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

No. 25-1250

In the Supreme Court of the United States

KARINA SIGALOVSKAYA, PETITIONER

v.

ABIGAIL BRADEN, INDIVIDUALLY AND IN HER OFFICIAL

CAPACITY AS A SPECIAL AGENT FOR THE DEPARTMENT

OF HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the civil damages remedy under Bivens v.

Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), is available for a claim

that an officer violated the Fourth Amendment by allegedly fabricating evidence as a pretext for taking

someone into custody.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

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

Statement ...................................................................................... 2

Argument....................................................................................... 7

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Ahmed v. Weyker, 984 F.3d 564 (8th Cir. 2020),

cert. denied, 142 S. Ct. 2833 (2022) ....................... 11, 12, 15

Alexander v. Sandoval, 532 U.S. 275 (2001) ......................... 8

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ......................................... 12, 15

Arias v. Herzon, 150 F.4th 27 (1st Cir. 2025),

petition for cert. pending, No. 26-111

(filed July 23, 2026) ....................................................... 17, 18

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ............. 3, 5, 7, 8,

11, 12, 14

Bush v. Lucas, 462 U.S. 367 (1983) ........................................ 9

Cantú v. Moody:

933 F.3d 414 (5th Cir. 2019), cert. denied,

590 U.S. 992 (2020) .............................................. 13, 15

590 U.S. 992 (2020) ............................................................ 7

Carlson v. Green, 446 U.S. 14 (1980) ............................... 8, 17

Chappell v. Wallace, 462 U.S. 296 (1983) .............................. 9

Cisco Systems, Inc. v. Doe, 146 S. Ct. 1882 (2026) ............... 8

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) ................................................................. 8

Crawford-El v. Britton, 523 U.S. 574 (1998) ....................... 13

(III)

IV

Cases—Continued:

Page

Davis v. Passman, 442 U.S. 228 (1979) ................................. 8

DeVillier v. Texas, 601 U.S. 285 (2024) ................................. 7

Egbert v. Boule, 596 U.S. 482 (2022) .................4-6, 8-9, 13-14

FDIC v. Meyer, 510 U.S. 471 (1994) ...................................... 8

Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019)........ 11-12, 15

Goldey v. Fields, 606 U.S. 942 (2025) .................................... 8

Greenpoint Tactical Income Fund LLC v. Pettigrew,

38 F.4th 555 (7th Cir. 2022) ............................................... 16

Hernandez v. Causey, 124 F.4th 325 (5th Cir. 2024),

cert. denied, 145 S. Ct. 1930 (2025) ................................... 17

Hernández v. Mesa, 589 U.S. 93 (2020)........................... 8, 14

Johnson v. Terry, 119 F.4th 840 (11th Cir. 2024),

cert. denied, 146 S. Ct. 101 (2025) ..................................... 17

Kalu v. Spaulding, 113 F.4th 311 (3d Cir. 2024) ................ 17

Minneci v. Pollard, 565 U.S. 118 (2012) ............................... 8

Mohamud v. Weyker:

142 S. Ct. 2833 (2022) ........................................................ 7

146 S. Ct. 1781 (2026) ........................................................ 7

Muniz v. United States,

149 F.4th 256 (3d Cir. 2025) ............................................... 17

Nielsen v. Watanabe, cert. granted,

No. 25-417 (June 22, 2026) ................................................. 17

Quinones-Pimentel v. Cannon,

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

cert. denied, 142 S. Ct. 172 (2024) ..................................... 15

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

153 F.4th 918 (9th Cir. 2025) ............................................. 17

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........................... 8

Sheikh v. U.S. Dep’t of Homeland Sec.,

106 F.4th 918 (9th Cir. 2024) ........................... 11, 12, 15, 16

United States v. Stanley, 483 U.S. 669 (1987) ...................... 9

V

Cases—Continued:

Page

Watanabe v. Derr, 115 F.4th 1034 (9th Cir. 2025),

cert. granted, No. 25-417 (June 22, 2026) ......................... 17

Wilkie v. Robbins, 551 U.S. 537 (2007) .................................. 8

Xi v. Haugen, 68 F.4th 824 (3d Cir. 2023) ..................... 11, 15

Ziglar v. Abbasi, 582 U.S. 120 (2017) ..................... 8, 9, 11-14

Constitution, statute, and regulation:

U.S. Const.:

Amend. IV ......................................................... 7, 10, 12-17

Amend. V ............................................................................ 8

Amend. VIII................................................................. 8, 17

42 U.S.C. 1983 .......................................................................... 7

8 C.F.R. 287.10 ......................................................................... 6

In the Supreme Court of the United States

No. 25-1250

KARINA SIGALOVSKAYA, PETITIONER

v.

ABIGAIL BRADEN, INDIVIDUALLY AND IN HER OFFICIAL

CAPACITY AS A SPECIAL AGENT FOR THE DEPARTMENT OF

HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-31a)

is reported at 149 F.4th 226. The order of the district

court (Pet. App. 32a-50a) is available at 2023 WL

6385761.

JURISDICTION

The judgment of the court of appeals was entered on

August 27, 2025. The court of appeals denied rehearing

(Pet. App. 51a-52a) on December 2, 2025. On February

20, 2026, Justice Sotomayor extended the time within

which to file a petition for a writ of certiorari to and including May 1, 2026, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

1. On February 11, 2013—following an eight-month

investigation into child-pornography possession—

Department of Homeland Security (DHS) agents employed within the Child Exploitation Group of the

Homeland Security Investigations unit arrived at petitioner’s residence to execute an arrest warrant for petitioner’s husband, Evidal Ifraimov. Pet. App 33a. According to petitioner’s operative complaint, Special

Agents Luann Walter, Megan Buckley, and Robert

Mancene identified themselves as “police” and forced

entry without petitioner’s consent after she answered

the door. Ibid.; see Am. Compl. ¶¶ 10-12. After petitioner informed the agents that Ifraimov was not home,

the agents searched petitioner’s apartment. Pet. App.

33a.

As relevant here, petitioner alleges that respondent,

former DHS Special Agent Abigail Braden, showed petitioner “two redacted, non-pornographic photographs

on a cell phone which depicted [petitioner’s] young

daughter.” Pet. App. 34a. Petitioner responded that

she recognized the girl as her daughter, that the photograph appeared to have been taken inside her apartment, and that she had not taken the photograph. Ibid.

Petitioner further alleges that Agent Braden fabricated

evidence against her by falsely attesting that petitioner

confessed to taking a pornographic photograph of her

daughter and to involving her young son in the photography and that the agents made other false statements.

Ibid. Petitioner alleges that the agents forwarded the

fabricated evidence to the United States Attorney’s Office for the Eastern District of New York, resulting in

petitioner’s arrest on charges of sexual exploitation of

3

children and activities relating to material involving the

sexual exploitation of minors. Ibid.

Petitioner was denied bail and held in custody for

three weeks. Pet. App. 35a. The charges against her

were then dismissed on a motion by the government,

and she was released. Ibid. She alleges that she continued to be separated from her children for another

three months because of a petition filed by the New

York State Administration for Children Services as a

result of “the unlawful and perjurious conduct” of Agent

Braden and that she was placed on the New York State

Sex Offender Registry. Ibid. (quoting Am. Compl.

¶ 79).

Ifraimov pleaded guilty to sexual exploitation of a

child; he was sentenced to 25 years in prison and a lifetime of supervised release. See 13-cr-137 D. Ct. Doc.

35, at 1-3 (E.D.N.Y. June 17, 2014).

2. Petitioner sued respondent, as well as Agents

Walter, Buckley, and Mancene, in the United States

District Court for the Eastern District of New York.

Pet. App. 32a. Petitioner sought damages from the

agents under Bivens v. Six Unknown Named Agents of

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

claiming false arrest, malicious prosecution, abuse of

process, and the denial of a fair trial. Pet. App. 4a.

The district court granted in part and denied in part

the agents’ motion for summary judgment. See D. Ct.

Doc. 52 (Mar. 15, 2019). The court allowed the falsearrest and malicious-prosecution claims against respondent to proceed, as well as the false-arrest claim

against Agent Mancene on the theory that he was potentially liable for failing to intervene. Id. at 9-16. The

court otherwise granted the agents’ motion and dismissed the remaining claims against Agents Buckley

and Walter. Id. at 16-17.

4

Following this Court’s decision in Egbert v. Boule,

596 U.S. 482 (2022), the district court granted judgment

on the pleadings to respondent and Agent Mancene on

petitioner’s remaining claims. Pet. App. 32a-50a. The

court first found that petitioner’s malicious-prosecution

and failure-to-intervene claims are “new contexts because Bivens did not involve” either claim. Id. at 42a43a. And while petitioner’s “false arrest claim has parallels to Bivens, it too presents a new context” for two

reasons. Id. at 43a. First, “the claim involves a new

category of defendants”—i.e., DHS special agents.

Ibid. Second, “the focus of [petitioner’s] complaint is

the fabrication of evidence that led to her arrest and

prolonged detention, not an illegal entry into her

home.” Ibid. The court noted that the operative complaint “contains allegations concerning the [agents’]

search of [petitioner’s] home, but she does not bring a

cause of action based on those facts.” Id. at 43a n.4. The

court also explained that other courts had “recognized

that claims involving the fabrication of evidence present

a new Bivens context.” Id. at 43a-44a.

The district court identified multiple factors that

preclude an extension of Bivens here. It concluded that

applicable DHS regulations, which are the same as

those at issue in Egbert, provide alternative remedies

that foreclose petitioner’s Bivens claims. Pet. App. 46a.

The court pointed to other “remedial structures created

by Congress”—including those available through Office

of Inspector General processes, DHS’s Office of Civil

Rights and Civil Liberties, and DHS’s Office of Professional Responsibility—as also foreclosing a Bivens remedy. Id. at 47a. The court further reasoned that, despite providing statutory mechanisms of recovery for

other contexts, Congress’s failure to “create[ ] a cause

of action for an arrest and prosecution based upon false

5

evidence when a conviction did not result” counsels

against extending a Bivens remedy. Id. at 48a. Finally,

the court emphasized its inability “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

[Homeland Security Investigations] special agents,”

and it found that such uncertainty counsels against expanding Bivens. Ibid. (quoting Egbert, 596 U.S. at 493).

3. Petitioner appealed only the “dismissal of her

false arrest and malicious prosecution claims.” Pet.

App. 4a. A divided panel of the Second Circuit issued a

one-paragraph per curiam order affirming the judgment. Ibid. Each member of the panel wrote separately.

Judge Lee concurred in the judgment. Pet. App. 5a24a. She noted that petitioner had “concede[d] that her

malicious prosecution claim arises under a new Bivens

context.” Id. at 13a. As to the false-arrest claim, Judge

Lee explained that petitioner’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 [petitioner]

had confessed to taking the purportedly pornographic

pictures of her daughter, and then forwarded the fabricated evidence to the U.S. Attorney’s Office.” Id. at 18a.

While petitioner’s complaint includes “allegations of an

unlawful search and seizure,” those allegations have

been “levied against the other special agents, but not

Special Agent Braden.” Id. at 17a. Thus, “unlike the

plaintiff in Bivens, [petitioner’s] false arrest claim centers on the allegation of fabricated evidence, rather

than a warrantless search or seizure offending ‘primarily rights of privacy.’ ” Id. at 18a (quoting Bivens, 403

U.S. at 390). Judge Lee also recognized that other “cir-

6

cuits have found that claims involving the fabrication of

evidence present a new Bivens context.” Id. at 19a; see

id. at 19a-20a (collecting cases). And she determined

that special factors counsel against extending Bivens,

including that “Congress is better suited to weigh the

costs and benefits of allowing a damages action to proceed.” Id. at 24a (quoting Egbert, 596 U.S. at 496); see

id. at 20a-24a.

Judge Pérez also concurred in the judgment. Pet.

App. 25a-27a. In her view, petitioner’s “false-arrest

claim * * * likely presents no new Bivens context,” but

that question need not be considered because “an alternative remedial scheme ‘alone’ is a ‘special factor’ under

the Supreme Court’s Bivens jurisprudence that terminates the action.” Id. at 25a (quoting Egbert, 596 U.S.

at 493). And she reasoned that the remedial scheme at

issue here is “the very same one that the Supreme

Court found independently dispositive in Egbert.” Ibid.

(discussing 8 C.F.R. 287.10).

Judge Lynch concurred in the judgment affirming

the dismissal of petitioner’s malicious-prosecution

claim, but he dissented on the grounds that petitioner’s

“false arrest claim does not present a new context.”

Pet. App. 28a; see id. at 28a-31a. He saw “no meaningful difference between [petitioner’s] false arrest claim

and the unreasonable search and seizure claim in

Bivens because just like the plaintiff in Bivens, [petitioner] alleges that her arrest was effectuated ‘without

probable cause’ in violation of the Fourth Amendment.”

Id. at 28a (citation omitted). In his view, it is “of no moment” that “the lack of probable cause in this case

stemmed from [the agents’] alleged fabrication of evidence whereas the lack of probable cause in Bivens did

not.” Ibid.

7

4. The court of appeals denied petitioner’s petition

for rehearing en banc. Pet. App. 51a-52a.

ARGUMENT

Petitioner contends (Pet. 20-27) that the court of appeals should have recognized a cause of action under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for her Fourth

Amendment false-arrest claim against respondent based

on the alleged fabrication of evidence.1 The court correctly rejected petitioner’s request to extend Bivens,

and its decision does not conflict with any decision of

this Court or of any post-Egbert decision of another

court of appeals. This Court has declined to review similar questions. See Mohamud v. Weyker, 146 S. Ct. 1781

(2026) (No. 25-760); Mohamud v. Weyker, 142 S. Ct.

2833 (2022) (No. 21-187); Cantú v. Moody, 590 U.S. 992

(2020) (No. 19-1033). The same result is warranted

here.

1. The court of appeals’ decision is correct.

a. “Constitutional rights do not typically come with

a built-in cause of action to allow for private enforcement in courts.” DeVillier v. Texas, 601 U.S. 285, 291

(2024). “Instead, constitutional rights are generally invoked defensively in cases arising under other sources

of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.” Ibid.

Such rights of action are ordinarily created through

statutes enacted by Congress. See, e.g., 42 U.S.C. 1983.

In Bivens, this Court created a private right of action

for damages against federal narcotics agents who allegedly violated the Fourth Amendment by arresting the

The petition in this Court does not concern petitioner’s maliciousprosecution claim, see Pet. 9 n.2, nor her claims against any other

defendant besides Agent Braden, see Pet. ii.

1

8

plaintiff in his house without a warrant. See 403 U.S. at

397. The agents in that case allegedly “manacled [the

plaintiff ] in front of his wife and children,” “threatened

to arrest the entire family,” “searched the apartment

from stem to stern,” and later “subjected [the plaintiff ]

to a visual strip search.” Id. at 389. In two subsequent

cases, this Court extended the Bivens remedy by creating rights of action for a former congressional staffer’s

Fifth Amendment equal-protection claim alleging discrimination based on sex, see Davis v. Passman, 442

U.S. 228, 230-231 (1979), and for a prisoner’s Eighth

Amendment claim alleging deliberate indifference by

prison staff to a medical emergency, see Carlson v.

Green, 446 U.S. 14, 18-23 (1980).

Since then, this Court has come to recognize that “judicially created causes of action offend the separation of

powers in almost every circumstance.” Cisco Systems,

Inc. v. Doe, 146 S. Ct. 1882, 1891 (2026); see Egbert v.

Boule, 596 U.S. 482, 491 (2022); Alexander v. Sandoval,

532 U.S. 275, 286 (2001). “At bottom, creating a cause

of action is a legislative endeavor.” Egbert, 596 U.S. at

491. The Court has accordingly described the creation

of a Bivens action as “a disfavored judicial activity” and

an “extraordinary act that places great stress on the

separation of powers.” Id. at 491, 497 n.3 (citations

omitted). In the 46 years since Carlson, the Court has

consistently rejected every proposed Bivens action that

it has considered. See Goldey v. Fields, 606 U.S. 942,

944-945 (2025) (per curiam); Egbert, 596 U.S. at 493-494,

498-499; Hernández v. Mesa, 589 U.S. 93, 113-114

(2020); Ziglar v. Abbasi, 582 U.S. 120, 145-146 (2017);

Minneci v. Pollard, 565 U.S. 118, 131 (2012); Wilkie v.

Robbins, 551 U.S. 537, 562 (2007); Correctional Services

Corp. v. Malesko, 534 U.S. 61, 74 (2001); FDIC v. Meyer,

510 U.S. 471, 486 (1994); Schweiker v. Chilicky, 487 U.S.

9

412, 425 (1988); United States v. Stanley, 483 U.S. 669,

678 (1987); Bush v. Lucas, 462 U.S. 367, 390 (1983);

Chappell v. Wallace, 462 U.S. 296, 304 (1983).

This Court has applied a two-step test to decide

whether to allow a Bivens claim to proceed. See Egbert,

596 U.S. at 492. The Court first asks whether the case

presents “a new Bivens context”—i.e., whether the case

“meaningfully differ[s] from the three cases” in which

the Court has recognized a Bivens remedy. Ibid.

(brackets and citation omitted). “A case might differ in

a meaningful way” on account of any of various kinds of

alterations in its circumstances, such as “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

from the presence of other “special factors that previous Bivens cases did not consider.” Abbasi, 582 U.S. at

139-140. In other words, “the new-context inquiry is

easily satisfied.” Id. at 149. A case presents a new context even if it differs from earlier Bivens cases in

“small” ways, because “even a modest extension is still

an extension.” Id. at 147, 149.

If a case arises in a new Bivens context, the Court

asks whether “ ‘special factors’ ” indicate that courts are

“at least arguably less equipped than Congress” to

weigh the costs and benefits of a damages remedy. Egbert, 596 U.S. at 492 (citation omitted). “If there is even

a single ‘reason to pause before applying Bivens in a

new context,’ a court may not recognize a Bivens remedy.” Ibid. (citation omitted).

10

b. Under that framework, the court of appeals correctly declined to recognize a Bivens cause of action in

this case. At this stage, petitioner does not appear to

dispute that, if her false-arrest claim arises in a new

context, special factors would counsel against extending

Bivens. Rather, petitioner contends that the court of

appeals erred in holding that her false-arrest claim

arises in a new context. See Pet. 20-27.

On that question, this case arises in a meaningfully

different context from Bivens because petitioner’s

false-arrest claim is based on alleged fabrication of evidence, “not in any of the allegations surrounding an unlawful search and seizure in her home.” Pet. App. 20a

(Lee, J., concurring). As Judge Lee observed, petitioner’s “complaint charges the other special agents—

not the one [i.e., respondent, Agent Braden] with whom

[petitioner’s] false arrest claim remains potentially

viable—with unlawfully entering and searching her

home, and separating her from her children.” Id. at 18a;

see id. at 17a-18a (discussing Am. Compl. ¶¶ 12-14). Rather, petitioner’s “complaint makes it clear that * * *

what is at the crux of her false arrest claim” is “the allegation that Special Agent Braden falsely claimed that

[petitioner] had confessed to taking the purportedly

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

Office.” Id. at 18a (citing Am. Compl. ¶¶ 46-49, 52); see

id. at 19a n.3 (observing that petitioner did not “meaningfully dispute” that she did not “ ‘bring a cause of action based upon’ ” the search of her home) (citation omitted). In sum, though cast in Fourth Amendment terms,

petitioner’s only remaining claim against respondent

looks nothing like the Fourth Amendment claim in

Bivens itself, which involved a claim against federal

agents “for handcuffing a man in his own home without

11

a warrant.” Abbasi, 582 U.S. at 140 (characterizing

Bivens); see Bivens, 403 U.S. at 389.

That mismatch between petitioner’s claim and Bivens

means that petitioner’s claim involves “a different part

of police work” than was at issue in Bivens. Farah v.

Weyker, 926 F.3d 492, 499 (8th Cir. 2019); see Ahmed

v. Weyker, 984 F.3d 564, 568 (8th Cir. 2020), cert. denied, 142 S. Ct. 2833 (2022). Petitioner’s allegations

about fabrication of evidence concern “informationgathering and case-building activities,” as distinct from

“the apprehension, detention, and physical searches at

issue in Bivens.” Farah, 926 F.3d at 499; accord Sheikh

v. U.S. Dep’t of Homeland Sec., 106 F.4th 918, 925 (9th

Cir. 2024) (plaintiff ’s allegations that federal officers

“ ‘procured and submitted false evidence * * * to have

her indicted on fabricated charges’ ” presented “distinctly different misconduct than that alleged in

Bivens ”); Xi v. Haugen, 68 F.4th 824, 834 (3rd Cir.

2023) (similar). That petitioner’s claim involves different police activities than Bivens is underscored by the

“legal mandate under which [respondent] was operating.” Abbasi, 582 U.S. at 140. At the time of the alleged

events, respondent was acting as a Special Agent within

the Child Exploitation Group of DHS’s Homeland Security Investigations unit—DHS’s “principal investigative body,” which “operates both nationally and internationally,” Pet. App. 21a (Lee, J., concurring) (discussing special factors); see id. at 4a, 33a—not participating

in the enforcement of federal drug laws, which was at

issue in Bivens, 403 U.S. at 389.

The nature of petitioner’s claim also means that it involves a different “mechanism of injury” than was at issue in Bivens. Farah, 926 F.3d at 499. The core of petitioner’s allegations against respondent are that respondent “falsely claimed that [petitioner] had con-

12

fessed to taking the purportedly pornographic pictures

of her daughter,” that the allegedly fabricated evidence

was “forwarded * * * to the U.S. Attorney’s Office,”

and that it resulted in her arrest and prolonged detention. Pet. App. 18a (Lee, J., concurring). That “indirect

mechanism of injury bears little resemblance to the

straightforward claims from Bivens,” in which the

plaintiff ’s injuries of “ ‘humiliation, embarrassment, and

mental suffering’ ” were more “directly caused by the

officers’ conduct.” Farah, 926 F.3d at 499 (quoting

Bivens, 403 U.S. at 389-390); see Ahmed, 984 F.3d at

569; Sheikh, 106 F.4th at 925.

Moreover, Fourth Amendment claims based on the

fabrication of evidence pose a greater “risk of disruptive

intrusion by the Judiciary into the functioning of other

branches” than did the claims in Bivens. Abbasi, 582

U.S. at 140. In Bivens, the claims did not require a

court to evaluate the veracity of evidence presented to

a prosecutor or used in a judicial proceeding. That is

not the case here, where “the crux of [petitioner’s] false

arrest claim” is the allegation that respondent fabricated evidence that was forwarded to the U.S. Attorney’s Office and that such actions “resulted in [petitioner’s] arrest.” Pet. App. 18a (Lee, J., concurring).

Petitioner was also “arraigned” before a magistrate

judge and “denied bail,” presumably due, at least in

part, to the allegedly fabricated statements. See id. at

35a (district court opinion); see id. at 34a-35a.

Evaluating fabrication-of-evidence claims thus involves “[p]robing the causal chain” and “delving into the

evidence before numerous decisionmakers,” Farah, 926

F.3d at 499, while “[n]o comparable inquiry was in play

in Bivens,” Ahmed, 984 F.3d at 570. That risks “intruding on the investigatory and prosecutorial functions of

the executive branch.” Annappareddy v. Pascale, 996

13

F.3d 120, 136 (4th Cir. 2021). It also risks the imposition

of personal liability for officers’ communications to

prosecutors and judicial officers, cf. Egbert, 596 U.S. at

499 (extending Bivens heightens the “risk that fear of

personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties”)

(citation omitted)—a risk that is magnified because

fabrication-of-evidence allegations are “easy to allege

and hard to disprove,” ibid. (quoting Crawford-El v.

Britton, 523 U.S. 574, 584-585 (1998)). Such allegations

inherently depend on he-said, she-said contentions

about whether petitioner did in fact make certain incriminating statements, threatening “to set off broadranging discovery in which there is often no clear end to

the relevant evidence.” Ibid. (citation omitted).

c. Petitioner’s arguments to the contrary are unpersuasive.

Petitioner asserts (Pet. 21-22) that Bivens involved

the same variety of false-arrest claim because the officers in that case lacked probable cause for the arrest.

But, as explained, claims involving fabrication of evidence necessarily involve different law-enforcement activities and different injuries from those in Bivens. See

pp. 11-12, supra. And such differences have been met

with varying judicial guidance, which “differs across

various kinds of Fourth Amendment violations.” Cantú

v. Moody, 933 F.3d 414, 423 (5th Cir. 2019) (declining to

conflate the Fourth Amendment violation in Bivens

with a claim of falsifying evidence to “induce prosecutors to charge” the plaintiff ), cert. denied, 590 U.S. 992

(2020). Those differences compel the conclusion that

petitioner’s claim involves a new Bivens context because, even if they were “small” differences, “the newcontext inquiry is easily satisfied.” Abbasi, 582 U.S. at

149.

14

Petitioner also contends (Pet. 21) that there are no

“ ‘meaningful’ differences” between her claim and

Bivens because both instances involve Fourth Amendment claims against “low-level law enforcement agents

performing routine, domestic criminal investigations.”

But this Court has rejected such a sweeping reading of

Bivens. Rather, “[a] claim may arise in a new context

even if it is based on the same constitutional provision

as a claim in a case in which a damages remedy was previously recognized.” Hernández, 589 U.S. at 103. In

Hernández, this Court held that a Fourth Amendment

claim involving a cross-border shooting by a rank-andfile law-enforcement officer presented a new context.

Ibid.; see id. at 96-97. In Abbasi, the Court did not treat

the “ ‘detention policy claims,’ ” including a Fourth

Amendment claim that prison officials subjected pretrial detainees to “frequent strip searches,” as sufficiently similar to the Fourth Amendment claim in

Bivens. 582 U.S. at 138; see id. at 138-140. And in Egbert, the Fourth Amendment claim involved “similar allegations of excessive force” and arguably “ ‘almost parallel circumstances’ or a similar ‘mechanism of injury’ ”

to Bivens, but the court of appeals in that case “conceded” that the claim presented a new context, and this

Court held that such “superficial similarities are not

enough to support the judicial creation of a cause of action.” 596 U.S. at 494-495 (citation omitted). Indeed,

this Court has never found that any other Fourth

Amendment claim arose in the same context as the

claim in Bivens.

2. There is no conflict among the courts of appeals

that would warrant this Court’s review of this case.

a. Petitioner asserts (Pet. 11-14) that the courts of

appeals are divided over what constitutes a meaningful

difference in the new-context inquiry. When expressed

15

at that high level of generality, it can be said that there

are disagreements in the lower courts about what contexts are meaningfully different from Bivens. See, e.g.,

Pet. at 12-15, Herzon v. Arias, No. 26-111 (filed July 23,

2026) (Herzon Pet.) (describing conflicts in the courts of

appeals about whether Bivens encompasses excessiveforce claims arising out of the execution of arrest warrants outside the home). But petitioner signally fails to

identify any division among the courts of appeals on the

actual issue in this case: whether Bivens extends to a

Fourth Amendment claim grounded in the fabrication

of evidence. Indeed, petitioner identifies no case in

which a court of appeals, after Abbasi and Egbert, has

recognized a Bivens remedy on facts comparable to

those of this case.

To the contrary, as Judge Lee explained, other courts

of appeals have, post-Abbasi and post-Egbert, repeatedly declined to permit a Bivens remedy for claims

based on allegations that defendants fabricated evidence. See Pet. App. 19a (citing cases); QuinonesPimentel v. Cannon, 85 F.4th 63, 71 (1st Cir. 2023)

(Fourth Amendment claims alleging fabricated evidence), cert. denied, 145 S. Ct. 172 (2024); Xi, 68 F.4th

at 834-835 (Fourth Amendment claims alleging false

statements and material omissions); Annappareddy,

996 F.3d at 135 (Fourth Amendment claims alleging

false evidence); Cantú, 933 F.3d at 421-424 (Fourth

Amendment claim alleging fabricated evidence); Ahmed, 984 F.3d at 568-570 (Fourth Amendment falsearrest claim based on fabricated facts); Farah, 926 F.3d

at 497-499 (Fourth Amendment claims based on false

information provided to other actors); Sheikh, 106 F.4th

at 925 (Fourth Amendment claim alleging fabrication of

16

evidence).2 The decision below is thus consistent with

“the weight of consensus” among the courts of appeals.

Sheikh, 106 F.4th at 925-926.

b. Petitioner also contends that the courts of appeals

are divided over the question whether “an [a]lternative

[r]emedy [i]ndependently [c]reates a [n]ew Bivens

[c]ontext.” Pet. 15; see Pet. i (presenting the question

“[w]hether the availability of an alternative remedy independently forecloses a Bivens claim that does not

otherwise meaningfully differ from Bivens itself ”); Pet.

15-18. That contention fails for two reasons.

First, that question is not presented here. As explained, petitioner’s Fourth Amendment claim is meaningfully different from the claims in Bivens itself for

multiple reasons. See pp. 10-13, supra. The district

court did not have occasion to address whether an administrative scheme alone would distinguish this case

from Bivens. And when it did discuss alternative remedies, it did so only when considering whether special

factors counsel hesitation, see Pet. App. 46a-48a, and

only as one of multiple special factors, see id. at 46a-50a.

Nor did the court of appeals address this point in its per

The court in Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555 (7th Cir. 2022), suggested that “Bivens claims

based on fabricated warrant affidavits and/or grand jury testimony”

remained viable after Abbasi. Id. at 564. But the Seventh Circuit

made clear that its decision in that case to affirm the district court

was based “on different grounds” than the application of the twostep Bivens framework. Id. at 558. Because the court was affirming

the district court’s dismissal on grounds of absolute and qualified

immunity, it expressly noted that it was not “wrestling to the ground

the effects of Abbasi” on previous cases that had allowed Bivens

claims based on the fabrication of evidence. Id. at 565; see id. at 558

(explaining affirmance on immunity grounds “[e]ven assuming that

Bivens can reach the Fourth Amendment violations alleged here”).

2

17

curiam opinion. See id. at 4a. Rather, whether alternative remedies could alone preclude relief was raised

only in Judge Pérez’s separate concurrence and only as

a “ ‘special factor’ ”; Judge Pérez believed that the court

of appeals “need not consider” whether petitioner’s

false-arrest claim presents a “new Bivens context.” Id.

at 25a (Pérez, J., concurring) (citation omitted).

Second, even if the question were presented here,

petitioner points to no court of appeals case holding that

alternative remedies are independently sufficient to

foreclose a Fourth Amendment Bivens claim as part of

the new-context inquiry. Rather, petitioner’s cited

cases addressing Fourth Amendment claims (Pet. 1517) indicate that the First Circuit has rejected such a

position, see Arias v. Herzon, 150 F.4th 27, 40-47 (1st

Cir. 2025), petition for cert. pending, No. 26-111 (filed

July 23, 2026), and that the Fifth Circuit considered administrative remedies as one of several factors that

placed a claim in a new context, see Hernandez v. Causey, 124 F.4th 325, 333-334 (5th Cir. 2024), cert. denied,

145 S. Ct. 1930 (2025).

Petitioner’s cited cases otherwise concern whether

the Bureau of Prisons’ Administrative Remedy

Program—a factor not considered in Carlson v. Green,

446 U.S. 14 (1980), in which the Court recognized a

Bivens remedy for certain Eighth Amendment claims—

creates a new context for a Carlson claim. See Pet. 1518 (citing Muniz v. United States, 149 F.4th 256 (3d Cir.

2025); Kalu v. Spaulding, 113 F.4th 311 (3d Cir. 2024);

Schwartz v. D. Miller, P.A., 153 F.4th 918 (9th Cir.

2025); Watanabe v. Derr, 115 F.4th 1034 (9th Cir. 2025),

cert. granted, No. 25-417 (June 22, 2026); Johnson v.

Terry, 119 F.4th 840 (11th Cir. 2024), cert. denied, 146

S. Ct. 101 (2025)). This Court has granted certiorari on

a related question in Nielsen v. Watanabe, No. 25-417

18

(oral argument scheduled for Nov. 9, 2026). But that

question is not squarely presented here, including for

the reason just explained—i.e., that the courts below

did not address whether an alternative remedial scheme

places petitioner’s claim in a new Bivens context. See

pp. 16-17, supra. There is accordingly no need to hold

this petition pending the Court’s decision in Nielsen.3

3. Contrary to petitioner’s assertion (Pet. 28), this

case is a poor vehicle for addressing the questions presented. As an initial matter, there is no controlling rationale for the decision below. While the court of appeals correctly declined to extend Bivens to petitioner’s

false-arrest claim, the two judges who reached that conclusion did not agree on a governing rationale. See Pet.

App. 5a-24a (Lee, J., concurring) (concluding both that

petitioner’s claim arises in a new context and that special factors counsel against extending Bivens); id. at

25a-27a (Pérez, J., concurring) (concluding only that

special factors counsel against extending Bivens); see

also id. at 28a-31a (Lynch, J., dissenting) (concluding

that petitioner’s claim does not arise in a new context

and finding no need to address the special-factors analThat distinguishes this case from Herzon v. Arias, in which the

pending petition for a writ of certiorari presents the question

whether Bivens should be extended to a Fourth Amendment

excessive-force claim arising out of the execution of an arrest warrant outside the home. There, the petition, filed by this Office on

behalf of federal-officer defendants, has suggested that the Court

might hold the case pending its decision Nielsen. See Herzon Pet.

15-16. But in Herzon, unlike here, there is a conflict in the courts of

appeals about the precise question presented and the decision below

directly addressed whether “the context in which [the plaintiff ’s] excessive force claims arise [is] ‘meaningfully different’—and so new”

because of “an administrative mechanism for lodging a complaint

about misconduct by a federal law enforcement officer.” Arias, 150

F.4th at 40.

3

19

ysis). Moreover, as explained, the second question in

the petition is not actually presented by this case. See

pp. 16-17, supra.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

MELISSA N. PATTERSON

JAYNIE LILLEY

Attorneys

AUGUST 2026