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

___________________________________________

APPENDIX

___________________________________________

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

App-i

APPENDIX

TABLE OF CONTENTS

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

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

App-ii

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

App-1

Appendix A

[Filed: Aug. 27, 2025]

In the

United States Court of Appeals

for the Second Circuit

___________________________

August Term, 2024

(Argued December 3, 2024; Decided August 27, 2025)

No. 23-7625-cv

___________________________

KARINA SIGALOVSKAYA,

Plaintiff-Appellant,

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,

Defendants-Appellees. ∗

___________________________

Before:

LYNCH, LEE, and PÉREZ, Circuit Judges.

Plaintiff-Appellant Karina Sigalovskaya brought

claims of false arrest, malicious prosecution, abuse of

process, and the denial of a fair trial against Abigail

Braden, Luann Walter, Megan Buckley, and Robert

Mancene (collectively, “Defendants”), four special

The Clerk of the Court is respectfully directed to amend the case

caption as set forth above.

∗

App-2

agents of the Homeland Security Investigations

(“HSI”) unit within the Department of Homeland Security (“DHS”). These claims arose from a 2013 incident in which the HSI special agents allegedly unlawfully entered and searched Sigalovskaya’s home, separated her from her children, and fabricated evidence

by falsely accusing her of making a confession that ultimately resulted in Sigalovskaya’s arrest and subsequent pretrial detention. Following summary judgment, three claims and two defendants remained:

false arrest and malicious prosecution claims against

Braden and a failure-to-intervene claim against Mancene. Before trial was set to commence, Defendants

moved for judgment on the pleadings, contending that

the Supreme Court’s then-recent decision in Egbert v.

Boule, 596 U.S. 482 (2022), foreclosed Sigalovskaya’s

remaining claims. The district court granted the motion, concluding that following Egbert, Sigalovskaya

has no cause of action under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971). See Sigalovskaya v. Braden, No. 15-CV34 (LDH), 2023 WL 6385761, at *4–7 (E.D.N.Y. Sept.

29, 2023). On appeal, Sigalovskaya challenges the

district court’s dismissal of her false arrest and malicious prosecution claims. The judgment of the district court is affirmed.

Judge Lee concurs in the judgment in a separate

opinion.

Judge Pérez concurs in the judgment in a separate

opinion.

Judge Lynch dissents in part in a separate opinion.

App-3

___________________________

JON L. NORINSBERG, Jon L. Norinsberg, Esq., PLLC, New York, NY, for

Plaintiff-Appellant.

DARA A. OLDS (Varuni Nelson, on the

brief), Assistant United States Attorneys, for Breon Peace, United States

Attorney for the Eastern District of

New York, Brooklyn, NY, for Defendants-Appellees.

___________________________

App-4

PER CURIAM:

Plaintiff-Appellant Karina Sigalovskaya brought

claims of false arrest, malicious prosecution, abuse of

process, and the denial of a fair trial against Abigail

Braden, Luann Walter, Megan Buckley, and Robert

Mancene (collectively, “Defendants”), four special

agents of the Homeland Security Investigations

(“HSI”) unit within the Department of Homeland Security (“DHS”). These claims arose from a 2013 incident in which the HSI special agents allegedly unlawfully entered and searched Sigalovskaya’s home, separated her from her children, and fabricated evidence

by falsely accusing her of making a confession that ultimately resulted in Sigalovskaya’s arrest and subsequent pretrial detention. Following summary judgment, three claims and two defendants remained:

false arrest and malicious prosecution claims against

Braden and a failure-to-intervene claim against Mancene. Before trial was set to commence, Defendants

moved for judgment on the pleadings, contending that

the Supreme Court’s then-recent decision in Egbert v.

Boule, 596 U.S. 482 (2022), foreclosed Sigalovskaya’s

remaining claims. The district court granted the motion, concluding that following Egbert, Sigalovskaya

has no cause of action under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971). See Sigalovskaya v. Braden, No. 15-CV34 (LDH), 2023 WL 6385761, at *4–7 (E.D.N.Y. Sept.

29, 2023). On appeal, Sigalovskaya challenges the

district court’s dismissal of her false arrest and malicious prosecution claims. The judgment of the district court is affirmed.

App-5

EUNICE C. LEE, Circuit Judge, concurring:

Appellant Karina Sigalovskaya alleges that during

a warrantless entry and search of her home, a federal

law enforcement officer falsely claimed that she confessed to taking pornographic images of her own child.

According to Sigalovskaya, this falsified evidence resulted in her arrest on felony criminal charges, temporary loss of guardianship of her two children, and

placement on the New York sex offender registry.

Although Sigalovskaya’s allegations are certainly

grievous, I find that, in keeping with the Supreme

Court’s jurisprudence on damages claims against federal officers, the district court properly concluded that

Sigalovskaya does not have a cause of action under

Bivens because (1) her claims are rooted in the alleged

fabrication of evidence, which is a context meaningfully different from that of Bivens, and (2) there are

special factors that weigh against extending Bivens

here.

BACKGROUND 1

On February 11, 2013, HSI Special Agents Braden,

Walter, Buckley, and Mancene, then employed within

the HSI’s Child Exploitation Group, arrived at Sigalovskaya’s Brooklyn apartment, seeking to arrest

Evidal Ifraimov, Sigalovskaya’s common-law husband.

HSI had been investigating Ifraimov for approximately eight months on allegations of possession of

child pornography.

The factual allegations in Sigalovskaya’s operative amended

complaint are accepted as true for the purposes of these proceedings.

1

App-6

Upon their arrival, the special agents “pound[ed]”

on the door and yelled “police.” Am. Compl. ¶¶ 9–10,

Sigalovskaya v. Braden, No. 15-CV-34 (LDH)

(E.D.N.Y. Feb. 12, 2016), Dkt. No. 16. After Sigalovskaya immediately answered the door, Special

Agents Walter, Buckley, and Mancene forced their

way into the apartment without obtaining Sigalovskaya’s consent to enter. Once inside the apartment, Special Agents Walter, Buckley, and Mancene

separated Sigalovskaya from her two children and,

again without her consent, searched the apartment after Sigalovskaya informed them that her husband

was not home.

While the search was ongoing, Ifraimov called Sigalovskaya. The agents demanded that she answer

the call on speakerphone and speak to him in English.

After speaking to Ifraimov, Sigalovskaya received a

call from his attorney, who instructed her to tell the

police, “Leave my house now, you are trespassing,”

which Sigalovskaya did. Id. ¶¶ 28–29 (emphasis

omitted). Despite this directive, the special agents

remained in Sigalovskaya’s home, conferring amongst

themselves for about ten minutes before Special

Agent Braden returned to the room where Sigalovskaya was being held and demanded that she

write a statement.

Sigalovskaya alleges that Special Agents Walter,

Buckley, and Mancene began to “lob[]” accusations

that she had helped a “grown man”—Ifraimov—

“touch a girl inappropriately.” Id. ¶ 33. Further,

Special Agent Braden claimed that she had proof of

Ifraimov’s unlawful activities and proceeded to show

Sigalovskaya two redacted non-pornographic photographs

depicting

Sigalovskaya’s

five-year-old

App-7

daughter from the waist up, clothed in a long-sleeve

shirt. When asked if she recognized the girl in the

photos and where the photos were taken, Sigalovskaya responded that the girl was her daughter

and that it appeared the photos had been taken in one

of the rooms of her home. However, Sigalovskaya denied taking the photographs. Notwithstanding this

denial, Special Agent Braden “falsely” claimed that

Sigalovskaya had confessed to taking the purportedly

pornographic photographs and stated that her elevenyear-old son also participated in taking such pictures.

Id. ¶¶ 47–48. The special agents “then forwarded

these false and misleading statements” to the U.S. Attorney’s Office for the Eastern District of New York.

Id. ¶ 52.

“As a result of defendants’ false ‘evidence,’” Sigalovskaya was arrested and charged with a violation

of 18 U.S.C. § 2251(a), sexual exploitation of children,

and 18 U.S.C. § 2252(a)(4)(B), certain activities relating to material involving the sexual exploitation of minors. Id. ¶ 55. Sigalovskaya was denied bail at her

arraignment and consequently held at the Metropolitan Detention Center for approximately three weeks,

where she was subjected to invasive strip searches,

propositioned by other inmates, and exposed to inmates with communicable diseases.

Then, on March 5, 2013, all charges against Sigalovskaya were dropped following a motion to dismiss

filed by the U.S. Attorney’s Office. Despite the dismissal, the New York State Administration for Children Services (“ACS”) filed a petition to permanently

revoke Sigalovskaya’s guardianship over her two children, which resulted in Sigalovskaya being unable to

see or speak to her children for three months. After

App-8

multiple court appearances and legal fees, Sigalovskaya regained full custody of her children, but

was required to have ACS visit her apartment twice

per month for a period of time. Additionally, Sigalovskaya was placed on the New York State Sex Offender Registry.

On January 6, 2015, Sigalovskaya initiated the underlying civil action and filed her amended, operative

complaint on February 12, 2016. Following the close

of discovery, Defendants moved for summary judgment. On March 15, 2019, the district court granted

the motion for summary judgment in part, dismissing

Sigalovskaya’s fair trial claim as duplicative of the

malicious prosecution claim, dismissing the abuse of

process claim as an unrecognized cause of action under Bivens, and dismissing the false arrest and malicious prosecution claims against Special Agents Walter and Buckley, as well as the malicious prosecution

claim against Special Agent Mancene, based on a finding that the special agents lacked the kind of personal

involvement necessary to sustain these claims against

them. However, the district court denied the motion

for summary judgment with respect to Sigalovskaya’s

false arrest and malicious prosecution claims against

Special Agent Braden, finding that there remained a

genuine dispute of material fact as to whether Special

Agent Braden had probable cause to arrest Sigalovskaya. The district court also denied the motion

for summary judgment as to Sigalovskaya’s false arrest claim against Special Agent Mancene, determining that the claim could proceed under a failure-to-intervene theory. The district court further concluded

that neither Mancene nor Braden were entitled to

qualified immunity on summary judgment.

App-9

Following the district court’s decision, the only remaining claims were the false arrest and malicious

prosecution claims against Special Agent Braden and

the failure-to-intervene claim against Special Agent

Mancene. Although the trial was set for October 7,

2019, due to scheduling conflicts and the COVID-19

pandemic, it was rescheduled for October 11, 2022.

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

begin, the Supreme Court rendered its decision in Egbert v. Boule, which held that a plaintiff could not assert a Fourth Amendment excessive force claim and a

First Amendment retaliation claim against a U.S.

Border Patrol agent under Bivens. 596 U.S. at 494,

497. Thereafter, on September 15, 2022, Defendants

filed a motion for judgment on the pleadings pursuant

to Federal Rule of Civil Procedure 12(c), contending

that, following Egbert, Sigalovskaya’s false arrest,

malicious prosecution, and failure-to-intervene claims

presented new contexts under Bivens and that special

factors militated against extending a Bivens remedy

for those claims. 2

On September 29, 2023, after supplemental briefing

on the matter, the district court granted the motion

for judgment on the pleadings, dismissing Sigalovskaya’s remaining claims. Applying the twostep analysis for evaluating Bivens claims developed

in Ziglar v. Abbasi, 582 U.S. 120 (2017), and refined

in Egbert, the district court concluded that: (1) Sigalovskaya’s malicious prosecution and failure-toOn August 26, 2022, Defendants filed a letter, giving Sigalovskaya and the district court notice of their intent to file the

motion for judgment on the pleadings. On September 15, 2022,

Defendants’ motion, along with Sigalovskaya’s opposition, was

formally filed with the district court.

2

App-10

intervene claims arose as new Bivens contexts, since

Bivens did not involve such claims; (2) although the

false arrest claim “ha[d] parallels to Bivens,” because

the federal agency here differed from the federal

agency in Bivens, and the fabrication of evidence was

the primary “focus of [Sigalovskaya’s] complaint,” the

false arrest claim was also a new Bivens context; and

(3) special factors, including the existence of alternative remedies for relief, foreclosed any Bivens remedy

for Sigalovskaya’s claims. Sigalovskaya, 2023 WL

6385761 at *4–6. This appeal followed.

DISCUSSION

We review a district court’s dismissal of a complaint

pursuant to a Rule 12(c) motion for judgment on the

pleadings de novo, “accepting all factual allegations in

the [c]omplaint as true and drawing all reasonable inferences in the nonmoving party’s favor.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 78 (2d

Cir. 2015) (alterations adopted) (internal quotation

marks omitted). Sigalovskaya contends that her

Fourth Amendment, false arrest, and malicious prosecution claims should be allowed to proceed to trial as

viable Bivens claims.

A. The Bivens Framework

In 1971, the Supreme Court rendered its decision in

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, recognizing for the first time an implied damages action “to compensate persons injured

by federal officers who violated the [Fourth Amendment’s] prohibition against unreasonable search and

seizures.” Abbasi, 582 U.S. at 131 (citing Bivens, 403

U.S. at 397). In the years that followed, the Supreme

App-11

Court recognized an implied cause of action for constitutional violations in two other contexts. In Davis v.

Passman, 442 U.S. 228, 248–49 (1979), the Court held

that under the Due Process Clause of the Fifth

Amendment, an administrative assistant had the

right to sue a congressman for firing her based on gender discrimination. A year later, in Carlson v. Green,

446 U.S. 14, 17–19 (1980), the Court recognized the

right of prisoners to bring a cruel and unusual punishment claim under the Eighth Amendment against

federal prison officials for failing to provide adequate

medical treatment.

“These three cases—Bivens, Davis, and Carlson—

represent the only instances in which the Court has

approved of an implied damages remedy under the

Constitution itself.” Abbasi, 582 U.S. at 131. In the

more than four decades since the Supreme Court last

endorsed the creation of an implied cause of action

arising from constitutional violations, it has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 62, 68 (2001); see also Egbert, 596 U.S at 486 (citing eleven cases in which the

Court declined to create an implied damages remedy

under Bivens). This is because, as the Supreme

Court made clear in Egbert, “creating a cause of action

is a legislative endeavor . . . [a]nd the Judiciary’s authority to do so at all is, at best, uncertain.” 596 U.S.

at 491.

Though “recognizing a cause of action under Bivens

is ‘a disfavored judicial activity,’” the Supreme Court

has not “dispense[d] with Bivens altogether.” Id.

(quoting Abbasi, 582 U.S. at 135). To that end, in analyzing a proposed claim under Bivens, courts

App-12

generally apply the two-step framework articulated in

Abbasi. See Abbasi, 582 U.S. at 139. Under Abbasi’s two-step framework, a court first considers

“whether the case presents ‘a new Bivens context’—

i.e., is it ‘meaningfully’ different from the three cases

in which the [Supreme] Court has implied a damages

action.” Egbert, 596 U.S. at 492 (alteration adopted)

(quoting Abbasi, 582 U.S. at 139). “[I]f a claim arises

in a new context,” the court then considers 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.’” Id. (quoting Abbasi, 582 U.S. at

136). “[T]h[e]se steps often”—but not necessarily always—“resolve to a single question: whether there is

any reason to think that Congress might be better

equipped to create a damages remedy.” Id.

B. New Context Analysis

The Supreme Court’s “understanding of a new

[Bivens] context is broad.” Hernandez v. Mesa, 589

U.S. 93, 102 (2020) (internal quotation marks omitted). Though not exhaustive, factors that give rise to

a new Bivens context include

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

App-13

presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 582 U.S. at 140.

On appeal, Sigalovskaya concedes that her malicious prosecution claim arises under a new Bivens

context but contends that the false arrest claim falls

squarely within a Fourth Amendment claim under

Bivens. In finding otherwise, the district court concluded that following Egbert, the involvement of a federal agency that differed from the federal agency in

Bivens was sufficient to create a new context. See

Sigalovskaya, 2023 WL 6385761, at *5. Accordingly,

the district court determined that because this case

involves HSI special agents rather than agents of the

former Federal Bureau of Narcotics, the case at bar

“involves a new category of defendants,” and thus the

false arrest claim presented a new Bivens context. Id.

Sigalovskaya asserts that the district court’s determination is erroneous because (1) Egbert pronounced no

such “new rule” that the difference in agency is now

sufficient to find a new context; and (2) if taken to its

logical conclusion, the district court’s ruling would

“preclude Fourth Amendment search-and-seizure

claims under Bivens altogether” since federal agents

no longer work for the defunct Federal Bureau of Narcotics. Appellant’s Br. at 24–26.

Sigalovskaya raises sound and persuasive arguments for why the district court incorrectly concluded

that after Egbert, the difference in agency alone suffices to find that the false arrest claim presents a new

Bivens context. First, as Sigalovskaya notes, in Egbert, the Supreme Court did not devote any substantive discussion to the new context inquiry. Rather,

App-14

the Court simply noted that the Ninth Circuit accepted, without discussion, that the “Fourth Amendment claim [alleging excessive force] presented a new

context for Bivens purposes,” and then engaged in an

in-depth analysis of the special factors inquiry. Egbert, 596 U.S. at 494. Defendants nevertheless argue

that Egbert does inform the new context analysis of

Sigalovskaya’s claims because we have, on at least

two occasions following Egbert, affirmed district court

decisions finding that claims raised against “a new

category of defendants” presented a new Bivens context, see Lewis v. Bartosh, No. 22-3060-pr, 2023 WL

8613873, at *2 (2d Cir. Dec. 13, 2023) (summary order)

(internal quotation marks omitted); Cohen v. Trump,

No. 23-35, 2024 WL 20558, at *2 (2d Cir. Jan. 2, 2024)

(summary order) (internal quotation marks omitted).

However, not only are Lewis and Cohen non-precedential decisions, but unlike the special agents involved here, the category of defendants in each of

those cases is notably distinguishable from the type of

law enforcement officers in Bivens. As noted earlier,

the Supreme Court has instructed that in determining

whether a case presents a new Bivens context, courts

are to consider, among others factors, “the rank of the

officers involved” and the “statutory or other legal

mandate” under which they operate. Abbasi, 582

U.S. at 140. It is therefore unsurprising that in

Lewis and Cohen, respectively, we summarily affirmed the dismissal of claims against high-ranking

officials of the Executive Branch, including a former

U.S. President, and Deputy Marshals charged under

law with overseeing the protection of the Judicial

Branch, where these categories of defendants differ

from that of the line-level, criminal law enforcement

App-15

officers involved in both Bivens and the instant action.

See Lewis, 2023 WL 8613873, at *1; Cohen, 2024 WL

20558, at *1.

Moreover, as Sigalovskaya convincingly argues, the

dismissal of a Fourth Amendment Bivens claim based

solely on the difference in federal agency would, if

taken to its logical conclusion, preclude a damages

remedy for any Bivens search-and-seizure claim since

the Federal Bureau of Narcotics—the agency at issue

in Bivens—no longer exists. Such a conclusion would

be contrary to the Supreme Court’s jurisprudence, as

the Court has not “dispense[d] with Bivens.” Egbert,

596 U.S. at 491; see also Hicks v. Ferreyra, 64 F.4th

156, 166 (4th Cir. 2023) (The “severe narrowing of the

Bivens remedy in other contexts does not undermine

the vitality of Bivens in the warrantless-search-andseizure context of routine criminal law enforcement.”).

While I find the federal agency distinction unpersuasive, the district court did not rely on this argument as the sole basis for its conclusion that Sigalovskaya’s false arrest claim arises under a new

Bivens context. The district court also concluded

that the false arrest claim presented a new Bivens

context because “the focus of [Sigalovskaya’s] complaint is the fabrication of evidence that led to her arrest and prolonged detention.” Sigalovskaya, 2023

WL 6385761, at *5. This “type of misconduct,” the

district court reasoned, was “new” and meaningfully

different from the misconduct at issue in Bivens—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. Id. (quoting Bivens, 403 U.S. at 389).

App-16

I conclude that on this point, the district court did not

err.

Sigalovskaya argues that the district court “placed

undue emphasis on [her] false confession claim,” without recognizing the extensive search-and-seizure allegations raised in the complaint that are inextricably

intertwined with the false confession allegations.

Appellant’s Br. at 28, 30–31. Specifically, she contends that the allegations in her complaint fall

squarely within Bivens because in it, she alleged,

among other things, that:

i) Defendants proceeded to force their way

past [Sigalovskaya] into her apartment,

without obtaining her consent to enter the

premises; ii) Defendants did not have an arrest warrant for [her]; iii) Defendants had not

attempted to obtain an arrest warrant for

[her] prior to entering her apartment; iv) [a]t

the time when Defendant Special Agents entered the apartment on February 11, 2013,

Defendants knew that they had no evidence

against Plaintiff; v) [w]hen [Sigalovskaya] informed defendant Special Agents that her

common-law husband, Evidal Ifraimov, was

not home, Defendants began to unlawfully

search her apartment; and vi) [o]n the advice

of counsel, [Sigalovskaya] instructed Defendants to “leave my house now, you are trespassing,” but Defendants refused to do so.

Id. at 28 (internal quotation marks and emphases

omitted). Sigalovskaya asserts that these allegations are “on all four with Bivens” given that “[b]oth

cases involve a warrantless entry . . . a warrantless

App-17

search inside of Plaintiff’s apartment . . . [and] a warrantless arrest inside of Plaintiff’s residence.” Id. at

29.

Though Sigalovskaya’s complaint contains allegations of an unlawful search and seizure, I am unconvinced that these allegations suffice to find that the

claim at issue—the false arrest claim—does not present a new Bivens context. First, it is important to

note that at this stage of the proceedings, Sigalovskaya’s false arrest claim remains viable only

against Special Agent Braden. Sigalovskaya has not

challenged the district court’s grant of partial summary judgment in favor of Defendants, which dismissed the claims against Special Agents Buckley and

Walter, and thus, any arguments that Sigalovskaya

may have had regarding that decision are abandoned.

See Chunn v. Amtrak, 916 F.3d 204, 206 n.1 (2d Cir.

2019). Moreover, Sigalovskaya has also expressly

stated that she “appeals the District Court’s dismissal

of her false arrest and malicious prosecution claims,

but not her failure to intervene claim.” Appellant’s

Br. at 16 n.2. Thus, the question is whether, as asserted against Special Agent Braden, Sigalovskaya’s

false arrest claim is in line with Bivens. In reviewing

the amended complaint at face value, I find that the

answer to this question is no.

Importantly, the allegations in the complaint that

could give rise to an unlawful search and seizure claim

are levied against the other special agents, but not

Special Agent Braden. In one paragraph, the complaint states that “Special Agent Luann Walter, Special Agent Megan Buckley, and Special Agent Robert

Mancene,” but not Special Agent Braden, “proceeded

to force their way past [Sigalovskaya] into her

App-18

apartment, without obtaining her consent to enter the

premises.” Am. Compl. ¶ 12. In a subsequent paragraph, the complaint alleges that “Special Agent Luann Walter, Special Agent Megan Buckley, and Special Agent Robert Mancene,” but not Special Agent

Braden, “immediately separated [Sigalovskaya] from

her two children.” Id. ¶ 13. Thereafter, the complaint states that it was “Special Agent Luann Walter,

Special Agent Megan Buckley, and Special Agent Robert Mancene,” but not Special Agent Braden, who “began frantically searching the apartment.” Id. ¶ 14.

Consequently, Sigalovskaya’s complaint charges the

other special agents—not the one with whom her false

arrest claim remains potentially viable—with unlawfully entering and searching her home, and separating her from her children.

Moreover, Sigalovskaya’s complaint makes it clear

that what precipitated her arrest, and what is at the

crux of her false arrest claim, is the allegation that

Special Agent Braden falsely claimed that Sigalovskaya had confessed to taking the purportedly

pornographic pictures of her daughter, and then forwarded the fabricated evidence to the U.S. Attorney’s

Office. See Am. Compl. ¶¶ 46–49, 52. Indeed, the

complaint expressly states that it was the “false evidence” that resulted in Sigalovskaya’s arrest. Id. ¶

55 (internal quotation marks omitted). Thus, though

Sigalovskaya alleges that she had been arrested and

detained without probable cause, id. ¶ 94, unlike the

plaintiff in Bivens, her false arrest claim centers on

the allegation of fabricated evidence, rather than a

warrantless search or seizure offending “primarily

rights of privacy.” Bivens, 403 U.S. at 390; see also

id. at 408 (Harlan, J., concurring) (“The personal

App-19

interests protected by the Fourth Amendment are

those we attempt to capture by the notion of ‘privacy.’”). 3

In recent years, our sister circuits have found that

claims involving the fabrication of evidence present a

new Bivens context. See, e.g., Sheikh v. U.S. Dep’t of

Homeland Sec., 106 F.4th 918, 925 (9th Cir. 2024)

(finding that a Fourth Amendment claim against HSI

agents based on an allegation of fabricated evidence

that led to the plaintiff’s indictment presented a new

context under Bivens); Ahmed v. Weyker, 984 F.3d 564,

568–70 (8th Cir. 2020) (finding that a false arrest

claim based on a police officer’s allegedly false information that led to the plaintiff’s warrantless arrest

constituted a new context); Cantú v. Moody, 933 F.3d

414, 423 (5th Cir. 2019) (concluding that an unlawful

seizure claim under the Fourth Amendment presented a new context when the claim was based on officers falsifying affidavits rather than an allegation

that the officers “entered his home without a warrant

or violated his rights of privacy”); see also Annappareddy v. Pascale, 996 F.3d 120, 136 (4th Cir. 2021)

(finding that a plaintiff’s Fourth Amendment false arrest claim against federal investigators presented a

new context, in part, because the “alleged misdeeds”

were different than those at issue in Bivens, seeing as

“sharing information with prosecutors and other investigators” is “a different part of police work than the

apprehension, detention, and physical searches at

Notably, Sigalovskaya does not meaningfully dispute the district court’s finding that although “the amended complaint contains allegations concerning the Defendants search of her

home, . . . [Sigalovskaya] does not bring a cause of action based

upon those facts.” Sigalovskaya, 2023 WL 6385761, at *5 n.4.

3

App-20

issue in Bivens” (quoting Farah v. Weyker, 926 F.3d

492, 498–99 (8th Cir. 2019))).

As in these other cases, and as explained above, Sigalovskaya’s false arrest claim is rooted in her allegation that Special Agent Braden falsified evidence that

resulted in her arrest and prolonged detention, not in

any of the allegations surrounding an unlawful search

and seizure in her home. Accordingly, while Sigalovskaya’s case draws parallels to Bivens, in the decades since last endorsing the creation of an implied

damages remedy for constitutional violations, the Supreme Court has made clear that “a modest extension

[of Bivens] is still an extension,” Abbasi, 582 U.S. at

147, “even if [the claim] is based on the same constitutional provision,” Hernandez, 589 U.S. at 103. For

these reasons, I find that Sigalovskaya’s false arrest

claim presents a new Bivens context.

C. Special Factors Analysis

Sigalovskaya argues that even if her false arrest

claim presents a new context, there are no special factors counseling against extending Bivens to either this

claim or the malicious prosecution claim. As to this

issue, Sigalovskaya raises three main arguments,

none of which I find persuasive.

First, Sigalovskaya argues that Egbert and the Supreme Court’s more recent Bivens cases—Hernandez

and Abbasi—“together . . . stand for the proposition

that a Bivens claim will not lie where ‘national security is at issue.’” Appellant’s Br. at 34 (quoting Egbert, 596 U.S. at 494). Thus, according to Sigalovskaya, because there are no national security concerns at issue in this case, the special factors identified by the Supreme Court through its recent

App-21

jurisprudence are inapplicable here. While it is true

that Egbert, Hernandez, and Abbasi arose within the

context of national security matters, those cases do

not stand for the proposition that the special factors

inquiry merely considers whether national security

concerns are at issue. Rather, the critical question,

as analyzed below, is and has always been “whether

there is any rational reason (even one) to think that

Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 496 (quoting Abbasi, 582 U.S. at 136).

But even if Sigalovskaya were correct that the Supreme Court’s more recent Bivens cases were primarily focused on national security, it is possible, if not

probable, that national security concerns could be implicated by extending a Bivens remedy to Sigalovskaya’s claims against an HSI special agent. As

the district court noted, HSI, as the principal investigative body of DHS, operates both nationally and internationally. See Sigalovskaya, 2023 WL 6385761,

at *6. Sigalovskaya does not dispute this fact but rather attempts to shift the focus to the fact that the

agents here were “domestic law enforcement agents”

investigating traditional criminal law. Appellant’s

Br. at 19–20, 35. However, Egbert instructs us that

“the special factors analysis” cannot be applied “at

such a narrow level of generality” that a court only

looks to the claims as asserted against the specific federal agent(s) involved in the case. 596 U.S. at 496

(alteration adopted) (internal quotation marks omitted). Accordingly, the fact that Sigalovskaya has

brought claims against a special agent investigating

traditional criminal law domestically says little, if anything at all, about the potential implications of

App-22

extending a Bivens remedy to false arrest and malicious prosecution claims against HSI special agents

more generally.

Second, Sigalovskaya argues that the district court

erred in finding that 8 C.F.R. § 287.10 provided an alternative remedy to her Bivens claims because that

regulation applies to immigration officers, not HSI

agents. Despite Sigalovskaya’s arguments to the

contrary, following Egbert, the grievance procedure

under § 287.10 provides an alternative remedy that

does foreclose Sigalovskaya’s claims.

Section 287.10 provides, in pertinent part, that

“[a]ny persons wishing to lodge a complaint pertaining to violations of enforcement standards contained

in § 287.8 may contact the Department of Homeland Security, Office of the Inspector General” and

that such alleged violations “shall be investigated expeditiously.”

8 C.F.R. § 287.10(a)–(b).

Sigalovskaya contends that this regulation only applies

to immigration officers because § 287.8, which is incorporated by reference, states that the “standards for

enforcement activities contained in this section must

be adhered to by every immigration officer involved in

enforcement activities,” id. § 287.8. But under

that regulation, immigration officers encompass special agents. See id. § 287.8(a)(1)(iv) (providing that

special agents who have completed basic immigration

law enforcement training are considered immigration

officers that have the authority to use non-deadly

force when appropriate). Also, Sigalovskaya’s own

complaint acknowledges that HSI is a part of U.S. Immigration and Customs Enforcement (“ICE”). Am.

Compl. ¶ 7. Accordingly, it is not unreasonable—as

Sigalovskaya suggests—for § 287.10 to apply to HSI

App-23

special agents, even though it is listed under the subchapter of DHS’s regulations governing “Immigration

Regulations.”

Lastly, Sigalovskaya argues that there is no reason

to question whether the judiciary is less equipped to

weigh the costs and benefits of allowing her false arrest and malicious prosecutions claims to proceed to

trial given that federal courts, particularly those

within this Circuit, are uniquely qualified to adjudicate constitutional claims against law enforcement officials based on allegations of fabricated evidence. A

similar argument was rejected by the Supreme Court

in Egbert. There, the Court held that the Ninth Circuit erred in extending Bivens to the plaintiff’s First

Amendment claim on the basis that “retaliation

claims are ‘well-established,’” explaining that “just because plaintiffs often plead unlawful retaliation to establish a First Amendment violation is not a reason to

afford them a cause of action to sue federal officers for

money damages.” Egbert, 596 U.S. at 499–500. Thus,

following Egbert, Sigalovskaya’s argument regarding

“this Circuit’s jurisprudence on fabricated evidence

claims,” Appellant’s Br. at 42, is not a basis to provide

a Bivens remedy for her claims. For these reasons, I

find that there are special factors counseling against

extending Bivens to Sigalovskaya’s false arrest and

malicious prosecution claims.

*

*

*

Had Sigalovskaya’s claims been asserted against

state officers, she would have an explicit damages

remedy afforded by 42 U.S.C. § 1983. But in the

more than fifty years since the Supreme Court decided

Bivens, “Congress [has] not provide[d] a specific

App-24

damages remedy for plaintiffs whose constitutional

rights were violated by agents of the Federal Government.” Abbasi, 582 U.S. at 130. Against this backdrop, the Supreme Court has made clear that expanding the Bivens remedy is a “disfavored judicial activity,” id. at 135 (internal quotation marks omitted),

and that courts should be wary of doing so when

“there is any rational reason (even one) to think that

Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed,” Egbert,

596 U.S. at 496 (internal quotation marks omitted).

Remaining faithful to the Supreme Court’s firm guidance, I conclude that, for the reasons stated above,

Sigalovskaya has no cause of action in this case and

her amended complaint was properly dismissed.

App-25

MYRNA PÉREZ, Circuit Judge, concurring:

We may dispose of this case for the identical reason

that the Supreme Court set forth in Egbert v. Boule,

596 U.S. 482 (2022). Sigalovskaya, like the plaintiff

in Egbert, may avail herself of a particular remedial

structure set forth within the Department of Homeland Security’s (“DHS’s”) regulations. I therefore concur in affirming the grant of judgment on the pleadings to the defendants in this case. Sigalovskaya’s

false-arrest claim otherwise likely presents no new

Bivens context, but we need not consider that question

today.

Sigalovskaya’s claims may not proceed here because the Supreme Court has instructed that where

“Congress has provided alternative remedies for aggrieved parties,” that alternative remedial structure

“independently foreclose[s] a Bivens action.” Id. at

497 (emphasis added). “So long as Congress or the

Executive has created a remedial process that it finds

sufficient to secure an adequate level of deterrence,

the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Id. at 498. Put differently, an alternative remedial scheme “alone” is a

“special factor” under the Supreme Court’s Bivens jurisprudence that terminates the action. Id. at 493

(quoting Ziglar v. Abbasi, 582 U.S. 120, 137 (2017)).

Here, Congress has provided for just such an alternative remedial scheme—the very same one that the

Supreme Court found independently dispositive in

Egbert. Under 8 C.F.R. § 287.10(a), DHS must “expeditiously” investigate “[a]lleged violations of [its]

standards for enforcement activities.” See also id. §

287.10(b) (establishing a grievance process). Given

that this regulation “independently foreclose[d]” relief

App-26

in Egbert, see 596 U.S. at 497, that is enough to end

our inquiry here. See Sigalovskaya v. Braden, No.

15-CV-34 (LDH), 2023 WL 6385761, at *6 (E.D.N.Y.

Sept. 29, 2023) (conducting a similar analysis below). 1

If I were to consider whether Sigalovskaya’s suit

presents a “new context” today, I would find no meaningful daylight between Sigalovskaya’s false-arrest

claim and the claim presented in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). 2 For over fifty years, the Supreme Court has repeatedly declined to overrule

Bivens. See Egbert, 596 U.S. at 490–91; Hernández

v. Mesa, 589 U.S. 93, 103 (2020); Ziglar, 582 U.S. at

131, 134. Rather, plaintiffs may bring Bivens actions

against federal officers who have committed certain

alleged constitutional violations that resemble Bivens

claims the Court has previously recognized. See Egbert, 596 U.S. at 490–92.

The investigation and grievance mechanisms described in §

287.10 apply to “immigration officer[s]” in the Department of

Homeland Security. See 8 C.F.R. § 287.8; see id. § 287.10(a) (incorporating § 287.8 by reference). In consulting a DHS organizational chart, the defendant Homeland Security Investigations

agents are organized under DHS’s Immigration and Customs

Enforcement (“ICE”). See Organizational Structure, U.S. Immigr. & Customs Enf’t, https://www.ice.gov/leadership/organizational-structure [https://perma.cc/3G2Y-B6XM] (last visited Nov.

14, 2024). In our procedural posture, we may properly take judicial notice of this fact. See Rynasko v. New York Univ., 63

F.4th 186, 191 n.4 (2d Cir. 2023) (“When considering a motion

made pursuant to Rule 12(b)(6) [or Rule 12(c)] we may take judicial notice of documents from official government websites.”

(internal quotation marks and citation omitted)).

2 In contrast, Sigalovskaya’s malicious-prosecution claim, as her

counsel conceded at oral argument, appears to raise a new context. See Oral Arg. Audio Recording at 8:41–9:30.

1

App-27

In Bivens, the plaintiff claimed that the defendant

agents made a warrantless entry into his apartment,

searched it, and arrested him on narcotics charges.

403 U.S. at 389. He alleged, among other things,

that the arrest was effectuated without probable

cause, in violation of the Fourth Amendment. Id.

Sigalovskaya’s complaint here hews closely to those

facts and to that legal claim. That she 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. Respecting precedent, we must not

parse Bivens actions before us with so discerning an

eye that we fail to heed the Court’s instruction that

Bivens claims may, under certain previously recognized contexts, proceed.

Here, at bottom, Sigalovskaya, just like Bivens, alleged that federal government agents lacked probable cause, but proceeded

with her arrest.

The Supreme Court has repeatedly recognized

Bivens actions in the contexts it has delineated, where

special factors do not counsel otherwise. Here, the

alternative remedial structure is a special factor that

independently precludes relief. I would decide this

case based solely on the DHS regulation that sufficed

in Egbert and leave to another panel, on another day,

the appropriate manner for going about a “new context” inquiry where such a remedial structure is absent.

App-28

GERARD E. LYNCH, Circuit Judge, dissenting in part:

Sigalovskaya’s false arrest claim does not present a

new context. And because that is sufficient for her

false arrest claim to survive Defendants’ motion for

judgment on the pleadings, I respectfully dissent in

part from the judgment affirming the dismissal of that

claim. I concur in the judgment insofar as it affirms

the dismissal of Sigalovskaya’s claim for malicious

prosecution, as allowing that claim would extend

Bivens to a new context and special factors counsel

against recognizing such a claim.

To determine whether Sigalovskaya has alleged a

viable Bivens claim, we first must assess whether her

claim arises in “a new Bivens context.” Egbert v.

Boule, 596 U.S. 482, 492 (2022) (internal quotation

marks omitted). For a case to present a new context,

the case must be “different in a meaningful way from

previous Bivens cases decided by [the Supreme]

Court.” Ziglar v. Abassi, 582 U.S. 120, 139 (2017)

(emphasis added).

Like Judge Pérez, I see no meaningful difference between Sigalovskaya’s false arrest claim and the unreasonable search and seizure claim in Bivens because

just like the plaintiff in Bivens, Sigalovskaya alleges

that her arrest was effectuated “without probable

cause” in violation of the Fourth Amendment. Joint

App’x 54 ¶ 94; Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971)

(characterizing Bivens’s complaint as alleging that his

“arrest was made without probable cause”). The fact

that the lack of probable cause in this case stemmed

from Defendants’ alleged fabrication of evidence

whereas the lack of probable cause in Bivens did not

is of no moment. Sigalovskaya’s arrest violated the

App-29

Fourth Amendment, if the allegations in her amended

complaint are true, because the arresting agents –

just like the agents in Bivens – lacked evidence sufficient to create probable cause to believe that she committed a crime. That Defendants pretended that

they did have such evidence is not a meaningful difference because the core issue – an arrest without

probable cause – is the same in both cases. 1

To conclude that such a factual difference is sufficient for Sigalovskaya’s false arrest claim to present a

new context, as Judge Lee suggests, would effectively

overrule Bivens without saying so. That is because it

is highly improbable that any case will present the

same exact facts that were present in Bivens. Accordingly, imbuing minute factual distinctions with

legal significance does not seem faithful to the Supreme Court’s admonition that Bivens is still good law,

see Egbert, 596 U.S. at 491, and I share the concerns

voiced in the dissent in Edwards v. Gizzi that drawing

fine factual distinctions to conclude a case presents a

new context in effect overrules Bivens “sub silentio.”

107 F.4th 81, 90–91 (2d Cir. 2024) (Parker, J., dissenting).

Because Sigalovskaya’s false arrest claim does not

present a new context, I would not reach the second

Nor does this case present a new context, as Defendants argue,

because the arresting agents were from the Department of

Homeland Security, while the federal agents in Bivens were from

the Federal Bureau of Narcotics. See Bivens, 403 U.S. at 389.

But as Judge Lee correctly points out, the Federal Bureau of Narcotics does not exist anymore. Accordingly, if Bivens is still good

law, the liability it creates cannot be escaped merely by changing

the name of the agency for which the officers work, any more

than by changing the shape or colors of their badges.

1

App-30

step of the analysis, which requires us to evaluate “if

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.” See Egbert, 596 U.S. at 492 (internal quotation marks omitted). The Supreme Court

has made clear that the purpose of the special factors

analysis is to determine if there is a “reason to pause

before applying Bivens in a new context or to a new

class of defendants.” Hernandez v. Mesa, 589 U.S. 93,

102 (2020) (emphasis added). It therefore follows

that if a case does not present a new context, there is

no need to reach the second step of the analysis. I

accordingly disagree with Judge Pérez that the mere

presence of a special factor, here, an alternative remedial regime, is sufficient to preclude a Bivens remedy

for Sigalovskaya’s false arrest claim. Because all

law enforcement agencies have internal disciplinary

procedures for investigating and punishing rogue

agents, that rationale too would represent a de facto

overruling of Bivens.

It is telling that here, as in Edwards, a majority of

the panel dismisses a Bivens claim without being able

to agree on a rationale for distinguishing Bivens. See

Edwards, 107 F.4th at 82 (Park, J. concurring): id. at

86–87 (Robinson, J., concurring). I sympathize with

my colleagues’ plight. They are doing what the Supreme Court appears to want them to do, when the

Supreme Court has not offered a coherent, intellectually honest basis for reflexively distinguishing cases

that are “materially indistinguishable” from Bivens itself, see Egbert, 596 U.S. at 513 (Sotomayor, J., concurring in part and dissenting in part), while solemnly

stating that Bivens is still good law, see id. at 491;

App-31

Ziglar, 582 U.S. at 134. Four Justices recognized in

Egbert that this charade is untenable. See Egbert,

596 U.S. at 503–04 (Gorsuch, J., concurring); id. at

526–27 (Sotomayor, J., joined by Breyer and Kagan,

JJ., dissenting in part and concurring in part).

I cannot say it better than Judge Parker so eloquently put it in Edwards:

[T]he fact that the Supreme Court continues

to express serious doubts about Bivens’ future does not, in my view, grant a license to

sub silentio do for the Supreme Court what it

has thus far been unwilling to do itself. If

the Supreme Court plans to take away important protections against constitutional violations and allow federal officials to act unconstitutionally without consequence unless

and until Congress acts, then it should face

the nation and say as much. It should not

delegate that work to us.

107 F.4th at 91.

I therefore respectfully dissent from the judgment

affirming the dismissal of Sigalovskaya’s false arrest

claim.

App-32

Appendix B

[Filed: Sep. 29, 2023]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KARINA SIGALOVSKAYA,

Plaintiff,

v.

SPECIAL AGENT ABIGAIL

BRADEN, SPECIAL AGENT

LUANN WALKER, SPECIAL

AGENT MEGAN BUCKLEY,

and SPECIAL AGENT ROBERT MANCENE,

MEMORANDUM

AND ORDER

15-CV-34 (LDH)

Defendants.

LASHANN DEARCY HALL, United States District

Judge:

Karina Sigalovskaya (“Plaintiff”) brings this action

against Immigration Customs Enforcement Homeland Security Investigations Special Agents Abigail

Braden, Luann Walter, Megan Buckley, and Robert

Mancene (“Defendants”) pursuant to Bivens v. Six Unknown Federal Officers alleging false arrest, malicious

prosecution, and failure to intervene. Defendants

move for judgment on the pleadings pursuant to Rule

12(c) of the Federal Rules of Civil Procedure.

App-33

BACKGROUND 1

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

(“HSI”), which is a part of the Bureau of Immigration

and Customs Enforcement (“ICE”). (Amended Complaint (“Am. Compl.”) ¶ 7, ECF No. 16.) On February

11, 2013, Defendants Walter, Buckley, and Mancene

went to Plaintiff’s residence, pounded on the door,

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

her consent to enter. (Id. ¶¶ 10–12.) Defendants Walter, Buckley, and Mancene were at Plaintiff’s residence to execute an arrest warrant for Plaintiff’s husband, Evidal Ifraimov, following an eight-month investigation into child pornography possession. (Id. ¶¶

15, 19.) After Plaintiff informed Defendants Walter,

Buckley, and Mancene that her husband was not

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

While the agents were searching Plaintiff’s home,

Ifraimov called Plaintiff over the phone and advised

her and Defendants that he would be home in 20

minutes. (Id. ¶ 27.) Ifraimov’s attorney called Plaintiff

soon after and directed her to tell Defendants to leave

her home, which she did, but Defendants refused to

leave. (Id. ¶¶ 28–29.) Instead, after conferring in a

separate room with the other Defendants, Defendant

Braden returned and demanded that Plaintiff write a

witness statement. 2 (Id. ¶¶ 30–31.) After Plaintiff

1 The following facts taken from the amended complaint (ECF

No. 16) are assumed to be true for the purpose of this memorandum and order.

2 The Amended Complaint does not specify the time at which

Defendant Braden arrived at Plaintiff’s residence.

App-34

asked for an explanation, Defendants Walter, Buckley,

and Mancene began to accuse Plaintiff of helping her

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

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

Braden showed Plaintiff two redacted, non-pornographic photographs on a cell phone which depicted

Plaintiff’s young daughter from the waist up with a

long sleeve shirt on. (Id. ¶¶ 36–39.) When asked

whether Plaintiff recognized the girl in the photographs, Plaintiff responded that she recognized the

girl as her daughter. (Id. ¶¶ 41–42.) Defendant

Braden asked Plaintiff whether she recognized where

the photograph was taken and if she took the photograph, and Plaintiff responded that the photograph

appeared to have been taken in her home and that she

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

Notwithstanding Plaintiff’s denial, Defendant

Braden asserted that Plaintiff confessed that she had

taken a pornographic photograph of her daughter and

that Plaintiff claimed her young son had participated

in taking the photograph. (Id. ¶¶ 47–48.) Plaintiff alleges that Defendants made additional false statements about the facts and circumstances surrounding

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

Walter, Buckley, and Mancene forwarded the statements to the United States Attorney’s Office for the

Eastern District of New York, resulting in her arrest

on charges of sexual exploitation of children and activities relating to material involving the sexual exploitation of minors. (Id. ¶¶ 52, 55.) Upon her arrest,

Plaintiff was taken to a federal detention facility in

App-35

New York County, forced to give DNA samples to law

enforcement officials, and arraigned before Magistrate Judge Cheryl Pollak. (Id. ¶¶ 66–67.) Plaintiff

was denied bail and held at the Metropolitan Detention Center for three weeks, during which time she

was subjected to full-body strip searches, propositioned by female inmates, exposed to communicable

diseases, and denied access to proper medical care and

treatment. (Id. ¶¶ 68–73.) As a result of her incarceration, Plaintiff was unable to be with her daughter on

her sixth birthday, and she missed her son’s first acting audition. (Id. ¶¶ 74–75.)

On March 5, 2013, the charges against Plaintiff

were dismissed by motion of the United States Attorney’s Office. (Id. ¶ 76.) Still, Plaintiff was unable to

see or speak to her children for three months because:

“[d]ue to the unlawful and perjurious conduct of [Defendant] Braden, the New York State Administration

for Children Services (“ACS”) filed a petition claiming

[Plaintiff] was unfit as a mother and to permanently

revoke her guardianship over her children.” (Id. ¶¶

78–79.) Plaintiff was forced to retain an attorney and

make appearances in New York’s family court to regain custody of her children. (Id. ¶¶ 80–83.) Although

Plaintiff has regained custody of her children, she was

required to have ACS visits twice per month for an

unspecified amount of time. (Id. ¶ 84.) And, Plaintiff

was placed on the New York State Sex Offender Registry. (Id. ¶ 85.)

STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c) is reviewed under the same standard as a motion to dismiss under

App-36

Rule 12(b)(6). See Bank of New York v. First Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994))

(“The same standard applicable to Fed. R. Civ. P.

12(b)(6) motions to dismiss applies to Fed. R. Civ. P.

12(c) motions for judgment on the pleadings.”). As

such, to survive a motion for judgment on the pleadings, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). As with a motion to dismiss under

Rule 12(b)(6), a motion for judgment on the pleadings

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

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

into those pleadings.” U.S. v. Certain Real Property

and Premises Known as 44 Autumn Ave., Brooklyn,

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

DISCUSSION

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

based principally on the Supreme Court’s recent decision in Egbert v. Boule, 142 S. Ct. 1793 (2022). 3

3 On March 23, 2018, Defendants moved for summary judgment,

which the Court granted in part. In their summary judgment motion, Defendants did not argue that Plaintiff’s false arrest and

malicious prosecution claims presented a new Bivens context,

and the Court noted that they could not. Defendants argue, and

App-37

Specifically, they argue that Plaintiff’s claims present

a new Bivens context and that special factors foreclose

a Bivens remedy. The Court agrees.

In 1971, the Supreme Court held that “even absent

statutory authorization, it would enforce a damages

remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1854 (2017) (citing Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388, 397 (1971)). The Court

extended this “implied cause of action” to two other

contexts in the decade the followed. See Davis v. Passman, 442 U.S. 228, 248–49 (1979) (recognizing Fifth

Amendment Due Process Clause cause of action for

gender discrimination against congressman); Carlson

v. Green, 446 U.S. 14, 19 (1980) (recognizing Eighth

Amendment Cruel and Unusual Punishments Clause

the Court agrees, that the Supreme Court’s recent decision in

Egbert v.Boule, 142 S. Ct. 1793 (2022) necessitates a special-factors analysis. Plaintiff argues that Defendants “greatly exaggerate the impact” of Boule and “the Supreme Court’s rationale in

[Boule] for declining to extend Bivens simply does not exist in

this case.” (Pl.’s Opp’n at 4, 6, ECF No. 16.) But, her arguments

fail to account for the fact that, as Justice Sotomayor put it in her

dissenting opinion, “a restless and newly constituted Court sees

fit to refashion the standard anew to foreclose remedies in yet

more cases.” Boule, 142 S. Ct. at 1818 (Sotomayor, J. Dissenting).

Indeed, the Supreme Court “effectively replace[d]” the two-step

inquiry established in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017),

“with a new single-step inquiry designed to constrict Bivens.”

Boule, 142 S. Ct. at 1818. Moreover, it agreed that a new context

was presented simply by virtue of the defendants not being Federal Bureau of Narcotics agents as they were in Bivens. See id.

at 1803. In light of these circumstances, therefore, the Court

must consider “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id.

App-38

cause of action for failure to provide adequate medical

treatment).

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

skepticism about Bivens’ continued viability. Indeed,

in Boule, the Supreme Court concluded that the judiciary’s authority to create implied causes of action under the Constitution “is, at best, uncertain,” and the

Supreme Court has “indicated that if [it] were called

to decide Bivens today, [it] would decline to discover

any implied causes of action in the Constitution.” 142

S. Ct. at 1803, 1809. This Supreme Court’s “about face”

on Bivens is the result of its change in approach to implied causes of action more broadly since Bivens and

its progeny were decided. Previously, “the Court assumed it to be a proper judicial function to ‘provide

such remedies as are necessary to make effective’ a

statute’s purpose.” Abbasi, 137 S. Ct. at 1855 (quoting

J.I Case Co. v. Borak, 377 U.S. 426, 433 (1964)). That

is, it “assumed common-law powers to create causes of

action.” Boule, 142 S. Ct. at 1802 (quoting Correctional Servs. Corp. v. Malesko 534 U.S. 61, 75 (2001)

(Scalia, J., concurring)). That is no longer the case. Instead, “the Court [has] adopted a far more cautious

course before finding implied causes of action,” Abbasi,

137 S. Ct. at 1855, because as the Supreme Court explains, it has “come ‘to appreciate more fully the tension between’ judicially created causes of action and

‘the Constitution’s separation of legislative and judicial power,’” Boule, 142 S. Ct. at 1802 (quoting Hernandez v. Mesa, 140 S. Ct. 735, 741(2020)). Moreover,

according to the Supreme Court “there are a number

of economic and governmental concerns to consider,”

when creating a cause of action, id., and “Congress is

App-39

‘far more competent than the Judiciary’ to weigh such

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

‘[the Supreme Court’s] watchword is caution.’” Id.

(quoting Hernandez, 140 S. Ct. at 742).

How to apply that caution though is not altogether

clear. In Abassi, the Supreme Court instructed lower

courts to apply a two-step framework to determine the

availability of a Bivens remedy. See generally 137 S.

Ct. at 1859–60. However, only Five years later, in

Boule, the Supreme Court “rewr[ote]” the framework,

and seemingly “closing the door . . . to [claims] that

fall squarely within Bivens’ ambit.” 142 S. Ct. at 1811

(Sotomayor, J. Dissenting).

A. The Abassi Framework

In Abassi, the Supreme Court instructed lower

courts to review Bivens claims in two-steps. At the

first step, courts were to ask, “whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’

different from the three cases in which the [Supreme

Court] has implied a damages action.’” Boule, 142 S.

Ct. at 1803 (citing Abassi, 137 S. Ct. at 1859–60). To

make that determination courts were to consider a

number of factors, including “the rank of the officers

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

judicial guidance as to how an officer should respond

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

was operating; the risk of disruptive intrusion by the

Judiciary into the functioning of other branches; or

the presence of potential special factors that previous

Bivens cases did not consider.” Abassi, 137 S. Ct. at

App-40

1860. If the case presents a new Bivens context, then

courts were to proceed to the second step and consider

whether special factors counsel hesitation in recognizing a Bivens remedy. Id. at 1859.

The Abassi analysis is illustrated in Hernandez v.

Mesa, 140 S. Ct. 735 (2020). There, the Supreme Court

considered the availability of a Bivens remedy for a

foreign plaintiff whose child had been shot and killed

by a Customs and Border Patrol officer across the

United States-Mexico border. See 140 S. Ct. at 740.

The Supreme Court determined that the case presented a different context from Bivens and Davis, the

two most closely analogous cases, because while

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

“Davis concerned alleged sex discrimination on Capitol Hill . . . . petitioners’ cross-border shooting claims”

presented “the risk of disruptive intrusion by the Judiciary in the functioning of other branches.” Id. at

744. That is, the case presented a new context despite

the fact that a federal agent “acted in disregard of instructions governing his conduct and of Hernandez’s

constitutional rights[]” and used “lethal force against

a person who pose[d] no immediate threat to the officer and no threat to others[, which] surely qualifie[d]

as an unreasonable seizure.” Id. at 756 (Ginsburg, J.,

Dissenting). At the second step, the Court found “multiple, related factors that raise[d] warning flags,” including “the potential effect on foreign relations.” Id.

at 744. Specifically, the Supreme Court determined

that it must “be especially wary before allowing a

Bivens remedy that impinges on” foreign policy concerns because “matters relating ‘to the conduct of foreign relations . . . are so exclusively entrusted to the

App-41

political branches of government as to be largely immune from judicial inquiry or interference.’” Id. (quoting Haig v Agee, 453 U.S. 280, 292 (1981)). The political branches took “the position that [the] incident

should be handled in a particular way” and judicial

intervention “would risk the embarrassment of our

government abroad through multifarious pronouncements by various departments on one question.” Id.

The Court also found significant the ramifications a

Bivens remedy would have for national security. See

Id. at 747 (“Since regulating the conduct of agents at

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

provides reason to hesitate before extending Bivens

into this field.”). And, the Court found significant the

fact that “Congress has repeatedly declined to authorize the award of damages for injury inflicted outside

our borders.” Id. Thus, Bivens was not extended.

B. The Two-Step Framework After Boule

In 2022, the Supreme Court decided Boule, and in

doing so, appears to have constricted the Abassi

framework. For example, in discussing the framework,

the majority noted that, in fact, the two-steps articulated under Abassi “often resolve to a single question:

Whether there is any reason to think that Congress

might be better equipped to create a damages remedy.”

Id. at 1803. (Of course, as Justice Gorsuch noted “[i]f

the only question is whether a court is ‘better

equipped’ than Congress to weigh the value of a new

cause of action, surely the right answer will always be

no.” Id. at 1810 (Gorsuch, J. Concurring)). Additionally, the Supreme Court appears to have held, at least

in effect, that any difference between the category of

App-42

defendants in Bivens and the case before the court, regardless of how trivial, presents a new context. Id. at

1804. That is, the Supreme Court agreed with the

Court of Appeals finding that Boule’s claim presented

a new context because “Agent Egbert is an agent of

border patrol rather than of the F.B.I.” Boule v. Egbert,

998 F.3d 370, 387 (9th Cir. 2021). Notably, the “new

category of defendants” principle had never been relied upon “to draw artificial distinctions between linelevel officers of the 83 different federal law enforcement agencies with authority to make arrests and provide police protection.” Id. at 1815 (Sotomayor, J. Concurring in part and Dissenting in part). Finally, the

Supreme Court also restricted the judiciary’s review

of alternative remedial structures, holding that the

presence of such a structure “alone . . . is reason

enough to limit the power of the judiciary to infer a

new Bivens cause of action.” Id. at 1804 (quoting

Abassi, 137 S. Ct. at 1858) (“the relevant question is

not whether a Bivens action would disrupt a remedial

scheme, or whether the court should provide for a

wrong that would otherwise go unredressed. . . .

[r]ather, the court must ask only whether it, rather

than the political branches, is better equipped to decide whether existing remedies should be augmented

by the creation of a new judicial remedy.”)

C. Plaintiff’s Bivens Claims

Plaintiff’s claims against Defendants, which include

false arrest, malicious prosecution, and failure to intervene stemming from alleged fabrication of evidence,

each present a new context. At the outset, Plaintiff’s

malicious prosecution and failure to intervene claims

are new contexts because Bivens did not involve a

App-43

malicious prosecution or failure to intervene claim.

See Annappareddy v. Pascale, 996 F.3d 120, 134 (4th

Cir. 2021) (malicious prosecution is a new Bivens context); Powell v. United States, No. 19-cv-11351, 2020

WL 5126392, at *7 (S.D.N.Y. Aug. 31, 2020) (same);

Castang v. Geimano, 19-cv-7178, 2020 WL 5531553,

at *4 (E.D.N.Y. Sept. 14, 2020) (failure to intervene is

a new Bivens context); Martinez v. D’Agata, No. 16-cv44, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019)

(same).

While Plaintiff’s false arrest claim has parallels to

Bivens, it too presents a new context. First, the claim

involves a new category of defendants because they

are not agents of the Federal Bureau of Narcotics, but

instead are HSI special agents. Boule, 998 F.3d at 387

(“We agree that it is an extension, in that Agent Egbert is an agent of the border patrol rather than of the

F.B.I.”), affirmed, 142 S. Ct. 1803 (2022). Second, as

Defendants note (Mem. L. Supp. Defs'. Mot. J. on the

Pleadings ("Defs'. Mem."), at 10–11, ECF No. 85-1),

the focus of Plaintiff’s complaint is the fabrication of

evidence that led to her arrest and prolonged detention, not an illegal entry into her home during which

agents searched “from stem to stern” after she had

been “manacled.” Bivens, 403 U.S. at 389. Indeed, the

Amended Complaint establishes that Defendants

were present at her home to arrest her husband after

an eight-month investigation into his possession and

production of child pornography. 4 Courts have

4 To be sure, the amended complaint contains allegations con-

cerning the Defendants search of her home, but she does not

bring a cause of action based upon those facts. That is, Plaintiff

App-44

recognized that claims involving the fabrication of evidence present a new Bivens context. See Zhang v.

Schuster, No. 18-cv-3283, 2022 WL 615015, at *10

(N.D. Ill. 2022) (plaintiff’s false arrest claim presented

new context because “[a] false statement is different

than a physical invasion of someone’s home, which is

what took place in Bivens”); see also Ahmed v. Weyker,

984 F.3d 564, 568 (8th Cir. 2020); Farah v. Weyker,

926 F.3d 492, 499 (8th Cir. 2019); Cantu v. Moody, 933

F.3d 414, 422 (5th Cir. 2019). Thus, Plaintiff seeks to

extend Bivens to a new category of defendants and to

a new type of misconduct.

Resisting this conclusion, Plaintiff argues that her

false arrest claim does not present a new context because it is “immaterial” that Defendants were not narcotics agents. (Pl.’s Opp’n at 7–8.) Critically, however,

the cases on which Plaintiff relies 5 were decided before Boule. 142 S. Ct. at 1803. To be sure, the Court

acknowledges that the agents in Bivens and Defendants are similar in that they are both enforcing traditional criminal law. Still, the difference in agency is

now sufficient, after Boule, to create a new context. Cf

id. at 1814–15 (“The only arguably salient difference

in ‘context’ between this case and Bivens is that the

does not challenge the legality of Defendants’ presence in her

home or of their search.

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

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

F.3d 1028, 1038 (6th Cir. 2019); Joane v. Hodges, 939 F.3d 945,

952 (9th Cir. 2018).) While Plaintiff also cites another memorandum and order in Powell v. United States which was decided after

Boule. But the court did not cite to or otherwise contend with

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

App-45

defendants in Bivens were employed at the time by

the (now-defunct) Federal Bureau of Narcotics, while

[Defendants were] employed by [Customs and Border

Protection].”) (Sotomayor, J. dissenting). Notably,

Plaintiff does not meaningfully engage with Boule or

provide the Court with any alternative interpretation

of that opinion. While Plaintiff points out that Boule

was principally concerned with national security, she

ignores that national security was not cited by the

Ninth Circuit or the Supreme Court as presenting a

new context, but instead as a special factor counseling

hesitation in extending Bivens. (Pl.’s Opp’n at 1, 4–5.)

Moreover, even if the Court agreed that the Defendants were not a new category of Defendants, Plaintiff

has provided no response to Defendants’ argument

that the focus of her claims is the fabrication of evidence, not invasion of her home or excessive force.

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

such claims have “been long recognized by courts.”

(Pl.’s Opp’n at 8–9.) But, the inquiry is whether the

Supreme Court has recognized a malicious prosecution claim (not other lower courts). The Supreme

Court certainly has not. And, as with her false arrest

argument, Plaintiff relies on cases that predate Boule,

and even Abassi. 6 Indeed, she completely ignores the

Government’s authority, and even her own 7 ,

6 See Pl.’s Opp’n at 8 (citing Barone v. United States, (S.D.N.Y.

Aug. 21, 2014); Williams v. Young, 769 F. Supp. 2d 594, 603

(S.D.N.Y. 2011).

7 Plaintiff cites Powell, 2020 WL 5126392 at *7, which held that

a claim for malicious prosecution arose in a new context. (Pl.’s

Opp’n at 8–9.)

App-46

establishing that malicious prosecution claims present a new context. See, e.g., Powell, 2020 WL 5126392,

at *7. In short, Plaintiff’s claims 8 stemming from HSI

special agents’ alleged fabrication of evidence present

a new Bivens context. Therefore, the Court must consider whether there are special factors “indicating

that the Judiciary is at least arguably less equipped

than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.” Boule, 142 S. Ct.

at 1803 (internal quotation marks omitted).

Defendants argue that DHS regulations provide alternative remedies that foreclose Plaintiff’s Bivens

claims. (Defs.’ Mem. at 12–15.) The Court agrees. Defendants argue that 8 C.F.R. § 287.10 is applicable to

HSI agents like themselves, and requires investigation of “alleged violations of the standards for enforcement activities” and accept grievances from “any persons wishing to lodge a complaint.” (Id. at 13.) Critically, this same regulation independently foreclosed a

Bivens remedy in Boule. See 142 S. Ct. at 1806. Plaintiff argues that the regulation is inapplicable to Defendants because the regulations apply only to immigration agents. However, Defendants have provided a

declaration establishing that such regulation is applicable to HSI special agents as well as border patrol.

(Pl.’s Opp’n at 11.) Completely ignoring Boule, Plaintiff argues further that the regulation is insufficient

because it does “not offer any redress to recoup damages,” “provide complainants any right to participate

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

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

opposition.

App-47

has “never held that a Bivens alternative must afford

rights to participation or appeal.” Boule, 142 S. Ct. at

1806. “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a

Bivens remedy.” Id. at 1807.

Even setting aside the grievance procedure, Defendants highlight other remedial structures created by

Congress sufficient to give the Court pause before extending Bivens. Defendants assert that “Congress has

authorized Inspectors General across the Executive

Branch to investigate and report abuses by federal

law-enforcement officers, including HSI officials.”

(Defs.’ Mem. at 13 (citing 5 U.S.C. app. 3 § 3; 6 U.S.C.

§ 113(b); Abbasi, 137 S. Ct. at 1862).) They also assert

that the Homeland Security Act of 2002 established

DHS’s Office of Civil Rights and Civil Liberties

(“CRCL”), see 6 U.S.C. §§ 113(d)(3), 345, instructing

the Office of the Inspector General (“OIG”) to refer to

it any “civil liberties matters” that OIG does not investigate, see 5 U.S.C. app. 3 § 8I(f)(2)(G). (Defs.’ Mem.

at 13–15.) CRCL is authorized to “initiate investigations of alleged abuses of civil rights and civil liberties

by employees or officials of the Department.” 5 U.S.C.

app. 3 § 8I(f)(2)(C). Defendants identify yet another

office, the Office of Professional Responsibility

(“OPR”), to which constitutional rights violations may

be reported. See 6 U.S.C. §§ 253–54. Plaintiff does not

dispute the existence of these offices and procedures

or that they are “safeguards to prevent constitutional

violations from recurring.” Boule, 142 S. Ct. at 1806

(internal quotation marks and alteration omitted). Indeed, Plaintiff is silent on these points. The Court “has

App-48

no warrant to doubt” that consideration of Plaintiff’s

complaint by any of these offices would secure adequate deterrence and afford an alternative remedy.

See id. at 1807; see also Lovell v. Parker, 618 F. Supp.

3d 127, 2022 WL 3045039, at *9 (E.D.N.Y. Aug 3, 2022)

(finding DHS and OIG grievances processes to be alternative remedies foreclosing a Bivens remedy).

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

Congress has created statutory mechanisms that permit “courts to award attorney fees to criminal defendants who prevail against ‘vexatious, frivolous, or bad

faith’ positions taken by the government,’” and that

permit “those wrongfully convicted and sentenced to

sue the government for damages. Selvam v. United

States, 570 F. Supp. 3d 29, 45–46 (E.D.N.Y. 2021)

(quoting Farah, 926 F.3d at 501). But, Congress has

not created a cause of action for an arrest and prosecution based upon false evidence when a conviction

did not result. Id. Congressional inaction here counsels against extending Bivens, particularly in light of

the other remedies available to Plaintiff that are outlined above.

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

under Bivens” for a false arrest and malicious prosecution claim premised on fabrication of evidence by

HSI special agents. Boule, 142 S. Ct. at 1803 (internal

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

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

seek to exploit the customs and immigration laws of

the United States.” (Defs.’ Mem. at 10 n.4.) Although

App-49

Defendants appear to have been investigating traditional criminal law domestically, the Court cannot

“appl[y] the special factors analysis at such a narrow

level of generality.” Boule, 142 S. Ct. at 1805 (internal

quotation marks and citation omitted). In considering

“more broadly if there is any reason to think that judicial intrusion into” investigation of transnational

crime and violation of customs and immigration laws

“might be harmful or inappropriate,” the Court has

reason to pause. Id. (internal quotation marks omitted). Constitutional claims based on fabrication of evidence are easy to allege, and HSI has over 6,800 special agents operating in more than 210 U.S. cities and

52 countries. (Defs.’ Mem. at 25.) The Court simply is

not positioned to weigh the costs and benefits of permitting false arrest and malicious prosecution claims

against HSI special agents based upon alleged fabrication of evidence, given that their investigations

touch on national security concerns. See Dep’t of Navy

v. Egan, 484 U.S. 518, 530 (1988) (courts must be “reluctant to intrude upon the authority of the Executive”). While Plaintiff argues that the Judiciary “must

hold federal officers who violate the constitution accountable” (Pl.’s Opp’n at 14), that simply is not the

question the Court is to ask. Instead, the question

here is “whether there is any rational reason (even one)

to think that Congress is better suited to weigh the

costs and benefits of allowing a damages action to proceed.” Boule, 142 S. Ct. at 1805 (emphasis in original)

(internal quotation marks omitted). And, the answer

is yes, Congress is better suited to weigh the costs and

benefits of allowing causes of action against HSI

agents. Thus, Plaintiff’s argument that “the Court”

would “cause society to lose faith that the government

App-50

plays fair” if it “were to permit federal officers to fabricate evidence without repercussion” is misdirected.

(Pl.’s Opp’n at 14.) It is Congress, not the Judiciary,

who bears this responsibility.

CONCLUSION 9

For the foregoing reasons, Defendant’s motion for

judgment on the pleadings is GRANTED.

SO ORDERED.

/s/ LDH

LASHANN DEARCY HALL

United States District Judge

Dated: Brooklyn, New York

September 30, 2023

9 Defendants argue that the Federal Tort Claims Act and other

equitable remedies also counsel against extending Bivens, but

the Court need not reach that question because the two factors it

has identified are sufficient after Boule. (Defs.’ Mem. at 15–22.)

App-51

Appendix C

[Filed: Dec. 2, 2025]

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

_____________________________________

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 2nd day of December,

two thousand twenty-five.

__________________________

Karina Sigalovskaya,

Plaintiff - Appellant,

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,

ORDER

Docket No:

23-7625

Defendants - Appellees.

__________________________

Appellant, Karina Sigalovskaya, has filed a petition

for rehearing en banc. The active members of the

Court have considered the request for rehearing en

banc.

IT IS HEREBY ORDERED that the petition is denied.

App-52

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

App-53

Appendix D

8 C. F. R. § 287.10

§ 287.10 Expedited internal review process.

(a) Violations of standards for enforcement activities. Alleged violations of the standards for enforcement activities established in accordance with

the provisions of § 287.8 shall be investigated expeditiously consistent with the policies and procedures

of the Department of Homeland Security and pursuant to any guidelines issued by the Secretary.

(b) Complaints. Any persons wishing to lodge a

complaint pertaining to violations of enforcement

standards contained in § 287.8 may contact the Department of Homeland Security, Office of the Inspector General, 245 Murray Drive - Building 410,

Washington, DC, 20548, or telephone 1-800-3238603. With respect to employees of the former INS,

persons may contact the Office of Internal Audit, Bureau of Immigration and Customs Enforcement, 425

I Street NW., Washington, DC, 20536.

(c) Expedited processing of complaints. When an

allegation or complaint of violation of § 287.8 is

lodged against an employee or officer of the Department, the allegation or complaint shall be referred

promptly for investigation in accordance with the

policies and procedures of the Department. At the

conclusion of an investigation of an allegation or

complaint of violation of § 287.8, the investigative

report shall be referred promptly for appropriate action in accordance with the policies and procedures

of the Department.

App-54

(d) Unsubstantiated complaints. When an investigative report does not support the allegation, the

employee or officer against whom the allegation was

made shall be informed in writing that the matter

has been closed as soon as practicable. No reference

to the allegation shall be filed in the official's or employee's official personnel file.

(e) Jurisdiction of Department of Justice organizations. Nothing in this section alters or limits,

is intended to alter or limit, or shall be construed to

alter or limit, the jurisdiction or authority conferred

upon the Federal Bureau of Investigation, the

United States Attorneys, the Criminal Division or

the Civil Rights Division, or any other component of

the Department of Justice that may have jurisdiction regarding criminal violations of law.

[68 FR 35281, June 13, 2003]