Sigalovskaya v. Braden

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KARINA SIGALOVSKAYA,

Plaintiff,

v.

MEMORANDUM AND ORDER

SPECIAL AGENT ABIGAIL BRADEN, SPECIAL

15-CV-34 (LDH)

AGENT LUANN WALKER, SPECIAL AGENT

MEGAN BUCKLEY, and SPECIAL AGENT

ROBERT MANCENE,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Karina Sigalovskaya (“Plaintiff”) brings this action against Immigration Customs

Enforcement Homeland Security Investigations Special Agents Abigail Braden, Luann Walter,

Megan Buckley, and Robert Mancene (“Defendants”) pursuant to Bivens v. Six Unknown

Federal Officers alleging false arrest, malicious prosecution, and failure to intervene.

Defendants move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure.

BACKGROUND1

Defendants are special agents in the Child Exploitation Group of Homeland Security

Investigations (“HSI”), which is a part of the Bureau of Immigration and Customs Enforcement

(“ICE”). (Amended Complaint (“Am. Compl.”) ¶ 7, ECF No. 16.) On February 11, 2013,

Defendants Walter, Buckley, and Mancene went to Plaintiff’s residence, pounded on the door,

yelled that they were police, and, after Plaintiff answered, forced their way past her without

1 The following facts taken from the amended complaint (ECF No. 16) are assumed to be true for the purpose of this

memorandum and order.

obtaining her consent to enter. (Id. ¶¶ 10–12.) Defendants Walter, Buckley, and Mancene were

at Plaintiff’s residence to execute an arrest warrant for Plaintiff’s husband, Evidal Ifraimov,

following an eight-month investigation into child pornography possession. (Id. ¶¶ 15, 19.) After

Plaintiff informed Defendants Walter, Buckley, and Mancene that her husband was not home,

Defendants searched her apartment. (Id. ¶ 24.)

While the agents were searching Plaintiff’s home, Ifraimov called Plaintiff over the

phone and advised her and Defendants that he would be home in 20 minutes. (Id. ¶ 27.)

Ifraimov’s attorney called Plaintiff soon after and directed her to tell Defendants to leave her

home, which she did, but Defendants refused to leave. (Id. ¶¶ 28–29.) Instead, after conferring

in a separate room with the other Defendants, Defendant Braden returned and demanded that

Plaintiff write a witness statement.2 (Id. ¶¶ 30–31.) After Plaintiff asked for an explanation,

Defendants Walter, Buckley, and Mancene began to accuse Plaintiff of helping her husband

sexually assault a minor child, which Plaintiff denied. (Id. ¶¶ 32–34.) Defendant Braden

claimed she had proof of Plaintiff’s husband’s unlawful activities, and when Plaintiff asked for

proof, Defendant Braden showed Plaintiff two redacted, non-pornographic photographs on a cell

phone which depicted Plaintiff’s young daughter from the waist up with a long sleeve shirt on.

(Id. ¶¶ 36–39.) When asked whether Plaintiff recognized the girl in the photographs, Plaintiff

responded that she recognized the girl as her daughter. (Id. ¶¶ 41–42.) Defendant Braden asked

Plaintiff whether she recognized where the photograph was taken and if she took the photograph,

and Plaintiff responded that the photograph appeared to have been taken in her home and that she

had not taken the photograph. (Id. ¶¶ 43–46.)

2 The Amended Complaint does not specify the time at which Defendant Braden arrived at Plaintiff’s residence.

Notwithstanding Plaintiff’s denial, Defendant Braden asserted that Plaintiff confessed

that she had taken a pornographic photograph of her daughter and that Plaintiff claimed her

young son had participated in taking the photograph. (Id. ¶¶ 47–48.) Plaintiff alleges that

Defendants made additional false statements about the facts and circumstances surrounding the

incriminating statements and her inculpatory actions on the night in question. (Id. ¶ 50.)

Defendants Walter, Buckley, and Mancene forwarded the statements to the United States

Attorney’s Office for the Eastern District of New York, resulting in her arrest on charges of

sexual exploitation of children and activities relating to material involving the sexual exploitation

of minors. (Id. ¶¶ 52, 55.) Upon her arrest, Plaintiff was taken to a federal detention facility in

New York County, forced to give DNA samples to law enforcement officials, and arraigned

before Magistrate Judge Cheryl Pollak. (Id. ¶¶ 66–67.) Plaintiff was denied bail and held at the

Metropolitan Detention Center for three weeks, during which time she was subjected to full-body

strip searches, propositioned by female inmates, exposed to communicable diseases, and denied

access to proper medical care and treatment. (Id. ¶¶ 68–73.) As a result of her incarceration,

Plaintiff was unable to be with her daughter on her sixth birthday, and she missed her son’s first

acting audition. (Id. ¶¶ 74–75.)

On March 5, 2013, the charges against Plaintiff were dismissed by motion of the United

States Attorney’s Office. (Id. ¶ 76.) Still, Plaintiff was unable to see or speak to her children for

three months because: “[d]ue to the unlawful and perjurious conduct of [Defendant] Braden, the

New York State Administration for Children Services (“ACS”) filed a petition claiming

[Plaintiff] was unfit as a mother and to permanently revoke her guardianship over her children.”

(Id. ¶¶ 78–79.) Plaintiff was forced to retain an attorney and make appearances in New York’s

family court to regain custody of her children. (Id. ¶¶ 80–83.) Although Plaintiff has regained

custody of her children, she was required to have ACS visits twice per month for an unspecified

amount of time. (Id. ¶ 84.) And, Plaintiff was placed on the New York State Sex Offender

Registry. (Id. ¶ 85.)

STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure

12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). See Bank

of New York v. First Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman,

18 F.3d 147, 150 (2d Cir. 1994)) (“The same standard applicable to Fed. R. Civ. P. 12(b)(6)

motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the pleadings.”). As

such, to survive a motion for judgment on the pleadings, a “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556). As with a motion to dismiss under Rule 12(b)(6), a motion for

judgment on the pleadings pursuant to Rule 12(c) “must be decided solely on the pleadings

before the court, in addition to any materials implicitly or explicitly incorporated by reference

into those pleadings.” U.S. v. Certain Real Property and Premises Known as 44 Autumn Ave.,

Brooklyn, N.Y., 156 F.R.D. 26, 30 (E.D.N.Y. 1994).

DISCUSSION

Defendants argue that they are entitled to judgment on the pleadings as to Plaintiff’s

Bivens claims based principally on the Supreme Court’s recent decision in Egbert v. Boule, 142

S. Ct. 1793 (2022).3 Specifically, they argue that Plaintiff’s claims present a new Bivens context

and that special factors foreclose a Bivens remedy. The Court agrees.

In 1971, the Supreme Court held that “even absent statutory authorization, it would

enforce a damages remedy to compensate persons injured by federal officers who violated the

prohibition against unreasonable search and seizures.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854

(2017) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971)). The

Court extended this “implied cause of action” to two other contexts in the decade the followed.

See Davis v. Passman, 442 U.S. 228, 248–49 (1979) (recognizing Fifth Amendment Due Process

Clause cause of action for gender discrimination against congressman); Carlson v. Green, 446

U.S. 14, 19 (1980) (recognizing Eighth Amendment Cruel and Unusual Punishments Clause

cause of action for failure to provide adequate medical treatment).

Since 1980, however, the Supreme Court has not extended Bivens to any new context and

has expressed skepticism about Bivens’ continued viability. Indeed, in Boule, the Supreme Court

concluded that the judiciary’s authority to create implied causes of action under the Constitution

“is, at best, uncertain,” and the Supreme Court has “indicated that if [it] were called to decide

Bivens today, [it] would decline to discover any implied causes of action in the Constitution.”

3 On March 23, 2018, Defendants moved for summary judgment, which the Court granted in part. In their summary

judgment motion, Defendants did not argue that Plaintiff’s false arrest and malicious prosecution claims presented a

new Bivens context, and the Court noted that they could not. Defendants argue, and the Court agrees, that the

Supreme Court’s recent decision in Egbert v.Boule, 142 S. Ct. 1793 (2022) necessitates a special-factors analysis.

Plaintiff argues that Defendants “greatly exaggerate the impact” of Boule and “the Supreme Court’s rationale in

[Boule] for declining to extend Bivens simply does not exist in this case.” (Pl.’s Opp’n at 4, 6, ECF No. 16.) But,

her arguments fail to account for the fact that, as Justice Sotomayor put it in her dissenting opinion, “a restless and

newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases.” Boule, 142

S. Ct. at 1818 (Sotomayor, J. Dissenting). Indeed, the Supreme Court “effectively replace[d]” the two-step inquiry

established in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), “with a new single-step inquiry designed to constrict

Bivens.” Boule, 142 S. Ct. at 1818. Moreover, it agreed that a new context was presented simply by virtue of the

defendants not being Federal Bureau of Narcotics agents as they were in Bivens. See id. at 1803. In light of these

circumstances, therefore, the Court must consider “whether there is any reason to think that Congress might be

better equipped to create a damages remedy.” Id.

142 S. Ct. at 1803, 1809. This Supreme Court’s “about face” on Bivens is the result of its change

in approach to implied causes of action more broadly since Bivens and its progeny were decided.

Previously, “the Court assumed it to be a proper judicial function to ‘provide such remedies as

are necessary to make effective’ a statute’s purpose.” Abbasi, 137 S. Ct. at 1855 (quoting J.I

Case Co. v. Borak, 377 U.S. 426, 433 (1964)). That is, it “assumed common-law powers to

create causes of action.” Boule, 142 S. Ct. at 1802 (quoting Correctional Servs. Corp. v.

Malesko 534 U.S. 61, 75 (2001) (Scalia, J., concurring)). That is no longer the case. Instead,

“the Court [has] adopted a far more cautious course before finding implied causes of action,”

Abbasi, 137 S. Ct. at 1855, because as the Supreme Court explains, it has “come ‘to appreciate

more fully the tension between’ judicially created causes of action and ‘the Constitution’s

separation of legislative and judicial power,’” Boule, 142 S. Ct. at 1802 (quoting Hernandez v.

Mesa, 140 S. Ct. 735, 741(2020)). Moreover, according to the Supreme Court “there are a

number of economic and governmental concerns to consider,” when creating a cause of action,

id., and “Congress is ‘far more competent than the Judiciary’ to weigh such policy

considerations.” Boule, 142 S. Ct. at 1803. Today, therefore, “[w]hen asked to imply a Bivens

action, ‘[the Supreme Court’s] watchword is caution.’” Id. (quoting Hernandez, 140 S. Ct. at

742).

How to apply that caution though is not altogether clear. In Abassi, the Supreme Court

instructed lower courts to apply a two-step framework to determine the availability of a Bivens

remedy. See generally 137 S. Ct. at 1859–60. However, only Five years later, in Boule, the

Supreme Court “rewr[ote]” the framework, and seemingly “closing the door . . . to [claims] that

fall squarely within Bivens’ ambit.” 142 S. Ct. at 1811 (Sotomayor, J. Dissenting).

A. The Abassi Framework

In Abassi, the Supreme Court instructed lower courts to review Bivens claims in two-

steps. At the first step, courts were to ask, “whether the case presents ‘a new Bivens context’—

i.e., is it ‘meaningful[ly]’ different from the three cases in which the [Supreme Court] has

implied a damages action.’” Boule, 142 S. Ct. at 1803 (citing Abassi, 137 S. Ct. at 1859–60). To

make that determination courts were to consider a number of factors, including “the rank of the

officers involved; the constitutional right at issue; the generality or specificity of the official

action; the extent of judicial guidance as to how an officer should respond to the problem or

emergency to be confronted; the statutory or other legal mandate under which the officer was

operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches;

or the presence of potential special factors that previous Bivens cases did not consider.” Abassi,

137 S. Ct. at 1860. If the case presents a new Bivens context, then courts were to proceed to the

second step and consider whether special factors counsel hesitation in recognizing a Bivens

remedy. Id. at 1859.

The Abassi analysis is illustrated in Hernandez v. Mesa, 140 S. Ct. 735 (2020). There,

the Supreme Court considered the availability of a Bivens remedy for a foreign plaintiff whose

child had been shot and killed by a Customs and Border Patrol officer across the United States-

Mexico border. See 140 S. Ct. at 740. The Supreme Court determined that the case presented a

different context from Bivens and Davis, the two most closely analogous cases, because while

“Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City”

and “Davis concerned alleged sex discrimination on Capitol Hill . . . . petitioners’ cross-border

shooting claims” presented “the risk of disruptive intrusion by the Judiciary in the functioning of

other branches.” Id. at 744. That is, the case presented a new context despite the fact that a

federal agent “acted in disregard of instructions governing his conduct and of Hernandez’s

constitutional rights[]” and used “lethal force against a person who pose[d] no immediate threat

to the officer and no threat to others[, which] surely qualifie[d] as an unreasonable seizure.” Id.

at 756 (Ginsburg, J., Dissenting). At the second step, the Court found “multiple, related factors

that raise[d] warning flags,” including “the potential effect on foreign relations.” Id. at 744.

Specifically, the Supreme Court determined that it must “be especially wary before allowing a

Bivens remedy that impinges on” foreign policy concerns because “matters relating ‘to the

conduct of foreign relations . . . are so exclusively entrusted to the political branches of

government as to be largely immune from judicial inquiry or interference.’” Id. (quoting Haig v

Agee, 453 U.S. 280, 292 (1981)). The political branches took “the position that [the] incident

should be handled in a particular way” and judicial intervention “would risk the embarrassment

of our government abroad through multifarious pronouncements by various departments on one

question.” Id. The Court also found significant the ramifications a Bivens remedy would have

for national security. See Id. at 747 (“Since regulating the conduct of agents at the border

unquestionably has national security implications, the risk of undermining border security

provides reason to hesitate before extending Bivens into this field.”). And, the Court found

significant the fact that “Congress has repeatedly declined to authorize the award of damages for

injury inflicted outside our borders.” Id. Thus, Bivens was not extended.

B. The Two-Step Framework After Boule

In 2022, the Supreme Court decided Boule, and in doing so, appears to have constricted

the Abassi framework. For example, in discussing the framework, the majority noted that, in

fact, the two-steps articulated under Abassi “often resolve to a single question: Whether there is

any reason to think that Congress might be better equipped to create a damages remedy.” Id. at

1803. (Of course, as Justice Gorsuch noted “[i]f the only question is whether a court is ‘better

equipped’ than Congress to weigh the value of a new cause of action, surely the right answer will

always be no.” Id. at 1810 (Gorsuch, J. Concurring)). Additionally, the Supreme Court appears

to have held, at least in effect, that any difference between the category of defendants in Bivens

and the case before the court, regardless of how trivial, presents a new context. Id. at 1804. That

is, the Supreme Court agreed with the Court of Appeals finding that Boule’s claim presented a

new context because “Agent Egbert is an agent of border patrol rather than of the F.B.I.” Boule

v. Egbert, 998 F.3d 370, 387 (9th Cir. 2021). Notably, the “new category of defendants”

principle had never been relied upon “to draw artificial distinctions between line-level officers of

the 83 different federal law enforcement agencies with authority to make arrests and provide

police protection.” Id. at 1815 (Sotomayor, J. Concurring in part and Dissenting in part).

Finally, the Supreme Court also restricted the judiciary’s review of alternative remedial

structures, holding that the presence of such a structure “alone . . . is reason enough to limit the

power of the judiciary to infer a new Bivens cause of action.” Id. at 1804 (quoting Abassi, 137 S.

Ct. at 1858) (“the relevant question is not whether a Bivens action would disrupt a remedial

scheme, or whether the court should provide for a wrong that would otherwise go unredressed. . .

. [r]ather, the court must ask only whether it, rather than the political branches, is better equipped

to decide whether existing remedies should be augmented by the creation of a new judicial

remedy.”)

C. Plaintiff’s Bivens Claims

Plaintiff’s claims against Defendants, which include false arrest, malicious prosecution,

and failure to intervene stemming from alleged fabrication of evidence, each present a new

context. At the outset, Plaintiff’s malicious prosecution and failure to intervene claims are new

contexts because Bivens did not involve a malicious prosecution or failure to intervene claim.

See Annappareddy v. Pascale, 996 F.3d 120, 134 (4th Cir. 2021) (malicious prosecution is a new

Bivens context); Powell v. United States, No. 19-cv-11351, 2020 WL 5126392, at *7 (S.D.N.Y.

Aug. 31, 2020) (same); Castang v. Geimano, 19-cv-7178, 2020 WL 5531553, at *4 (E.D.N.Y.

Sept. 14, 2020) (failure to intervene is a new Bivens context); Martinez v. D’Agata, No. 16-cv-

44, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (same).

While Plaintiff’s false arrest claim has parallels to Bivens, it too presents a new context.

First, the claim involves a new category of defendants because they are not agents of the Federal

Bureau of Narcotics, but instead are HSI special agents. Boule, 998 F.3d at 387 (“We agree that

it is an extension, in that Agent Egbert is an agent of the border patrol rather than of the F.B.I.”),

affirmed, 142 S. Ct. 1803 (2022). Second, as Defendants note (Mem. L. Supp. Defs'. Mot. J. on

the Pleadings ("Defs'. Mem."), at 10–11, ECF No. 85-1), the focus of Plaintiff’s complaint is the

fabrication of evidence that led to her arrest and prolonged detention, not an illegal entry into her

home during which agents searched “from stem to stern” after she had been “manacled.” Bivens,

403 U.S. at 389. Indeed, the Amended Complaint establishes that Defendants were present at

her home to arrest her husband after an eight-month investigation into his possession and

production of child pornography.4 Courts have recognized that claims involving the fabrication

of evidence present a new Bivens context. See Zhang v. Schuster, No. 18-cv-3283, 2022 WL

615015, at *10 (N.D. Ill. 2022) (plaintiff’s false arrest claim presented new context because “[a]

false statement is different than a physical invasion of someone’s home, which is what took place

in Bivens”); see also Ahmed v. Weyker, 984 F.3d 564, 568 (8th Cir. 2020); Farah v. Weyker, 926

4 To be sure, the amended complaint contains allegations concerning the Defendants search of her home, but she

does not bring a cause of action based upon those facts. That is, Plaintiff does not challenge the legality of

Defendants’ presence in her home or of their search.

F.3d 492, 499 (8th Cir. 2019); Cantu v. Moody, 933 F.3d 414, 422 (5th Cir. 2019). Thus,

Plaintiff seeks to extend Bivens to a new category of defendants and to a new type of

misconduct.

Resisting this conclusion, Plaintiff argues that her false arrest claim does not present a

new context because it is “immaterial” that Defendants were not narcotics agents. (Pl.’s Opp’n

at 7–8.) Critically, however, the cases on which Plaintiff relies5 were decided before Boule. 142

S. Ct. at 1803. To be sure, the Court acknowledges that the agents in Bivens and Defendants are

similar in that they are both enforcing traditional criminal law. Still, the difference in agency is

now sufficient, after Boule, to create a new context. Cf id. at 1814–15 (“The only arguably

salient difference in ‘context’ between this case and Bivens is that the defendants in Bivens were

employed at the time by the (now-defunct) Federal Bureau of Narcotics, while [Defendants

were] employed by [Customs and Border Protection].”) (Sotomayor, J. dissenting). Notably,

Plaintiff does not meaningfully engage with Boule or provide the Court with any alternative

interpretation of that opinion. While Plaintiff points out that Boule was principally concerned

with national security, she ignores that national security was not cited by the Ninth Circuit or the

Supreme Court as presenting a new context, but instead as a special factor counseling hesitation

in extending Bivens. (Pl.’s Opp’n at 1, 4–5.) Moreover, even if the Court agreed that the

Defendants were not a new category of Defendants, Plaintiff has provided no response to

Defendants’ argument that the focus of her claims is the fabrication of evidence, not invasion of

her home or excessive force.

5 See (Pl.’s Opp’n at 7–8 (citing Powell v. United States, No. 19-cv-11351, 2020 WL 5126392 (S.D.N.Y. Aug. 31,

2020); Hicks v. Ferreyra, 965 F.3d 302, 311 (4th Cir. 2020); Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir. 2019);

Joane v. Hodges, 939 F.3d 945, 952 (9th Cir. 2018).) While Plaintiff also cites another memorandum and order in

Powell v. United States which was decided after Boule. But the court did not cite to or otherwise contend with

Boule at all, and therefore it is of little assistance in this analysis.

Next, Plaintiff argues that her malicious prosecution claim does not present a new context

because such claims have “been long recognized by courts.” (Pl.’s Opp’n at 8–9.) But, the

inquiry is whether the Supreme Court has recognized a malicious prosecution claim (not other

lower courts). The Supreme Court certainly has not. And, as with her false arrest argument,

Plaintiff relies on cases that predate Boule, and even Abassi.6 Indeed, she completely ignores the

Government’s authority, and even her own7, establishing that malicious prosecution claims

present a new context. See, e.g., Powell, 2020 WL 5126392, at *7. In short, Plaintiff’s claims8

stemming from HSI special agents’ alleged fabrication of evidence present a new Bivens context.

Therefore, the Court must consider whether there are special factors “indicating that the

Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of

allowing a damages action to proceed.” Boule, 142 S. Ct. at 1803 (internal quotation marks

omitted).

Defendants argue that DHS regulations provide alternative remedies that foreclose

Plaintiff’s Bivens claims. (Defs.’ Mem. at 12–15.) The Court agrees. Defendants argue that 8

C.F.R. § 287.10 is applicable to HSI agents like themselves, and requires investigation of

“alleged violations of the standards for enforcement activities” and accept grievances from “any

persons wishing to lodge a complaint.” (Id. at 13.) Critically, this same regulation

independently foreclosed a Bivens remedy in Boule. See 142 S. Ct. at 1806. Plaintiff argues that

the regulation is inapplicable to Defendants because the regulations apply only to immigration

agents. However, Defendants have provided a declaration establishing that such regulation is

6 See Pl.’s Opp’n at 8 (citing Barone v. United States, (S.D.N.Y. Aug. 21, 2014); Williams v. Young, 769 F. Supp. 2d

594, 603 (S.D.N.Y. 2011).

7 Plaintiff cites Powell, 2020 WL 5126392 at *7, which held that a claim for malicious prosecution arose in a new

context. (Pl.’s Opp’n at 8–9.)

8 Plaintiff did not defend her failure to intervene claim in her opposition.

applicable to HSI special agents as well as border patrol. (Pl.’s Opp’n at 11.) Completely

ignoring Boule, Plaintiff argues further that the regulation is insufficient because it does “not

offer any redress to recoup damages,” “provide complainants any right to participate in the

investigation process[,] or to obtain judicial review.” (Pl.’s Opp’n at 11–12.) But, the Supreme

Court has “never held that a Bivens alternative must afford rights to participation or appeal.”

Boule, 142 S. Ct. at 1806. “So long as Congress or the Executive has created a remedial process

that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess

that calibration by superimposing a Bivens remedy.” Id. at 1807.

Even setting aside the grievance procedure, Defendants highlight other remedial

structures created by Congress sufficient to give the Court pause before extending Bivens.

Defendants assert that “Congress has authorized Inspectors General across the Executive Branch

to investigate and report abuses by federal law-enforcement officers, including HSI officials.”

(Defs.’ Mem. at 13 (citing 5 U.S.C. app. 3 § 3; 6 U.S.C. § 113(b); Abbasi, 137 S. Ct. at 1862).)

They also assert that the Homeland Security Act of 2002 established DHS’s Office of Civil

Rights and Civil Liberties (“CRCL”), see 6 U.S.C. §§ 113(d)(3), 345, instructing the Office of

the Inspector General (“OIG”) to refer to it any “civil liberties matters” that OIG does not

investigate, see 5 U.S.C. app. 3 § 8I(f)(2)(G). (Defs.’ Mem. at 13–15.) CRCL is authorized to

“initiate investigations of alleged abuses of civil rights and civil liberties by employees or

officials of the Department.” 5 U.S.C. app. 3 § 8I(f)(2)(C). Defendants identify yet another

office, the Office of Professional Responsibility (“OPR”), to which constitutional rights

violations may be reported. See 6 U.S.C. §§ 253–54. Plaintiff does not dispute the existence of

these offices and procedures or that they are “safeguards to prevent constitutional violations from

recurring.” Boule, 142 S. Ct. at 1806 (internal quotation marks and alteration omitted). Indeed,

Plaintiff is silent on these points. The Court “has no warrant to doubt” that consideration of

Plaintiff’s complaint by any of these offices would secure adequate deterrence and afford an

alternative remedy. See id. at 1807; see also Lovell v. Parker, 618 F. Supp. 3d 127, 2022 WL

3045039, at *9 (E.D.N.Y. Aug 3, 2022) (finding DHS and OIG grievances processes to be

alternative remedies foreclosing a Bivens remedy).

Another related factor is Congress’s failure to provide a Bivens-style remedy for this type

of misconduct. Congress has created statutory mechanisms that permit “courts to award attorney

fees to criminal defendants who prevail against ‘vexatious, frivolous, or bad faith’ positions

taken by the government,’” and that permit “those wrongfully convicted and sentenced to sue the

government for damages. Selvam v. United States, 570 F. Supp. 3d 29, 45–46 (E.D.N.Y. 2021)

(quoting Farah, 926 F.3d at 501). But, Congress has not created a cause of action for an arrest

and prosecution based upon false evidence when a conviction did not result. Id. Congressional

inaction here counsels against extending Bivens, particularly in light of the other remedies

available to Plaintiff that are outlined above.

Finally, the Court is unable to “predict the systemwide consequences of recognizing a

cause of action under Bivens” for a false arrest and malicious prosecution claim premised on

fabrication of evidence by HSI special agents. Boule, 142 S. Ct. at 1803 (internal quotation

marks omitted). HSI “is the principal investigative component of DHS” and “[i]t investigates,

disrupts, and dismantles transnational criminal organizations and terrorist networks that threaten

or seek to exploit the customs and immigration laws of the United States.” (Defs.’ Mem. at 10

n.4.) Although Defendants appear to have been investigating traditional criminal law

domestically, the Court cannot “appl[y] the special factors analysis at such a narrow level of

generality.” Boule, 142 S. Ct. at 1805 (internal quotation marks and citation omitted). In

considering “more broadly if there is any reason to think that judicial intrusion into”

investigation of transnational crime and violation of customs and immigration laws “might be

harmful or inappropriate,” the Court has reason to pause. Id. (internal quotation marks omitted).

Constitutional claims based on fabrication of evidence are easy to allege, and HSI has over 6,800

special agents operating in more than 210 U.S. cities and 52 countries. (Defs.’ Mem. at 25.) The

Court simply is not positioned to weigh the costs and benefits of permitting false arrest and

malicious prosecution claims against HSI special agents based upon alleged fabrication of

evidence, given that their investigations touch on national security concerns. See Dep’t of Navy

v. Egan, 484 U.S. 518, 530 (1988) (courts must be “reluctant to intrude upon the authority of the

Executive”). While Plaintiff argues that the Judiciary “must hold federal officers who violate the

constitution accountable” (Pl.’s Opp’n at 14), that simply is not the question the Court is to ask.

Instead, the question here is “whether there is any rational reason (even one) to think that

Congress is better suited to weigh the costs and benefits of allowing a damages action to

proceed.” Boule, 142 S. Ct. at 1805 (emphasis in original) (internal quotation marks omitted).

And, the answer is yes, Congress is better suited to weigh the costs and benefits of allowing

causes of action against HSI agents. Thus, Plaintiff’s argument that “the Court” would “cause

society to lose faith that the government plays fair” if it “were to permit federal officers to

fabricate evidence without repercussion” is misdirected. (Pl.’s Opp’n at 14.) It is Congress, not

the Judiciary, who bears this responsibility.

CONCLUSION9

For the foregoing reasons, Defendant’s motion for judgment on the pleadings is

GRANTED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

September 30, 2023 LASHANN DEARCY HALL

United States District Judge

9 Defendants argue that the Federal Tort Claims Act and other equitable remedies also counsel against extending

Bivens, but the Court need not reach that question because the two factors it has identified are sufficient after Boule.

(Defs.’ Mem. at 15–22.)