Wednesday, July 30, 2014

The Security Forces Member, the Facebook Page and the 4th Amendment

This post examines an from the U.S. Air Force Court of Criminal Appeals in what seems  to have been a prosecution of Senior Airman Aaron M. Buford.  U.S. v. Buford, 2014 WL 2039102.  I say “appears to have been” because the opinion does not explicitly say Buford was prosecuted.  What it does say is that the evidence at issue in the opinion was “the primary source of evidence showing [Buford] wrongfully committed indecent conduct and wrongfully received and possessed child pornography in violation of Articles 120 and 134, [Uniform Code of Military Justice], 10 U.S. Code §§ 920, 934." U.S. v. Buford, supra.
Since the issue is whether the military judge erred in granting Buford’s motion to suppress evidence on which the prosecution apparently depended, the court begins by explaining that in March of 2012, Buford’s wife, “AB”,
found a `fake’ Facebook account that was associated with [Buford’s e-mail address. AB identified the page as a `fake’ account because the name and photo associated with the account were not of [Buford], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.

On or about 17 May 2012, Airman First Class (A1C) RM was an active duty Security Forces member who was at the home of CH. AB was also present in the home, but [Buford] was not. At some point that evening, A1C RM noticed AB was distraught while she was looking at the screen of her Dell laptop. AB, knowing RM was a Security Forces member, asked him to look at the laptop where he saw [Buford’s] `fake’ Facebook page. While RM thought it might involve something like [Buford] cheating on his wife, [he] proceeded to search further for more information.

He went into the `messages’ section where he allegedly found multiple conversations with females, pictures of male genitalia, and other sexually explicit communication. RM created `screen shots’ of what he saw on the Facebook page as well as what was in the messages section. He saved these screen shots to a portable flash-drive. He then continued his search by going into the `Yahoo’ e-mail account associated with the `fake’ Facebook page using a password provided by AB.

AB gave A1C RM consent to search her Dell laptop. However, the `fake’ Facebook account and associated e-mail account belonged to [Buford]. The e-mail account was password protected. There was no evidence on how AB obtained the password to either of these accounts. Although the Facebook account and the e-mail account were accessed through AB's laptop, they do not physically reside on the laptop.

Based upon his law enforcement background, RM encouraged AB to go to the Security Forces investigations flight chief. RM drove her to the Security Forces Squadron (SFS) and explained to the SFS flight chief what was happening. The SFS flight chief looked at the information on the flash-drive and turned the case over to the Air Force Office of Special Investigations (AFOSI). In an interview with the AFOSI, AB provided a written statement and signed a form consenting to the search and seizure of a Dell laptop, a PN 8GB Flashdrive, and a one gigabyte memory card.

Later that day, AFOSI agents conducted a search of the joint residence of [Buford] and AB. RM informed AB, that based on his knowledge and experience investigations could take quite a bit of time, and that during that time she would not have access to any items she gave to the AFOSI. During the search, RM acted as a `conduit’ between AB and the AFOSI agents because `he was a cop and he could relate to them.’ AB became upset when the AFOSI agents were seizing a video camera that contained photos and/or pictures of her son, so RM, on her behalf, asked about a warrant. RM `didn't want [AFOSI] to overstep their bounds.’ Because of RM's question about a warrant, the AFOSI agents stopped the search and obtained a warrant. After retuning with a warrant, they seized a Hewlett Packard (HP) laptop which belonged to [Buford].

In early June 2012, AB gave RM a Centon thumb drive AB found behind the television in her home. RM conducted his own `search’ to see whether there was actually evidence on it. RM opened multiple folders in the thumb drive, some of which contained work materials such as Air Force Instructions and others which contained pornography. Based on the information on the thumb drive, RM determined it belonged to [Buford]. A1C RM contacted an AFOSI agent to turn in the thumb drive. The AFOSI agents took possession of the thumb drive the next day.
U.S. v. Buford, supra. In a footnote, the court explains that because Buford “and his wife both have the initials AB, for the purpose of this order, AB is only in reference to the [his] wife and not [Buford himself].”  U.S. v. Buford, supra.  In another note it says “[w]e use `Centon thumb drive’ or `thumb drive’ . . . to distinguish it from the flash drive used by RM on 17 May 2012 to save screenshots from his search of [Buford’s] Facebook and e-mail account, which he conducted on AB's Dell laptop.” U.S. v. Buford, supra. 
Buford’s motion to suppress was based on the argument that when RM took the actions described above he was acting not as a private citizen who was trying to help AB but, basically, as a law enforcement officer.  U.S. v. Buford, supra.  As I have explained in prior posts, the 4th Amendment protects citizens from “state action,” i.e., from the acts of law enforcement agents or other government officials who are seeking evidence that could be used to prosecute someone for a crime, seize their property or arrest them.  If RM was acting as a law enforcement officer, the 4th Amendment applied to his conduct; if he was acting as a private citizen, it would not.
Here, the military judge granted Buford’s motion to suppress after concluding that
although RM stated he was not acting in an official capacity, his testimony led the military judge to believe otherwise. . . . [T]he military judge stated RM's actions went far beyond those expected of a private citizen. The judge noted the deficiencies in the Government's argument and concluded that but for the actions of RM, a `conduit’ between AB and the AFOSI, the search of the Dell laptop would not have occurred. As a result, the Government had not proven by a preponderance of the evidence that the items seized and ultimately searched (the Dell Laptop, the Hewlett Packard Laptop and Centon thumb drive) were seized in accordance with the 4th Amendment.
U.S. v. Buford, supra.  The government appealed. U.S. v. Buford, supra. 
After noting that it is “well established that the 4th Amendment applies “to Governmental action and is not applicable when effected by a private individual who is not acting as a Government agent or with participation or knowledge of any Governmental official”, the Court of Criminal Appeals explained that in deciding whether someone was acting as
a Government agent, it does not matter what the person’s individual/subjective motivation may have been, you must look at the `degree of the Government's participation in the private party's activities, a question that can only be resolved “in light of all the circumstances.”’ U.S. v. Daniels, 60 M.J. 69 (Air Force Court of Criminal Appeals 2004) (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S.602 (1989)). To trigger the 4th Amendment . . . it must be clear that the Government encouraged, endorsed, and participated in the challenged search. Id.
U.S. v. Buford, supra.  It also noted that
not all searches by law enforcement individuals have been deemed Government searches. U.S. v. Portt, 21 M.J. 333 (U.S. Court of Military Appeals 1986) (a security policeman acted in his private capacity when he searched the accused's locker out of curiosity while performing janitorial duties). Therefore, RM's status as a Security Forces member does not categorically make him a Government actor for the purpose of the searches at issue. Instead, the analysis is fact specific as to whether RM was acting under the authority of the United States.
U.S. v. Buford, supra. 
The court then explained that “[u]nlike the security policeman in Portt,” here there was
substantial evidence in the record of trial to support the finding that RM was acting as a Government agent. Consistent with the military judge's conclusions and in light of all the circumstances, we are convinced RM acted as a Government agent for several reasons to include: (1) As a Security Forces member his job was to enforce the law; (2) RM and AB were mere acquaintances prior to this investigation; (3) AB asked for RM's help knowing he was a law enforcement officer; (4) he actively inserted himself on multiple occasions into the role of an investigator both prior to and during the formal investigation; and (5) he participated in the challenged search and collected evidence for future law enforcement use.
U.S. v. Buford, supra.             
Since the appellate court found RM was acting as a law enforcement officer, i.e., an agent of the state, it then considered whether his conduct fell within one of the exceptions to the 4th Amendment’s requirement that officers get a warrant before searching and/or seizing evidence. U.S. v. Buford, supra.  As Wikipedia explains, one of the exception is consent, i.e., when someone consents to a search of their property they essentially waive their 4th Amendment rights.  The appellate court in this case agreed with the military judge’s decision on the issue of consent:
AB gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic `papers’ not contained on the device but accessed through the device.

RM had clear indications the `fake’ Facebook account and e-mail account belonged to [Buford]. The e-mail account was password protected. The evidence is that RM should have known the e-mail account was not under the authority of AB. . . . Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. . . . We concur with the military judge's ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.
U.S. v. Buford, supra. 
The appellate court then took up the issue as to whether AB’s search of Buford’s
Facebook account amounted to a private search that frustrated [Buford’s] expectation of privacy. There are two limitations to the private search exception: (1) The Government cannot conduct or participate in the private search; and (2) The Government may not go beyond the scope of the private party's search, to include expanding the search into a general search. . . . When applied to modern computerized devices such as laptops and cell phones, `[T]he scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view.’ [U.S. v. Wicks, 73 M.J. 93 (U.S. Court of Appeals for the Armed Forces 2014) (emphasis in the original).]

AB accessed [Buford’s] Facebook and email accounts in March 2012 and was accessing his Facebook account again on 17 May 2012 when she asked RM to look at the account. Because the record is not clear about exactly what AB viewed during her private searches of [Buford’s] Facebook messages and e-mail account, we are not convinced RM's subsequent search mirrored AB's private search. Therefore, because we must review the evidence in the light most favorable to the prevailing party, it is impossible for us to conclude the Government met the requirements of this exception. Therefore, the private search exception does not apply to these subsequent searches.
U.S. v. Buford, supra. 
Next the court considered whether “the Government had proper search authority with regards to the HP laptop.” U.S. v. Buford, supra.  As noted above, the officers obtained a search warrant before searching it. U.S. v. Buford, supra.  The court began its analysis of this issue by noting that the probable cause needed to justify a search cannot be
based on illegally obtained information or evidence. . . . The search warrant used for the search of the home of AB and [Buford] where the HP laptop was seized was based on information obtained by RM's unconstitutional search of [Buford’s] Facebook and e-mail accounts.

Therefore, the Government cannot rely on the subsequent search warrant as legal authorization to search the HP laptop.
U.S. v. Buford, supra. 
The court then considered whether the search of two other items were lawful consent searches.  U.S. v. Buford, supra.  It noted that “a few weeks” after the
AFOSI's thorough search of her home, AB found a thumb drive near her television. AB provided the thumb drive to RM. RM searched the thumb drive to determine if it contained any evidence. The thumb drive was not password protected. Because RM was a Government agent, we examine to see if an exception applies. . . .

[W]e disagree with the military judge and conclude AB was authorized to . . .consent to the search of the thumb drive. `Where one party has joint access and control to a property and voluntarily consents to a search, the warrantless search is reasonable.’ U.S.  v. Weston, 67 M.J. 390 (U.S. Court of Appeals of the Armed Forces 2009). `Common authority over a home extends to all items within the home, unless the item reasonably appears to be within the exclusive domain of the third party.’  Id.

Here the thumb drive was in the home AB shared with [Buford]. There is no evidence [it] was in the exclusive domain of [Buford]. In the context of personal computers and associated digital devices, `[C]ourts examine whether the relevant files were password-protected or whether the [appellee] otherwise manifested an intention to restrict third-party access.’ United States v. Rader, 65 M.J. 30 (U.S. Court of Appeals of the Armed Forces 2007).

Examining the evidence in the light most favorable to [Buford], (1) He had a thumb drive he solely used; (2) He left it in the common area of the house he shared with his wife; and (3) He did not password protect it to prevent her access to the device. The thumb drive is not like a cellphone or a laptop connected to the internet, it is a `static storage container’ more akin to an electronic briefcase. . . . [T]he thumb drive `was kept in a common area and opened without manipulation of the tumblers.’ U.S. v. Gallagher, 66 M.J. 250 (U.S. Court of Appeals of the Armed Forces 2008). We conclude AB had common authority over this unsecured device in her home, and like any other unsecured storage device, she had the ability to consent to the search of the thumb drive. Because proper search authority was given by AB's consent, the military judge abused her discretion in the application of the law by suppressing the evidence from the search of the Centon thumb drive.
U.S. v. Buford, supra. 
Finally, the court considered the search of the Dell laptop, noting that the
military judge found AB gave consent to RM to search the Dell laptop. AB also gave written consent for the AFOSI to search the Dell laptop when she provided it to the AFOSI on 18 May 2012. While there is some evidence AB became upset as the AFOSI agents searched and planned to seize additional items from her home, there is no evidence she ever revoked her consent to search her Dell laptop.

For the reasons explained above, AB had actual and apparent authority over the Dell laptop and was able to provide consent to search the device. We distinguish the search of the hard drive which is a physical component of the laptop from using the laptop as a conduit to access electronic data through internet based services. We conclude AB was able to consent to the search of the Dell laptop. The military judge abused her discretion in the application of the law as to AB's consent to the search of the Dell laptop.
U.S. v. Buford, supra. 

The appellate court therefore affirmed the military judge’s granting the motion to suppress evidence obtained from Buford’s Facebook page, e-mail account, and HP laptop. U.S. v. Buford, supra.  It reversed the judge’s granting the motion to suppress as it applied to the Centron thumb drive and the Dell laptop.  U.S. v. Buford, supra. 

Monday, July 28, 2014

5th Amendment "Takings," the Medical License and the Website Comments

Dr. Aaron Filler, a Santa Monica neurosurgeon, filed a pro se Complaint alleging that the United States government
effected a 5th Amendment taking of his medical license without just compensation. He claims the taking occurred as a result of the acts of Susan Walker, a biologist and regional director with the National Marine Fisheries Service (`NMFS’) of the National Oceanic and Atmospheric Administration (`NOAA’), a division within the United States Department of Commerce. He requests `damages in an amount to be proven at trial but no less than ten million dollars.’ Amended Complaint ¶ 130.
Filler v. U.S., 2014 WL 2000439 (U.S. Court of Federal Claims 2014).  The basis for the lawsuit was the final phrase in the 5th Amendment to the U.S. Constitution, i.e., “nor shall private property be taken for public use, without just compensation”.  This is known as the “Takings Clause” of the 5th Amendment (or “eminent domain”).
The U.S. Department of Justice’s Civil Division represented the government and moved to dismiss Filler’s suit under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which lets a judge dismiss a lawsuit if the plaintiff has failed to state a viable cause of action.  As Wikipedia explains, the Rule 12(b)(6) motion is how lawsuits with
insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. `While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’  Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  
In the Department of Justice’s Rule 12(b)(6) motion in this case, it argued that
Dr. Filler `fails to articulate [a takings] claim within this Court's jurisdiction’ because . . . he has not alleged sufficient facts to establish that Ms. Walker acted on behalf of the government when she engaged in the acts alleged to have resulted in the taking of his property. [Defense’s Motion to Dismiss]. Finally, the government argues that Dr. Filler fails to state a claim upon which relief can be granted because there is no compensable property interest in a medical license for purposes of the Takings Clause.
Filler v. U.S., supra.
The judge began his analysis of the issues in the case by explaining that in 2010,
Susan Walker sought treatment from Dr. Filler, and [he] performed medical procedures on her, including injections of medication. . . . The complaint alleges that on January 31, 2011, Ms. Walker posted the following comment, referring to Dr. Filler and his treatments, on under the username `sueinjuneau’:

`Dr. Filler uses Wydase, which is a brand name of the enzyme hyaluronidase, in his piriformis injections to, in theory, break down scar tissue.’

`Wydase is a medical preparation of highly purified bovine testicular enzyme, made previously by Wyeth Pharmaceuticals in England. Production ceased due to the possible transmission of bovine spongiform encephalitis, or mad cow disease, though there is no documentation of transmission through this route. . . .’

`Wydase is no longer manufactured and has not been manufactured in at least seven years, so I'm not sure why Filler refers to the use of Wydase, and given the remote risk of CSE transmission that it poses, injecting it directly adjacent to a nerve does not seem advised.’

Amended Complaint 49. This comment and others Ms. Walker posted on various other web sites were the bases of an action for defamation and interference with prospective economic advantage in California state court and an administrative claim under the Federal TortClaims Act, 28 U.S. Code § 1346, with the Department of Commerce, which Dr. Filler pursued prior to bringing his takings claim in this Court. 

Dr. Filler alleges that Ms. Walker posted the comment on during working hours on a government computer and that the comment drew from Ms. Walker's NOAA training and constituted a `public warning about danger to the health and safety of the United States populace.’ Amended Complaint  ¶¶ 4, 48–49. He also alleges that the comment, `though false, is certain to cause fear in those patients who have been injected, their families and co-workers as well as causing fear in others considering visiting Dr. Filler for treatment.’ Id. ¶ 42. He claims Ms. Walker acted as an agent of the United States when she posted the comment and that the comment diminished the value of his medical license so completely  it constituted an inverse condemnation, for which the 5th Amendment requires just compensation. . . .
Filler v. U.S., supra. In a footnote, the judge says that “[b]y `CSE,’ Ms. Walker likely meant `BSE’ -- that is, bovine spongiform encephalitis.” Filler v. U.S., supra.  And in another note, the judge explains that “inverse condemnation” is
a type of takings claim; whereas condemnation occurs when the government undertakes the legal proceedings necessary to assume ownership of property under its eminent domain power, inverse condemnation occurs when the property owner undertakes legal proceedings to have a government action declared a taking and to recover just compensation due pursuant to the 5th Amendment. . . .
Filler v. U.S., supra.  
He then took up the first issue in the case, noting that the Court of Federal Claims is a
court of limited jurisdiction that, pursuant to the Tucker Act, may hear `any claim against the United States founded upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.’ 28 U.S. Code § 1491(a)(1) (2006).

The Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299 (U.S. Court of Appeals for the Federal Circuit 2008). A plaintiff, therefore, must establish that `a separate source of substantive law . . . creates the right to money damages.’  Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin, supra. Takings claims fall squarely within this Court's subject matter jurisdiction.
Filler v. U.S., supra.  
Next, he analyzed the issue raised by the Rule 12(b)(6) motion, i.e., whether Filler’s Complaint stated a viable cause of action. Filler v. U.S., supra.  He noted that to survive a Rule 12(b)(6) challenge to a Complaint’s factual allegations, those allegations “must be enough to raise a right to relief above the speculative level”. Filler v. U.S., supra.  The judge found that Filler’s Complaint did not achieve this. Filler v. U.S., supra.  He noted that in analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the judge
`must accept all well-pleaded factual allegations as true and draw all reasonable inferences in . . .[the plaintiff's] favor.’ Boyle v. U.S., 200 F.3d 1369 (U.S. Court of Appeals for the Federal Circuit 2000). The motion will be granted when the facts asserted by the plaintiff fail to `raise a right to relief above the speculative level.’ Am. Contractors Indem. Co. v. U.S., 570 F.3d 1373 (U.S. Court of Appeals for the Federal Circuit.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

In other words, plaintiff's claim must be plausible on its face. Bell Atl. Corp. v. Twombly, supra.  `A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . `Conclusory allegations of law and unwarranted inferences of fact do not,’ however, `suffice to support a claim.’ Bradley v. Chiron Corp., 136 F.3d 1317 (U.S. Court of Appeals for the Federal Circuit 1998).

Where, as here, the plaintiff is pro se, his pleading is held `to less stringent standards than formal pleadings drafted by lawyers.’ Haines v. Kerner, 404 U.S. 519 (1972). Nonetheless, even taking into consideration Dr. Filler's pro se status, the Court concludes that his allegations are insufficient, as a matter of law, to state a claim for relief under the Takings Clause. Specifically, the facts Dr. Filler alleges in his complaint do not support his conclusory assertion that Ms. Walker acted on behalf of the government when she posted the comments . . . on

Further, and in any event, Dr. Filler's medical license does not, as a matter of law, constitute a compensable property interest within the meaning of the Takings Clause.
Filler v. U.S., supra.  
The judge then analyzed each factor in detail, beginning with the issue of whether Walker acted on behalf of the government in posting the comments at issue:

It is well settled that a compensable taking does not arise unless there is action by the government and even then, ‘”only if the government action in question is authorized,’” PI Elec. Corp. v. U.S., 55 Fed. Cl. 279 (U.S. Court of Federal Claims 2003) (quoting Del–Rio Drilling Programs. Inc. v. U.S., 146 F.3d 1358 (U.S. Court of Appeals for the Federal Circuit 1998)). . . . If the action is not authorized, it `is not the act of the government’ at all. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102 (1974) (quoting) Hooe v. U.S., 218 U.S. 322 (1910)). An action by a government agent is authorized, and implicates the Takings Clause, if the agent `act[s] within the general scope of [her] duties, i.e., if [her] actions are a “natural consequence of Congressionally approved measures,” or are pursuant to “the good faith implementation of a Congressional Act.”’ Del–Rio Drilling Programs. Inc. v. U.S., supra. . . .

Here, the factual allegations in Dr. Filler's complaint do not support his conclusory assertion that Ms. Walker was acting in her official capacity or on behalf of the government when she posted the comments in question. In fact, his factual assertions actually demonstrate precisely the opposite. Dr. Filler alleges in his complaint that Ms. Walker is employed as a marine biologist at the NMFS within the NOAA, a division of the Department of Commerce. . . .

This agency's authority derives from the Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S. Code Ch. 38, the Marine Mammal Protection Act, 16 U.S.C. Ch. 31, and the Endangered Species Act, 16 U.S.C. Ch. 35. These statutes authorize the NMFS to manage, conserve, and protect living marine resources in waters controlled by the United States. NMFS does not have the authority to regulate medical practices or drug safety. Therefore, even if Ms. Walker's posting on is construed as, in Dr. Filler's words, `a public warning about danger to the health and safety of the United States populace,’ Am. Compl. ¶ 4, such an action would not fall within the official scope of authority of an employee of the NMFS generally, much less of Ms. Walker in particular.

In asserting that Ms. Walker acted `within the scope of her authorized duties,’ . . . Am. Dr. Filler cites various statutes and regulations reflecting `[t]he interest of the United States in  . . . preventing the spread of . . . BSE.’ Amended Complaint. ¶¶ 51, 55. . . .  (citing a provision within the Animal Health Protection Act, several provisions within Each provision Dr. Filler lists, however, falls within the enforcement purview of either the Department of Agriculture or the Food and Drug Administration; none implicates the authority of the Department of Commerce, let alone the NOAA or NMFS. See, e.g.,7 U.S. Code § 8302(14) (indicating the Secretary of Agriculture is responsible for the implementation of the Animal Health Protection Act); 21 C.F.R. § 810.2 (regulations in the part of the C.F.R. implement the Federal Food, Drug, and Cosmetic Act). Dr. Filler recognizes that the authorities he cites for `[t]he role of the United States in public warnings,’ 21 C.F.R. §§ 7.42, 810.2, , are 
, are addressed to the Food and Drug Administration. . . .

Thus, they cannot have provided the authorization for Ms. Walker to post an anonymous comment regarding the safety of any particular medical practice on

Leaving aside the conclusory assertions in Dr. Filler's complaint, such as the statement that `[t]he purpose of [Ms. Walker's] action was to serve the public purpose of protecting the United States population from infection by the Bovine Spongiform Encephalopathy prion agent,’ . . . the facts alleged in the complaint do not raise the prospect, even at the speculative level, that Ms. Walker acted in her capacity as a government official when she posted the comment on

To the contrary, the facts show Ms. Walker acted in her individual capacity as a former patient of Dr. Filler for her independent purpose of conveying her personal views on the efficacy and advisability of the treatment she believed Dr. Filler had used on her and other patients. Therefore, because he failed to sufficiently allege an authorized government action that could conceivably constitute a taking, Dr. Filler's complaint must be dismissed.
Filler v. U.S., supra.  
The judge also found that a medical license is not a “property interest within the meanings of the Takings Clause.”  Filler v. U.S., supra.  He explained that a “threshold element of a takings claim is whether the plaintiff has a cognizable property interest for purposes of the 5th Amendment.”  Filler v. U.S., supra.  If the plaintiff cannot show he/she has such an interest, the claim will fail.  Filler v. U.S., supra.  The judge found that “even assuming Dr. Filler had alleged sufficient facts to establish that Ms. Walker was acting within the scope of her duties when she posted the comments at issue, his claim would necessarily fail because, as a matter of law, a medical license does not constitute property cognizable under the Takings Clause.” Filler v. U.S., supra.  
He explained that the Constitution “`neither creates nor defines’” the property interests that are compensable under the Takings Clause of the 5th Amendment. Filler v. U.S., supra.  Courts therefore look to property law to decide if a particular item qualifies as property under the Takings Clause. Filler v. U.S., supra.  He noted that the right to
`sell, assign, or otherwise transfer are traditional hallmarks of property.’ Conti v. U.S., 291 F.3d 1334 (U.S. Court of Appeals for the Federal Circuit 2002). . . . Accordingly, the Federal Circuit has held that, assuming `the absence of express statutory language precluding the formation of a property right,’ a cognizable property interest in a government permit or license requires both a `right to transfer’ and a `right to exclude.' Members of Peanut Quota Holders Ass'n, Inc. v. United States, 421 F.3d 1323 (U.S. Court of Appeals for the Federal Circuit 2005). The government argues that . . . a medical license does not meet either of these requirements. The Court agrees.
Filler v. U.S., supra.  
He noted, first, that “it is clear” that the holder of a medical license
cannot sell or transfer his medical license to another individual or entity; a medical license can only be obtained by meeting the requirements specified in state law for the holders of such licenses. See Webster v. U.S., 74 Fed. Cl. 439 (U.S. Court of Federal Claims 2006) (`[b]ecause plaintiff does not have the right to sell . . . or otherwise transfer her medical license, a medical license does not possess the requisite indicia of transferability’). 

Dr. Filler's arguments to the contrary are unpersuasive. . . . He argues, for instance, that a medical license is subject to forfeiture under 21 U.S. Code § 853 if it is used to commit a controlled substances violation, and that generally, a civil forfeiture order transfers title in the property to the government. . . . As the government observes, however, whether something is transferable for purposes of establishing a compensable property interest depends upon `whether the citizen had the right[ ] to . . . transfer[ ] or dispose of the property,’ not whether the government could compel the citizen to relinquish it. . . .
Filler v. U.S., supra.  
Walker also argued that “property compensable under the takings clause must possess certain indicia of private property, including the ability to transfer and the ability to exclude others from use or enjoyment of that property.” Filler v. U.S., supra.  The judge agreed, explaining that in Members of the Peanut Quota Holders Ass'n v. U.S., 421 F.3d 1323 (U.S. Court of Appeals for the Federal Circuit 2005), the court held that
`decisions by both the Supreme Court and this court imply that a compensable interest is indicated by the absence of express statutory language precluding the formation of a property right in combination with the presence of the right to transfer and the right to exclude.’ . . . Thus, plaintiff is required to demonstrate a right to transfer and to exclude in order to present a valid compensable property interest.
Filler v. U.S., supra.  
The judge explained that medical licenses are not private property “as they do not possess the characteristics of exclusivity and right to transfer”. Filler v. U.S., supra.  He noted that medical licenses are not “exclusive” because “the number of medical licenses issued is not subject to a fixed limit by the Government”.  Filler v. U.S., supra.  Walker also noted that the medical license was not “property” under the 5th Amendment because it was not transferable, i.e., Filler could not “sell, assign or otherwise transfer” the license to someone else. Filler v. U.S., supra.  
For these and other reasons, he granted the government’s Rule 12(b)(6) motion to dismiss Filler’s Complaint and the cause of action predicated on it with prejudice. Filler v. U.S., supra.