Daniel Engel v. Robert Buchan

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1734

D ANIEL E NGEL, in his capacity as

administrator of the Estate of Gary Engel,

Plaintiff-Appellee,

v.

R OBERT B UCHAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 C 3288—Milton I. Shadur, Judge.

A RGUED JANUARY 19, 2012—D ECIDED M ARCH 5, 2013

Before K ANNE, S YKES, and H AMILTON, Circuit Judges.

S YKES, Circuit Judge. Gary Engel was convicted in 1991

in Missouri state court for a drug-related kidnapping

and was sentenced to 90 years in prison. In 2010

the Missouri Supreme Court vacated the conviction based

on the State’s failure to disclose exculpatory evi-

dence—specifically, that a police investigator had paid a

key witness to testify—thus violating Engel’s due-process

2 No. 11-1734

rights under Brady v. Maryland, 373 U.S. 83 (1963). See State

ex rel. Engel v. Dormire, 304 S.W.3d 120, 127-30 (Mo. 2010)

(en banc). The State declined to retry Engel, and he was

released after having served 19 years behind bars.

Engel then brought this lawsuit alleging a host of state

and federal claims against the officers involved in his

case, the local police department that oversaw the in-

vestigation, and the United States. Of particular rele-

vance to this appeal is Engel’s claim against Robert

Buchan, a now-retired FBI agent, brought under Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Engel claims that Buchan

framed him by fabricating evidence and manipulating

witnesses, then suppressed this evidence in violation

of Brady. Buchan moved to dismiss, arguing that (1) a

Bivens remedy is not available for Brady violations; and

(2) qualified immunity applies because Engel did not

plead a plausible claim for a violation of his constitu-

tional rights. The district court denied the motion, and

Buchan appealed.

We affirm. A Bivens cause of action is available for

violations of Brady. Although the Supreme Court has

cautioned against extending Bivens to new contexts, this

case meets the Court’s requirements for doing so and

is materially indistinguishable from Bivens itself. And

Engel’s complaint contains enough factual specificity

to state a plausible claim for violation of his due-process

rights under Brady. Because the Brady obligation was

well established at the time of the events at issue here

(Buchan does not argue otherwise), qualified immunity

does not apply.

No. 11-1734 3

I. Background

The following account is from Engel’s amended com-

plaint; we accept the well-pleaded factual allegations

as true at this stage of the litigation. 1 Justice v. Town of

Cicero, 577 F.3d 768, 771 (7th Cir. 2009). The facts and

legal contentions are closely related to those in a

similar case brought by Steven Manning, a former

Chicago police officer and FBI informant whose claims

against Buchan and others have been before this court

on two occasions. See Manning v. Miller, 355 F.3d 1028

(7th Cir. 2004) (“Manning I”); Manning v. United States,

546 F.3d 430 (7th Cir. 2008) (“Manning II”). In 1986 Man-

ning ceased working as an informant for the FBI and

thereafter came under investigation for a number of

serious crimes, including the 1984 kidnapping of two

drug dealers in Kansas City, Missouri, and two mur-

ders in Illinois. Buchan, then an FBI agent based in Chi-

cago, was in charge of the probe. He was assisted by

Robert Quid, then a police officer for the Village of

Buffalo Grove, Illinois, where one of the murders was

committed. During the course of the Manning investiga-

tion, Buchan and Quid approached Engel, who was a

friend of Manning’s. Engel alleges that the two officers

threatened to implicate him in the kidnapping if he

did not cooperate in their investigation of Manning.

1

Engel’s counsel recently filed a suggestion of death

notifying the court that Engel has died. We have substituted

the administrator of his estate as the plaintiff-appellee in the

caption but refer to Engel as the plaintiff throughout.

4 No. 11-1734

Engel denied involvement in the kidnapping and

said he knew nothing that would help the murder in-

vestigation.

Rebuffed, Buchan and Quid made good on their

threat to implicate Engel in the kidnapping. They built

a false case against Engel and caused him to be

arrested and charged in Missouri state court with two

counts of kidnapping and related crimes. Manning, too,

was arrested and charged in the Missouri kidnapping;

he was also charged in Illinois state court for the 1990

murder of James Pellegrino. Manning was convicted on

the Missouri kidnapping charges and received a lengthy

prison sentence. Engel was tried separately in 1991 and

was convicted on all counts and sentenced to 90 years

in prison. Two years later Manning stood trial in Illinois

for the Pellegrino murder. He was convicted and sen-

tenced to death.

In 1998 the Illinois Supreme Court reversed Manning’s

murder conviction. See People v. Manning, 695 N.E.2d

423 (Ill. 1998). His Missouri kidnapping convictions were

also overturned on federal habeas review in 2002. See

Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). Manning

then sued Buchan, Quid, and others in federal court in

the Northern District of Illinois asserting constitutional

claims under Bivens and 42 U.S.C. § 1983 and several

common-law claims under the Federal Tort Claims Act

(“FTCA”) and state law. Gary Miller, an FBI agent

who worked with Buchan on the Manning case, was

among the defendants. As relevant here, Manning

alleged that Buchan, Miller, and Quid framed him by

No. 11-1734 5

using highly suggestive lineups, inducing a jailhouse

informant to testify falsely against him, knowingly sub-

mitting false reports that Manning had confessed, and

destroying or tampering with physical evidence.

Buchan and Miller moved to dismiss based on absolute

and qualified immunity,2 but the district court denied

the motion, and we affirmed on interlocutory appeal.

Manning I, 355 F.3d at 1029. We held that Manning’s

allegations stated a valid constitutional claim based on

Brady, not just a common-law claim for conspiracy

to commit perjury, which might have been barred by

absolute immunity. Id. at 1031-33. We also held that

the agents were not protected by qualified immunity

because the constitutional right in question was clearly

established at the time of the events at issue in the

case. Id. at 1034 (“prior to the actions that gave rise

to this case, it was well established that investigators

who withhold exculpatory evidence from defendants

violate the defendant’s constitutional due process

right”). When the case returned to the district court,

Manning prevailed on his Bivens/Brady claim against

Buchan and Miller, winning a $6.5 million judgment.3

The jury entered specific findings that the agents had

2

They actually filed a motion for summary judgment, but

we treated it as a motion to dismiss because discovery had not

yet occurred. Manning v. Miller, 355 F.3d 1028, 1031 (7th

Cir. 2004) (“Manning I”).

3

Manning’s claims against Quid and the Village of Buffalo

Grove were settled.

6 No. 11-1734

fabricated evidence and concealed material exculpa-

tory evidence in both the Missouri and Illinois cases.

Manning II, 546 F.3d at 432.

Manning then suffered a sharp reversal of fortune in

his civil-rights case. After judgment was entered on the

Bivens claim against Buchan and Miller, the FTCA claim

against the United States was tried to the court. The

district court ruled against Manning on the merits of

this claim and then vacated the prior judgment against

Buchan and Miller in the light of the FTCA’s judgment

bar. See 28 U.S.C. § 2676. In Manning II we affirmed

this decision, acknowledging the harshness of the result

but nevertheless concluding that the plain language of

the FTCA’s judgment bar required the district court to

vacate the judgment on the Bivens claim. 546 F.3d at 433-38.

Engel had followed the developments in the Manning

litigation and in 2007 filed a state habeas petition

seeking to have his convictions vacated. The lower

courts denied the petition, but in 2010 the Missouri Su-

preme Court granted relief, holding that the State had

violated Brady by failing to disclose that one of its key

witnesses, a drug dealer named Anthony Mammolito,

had been paid to testify. State ex rel. Engel, 304 S.W.3d

at 122-24. The State was given 60 days to retry Engel

but chose not to do so. In 2010 Engel was released

from prison after 19 years of incarceration.

Engel then filed this suit in the Northern District of

Illinois asserting a Bivens claim against Buchan for viola-

tion of Brady; claims under § 1983 against Quid and the

Village of Buffalo Grove; RICO claims against Buchan,

No. 11-1734 7

Quid, and the Village; an FTCA claim against the United

States; and state-law claims for malicious prosecution

and intentional infliction of emotional distress. Buchan

moved to dismiss the Bivens claim, arguing that (1) a

Bivens damages remedy is not available for Brady viola-

tions; and (2) qualified immunity applies.

The district court rejected both arguments. Regarding

the availability of Bivens, the court construed our

decision in Manning I as having resolved the question;

there, we rejected the agents’ immunity arguments

and allowed Manning to proceed with his Bivens claim

for the alleged violation of Brady. 355 F.3d at 1031-33. As

for Buchan’s assertion of qualified immunity, the court

again relied on Manning I, noting that Engel’s com-

plaint alleged the same basic facts that had sufficed to

overcome the qualified-immunity claims in Manning’s

case. The court thus denied the motion to dismiss,4 and

Buchan appealed.

II. Discussion

The case is before the court on Buchan’s interlocutory

appeal from the district court’s denial of his motion to

dismiss, see F ED. R. C IV. P. 12(b)(6), based on qualified

immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)

(authorizing immediate appeal of a denial of immunity).

4

Buchan also moved to dismiss Engel’s RICO claim. The

district court granted this part of the motion, and that

decision is not at issue here.

8 No. 11-1734

Our review is de novo. See Alvarado v. Litscher, 267 F.3d

648, 651 (7th Cir. 2001). The issue of qualified immunity

necessarily includes the predicate question of whether a

Bivens remedy is available in this context at all. See

Wilkie v. Robbins, 551 U.S. 537, 548-49 (2007); Carvajal v.

Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). Buchan

argues that (1) the Bivens remedy should not be ex-

tended to Brady violations; and (2) even if Bivens ap-

plies, he is entitled to qualified immunity because the

complaint lacks the factual specificity required to state

a plausible violation of Engel’s constitutional rights.

A. Bivens Remedy for Brady Violations

Our initial question is whether a violation of Brady by

an FBI agent may be redressed in a cause of action for

damages under the doctrine announced in Bivens. As

a threshold matter, the parties dispute whether our

decision in Manning I already resolved this question.

Engel relies on the following passage contained in a

footnote in Manning I:

Manning brings this claim against federal investigators

under the authority of Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971). Although this Circuit

has not explicitly recognized that Bivens may be

employed to bring a Brady claim, we have recog-

nized that Bivens may be used to bring claims for

violations of procedural and substantive due process.

See Alejo v. Heller, 328 F.3d 930 (7th Cir. 2003); Hoosier

Bancorp of Ind. v. Rasmussen, 90 F.3d 180 (7th Cir. 1996).

No. 11-1734 9

We have also entertained the use of a Bivens cause

of action where the plaintiff complains that law en-

forcement officers created false evidence to be used

at trial. Hammond v. Kunard, 148 F.3d 692, 694-95 (7th

Cir. 1998).

355 F.3d at 1031 n.1. Engel reads this language as a

holding that Bivens is available to redress a violation of

Brady. Buchan counters that the footnote is only an as-

sumption to that effect; he also notes that Manning I was

decided before the Supreme Court’s decision in Wilkie

and our more recent decision in Carvajal, both of which,

he contends, suggest that Bivens is not available to

remedy a Brady violation.

Engel is correct on this point. The passage we have

quoted can only be understood as a holding. The proce-

dural posture of Manning I was identical to the present

case, and indeed one of the issues raised in Manning I

was whether a Bivens action is available for a Brady viola-

tion. The Bivens question was briefed in Manning I,5 and

5

Buchan now suggests that the only issue he briefed in

Manning I was whether to extend Brady to law-enforcement

officers (as opposed to just prosecutors) and not whether

Bivens is available for Brady violations. To the contrary, an

entire section of Buchan’s opening brief in Manning I was

titled “There Is No Sound Basis for Authorizing Bivens

Actions Based on Brady Claims Against Law Enforcement

Officers,” and his very first argument in that section discusses

the Supreme Court’s reluctance to extend Bivens to new con-

(continued...)

10 No. 11-1734

its resolution was a necessary predicate for our rejection

of the immunity claims raised by Buchan and Miller on

interlocutory appeal. Manning quite obviously could

not have proceeded with his Brady claims against the

two FBI agents if he lacked a cause of action, which

could only arise under Bivens. To affirm the denial of the

motion to dismiss in that case was necessarily to find

a valid cause of action, so we cannot credit Buchan’s

argument that Manning I only assumed that Bivens is

available to remedy Brady violations. Indeed, the case

proceeded to trial and a $6.5 million judgment was

entered against the two agents on the Bivens/Brady

claim, see Manning II, 546 F.3d at 432, which could not

have occurred if our discussion of Bivens was under-

stood as a nonbinding assumption.

We acknowledge, however, that the footnote in

Manning I gave the matter only cursory attention.6 And

Buchan is right that recent developments in the Supreme

Court’s Bivens jurisprudence require a more complete

analysis of the question. We undertake that analysis

here, starting with Bivens itself.

5

(...continued)

texts. See Br. for Appellants in Manning I, available at 2003

WL 22721335, at *34.

6

The cases cited in the Manning I footnote do not directly

address whether a Bivens action for damages is available for

violations of Brady. See Manning I, 355 F.3d at 1031 n.1 (citing

Alejo v. Heller, 328 F.3d 930 (7th Cir. 2003); Hammond v. Kunard,

148 F.3d 692, 694-95 (7th Cir. 1998); Hoosier Bancorp of Ind.

v. Rasmussen, 90 F.3d 180 (7th Cir. 1996)).

No. 11-1734 11

In Bivens the Supreme Court recognized an implied

cause of action for damages against federal officers to

redress a constitutional violation—there, an alleged

violation of the Fourth Amendment by federal

law-enforcement agents in connection with a warrantless

search and seizure. 403 U.S. at 389-90. The Court did so

notwithstanding the absence of a statutory right of

action, finding “no special factors counseling hesitation

in the absence of affirmative action by Congress,” id. at

396, and no express statement from Congress that relief

should not be available under the circumstances, id. at

397; see also Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir.

2012) (en banc) (“Bivens was the first time the Supreme

Court created a non-statutory right of action for damages

against federal employees.”). The decision rested on a

general premise that “’where federally protected rights

have been invaded, it has been the rule from the

beginning that courts will be alert to adjust their

remedies so as to grant the necessary relief.’ ” Id. at 392

(quoting Bell v. Hood, 327 U.S. 678, 684 (1946)).

Bivens was decided in 1971, and during the next dec-

ade, the Court twice extended its holding to new con-

texts. In Davis v. Passman, 442 U.S. 228, 230 (1979), the

Court authorized a Bivens cause of action for discrim-

ination in public employment in violation of the Fifth

Amendment. In Carlson v. Green, 446 U.S. 14, 18 (1980),

the Court recognized a Bivens claim against federal

prison officials for Eighth Amendment violations. The

FTCA would have provided relief in Carlson, but the

Court nonetheless found the Bivens remedy available

because Congress had not “explicitly declared” that the

12 No. 11-1734

FTCA was “to be a substitute for recovery directly

under the Constitution and viewed as equally effective.”

Id. at 18-19.

Since Carlson, however, the Court has not authorized

a Bivens action in any other context. Rather, the Court’s

decisions have refined and narrowed the doctrine

in several important respects. First, the Court has identi-

fied specific contexts in which “special factors” counsel

against extending the Bivens remedy—factors often

keyed to concerns about the special status of the

federal defendants or sensitivity to the nature of the

governmental activity involved. See, e.g., Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 63 (2001) (no Bivens action

against private correctional corporation acting under

color of federal law); FDIC 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, 299-302 (1983) (same). Second, the Court

has explained that the existence of a comprehensive,

alternative remedial scheme may preclude a Bivens

remedy even where the alternative relief is imperfect

compared to Bivens and Congress has not explicitly

declared it to be a substitute. 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 relief is available

under a comprehensive statutory scheme); Bush v. Lucas,

462 U.S. 367, 368 (1983) (no Bivens action where a

No. 11-1734 13

federal employer commits a First Amendment viola-

tion because relief is available under a comprehensive

statutory scheme).

The Court synthesized these refinements in Bivens

doctrine in Wilkie, 551 U.S. at 541, which involved a

Fifth Amendment claim by a landowner who alleged

that federal employees had engaged in a campaign of

harassment and intimidation to induce him to give an

easement over his property. The Court distilled its

Bivens jurisprudence into a two-step framework for

evaluating whether to authorize an implied right of

action for damages against a federal official for a con-

stitutional violation:

[O]ur consideration of a Bivens request follows a

familiar sequence, and on the assumption that

a constitutionally recognized interest is adversely

affected by the actions of federal employees, the

decision whether to recognize a Bivens remedy may

require two steps. In the first place, there is the ques-

tion whether any alternative, existing process for

protecting the interest amounts to a convincing

reason for the Judicial Branch to refrain from pro-

viding a new and freestanding remedy in damages.

But even in the absence of an alternative, a Bivens

remedy is a subject of judgment: “the federal courts

must make the kind of remedial determination that

is appropriate for a common-law tribunal, paying

particular heed, however, to any special factors coun-

seling hesitation before authorizing a new kind

of federal litigation.”

Id. at 550 (citation omitted) (quoting Bush, 462 U.S. at 378).

14 No. 11-1734

Applying this two-step inquiry, the Court declined to

extend Bivens to the landowner’s property-rights claim.

At step one—the evaluation of alternative reme-

dies—the Court observed that the landowner had

several avenues of judicial and administrative redress

for much of the wrongdoing he alleged. Id. at 554. But

that was not enough to resolve the matter; the Court

said “the forums of defense and redress open [to the

landowner] are a patchwork, an assemblage of state

and federal, administrative and judicial benches ap-

plying regulations, statutes, and common law rules.” Id.;

see also id. at 555 (“The whole here is greater than the

sum of its parts.”). So the Court moved on to step two of

the analysis and considered whether “special factors”

counseled against recognizing an implied right of action.

At this step the Court concluded that the contours of

the claimed constitutional violation were too undefined

to support a judicially created remedy:

[T]o create a new Bivens remedy . . . on a theory of

retaliation for exercising [the] property right to ex-

clude, or . . . a general theory of unjustifiably bur-

dening [the] rights [of] a property owner, raises a

serious difficulty of devising a workable cause of

action. A judicial standard to identity illegitimate

pressure going beyond legitimately hard bargaining

would be endlessly knotty to work out, and a gen-

eral provision for tortlike liability when Government

employees are unduly zealous in pressing a govern-

mental interest affecting property would invite an

onslaught of Bivens actions.

Id. at 562.

No. 11-1734 15

In Minneci v. Pollard, 132 S. Ct. 617 (2012), the Court

reaffirmed the two-step analysis announced in Wilkie,

essentially treating it “as a restatement of the governing

principles.” Vance, 701 F.3d at 199. Applying the Wilkie

method, the Court in Minneci declined to extend Bivens

to a prisoner’s suit against employees of a privately

operated prison for alleged violations of the Eighth

Amendment in the provision of medical care. 132 S. Ct.

at 626. Minneci was actually resolved at step one of the

process; the Court found that state tort remedies were

available and adequate to redress the prisoner’s claim

for improper medical care. Id. at 627.

We recently addressed the Supreme Court’s Bivens

jurisprudence in our en banc decision in Vance, issued

just a few months ago. There, we noted that the Court

“has not created [a Bivens right of action] during the

last 32 years” and indeed has “reversed more than a

dozen appellate decisions that had created new actions

for damages.” 701 F.3d at 198. This suggested, we said,

that “[w]hatever presumption in favor of a Bivens-

like remedy may once have existed has long since

been abrogated.” Id. Following the analysis articulated

in Wilkie, we declined to authorize a Bivens remedy

against persons in the military chain of command for

torture claims by U.S. citizens held in military detention

overseas. Id. at 198-205.

With this legal background in place, we can now apply

the refined analysis established in Wilkie for evaluating

new Bivens claims, placing no thumb on the scale in

favor of authorizing a remedy. Our first question under

16 No. 11-1734

the Wilkie formula (and the only real point of contention

between the parties) is whether alternative remedies

exist to redress the alleged violation of Engel’s due-

process rights, and whether those alternatives amount to

a “convincing reason” to refrain from extending Bivens

here. The alternatives need not provide complete relief

to preclude the Bivens remedy, Chilicky, 487 U.S. at 425,

and where Congress has created an “elaborate, compre-

hensive scheme” to address a certain kind of constitu-

tional violation, Bivens will generally be unavailable

even if that scheme leaves remedial holes, Bush, 462 U.S.

at 385. Similarly, where the alternative remedies are the

product of state law, they need not be “perfectly congru-

ent” with the Bivens remedy; rather, the question is

whether the alternatives “provide roughly similar incen-

tives for potential defendants to comply with [the con-

stitutional requirements] while also providing roughly

similar compensation to victims of violations.” Minneci,

132 S. Ct. at 625. Mere “patchworks” of remedies arising

from an array of different legal sources may be insuf-

ficient to foreclose Bivens. Wilkie, 551 U.S. at 554.

Buchan first argues that the Brady obligation itself—that

is, the requirement that prosecutors and police officers

disclose exculpatory material to the defense, Brady, 373

U.S. at 87—is adequate in itself to secure the due-process

rights of criminal defendants. This argument misunder-

stands the nature of the government’s duty under

Brady. The Brady obligation is not a mere prophylactic

designed to protect a constitutional right, it is itself

a component of the due process owed to criminal defen-

dants under the Constitution. Id. (“[T]he suppression by

No. 11-1734 17

the prosecution of evidence favorable to an accused

upon request violates due process where the evidence

is material either to guilt or to punishment . . . .”).7 The

failure of the government’s agents to adhere to the

Brady obligation is the very constitutional wrong that

wants for redress, so it cannot be right to say that the

duty of disclosure is itself a sufficient remedy for the

constitutional violation. The disclosure rule cannot be

both the duty and the remedy for its violation.

Buchan next suggests that habeas corpus is an

adequate alternative remedy that defeats Engel’s effort to

invoke Bivens in this context. Because the harm at stake

in a Brady violation is an unjust conviction, and a defen-

dant who suffers a violation of Brady may use habeas

to obtain relief from that conviction, Buchan argues that

a Bivens remedy should not be available here. But the

habeas remedy is limited to securing prospective

relief from unlawful incarceration, halting the ongoing

harm from a conviction prejudicially tainted by a con-

stitutional violation—a powerful remedy to be sure,

but not a compensatory one. The habeas writ is akin

to an injunction; it cannot provide a retrospective com-

pensatory remedy. Stated differently, habeas corpus

is categorically incapable of compensating the victim of

7

The Supreme Court has clarified that Brady applies whether

or not the defense requests the evidence; the Brady dis-

closure of duty extends to impeachment evidence, and the

disclosure duty includes exculpatory evidence known only

to the police. See Strickler v. Greene, 527 U.S. 263, 280-81 (1999).

18 No. 11-1734

a Brady violation for the constitutional injury he has

suffered. The Supreme Court reiterated in Minneci that

the alternative remedy need not be “perfectly congru-

ent” to Bivens but should provide “roughly similar in-

centives” for compliance with constitutional require-

ments and “roughly similar compensation to victims

of violations.” Minneci, 132 S. Ct. at 625. Habeas corpus

may operate as an indirect incentive to induce constitu-

tional compliance, but it cannot perform a compensatory

function.8

It is true that in some contexts the availability of

habeas corpus weighs against authorizing a Bivens

remedy, but that is usually so when habeas is one

element of a broader, integrated remedial scheme. See,

e.g., Mirmehdi v. United States, 685 F.3d 975, 981-82 (9th

Cir. 2012) (declining to recognize a Bivens remedy for

claimed constitutional violations in the immigration

context in light of the availability of habeas corpus as

one component of a comprehensive adjudicative and

remedial process); Rauschenberg v. Williamson, 785 F.2d

985, 987 (11th Cir. 1986) (declining to recognize a Bivens

remedy in a suit for damages against a parole officer

8

In Carvajal v. Dominguez, 542 F.3d 561, 570-71 (7th Cir. 2008),

we expressed doubt about the availability of Bivens in the

context of a Brady violation, briefly suggesting that the Brady

disclosure obligation itself, and the availability of process

to overturn the conviction, might suffice as alternatives.

Carvajal was decided on other grounds, however, so this

short discussion was dicta.

No. 11-1734 19

in light of the availability of habeas corpus in addition

to other administrative remedies).

Finally, Buchan points to the existence of two

statutory remedies that provide public compensation

for wrongful incarceration in certain limited circum-

stances. In the case of a wrongful conviction for a

federal crime, the Court of Federal Claims has jurisdic-

tion under 28 U.S.C. § 1495 to award up to $50,000 per

year of incarceration (or $100,000 per year in the case

of death sentences) if the defendant can show that

“[h]is conviction has been reversed or set aside on the

ground that he is not guilty of the offense of which he

was convicted.” 28 U.S.C. § 2513(a)(1). And Missouri

has adopted a limited wrongful-conviction statute

allowing for compensation of up to $50 per day of wrong-

ful incarceration, but only if the defendant is “deter-

mined to be actually innocent of such crime solely as a

result of DNA profiling analysis.” M O . R EV. STAT. § 650.058.

Neither of these statutes can provide relief to Engel.

He was not convicted of a federal crime, and his Missouri

convictions were vacated on the basis of a due-process

violation, not “actual innocence,” much less actual inno-

cence determined solely by DNA analysis. Still, the ex-

istence of a statutory compensatory remedial scheme—

even if unavailable to Engel—at least addresses the kind

of remedy that Bivens would provide (in contrast to

habeas corpus), and depending on the degree of legisla-

tive attention in general, this might count as a reason

not to extend Bivens to this context.

20 No. 11-1734

But Buchan has given us little to support his argu-

ment in this regard. He mentions only the federal and

Missouri statutes, hardly enough on which to base a

conclusion that remedial alternatives exist to com-

pensate victims of Brady violations by federal agents. 9

We are independently aware that about half the

states provide by statute for some form of public compen-

sation for wrongful convictions, though the coverage

of these statutes is limited and varies widely. See Justin

Brooks & Alexander Simpson, Find the Cost of Freedom:

The State of Wrongful Conviction Compensation Statutes

Across the Country and the Strange Legal Odyssey of Timothy

Atkins, 49 S AN D IEGO L. R EV. 627, 633 n.59 (2012) (col-

lecting state statutes). And as we have noted, Buchan

has made no effort to demonstrate as a general matter

that the various statutory remedies—where they exist—

reasonably approximate Bivens. That is, it is far from clear

that the existing statutory remedies for wrongful convic-

tions provide “roughly similar incentives” for constitu-

tional compliance and “roughly similar compensation”

for victims of Brady violations. Minneci, 132 S. Ct. at 625.

That some jurisdictions provide public compensation

for some wrongful convictions does not definitively fore-

close a Bivens remedy here. At most, the legal land-

scape resembles the “patchwork” of remedies that was

insufficient, without more, to resolve the Bivens question

9

Buchan does not argue that the FTCA or state common-law

remedies are adequate alternatives to Bivens. See Minneci

v. Pollard, 132 S. Ct. 617, 624-26 (2012).

No. 11-1734 21

at step one in Wilkie. 551 U.S. at 554. Accordingly, we

cannot conclude that alternative compensatory process

exists to remedy violations of the Brady right, much

less that the alternatives amount to a “convincing rea-

son” not to authorize a Bivens remedy.

We proceed, then, to step two of the Wilkie frame-

work, which requires us to consider whether “any

special factors counsel[] hesitation before authorizing a

new kind of federal litigation.” Id. at 550 (quotation

marks omitted). Buchan has not identified any special

factors, and we ourselves see none. As we have noted,

this part of the analysis has tended to focus on con-

cerns about judicial intrusion into the sensitive work

of specific classes of federal defendants—military

officials in Stanley and Vance, for example; immigration

authorities in Mirmehdi; and federal agencies in Meyer—

and sometimes also concerns about doctrinal unwork-

ability, as in Wilkie.

Here, in contrast, an FBI agent stands accused of vio-

lating the constitutional rights of a person targeted for

a criminal investigation and prosecution. This paral-

lels Bivens itself. In all material respects, the Brady claim

at issue in this case is very much like the Fourth Amend-

ment claim in Bivens. We are hard-pressed to identify

a distinction that makes a difference. A Bivens/Brady

claim presents no great problem of judicial interference

with the work of law enforcement, certainly no greater

than the Fourth Amendment claim in Bivens. The

legal standards for adjudicating the claim are well estab-

lished and easily administrable. A sound common-law

remedial determination should also take account of the

22 No. 11-1734

general problem of overdeterrence, but we cannot see

how prosecutors and law-enforcement officers could

be “overdeterred” in the disclosure of exculpatory

material to criminal defendants. Buchan has not argued

that authorizing a damages remedy for Brady violations

by federal agents will have a deleterious effect on law en-

forcement, nor has he tried to distinguish a Brady claim

from the Fourth Amendment claim at issue in Bivens.

Instead, he has argued with great emphasis that the

ground has shifted under Bivens, shaking its doctrinal

foundations. No doubt that is true, as we have previously

acknowledged. See Robinson v. Sherrod, 631 F.3d 839, 842

(7th Cir. 2011) (“Bivens is under a cloud, because it is

based on a concept of federal common law no longer in

favor in the courts: the concept that for every right con-

ferred by federal law the federal courts can create a

remedy above and beyond the remedies created by the

Constitution, statutes, or regulations.”). But shaky or no,

Bivens remains the law, and we are not free to ignore it.

As recently as last year, the Supreme Court reaffirmed

the standards for resolving new Bivens questions.

Minneci, 132 S. Ct. at 621. Applying those standards

here, we conclude, consistent with our decision in

Manning I, that a Bivens cause of action is available for

a Brady violation committed by a federal law-enforce-

ment agent in connection with a state criminal prosecution.

B. Qualified Immunity

Buchan also argues that even if Engel has a cause of

action under Bivens, qualified immunity applies because

No. 11-1734 23

the complaint does not contain sufficiently specific

factual allegations to plausibly state a claim for violation

of Engel’s due-process rights. Qualified immunity “pro-

tects government officials ‘from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.’ ” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome a

defense of qualified immunity at the pleading stage, the

complaint must contain sufficient factual allegations to

show that the defendant’s conduct violated a constitu-

tional right and that the right was clearly established at

the time of the alleged violation. Id. at 232 (citing Saucier

v. Katz, 533 U.S. 194, 201 (2001)).

It is beyond dispute that the Brady right was well estab-

lished at the time of the events set forth in Engel’s com-

plaint. See Newsome v. McCabe, 256 F.3d 747, 752-53 (7th

Cir. 2001) (“The Brady principle was announced in

1963, and we applied it in Jones [v. City of Chicago, 856

F.2d 985 (7th Cir. 1988)] to affirm a hefty award of

damages against officers who withheld exculpatory

information in 1981.”). Buchan does not argue otherwise.

Instead, he maintains that Engel’s complaint lacks suffi-

cient factual content to state a claim for a Brady viola-

tion under the pleading standard announced in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

To survive a motion to dismiss under that standard,

Engel’s complaint must “state a claim to relief that is

24 No. 11-1734

plausible on its face,” Twombly, 550 U.S. at 570, which

in turn requires sufficient factual allegations to permit

the court to draw a reasonable inference that the

defendant is liable for the misconduct alleged, id. at 556.

“Where a complaint pleads facts that are ‘merely con-

sistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement

to relief.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 557) (internal quotation marks omitted). Purely

legal conclusions are insufficient. Id. (“Threadbare

recitals of the elements of the cause of action, supported

by mere conclusory statements, do not suffice.”).

The Twombly/Iqbal “plausibility” determination is a

“context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id.

at 679. Plausibility is “not akin to a ‘probability require-

ment,’ ” but the plaintiff must allege “more than a sheer

possibility that a defendant has acted unlawfully.” Id. at

678. We have interpreted the plausibility standard to

mean that “the plaintiff must give enough details about

the subject-matter of the case to present a story that

holds together.” Swanson v. Citibank, N.A., 614 F.3d 400,

404 (7th Cir. 2010). “In other words, the court will ask

itself could these things have happened, not did they

happen.” Id.

Buchan argues that Engel makes only conclusory al-

legations with respect to his central claim of wrong-

doing—as, for example, when he alleges that “[a]ll

of the evidence introduced against Plaintiff at his trial

was the product of intentional misconduct by the Defen-

No. 11-1734 25

dants, who fabricated evidence, manipulated witnesses,

and withheld exculpatory evidence.” Were this the

entirety of the factual allegations in the complaint,

Buchan might have a point. “Intentional misconduct,”

“fabricated evidence,” and “manipulated witnesses” are

highly generalized factual allegations, and to allege

that the defendants “withheld exculpatory evidence”

is basically to state the definition of a Brady claim.

But Iqbal makes clear that “legal conclusions can

provide the framework of a complaint” so long as

they are “supported by factual allegations,” Iqbal, 556

U.S. at 679, and that is the case here. Read as a whole,

Engel’s complaint easily contains enough specific

factual allegations to state a plausible claim for violation

of his due-process rights under Brady. The complaint

describes at length and in detail the history we have

recited above, describing how Buchan and Quid first

targeted Manning, framed him for the kidnapping in

Missouri and the Pellegrino murder in Illinois, and then

approached Engel. The complaint alleges that the de-

fendants “informed Plaintiff that they were going to

implicate him in the Missouri kidnaping,” and that “if he

was willing to implicate Mr. Manning in the crimes

they were investigating, then Plaintiff would be dealt

with leniently.” The complaint further alleges that the

defendants “ignored Plaintiff’s protestations of inno-

cence and noninvolvement,” and goes on to describe

Engel’s prosecution and conviction, and also Manning’s,

and then explains how and why their convictions were

overturned.

26 No. 11-1734

With respect to Engel in particular, the complaint

alleges that the Missouri Supreme Court “concluded

that material, exculpatory evidence had been withheld

from Plaintiff in violation of his constitutional rights.”

The suppressed exculpatory evidence “included, but

was not limited to, previously-undisclosed evidence

that the key witness against Plaintiff had received

monetary payments in exchange for his testimony.” 1 0

The complaint also alleges that the defendants “fab-

ricated false reports and other evidence, thereby mis-

leading and misdirecting the criminal prosecution of

Plaintiff,” and “engaged in . . . unduly suggestive iden-

tification procedures.” These allegations, read in con-

text with the rest of the complaint, surpass the plausi-

bility threshold of Twombly and Iqbal.

Buchan insists that the complaint lacks specificity

because the allegations often refer to “the [d]efendants”

generally, without differentiating between them. See

Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008)

(plaintiffs may not rely on “[v]ague references to a

group of ‘defendants,’ without specific allegations tying

the individual defendants to the alleged unconstitu-

tional conduct”). But reading the allegations sensibly

and as a whole, there is no genuine uncertainty

10

Buchan objects that the complaint does not specify who this

witness actually was, but he also acknowledges that he under-

stands this allegation to refer to Anthony Mammolito, who

was specifically identified by the Missouri Supreme Court as

the witness who was paid to testify.

No. 11-1734 27

regarding who is responsible for what. Wherever

the complaint mentions specific misconduct in Engel’s

investigation and prosecution—withheld evidence, ma-

nipulated testimony, fabricated reports, suggestive iden-

tification procedures, and so on—there can be no

doubt that it refers to Buchan and Quid, the two law-

enforcement officers involved in the case. And they are

accused of acting jointly. The complaint alleges that

Buchan and Quid approached Engel together and threat-

ened to implicate him in the Missouri kidnapping; the

natural inference is that the misconduct that followed

during the investigation and prosecution was commit-

ted by these two as well. The only other parties named

as defendants—the Village of Buffalo Grove and the

United States—are nonpersonal entities, so it would

make no sense to think the complaint was referring to

them when describing these specific, personal actions.

Engel’s complaint is therefore quite different from the

one in Grieveson, where a prisoner asserted § 1983

claims against seven different officers arising from

seven different attacks without tying any particular

officer to any particular injury. See id. at 777-78.

Accordingly, we agree with the district court that

Engel’s complaint states a plausible claim for violation

of his due-process rights under Brady. It is undisputed

that the Brady right was well established at the time of

the events alleged in the complaint. Buchan is not

entitled to qualified immunity.

28 No. 11-1734

III. Conclusion

For the foregoing reasons, we conclude that a cause

of action under Bivens is available for a violation of

Brady by a federal law-enforcement agent. Engel’s com-

plaint contains sufficient factual allegations to state a

plausible claim for violation of his due-process rights

under Brady. Because the Brady right was well estab-

lished at the time of the alleged violation, Buchan is not

entitled to qualified immunity.

A FFIRMED.

3-5-13