author: TYMKOVICH, Chief Judge.

text:
    BIG CATS OF SERENITY SPRINGS, INC., doing business as Serenity Springs Wildlife Center; Nick Sculac; and Jules Investment, Inc., Plaintiffs-Appellees, and Julie Walker, Plaintiff, v. Cindy RHODES; and Tracy Thompson, Defendants-Appellants. and Thomas J. Vilsack, in his official capacity as Secretary of Agriculture; and Other Unnamed United States Department of Agriculture Employees, Defendants.
    No. 15-1174
    United States Court of Appeals, Tenth Circuit.
    December 12, 2016

      Edward Himmelfarb, Appellate Staff Attorney, Civil Division (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States Attorney for the District of Colorado, and Barbara L. Herwig, Appellate Staff Attorney, Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, for Appellants.
    Duston K. Barton (Leonard H. MacPhee with him on the brief), Perkins Coie LLP, Denver, Colorado, for Appellees.
    Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.
   TYMKOVICH, Chief Judge.

Big Cats of Serenity Springs is a Colorado-based non-profit that provides housing, food, and veterinary care for exotic animals. The facility is regulated by the United States Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), established pursuant to the Animal Welfare Act. Three APHIS inspectors accompanied by El Paso County sheriffs deputies broke into the Big Cats facility without its permission- to- perform an unannounced inspection of two tiger cubs. But at the time the inspectors entered the facility, the cubs were at a veterinarian’s office receiving treatment, just as Big Cats had promised the APHIS inspectors the previous day. ■ ...

Big Cats and its directors sued the APHIS inspectors for the unauthorized entry pursuant to Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983, asserting the entry was an illegal search under the Fourth Amendment. The district court denied the APHIS inspectors’ motion to dismiss the complaint and they filed an interlocutory appeal challenging the court’s failure to grant qualified immunity. This court has jurisdiction over the interlocutory appeal from the district court’s order under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 535, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Additionally, the court has jurisdiction over the question of whether a Bivens remedy exists because it was sufficiently implicated by the qualified immunity defense. See Wilkie v. Robbins, 551 U.S. 537, 549 n.4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007).

We affirm in part and reverse in part. Big Cats’ complaint has stated a claim for relief under Bivens. No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible, and therefore Big Cats and its directors may have a claim for violation of their Fourth Amendment right to be free from an unreasonable search. But we reverse on Big Cats’ civil rights claim because the-federal inspectors, are not liable under § 1983- in the circumstances here,

I. Background

We start by explaining the regulatory scheme that applies to -Big Cats’ business and then address the relevant- factual and procedural background.

A. The Animal Welfare Act

Big Cats is a licensed wild animal exhibitor under the Animal Welfare Act, 7 U.S.C. §§ 2131-59 (AWA). Under the AWA, a facility must meet care and sanitation standards issued by the United States Department of Agriculture (USDA), 7 U.S.C. § 2143(a). Among other things, the regulations require licensees to handle animals safely, 9 C.F.R. § 2.131, provide adequate veterinary care, id. at. § 2.40, and mark animals for identification, id. at § 2.50.

To enforce these standards, the AWA authorizes the USDA to “make such investigations or inspections as [the USDA] deems necessary.” 7 U.S.C. § 2146(a). It grants the USDA access to licensees’ facilities, animals, and records “at all reasonable times.” Id. The corresponding regulations require a licensed organization. to allow inspectors “during business hours ... to enter its place of business ... [and] inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act....” 9 C.F.R. § 2.126.

Violations by licensees, whether by providing substandard care or refusing inspection, are sanctioned through an administrative process. 7 U.S.C. § 2149. Licensees are subject to license suspension, civil penalties up to $10,000, and in some instances, imprisonment for up to one year. Id. Licensed organizations can appeal a final order to a federal Court of Appeals to “enjoin, set aside, suspend (in whole or in part), or determine the validity of the Secretary’s order.” Id. at § 2149(c).

B. The Incident

The following allegations are from Big Cats’ complaint, and we take them as true for purposes of our analysis. Weise v. Casper, 507 F.3d 1260, 1269-70 (10th Cir. 2007).

. After a routine inspection of. Big Cats’ Serenity Springs Wildlife Center in early April 2013, APHIS inspectors determined that the care of an injured tiger cub was substandard and issued a citation requiring Big Cats to provide veterinary care. But when an inspector conducted a followup visit the next week, she found -that the injury had worsened, and issued another citation. Big Oats denied both allegations and contested both citations, claiming they were part of a “pattern of harassing behavior” by the inspectors. App. 51.

On May 6, APHIS inspectors conducted another follow-up inspection. The inspectors claimed the cub’s injuries had worsened, and also noticed that a different cub was suffering from an injured hind leg. Although Big Cats claimed the cubs had been treated and were receiving appropriate medications, the inspectors again cited Big Cats for failure to use “appropriate methods to prevent, control, diagnose, and treat diseases and injuries.” 9 C.F.R. § 2.40(b)(2). The inspectors required the cubs to be evaluated as soon as possible, but “not later than 8:00 AM on 5/7/2013.” App. 37.

During the inspection, Big Cats’ founder and director, Nick Sculac, asked whether the cubs could be examined on May 8, because he had already scheduled an in-facility visit for that day with his contract veterinarian. But the APHIS officials would not approve a one-day delay. So even though transportation to a clinic risked further injury according to two of Big Cats’ contract veterinarians, it was Mr. Sculac’s only option to .meet the citation’s 8:00 a.m. requirement. He arrived, with the cubs, at the veterinary clinic at 7:00 a.m. on May 7.

'Meanwhile, around 8:00 a.m., three APHIS personnel arrived at the Serenity Springs Wildlife Center only to find the facility closed. After unsuccessfully trying to reach Mr. Sculac on his cell phone, the inspectors decided to forcibly enter the facility. They contacted the El Paso County Sheriffs Office at 8:45 a.m., requesting urgent assistance in entering the facility. Two sheriffs deputies arrived at the facility and were told by the inspectors that they had a court order to seize the cubs. The deputies cut the outer gate’s chains, and the inspectors entered the facility. They then cut the locks off an inner gate to- access the pens, where they encountered an employee. The employee was “shocked- and alarmed to suddenly see three [APHIS personnel] and two heavily armed police officers appear inside the locked, private facility.” App. 17. After she informed them the cubs were at the veterinary clinic, the inspectors left and went to the clinic.

C. Procedural History

Big Cats and its directors filed a lawsuit against the APHIS inspectors, alleging a Fourth Amendment Bivens claim and a statutory claim under 42 U.S.C. § 1988. The district court denied the government’s motion to dismiss, concluding the inspectors were not entitled to qualified immunity because their conduct — forcible entry without permission — violated clearly established Fourth Amendment constitutional law. The inspectors bring this interlocutory appeal from the denial of qualified immunity.

II. Analysis

The government makes two arguments: first, it contends neither Bivens nor § 1983 apply to the APHIS inspectors’ unauthorized entry into Big Cats’ facility; and, second, even if the inspectors’ conduct was unlawful, it argues that the inspectors are still entitled to qualified immunity because the violation was not clearly established under federal law.

Since this is the denial of a Rule 12(b)(6) motion, our review is de novo, accepting “all well-pleaded allegations ‘of the complaint as true and considering] them in the light most favorable to the nonmoving party.’ ” Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1199 (10th Cir. 2003) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). “To survive a motion to dismiss, a complaint must allege facts that, if true, ‘state a claim to relief that is plausible on its face.’ A claim is facially plausible when the allegations give rise to a reasonable inference that the defendant is liable.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (quoting Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013)). In the context of qualified immunity, we may not dismiss a complaint for failure to state a claim unless it appears beyond doubt that plaintiffs cannot prove a set of facts that would entitle them to relief. Id.

We address the Bivens and § 1983 claims in turn.

A. ' Bivens

The government first contends that a Bivens cause of action is not available under the Animal Welfare Act. It argues a Bivens remedy is not available where the AWA provides parties with an altérnative remedy for misconduct. But as we explain, the AWA does not allow forcible entry to a licensee’s facility, nor does it provide licensees any relief from such conduct. A Bivens claim is Big Cats’ only available relief for an unconstitutional search of its premises.

The Constitution does not ordinarily provide a private right of action for constitutional violations by federal officials. Nonetheless, the Supreme Court in Bivens approved a judicially-implied cause of action allowing individuals to seek damages for unconstitutional conduct by federal officials. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). According to the Court, “[t]hat damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition.” Bivens, 403 U.S. at 395, 91 S.Ct. 1999. “ ‘[I]t is 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.’” Id. at 396, 91 S.Ct. 1999 (alterations omitted) (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).

In several cases following Bivens, the Supreme Court extended the doctrine from the Fourth Amendment context to other types . of constitutional claims. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court held that a federal Congressional employee could bring a Bivens action pursuant to the “equal protection” element of the Due Process clause of the Fifth Amendment. See id. at 248-49, 99 S.Ct. 2264. And then in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court allowed the plaintiffs to pursue a Bivens claim against federal prison officials for failure to provide adequate medical treatment in violation of the Eighth Amendment’s cruel and unusual punishment clause. See id. at 17-18, 100 S.Ct. 1468.

Davis and Carlson represent the high-water mark in the Court’s Bivens jurisprudence. Since those cases, the Court has steadfastly retreated from a broad application of the doctrine, refusing to extend implied causes of action to other constitutional provisions, and cabining the contexts in which it will allow Bivens claims to proceed. See Richard H. Fallon, Jr. et al., Hart & Wechsler’s The Federal- Courts and the Federal System. 770-72 (7th ed. 2015); see also Correctional Serv. Corp v. Malesko, 534 U.S. 61, 66-71, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (collecting eases). The Court recognizes that a judicially-implied cause of action risks infringing on Congress’s power to make law, and has explained that

any freestanding damages remedy for a claimed constitutional violation [based on Bivens] has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified.

Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Thus, where Congress has already constructed a “constitutionally adequate” alternative remedy for federal misconduct, courts ought not step in by implying a Bivens cause of action. See Bush v. Lucas, 462 U.S. 367, 379 n.14, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (declining to find new substantive legal liability to permit federal employee to recover damages from his supervisor after supervisor improperly disciplined him for exercising his First Amendment rights); see also Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (claims against private prisons); FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (claims against federal agencies); Schweiker v. Chilicky, 487 U.S. 412, 425, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (Fifth Amendment claim against former government officials arising out of delays in receipt of Social Security benefits); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (declining to extend Bivens remedies to harms arising out of military service); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (same).

Yet Bivens still remains available in some circumstances, and our circuit has allowed Bivens claims in a variety of factual. scenarios — based on violations of the First, Fourth, and Eighth Amendments. See Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) (Eighth Amendment claim against prison officials); Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001) (same); Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521 (10th Cir. 1994) (First and Fourth Amendment claims against IRS agents).

Nonetheless, the Supreme Court requires courts evaluating Bivens causes of action to carefully consider the facts and context. The analysis proceeds along a two-step analytical framework. First, we examine whether an “alternative, existing process for protecting the [plaintiffs] interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. Second, in the absence of an alternative remedy, we will consider whether “special factors” counsel hesitation before authorizing a new kind of federal litigation. Id. In evaluating this consideration, courts “weigh[ ] reasons for and against the creation of a new cause of action, the way common law judges have always done.” Id. at 554, 127 S.Ct. 2588.

Relying on these principles, the government contends the AWA provides a comprehensive “alternative, existing process” that protects Big Cats’ constitutional interests and therefore counsels against an implied Bivens cause of action. It argues that because Big Cats may administratively challenge an adverse inspection report, it must therefore resolve any alleged Fourth Amendment claims through that process. Moreover, the government contends that even if the AWA does not provide a fully adequate remedial scheme, special factors weigh against a Bivens claim here.

We consider each argument in turn.

1. Alternative Remedy

The Supreme Court has explained that where an “ ‘alternative, existing process’ [is] capable of protecting the constitutional interests at stake,” the courts should refrain from augmenting the process with an implied damages remedy. Minneci v. Pollard, 565 U.S. 118, 132 S.Ct. 617, 623, 181 L.Ed.2d 606 (2012) (quoting Wilkie, 551 U.S. at 550, 127 S.Ct. 2588), “The point of examining the existing process is to determine whether Congress has explicitly or implicitly indicated ‘that the Court’s power should not be exercised.’” De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir. 2015), cert. filed, (Jan, 12, 2016) (quoting Bush, 462 U.S. at 378, 103 S.Ct, 2404). Congress may explicitly “indicate its in-tente ] by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the Court’s power should not be exercised.” Bush, 462 U.S. at 378, 103 S.Ct. 2404. But Congress may also implicitly indicate intent “by cre ating a process that provides ‘an avenue for some redress’” for injured persons, and “[i]n these instances, ‘bedrock principles of separation of powers’ show that ‘Congress expected the Judiciary to stay its Bivens hand’ and instead apply the statutory remedy.” Koprowski v. Baker, 822 F.3d 248, 262 (6th Cir. 2016) (Sutton, J., dissenting) (quoting Malesko, 534 U.S. at 69, 122 S.Ct. 515; Wilkie, 551 U.S. at 554, 127 S.Ct. 2588). Thus, in analyzing whether a Bivens claim is precluded by an alternative remedy, courts must consider the nature and extent of the statutory-scheme created by Congress, and assess the significance of that scheme in light of the factual background of the case at hand. See Wilkie, 651 U.S. at 561, 127 S.Ct. 2588; see also De La Paz, 786 F.3d at 375.

Several cases illustrate this analysis. For example, in Minned the Court considered whether prisoners could bring a Bivens claim against employees of a privately owned federal prison. The Court found no right of action because' a claim “for physical or related emotional harm suffered as a result of [inadequate medical care is] the kind of conduct that state tort law typically forbids.” 132 S.Ct. at 624. Because state tort law provided “roughly similar incentives for potential defendants to comply with the Eighth Amendment while- also providing roughly similar compensation to victims,” the plaintiff had adequate' recourse under state tort law. Id. at 625. See also Davis, 442 U.S. at 245 n.23, 99 S.Ct. 2264 (no state law remedy available). Similarly, in the Fifth Amendment context, the Court determined that Title II of the Social Security Act is a constitutionally adequate substitute for a Due Process challenge based on wrongful termination of disability benefits. Even though the Act did not provide full compensatory" relief, Congress had. sufficiently “addressed the problems created by state agencies’ wrongful termination of disability benefits,” making a Bivens remedy unnecessary. Schweiker, 487 U.S. at 429, 108 S.Ct. 2460.

But in the prototypical Fourth Amendment context, the Court has so far rejected the notion -that state tort law can adequately protect a citizen’s “absolute right to be free from unreasonable searches." Bivens, 403 U.S. at 392, 91 S.Ct. 1999. According to the Court, the Fourth Amendment proscribes a broader range of conduct than what state law typically condemns, and, moreover, state law in some cases may.be, “inconsistent or even hostile” to the interests protected by the Fourth Amendment. Bivens, 403 U.S. at 392-94, 91 S.Ct. 1999; see also id. at 410, 91 S.Ct. 1999 (Harlan, J,, concurring in the judgment) (“For people in Bivens’ shoes, it is damages or nothing.”).

The government does not rely on state law as an alternative source of relief for Big Cats. Instead, it argues-that we should conclude Congress has designed a comprehensive statutory scheme that provides meaningful remedies for victims, such that a Bivens remedy is unwarranted. It contends the regulatory scheme need not provide “complete relief,” but should reflect Congress’s meaningful intention to “provide[ ] what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of [the statute’s] administration.” Schweiker, 487 U.S. at 423, 108 S.Ct. 2460. Under the AWA, a licensee may administratively challenge an adverse inspection report under the Administrative Procedure Act. Thus, the government maintains that even though the AWA has no express compensatory mechanism to remedy constitutional claims, a Fourth Amendment claim is “capable of being addressed in the remedial process” by way of rejection of inspection violations predicated on illegal conduct. Reply Br. at 10 (emphasis added).

This reading of the AWA seriously misconstrues its regulatory scope and is not faithful to the Supreme Court’s case law considering alternative remedies. The Court tells us the operative “question [is] whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. In other words, the appropriate consideration is whether an alternate, existing process demonstrates Congress’s intent to exclude a damages remedy. Schweiker, 487 U.S. at 435, 108 S.Ct. 2460. Evidence of that intent would be a scheme that provides adequate deterrence of constitutional violations and at least some form of relief for the harm. Malesko, 534 U.S. at 70, 122 S.Ct. 515.

But Big Cats’ challenge is based on a violation of the constitutional right to be free from an unreasonable search, not the propriety of the licensing citation. Nor does the AWA appeals process provide a mechanism for relief for misconduct by inspection agents themselves, it only allows for a licensee to challenge the factual basis for the citation — here Big Cats’ failure to “allow APHIS officials access to conduct inspections.” App. 91; see also Aple. Br. 28-29 (citing United States Dep’t of Agric., Animal Care: Appeals Process (2014) (demonstrating grounds for appeal with no mechanism to assert constitutional violations)). In fact, should an APHIS inspector unlawfully enter and search a business, but find nothing to cite, that business would have no basis to challenge the inspector’s behavior. Moreover, while it is true that judicial review under the APA may, in some circumstances, foreclose a Bivens claim, even if we accept the government’s characterization of the existing AWA administrative scheme, we fail to see the APA as an “ ‘alternative, existing process’ capable of protecting the constitutional interests at stake.” Minneci, 132 S.Ct. at 623 (citation omitted). While there is no

need for congruent remedies or even money damages to deny a Bivens remedy, there must be more than nothing. Here, the AWA and administrative review provide no relief for the conduct alleged by Big Cats.

Even if the AWA provided some form of alternative relief, it would be hard to square this case with circuit precedent. In Smith v. United States, 561 F.3d 1090, 1103 (10th Cir. 2009), we found Congress had not displaced a Bivens remedy based on an Eighth Amendment claim even where a statutory scheme substantially occupied the field of inmate injury. We concluded the Inmate Accident Compensation Act (IACA), which provides compensation for federal inmates who suffer work-related injuries, did not provide an adequate remedial scheme, since the IACA operates a no-fault compensation system that provided no “ ‘forum where the allegedly unconstitutional- conduct would come t£> light.’” Smith, 561 F.3d at 1103 (quoting Bagola v. Kindt, 131 F.3d 632, 642-43 (7th Cir. 1997)); see also Koprowski, 822 F.3d at 255 (“Under the [IACA] scheme, all that matters is the nature of the injury, not the underlying conduct.”). In finding such a system offers “very little deterrent effect for constitutional harms,” we held the IACA did not provide an adequate, alternative process to protect prisoners’ Eighth Amendment rights. Smith, 561 F.3d at 1103; see also Koprowski, 822 F.3d at 252; Bagola, 131 F.3d at 644; Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) (same).

If anything, the scheme in Smith offered a more meaningful remedy for plaintiffs to redress their injuries than the AWA does in this case. See Koprowski, 822 F.3d at 264 (Sutton, J., dissenting) (“Taken together, these [IACA] alternatives allow an injured inmate to receive money for the injury and order the officials to obey the Constitution, demonstrating that Congress paid ‘careful attention’ to this precise injury— They also offer-injured inmates extensive review procedures, which further ‘safeguard their rights.’ ” (alteration :and citation omitted)). In this case, unlike the IACA, the AWA provides no compensatory mechanism for unconstitutional conduct, whether it be damages or dismissal of inspection violations. And even if unconstitutional searches were exposed, the appeals process does not describe any recourse. The only recourse the government suggests is that evidence improperly gathered would be ruled impermissible to support a citation. But the citation for failure to provide access is not ameliorated by inspectors’ subsequent conduct — no evidence was gathered. Putting aside that no remedy appears in the statute, regulations, or in internal administrative guidance, even if it did, the government does not explain how the exclusion of evidence provides accountability, or — in other words— gives APHIS officials “skin in the game” to deter illegal conduct. See Koprowski, 822 F.3d at 255. In short, because nothing in the AWA provides licensees protection from Fourth Amendment violations in the circumstances alleged here, we cannot hold that an alternative, existing process excludes a Bivens remedy.

2. Special Factors

The Supreme Court also counsels that a Bivens action is not available where the government demonstrates “special factors” that weigh against an implied remedy. This requires “weighing reasons for and against the creation of a new cause of action, the way common law judges have always done,” and whether those reasons “counsel[] hesitation before authorizing a new kind of federal litigation.” Wilkie, 551 U.S. at 550, 554, 127 S.Ct. 2588.

Wilkie again is illustrative. There, the Court found the risk of a floodgate of spurious claims against BLM officials would undermine the functioning of the agency, as well as the elusive nature of the proposed cause of action counseled hesitation: “We think accordingly that any damages remedy for actions by Government employees who push too hard for the Government’s benefit may come better, if at all, through legislation,” Id. at 562, 127 S.Ct. 2588.

The Court similarly found special factors precluded a Bivens action in Chappell, where the Court held that “the unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-typo, remedy against their superior officers.” 462 U.S. at 304, 103 S.Ct. 2362; see also Schiveiker at 414, 108 S.Ct. 2460 (finding that design of the' Social Security Act’s administrative and judicial scheme was a special factor counseling against finding a Bivens remedy). In Bush, the Court also rejected a Bivens remedy for the plaintiffs First Amendment violation on the basis of a special factors analysis, because the case involved policy questions in an area that had received significant congressional scrutiny. Id. at 423, 108 S.Ct. 2460.

Here, the government argues that the animal inspection context militates against a Bivens remedy because the AWA already provides a series of remedies. Aplt. Br. at 26. But as we explained above, the AWA does not provide an adequate remedy for illegal searches. Additionally, this is not the case where “indications [of] congressional inaction” support an inference that the Bivens action has been supplanted. Chilicky, 487 U.S. at 423, 108 S.Ct. 2460. APHIS inspectors are not subject to a comprehensive disciplinary scheme crafted by Congress or the Executive Branch. Nor are there any concerns about a workable cause of action. Fourth Amendment Bivens causes of action have been routinely applied to the conduct of federal officials in a variety of contexts, including ATF agents, Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004); federal marshals and FBI agents, Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997); and IRS special agents, Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521 (10th Cir. 1994).

If we were writing on a blank slate, we might be persuaded that Bivens is a relic of another era, and that Congress is perfectly capable of policing federal misconduct. But given our case law, Supreme Court precedent, and the factual context present here, we are constrained to find that Big Cats may proceed. Big Cats alleges a garden-variety constitutional violation (hardly a new context), the regulatory scheme: is plainly unavailable to remedy the alleged misconduct, and no special factors place AWA inspectors outside Bivens. We thex-efore agi-ee with the district court that Big Cats’ Bivens claim may go forward unless the inspectors are entitled to qualified immunity.

S. Qualified Immunity

Public officials enjoy “qualified irnmunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties.” Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013). To overcome qualified immunity, a plaintiff must show that: (1) the public official violated the plaintiffs constitutional rights; and (2) these rights were clearly established at the time of the alleged violation. Id. “This standard, by design, ‘gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). Although the purpose of a Bivens action is to deter individual federal officers from comihitting constitutional violations, “the threat of litigation and liability will -adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity.” Malesko, 534 U.S. at 70, 122 S.Ct. 515.

We first discuss the contours of a Fourth Amendment violation in the regulatory context and then consider whether the law was clearly established so that a reasonable APHIS inspector would have known he could not forcibly enter the Serenity Springs Wildlife Center without authorization.

a. Constitutional Violation

The Fourth Amendment protects the right to be free from unreasonable searches and seizures. U.S. Const, amend. IV. “[Searches conducted outside the judicial process, without prior approval by judge or magistrate,' are per se unreasonable under the. Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 382, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

It is well established that the Fourth Amendment applies not only to private homes and individuals, but also to commercial premises. New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). An owner or operator of a business thus has a reasonable expectation of privacy in commercial property, see id. at 702, 107 S.Ct. 2636; see also Katz, 389 U.S. at 360-62, 88 S.Ct. 507 (Harlan, J., concurring), and that expectation includes not only traditional police searches, but also administrative inspections to enforce regulations, Burger, 482 U.S. at 699, 107 S.Ct. 2636.

The Supreme Court has recognized, however, that an expectation of privacy in commercial property is “different from, and indeed less than, a similar expectation in an individual’s home,” Id. at 700, 107 S.Ct. 2636. The expectation of privacy is particularly low for the narrow class of heavily or “closely regulated” businesses — such as those that sell firearms and liquor — because the business owner has voluntarily decided to “subject himself to a full arsenal of governmental regulation.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Without elaborate enforcement schemes, the regulation of those industries would be ineffective. Thus, for closely regulated businesses, warrantless administrative searches of commercial premises — including surprise inspections — do not per se violate the Fourth. Amendment. See 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.2(f) (5th ed. 2012); 2 William E. Rin-gel, Searches and Seizures; Arrests and Confessions § 14:8 (2d ed. Nov. 2016 Update).

A closely regulated industry is still protected by the Fourth.Amendment, however, and warrantless searches of those businesses are unreasonable if arbitrarily conductéd. See Ringel, supra, § 14:8. To guard against unreasonable administrative searches, in Burger the Supreme -Court articulated several criteria the government must meet to justify war-rantless inspections: (1) the government must prove a substantial interest that justifies warrantless inspections; <2}(the war-rantless inspections- must be necessary to farther the regulatory scheme-, and (3) the inspection program must be sufficiently certain and regular to provide a constitutionally adequate substitute for a warrant. Burger, 482 U.S. at 702-03, 107 S.Ct. 2636; see also United States v. Mitchell, 518 F.3d 740, 761 (10th Cir. 2008) (applying the Burger three-part test).

We assume the AWA fits within the analytical framework 'of Burger, an assumption Big Cats does not challenge. The government has a substantial interest in animal safety and welfare and surprise inspections help further' those interests. And the regulations implementing the AWA allow routine inspections of regulated premises during “business hours” with protections for businesses to have the inspections conducted by authorized personnel. 9 C.F.R. § 2.126(a).

But the fact that the AWA might authorize warrantless inspections is not the end of the story. The question remains as to whether government officials may forcibly enter commercial premises in pursuit of them regulatory duties.

The Supreme Court addressed this question in Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). In that case, the Court considered a situation in which an IRS agent suspected a tavern of violating federal liquor excise tax laws. After the owner denied access to a locked liquor storage room, the agent broke the lock and entered the room, finding illicit goods. The store owner sued, seeking to suppress the seized liquor as evidence of misconduct.

The Supreme Court held that the IRS agent violated the Fourth Amendment. In reaching this conclusion, the Court considered the government’s argument that the statutory scheme allowed tax inspectors to forcibly enter regulated premises. The relevant statute allowed inspectors to: (1) “enter during business hours the premises (including places of storage) of any dealer for the purpose of inspecting or examining any records or other documents required to be kept,” 26 U.S.C. § 5146(b) (1964); and (2) “enter, in the daytime, any building or place where any articles or objects subject to tax are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles,” id at § 7606. The Court rejected the government’s contention that the statute authorized breaking into closed facilities without a warrant, noting Congress’s lack of explicit authorization to use force to further lawful inspections and thé statutory provision for civil penalties for businesses refusing entry. 26 U.S.C. § 7342 (1964).

The government argues that although the AWA is silent about warrant-less searches, rules promulgated under the AWA permit warrantless forcible entry under Burger and Colonnade. Specifically, it points to the regulations governing the confiscation of animals as authority. 9 C.F.R. § 2,129. Under these regulations, where an inspector believes an animal is “suffering” due to the exhibitor’s failure to comply with USDA regulations, an APHIS official shall “notify the [ ] exhibitor ... and request that the condition be'corrected and that adequate care be given to alleviate the animal’s suffering or distress.” 9 C.F.R. § 2.129(a). Then, if the exhibitor “refuses to comply with this request, the APHIS official may confiscate the animal(s) for care, treatment, or disposal ... if, in the opinion of the [APHIS] Administrator, the circumstances indicate the animals’ health is in danger.” Id. The regulations also provide APHIS officials with guidance in the case of entry in premises where the owner is unavailable. An inspector “shall [then] contact a local police or other law officer to accompany him to the premises and shall provide for adequate care when necessary to alleviate the animals’ suffering.” Id. at § 2.129(b). The government argues that “authorization for forcible entry is implicit” in these regulations considering: (1) the local law enforcement provision; and (2) that inspectors would be unable to discharge their responsibilities unless authorized to forcibly enter a facility. Aplt. Br. at 40-41.

But § 2.129 does not apply here. By its plain language, the regulation applies to circumstances where: (1) the licensee “refuses to comply” with an official request to correct the animal’s suffering; and (2) the APHIS administrator certifies that “the circumstances indicate the animal’s health is in danger.” 9 C.F.R. § 2.129(a). Here, the factual allegations in the complaint state that Big Cats never refused to comply with a request for care or that the inspectors sought and received an opinion from the APHIS Administrator that forcible entry was necessary.

In fact, according to the complaint, the inspectors themselves did not think they were engaged in a confiscation under this provision. In their internal report on the incident, they characterized their visit as a “routine inspection” and that they were denied access pursuant to the inspection regulation, App. 90-91, á regulation that only allows APHIS officials to enter a business to inspect records, photograph animals, and document noncompliance with the Act, 9 C.F.R. § 2.126(a). These regulations do not give a whiff of support for unannounced forcible entry of a business.

In sum, the AWA regulatory scheme is similar to the scheme that the Court found inadequate in Colonnade to protect constitutional rights. Absent statutory authorization, the inspectors had no basis to forcibly enter the establishment without a warrant. Accordingly, Big Cats has adequately alleged that the APHIS inspectors’ unauthorized entry violated their Fourth Amendment rights and that the AWA did not authorize the warrantless search.

b. Clearly Established

Under qualified immunity, even if the inspectors violated the Fourth Amendment, they are entitled to immunity if no clearly established law would, have informed them that a warrantless forcible search was improper. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that' right.’ ” al-Kidd, 131 S.Ct. at 2083 (alterations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct 3034, 97 L.Ed.2d 523 (1987)). But the plaintiff must show a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must supply the requisite notice. Columbian Fin. Corp. v. Stork, 811 F.3d 390, 396 (10th Cir. 2016).

Colonnade is squarely on point. The inspection provisions allowed access at reasonable times for surprise inspections but nowhere allowed or authorized the use of force; Moreover, both inspection schemes provided penalties to enforce compliance. For the tax statutes in Colonnade, Congress required a fine for any person “who refuses to admit any officer or employee of the Treasury Department” acting under the tax statute. Similarly, under the AWA, licensed businesses face civil penalties up to $10,000 for violating the statute or corresponding regulations, thus obviating the need for forcible entry, 7 U.S.C. § 2149(b). Thus, the AWA’s scheme is like that in Colonnade, which for fifty years has stood for the proposition that a warrant is required for forcible entry into closed premises.

The government argues the AWA goes further than the scheme in Colonnade or even Burger, making misconduct less obvious to inspectors. It contends, moreover, the regulations provide for forcible entry in cases of veterinary emergency to conduct a confiscation. As discussed above, where inspectors believe an animal is suffering and the exhibitor refuses to provide adequate care, the inspector may confiscate the. animal if the APHIS Administrator determines the animal’s health is in danger. 9 C.F.R. § 2.129(a). But, according to the complaint, at no point did Big Cats refuse to provide veterinary care, nor did the APHIS Administrator determine the tiger cubs were in danger. They also knew that both of Big Cats’ contract veterinarians “believed [a] one-day delay [in examination] was preferable to transporting the animals,” App. 53, obviating the basis to believe care was urgent. And, in any event, the inspectors did not rely on the confiscation regulations to justify their entry into the premises, which they described as a “routine inspection” in the report filed after the incident. It is also worth noting that neither the AWA regulations nor applicable Animal Care Inspection Guide suggest that forcible entry is a permissible technique. See Supp. App. 2 — 19'; Aplt. Br. at 27. In fact, the Guide instructs agents to “not enter ’ facilities with locked gates and/or No Trespassing signs.” Supp. App, 2. The Guide further recommends law enforcement assistance only to provide security for personal safety, and not to suggest they are necessary to facilitate forcible entry. Id. And further at odds with the government’s position, the Guide states “There may be times during a confiscation operation” when inspectors should involve legal counsel “in the acquisition or service of a subpoena or warrant.” United States Dep’t of Agric., Animal Welfare Inspection Guide 8-28 (2013); see Aplt. Br. at 27. Thus, we see no factual or regulatory basis for a reasonable inspection agent to use force to enter a licensee’s premises absent an emergency or exigent circumstances.

Because we see no meaningful difference between the Colonnade inspection scheme and the one here, reasonable APHIS inspectors should have known they could not forcibly enter a business facility to perform an inspection, absent a warrant or an exception to the warrant requirement. Big Cats alleges facts showing that the agents cut the locks to conduct a non-emergency inspection where the regulations did not provide for forcible entry. The law is clearly established that inspection officials cannot enter business premises without a warrant in those circumstances.

B. Section 198S

We turn lastly to the question of whether Big Cats can sue the APHIS inspectors under § 1983 of the Civil Rights Act. Big Cats contends the inspectors are subject to liability under § 1983 “because they acted under color of state law when they induced deputies to cut chains and enter the premises .,” App. 57. We disagree.

Section 1983 is not directed at conduct by federal officials. Instead, it provides a remedy against state actors who' violate a federal right, pursuant to state authority. Fallon, supra, at 986; Monroe v. Pape, 365 U.S. 167, 171-76, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part on other grounds, Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). For this reason, feder al employees are rarely § 1983 defendants, and “actions of the Federal Government and its officers are at least facially exempt from [§ 1983] proscriptions.” District of Columbia v. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). But in some cases, federal officials may in fact act under “color of state law” for § 1983 purposes.

The paradigmatic example is when federal officials conspire with state officials to infringe a protected constitutional right. Martinez v. Winner, 771 F.2d 424, 441 (10th Cir. 1985) (“Federal officials -ordinarily are not suable under § 1983,- which requires action under color of state law, but they may- be liable under § 1983 where, as here, they are charged with conspiring with state officers or employees.”), vacated on other grounds, 800 F.2d 230 (10th Cir. 1986). Most courts agree that conspiracy with state actors is a requirement to finding, that federal actors jointly acted under, color of state law. Strickland ex rel. Strickland v. Shalala, 123 F.3d 863, 866-67 (6th Cir. 1997) ,(“[C]ourts finding that & federal official has acted under color of state law have done so only when there is evidence that federal and state officials engaged in a conspiracy or ‘symbiotic’ venture to violate a person’s rights under the Constitution or federal law.”).

Big Cats alleges the federal employees “acted jointly” with the deputies when they represented they had a court order to seize the cubs, and that “[r]elying on the USDA’s representations, the deputies cut the chains,” App. 54-55. These are insufficient allegations' to establish a conspiracy. “[U]nder established case law, the fundamental characteristic of a conspiracy is a joint commitment to an ‘endeavor which, if completed, would satisfy all of the elements of the underlying substantive criminal offense.’ ” Ocasio v. United States, — U.S. -, 136 S.Ct. 1423, 1429, 194 L.Ed.2d 520 (2016) (alteration and citation omitted). The complaint must allege (1) an agreement between two or more persons, with (2) an intent to achieve an unlawful act. Wayne R. LaFave, 2 Subst. Crim. L. § 12.2 (2d ed. 2003); see also United States v. Hill, 786 F.3d 1254, 1266 (10th Cir. 2015) (citing the elements of a conspiracy), cert denied, — U.S. -, 136 S.Ct. 377, 193 L.Ed.2d 304 (2015). The allegations of the complaint make it clear the El Paso County sheriffs deputies were not engaged in an agreement with the inspectors to pursue an unlawful act. Read most favorably to Big Cats, the most that can be said is that the deputies were facilitating entry to the Big Cats premises on the false representation and mistaken impression that the inspectors had a court order to enter the facility. There was no agreement to violate law; indeed, the El Paso County incident report in the record states the deputies thought their actions were supported by a court order and a need to check on the cubs’ welfare.

To hold federal officials subject to § 1983 liability based on joint action, plaintiff must at least allege that federal and state actors shared a “common, unconstitutional goal,” or point to a “substantial degree of cooperative action” or “overt and significant state participation.” See Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1157 (10th Cir. 2016) (quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995)); see also Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000) (requiring conspiracy such that the state and non-state actors “‘share[d] a common, unconstitutional goal’ ” (quoting Anaya v. Crossroads Managed Care Sys., 195 F.3d 584, 596 (10th Cir. 1999))).

The district court nonetheless concluded the “enlistment of state law enforcement” was sufficient to hold federal officers liable under § 1983. The court and the government rely on an unpublished district court case from California for support, Reynoso v. City & County, of San Francisco, No. C 10-00984 SI, 2012 WL 646232 (N.D. Cal. Feb. 28, 2012), In that case, San Francisco police officers entered the plaintiffs, residence to search for drugs. But the court found substantial concerted action by the state and federal officials. “After the premises was secured, the ATF agents ‘merely substituted themselves for the agents of the City and County of San Francisco in the break-in of plaintiffs’ home and took up the search and seizure initiated by the City and County of San Francisco authorities.’ ” Id. at *6 (citation omitted). Because the federal defendants were significant participants in the state scheme, those federal defendants’ actions could “‘fairly be attributed to the state.’ ” Id. at *5-6 (quoting Cabrera v. Martin, 973 F.2d 735, 742-43 (9th Cir. 1992)).

The circumstances here are quite different. The deputies were not actively engaged in pursuing a common law enforcement objective. Nor were they attempting to vindicate any state or county interest. They were only operating under the false assumption that the entry was authorized under federal law and pursuant to court order.

In sum, the complaint does not allege the federal and state actors shared an unconstitutional goal. Nor do we find sufficient state cooperation, considering the local deputies’ entire involvement consisted of complying with the requests of the APHIS inspectors. More accurately, the federal officials are better seen as acting under color of federal law — the AWA— when they instructed the state officials to cut the locks.

Because the federal officials did not act under color of state law, the district court erred in denying the government’s motion to dismiss the § 1983 claim.

III. Conclusion

Big Cats may proceed with its Bivens claim because no inspector would have reasonably believed he could forcibly enter the business premises of a licensee in these circumstances. We therefore AFFIRM the district court’s order denying the government’s motion to dismiss the Bivens claim. We REVERSE the court’s order denying the government’s motion to dismiss the § 1983 claim, however, because the federal officials did not act under color of state law.

      . The Court suggested an Eighth Amendment Bivens claim would be permitted in Malesko, 534 U.S. at 70, 122 S.Ct, 515, because a prisoner may lack "any alternative remedy” for harms caused by a federal prison officer’s unconstitutional conduct.

      . One court recently found Congress supplanted an implied Fourth Amendment Bivens remedy. In De La Paz, 786 F.3d at 377, the Fifth Circuit found Congress supplanted Fourth Amendment claims in the immigration context where: (1) illegally seized evidence could be suppressed in deportation hearings; (2) the government had a process for reviewing alleged Fourth Amendment violations by employees; and (3) Congress has enacted an “elaborate remedial system” of immigration laws that has been in place for decades.

      .Licensees may then challenge a final agency action under the APA. 1 U.S.C. § 2149(c) (“Any dealer, exhibitor, research facility, intermediate handler, [or] carrier ... aggrieved by a final order of the Secretary issued pursuant to this section may, within 60 days after entry of such an order, seek review of such order in the appropriate United States Court of Appeals in accordance with the provision of sections 2341, 2343 through 2350 of Title 28, and such court shall have exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part) or to determine the validity of the Secretary’s order.”).

      . Compare W. Radio Serv. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) ("[T]he design of the APA raises the inference that Congress 'expected the Judiciary to stay its Bivens hand’ [for process based challenges to agency action]." (citation omitted)); and Miller v. U.S. Dep’t of Agric. Fann Serv. Agency, 143 F.3d 1413, 1417 (11th Cir. 1998) (holding that plaintiff’s right to judicial review under the APA precluded him from bringing Bivens action), with Munsell v. Dep’t of Agric., 509 F.3d 572, 591 (D.C. Cir. 2007) (suggesting a hard-line rule that the existence of APA review precludes plaintiff from seeking Bivens remedy ”make[s] little sense” in some circumstances, such as when defendant’s unconstitutional conduct removed plaintiff from regulated arena, making APA review unavailable); and Navab-Safavi v. Broad. Bd. of Governors, 650 F.Supp.2d 40, 70 (D.D.C. 2009) ("Neither the Supreme Court nor the D.C. Circuit has ever held that the APA precludes the availability of a Bivens remedy.”). But see Sell v. United States, 539 U.S. 166, 193, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (Scalia, X, dissenting) (suggesting that Bivens remedy is not precluded by availability of APA review) ("Petitioner could have obtained pre-trial review ... by filing suit under the [APA], or even by filing a Bivens [] action.”) (emphasis added) (citation omitted)).

      . That provision states in relevant part that, where an APHIS official finds an animal is:
      (a) suffering as a result of a failure of the ... carrier to comply with any provision of the regulations or the standards set forth in this subchapter, the APHIS official shall make a reasonable effort to notify the ... carrier of the condition of the animal(s) and request that the condition be corrected and that adequate care be given to alleviate- the animal's suffering or distress.... In the event that the ... carrier refuses to comply with this request, the APHIS official may confiscate the animal(s) for care, treatment, or disposal as indicated in paragraph (b) of this section, if, in the opinion of the Administrator, the circumstances indicate the animal’s health is in danger.
      (b) In the event that the APHIS official is unable to locate or notify the dealer, exhibitor, intermediate handler, or carrier as required in this section, the APHIS official shall contact a local police or other law officer to accompany him to the premises and shall provide for adequate care when necessary to alleviate the animal’s suffering.

      . This is an appeal from a motion to dismiss. It is possible that after discovery in this case we may see a different factual posture. Our task here is based on the allegations in the complaint. If the landscape changes after discovery, the government is entitled to seek summary judgment on qualified immunity. For purposes of our analysis, the legal posture here does not support a finding of a veterinary emergency or other exigent circumstances.

      . See also Steven H. Steinglass, Section 1983 Litigation in State Courts § 2.8 (2015) ("Federal officials, however, may be found to have acted under the color of state law and thus subject to suit under § 1983 when they conspire with state officials,”); William H. Re-Mine, Civil Suits for Civil Rights; A Primer on § 1983, Colo. Law., Nov. 1997, at 5, 6 ("Federal officials are not subject to suit under § 1983, unless they act in conspiracy with state officials.”).

      . A plaintiff may well need to allege a higher level of coordination to show federal officers, rather than private parties, acted under color of state law. This is for several reasons. First, plaintiffs must overcome the presumption that Congress did not intend for federal officers to be subject to § 1983 litigation. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602. Second, plaintiffs must overcome the presumption that where federal and state actors come together, they are acting pursuant to supreme law. See Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009) (en banc) ("[SJince ‘federal officials typically act under color of federal law,’ they are rarely deemed to have acted under color of state law,” (citation omitted)). We need not resolve exactly what this showing looks like, however, because plaintiffs fail to meet any existing analysis that would prove these non-state actors acted under color of state law.


source: Caselaw Access Project

author: BRISCOE, Circuit Judge.

license: Public Domain

text:
    IN RE: Bobby Dale LONG, Debtor. Lyle R. Nelson, Chapter 7 Trustee, Appellant, v. Bobby Dale Long, Appellee.
    No. 16-6073
    United States Court of Appeals, Tenth Circuit.
    Filed December 12, 2016

      Submitted on the briefs: Lyle R. Nelson, Attorney, Elisabeth D. Brown, Attorney, and Wyatt D. Swinford, Attorney, of Elias, Books, Brown & Nelson, P.C., Oklahoma City, Oklahoma, for Appellant.
    J. David Ezzell, Attorney, and Ben Ez-zell, Attorney, of Ezzell & Shepherd, PLLC, Enid, Oklahoma, for Appellee.
    Before BRISCOE, EBEL and PHILLIPS, Circuit Judges.
   BRISCOE, Circuit Judge.

The debtor in this Chapter 7 bankruptcy proceeding, Bobby Long, claimed an exemption in $60,000 worth of life insurance proceeds that he received as a beneficiary shortly piior to filing his bankruptcy petition. The Trustee objected to the claimed exemption, but the bankruptcy court overruled the objection and sustained Long’s claimed exemption. The Trustee appealed to the district court, which affirmed the bankruptcy court’s decision. The Trustee now appeals to this court. Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we affirm.

I

Donna Long, the wife of debtor Bobby Dale Long (Long), held a life insurance policy (the Policy) in the amount of $60,000. Long was the named beneficiary under the Policy. Donna Long died on July 22, 2014. On October 8, 2014, Long received the proceeds of the Policy in the form of a $60,000 check. Long cashed the check on December 11, 2014, depositing $56,500 of the funds into his savings account and $1,500 into his personal checking account, and retaining $2,000 in cash.

On November 4, 2014 — after he received the life insurance check, but before he cashed it — Long filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Oklahoma. Long subsequently filed an amended Schedule C-claiming an exemption in and to the' $60,000 he received as beneficiary under the life insurance policy.

On May 19, 2015, the Trustee filed an objection to Long’s amended schedule, arguing that Long was not entitled to an exemption in the life insurance proceeds. In response, Long argued that “the life insurance policy payout ... [was] exempt pursuant to 36 Okla. Stat. § 3631.1(A) [sic].” Jt. App. at 44. The Trustee argued in reply that section 3631.1(A) does not exempt insurance policy proceeds that have already been paid out to a beneficiary.

On October 8, 2015, the bankruptcy court issued a written order sustaining Long’s claimed exemption. The Trustee filed a timely notice of appeal, electing to have the appeal heard by the district court. On February 16, 2016, the district court issued a written order affirming the bankruptcy court’s ruling.

The Trustee now appeals to this court.

II

On appeal, the Trustee argues that the bankruptcy court erred in interpreting Okla. Stat. tit. 36, § 3631.1(A) to afford Long. with an exemption in the $60,000 proceeds he received from the Policy. “In an appeal from a final decision of a bankruptcy court, ‘we independently review the bankruptcy court’s decision, applying the same standard as the [bankruptcy appellate panel] or district court.’ ” In re Millennium Multiple Emp’r Welfare Benefit Plan, 772 F.3d 634, 638 (10th Cir. 2014) (quoting In re Baldwin, 593 F.3d 1155, 1159 (10th Cir. 2010)). “In doing so, we treat the bankruptcy appellate panel or district court as a ‘subordinate appellate tribunal whose rulings are not entitled to any deference (although they may certainly be persuasive).’ ” Id. (quoting In re Miller, 666 F.3d 1255, 1260 (10th Cir. 2012)). “A bankruptcy court’s legal conclusions are reviewed de novo, while its factual findings are reviewed for clear error.” Id.

The filing of a Chapter 7 bankruptcy petition “creates an estate,” 11 U.S.C. § 541(a), and “the debtors’ property becomes property of the bankruptcy estate subject to the exemptions listed in 11 U.S.C. § 522,” Lampe v. Williamson (In re Lampe), 331 F.3d 750, 754 (10th Cir. 2003). “Section 522(b) specifies that the debtor can take the exemptions enumerated in § "522(d) unless applicable state law specifically provides otherwise.” Id. As applicable here, the State of Oklahoma has opted out of thte federal exemption scheme' and has enacted its own set of exemptions. See ‘Okla. Stat, tit. 31, § 1(B) (“No natural person residing in this state may exempt fi'om the property of the estate in any bankruptcy proceeding the property specified in subsection (d) of Section 522 of the Bankruptcy Reform Act of 1978 ... except as may otherwise be expressly permitted under this title or other statutes of this state.”).

At issue is whether Okla. Stat. -tit. 36, § 3631(A)(4) affords Long an exemption in the Policy proceeds. Section 3631.1, which is part of Oklahoma’s Insurance Code, is entitled “Certain money and benefits exempt from legal process or seizure— Exceptions.” Subsection (A) of the statute states:

All money or benefits of any kind, including policy proceeds and cash values, to be paid or rendered- to the insured or any beneficiary under any policy of insurance issued by a life, health or accident insurance company, under any policy issued by a mutual benefit association, or under any plan or program of annuities and benefits, shall:
1. Inure exclusively to the benefit of the person for whose use and benefit the money -or benefits are designated in the policy, plan or program;
2. Be fully exempt from execution, attachment, garnishment or other process;
3. Be fully exempt from being seized, taken or appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of the insured or of any beneficiary, either before or after said money or benefits is or are paid or rendered; and
4. Be fully exempt from all demands in any bankruptcy proceeding of the, insured or beneficiary.

Okte. Stat. tit. 36, § 3631.1(A).

The. Trustee argues, as he did below, that the phrase “to be paid or rendered” in the opening sentence of subsection (A) places a temporal requirement on the exemption. More specifically, the Trustee argues that this phrase clearly demonstrates an intent for the exemption to apply only up to the point at which the policy proceeds are actually paid to the insured or beneficiary. Although the Trustee acknowledges that subsection (A)(3) employs the phrase “before or after said money or [insurance] benefits is or are paid or rendered,” he argues that subsection (A)(3) is inapplicable in this case for two reasons. First, he argues that only subsection (A)(4), which directly references “bankruptcy proceedings,” governs what happens in bankruptcy proceedings. Second, and relatedly, he argues that the Oklahoma Legislature expanded the temporal limitation of the statute in subsection (A)(3), but did not do so in subsection (A)(4), and instead intended for the general temporal limitation to apply in bankruptcy proceedings.

The Trustee’s arguments hinge in large part on the proper interpretation of the opening clause of Subsection (A) of the statute, which refers to “[a]ll money or benefits of any kind ... to be paid or rendered to the insured or any beneficiary.” As noted, the Trustee asserts that the phrase “to be paid or rendered” limits application of Subsection (A) to only the “money or benefits of any kind” that will be paid or rendered to an insured or beneficiary at some point in the future and are thus still in the possession of the “life, health or accident insurance company,” “mutual benefit association,” or “plan or program of annuities and benefits” referred to in the remainder of the opening clause of Subsection (A). Thus, the Trustee asserts, the opening clause of Subsection (A) does not encompass any money or benefits that have already been paid to an insured or beneficiary. In contrast, Long argues, and the bankruptcy court agreed, that the phrase “to be paid or rendered” refers to “[a]ll money or benefits of any kind” whenever paid to an insured or beneficiary. In other words, Long argues, there is no temporal limitation imposed by the opening clause of Subsection (A), and thus it applies, for example, to insurance proceeds already paid to a beneficiary.

The plain language of the opening clause of Subsection (A), viewed in isolation, can most certainly be read in the manner suggested by the Trustee. Specifically, the phrase “to be paid or rendered,” can reasonably be read as the future tense of the verbs “pay” and “render,” and would thus indicate that the clause is referring to all types of money or benefits that will be paid or rendered to' an insured or beneficiary at some point in the future (whether or not the triggering event for payment of such money or benefits has or has not already occurred). See United States v. Gibbons, 71 F.3d 1496, 1500 n.3 (10th Cir. 1995) (noting that the use of “to be” indicates future tense); Ferguson v. Flying Tiger Line, Inc., 688 F.2d 1320, 1323 (9th Cir. 1982) (holding that the phrase- “ ‘[t]o be taken’ is, of course, a future tense of the verb ‘take.’ ”). Under such a reading, the opening clause of Subsection (A) would exclude any money or benefits that have already been paid to an insured or beneficiary.

Two longstanding decisions of the Oklahoma Supreme Court, however, lead us to conclude that the opening clause of Subsection (A) must be interpreted in the' broader manner argued by Long. See Etherton v. Owners Ins. Co., 829 F.3d 1209, 1223 (10th Cir. 2016) (“If the state’s highest court has interpreted a state statute, we defer to that decision. If the state’s highest court has not interpreted a state statute, we instead predict how that court would rule.”) (citation omitted); In re Borgman, 698 F.3d 1265, 1269 (10th Cir. 2012) (holding that the scope and application of state exemptions are defined by the state courts, and that we are bound by their interpretations). In State ex rel. Lankford v. Collins, 70 Okla. 323, 174 P. 668 (1918), and later in First Nat’l Bank of Cushing v. Funnell, 144 Okla. 188, 290 P. 177 (1930), the Oklahoma Supreme Court interpreted two similarly-worded and -purposed insurance statutes. At issue in Lank-ford was a 1910 Oklahoma statute “relating to fraternal insurance associations” that read as follows:

The money or other benefit, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under this article shall not be liable to attachment by trustee, garnishee or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of the certificate holder, or of any beneficiary named in any certificate, or any person who may have any right thereunder.

174 P. at 569. The Oklahoma Supreme Court, after acknowledging that some other states had interpreted similarly-worded statutes in a strict manner to include only money or benefits to be paid in the future, held that the phrase “to be paid, provided or rendered,” as used in this statute, was “descriptive of the benefits and not of the exemption, [and] d[id] not limit the exemption to any particular time or to any condition not specifically expressed in the statute].” Id. at 571-72.

In Funnell, the Oklahoma Supreme Court addressed a 1925 Oklahoma statute dealing with mutual benefit associations that read as follows:

The money or other benefit to be paid, provided or rendered by any association authorized to do business under this Act, shall not be liable to attachment by trustee, garnishee or other process.

290 P. at 177. The defendant in Funnell argued that the statute “only exempted] money to be paid; that the exemption d[id] not obtain after payment to the beneficiary and deposit thereof by him in [his] bank.” Id. The Oklahoma Supreme Court, citing its prior decision in Lankford, rejected the defendant’s proposed interpretation. Id. (“The question ... has been settled in this state adversely to the contention of defendant.”). Notably, the defendant in Funnell argued “that the statute [at issue] was amended since the rendition of the opinion in the Lankford Case, and that the rule therein announced therefore no longer ap-plie[d].” Id at 177-78. The Oklahoma Supreme Court summarily rejected that argument, stating: “The amendment did not materially change the statute in this respect. We adhere to the rule therein announced [in Lankford].” Id. at 178.

Returning to the opening clause of Subsection (A), the only textual difference between it and the statutes at issue in Lank-ford and Funnell is that Subsection (A) employs the phrase “to be paid or rendered” rather than the phrase “to be paid, provided or rendered.” That difference, however,- is insignificant. In light of Lank-ford and Funnell, we are bound to interpret the opening clause of Subsection (A) in a similar manner. We thus conclude that Subsection (A) does not place any temporal limitation on the money or benefits referred to in the clause, but instead encompasses money or benefits that have or will be paid to an insured or beneficiary.

We note that, contrary to the Trustee’s suggestion, this interpretation of Subsection (A) is bolstered by the language of Subsection (A)(3). Subsection (A)(8) states that the “money or benefits” referred to in the opening clause of Subsection (A) shall “[b]e fully exempt from being seized, taken or appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of the insured or of any beneficiary, either before or after said money or benefits is or are paid or rendered.” Okla. Stat, tit. 36, § 3631.1(A)(3) (emphasis added). If, as argued by the Trustee, the opening clause of Subsection (A) encompassed only “money or benefits” that have not yet been paid to an insured or beneficiary, then the emphasized language of Subsection (A)(3) would prove meaningless, and indeed absurd. More specifically, - Subsection (A)(3) refers to “said money or benefits,” obviously referring to the “money or benefits” described-in the opening clause of Subsection (A). If the “money or benefits” described in Subsection (A) included only money or benefits that have yet to be paid to an insured or beneficiary, then, by necessity, there would never be any money or benefits actually paid or rendered to an insured or beneficiary. In other words, Subsection (A)(3)’s reference to “after said money or benefits is or are paid or rendered” would be unnecessary and thus meaningless.

That leaves only the Trustee’s argument that Subsection (A)(4) alone governs bankruptcy proceedings and that Subsection (A)(3) has no application in bankruptcy proceedings. We need not resolve whether (A)(3) applies to bankruptcy proceedings. Having concluded that the opening clause of Subsection (A) encompasses “[a]ll money or benefits of any kind” that have or will be paid to an insured or beneficiary, it is beyond dispute that Subsection (A)(4) operates to render such money or benefits “fully exempt from all demands in any bankruptcy proceeding of the insured or beneficiary.”

For these reasons, .we agree with the bankruptcy court that Long was entitled to an exemption in the $60,000- of life insurance proceeds that he received prior to filing his bankruptcy petition..

AFFIRMED.

      . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.


author: BACHARACH, Circuit Judge.

text:
    AVENUE CAPITAL MANAGEMENT II, L.P., a Delaware limited partnership; Avenue International Master, L.P., a Cayman Islands exempted limited partnership; Avenue Investments, L.P., a Delaware limited partnership; Avenue Special Situations Fund VI (Master), L.P., a Delaware limited partnership; Managed Accounts Master Fund Services-MAP10, a sub-trust of an umbrella unit trust constituted by a trust deed governed by the laws of Ireland; Avenue-CDP Global Opportunities Fund, L.P., a Cayman Islands exempted limited liability partnership; Avenue Special Opportunities Co-Investment Fund I, L.P., a Delaware limited partnership; Avenue Special Opportunities Fund I, L.P., a Delaware limited partnership; Drawbridge Special Opportunities Fund L.P., a Delaware limited partnership; Drawbridge Special Opportunities Fund LTD, a Cayman Islands company; FCI Holdings I LTD, a Cayman Islands company; FCI Holdings II LTD, a Cayman Islands company; FCOF II UB Securities LLC, a Delaware limited liability company; FCOF UB Investments LLC, a Delaware limited liability company; FTS SIP L.P., a Jersey limited partnership; Pangaea CLO 2007-1 LTD, a Cayman Islands company; Sargas CLO I LTD, a Cayman Islands company, Worden Master Fund II L.P., a Cayman Islands exempted limited partnership; Worden Master Fund L.P., a Cayman Islands exempted limited partnership, Plaintiffs-Appellants, v. Richard F. SCHADEN, an individual; Richard E. Schaden, an individual; Frederick H. Schaden, an individual; Greg MacDonald, an individual; Dennis Smythe, an individual; Andrew R. Lee, an individual; Patrick E. Meyers, an individual; John M. Moore, an individual; Thomas Ryan, an individual; Consumer Capital Partners LLC, a Delaware limited liability company a/k/a Cervantes Capital LLC, Defendants-Appellees.
    No. 15-1389
    United States Court of Appeals, Tenth Circuit.
    Filed December 13, 2016

      Rex S. Heinke, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California (Jeffery A. Dailey, Akin Gump Strauss Hauer & Feld LLP, Philadelphia, Pennsylvania, Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California, Stephen M. Baldini, Akin Gump Strauss Hauer & Feld, LLP, New York, NY, and Allen L. Lanstra, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, California, with him on the briefs) for Plaintiffs-Appellants.
    Nathaniel P. Garrett, Jones Day, San Francisco, California (Amanda K. Rice, Jones Day, San Francisco, California, Timothy R. Beyer, Bryan Cave, Denver, Colorado, Bruce S. Bennett and Christopher Lovrien, Jones Day, Los Angeles, California, with him on the brief) for Defendants-Appellees.
    Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
   BACHARACH, Circuit Judge.

This securities-fraud case arises out of a transaction to restructure Quiznos’s debt. In this transaction, multiple investment funds (“Avenue” and “Fortress”) purchased equity in Quiznos. After Quiznos’s financial condition plummeted, Avenue and Fortress sued former Quiznos managers and officers, claiming that they had fraudulently misrepresented Quiznos’s financial condition and invoking § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5.

1. The district court dismissed the causes of action for securities fraud based on failure to state a valid claim.

The 1934 Act’s definition of “security” includes an investment contract, stock, or instrument commonly known as a “security.” 15 U.S.C. § 78c(a)(10). In district court, Avenue and Fortress argued that the transaction -involved investment contracts, triggering the 1934 Act and Rule 10b-5. The district court rejected this argument, reasoning in part that the transaction had given Avenue and Fortress control over Quiznos. Ultimately, the district court dismissed the securities-fraud causes of action, concluding that Avenue and Fortress had failed to identify facts showing that their newly acquired interests in Quiz-nos constituted investment contracts.

2. Issues and Conclusions

Avenue and Fortress challenge the district court’s conclusion on three grounds, arguing that the transaction involved (1) investment contracts, (2) stock, and (3) instruments commonly known, as securities. We reject each argument: The transaction did not involve investment contracts, and Avenue and Fortress failed to properly preserve their current arguments characterizing the interests as stock or instruments commonly known as securities.

3. We engage in de novo review.

The district court ruled that the causes of action for securities fraud had failed to state a valid claim. In addressing this ruling, we engage in de novo review. Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013).

To survive the motion to dismiss, Avenue and Fortress had to plead enough facts to create a facially plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct 1937, 173 L.Ed.2d 868 (2009). In applying this standard, we accept the truth of the complaint’s well-pleaded factual allegations. Cty. of Santa Fe v. Pub. Serv. Co. of Ñ.M., 311 F.3d 1031, 1034 (10th Cir. 2002). These factual allegations include not only the statements in the complaint but also the documents referenced in the complaint that are central to the claims. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). Thus, we rely on (1) the facts alleged in the complaint and (2) the central documents referenced in the complaint.

4. Quiznos restructured its debt after experiencing a sharp downturn.

The complaint and referenced documents show that Quiznos had borrowed heavily' before its business sharply declined. From 2007 to 2011, Quiznos lost roughly 3,000 franchise restaurants and profitability plunged.

With this plunge, Quiznos could no longer satisfy its loan covenants. As a result, Avenue, Fortress, and others could foreclose on collateral, call in debt, or accelerate payments. To avoid a calamity, Quiznos restructured its debt.

5. With the restructuring of the debt, Avenue and Fortress gained control over Quiznos.

The restructuring took place through a transaction involving Quiznos, Avenue, Fortress, and others. This transaction made Avenue and Fortress members of a manager-managed limited-liability company that operated Quiznos. Avenue acquired about 70% of the LLC’s shares, and Fortress acquired about 10% of the shares. In exchange, Avenue pumped $150 million into Quiznos and Avenue and Fortress reduced Quiznos’s debt.

With roughly 80% of the LLC’s shares, Avenue and Fortress collectively obtained the power to amend the LLC agreement however they wished. In addition, the LLC agreement empowered Avenue to appoint seven managers (one of whom would serve as the chairperson of the board) and Fortress to appoint one manager. Avenue and Fortress could also remove the managers that they had appointed. The appointed managers would select the Chief Executive Officer, who would serve as the ninth manager. Avenue and Fortress also obtained the power to appoint five nonvoting observers to attend board meetings.

Management of Quiznos would be vested exclusively with the board. Although Quiz-nos’s day-to-day operations would be handled by the CEO and other officers, the board would appoint these officers and enjoy supervisory authority over the officers. If the board wished, it could even dissolve the LLC.

At the end of each fiscal year, Avenue, Fortress, and other members of the LLC would receive Quiznos’s audited financial statements. At the end of each quarter, these members would also receive Quiz-nos’s unaudited financial statements. In addition, the LLC agreement allowed Fortress to inspect, examine, and copy Quiz-nos’s records.

6. Avenue and Fortress collectively controlled the profitability of their investments in Quiznos, which means the interests cannot constitute investment contracts.

We must determine, as a matter of law, whether the interests conveyed to Avenue and Fortress constitute.investment contracts. See SEC v. Thompson, 732 F.3d 1151, 1160 (10th Cir. 2013) (matter of law). In making this determination, we consider whether the expected profits from these interests were “to come solely from the efforts of others.” SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946); see Landreth Timber Co. v. Landreth, 471 U.S. 681, 691-92, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (indicating that Howey’s control test determines whether an instrument constitutes an investment contract). In our view, Avenue and Fortress controlled the profitability of their investments, preventing characterization as investment contracts.

“An investor who has the ability to control the profitability of his investment, either by his own efforts or by majority vote in group ventures, is not dependent upon the managerial skills of others.” Gordon v. Terry, 684 F.2d 736, 741 (11th Cir. 1982). The greater the control acquired by Avenue and Fortress, the weaker the justification to characterize their investments as investment contracts. SEC v. ETS Payphones, Inc., 408 F.3d 727, 732 (11th Cir. 2005) (per curiam).

In assessing the degree of control that Avenue and Fortress acquired, we consider their contribution of time and effort to the success of the enterprise, their contractual powers, their access to information, the adequacy of financing, the level of speculation, and the nature of the business risks. SEC v. Shields, 744 F.3d 633, 645 (10th Cir. 2014).

Applying these factors, Avenue and Fortress point out that' (1) the LLC is manager-managed and (2) the daily operations are controlled by the officers rather than the members. But in three ways, the transaction allowed Avenue and Fortress to control the. profitability of their investments.

First, Avenue and Fortress collectively obtained ownership of about 80% of the LLC. With this level of ownership, Avenue and Fortress could freely amend the LLC agreement. See Wen v. Willis, 117 F.Supp.3d 673, 685-88 (E.D. Pa. 2015) (holding that an interest in an LLC was not an investment contract, partially because the LLC agreement could be amended only if the plaintiff-investor consented). For instance, Avenue and Fortress could amend the agreement to

• make the company .member-managed, which would allow direct control over Quiznos, or
• allow dissolution of the company through a majority-.vote of the members.

See Great Lakes Chem. Corp. v. Monsanto Co., 96 F.Supp.2d 376, 392-93 (D. Del. 2000) (holding that interests in an LLC did not constitute investment contracts, in part because the plaintiff-investor could dissolve the company); Wen, 117 F.Supp.3d at 685-88 (same).

Second, Avenue and Fortress could (1) choose eight of the nine managers, including the chairperson of the board, and (2) remove the eight managers without cause. See Great Lakes, 96 F.Supp.2d at 392-93 (concluding that interests in an LLC operated by managers did not constitute investment contracts, primarily because the plaintiff-investor could appoint all managers and remove them without cause). With the power to choose and remove managers, Avenue and Fortress could supervise the individuals handling day-to-day operations and could dissolve the LLC.

Third, Avenue and Fortress are sophisticated and informed investors, allowing them to make informed investment decisions and intelligently exercise control over Quiznos. As professional investors, Avenue and Fortress had earlier invested heavily in Quiznos. See Robinson v. Glynn, 349 F.3d 166, 172 (4th Cir. 2003) (stating that an investor in an LLC “was a savvy and experienced businessman” in concluding that an interest in an LLC was not an investment contract). Under the LLC agreement, Avenue and Fortress could

• receive audited and unaudited finan- • • cial statements from Quiznos and
• designate non-voting members to attend board meetings.

In addition, the LLC agreement expressly stated that Fortress could inspect, examine, and copy Quiznos’s books. See Rossi v. Quarmley, 604 Fed.Appx. 171, 174 (3d Cir. 2015) (concluding that an interest in an LLC was not an investment contract, partially because the plaintiff-investor had the right to examine the LLC’s financial documents); Nelson v. Stahl, 173 F.Supp.2d 153, 164-66 (S.D.N.Y. 2001) (holding that interests in an LLC were not investment contracts, in part because the plaintiff-investors had obtained the right “to audit, examine and make copies of or extracts from the books of account of the Company, Certificate of Formation, minutes of any-meeting, tax returns, and other information regarding the affairs of the Company”).

In these three ways, the transaction gave Avenue and Fortress control over Quiznos’s profitability, preventing characterization of the investments as investment contracts..

Avenue and Fortress argue that they did not intend to exercise control because they continued to expect the board and the officers to operate Quiznos. But “the test of control is an objective one.” Bailey v. J.W.K Props., Inc., 904 F.2d 918, 921-22 (4th Cir. 1990); see Warfield v. Alaniz, 569 F.3d 1015, 1021-22 (9th Cir. 2009) (framing the control test as an objective inquiry and stating that “while the subjective intent of the purchasers may have some bearing on the- issue of whether they entered into investment contracts, we must focus our inquiry on what the purchasers were offered or promised”). Thus, we analyze the measure of control that Avenue and Fortress could exercise over Quiznos, not the control that they intended to exercise. See Goodwin v. Elkins & Co., 730 F.2d 99, 104 (3d Cir. 1984) (“Whatever subjective perceptions [the plaintiff-investor] may have entertained about his position in the firm, and whatev er may have been the role he actually assumed, the legal interest which he enjoyed does not fall within the scope of the term ‘security’ as intended by Congress.”). “So long as [Avenue and' Fortress] re-tainted] ultimate control, [they had] the power over the investment and the access to information about it which is necessary to protect against any unwilling dependence on the managers]. It [was] not enough, therefore, that [Avenue and Fortress] in fact rel[ied] on others for the management of their investment....” Williamson v. Tucker, 645 F.2d 404, 424 (5th Cir. 1981); see also SEC v. Shields, 744 F.3d 633, 645 (10th Cir. 2014) (“[W]e view the Williamson approach as a supplement to controlling Supreme Court and circuit precedent in determining if allegations are sufficient to raise a fact question.regarding whether a particular investment is a security”).

The interests could constitute investment contracts only if Quiznos’s managers and officers were irreplaceable or'otherwise insulated from Avenue and Fortress’s ultimate control. See Williamson, 645 F.2d at 424 (“[A] partnership can be an- investment contract only when the partners are so dependent on a particular manager that they cannot replace him or otherwise exercise ultimate control.”). There is no suggestion that Quiznos’s managers or officers were irreplaceable or otherwise beyond Avenue and Fortress’s ultimate control.

Avenue and Fortress are sophisticated and informed investors that could make informed investment decisions and intelligently exercise their control over Quiznos’s operations; thus, Avenue and Fortress controlled the profitability of their investments. What Avenue and Fortress purchased was not an investment contract.

7. Fortress forfeited its argument that Avenue could unilaterally dominate the board.

Fortress argues that it was mistakenly lumped together with Avenue. According to Fortress, it had considerably less sway over the board than Avenue had.

Fortress forfeited this argument by failing to raise it in district court. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). We may consider, forfeited arguments under the plain-error standard. Id. at 1239. But Fortress has not asked us to apply the plain-error standard. As a result, we decline to address this newly presented argument. See Richison v. Ernest Grp., Inc,, 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal “marks the end of the road” for. an argument newly presented on appeal); see also Part 8, below (discussing forfeiture).

8. Avenue and Fortress forfeited their appellate arguments characterizing the interests as stock or instruments commonly known as securities.

Securities include not only investment contracts but also stock and instruments commonly known as securities. 15 U.S.C. § 78c(a)(10), In district court, the defendants contended that the interests conveyed to Avenue and Fortress did not constitute stock under the 1934 Act. Avenue and Fortress did not respond to this argument, arguing instead that their investments constituted investment contracts. But here, Avenue and Fortress argue that the interests constituted stock or instruments commonly known as securities. These arguments were forfeited.

An appellant forfeits an argument by failing to preserve it in district court. Anderson, 827 F.3d at 1238. In district court, Avenue and Fortress never argued that the interests constituted stock or instruments commonly known as securities. As a result, the district court expressly declined to address these possibilities. Ave. Capital Mgmt. II, L.P. v. Schaden, 131 F.Supp.3d 1118, 1125 (D. Colo. 2015).

Avenue and Fortress do not deny that they failed to preserve their argument identifying the interests as instruments commonly known as securities. But Avenue and Fortiess insist that they did not forfeit their characterization of the instrument as “stock,” arguing that

• they are simply presenting a further argument in support of their prior characterization of the transactional documents as a security and •

• characterization as stock involves a matter of law.

We reject these arguments.

Avenue and Fortress did argue in district court that the transaction involved securities.-But what matters are the theories presented in district court, not “the overarching claims or legal rubrics that provide the foundation for them.” Fish v. Kobach, 840 F.3d 710, 730 (10th Cir.2016) (to be published).

As Avenue and Fortress observe, their current arguments- are consistent with the one presented in district court, for something can simultaneously constitute an investment contract and stock. But this observation proves little, for many things are consistent even though they are different. Though,the arguments were consistent, Avenue and Fortress never contended to the district court that the transaction involved stock,

Both an investment contract and a share of stock fall under the general category of a “security,” but the two involve different legal analyses. Compare Landreth Timber Co. v. Landreth, 471 U.S. 681, 686, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (stating that an instrument constitutes stock'when it “is both called ‘stock’ and bears stock’s usual characteristics”), with id. at 691-92, 105 S.Ct. 2297 (indicating that the control test from SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), determines whether an instrument creates an investment contract). Avenue and Fortress’s arguments in district court showed the need to analyze whether they had obtained an investment contract. But there was no apparent reason to consider whether the transaction included the conveyance of stock. Thus, inclusion within the broad category of a “security” was not enough to preserve a claim involving the conveyance of stock. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (stating that an issue has not been preserved when it falls under the same general category as an argument presented at trial); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993) (same). Simply raising a related appeal point was not enough to avoid forfeiture. See Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue, 104 F.3d 1229, 1233 (10th Cir. 1997) (stating that we have consistently rejected the argument that the raising of a related theory in district court was enough to preserve a new argument).

When an argument is forfeited, we have discretion to consider the argument. We sometimes do so when an issue involves a matter of law. Cox v. Glanz, 800 F.3d 1231, 1246 n.7 (10th Cir. 2016). But even for matters of law, we decline to consider newly presented legal arguments unless the proper legal disposition is beyond reasonable doubt. Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1227-28 (10th Cir. 2008). The legal disposition is subject to reasonable doubt, for example, when the issue involves a matter of first impression in our circuit. See id. (indicating that proper resolution of a forfeited issue is unsettled when the issue involves a matter of first impression in our circuit).

Characterization of the interests as stock could involve multiple issues of first impression. For example, we have never decided whether the 1934 Act’s coverage for a stock transaction is triggered by calling an instrument “stock” when the transaction involves some, but not all, of the attributes of stock. Nor have we decided whether membership in an LLC can constitute stock.

The same is true for characterization as instruments commonly known as securities, for we have not yet addressed this classification for interests in an LLC.

Even though Avenue and Fortress failed to preserve these appellate challenges, we could ordinarily consider these challenges under the plain-error standard. Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238-39 (10th Cir. 2016). But we have not been asked to review these arguments for plain error. As a result, we decline to consider the newly presented arguments characterizing the interests as stock or as instruments commonly known as securities. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal “marks the end of the road” for an argument newly presented on appeal).

9. Conclusion

Avenue and Fortress (1) failed to adequately allege facts showing that their collective interests constituted investment contracts and (2) forfeited the remaining appeal points. Thus, we affirm.

      . Quiznos franchises sandwich restaurants and operates a catering business.

      , The parties collectively refer to the following plaintiffs as "Avenue”: Avenue Capital Management II, L.P,, Avenue International Master, L.P., Avenue Investments, L.P,,. Avenue Special Situations Fund VI (Master), L.P., Managed Accounts Master Fund Services-MAP10, Avenue-CDP Global Opportunities Fund, L.P., Avenue Special Opportunities Co-Investment Fund I, L.P., and Avenue Special Opportunities Fund I, L.P. Plaintiff Avenue Capital Management II, L.P. is an investment management firm that did not purchase a stake in Quiznos; the other "Avenue” plaintiffs are investment funds affiliated with Avenue Capital Management II, L.P.
      The parties collectively refer to the following plaintiffs as "Fortress”: Drawbridge Special Opportunities Fund L.P., Drawbridge Special Opportunities Fund LTD, FCI Holdings I LTD, FCI Holdings II LTD,'FCOF II UB Securities LLC; FCOF UB Investments LLC, FTS SIP L.P,, Pangaea CLO 2007-1 LTD, Sargas CLO I LTD, Worden Master Fund II L.P., and Worden Master Fund L.P. All of these plaintiffs are investment funds affiliated with Fortress Investment Group LLC, an investment management firm that is not a party.

      . Avenue and Fortress also sued under state law, but the state-law claims are not involved in this appeal.

      . According to Avenue and Fortress, they did not "exercised direct control over their investment” because "they could only elect members of the Board of Managers.” Appellants’ Opening Br. at 33. Avenue and Fortress add that "if the ability to appoint a majority of managers precluded an agreement from being an investment contract, any party that' acquires a majority interest in a company would be unprotected from fraud by the securities laws." Id. at 34. We need not decide whether the power to appoint a majority of managers precludes characterization as investment contracts. Avenue and Fortress could not only appoint managers, but also amend the LLC agreement. Together, these powers allowed Avenue and Fortress to exercise control over the profitability of their investment. As a result, their interests did not constitute investment contracts.

      . The defendants argue that the transaction was a private agreement, the result of good faith bargaining. Because we affirm on other grounds, we need not address this argument.