive Meuse of both his federal and state constitutional rights, and (c) were federal actors and/or agents of Prouty and Kelly, Meuse’s Bivens claims are sustainable against those entities. A Bivens remedy "exists solely as a response to the problem of unconstitutional federal action." Kauffman, 28 F. 3d 1223, 1226 (D.C.Cir. 1994). 

    FN10The headiness of the FBI’s power is implied in Bivens: "The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well. SeeWeeks v. United States, 232 U.S. 383, 386 (1914); Amos v. United States, [255 U.S. 313, 37 (1921)].... ‘In such cases there is no safety for the citizen, . . .’" Bivens. 403 U.S. at 394.
    To dismiss the federal claims against FOX and STF/AMW would leave the FBI agents vulnerable and the private entities not vulnerable to a Bivens claim. Rephrased, the dismissal of the Bivens claims against FOX and STF/AMW leaves the FBI agents the scapegoats of a conspiracy to defame and deprive Meuse of his liberty interests, i.e., cause his false arrest and imprisonment, et cetera.\11/ And rephrasing further, Meuse contends that given the facts and circumstances of this case, his Bivens claims also fall into the exceptions the Supreme Court to this day recognizes.
    FN11  Letting FOX and STF/AMW escape liability for Meuse’s Bivens claims, also leaves the natural defendants – Pane, Stults, and the Haverhill Police Captain and Detective – holding the bag for the tragic farce they began.


    2. Where there is absolutely no allegation that Meuse violated any federal law and only averments that Meuse was falsely accused of violating a state statute, Meuse’s Complaint was brought under both the color of state law -- not federal statutes -- and the color of the federal constitution.

    In determining a motion to dismiss, the court may draw reasonable inferences from well-pleaded facts, and those reasonable inferences must be construed in favor of the plaintiff. Here, if the FBI agents were not mentioned at all in the Complaint, there would be no vestige of any fact from which this court could infer that the Complaint was brought under color of federal statutes (as opposed to the federal constitution). Here, the FBI agents were called in by a member of the Haverhill Police Department (seeComp. ¶226),\12/ At that point, the FBI agents were acting under color of state law and under color of state authority. No federal authority even knew of Meuse. No federal law had been violated.

    FN12 Paragraph 226 of the Complaint memorializes Captain Thompson’s testimony: "an unlawful flight is how the FBI enters a case. That gives them the jurisdiction, the authority to enter the case and to conduct a search. Charles Kelly, the FBI agent, obtained the unlawful flight warrant."
    Subsequently the FBI team, giving the false impression that they were acting under federal authority, acted as a messenger for the Haverhill Police Department, Susan Pane [Comp. ¶¶295, 297], and Rosalyn Stults [Comp. ¶284], and contacted FOX and STF/AMW (as well as NCMEC and Wal-Mart). There are two inferences that can be drawn here, both, however, in Meuse’s favor. 

    The first is that the FBI recruited the assistance of FOX and STF/AMW to capture Meuse. The second inference is that FOX and STF/AMW were in business with the FBI – the deal being that the FBI would provide FOX and STF/AMW with "sexy"\13/ source material for their television shows, namely, America’s Most Wanted and Unsolved Mysteries, and for the AMW Wanted poster website. Whichever inference is preferred by the court does not change the color of law under which FOX and STF/AMW were acting.

    FN13 The stories FOX TV and STF/AMW wanted and still want are those that would appeal to the prurient interests of their audiences. 
    Given that the FBI agents were but acting under the color of state law, so were FOX and STF/AMW when they conspired with the FBI agents to capture Meuse.
     

    3. Federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the Fourth and Fifth Amendments. 

    First, the defendants whose motions were being decided were FOX and STF, not the FBI. Second, in Bell v. Hood, 327 U.S. 678, 684 (1946), the Supreme Court decided for the first time that private parties could recover money for damages suffered as a result of FBI agents for violating the parties’ Fourth and Fifth Amendment rights.

    . . . . The Supreme Court [held] that because the complaint squarely sought recovery on the ground that the agents violated the Constitution, federal question jurisdiction existed regardless of whether or not there was a federal cause of action or whether the complaint also alleged a state law claim.*fn3 The Court stated the jurisdictional rule as follows:  
    "(W)here the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions . . ., must entertain the suit. . . .
    Local Division No. 714 v. Greater Portland Transit District of Portland, 589 F.2d 1, 5-6 (1st Cir. 1978). "[T]he claim for damages based on fourth and fifth amendment violations sufficed to establish federal question jurisdiction, even though Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), had not yet been decided." Local, at 6 n.3, citing Bell. 
    . . . where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.*fn6 And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.*fn7 Whether the petitioners are entitled to recover depends upon an interpretation of 28 U.S.C. §41(1) and on a determination of the scope of the Fourth and Fifth Amendments' protection from unreasonable searches and deprivations of liberty without due process of law. Thus, the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the District Court has jurisdiction.
    Bell, 327 U.S. at 684-685 (citations omitted). Section 41(1) of Title 28 "authorizes the federal district courts to try ‘suits of a civil nature’ where the matter in controversy ‘arises under the Constitution or laws of the United States,’ whether these are suits in ‘equity’ or at ‘law.’" 

    Meuse’s case against FOX and STF/AMW arises under the Constitution or laws of the United States, as well as out of common law. See also Issue 1, supra.
     

    4.     The seminal Bivens action applies.

    The Court synopsized Bivensin Correctional Services Corporation v. Malesko, 534 U.S. (Cal.) 61 (2001), a 3-2-4 decision with a vigorous dissent: "The District Court treated the complaint as raising claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), in which this Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights" [Correctional Services, at 61 of Court Syllabus], and "such private entities should be held liable under Bivens to accomplish the important Bivens goal of providing a remedy for constitutional violations." Id. The Supreme Court approved Bivens actions for violations of the Fourth Amendment. Bivens, 403 U.S. at 397.

    "The Court's authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in its general jurisdiction to decide all cases arising under federal law." Correctional Services, at 61. But the "Bivens' limited holding may not be extended to confer a right of action for damages against private entities acting under color of federal law." Id. 
     

    5. Meuse’s claims fall within the two extensions of Bivens jurisprudence in the 30 years between Bivens and Correctional Services v. Malesko.

    When Correctional Services v. Malesko, 534 U.S. 61 was decided 3-2-4, with a vigorous dissent, in 2001, the Supreme Court had extended its holding only twice in the 30 years of Bivens jurisprudence. The first time was in Davis v. Passman, 442 U. S. 228 (1979). There, the Supreme Court "provide[d] a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct," and recognized an implied damages remedy under the Due Process Clause of the Fifth Amendment. Correctional Services, 62 and 70 (emphasis supplied), citing Davis, 442 U. S. at 245. See also id. at 248-49. The Meuse case against the FBI agents, at the very least, falls into this category.

    The second time was a year later, in Carlson v. Green, 446 U. S. 14 (1980). There, the Court "provide[d] an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally," and recognized a remedy under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Correctional Services, at 61-62 and 70 (emphasis supplied).\14/

    FN14 A Bivens cause of action may be defeated if "special factors counsel [] hesitation in the absence of affirmative action by Congress," Bivens,403 U.S. at 396; Carlson, 446 U.S. at 18, or if "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Id. at 18-19 (citing Bivens,403 U.S. at 397). Schowengerdt., 823 F.2d at 1332. 
    The courts in both Davis and Carlson, recognized claims for money damages against federal officers who abused their constitutional authority. "For Davis, as for Bivens, it is damages or nothing." 442 U.S., at 245. In Carlson, the Court reasoned that a suit under the Federal Tort Claims Act ["FTCA"] against the United States was insufficient to deter the unconstitutional acts of individuals, specifically the individual prison officials. 446 U.S., at 18-23. The Court also concluded that it was "crystal clear" that Congress intended the FTCA and Bivens to serve as "parallel" and "complementary" sources of liability. Correctional Services, at 68, citing Carlson, 446 U. S., at 19-20.\15/ "The purpose of Bivens is to deter individual federal officers from committing constitutional violations." Id., at 70. 
    FN15 "Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy." Carlson, 446 U.S. at 21.
    Later, the Supreme Court approved a Bivens claim for the First Amendment. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir. 1987), citing Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987).

    Given that Meuse, like Davis and Bivens, lacks any other remedy for the alleged constitutional deprivation by FOX and STF/AMW, it is "[his] damages or nothing." Correctional Services, at 72. His remedy, then, is to have FOX TV and STF/AMW deemed vulnerable to liability as well. Bivens, 403 U.S. at 397.\16/ Symmetry would then be achieved. Cf. Correctional Services, at 81 (Justices Stevens, Souter, Ginsburg, and Breyer, dissenting).

    FN16   "Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment". Bivens, 403 U.S. at 397. See also Bivens at 399. This is applicable also to Meuse. See Comp. ¶399, where Meuse pled that his Fourth, Fifth, and Fourteenth Amendment rights had been violated, and Meuse’s jurisdictional statement at Comp. ¶1.
    Meuse’s position is not without some support: As in Carlson, where the violation was deemed to be committed by a federal agent -- a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government, Meuse’s constitutional deprivations can be deemed to have been committed by FOX TV and STF/AMW, just as if they were federal agents – particularly because of the closeness with which they traditionally work with the FBI and its agents. Correctional Services, at 76 (dissent).\17/ "[T]he government ‘normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].’" Gerena v. Puerto Rico Legal Services Inc., 697 F.2d 447, 449-450 (1st Cir. 1983) (emphasis supplied).
    FN17  Meuse could have named as John Does the individuals at FOX and AMW who cooperated and even conspired with FBI Agent Prouty, but the long-lasting relationship between those private corporations and the FBI and its agents has been become a part of policy and practice, and not the result of the action of a particular set of individuals employed by those corporations when Meuse was defamed and his constitutional rights violated. No matter who the individuals were, the policy and practice of cooperation and conspiracy with the FBI and its agents would have continued.
    Here, given the relationship between the FBI and FOX and STF/AMW, it may be reasonably concluded that FOX and STF/AMW perform a job "that was traditionally exclusively performed by the government," to wit, the displaying of Wanted posters." Gerena, 697 F. 2d at 451. See Dobyns v. E-Systems Inc., 667 F.2d 1219, 1227 (5th Cir. 1982) ("Private fulfillment of such a governmental role constitutes state action").
     

    6.  Private status is not a "special factor counseling hesitation" that would preclude a Bivens claim.

    In Ginn v. Mathews, 533 F.2d 477 (9th Cir. 1976), the "plaintiffs, invoking jurisdiction under section 1331 [as did Meuse in the instant case], sought damages for violations of their constitutional rights by federal actors. Such an action is, by definition, a Bivens action."\18/ Schowengerdt, infra, at 1337 n. 13, quoting Ginn, at 480 n. 4. The court in Ginn also found the private corporation liable for constitutional violations.

    FN18   "Although the Ginn court did not use the words, ‘Bivens action’ the court made clear that it was ‘consider[ing] the question of "state" action in its broad sense as involving both state and federal participation.’" Schowengerdt, infra, at 1337 n. 13, quoting Ginn, at 480 n. 4.
    In Bush v. Lucas, 462 U.S. 367, 385 (1983), the Court wrote of a "special factor counseling hesitation" that would preclude a Bivens’ claim. In Bush, an example of such a special factor was, in an illegal demotion context, "an elaborate, comprehensive [statutory] scheme that encompasse[d] substantive provisions forbidding arbitrary action by supervisors and procedures administrative and judicial -- by which improper action may be redressed." Schowengerdt, at 1339, quoting Bush, at 385. Such a scheme does not exist in the instant case. No statutory scheme exists in Meuse.

    In Reuber v. United States, 750 F.2d 1039, 1058 (D.C. Cir. 1984) (opinion of Wald, J.), the court held that "private status . . . [,] even if deemed a special factor, is not alone sufficient to counsel hesitation in implying a damages remedy when the private party defendants jointly participate with the government to a sufficient extent to be characterized as federal actors. . . ." At 1063, Justice Bork, concurring in part, stated that "a private person whose conduct is allegedly instigated and directed by federal officers should be treated as a federal agent" and "be subject to Bivens liability."\19/ See Schowengerdt, infra, at 1338.

    FN19  The Fifth and Sixth Circuits were in accord: Dobyns v. E-Systems, Inc.,667 F.2d 1219 (5th Cir. 1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th Cir. 1975) (per curiam).
    In Schowengerdt v. General Dynamics Corp., 823 F. 2d 1328 (9th Cir. 1987) (reversed and remanded in part), "[t]he ‘private’ defendants, Kessel and General Dynamics, argue[d] that a Bivens remedy is not available against them since they [were] not government employees even though they may [have been] ‘federal actors.’" Schowengerdt, at 1337. The court disagreed: the private status of a federal actor was not a "special factor" and would not preclude a Bivens action. Schowengerdt, at 1337. First, the court found "Kessel and General Dynamics were federal actors." Id. "Second, . . . Kessel jointly participated with the federal defendants in searching Schowengerdt's office and seizing his property. Such joint participation ‘would establish both state action and action under color of state law.’. . . The term ‘state’ as used here encompasses federal action taken under the color of federal law. . . ." Id. (internal citations omitted).\20/,\21/ 
    FN20  "[W]hen a federal official commits an unconstitutional act, he is necessarily acting outside his official capacity." Schowengerdt, at 1333 n.3 (internal citations omitted).

    FN21  "Under the ‘joint action’ test, a private party is acting under color of state (or federal) law if ‘he is a willful participant in joint action with the [government] or its agents’" Schowengerdt, at 1339 n. 17, quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980). .

    In Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983), the court declared that "[t]he existence of governmental action is a question of fact." Schowengerdt, at 1338. 
    Because, at this stage of the case, we must accept the plaintiff's factual allegations as true, we do not look beyond the complaint. Schowengerdt's complaint alleges facts that, if true, support a finding of government action, . . .but the final determination of this issue must be made by the district court on remand. See Reuber, 750 F.2d at 1054-55. If the district court finds the governmental action requirement satisfied, defendants Kessel and General Dynamics may not rely on their private-party status as a basis for dismissal.
    Schowengerdt, at 1338-1339 (emphasis supplied). 
     

    7.          Correctional Services Corp. v. Malesko, a 3-2-4 decision, is not definitive on the issue of whether a Bivens claim is available to a private entity. 

    Prior to our recent decision in FDIC v. Meyer, 510 U. S. 471 (1994), the Courts of Appeals had consistently and correctly held that corporate agents performing federal functions, like human agents doing so, were proper defendants in Bivens actions.\22/

    FN22  "Bivens liability does not run against a federal agency, but only against individual federal agents." Kauffman, infra, citing Meyer, supra.

     Correctional Services, at 77 (dissent). Relying on Meyer’s progeny, which includes Correctional Services, this court (Harrington, J.) held that "a Bivens claim is simply not available against a private entity even if that entity is acting under color of federal law." However, although the Supreme Court has, ironically, vacillated on this issue and is out of synch with the majority of the circuit courts of appeal, the Court in Correctional Services did leave in place wiggle room, the exceptions to the "preclusionary" rule: If a plaintiff has a nonexistent cause of action or has no alternative remedy for a constitutional wrong, a Bivens claim is not to be dismissed. The Court also left in place the diverse tests, of which Meuse passes several, as well as the "special factors counseling hesitation" test, and there is no such special factor existing in this case. These tests are grounded on facts. When facts are in dispute, discovery, at the very least, is warranted.\23/
    FN23  There is a set of unique facts in the instant case. FOX and STF/AMW appear to have a symbiotic relationship with the FBI. They have as yet neither admitted nor denied that relationship. If proven to be true, FOX and AMW are federal agents or actors. Yet, the primary wrong done Meuse by them is defamation, which is a common-law tort. Other wrongs were indirectly committed – to wit, the false arrest and imprisonment, the assaults, the batteries. And, of course, the violations of Meuse’s federal constitutional rights – his liberty interest, his right not to be falsely charged with criminal wrongdoing. The full scope of FOX TV’s (FOX25News) and STF’s (AMW) involvement and motives has not yet been fully explored.
    Even Correctional Services, at n. 9, lists a half-dozen post-Meyer cases support of Meuse’s position, listed infra in ascending chronological order, and these cases list even others that hold positions contrary to Meyer and Correctional Services:

    1. Yiamouyiannis v. Chemical Abstracts Serv., 521 F. 2d 1392 (6th Cir. 1975);\24/
      2.  
        FN24      In Yiamouyiannis, the Sixth Circuit permitted a Bivens claim against a private corporation. Specifically, the Yiamouyiannis complaint, alleging that because of the speeches plaintiff made, Department of Health, Education and Welfare coerced his employer to fire him, stated a Bivens-type damages action for violation of first amendment rights."
    2. Dobyns v. E-Systems, Inc., 667 F. 2d 1219 (5th Cir. 1982);
      3.  
    3. Gerena v. Puerto Rico Legal Servs., Inc., 697 F. 2d 447 (1st Cir. 1983)\25/ (although the Gerena court found that the defendants were not federal actors, that court did not rely on Fletcher v. Rhode Island Hosp. Trust Bank, 496 F.2d 927, 932 n.8 (1st Cir.), cert. denied, 419 U.S. 1001 (1974), which had been relied on by this court in granting the motions by FOX TV and STF/AMW to dismiss Meuse’s complaint. Gerena, also a First Circuit case, ignored Fletcher, because – evidently -- the First Circuit panel in Fletcher had found without explanation that there is no cause of action against private parties acting under color of federal law. See Gerena, at 449. 
        4.  
        FN25  Gerena, at 450: "the party seeking to establish that action of a private party violated the Constitution [under a 'nexus' theory] must be able to point to the specific act or actions of the government which in fact motivated the private action."
    4. Reuber v. United States, 750 F. 2d 1039 (D.C. Cir. 1984)\26/; 
      5.  
    FN26 "[A] panel of this court . . . once permitted a Bivens action to be brought against a private corporation whose agents had allegedly taken actions at the behest of, and in conjunction with, the federal government."

    Kauffman, infra at 1226, citing Reuber, 750 F.2d 1039, 1053-60 (opinion of Wald, J.); id. at 1063-65 (opinion of Bork, J.).

    Even the most thorough of these opinions, ..., focused entirely on the question of whether Bivens could be extended from suits against conventional federal agents to ones against ostensibly "private" parties who are alleged to be federal actors--a topic of some controversy, . . .

    Kauffman, at 1226 (internal citations omitted),

    Having answered that question in the affirmative, Reuber and its fellow cases simply assumed without analysis that private entities were no less susceptible to Bivens actions than private individuals. See, e.g., Reuber, 750 F.2d at 1058 (Wald, J.) ("private status ... is not alone sufficient to counsel hesitation in implying a damages remedy").

    Kauffman, at 1226. "But whatever its intrinsic appeal," the court in Kauffman concluded, "Reuber 's assumption does not survive Meyer." Kauffman, at 1226.

    According to Mr. Kauffman's own affidavit, the School was established primarily to serve the federal government's interest in meeting the educational needs of its diplomats' families; it is this same interest that explains the federal government's continuing grants to the School. See 22 U.S.C. § 2701. If funds are diverted from the School's coffers to liability payments, the government presumably will have to choose between allowing its interest to be served less well and spending more money to make up the shortfall--precisely the same choice that it would confront if Bivens actions could be brought against federal agencies. In other words, diversion of resources from a private entity created to advance federal interests has effects similar to those of diversion of resources directly from the Treasury.

    Kauffman, at 1227-1228.

    Clearly the unattractive grounds upon which the Kauffman decision rests are not sustainable in our system of justice. The paramount basis of the decisions of our courts is not the cost to the government if a court found for one an aggrieved plaintiff, but according to the constitutional rights of the aggrieved plaintiff. To oppress the governed is an improper basis to contain the costs of governing.
    1. Schowengerdt v. General Dynamics Corp., 823 F. 2d 1328 (9th Cir 1987);\27/ 
     
    FN27 See note 6, supra.

    1. Kauffman v. Anglo-American School of Sofia, 28 F. 3d 1223 (D.C.Cir. 1994)\28/. This court has "overruled its Circuit precedent in light of Meyer and held that Meyer dictates the exclusion of all corporate entities from Bivens liability." Correctional Services, at 81 n. 9 (dissenting footnote).
        2.  
        FN28 Kauffman,infra at 1226-1228. The discussion of Bivens liability does not end in Kauffman
    2. Hammons v. Norfolk Southern Corp., 156 F. 3d 701 (6th Cir. 1998),\29/ Here, the court explained that the conclusion of Meyer is in no way compelled in other cases.
          3.  
          FN29 "Hammons asserts that the lower court's reliance on Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471 (1994), was misplaced inasmuch as that decision did not address the specific issue of whether a Bivens action can be maintained against a private corporation. We agree." Hammons, 156 F.3d at 705.
        See Correctional Services, 81 n. 9 (dissenting footnote).. According to Hammons, at 705, "Nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action. Moreover, the reasons given by the Supreme Court for barring a Bivens claim against a federal agency do not apply to private corporations."

    While the Court in Meyer focused on the deterrence goal, this clearly is not the only goal underlying a Bivens claim. In allowing a plaintiff to recover damages for injuries inflicted by federal agents in violation of the plaintiff's Fourth Amendment rights, the Bivens Court took a range of policy considerations into account. It seemed to focus, however, on the history of the federal courts and their role in protecting rights under the Constitution. It noted that "`where federally protected rights have been invaded, it has been the role from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.'" Bivens, 403 U.S. at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). The Court also noted that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interest in liberty." Id. at 395. Furthermore, the Court recognized that "`[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'" Id. at 397 (quoting Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803)).
    Hammons, 156 F.3d at 705-706.

    As such, we believe that the primary goal of Bivens was to provide a remedy for victims of constitutional violations by federal agents where no other remedy exists, regardless of whether the official would be deterred in the future from engaging in such conduct. 
    Hammons, 156 F.3d at 706.

    . . . Damages as a traditional form of compensation for invasion of a legally protected interest may be entirely appropriate even if no substantial deterrent effects on future official lawlessness might be thought to result. Bivens, after all, has invoked judicial processes claiming entitlement to compensation for injuries resulting from allegedly lawless official behavior, if those injuries are properly compensable in money damages. I do not think a court of law - vested with the power to accord a remedy should deny him his relief simply because he cannot show that future lawless conduct will thereby be deterred.
    Hammons, at 706, quoting Bivens at 407-08 (Harlan, J., Concurring). The court in Hammons agreed, "recognizing the importance of deterring the individual wrongdoer, believe[d] that the importance of remedying constitutional violations far exceeds any deterrence goal -- victims are entitled to relief regardless of whether future lawless conduct is deterred."*fn9\30/
    FN30     The original note 9 reads in relevant part: See Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692, 698 (6th Cir. 1996) (holding that "a party not a public official may be liable under Bivens, but not entitled to qualified immunity because the reason for affording qualified immunity to a public official does not apply to a government actor who is not a public official").
    Finally, Meyer's second basis for barring a Bivens action against a federal agency, the potentially enormous financial burden on the Government, is not applicable to the case at hand. Allowing a Bivens claim against a private corporation does not implicate "federal fiscal policy," where, as here, the federal purse is not involved. See generally United States v. Standard Oil Co. of Cal., 332 U.S. 301, 311 (1947).
    Hammons, at 706 (emphasis supplied). 
     

    8.   Whether "state action" exists depends on the facts and circumstances of each case.\31/

    FN31   "Because the doctrine encompassing both concepts [state action and federal action] is commonly known as "state action," we use this term to refer to federal government action of significance in establishing the governmental involvement requisite for the assertion of constitutional rights." Dobyns, at ¶59 n. 1. The reference to "federal action" as "state action" is, in fact, common to the overwhelming majority of cases discussing both concepts. E.g., Hammons v. Norfolk Southern Corp., 156 F. 3d at 704, too, refers to "federal action" as "state action."
    Deciding on a case-by-case basis whether a Bivens claim may be maintained against a private corporation that engages in federal action causes inconsistencies in the circuits. That inconsistency or what appears to be vacillation makes the best case for providing remedies as prescribed in the constitution, i.e., in a fundamentally fair, principled manner. For instance, the court in Bivens heralded the diverse conclusions of the court in Borak, infra: 
    Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute. . . . *fn4

    Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action. There we "implied" -- from what can only be characterized as an "exclusively procedural provision" affording access to a federal forum, . . .
    The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction, . . . nor did the Borak Court purport to do so. . . . The notion of "implying" a remedy, therefore, as applied to cases like Borak, can only refer to a process whereby the federal judiciary exercises a choice among traditionally available judicial remedies according to reasons related to the substantive social policy embodied in an act of positive law. . .
    Bivens, 403 U.S. at 402 (internal citations omitted).
    [R]elying largely on earlier decisions implying private damages actions into federal statutes, . . . ("The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action"), and finding "no special factors counseling hesitation in the absence of affirmative action by Congress," . . . , we found an implied damages remedy available under the Fourth Amendment.*fn3

    *fn3 Since our decision in Borak, we have retreated from our previous willingness to imply a cause of action where Congress has not provided one. . . . Just last Term it was noted that we "abandoned" the view of Borak decades ago, and have repeatedly declined to "revert" to "the understanding of private causes of action that held sway 40 years ago." . . .
    Correctional Services, at 67 (internal citations omitted). The problem with Borak, according to Alexander v. Sandoval, 532 U. S. 275 (2001), arose after Title VI of the Civil Rights Act of 1964 was enacted and set forth a duly ratified statutory scheme that was to be followed in employment-discrimination cases. 
    . . . we have held that "[t]he question whether Congress ... intended to create a private right of action [is] definitively answered in the negative" where "a statute by its terms grants no private rights to any identifiable class." 
    Gonzaga University v. Doe, 122 S.Ct. 2268, 2275 (2002), quoting Touche Ross & Co. v. Redington, 442 U. S. 560, 576 (1979).

    Thus in the Bivens cases, it only appears that Borak fell from favor and florescence into disfavor and decay within a short period of time. It did not. It had simply been replaced by a duly-ratified statutory scheme.Therefore the conclusion is inescapable, as Meuse contends, that the two exceptions provided in Bivens decades ago are still fine law and this and the High Court shall not abandon it. 

    The most logical and persuasive argument appears in Hammons:

    Like the Lugar and Adickes Courts,\32/ this Court is primarily concerned with remedying constitutional deprivations. Accordingly, we find no valid reason to treat corporations that engage in federal action differently than corporations engaging in state action, particularly where, as here, the litigation involves a matter of corporate policy. 

    Hammons, 156 F.3d at 708. 
    FN32   Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,(1982). Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
     
    9. Where FOX and STF/AMW were federal actors violating both state and federal constitutions, Meuse can maintain both §1983 and Bivens’ claims against them.
    a.  A private corporation that engages in federal action is as accountable as a private corporation that engages in state action.
    There is, of course, no rational excuse for a "private corporation that engages in federal action" not to be as accountable as a private corporation that engages in state action." 
    A person "subjects" another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an affirmative act which he is legally required to do, that causes the deprivation of which complaint is made. [Citation omitted.] Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor know or reasonably should know would cause others to inflict the constitutional injury.
    Springer v. Seaman, 821 F.2d 871, 879 (1st Cir. 1987). A corporation is a person for purposes of §1983. See Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).\33/
    FN33
    By definition in G.L. c. 4, § 7, twenty-third, the word "person" for purposes of construing the general laws "include[s] corporations, societies, associations and partnerships" and, therefore, does not describe the Commonwealth or its subdivisions. Howard v. Chicopee, 299 Mass. 115, 121 (1937). Hansen v. Commonwealth, 344 Mass. 214, 219 (1962), and cases cited.
    Kilbane v. Secretary of Human Services, 14 Mass.App.Ct. 286, 287 (1982).
    Where the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U. S. 500 (1988). The record here would provide no basis for such a defense.
    Correctional Services, at 74 n. 6. 

    There is also no basis for this court to invoke and compare the instant Meuse case with Chatman v. Hernandez, 805 F.2d 453 (1st Cir. 1986). Chatman sued the military, not a private corporation. It is too dissimilar to the instant case for comparative purposes. For instance, the Court in Chatman noted that "Chatman's alleged constitutional violations could have been brought under the Bivens’ rationale, but for those ‘special factors’" [Chatman, at 456], which were (1) "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations" [id.] and (2) the military has its own system of justice. Id.

    Nevertheless, the court in Chatman held true to the core of Bivens: 

     In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court authorized a suit for damages against federal officials whose actions violated an individual's constitutional rights, even though Congress had not expressly authorized such suits. 
    Chatman, 805 F.2d at 455-456.
    Rogers v. Vicuna, 264 F.3d 1 (1st Cir. 2001), also cited by this court (slip op. at 3), is dissimilar to the instant case. There, in Rogers, the court, after finding that Rogers’ cars were not stolen, granted the federal government summary judgment on Rogers’ claim under Bivens because, unlike Meuse, "Rogers had failed to demonstrate any constitutional violation . . . or any impropriety [by] the IRS agents." Id. at 4. The facts in Rogers, the court found, did not "rise to the level of a constitutional violation." Id. at 5 (citation omitted). 
    "The complaint reveals only that [the IRS agents] entered Rogers's property without a warrant or other document issued by a court authorizing that entry. . . . however, the mere absence of a warrant is not automatically indicative of an impermissible search." 
    Id. And finally, 
    The touchstone of [Rogers's] claims is whether Rogers had a reasonable expectation of privacy in his driveway. The Supreme Court has continually held that "what a person exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). In the context of IRS property seizures, the Court has stated that warrantless seizures of vehicles parked on public streets, parking lots or other open places pursuant to tax liens are not a violation of the Fourth Amendment's prohibition on unreasonable seizures. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351-52 (1977).
    Id. at 5. And the First Circuit concluded that "Rogers [did] not have a reasonable expectation of privacy in [his] driveway that was visible to ‘the occasional passerby.’" Id., quoting United States v. Hensel, 699 F.2d 18, 32 (1st Cir.), cert. denied, 464 U.S. 823 (1983), and citing United States v. Roccio, 981 F.2d 587 (1st Cir. 1992) (where IRS agents entered the private property of Roccio’s girlfriend and seized Taxpayer Roccio's vehicle pursuant to a levy), for the further proposition that IRS agents, "‘needed no warrant to seize the automobile.’" Rogers, at 5, citing Roccio at 591. 
    A warrant was not required because the taxpayer's vehicle "was clearly visible from the street on an unobstructed driveway." [Roccio at 591.] In order to state a Fourth Amendment claim, therefore, Rogers needed to plead facts that would distinguish the IRS agents' seizure of his vehicles from the seizure in Roccio. His complaint, however, is devoid of any such assertion.
    Rogers, at 5. 

    Unlike the vehicles in Rogers and Roccio, Meuse was not was clearly visible from a street on an unobstructed driveway. Meuse was asleep inside his house in Oklahoma when Oklahoma police officers, executing an invalid Massachusetts warrant, entered his residence in SWAT-team style as a result of a Wanted poster falsely alleging that Meuse was a fugitive unlawfully fleeing to avoid prosecution. 

    Unlike Rogers, Meuse did, indeed, state deprivations of his federal constitutional rights by the FBI agents, FOX, and STF/AMW. Meuse also did, indeed, state deprivations of his State constitutional rights.Bivens undisputedly offers to Meuse redress for constitutional violations under color of federal law, and §1983 undisputedly offers to Meuse redress for constitutional violations under color of state law. Rogers, at 4, citing Bivens and Day v. Mass. Air Nat’l Guard, 167 F.3d 678, 683 (1st Cir. 1999).

    Thus, where Meuse did cite and the district court did understand that Meuse did plead the appropriate constitutional amendments on which Bivens relies, Meuse has made out a legitimate claim against the FBI. BUT, as Meuse points out, the motions being decided are not those of the FBI agents or the U.S. government but of FOX and STP.
     

    10. Where Meuse’s constitutional claims are established, the state law claims are within the pendent jurisdiction of this court.

    "The state law claims would be within the pendent jurisdiction of the federal court if the constitutional claims were established." Dobyns v. E-Systems Inc., 667 F.2d 1219, 1221 n. 4 (5th Cir. 1982), citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

    WHEREFORE, Plaintiff Brian Meuse prays this Court allow this motion.

                                                       Respectfully submitted,
                                                       Brian J. Meuse,
                                                       By his attorney, 

                                               /s/Barbara C. Johnson <barbaracjohnson@worldnet.att.net>
    19 June 2004                                                       Barbara C. Johnson, Esq.,
                                                                 6 Appletree Lane 
                                                                 Andover, MA 01810-4102
                                                                     978-474-0833
                                                                                                     
                                                       

    AFFIDAVIT

    I, Barbara C. Johnson, Esq., hereby depose that all statements and observations I attribute to myself saying or observing are true, and all other statements are true upon information and belief.

    Sworn under the pains and penalties of perjury.

                                           /s/Barbara C. Johnson <barbaracjohnson@worldnet.att.net>
    19 June 2004                                                       Barbara C. Johnson, Esq.,