Ignacio Lanuza v. Jonathan Love

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IGNACIO LANUZA, No. 15-35408

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-01641-

MJP

JONATHAN M. LOVE, Assistant Chief

Counsel, Immigration and Customs

Enforcement, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted October 3, 2017

Seattle, Washington

Filed August 14, 2018

Before: Kermit Victor Lipez, * Kim McLane Wardlaw,

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

*

The Honorable Kermit V. Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

2 LANUZA V. LOVE

SUMMARY **

Bivens

The panel reversed the district court’s order declining to

extend a Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), remedy to an

immigrant pursuing lawful permanent resident status where

a government immigration attorney intentionally submitted

a forged document in an immigration proceeding to

completely bar that immigrant from pursuing relief to which

he was entitled.

The panel concluded that while the Supreme Court “has

made clear that expanding the Bivens remedy is now a

‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct.

1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

675 (2009)), a Bivens remedy was available in this narrow

circumstance because none of the special factors outlined in

Abbasi and other Supreme Court precedent applied.

The panel affirmed the district court’s order denying

qualified immunity to ICE Assistant Chief Counsel Jonathan

Love because qualified immunity was not meant to protect

those who are “plainly incompetent or those who knowingly

violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011)). The panel concluded that qualified immunity could

not shield an officer from suit when he intentionally

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

LANUZA V. LOVE 3

submitted a forged document in an immigration proceeding

in clear violation of 8 U.S.C. § 1357(b).

COUNSEL

Matt Adams (argued) and Glenda M. Aldana Madrid,

Northwest Immigrant Rights Project, Seattle, Washington;

Christopher Schenck and Stephanie M. Martinez, Kilpatrick

Townsend & Stockton LLP, Seattle, Washington; for

Plaintiff-Appellant.

Amanda E. Lee (argued), Law Office of Amanda Lee PLLC,

Seattle, Washington, for Defendant-Appellee.

H. Thomas Byron III (argued) and Barbara L. Herwig,

Appellate Staff; Joseph H. Harrington, Acting United States

Attorney; Chad A. Readler, Acting Assistant Attorney

General; Civil Division, United States Department of

Justice, Washington, D.C.; for Amicus Curiae United States.

Mary Kenney, American Immigration Council, Washington,

D.C.; Trina Realmuto, National Immigration Project of the

National Lawyers Guild, Boston, Massachusetts; for Amici

Curiae American Immigration Council and National

Immigration Project of the National Lawyers Guild.

4 LANUZA V. LOVE

OPINION

WARDLAW, Circuit Judge:

We are tasked with answering in part a question asked

by many legal commentators in the wake of the Supreme

Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017):

where does Bivens stand? Bivens is the first Supreme Court

decision to recognize an implied right of action for damages

against federal officers alleged to have violated a plaintiff’s

constitutional rights. See Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392–98

(1971). Here, a U.S. Immigration and Customs Enforcement

(ICE) Assistant Chief Counsel representing the government

intentionally forged and submitted an ostensible government

document in an immigration proceeding, which had the

effect of barring Ignacio Lanuza (Lanuza) from obtaining

lawful permanent resident status, a form of relief to which

he was otherwise lawfully entitled. We recognize that the

Supreme Court “has made clear that expanding the Bivens

remedy is now a ‘disfavored’ judicial activity,” Abbasi,

137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

675 (2009)), but, if the principles animating Bivens stand at

all, they must provide a remedy on these narrow and

egregious facts. We therefore reverse the district court’s

holding that Lanuza was not entitled to a Bivens remedy.

I.

Lanuza is a 38-year-old lawful permanent resident

married to a U.S. citizen with two U.S. citizen children. He

was born in Mexico and first came to the United States

without inspection when he was seventeen years old. He

lives and works in Seattle, Washington. In July 2008, the

Department of Homeland Security (DHS) commenced

removal proceedings against him before the Tacoma

LANUZA V. LOVE 5

immigration court, which were ultimately transferred to the

Seattle immigration court.

On May 6, 2009, Lanuza appeared before an

immigration judge for a master calendar hearing. During

that hearing, Lanuza notified the court of his intention to

apply for Cancellation of Removal and Adjustment of Status

for Certain Nonpermanent Residents (cancellation of

removal or cancellation) under 8 U.S.C. § 1229b(b)(1). At

the time, he was prima facie eligible to apply for cancellation

of removal, which is a type of immigration relief that enables

nonpermanent residents to adjust their status to that of

permanent residents. To qualify for cancellation, a person

must demonstrate (1) continuous physical presence in the

United States for ten years immediately prior to being served

with the Notice to Appear; (2) good moral character; (3) that

he is not subject to any other bar to eligibility on account of

having certain criminal convictions; and (4) the existence of

a U.S. citizen or lawful permanent resident spouse, parent,

or child who would suffer exceptional and extremely

unusual hardship if the person were removed. See 8 U.S.C.

§ 1229b(b)(1). As later events would confirm, Lanuza

satisfied all these requirements: (1) he had been residing

continuously in the United States since 1996 and thus had

more than ten years of continuous residence; (2) he

possessed good moral character; (3) he was not subject to

any other bar to eligibility; and (4) his U.S. citizen wife and

children would suffer exceptional and extremely unusual

hardship without him.

During the master calendar hearing, ICE Assistant Chief

Counsel Jonathan Love (“Love”) stated that Lanuza’s

immigration file contained an I-826 form, signed by Lanuza,

accepting voluntary departure to Mexico in 2000. The I-826

form was critical in determining whether Lanuza would be

6 LANUZA V. LOVE

able to remain in the United States with his family, because

a signed I-826 form would render him ineligible for

cancellation of removal. By signing an I-826 form, a person

accepts an administrative voluntary departure instead of

exercising his right to appear before an immigration judge in

removal proceedings and thereby breaks whatever

continuous physical presence he may have accrued. See

Ibarra-Flores v. Gonzales, 439 F.3d 614, 618–20 (9th Cir.

2006); see also Landin-Zavala v. Gonzales, 488 F.3d 1150,

1152–53 (9th Cir. 2007) (“When [an individual] leaves

pursuant to an administrative voluntary departure[ ]‘[he]

leaves with the knowledge that he does so in lieu of being

placed in proceedings. . . .’” (quoting Tapia v. Gonzales,

430 F.3d 997, 1002 (9th Cir. 2005))). As a result, even

though Lanuza met all the other elements of § 1229b(b)(1),

if Lanuza had signed an I-826 form in 2000, he would have

accrued continuous residence in the United States for only

seven years, rather than the requisite ten years. See 8 U.S.C.

§ 1229b(b)(1).

On May 11, 2009 at Lanuza’s actual immigration

hearing, Love submitted an I-826 form agreeing to voluntary

departure, purportedly signed by Lanuza on January 13,

2000, making Lanuza ineligible for cancellation of removal.

See id. Based solely on that I-826 form, the immigration

judge issued an order of removal on January 5, 2010; the

Board of Immigration Appeals (“BIA”) affirmed on

November 15, 2011.

On December 9, 2011, Lanuza hired new counsel, Hilary

Han (“Han”), who discovered, for the first time, evidence

that the I-826 form Love submitted was forged. Han sent the

I-826 form to a forensic examiner, who, on February 1, 2012,

confirmed that the form was forged. While several aspects

of the form demonstrated it was forged, most glaringly, it

LANUZA V. LOVE 7

referred to the “U.S. Department of Homeland Security” at

the top of the page, an agency that did not exist at the time

Lanuza purportedly signed the form on January 13, 2000.

Congress created DHS in response to the September 11,

2001 terrorist attacks, and the agency did not begin formal

operations until 2003. Therefore, it would have been

impossible for Lanuza to sign the DHS I-826 form in January

2000, because that form did not then exist.

Based on the forensic report, the BIA reopened and

remanded the case, and, on remand, the immigration judge

ultimately found that Lanuza was prima facie eligible to

apply for cancellation of removal. The agency adjusted his

status to lawful permanent resident on January 9, 2014.

The government did not take any action against Love

until after this lawsuit was filed on October 24, 2014. Love

was ultimately prosecuted and pleaded guilty to deprivation

of rights under color of law pursuant to 18 U.S.C. § 242,

which ICE characterized as a “deprivation of constitutional

rights” in a press release. 1 Love was sentenced to a thirty-

day term of imprisonment, one year of supervised release,

and 100 hours of community service. See United States v.

Love, No. 2:16-cr-00005-BAT-1, ECF No. 16 (W.D. Wash.

April 20, 2016). He was also barred from practicing law for

ten years and was required to pay restitution to Lanuza in the

amount of $12,000, a figure the government proposed based

on its approximation of the legal fees Lanuza paid related to

1

Press Release, U.S. Immigration & Customs Enforcement, Ex-Ice

Attorney Sentenced to Prison for Falsifying Document in Immigration

Case (Apr. 20, 2016), https://www.ice.gov/news/releases/ex-ice-

attorney-sentenced-prison-falsifying-document-immigration-case.

8 LANUZA V. LOVE

his removal proceedings as a result of Love’s submission of

the forged I-826 form. Id. at 6–7.

On October 23, 2014, Lanuza filed a complaint against

Love and the United States alleging, among other things, that

he was entitled to damages under Bivens for a violation of

his Fifth Amendment right to due process. Love filed a

motion to dismiss, which the district court hesitantly granted.

While the district court believed Lanuza was entitled to

relief, the court felt its hands were tied by our decision in

Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012),

which declined to extend Bivens to a claim for wrongful

detention in the course of immigration removal proceedings.

The district court further held that, if a Bivens remedy were

available, Love was not entitled to qualified immunity.

Lanuza timely appealed.

II.

Whether a Bivens remedy is available here turns on the

presence of the conditions articulated in Abbasi for

extending the Bivens remedy. See Abbasi, 137 S. Ct. at

1856–58. In Abbasi, the Supreme Court addressed whether

Respondents, noncitizens who were suspected of having ties

to terrorism and detained in harsh conditions in the aftermath

of September 11, could pursue Bivens remedies against

various high-level federal officials responsible for the policy

that authorized their detention and the wardens responsible

for their treatment thereafter. Id. at 1853–54. The Court

articulated a two-part test for determining whether Bivens

remedies should be extended. Id. at 1859–60. First, courts

must determine whether the plaintiff is seeking a Bivens

remedy in a new context. Id. If the answer to this question

is “no,” then no further analysis is required. Id. If the answer

is “yes,” then the court must determine whether “special

factors counsel[] hesitation.” Id. at 1860.

LANUZA V. LOVE 9

A case presents a new context if it “is different in a

meaningful way from previous Bivens cases decided by [the

Supreme Court].” Id. at 1859. The Court explained that:

[A] case might differ in a meaningful way

because of 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.

Id. at 1860.

Applying this framework to that suit, the Court found

that Respondents’ challenge to the executive officials’

detention policy presented a new context, reasoning that:

[The challenge to] the confinement

conditions imposed on illegal aliens pursuant

to a high-level executive policy created in the

wake of a major terrorist attack on American

soil . . . [bore] little resemblance to the three

Bivens claims the [Supreme] Court . . .

approved in the past: a claim against FBI

agents for handcuffing a man in his own

home without a warrant; a claim against a

Congressman for firing his female secretary;

and a claim against prison officials for failure

to treat an inmate’s asthma.

10 LANUZA V. LOVE

Id. (referring to Bivens, 403 U.S. 388; Davis v. Passman,

442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14

(1980), respectively).

Proceeding to the “special factors analysis,” the Court

found those factors counseled against implying a Bivens

remedy. Id. First, a Bivens action is intended to discourage

illegal acts by individual officers and is not “a proper vehicle

for altering an entity’s policy.” Id. (citing Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 74 (2001)). Second, “the burden

and demand of litigation [against high-level officials] might

well prevent them—or, to be more precise, future officials

like them—from devoting the time and effort required for

the proper discharge of their duties.” Id. (citing Cheney v.

U.S. Dist. Ct. for D.C., 542 U.S. 367, 382 (2004)). Third,

these claims raise serious separation-of-powers issues and

“would require courts to interfere in an intrusive way with

sensitive functions of the Executive Branch” and “challenge

. . . major elements of the Government’s whole response to

the September 11 attacks, thus of necessity requiring an

inquiry into sensitive issues of national security.” Id. at 1861

(citations omitted). Fourth, congressional interest in the

response to the terrorist attacks was “frequent and intense,”

including interest in “the conditions of confinement at

issue[,]” and Congress chose not to create a damages

remedy. Id. at 1862 (citation omitted). Finally, Respondents

had alternate avenues of relief available to challenge their

condition of confinement. Respondents could have pursued

injunctive relief to attack the large-scale detention policy or

perhaps a petition for a writ of habeas corpus to attack their

own confinement. Id. at 1862–63. The Court reasoned,

while “[t]here is . . . a balance to be struck, in situations like

this one, between deterring constitutional violations and

freeing high officials to make the lawful decisions necessary

to protect the Nation in times of great peril . . . . [t]he proper

LANUZA V. LOVE 11

balance is one for the Congress, not the Judiciary, to

undertake.” Id. at 1863 (citation omitted).

The Court separately considered the prisoner abuse

claim against Warden Hasty, the warden of the prison where

Respondents were held. Addressing whether this claim

presented a new context, the Court compared Respondents’

case to Carlson v. Green, 446 U.S. 14 (1980), a Supreme

Court case where a prisoner’s estate sued federal jailers for

failing to treat the prisoner’s asthma, ultimately leading to

his death. Id. at 16 n.1; Abbasi, 137 S. Ct. at 1864. In

Carlson, the Court found the failure to treat a prisoner’s

medical needs violated his Eighth Amendment right to be

free from cruel and unusual punishment. 446 U.S. at 17–18.

The Abbasi Court distinguished Respondents’ case from

Carlson, finding it meaningful that the Abbasi Respondents

challenged violations of the Bureau of Prisons’ policy,

unlike in Carlson where the prison’s policy was not at issue.

Abbasi, 137 S. Ct. at 1864. The Court further noted that,

unlike judicial guidance as to the medical treatment at issue

in Carlson, “the judicial guidance available to this warden,

with respect to his supervisory duties, was less developed.”

Id. Acknowledging that there were “significant parallels”

between the Respondents’ case and Carlson, and that the

“allegations of injur[ies] here are just as compelling as those

at issue in Carlson,” the Court nevertheless found

Respondents’ claims presented a new Bivens context,

reasoning that “a modest extension is still an extension.” Id.

And, the Court found that “this case does seek to extend

Carlson to a new context.” Id. The Court did not perform

the special factors analysis, and instead remanded the claim

against Warden Hasty to the Court of Appeals to perform a

special factors analysis in the first instance. Id. at 1865.

12 LANUZA V. LOVE

One week after Abbasi was decided, the Supreme Court

again had the opportunity to revisit Bivens. In Hernandez v.

Mesa, a U.S. Border Patrol agent standing on U.S. soil shot

and killed a fifteen-year-old Mexican boy who was playing

with a group of friends in the cement culvert that separates

Texas and Mexico. 137 S. Ct. 2003, 2004–06 (2017) (per

curiam). His parents brought a claim against the officer for

damages under Bivens. Id. at 2005. The Court declined to

decide whether a Bivens claim existed in the first instance

because the Court of Appeals had not had the opportunity to

consider how the reasoning in Abbasi might bear on

Hernandez’s case, and the parties had not briefed the issue.

Id. at 2006–07. The Court remanded the case to the Court of

Appeals to apply the Abbasi framework to Hernandez’s

Fourth and Fifth Amendment claims. Id.

A.

Before addressing Abbasi’s two part test, we must first

consider whether providing a Bivens remedy here is

precluded by prior cases in which the Supreme Court or our

court has declined to extend Bivens. We have found no such

case. And, unlike the district court, we do not believe that

our decision in Mirmehdi precludes a remedy here.

The conduct at issue—the falsification of evidence—has

been regularly considered by the courts in actions against

prosecutors who commit similar constitutional violations by

falsifying evidence and suborning perjury. The Supreme

Court has long recognized that “[t]he principle that a State

may not knowingly use false evidence . . . to obtain a tainted

conviction [is] implicit in any concept of ordered liberty,”

and a violation of due process. Napue v. Illinois, 360 U.S.

264, 269 (1959); see also Pyle v. Kansas, 317 U.S. 213, 215–

16 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 112–13

(1935) (per curiam). For this reason, in 42 U.S.C. § 1983

LANUZA V. LOVE 13

cases, 2 the Supreme Court has declined to extend absolute

prosecutorial immunity to prosecutors who falsify evidence

because the collection of evidence is an “investigative

function[] normally performed by a detective or police

officer.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

We see no reason to distinguish the due process rights of

a criminal defendant in a criminal proceeding from the due

process rights of an immigrant in a deportation proceeding

when a government attorney falsifies evidence. It is well-

settled that “the Due Process clause applies to all ‘persons’

within the United States, including aliens, whether their

presence here is lawful, unlawful, temporary, or permanent.”

Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also

Sessions v. Dimaya, 138 S. Ct. 1204, 1209 (2018) (plurality

2

The Supreme Court has concluded that a prosecutor may be held

liable for damages under Bivens, but has not extended a Bivens remedy

to a claim of prosecutorial misconduct. Hartman v. Moore, 547 U.S.

250, 261–66 (2006) (holding that a Bivens remedy may be available for

malicious prosecution, but the plaintiff had to allege and prove lack of

probable cause).

The Seventh Circuit, however, has extended Bivens remedies in the

Brady context. Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013). In

Engel v. Buchan, the Seventh Circuit provided a Bivens remedy for

Brady violations pursuant to the Due Process Clause of the Fourteenth

Amendment. Id. The court explained that punishing a federal officer in

that context presents “no great problem of judicial interference with the

work of law enforcement, certainly no greater than the Fourth

Amendment claim in Bivens.” Id. While unlike the court in Engel, the

Board of Immigration Appeals is not an Article III court, it conducts its

hearings using similar procedures: parties submit evidence, question

witnesses under oath, and the procedure is overseen by an individual

called a “judge.” If remedies are available to punish Brady violations in

a criminal proceeding where liberty is at stake, they should also be

available in the context of immigration proceedings to determine

removability—a deprivation of liberty that can be as consequential.

14 LANUZA V. LOVE

opinion) (“[T]his Court has reiterated that deportation is ‘a

particularly severe penalty,’ which may be of greater

concern to a convicted alien than ‘any potential jail

sentence.’” (quoting Jae Lee v. United States, 137 S. Ct.

1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 365,

368 (2010))); Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th

Cir. 2000) (stating that “immigration proceedings as a

whole” are governed “by the Fifth Amendment’s Due

Process Clause”).

Moreover, while Abbasi clearly limited Bivens’s scope,

it did not preclude this case; nor is this case precluded by

other Supreme Court precedent. The Supreme Court has

recognized a Bivens remedy is available under the Fifth

Amendment. In Davis v. Passman, the Court concluded that

a U.S. Congressman’s former staff member was entitled to a

Bivens remedy where the Congressman terminated her

because of her gender, violating her rights under the equal

protection component of the Fifth Amendment. 442 U.S. at

248–49. While the Supreme Court has not extended Bivens

to a case involving the substantive and procedural clauses of

the Fifth Amendment, Abbasi did not preclude the

possibility of such an extension. See Abbasi, 137 S. Ct. at

1860–64.

Nor has the Supreme Court barred extending Bivens

remedies to an immigration case. Although Abbasi could

have stood for the broad proposition that Bivens remedies are

not available in the context of immigration proceedings

because of the sensitive nature of immigration policy, the

Abbasi Court did not paint in such broad strokes; rather, it

cabined its holding to suits against executive officials issuing

policy responses to sensitive issues of national security. Id.

at 1863. Abbasi made no statements about the general nature

LANUZA V. LOVE 15

of immigration, low-level immigration officials, or the

comprehensiveness of the INS’s remedial scheme. 3

Nor is this case precluded by our precedent. The

government argues that this action is foreclosed by

Mirmehdi, where we declined to extend Bivens to claims

challenging unlawful immigration detention. In that case,

which closely mirrors the facts addressed in Abbasi,

petitioners Mohammad, Mostafa, Mohsen, and Mojtaba

Mirmehdi (collectively the “Mirmehdis”) were originally

detained for national security reasons and charged as

supporters of an officially listed terrorist organization, the

Mujahedin-e Khalq. 689 F.3d at 978–79. We concluded that

the Mirmehdis were not entitled to Bivens damages because

3

In other contexts, the Supreme Court has declined to extend Bivens

remedies based on the special class of federal defendants or the

sensitivity of government activity involved. See, e.g., Malesko, 534 U.S.

at 63 (no Bivens action against private correctional corporation acting

under color of federal law); F.D.I.C. v. Meyer, 510 U.S. 471, 473 (1994)

(no Bivens action against a federal agency); United States v. Stanley,

483 U.S. 669, 683–84 (1987) (no Bivens action for injuries arising out of

or in the course of activity incident to military service); Chappell v.

Wallace, 462 U.S. 296, 299–304 (1983) (same). It has also declined to

extend Bivens if Congress has articulated a complex remedial scheme,

even if there is no damages remedy available. See, e.g., Schweiker v.

Chilicky, 487 U.S. 412, 414 (1988) (no Bivens action for an alleged due-

process violation in connection with the denial of disability benefits

because Congress did not provide for damages in its comprehensive

remedial scheme); Bush v. Lucas, 462 U.S. 367, 368 (1983) (no Bivens

action where a federal employer commits a First Amendment violation

because relief, even if incomplete, is available under a comprehensive

statutory scheme). These cases do not preclude extending a Bivens

remedy here because Love is not a member of a special class, there is no

sensitive government information at issue, and the INA’s complex

remedial scheme does not address the conduct at issue here. See infra

Part II.C.

16 LANUZA V. LOVE

they were able to challenge their detention through two

different remedial systems: the immigration system and

habeas relief. Id. at 982. We noted that “Congress’s failure

to include monetary relief [in the INA] can hardly be said to

be inadvertent, given that despite multiple changes to the

structure of the [INA,] Congress never created such a

remedy.” Id. (citing Schwieker, 487 U.S. at 423, 425). We

also concluded that the Mirmehdis’ case implicated national

security concerns, because allowing the Mirmehdis to pursue

this lawsuit would result in disclosing “foreign-intelligence

products.” Id. at 983 (citation omitted).

Without the benefit of Abbasi, the district court in this

case agreed with the government’s argument that our

decision in Mirmehdi precluded a Bivens remedy because it

stood for the broad proposition that there can be no Bivens

remedy for any constitutional violation in the context of

immigration proceedings, even while noting the obvious

problems with such a reading. 4 However, Abbasi makes

clear that Mirmehdi does not, and cannot, stand for such a

categorically broad proposition. Instead, we must look to the

specific facts of this case and the claims presented. See

Abbasi, 137 S. Ct. at 1859–60. Although Mirmehdi and this

case both arise out of immigration generally, the similarities

between Mirmehdi and Lanuza’s case end there. Mirmehdi

relates to the detention of suspected terrorists, while

4

The district court correctly noted that “this analysis conflates the

availability of procedures to challenge an immigration decision with the

availability of protections to deter constitutional violations in the first

instance.” The district court also correctly noted that under Mirmehdi,

the simple fact that this is an immigration case does not mean that issues

of national security, diplomacy or foreign policy are necessarily

implicated.

LANUZA V. LOVE 17

Lanuza’s case concerns an individual attorney’s violation of

his due process rights in a routine immigration proceeding.

Accordingly, precedent does not preclude providing a

Bivens remedy here.

B.

Lanuza’s claim arises in the context of deportation

proceedings where a federal immigration prosecutor

submitted falsified evidence in order to deprive Lanuza of

his right to apply for lawful permanent residence. We know

of no other case that has discussed a Bivens remedy in this

context. 5 The conclusion that Lanuza’s case arises in a

5

We have addressed Abbasi’s new Bivens framework in five

circumstances, including two published opinions, which are also

distinguishable from this case. See Rodriguez v. Swartz, No. 15-16410,

2018 WL 3733428 (9th Cir. Aug. 7, 2018) (extending a Bivens remedy

to the mother of a child who was shot and killed on Mexican soil by an

American agent standing on U.S. soil); see Vega v. United States, 881

F.3d 1146 (9th Cir. 2018); see also Brunoehler v. Tarwater, No. 16-

56634, 2018 WL 3470210 (9th Cir. July 19, 2018) (unpublished)

(declining to extend Bivens to claim for unlawful wiretapping); Zavala

v. Rios, 721 F. App’x 720 (9th Cir. 2018) (unpublished) (declining to

extend Bivens to claim challenging prison-wide policy regarding

handling of unopened mail); Krug v. Pellicane, 703 F. App’x 558 (9th

Cir. 2017) (unpublished) (dismissing Bivens action for failure to allege

sufficient facts to prove First Amendment retaliation and not reaching

new context analysis). In Vega, we declined to extend Bivens remedies

to an action against private employees for alleged violations of Juan

Vega, Jr.’s First and Fifth Amendment rights. 881 F.3d at 1147–48.

Vega, a prisoner who was transferred to a residential reentry center to

complete the remainder of his prison sentence, sued “federal and private

employees [who] conspired to remove him from the halfway house . . .

ostensibly based on his race and for asserting his First Amendment

rights, by filing a false incident report.” Id. at 1147. We concluded

Vega’s claims would require expanding Bivens to a new context

“because neither the Supreme Court nor we have expanded Bivens in the

18 LANUZA V. LOVE

context meaningfully different is ineluctable. And it is likely

for that reason that the district court, and both parties, agree.

C.

Because Lanuza’s claims arise in a new context, we must

ask whether there are “special factors counselling hesitation

in the absence of affirmative action by Congress.” Abbasi,

137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18). We

conclude that the special factors articulated in Abbasi do not

counsel against extending a Bivens remedy to the narrow

claim here, where an immigration official and officer of the

court forged and submitted evidence in a deportation

proceeding to deprive an individual of his right to relief

under congressionally enacted laws.

Abbasi clarifies the concept of “special factors” by

focusing the inquiry on the separation of powers. Id. at

1857–58. Abbasi’s special factors include: the rank of the

officer involved; whether Bivens is being used as a vehicle

to alter an entity’s policy; the burden on the government if

such claims are recognized; whether litigation would reveal

sensitive information; whether Congress has indicated that it

does not wish to provide a remedy; whether there are

alternate avenues of relief available; and whether there is

adequate deterrence absent a damages remedy, among other

factors. Id. at 1857–63. But the most important question for

us to examine is “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh

the costs and benefits of allowing a damages action to

proceed.” Id. at 1857–58. If “there are sound reasons to

context of a prisoner’s First Amendment access to court or Fifth

Amendment procedural due process claims arising out of a prison

disciplinary process.” Id. at 1153.

LANUZA V. LOVE 19

think Congress might doubt the efficacy or necessity of a

damages remedy . . . the courts must refrain from creating

the remedy in order to respect the role of Congress in

determining the nature and extent of federal-court

jurisdiction under Article III.” Id. at 1858. However, Abbasi

makes clear that, though disfavored, Bivens may still be

available in a case against an individual federal officer who

violates a person’s constitutional rights while acting in his

official capacity. See id. at 1857.

Applying Abbasi’s separation-of-powers principles to

this case reveals that there are no “special factors”

suggesting Bivens remedies should be unavailable. To

begin, Lanuza does not challenge high-level executive

action. The Abbasi Court stressed that “Bivens is not

designed to hold officers responsible for acts of their

subordinates.” Id. at 1860. “The purpose of Bivens is to

deter the officer[,]” and thus a Bivens claim should be

“brought against the individual official for his or her own

acts, not the acts of others.” Id. (quoting F.D.I.C. v. Meyer,

510 U.S. 471, 485 (1994)). Further, Bivens actions against

high-ranking executive officers, such as the Director of the

Federal Bureau of Investigation and the U.S. Attorney

General in Abbasi, are disfavored because such suits “would

call into question the formulation and implementation of a

high-level executive policy, and the burdens of that litigation

could prevent officials from properly discharging their

duties.” Id. at 1849. As ICE Assistant Chief Counsel, Love

was a low-level federal officer acting as the government’s

attorney, not the U.S. Attorney General as in Abbasi. And

strictly comporting with Bivens, Lanuza is suing Love for his

own actions; he does not seek to hold anyone else, including

high-level officials, accountable. Allowing a damages suit

to proceed against Love therefore does not raise the same

concerns on this score as were present in Abbasi.

20 LANUZA V. LOVE

Relatedly, Lanuza does not challenge or seek to alter the

policy of the political branches. Cf. Abbasi, 137 S. Ct. at

1860 (“[A] Bivens action is not ‘a proper vehicle for altering

an entity’s policy.’” (quoting Malesko, 534 U.S. at 74)).

While immigration officials have “broad discretion,”

Arizona v. United States, 567 U.S. 387, 396 (2012), no one

is arguing that the United States has a policy of allowing

federal officers to submit forged government documents to

thwart the integrity of immigration proceedings. To the

contrary: when Love knowingly forged evidence, his actions

violated the INA, which explicitly prohibits the submission

of false evidence. See 8 U.S.C. § 1357(b) (making the

submission of false evidence in immigration proceedings

actionable under the federal criminal statute for perjury).

Love argues that all actions taken by immigration

officials in the course of their duties—even criminal acts—

are necessarily intertwined with the execution of

immigration policy. We decline to entertain such a broad

reading of immigration law, as the illogical nature of such a

reading is demonstrated by the absurdity of its results. If, for

example, an immigration official physically forced himself

on an asylum-seeker and offered to help her obtain relief if

she kept quiet, we would have no trouble concluding that

such criminal conduct bears no relationship to the legitimate

execution of immigration policy. Likewise, we will not

allow an officer of the immigration court to cloak himself in

the government’s protection when he commits the crimes of

forgery and perjury. Indeed, holding accountable an

immigration official and officer of the court who engages in

domestic criminal activity supports the enforcement of our

immigration law in a manner consistent with the intent of the

political branches.

LANUZA V. LOVE 21

Abbasi also advised against allowing suits against

executive officials because “the burden and demand of

litigation might well prevent them—or, to be more precise,

future officials like them—from devoting the time and effort

required for the proper discharge of their duties.” Abbasi,

137 S. Ct. at 1860. Abbasi noted particular concern for cases

in which discovery could reveal “the discussion and

deliberations that led to the formation of the policy in

question.” Id. at 1860–61 (citing Fed. Open Market Comm.

v. Merrill, 443 U.S. 340, 360 (1979)). As this is a

straightforward case against a single low-level federal

officer, we are not concerned that this litigation will burden

the Executive Branch to an unacceptable degree. Further,

because the issues in this case involve facts the government

itself made publicly available, this lawsuit will not require

unnecessary inquiry or discovery into government

deliberations or policy making. At most, allowing a lawsuit

to proceed in this context would involve the “mere

‘disclosure of normal domestic law-enforcement priorities

and techniques,’” Mirmehdi, 689 F.3d at 983 (quoting Reno

v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 490

(1999))—although, since the facts are undisputed, discovery

would likely not involve the disclosure of any sensitive

government information at all. Indeed, Lanuza’s civil suit

against Love will likely involve no more investigative

intrusion than the criminal prosecution initiated against Love

by the United States itself. Accordingly, the fact that the

United States saw fit to prosecute Love further supports

permitting this lawsuit to proceed.

Similarly, because this case relates only to routine

immigration proceedings, expanding Bivens to this context

does not threaten the political branches’ supervision of

national security and foreign policy. Quoting our decision

in Mirmehdi, Love argues that “immigration issues ‘have the

22 LANUZA V. LOVE

natural tendency to affect diplomacy, foreign policy, and the

security of the nation,’ which further ‘counsels hesitation’ in

extending Bivens.” Mirmehdi, 689 F.3d at 982 (quoting Arar

v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)). But Abbasi

and Mirmehdi involved Congressional and Executive

Branch policy decisions in response to the biggest terrorist

attack in our nation’s history. In contrast, the facts of this

case show that immigration cases often do not implicate

high-level policy decisions related to national security.

Lanuza has no ties to terrorism and, as a run-of-the-mill

immigration proceeding, his case is unrelated to any other

national security decision or interest.

Nor is this a case that has garnered any executive or

congressional attention. Compare this case with Hernandez

v. Mesa, where, upon remand from the Supreme Court, the

Fifth Circuit declined to provide Bivens remedies to the

parents of a fifteen-year-old Mexican citizen who had been

fatally shot by a federal law enforcement agent, in part

because the United States and Mexican governments had

engaged in “serious dialogue” regarding the events at issue

in that case. 885 F.3d 811, 820 (5th Cir. 2018). Specifically,

Mexico had requested the extradition of the law enforcement

agent who shot Hernandez, and the United States had denied

this request and refused to indict the agent. Id. The Fifth

Circuit reasoned that “[i]t would undermine Mexico’s

respect for the validity of the Executive’s prior

determinations if, pursuant to a Bivens claim, a federal court

entered a damages judgment against [the federal officer].”

Id. Here, in contrast, there is no evidence that any executive

official has taken an interest in Lanuza’s case, or that his

situation has been the subject of diplomatic discussions

between the United States and other sovereign nations. The

constraints Lanuza seeks mirror the existing Executive

Branch policy for federal immigration attorneys, and

LANUZA V. LOVE 23

therefore a Bivens action in this context does not interfere

with executive policy by “risk[ing] interference with foreign

affairs and diplomacy more generally.” Id. at 819.

Even so, where, as here, the underlying statutory scheme

does not provide a remedy for the injury, we must consider

whether Congress’s failure to provide a damages remedy is

“more than mere oversight” and that “congressional silence”

is more than “inadvertent.” Abbasi, 137 S. Ct. at 1862

(quoting Schweiker, 487 U.S. at 423). Though the INA itself

lacks a damages remedy, Congress was not silent. Indeed, a

comprehensive review of the INA suggests that Congress

intended federal criminal and civil laws outside of the Act

itself to provide remedies for the misconduct at issue here.

As discussed above, the subsection of the INA that addresses

the “[p]ower of immigration officers and employees”

specifically delegates punishment for submission of false

evidence to 18 U.S.C. § 1621, the federal criminal statute for

perjury. See 8 U.S.C. § 1357(b). Further, the INA addresses

the “[p]erformance of [federal] immigration officer

functions by [s]tate officers and employees” in 8 U.S.C.

§ 1357(g)(8). Subsection 8 provides that any state employee

“shall be considered to be acting under color of Federal

authority for purposes of determining the liability, and

immunity from suit, of the officer or employee in a civil

action brought under Federal or State law.” Id. This

demonstrates Congress contemplated that civil actions

would be maintained against both federal immigration

officers and state employees acting in the capacity of federal

immigration officers when their actions allegedly violate the

Constitution or other laws. In providing a Bivens remedy

here, we are not attempting to imply “a private remedy”

within the INA where “a cause of action does not exist.”

Abbasi, 137 S. Ct. at 1856 (quoting Alexander v. Sandoval,

532 U.S. 275, 286–87 (2001)) (citations omitted). Instead,

24 LANUZA V. LOVE

we are “recogniz[ing] an implied cause of action to enforce

a provision of the Constitution itself[,]” where “there is no

single, specific congressional action to consider and

interpret.” Id. Congress indicated that such constitutional

remedies may be pursued when federal immigration officials

violate an individual’s constitutional rights.

While it is true that there has been “frequent and intense”

congressional attention to immigration law generally, that

congressional attention does not “suggest[] that Congress

has provided what it considers adequate remedial

mechanisms for constitutional violations” in this case. See

Schweiker, 487 U.S. at 423, 425. There is no evidence that

Congress has focused on the misconduct here—ICE

attorneys intentionally manipulating evidence to deprive

immigrants of rights under U.S. laws. To the contrary,

Congress presumes that, as a general matter, federal

employees faithfully execute federal law, and when they do

not, Congress requires those employees be punished for such

transgressions. 6 8 U.S.C. § 1357(b).

Abbasi also counseled against allowing a Bivens remedy

if there is an “alternative, existing process for protecting the

6

If Congress intended all actions taken by an officer while acting

pursuant to the INA to be regulated by the INA itself in a separate court,

it would have said so. Compare the INA with the Article 3(b) of the

Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 801–946,

codified at 10 U.S.C. § 803(b), which grants jurisdiction over certain

criminal acts to military courts-martial. In the UCMJ, Congress

specifically decided that the military would police itself. But when

drafting the INA, it decided that traditional Article III jurisdiction was

appropriate. Thus, unlike in the UCMJ, in the INA, “Congress ha[s] not

foreclosed a damages remedy in ‘explicit’ terms.” Abbasi, 137 S. Ct. at

1854 (quoting Bivens, 403 U.S. at 397).

LANUZA V. LOVE 25

[injured party’s] interest.” Abbasi, 137 S. Ct. at 1858

(quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007) and

citing Bush v. Lucas, 462 U.S. 367, 385–88 (1983); Malesko,

534 U.S. at 73–74; and Minneci v. Pollard, 565 U.S. 118,

127–130 (2012)). 7 In Abbasi, the Court found that

Congress’s silence, in conjunction with the plaintiffs’ ability

to challenge the conditions of their confinement through a

successful habeas petition, indicated that Congress intended

for plaintiffs to use other judicially available forms of relief.

Id. at 1862–63. But there are no such alternative remedial

schemes available to Lanuza. The INA does not provide a

remedy for actions by immigration officials that are designed

to prevent individuals from accessing its lawful forms of

relief. Lanuza was following the law, using the procedures

Congress legislated, until his lawful pursuit of legal

permanent resident status was criminally obstructed. Love’s

submission of the forged I-826 form completely barred

Lanuza from using the INA’s remedial scheme. The Act

provides no remedial scheme for forgery if undiscovered.

And to be sure, there are other individuals like Lanuza who

may also be entitled to relief and who may not have obtained

it for this very reason. While Lanuza was ultimately able to

reopen his case, if Lanuza had not, by stroke of luck, found

an exceptionally thorough immigration attorney, the forgery

might never have been discovered and Lanuza would be

7

We note that in Vega and Rodriguez, this court viewed Wilkie’s

test for whether there are “alternative remedial structure[s] present” as

separate from Abbasi’s special-factors analysis. Vega, 881 F.3d at 1154;

Rodriguez, No. 15-16410, 2018 WL 3733428, at *10 (9th Cir. Aug. 7,

2018). We read Abbasi’s special-factors analysis as encompassing all

circumstances that counsel against extending a Bivens remedy, including

those addressed in Wilkie. Accordingly, we address the “alternative

remedial structure[s]” question within our broader special-factors

inquiry, but we emphasize that this variance is one of form, not

substance.

26 LANUZA V. LOVE

deported and separated from his U.S. citizen wife and

children. The system does not account for actions designed

to circumvent it.

The government also argues that the $12,000 Love paid

Lanuza in restitution pursuant to his criminal guilty plea is

an alternative form of judicial relief. However, criminal

prosecutions vindicate the government’s interests, not the

interests of the victim. The victim does not choose whether

to prosecute the case. As such, the criminal law is not an

alternative remedial structure designed by Congress for

individuals like Lanuza. When Lanuza discovered Love’s

transgression, he had no right to force the government to

prosecute; indeed the government declined to do so until

Lanuza brought his Bivens action—after Lanuza’s

immigration proceeding and long after the forgery was

discovered. What is more, it is the judge, not the victim, who

decides if and how much restitution is appropriate. 8

With all of these factors in mind, we must now ask

“whether the Judiciary is well suited, absent congressional

action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.” Abbasi,

137 S. Ct. at 1858. We recognize that “it is a significant step

under separation-of-powers principles for a court to

determine that it has the authority, under the judicial power,

to create and enforce a cause of action for damages against

federal officials in order to remedy a constitutional

violation.” Id. at 1856. We do not take that step lightly.

However, we conclude that doing so here is not an improper

8

Lanuza’s counsel represented at oral argument that he requested

that Lanuza’s attorney’s fees and expenses be included in the restitution

amount, but government counsel rejected the request, saying that Love

and the government had agreed that the amount of restitution was “fair.”

LANUZA V. LOVE 27

intrusion into the decisions of other governmental branches

where the factors discussed above all suggest that providing

a damages remedy is consistent with congressional and

executive policy. Although Congress is often better suited

to finding a balance between deterrence of constitutional

violations and the costs of allowing a lawsuit to proceed, we

do not believe that finding “[t]he proper balance” in this case

“is one for the Congress, not the Judiciary, to undertake.” Id.

at 1863.

Judges are particularly well-equipped to weigh the costs

of constitutional violations that threaten the credibility of our

judicial system. Indeed, there are few persons better

equipped to weigh the cost of compromised adjudicative

proceedings than those who are entrusted with protecting

their integrity. And, more often than not, the Judicial

Branch, not Congress or the Executive, is responsible for

remedying circumstances where a court’s integrity is

compromised by the submission of false evidence. Thus, it

falls within the natural ambit of the judiciary’s authority to

decide whether to provide a remedy for the submission of

false evidence in an immigration proceeding.

The consequences of allowing the submission of false

evidence by government attorneys without repercussion

extends beyond its effect on Lanuza. The magnitude of its

societal injury was addressed in the government’s press

release about Love’s conviction: “[D]efendants in

immigration court have a ‘right to proceedings free from

false and fabricated evidence knowingly presented against

them. When that right is denied, a real harm is inflicted both

28 LANUZA V. LOVE

on society, which loses faith that its government plays fair,

and the individual who suffers directly.’” 9

Accordingly, there are compelling interests that favor

extending a Bivens remedy here, and, on balance, those

interests outweigh the costs of allowing this narrow claim to

proceed against federal officials. See Abbasi, 137 S. Ct. at

1863. The legal standards for adjudicating this claim are

well established and administrable. See Wilkie, 551 U.S. at

555 (observing that “difficulty in defining a workable cause

of action” may be a special factor). Lanuza’s claim for

denial of procedural due process is a “workable cause of

action.” Id. Whether the evidence was falsified, and

whether it was submitted willfully, and whether the

submission of that evidence deprived Lanuza of his right to

due process, have definite answers, and we have “established

methods” to come to these conclusions. Id. at 556. Indeed,

the administration of Lanuza’s case is particularly

straightforward because it is undisputed that Love

intentionally submitted forged documents, and therefore the

only question remaining for the district court is determining

the amount of damages to which Lanuza is entitled, an area

where our courts have substantial experience.

Finally, we do not foresee a “deluge” of potential

claimants seeking to avail themselves of this particular

Bivens action. See Davis, 442 U.S. at 248 (rejecting

argument that implying Bivens action would cause a deluge

of claims). Recognizing a Bivens action here will produce

9

Ex-ICE Attorney Sentenced to Prison for Falsifying Document in

Immigration Case (Apr. 20, 2016), https://www.ice.gov/news/releases/e

x-ice-attorney-sentenced-prison-falsifying-document-immigration-case

(quoting Assistant U.S. Attorney Matthew Diggs for the Western District

of Washington).

LANUZA V. LOVE 29

widespread litigation only if ICE attorneys routinely submit

false evidence, which no party argues is the case. And if this

problem is indeed widespread, it demonstrates a dire need

for deterrence, validating Bivens’s purpose. Moreover, a

plaintiff seeking a Bivens remedy under this theory must

allege sufficient facts to show that a federal official willfully

submitted falsified evidence and the submission of this

evidence resulted in a complete bar to relief to which the

individual was otherwise entitled under congressionally

enacted laws. Therefore, frivolous suits will not survive

Ashcroft v. Iqbal’s heightened pleading requirements.

556 U.S. 662, 678 (2009).

Because providing a Bivens remedy does not risk

improper intrusion by the judiciary into the functioning of

other branches; the judiciary is well-equipped to weigh the

costs and benefits of this case; the need for deterrence is

substantial; and allowing a lawsuit to proceed will place little

burden on the government, it is a proper use of our judicial

power to allow this Bivens action to proceed.

III.

There can be no doubt that Love—who intentionally, and

illegally, submitted falsified evidence in an immigration

hearing—is not protected by qualified immunity, as the

district court properly held. 10 “Qualified immunity balances

two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and

10

The district court reasoned, “It should be obvious to any

reasonable federal official that submitting false evidence in an

immigration proceeding, or in any judicial or quasi-judicial proceeding

for that matter, is unlawful and unconstitutional and would undermine

the integrity of such a proceeding.”

30 LANUZA V. LOVE

liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The

doctrine of qualified immunity shields officials from civil

liability so long as their conduct ‘does not violate clearly

established . . . constitutional rights of which a reasonable

person would have known.’” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (per curiam) (quotations and citations

omitted). Qualified immunity is not meant to protect those

who are “plainly incompetent or those who knowingly

violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011)). It cannot shield an officer from suit when he

intentionally submits a forged document in an immigration

proceeding in clear violation of 8 U.S.C. § 1357(b). 11

IV.

For these reasons, we hold that a Bivens remedy is

available here, where a government immigration attorney

11

Love alternatively argues Lanuza’s claim is time-barred because

the three-year statute of limitations began to run when Lanuza first

received the forged I-826 form in May 2009, instead of when Lanuza

learned it may have been forged sometime in December/January 2011,

or when the forensic examiner confirmed it was forged in February 2012.

A Bivens claim accrues when the plaintiff knows or has reason to know

of the injury that forms the basis of his cause of action, see Wallace v.

Kato, 549 U.S. 384, 388 (2007), or, in a case involving the submission

of fabricated evidence, when the case is “fully and finally resolved,”

Bradford v. Scherschligt, 803 F.3d 382, 388–89 (9th Cir. 2015). Under

either analysis, Lanuza’s claim was timely. The argument that Lanuza

should have known the I-826 form was forged the second he laid eyes

on it is absurd. The form was provided by the government—a party

normally thought to be trustworthy—which represented that it came

from Lanuza’s A-file. Moreover, both the BIA and the immigration

judge, who review these cases for a living, believed it was authentic.

Lanuza should not be held to a higher standard.

LANUZA V. LOVE 31

intentionally submitted a forged document in an immigration

proceeding to completely bar an individual from pursuing

relief to which he was entitled. Failing to provide a narrow

remedy for such an egregious constitutional violation would

tempt others to do the same and would run afoul of our

mandate to enforce the Constitution.

At its core, this case is about a lie, and all the ways it was

used, over several years, to defraud the courts. Government

attorneys are given great power, and with that power comes

great responsibility. These attorneys represent the United

States, and when they act, they speak for our government.

“[T]he federal courts have an obligation to set their face

against enforcement of the law by lawless means or means

that violate rationally vindicated standards of justice, and to

refuse to sustain such methods by effectuating them. . . .

Public confidence in the fair and honorable administration of

justice, upon which ultimately depends the rule of law, is the

transcending value at stake.” Sherman v. United States,

356 U.S. 369, 380 (1958) (Frankfurter, J., concurring); see

also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

594 n.19 (1980) (Brennan, J., concurring) (quoting

Sherman).

AFFIRMED IN PART, REVERSED IN PART,

REMANDED. 12

12

Appellant’s motion for judicial notice (Docket no. 30) is

GRANTED. Costs are awarded to Lanuza under FRACP 39(a)(4).