Petition for Writ of Certiorari — Karina Sigalovskaya, Petitioner v. Abigail Braden, Individually and in Her Official Capacity as a Special Agent for the Department of Homeland Security

No. __________

In the Supreme Court of the United States

________________________

KARINA SIGALOVSKAYA,

Petitioner,

v.

SPECIAL AGENT ABIGAIL BRADEN,

Respondent.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

___________________________________________

PETITION FOR WRIT OF CERTIORARI

___________________________________________

Joseph Pace

Counsel of Record

J. PACE LAW, PLLC

30 Wall St., 8th Fl.

New York, NY 10005

(917) 336-3948

jpace@jpacelaw.com

Attorney for Petitioner

MAY MMXXVI

United States Commercial Printing Company • www.uscpc.us • (202) 866-8558

i

QUESTIONS PRESENTED

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), the Court

recognized an implied cause of action under the

Fourth Amendment against Federal Bureau of Narcotics agents who entered the plaintiff’s home without

a warrant, conducted a search, and then arrested

him—in front of his children— without probable cause.

In this case, federal law enforcement officers entered

Petitioner’s home without a warrant, searched the

premises, and separated her from her children. While

inside the house, one of the officers falsely claimed

that Petitioner had just confessed to a crime and used

that as a pretext for taking her into custody. As in

Bivens itself, no probable cause existed for the arrest.

The questions presented are:

1. Whether Bivens provides a remedy when federal officers enter a home without a warrant, fabricate

evidence during the search, and use that evidence to

arrest the resident without probable cause.

2. Whether the availability of an alternative remedy independently forecloses a Bivens claim that does

not otherwise meaningfully differ from Bivens itself.

ii

PARTIES TO THE PROCEEDINGS

Petitioner, and plaintiff-appellant below is Karina

Sigalovskaya.

Respondent, and defendant-appellee below is Special Agent Abigail Braden.

Other defendants-appellees are Special Agents Luann Walter, Megan Buckley, and Robert Mancene.

They are not respondents on petition for writ of certiorari.

RELATED PROCEEDINGS

United States District Court (EDNY):

Sigalovskaya v. Braden, et al., No. 1:15-cv00034-LDH-RML (Sep. 29, 2023) (memorandum and order granting Defendant’s motion on the pleadings)

United States Court of Appeals (CA2):

Sigalovskaya v. Braden, et al., No. 23-7625

(Aug. 27, 2025) (district court affirmed)

Sigalovskaya v. Braden, et al., No. 23-7625

(Dec. 2, 2025) (rehearing denied)

iii

TABLE OF CONTENTS

Questions Presented ................................................... i

Parties to the Proceedings ......................................... ii

Related Proceedings ................................................... ii

Table of Authorities....................................................vi

Petition for Writ of Certiorari .....................................1

Opinions and Orders Below ........................................1

Jurisdiction ..................................................................1

Constitutional and Regulatory Provisions Involved ..1

Preliminary Statement ...............................................2

Statement of the Case .................................................5

A.

Legal Framework .............................................5

B.

Factual Background .........................................7

C.

Procedural Background ....................................8

Reasons for Granting the Petition ............................ 11

I.

Courts Are Intractably Divided Over How To

Apply This Court’s Test For Assessing

Whether a Bivens Claim Arises in a New

Context ............................................................ 11

A.

The Circuits Are Split Over What Makes

a Claim “Meaningfully Different” From a

Recognized Bivens Context ..................... 11

B.

The Circuits Are Split Over Whether an

Alternative Remedy Independently

Creates a New Bivens Context ............... 15

II. The Issues are Important and Recurring ...... 18

iv

III. The Decision Below Is Wrong ........................ 20

A.

Sigalovskaya’s False-Arrest Claim is Not

“Meaningfully Different” From Bivens ... 21

B.

The Existence of an Alternative Remedy

Does Not Render a Previously Recognized

Bivens Claim “New” ................................ 25

IV. This Case Presents an Ideal Vehicle ............. 28

Conclusion ................................................................. 29

Appendix

Appendix A

Opinion [judgment of the district court affirmed],

United States Court of Appeals for the Second Circuit, Karina Sigalovskaya v. Special Agent Abigail

Braden, Special Agent Luann Walter, Special Agent

Megan Buckley, and Special Agent Robert Mancene,

Individually and in their official capacity as Special

Agents,

No: 23-7625 (Aug. 27, 2025) ........................... App-1

Opinion of Judge Lee (concurring) ............. App-5

Opinion of Judge Pérez (concurring) ........ App-25

Opinion of Judge Lynch (dissenting in part) ..........

..................................................................... App-28

v

Appendix B

Memorandum and Order [Defendant’s motion for

judgment on the pleadings granted], United States

District Court for the Eastern District of New York,

Karina Sigalovskaya v. Special Agent Abigail

Braden, Special Agent Luann Walter, Special Agent

Megan Buckley, and Special Agent Robert Mancene,

No. 1:15-cv-00034-LDH-RML

(Sep. 29, 2023) ............................................... App-32

Appendix C

Order [rehearing denied], United States Court of

Appeals for the Second Circuit, Karina Sigalovskaya v. Special Agent Abigail Braden, Special

Agent Luann Walter, Special Agent Megan Buckley,

and Special Agent Robert Mancene, Individually

and in their official capacity as Special Agents,

No: 23-7625 (Dec. 2, 2025) ............................ App-51

Appendix D

8 C. F. R. § 287.10 ......................................... App-53

vi

TABLE OF AUTHORITIES

Cases

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) ......................... 22-24

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ......................... 13, 24

Arias v. Herzon,

150 F.4th 27 (1st Cir. 2025)

............................................. 4, 11-13, 15-16, 20, 26

Ashcroft v. Iqbal,

556 U. S. 662 (2009)...............................................5

Benderoff v. Johansen,

No. 25-1315, 2026 U. S. App. LEXIS 1094

(6th Cir. 2026) ...................................................... 20

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U. S. 388 (1971).............................. 2-18, 20-28

Brinegar v. United States,

338 U. S. 160 (1949)............................................. 19

Brooks v. Richardson,

131 F.4th 613 (7th Cir. 2025) .............................. 17

Buchanan v. Barr,

71 F.4th 1003 (D.C. Cir. 2023) ............................ 20

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021) ......................... 13, 28

vii

Cain v. Rinehart,

No. 22-1893, 2023 U. S. App. LEXIS 18993

(6th Cir. July 25, 2023)........................................ 13

Cantu v. Moody,

933 F.3d 414 (5th Cir. 2019) ......................... 13, 24

Carlson v. Green,

446 U. S. 14 (1980).................... 5, 14, 17-18, 26-27

Corr. Servs. Corp. v. Malesko,

534 U. S. 61 (2001)........................................... 5, 26

Davis v. Passman,

442 U. S. 228 (1979)......................................... 5, 27

District of Columbia v. Wesby,

583 U. S. 48 (2018)......................................... 22-23

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024) ....................... 4, 11-12

Egbert v. Boule,

596 U. S. 482 (2022)....... 7-10, 16, 18-19, 21, 25-26

Evans v. United States,

No. 24-40300, 2025 U. S. App. LEXIS 4734

(5th Cir. Feb. 28, 2025) ........................................ 20

Gerstein v. Pugh,

420 U. S. 103 (1975)............................................. 22

Goldey v. Fields,

606 U. S. 942 (2025)..................................... 6-7, 26

viii

Henry v. United States,

361 U. S. 98 (1959)............................................... 19

Hernandez v. Causey,

124 F.4th 325 (5th Cir. 2024) .................. 17-18, 20

Hernandez v. Mesa,

589 U. S. 93 (2020)......................................... 21-22

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) .......................... 22, 24

Hurst v. Derr,

No. 23-15523, 2024 U. S. App. LEXIS 20750

(9th Cir. Aug. 16, 2024) ....................................... 20

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) ...................... 18, 20

Kalu v. Spaulding,

113 F.4th 311 (3d Cir. 2024) ......................... 18, 20

Limone v. Condon,

372 F.3d 39 (1st Cir. 2004) .................................. 19

Logsdon v. United States Marshal Serv.,

91 F.4th 1352 (10th Cir. 2024) ............................ 20

Mejia v. Miller,

61 F.4th 663 (9th Cir. 2023) ................................ 13

Muniz v. United States,

149 F.4th 256 (3d Cir. 2025) ............... 4, 15, 18, 20

Napue v. Illinois,

360 U. S. 264 (1959)............................................. 19

ix

Oliva v. Nivar,

973 F.3d 433 (5th Cir. 2020) ........................... 3, 14

Orellana v. Godec,

145 F.4th 516 (4th Cir. 2025) ........................ 14-15

Quinones-Pimentel v. Cannon,

85 F.4th 63 (1st Cir. 2023) .................................. 11

Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024) .......................... 17

Sargeant v. Barfield,

87 F.4th 358 (7th Cir. 2023) ................................ 20

Schwartz v. D. Miller, P.A.,

153 F.4th 918 (9th Cir. 2025) ...............4, 16-17, 20

Sheikh v. United States Dep’t of Homeland Sec.,

106 F.4th 918 (9th Cir. 2024) .................. 20, 23-24

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) .................4, 12-13, 21

Vaughn v. Bassett,

No. 22-10962, 2024 U. S. App. LEXIS 14074

(5th Cir. June 10, 2024) ....................................... 20

Watanabe v. Derr,

115 F.4th 1034 (9th Cir. 2024) ............................ 16

Watanabe v. Derr,

139 F.4th 1056 (9th Cir. 2025) ................ 15, 17, 20

Watkins v. Mohan,

144 F.4th 926 (7th Cir. 2025) .......................... 4, 19

x

Wimberly v. Selent,

No. 23-13550, 2024 U. S. App. LEXIS 13557

(11th Cir. June 5, 2024) ....................................... 20

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) ................................. 20

Ziglar v. Abbasi,

582 U. S. 120 (2017)

............................ 2, 5-8, 11-12, 14-18, 21-23, 26-28

Constitutional Provisions

U. S. Const., Amdt. IV ................ 1-3, 5, 12-14, 19, 22

U. S. Const., Amdt. V .................................... 5, 26-27

U. S. Const., Amdt. VIII ...........................5, 18, 26-27

Statutes

18 U. S. C. § 2251 ......................................................8

18 U. S. C. § 2252 ......................................................8

28 U. S. C. § 1254 ......................................................1

Inspector General Act Amendments of 1988,

Pub. L. No. 100-504, 102 Stat. 2515 ................... 15

Prison Litigation Reform Act, Pub. L. No. 104-134,

110 Stat. 1321 ...................................................... 16

Rules

Fed. R. Civ. P. 12(c) ...................................................8

Regulations

8 C. F. R. § 287.10 ................................2, 9-10, 16, 18

xi

28 C. F. R. § 0.29c .............................................. 16, 27

28 C. F. R. § 542.10 ................................................. 16

28 C. F. R. § 542.11 ................................................. 16

28 C. F. R. § 542.12 ................................................. 16

28 C. F. R. § 542.13 ................................................. 16

28 C. F. R. § 542.14 ................................................. 16

28 C. F. R. § 542.15 ................................................. 16

28 C. F. R. § 542.16 ................................................. 16

28 C. F. R. § 542.17 ................................................. 16

28 C. F. R. § 542.18 ................................................. 16

28 C. F. R. § 542.19 ................................................. 16

Other Authorities

U.S. Dep’t of Justice Office of the Inspector General,

Submitting a Complaint ...................................... 27

PETITION FOR WRIT OF CERTIORARI

Petitioner Karina Sigalovskaya (Sigalovskaya) respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit

OPINIONS AND ORDERS BELOW

The Second Circuit’s opinion is reported at 149

F.4th 226, and is reproduced in the appendix at App.

1-31. The Second Circuit’s denial of rehearing en banc

is reproduced in the Appendix at App. 51-52. The

Eastern District of New York’s decision is reproduced

in the Appendix at App. 32-50.

JURISDICTION

The Second Circuit’s judgment was entered on August 27, 2025. The Second Circuit denied rehearing en

banc on December 2, 2025. On February 20, 2026, Justice Sotomayor extended the time to petition for a writ

of certiorari to May 1, 2026. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.”

2

Relevant parts of 8 C.F.R. § 287.10 are set forth in

the Appendix at App. 53.

PRELIMINARY STATEMENT

Even as this Court has curtailed Bivens remedies,

it has emphasized that Bivens remains “settled law”—

indeed, a “necessity”—“in the search-and-seizure context in which it arose.” Ziglar v. Abbasi, 582 U.S. 120,

134 (2017). Consistent with that principle, it has confirmed that a claim may proceed so long as it does not

“arise[] in a new Bivens context”—that is, so long as

the claim is not “different in a meaningful way from

previous Bivens cases decided by this Court.” Id. at

139, 147 (emphasis added).

The instant case is practically a reenactment of

Bivens itself. In Bivens, Federal Bureau of Narcotics

agents conducted a warrantless search of the plaintiff’s residence, shackled him in front of his children,

and arrested him without probable cause. Here,

Homeland Security Investigations (HSI) agents conducted a warrantless search of Sigalovskaya’s residence, separated her from her children, and then arrested her without probable cause. Even so, the Second Circuit upheld the dismissal of her false-arrest

claim in a one-paragraph per curiam opinion accompanied by two concurrences and a dissent.

Tellingly, no two judges could agree on a rationale

for dismissing the claim. Judge Lee concluded that the

claim arose in a new Bivens context because the agent

was alleged to have fabricated evidence (i.e., Sigalovskaya’s confession) to justify the arrest, and because special factors counseled against a Bivens extension. Judge Pérez and Judge Lynch disagreed that

the claim presented a new context. The fact that the

3

agent pretended to have grounds to arrest Sigalovskaya, they noted, had no bearing on the ultimate

inquiry—whether the agent actually had probable

cause to effectuate the arrest. Judge Pérez and Judge

Lynch also observed that a rule that treated such trivial variations as meaningful would effectively overrule Bivens, since no claim will ever perfectly match

the facts of that case.

Instead, Judge Pérez voted to affirm the dismissal

on the grounds that the availability of an administrative grievance procedure independently foreclosed a

Bivens remedy. In dissent, Judge Lynch argued that

Judge Pérez misapplied this Court’s two-step framework for assessing Bivens claims. Once a court determines that a claim does not arise in a new context, he

explained, the analysis ends; the court has no occasion

to ask whether an alternative remedial scheme forecloses relief. Judge Lynch also explained that Judge

Pérez’s reasoning would likewise represent a de facto

overruling of Bivens, since all federal law enforcement

agencies have grievance procedures in place.

The panel’s fractured decision is a microcosm of the

disarray that now typifies Bivens jurisprudence. Its

competing opinions exemplify entrenched circuit

splits over two recurring questions in this Court’s

Bivens framework. The first concerns what makes a

Fourth Amendment claim “meaningfully different”

from Bivens. One view, reflected in Judge Lee’s concurrence, treats virtually any factual or legal variation as meaningful. See, e.g., Oliva v. Nivar, 973 F.3d

433, 438 (5th Cir. 2020). The competing view, reflected

in Judge Pérez’s concurrence and Judge Lynch’s dissent, treats a claim as meaningfully different only if it

would require the court to “reweigh[] the costs and

4

benefits of a damages remedy against federal officials.”

See, e.g., Snowden v. Henning, 72 F.4th 237, 244 (7th

Cir. 2023).

The courts of appeals are likewise divided over

whether an alternative remedy can independently extinguish a claim that is not meaningfully different

from a previously recognized Bivens remedy. Like

Judge Pérez, several circuits have answered that

question in the affirmative, holding that the availability of an alternative remedy may itself move a claim

into a new Bivens context. See, e.g., Muniz v. United

States, 149 F.4th 256, 264 (3d Cir. 2025). Other circuits have taken the opposite view, concluding—as

Judge Lynch did—that an alternative remedy may

foreclose an extension of Bivens, but will not render an

otherwise-recognized claim “new.” See, e.g., Arias v.

Herzon, 150 F.4th 27, 40-47 (1st Cir. 2025); Schwartz

v. D. Miller, P.A., 153 F.4th 918, 930 (9th Cir. 2025).

For years, the courts of appeals have “struggle[d]

with the Court’s limited guidance on how to conduct a

‘new context’ analysis.” Watkins v. Mohan, 144 F.4th

926, 951 (7th Cir. 2025) (Kirsch, J., concurring in part

and dissenting in part). As one judge has noted, the

proper method for assessing whether a claim “meaningfully” differs from a recognized Bivens remedy is

“shrouded in . . . confusion.” Edwards v. Gizzi, 107

F.4th 81, 90 (2d Cir. 2024) (Parker, J., dissenting). As

a result, “whether a given cause of action proceeds depends largely on what differences are meaningful to a

particular panel of judges.” Watkins, 144 F.4th at 951;

ibid. (noting the “flood of inconsistent case law” about

what constitutes a “new context”). Those seeking to

vindicate their constitutional rights deserve a clearer

rule.

5

This case squarely presents two questions that have

vexed the courts of appeals. This Court should grant

the petition to resolve these splits and to reaffirm

Bivens’s continued vitality in the context of warrantless home searches culminating in arrests without

probable cause.

STATEMENT OF THE CASE

A. Legal Framework

In 1971, this Court recognized an implied damages

remedy for persons arrested “without probable cause”

in violation of the Fourth Amendment. Bivens, 403

U.S. at 389, 392-93. This Court has extended Bivens

twice. In Davis v. Passman, the Court allowed a congressional staffer to sue for sex-based discrimination

in violation of the Fifth Amendment. 442 U.S. 228,

248-49 (1979). And in Carlson v. Green, the Court allowed a suit under the Eighth Amendment for deliberate indifference to an inmate’s medical condition.

446 U.S. 14, 16-25 (1980).

Since Carlson, the Court has “consistently refused

to extend Bivens liability to any new context.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001). However, the Court has likewise consistently refused to

overrule Bivens. Thus, in Ziglar, the Court reiterated

that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” 582 U.S. at 135 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)), and recognized that the result in Bivens might “have been different” if that case “were decided today.” Id. at 134.

Even so, the Court took pains to emphasize that its

decision was “not intended to cast doubt on the continued force, or even the necessity, of Bivens in the

search-and-seizure context in which it arose.” Ibid.

6

“The settled law of Bivens in this common and recurrent sphere of law enforcement,” the Court explained,

“and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that

sphere.” Ibid. The Court also reiterated that Bivens

plays a crucial role in “vindicat[ing] the Constitution

by allowing some redress for injuries” and that it “provides instruction and guidance to federal law enforcement officers going forward.” Ibid.

The Court set forth a two-step process for determining whether a Bivens claim may proceed. At step one,

the Court “asks whether the case presents ‘a new

Bivens context’—that is, whether the case ‘is different

in a meaningful way’ from the cases in which this

Court has recognized a Bivens remedy.” Goldey v.

Fields, 606 U.S. 942, 944 (2025) (quoting Ziglar, 582

U.S. at 139). Rather than articulate a standard for

this inquiry, the Court provided a list of examples:

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.

Ziglar, 582 U.S. at 140 (emphasis added).

7

If—and only if—the context is new, the Court proceeds to step two of the analysis and asks “whether

there are ‘special factors’ indicating that ‘the Judiciary is at least arguably less equipped than Congress

to ‘weigh the costs and benefits of allowing a damages

action to proceed.’” Goldey, 606 U.S. at 944 (quoting

Egbert, 596 U.S. at 492).

B. Factual Background

On February 11, 2013, several HSI 1 officers—Special Agents Walter, Buckley, and Mancene—forced

their way into Sigalovskaya’s apartment without her

consent and without a warrant and demanded to

know the whereabouts of her common-law husband,

whom they were investigating for possession of child

pornography. App. 5-6. Once inside the apartment,

Agents Walter, Buckley, and Mancene separated Sigalovskaya from her two children and searched her

apartment without her consent. App. 6.

After Sigalovskaya demanded that the agents leave

her home, Agent Braden entered the room where Sigalovskaya was being held and demanded that she

write a statement. Braden then falsely claimed that

Sigalovskaya had confessed to taking a pornographic

picture of her daughter and forwarded that false

statement to the U.S. Attorney’s Office for the Eastern

District of New York. App. 6-7. On the basis of that

false statement, Braden arrested Sigalovskaya, who

was charged with violations of 18 U.S.C. §§ 2251(a)

and 2252(a)(4)(B). App. 7. Sigalovskaya was denied

bail and held at the Metropolitan Detention Center for

HSI is a unit within the Department of Homeland Security

(DHS).

1

8

approximately three weeks, where she was repeatedly

strip-searched. Ibid. On March 5, 2013, the U.S. Attorney’s Office moved to dismiss all charges, and the

case was dismissed. Ibid.

C. Procedural Background

On January 6, 2015, Sigalovskaya initiated the underlying civil action, asserting claims for false arrest,

malicious prosecution, abuse of process, and denial of

a fair trial against the special agents. On March 15,

2019, the district court granted summary judgment in

part, leaving only the false-arrest and malicious-prosecution claims against Agent Braden and a false-arrest claim against Agent Mancene based on a failureto-intervene theory. App. 8.

On June 8, 2022, four months before trial was set to

commence, this Court rendered its decision in Egbert,

596 U.S. 482. Shortly thereafter, Agents Braden and

Mancene moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that the surviving

Bivens claims presented “new contexts” and that “special factors” militated against extending a Bivens remedy. App. 9.

On September 29, 2023, the district court granted

the motion and dismissed Sigalovskaya’s remaining

claims. Applying the two-step test first announced in

Ziglar, the court concluded that Sigalovskaya’s malicious-prosecution and failure-to-intervene claims presented new Bivens contexts. The court recognized that

the false-arrest claim “ha[d] parallels to Bivens,” but

concluded that it presented a new context because the

defendants worked for a different federal agency and

because the “focus of [Sigalovskaya’s] complaint was

Braden’s fabrication of evidence.” App. 43. Turning to

9

step two, the court concluded that several special factors—including the existence of an alternative remedy—foreclosed relief. App. 46. Sigalovskaya appealed

the dismissal of the false-arrest claim as to Agent

Braden. 2

On August 27, 2025, the Second Circuit affirmed

the district court’s decision in a one-paragraph per curiam opinion. Judge Lee and Judge Pérez filed separate concurrences articulating different grounds for

affirmance. In Judge Lee’s view, Sigalovskaya’s falsearrest claim was “meaningfully different” from Bivens

because it “focus[ed] [on] the fabrication of evidence

that led to her arrest,” whereas Bivens involved an “illegal entry into the plaintiff’s home during which

agents searched [the home] ‘from stem to stern’ after

[the plaintiff] had been ‘manacled’ in front of his wife

and children.” App. 15. Judge Lee canvassed sistercircuit decisions and concluded that other circuits had

likewise held that “claims involving the fabrication of

evidence present a new Bivens context.” App. 19. She

then identified two “special factors” counseling

against a Bivens remedy: first, that HSI “operates

both nationally and internationally,” 3 App. 21-22; and

second, that an alternative remedy was available under 8 C.F.R. § 287.10, which channels misconduct

complaints against special agents to the DHS Office of

the Inspector General for investigation. App. 22-23.

Judge Pérez concluded that the court did not need

to reach the “new context” question because

Although Sigalovskaya also appealed the dismissal of her malicious-prosecution claim, that claim is not at issue in this petition.

3

There were no allegations below that HSI’s investigation here

had an international dimension.

2

10

Sigalovskaya's claim was independently foreclosed by

the alternative remedy set forth in 8 C.F.R. § 287.10.

App. 25. In her view, “an alternative remedial scheme

‘alone’ is a ‘special factor’ under the Supreme Court’s

Bivens jurisprudence that terminates the action.” App.

25 (quoting Egbert, 596 U.S. at 497). But Judge Pérez

added that, “were [she] to consider whether Sigalovskaya’s suit presents a ‘new context’ today, [she]

would find no meaningful daylight between Sigalovskaya’s false-arrest claim and the claim presented

in Bivens[.]” App. 26. Sigalovskaya’s complaint, she

reasoned, “hews closely” to Bivens both factually and

legally. App. 27. “That [Sigalovskaya] additionally alleged that the government fabricated evidence in effecting her false arrest does not transform that claim

into a legally distinct one for purposes of any ‘new context’ inquiry.” Ibid. To hold otherwise, she concluded,

would “parse Bivens actions” so finely that the doctrine could not proceed even in “previously recognized

contexts.” Ibid.

Judge Lynch dissented. He agreed with Judge Pérez

that there was “no meaningful difference between Sigalovskaya’s false-arrest claim and the claim in Bivens”

because both claims alleged an arrest without probable cause. App. 28. In his view, the only distinction between the two cases—that Agent Braden “pretended”

to have probable cause—was of “no moment” since the

“core issue” was the same. App. 29. Judge Lynch disagreed, however, with Judge Pérez’s conclusion that

an alternative remedy foreclosed Sigalovskaya’s claim.

Once a court determines that a claim does not arise in

a new Bivens context, he argued, the analysis ends—

the court has no occasion to consider alternative remedies at step two. App. 29-30. He further explained

11

that Judge Pérez’s reasoning “would represent a de

facto overruling of Bivens” since “all law enforcement

agencies have internal disciplinary procedures for investigating and punishing rogue agents.” App. 30.

The court of appeals denied a timely filed petition

for rehearing en banc. App. 51-52.

REASONS FOR GRANTING THE PETITION

I.

Courts Are Intractably Divided Over How

To Apply This Court’s Test For Assessing

Whether a Bivens Claim Arises in a New

Context

A. The Circuits Are Split Over What

Makes a Claim “Meaningfully

Different” From a Recognized Bivens

Context

As the panel’s fragmented decision illustrates, the

lower courts are openly struggling with what makes a

claim “meaningfully different” from a previously recognized Bivens context. See, e.g., Edwards, 107 F.4th

at 89-90 (Parker, J., dissenting) (noting that the Court

has “afforded [lower courts] precious little guidance”

in applying the “meaningfully different” standard,

and that the proper method for applying the Ziglar

examples is “shrouded in so much confusion”); Quinones-Pimentel v. Cannon, 85 F.4th 63, 69 (1st Cir.

2023) (“What makes a difference ‘meaningful’ is a bit

unclear”); Arias, 150 F.4th at 34 (same); App. 30

(Lynch, J., dissenting) (criticizing the Court for failing

to offer a “coherent, intellectually honest basis for reflexively distinguishing cases that are materially indistinguishable from Bivens itself”).

12

1. Two approaches have emerged. The first—

adopted by the First and Seventh Circuits and reflected in Judge Pérez’s concurrence and Judge

Lynch’s dissent—gives substance to the word “meaningful” by using a functional test. Under that approach, a claim arises in a new context only if it “involves facts or legal issues that would require reweighing the costs and benefits of a damages remedy

against federal officials.” Arias, 150 F.4th at 35 (quoting Snowden, 72 F.4th at 244) (emphasis in original).

If, by contrast, “a case does not involve facts or legal

issues that would require such a reweighing, then the

difference does not in and of itself make the context

new.” Ibid.; see also Edwards, 107 F.4th at 88 (Robinson, J., concurring in the judgment) (“[A] court cannot

simply plug in the factors identified in Ziglar. Instead,

it must apply those factors to the nature of the claim

to determine if the claim itself is meaningfully different.”).

Applying that test, the First and Seventh Circuits

have rejected the premise that a Fourth Amendment

Bivens claim survives only when the plaintiff alleges

the precise combination of facts present in Bivens itself—a warrantless home search, a false arrest, and

use of excessive force.

Thus, in Arias, the First Circuit held that an excessive-force claim involving the use of force during a

warrant-based arrest in a public parking lot did not

arise in a new context. 150 F.4th at 30-31. The court

concluded that the existence of an arrest warrant was

of “little relevance” because “[t]he use of excessive

force in effectuating an arrest is equally excessive regardless of whether an arrest is made pursuant to a

warrant.” Id. at 37. The court observed that “nothing

13

in [Bivens’s recognition of an excessive-force claim]

appears to have turned on the officers not having a

warrant.” Ibid. The court likewise held that the public

location was not a “meaningful difference” because it

did not “bear[] on the reasonableness of the level of

force used, such that the involvement of this location

risks altering the policy balance that initially justified

the cause of action recognized in Bivens as a separation-of-powers matter.” Id. at 39-40 (cleaned up). 4

The Seventh Circuit reached a similar conclusion in

Snowden, which also recognized a Bivens remedy for

excessive force used during the execution of a warrant

in a place outside the home—this time, in a hotel room.

The existence of a warrant and the non-residential location, the court held, were “trivial” differences: “Hotel or home, warrant or no warrant—the claims here

and in Bivens stem from run-of-the-mill allegations of

excessive force during an arrest.” 72 F.4th at 347. Neither difference, the court concluded, “implicate[d] the

separation-of-powers calculus.” Ibid.

2. Under the second approach—embraced by the

Fourth and Fifth Circuits and reflected in Judge Lee’s

concurrence—a Fourth Amendment claim arises in a

As the dissent noted, the majority’s holding that a warrant does

not necessarily create a new context conflicts with the decisions

of the Fourth, Fifth, and Sixth Circuits, see Arias, 150 F.4th at

56 (Lynch, J., dissenting) (citing Annappareddy v. Pascale, 996

F.3d 120, 135 (4th Cir. 2021); Cantu v. Moody, 933 F.3d 414, 423

(5th Cir. 2019); Cain v. Rinehart, No. 22-1893, 2023 U.S. App.

LEXIS 18993, 2023 WL 6439438, at *3 (6th Cir. July 25, 2023));

and the majority’s holding that a Bivens claim lies for conduct

occurring outside the home conflicts with decisions by the Fifth

and Ninth Circuits. See id. at 57 (citing Byrd v. Lamb, 990 F.3d

879, 882 (5th Cir. 2021); Mejia v. Miller, 61 F.4th 663, 668 (9th

Cir. 2023)).

4

14

new context unless it perfectly mirrors the facts of

Bivens itself. Orellana v. Godec, 145 F.4th 516, 523

(4th Cir. 2025) (“If—and only if—the case is precisely

like Bivens, Passman, or Carlson in all the ways

[listed in the Ziglar examples], we stop at step one and

allow the claim to proceed.”) (emphasis added).

Thus, the Fifth Circuit has held that courts may

only recognize a Fourth Amendment Bivens claim at

step one where law enforcement “manacle [the plaintiff] in front of his family” during a “warrantless

[home search] for narcotics” and then “strip-search

him.” Oliva v. Nivar, 973 F.3d 433, 438 (5th Cir. 2020).

Indeed, the court went so far as to suggest that using

a different physical maneuver than the one deployed

by the agents in Bivens was enough to create a new

context. Ibid. (finding new context, in part, because

the defendants used a “chokehold,” which was not

used by the officers in Bivens).

The Fourth Circuit has likewise found that a claim

arises in a new context, even where the differences do

not alter the legal standard, necessitate any additional fact-finding, or otherwise require a judicial intrusion into the law enforcement operations that was

not present in Bivens itself. For example, in Orellana,

the Fourth Circuit found that an excessive-force claim

arose in a new context because the defendants had an

arrest warrant—even though the plaintiff’s excessiveforce claim neither challenged the warrant nor hinged

on its invalidity. 145 F.4th at 525-26; id. at 527-28

(Gregory, J., dissenting).

15

B. The Circuits Are Split Over Whether

an Alternative Remedy Independently

Creates a New Bivens Context

The circuits are also openly split on whether the existence of alternative remedies can be considered at

step one of the Ziglar analysis for purposes of assessing whether a claim arises in a new Bivens context.

See, e.g., Watanabe v. Derr, 139 F.4th 1056, 1057 (9th

Cir. 2025) (Paez, J., respecting denial of rehearing en

banc) (noting that the “circuits have split on the role

of alternative remedies”); id. at 1064 (Nelson, J., dissenting) (split regarding role of remedies “underscores

the need for Supreme Court review”); Arias, 150 F.4th

at 51 (Lynch, J., concurring in part and dissenting in

part) (majority’s refusal to consider alternative remedies at step one “exacerbates the existing splits among

the circuits”); Muniz v. United States, 149 F.4th 256,

264 n.4 (3d Cir. 2025) (noting “circuit split” on this issue).

1. Two circuits have squarely held—contrary to

Judge Pérez’s concurrence—that the existence of an

alternative remedy does not render a Bivens context

“new” under step one.

Thus, in Arias, the First Circuit rejected the argument that the Inspector General Act Amendments of

1988 (IGA), Pub. L. No. 100-504, 102 Stat. 2515—

which established a mechanism for filing misconduct

complaints against law-enforcement officers with the

Department of Justice’s Office of the Inspector General—was a “special factor” for purposes of step one’s

new-context analysis. 150 F.4th at 40-47. There was

no dispute that the plaintiff could have invoked a

grievance procedure promulgated after the 1988

16

amendments, id. at 31, and that procedure was substantively indistinguishable from the one this Court

deemed adequate in Egbert, 596 U.S. at 498. Compare

28 C.F.R. § 0.29c(c), with 8 C.F.R. § 287.10. The First

Circuit held, nonetheless, that “the mere existence of

a previously unconsidered administrative mechanism

for lodging misconduct complaints” does not make

“the context new.” 150 F.4th at 42. Otherwise, the

court explained, “the Bivens remedy has been a dead

letter since the IGA’s amendment”—a result impossible to reconcile with this Court’s repeated post-1988

reaffirmations that Bivens remains good law. Id. at 30.

The Ninth Circuit has reached a similar conclusion

when assessing whether the remedial schemes contained in the Prison Litigation Reform Act (PLRA),

Pub. L. No. 104-134, 110 Stat. 1321 (1996), and the

Bureau of Prisons’ Administrative Remedy Program

(ARP), 28 C.F.R. §§ 542.10-542.19, give rise to a new

Bivens context at step one. According to the Ninth Circuit, courts should “consider[] alternative remedies

only when deciding whether to extend Bivens to a new

context”—in other words, at the “‘second step of the

Bivens analysis.’” Schwartz, 153 F.4th at 930 (quoting

Watanabe v. Derr, 115 F.4th 1034, 1042 (9th Cir.

2024)) (emphasis in original).

The Ninth Circuit acknowledged that Ziglar requires consideration of “‘the presence of potential special factors that previous Bivens cases did not consider’” when conducting the step-one analysis.

Watanabe, 139 F.4th at 1058 (quoting Ziglar, 582 U.S.

at 140). However, the court concluded that the phrase

“special factors” has a different meaning at the first

and second steps. “Step one,” the court explained, “focuses on the alleged violation, examining the right

17

violated, the mechanism of injury, the identity of the

federal official and the guidance available to that official, and the factual and legal context within which

the alleged violation is interpreted,” whereas step two

“focuses on remedies.” Ibid.; Schwartz, 153 F.4th at

929. Accordingly, “when alternative remedies are unrelated to the official’s conduct, the constitutional

right allegedly violated, or the legal framework governing the challenged action, they bear little significance at step one.” Ibid. 5

2. Three circuits have reached the opposite conclusion and, like Judge Pérez, held that the existence of

an alternative remedy creates a new context.

The Fifth Circuit has held that a Fourth Amendment Bivens claim “present[s] a new context” where

the plaintiff has access to “an alternative remedial

structure provided by Congress.” Hernandez v. Causey,

124 F.4th 325, 334 (5th Cir. 2024) (noting availability

of complaint process under 8 C.F.R. § 287.10).

The Eleventh Circuit reached the same conclusion

in the context of an Eighth Amendment claim brought

by a prisoner. See Johnson v. Terry, 119 F.4th 840

(11th Cir. 2024). The court held that a claim with “significant parallels to Carlson’s” nonetheless arose in a

“new context” because, in Carlson, this Court “did not

Other circuits have followed the same course, even if without

announcing an explicit rule. Thus, in Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024), the Tenth Circuit engaged in a

lengthy analysis of a prisoner’s Carlson claim, but only considered the availability of “alternative remedial schemes” at step

two. Id. at 1242-45. And in Brooks v. Richardson, 131 F.4th 613,

616 (7th Cir. 2025), the Seventh Circuit held that a plaintiff’s

Carlson claim did not present a new context at step one without

any consideration of alternative remedial structures.

5

18

consider whether there were alternative remedies under the current alternative remedy analysis.” Id. at

858.

The Third Circuit adopted the same view in Kalu v.

Spaulding, 113 F.4th 311, 327-28 (3d Cir. 2024) (“Because the PLRA and the BOP’s remedy program are

‘features that were not considered’ by the Supreme

Court when it decided Carlson, they present an additional reason to conclude that Kalu’s claim arises in a

new context.”) (quoting Ziglar, 582 U.S. at 148), and

again in Muniz, 149 F.4th at 264 (“Since the BOP ARP

did not factor into the Supreme Court’s remedial analysis in Carlson, the availability of that mechanism to

Muniz creates a new context at the first step.”); but

see id. at 266 (Restrepo, J., concurring) (noting that

the court was bound by Kalu, but arguing that the “approach taken by the Seventh, Ninth, and Tenth Circuits,” which considered alternative remedies only at

step two, “is a more accurate interpretation of Egbert

than ours in Kalu”).

II.

The Issues are Important and Recurring

Even as this Court has curtailed Bivens remedies,

it has recognized that there are “powerful reasons to

retain” implied damages remedies “in the search-andseizure context in which it arose,” Ziglar, 582 U.S. at

134—particularly in cases, such as this, involving “individual instances of . . . law enforcement overreach,”

which are, by “their very nature . . . difficult to address

except by way of damages actions after the fact.” Id.

at 144.

The need for deterrence is especially pronounced

given the constitutional values at stake. The Framers

understood that “[u]ncontrolled search and seizure is

19

one of the first and most effective weapons in the arsenal of every arbitrary government,” and that

“[among] deprivations of rights, none is so effective in

cowing a population, crushing the spirit of the individual and putting terror in every heart.” Brinegar v.

United States, 338 U.S. 160, 180 (1949) (Jackson, J.,

dissenting). The Framers enacted the Fourth Amendment to ensure that individuals could only be arrested

and detained with probable cause, a standard that

“has roots that are deep in our history.” Henry v.

United States, 361 U.S. 98, 100 (1959).

This Court has been equally emphatic that the government “may not knowingly use false evidence”

where “a defendant’s life or liberty may depend.” Napue v. Illinois, 360 U.S. 264, 269 (1959). Indeed, “if

any concept is fundamental to our American system of

justice, it is that those charged with upholding the law

are prohibited from deliberately fabricating evidence

and framing individuals for crimes they did not commit.” Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir.

2004).

The issues are likewise recurring. There has been a

veritable “flood of inconsistent case law” about what

constitutes a “new context.” Watkins, 144 F.4th at 951

(Kirsch, J., concurring in part and dissenting in part).

In the four years since Egbert, the courts of appeals

have issued at least a dozen opinions addressing

whether the availability of an alternative remedy creates a new context. 6 Courts of appeals have likewise

See, e.g., Schwartz, 153 F.4th 918 (9th Cir. 2025), Arias, 150

F.4th 27 (1st Cir. 2025); Muniz, 149 F.4th 256 (3d Cir. 2025);

Hernandez, 124 F.4th 325 (5th Cir. 2024), Johnson, 119 F.4th

840 (11th Cir. 2024), Kalu, 113 F.4th 311 (3d Cir. 2024), Hurst v.

Derr, No. 23-15523, 2024 U.S. App. LEXIS 20750 (9th Cir. Aug.

6

20

repeatedly addressed whether false-arrest claims differed enough from Bivens itself to create a new context. 7

Court of appeals judges have been pleading for

“greater clarity” from this Court as to how to apply its

Bivens jurisprudence. Watanabe, 139 F.4th at 1077

(Collins, J., dissenting from denial of rehearing en

banc); Arias, 150 F.4th at 51 (Lynch, J., dissenting)

(“The Supreme Court may wish to address these circuit splits, reflecting the need for additional guidance

to lower court judges, who in good faith have reached

different outcomes.”). This Court should provide that

guidance.

III.

The Decision Below Is Wrong

Both of the concurrences’ rationales for affirming

the dismissal of Sigalovskaya’s Bivens claim were incorrect.

16, 2024); Vaughn v. Bassett, No. 22-10962, 2024 U.S. App.

LEXIS 14074, at *9 (5th Cir. June 10, 2024); Wimberly v. Selent,

No. 23-13550, 2024 U.S. App. LEXIS 13557, at *9 (11th Cir. June

5, 2024); Logsdon v. United States Marshal Serv., 91 F.4th 1352

(10th Cir. 2024); Sargeant v. Barfield, 87 F.4th 358, 368 (7th Cir.

2023).

7

See, e.g., Benderoff v. Johansen, No. 25-1315, 2026 U.S. App.

LEXIS 1094 (6th Cir. 2026); Pompy v. First Merchs. Bank, No.

24-1249, 2025 U.S. App. LEXIS 12703 (6th Cir. May 23, 2025);

Evans v. United States, No. 24-40300, 2025 U.S. App. LEXIS

4734, at *7 (5th Cir. Feb. 28, 2025); Hernandez, 124 F.4th 325

(5th Cir. 2024); Buchanan v. Barr, 71 F.4th 1003, 1008 (D.C. Cir.

2023); Sheikh, 106 F.4th 918 (9th Cir. 2024); Xi v. Haugen, 68

F.4th 824 (3d Cir. 2023).

21

A. Sigalovskaya’s False-Arrest Claim is

Not “Meaningfully Different” From

Bivens

Judge Lee’s conclusion that Sigalovskaya’s claim

presents a new context is impossible to square with

this Court’s precedent. This Court has repeatedly instructed that a claim presents a “new context” only

where it differs “‘in a meaningful way from previous

Bivens cases decided by [the] Court.’” Egbert, 596 U.S.

at 510 (emphasis added) (quoting Ziglar, 582 U.S. at

139); accord Hernandez v. Mesa, 589 U.S. 93, 102

(2020). The word “meaningful” is not surplusage. It

means that “[s]ome differences will be so trivial that

they will not suffice to create a new Bivens context.”

Ziglar, 582 U.S. at 149; Snowden, 72 F.4th at 243-44

(“That a difference must be ‘meaningful’ suggests that

some degree of variation will not preclude a Bivens

remedy”).

There are no “meaningful” differences between Sigalovskaya’s false-arrest claim and the false-arrest

claim in Bivens itself. Indeed, the claims are indistinguishable in every relevant respect. Both claims involve misconduct by low-level law enforcement agents

performing routine, domestic criminal investigations.

Compare Ziglar, 582 U.S. at 120 (suit against highranking officers presents new context); Hernandez,

589 U.S. at 103 (suit against Border Patrol agents involved in cross-border shooting presents new context).

Both involve arrests without probable cause from inside the plaintiff’s home, after warrantless entry, in

violation of the Fourth Amendment. App. 26, 28-29.

Both require the factfinder to apply the same well-established body of jurisprudence to answer the same

22

question: whether the officers had probable cause to

make an arrest. See District of Columbia v. Wesby, 583

U.S. 48, 56-57 (2018); Ahmed, 984 F.3d at 574 (Kelly,

J., dissenting) (“The judicial guidance on conducting a

lawful arrest remains clear, and the mandate comes

from the Constitution.”). There is no relevant difference in the “statutory or other legal mandate” under

which Agent Braden was operating. Ziglar, 582 U.S.

at 140. And recognizing Sigalovskaya’s claim requires

no additional “intrusion by the Judiciary into the

functioning” of the executive branch. Ibid. To the contrary, assessing the existence of probable cause is

among the judiciary’s most basic and routinely performed responsibilities. See Gerstein v. Pugh, 420 U.S.

103, 114 (1975).

What differences do exist are trivial. Judge Lee concluded that Sigalovskaya’s claim meaningfully differed from Bivens because she pursued only a falsearrest claim, whereas the plaintiff in Bivens pursued

claims for false arrest, warrantless search, and excessive use of force. But Bivens squarely recognized a

damages remedy for an “arrest . . . made without probable cause,” 403 U.S. at 389, and nothing in that decision conditioned the availability of a remedy for false

arrest on the plaintiff also bringing warrantlesssearch and excessive-force claims. Hicks v. Ferreyra,

64 F.4th 156, 167 n.2 (4th Cir. 2023) (Supreme Court

has never “suggest[ed] that a plaintiff asserting a

cause of action under Bivens must match, in number

and in kind, all the claims raised in that case”). Nor

can that interpretation of Bivens be squared with this

Court’s concern with minimizing “disruptive intrusion[s] by the Judiciary into the functioning of other

branches” or reducing “intrusions resulting from the

23

discovery and trial process,” Ziglar, 582 U.S. at 134,

140—for a simple reason: it is far more intrusive to

ask a court to adjudicate three separate questions (the

lawfulness of entry, arrest, and use of force) than one.

Likewise, the fact that Agent Braden “pretended”

that she was justified in arresting Sigalovskaya cannot possibly count as a “meaningful difference.” App.

29. Nothing in Bivens turned on the officers’ refusal to

articulate their grounds for arresting the plaintiff. In

fact, the decision does not even disclose what explanation, if any, the officers gave the Bivens plaintiff for

placing him under arrest. Nor does an officer’s decision to narrate a false reason for arresting a plaintiff

(as opposed to completing the arrest in silence) change

the applicable legal standard, Wesby, 583 U.S. at 54,

n.2 (noting that “probable cause is an objective standard”), the character of the adjudication, or otherwise

necessitate a greater degree of judicial “intrusion” into

the affairs of law enforcement.

None of the cases cited in Judge Lee’s concurrence

supports the conclusion that an officer’s false explanation for an arrest creates a new Bivens context. Indeed,

every one of them departed far more dramatically

from Bivens than this case. None, for example, involved an arrest during a warrantless home invasion.

See Sheikh v. United States Dep’t of Homeland Sec.,

106 F.4th 918, 921 (9th Cir. 2024) (plaintiff arrested

after agent executed a warrant to search his ranch);

Ahmed, 984 F.3d at 568 (noting that agent “did not

enter a home”); Cantu v. Moody, 933 F.3d 414, 423

(5th Cir. 2019) (plaintiff arrested from car); Annappareddy, 996 F.3d at 126 (plaintiff arrested four days

after officers executed search warrants raiding his

business). Unlike this case, each arrest was supported

24

before the fact by a false affidavit. Sheikh, 106 F.4th

at 921; Ahmed, 984 F.3d at 568-69; Cantu, 933 F.3d at

423; Annappareddy, 996 F.3d at 135.

And—perhaps most importantly—all but one involved arrests that were authorized by prosecutors

and magistrate judges after reviewing a full investigative record—a feature that required courts to undertake an examination of “independent decisions”

made by actors other than the arresting officer.

Sheikh, 106 F.4th at 925 (finding “new context” because claim would require probing into actions of

“prosecutors, the grand jury, and the magistrate

judge”); Annappareddy, 996 F.3d at 126 (same); Ahmed, 984 F.3d at 569 (same). 8 “No comparable inquiry

was in play in Bivens” because that case “involve[ed]

actions only by the arresting officers.” Ahmed, 984

F.3d at 569. But the same is true here.

In short, this matter involves “not an extension of

Bivens so much as a replay of the same principles of

constitutional criminal law prohibiting the unjustified,

warrantless seizure of a person,” without probable

cause, “by line officers performing routine criminal

law enforcement duties.” Hicks, 64 F.4th at 167-68.

Under no principled reading of this Court’s case law

does this constitute a new Bivens context.

Moreover, as two of the panel’s judges recognized,

Judge Lee’s concurrence “would effectively overrule

Bivens without saying so” by parsing it into oblivion.

The one exception is Cantu, where there was an arrest before

charge. However, the Fifth Circuit treated the plaintiff’s claim as

one sounding in malicious prosecution, 933 F.3d at 423 (describing plaintiff’s claim thusly: “Cantu claims Moody and LaBuz induced prosecutors to charge him without any basis, which led to

unjustified detention”).

8

25

App. 29 (Lynch, J., dissenting); id. at 27 (Pérez, J.,

concurring). Under her reasoning, virtually any deviation from Bivens’s fact pattern would constitute a

new context.

What’s more, if lying about probable cause is

enough to create a new Bivens context then the same

is surely true where an officer lies about the very existence of a warrant to enter a home, lies about the

resident’s consent to a search, or lies about the necessity of using force during a home invasion. A Bivens

claim, then, would only exist where officers conducted

a warrantless home invasion, used excessive force,

and made a false arrest—all without bothering to

feign the existence of probable cause or otherwise attempting to justify their actions to others in the law

enforcement universe. It is hard to imagine a federal

officer being so cavalier, and harder still to comprehend why that additional level of brazenness would

inoculate an officer against a damages remedy.

B. The Existence of an Alternative

Remedy Does Not Render a Previously

Recognized Bivens Claim “New”

Judge Pérez’s conclusion—that an alternative remedy “‘independently foreclose[s] a Bivens action’” even

where the claim does not meaningfully differ from

Bivens itself, App. 25 (quoting Egbert, 596 U.S. at

497)—misreads this Court’s Bivens jurisprudence.

This Court has consistently considered the existence of alternative remedies at step two, when deciding whether to extend a Bivens remedy—not at step

one, when deciding whether a claim arises in a new

context. See Goldey, 606 U.S. at 944-45 (describing the

existence of “an alternative remedial structure” as a

26

“special factor counseling against . . . extending Bivens”

(cleaned up) (emphasis added)); Egbert, 596 U.S. at

493 (“If there are alternative remedial structures in

place, ‘that alone,’ . . . is reason enough to ‘limit the

power of the Judiciary to infer a new Bivens cause of

action.’” (quoting Ziglar, 582 U.S. at 137) (emphasis

added)); Malesko, 534 U.S. at 74 (listing the presence

of alternative remedies as one “reason[] that foreclose[s] [Bivens’s] extension here” (emphasis added)).

Indeed, the only time this Court has referenced the

existence of an alternative remedy during step one is

in Ziglar. 582 U.S. at 120. But nothing in that decision

suggests that the existence of a previously unconsidered remedy independently suffices to make an otherwise-recognized Bivens claim “new.” To the contrary,

Ziglar reaffirmed that Carlson remained good law,

even though Congress had subsequently enacted the

PLRA which requires prisoners to exhaust the grievance process set forth in the ARP. Id. at 134, 140, 149;

see also Arias, 150 F.4th at 32-35. Instead, Ziglar

identified meaningful differences unrelated to the

ARP’s remedial regime—in particular, the fact that

the Ziglar plaintiffs alleged that the warden’s supervisory failures resulted in continuing Fifth Amendment violations, whereas the Carlson plaintiffs alleged acute harm resulting from the failure to provide

adequate medical care in violation of the Eighth

Amendment. 582 U.S. at 148. The Court then observed that the Ziglar plaintiffs had a separate set of

remedial options to address these ongoing harms, including “a writ of habeas corpus; an injunction requiring the warden to bring his prison into compliance

with the regulations discussed above; or some other

form of equitable relief.” Id. at 148 (internal citations

27

omitted). Ziglar thus stands for the narrow proposition that alternative remedies may be considered at

step one where differences in the nature of the injury

give rise to a different set of remedies that were unavailable to the plaintiffs in Bivens, Carlson, and Davis.

Moreover, if a remedial scheme could eliminate a

previously recognized Bivens remedy, nothing would

remain of the doctrine. As Judge Lynch observed in

dissent, “all law enforcement agencies have internal

disciplinary procedures for investigating and punishing rogue agents.” App. 30 (emphasis in original).

Even the DEA—the successor agency to the Bureau of

Narcotics—has a grievance procedure that allows

members of the public to lodge complaints which, in

turn, must be reported to the Office of the Inspector

General (“OIG”) or the Office of Professional Responsibility. See 28 C.F.R. § 0.29c(c); U.S. Dep’t of Justice

Office of the Inspector General, Submitting a Complaint,

https://oig.justice.gov/hotline/submit_complaint (noting that OIG accepts complaints of misconduct directed at officers of, inter alia, the FBI, DEA,

Bureau of Prisons, U.S. Marshals Service, and Bureau

of Alcohol, Tobacco, Firearms, and Explosives).

In other words, according to the logic of Judge Pérez’s concurrence, if officers of the DEA were to reenact the exact sequence of events in Bivens itself, that

claim would be classified as “new” at step one and

foreclosed at step two. See Byrd, 990 F.3d at 883 (Willett, J., specially concurring) (observing that no claim

survives once it reaches step two). That result is directly contrary to this Court’s pronouncement in

Ziglar that Bivens is still good law—and, indeed,

“necess[ary]”—“in the search-and-seizure context in

which it arose.” 582 U.S. at 134.

28

IV.

This Case Presents an Ideal Vehicle

This case is an ideal vehicle for resolving the questions presented, which were outcome-determinative

below. The district court granted Agent Braden’s motion for judgment on the pleadings. No factual development is required. The arguments were preserved

and passed upon. The Second Circuit affirmed the dismissal because Sigalovskaya’s claim either presented

a new context or was barred by an existing alternative

remedy. These conclusions, and the legal objections

thereto, are thoroughly fleshed out in two concurring

opinions and a dissent. Further percolation is unnecessary. There are clean splits across the circuits as to

both questions. This Court should intervene now and

restore uniformity to this area of law.

29

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Joseph Pace

Counsel of Record

J. PACE LAW, PLLC

30 Wall St., 8th Fl.

New York, NY 10005

(917) 336-3948

jpace@jpacelaw.com

May 1, 2026

Attorney for Petitioner