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Ninth Circuit:
No Cause of Action Lies for Falsifying Evidence Allegations
Opinion Says Allegations That Department of Homeland Security Fabricated Evidence Leading to Doctor’s Arrest Do Not Give Rise to Civil Remedies Under Fourth, Fifth Amendments
By a MetNews Staff Writer
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FIRDOS SHEIKH neurologist |
The Ninth U.S. Circuit Court of Appeals held Friday that allegations by a neurologist that government agents fabricated evidence in a search warrant affidavit and submitted misleading reports to prosecutors—resulting in the doctor’s arrest and criminal prosecution—did not give rise to implied civil causes of action under the Fourth and Fifth Amendments.
The question arose in a lawsuit by the practicing physician against the department and two now-retired agents following the dismissal of the criminal action against her.
Circuit Judge Garbiel P. Sanchez wrote the opinion affirming the dismissal by District Court Judge William B. Shubb of the Eastern District of California of the plaintiff’s complaint for failing to state a claim. Shubb also presided over the criminal matter against the plaintiff.
Circuit Judges Danielle J. Forrest and Ryan D. Nelson joined in the opinion. Nelson wrote separately to appeal for the narrow application and eventual overruling by the en banc court of the 2018 Ninth Circuit case of Launza v. Love which held that a cause of action under the due process clause of the Fifth Amendment exists for falsification of evidence allegations against an immigration prosecutor.
Appealing the dismissal was Dr. Firdos Sheikh, a Sacramento-area neurologist who was indicted by a federal Grand Jury in 2018 of multiple counts of forced labor and alien harboring for financial gain due to her having allegedly hidden two non-citizens on her 20-acre Elk Grove ranch for five years.
Search of Ranch
On July 1, 2013, special agents Carole Webster and Eugene Kizenko of the Department of Homeland Security Investigations (“HIS”) conducted an uncontested search of the ranch. Two men identified as “Prakash,” and “Alfredo” were interviewed and claimed to be victims of human trafficking.
The two men said they were forced to work 10 to 12 hours days, seven days a week, and were not free to leave the property. However, the federal agents observed that workers could walk on and off of the ranch freely and were not subject to the long working hours they had claimed.
On July 8, Kizenko obtained a search warrant for the ranch, making numerous materially false statements in the search warrant. After the search, the defendants wrote reports for prosecutors that omitted exculpatory evidence and credited the false or exaggerated statements of Prakash and Alfredo.
Shubb declined to dismiss the criminal action based on the prosecution’s failure to disclose the exculpatory evidence. However, on Oct. 9, 2020, the judge dismissed the action under the Speedy Trial Act, reasoning that if the government had timely disclosed all exculpatory material, the case would have proceeded to trial before the suspension of all trials brought about by the COVID-19 pandemic.
Civil Action
In March 2022, Sheikh brought a civil action against the Department of Homeland Security, Webster and Kizenko, asserting implied claims for violations of the Fourth and Fifth Amendments under the 1970 U.S. Supreme Court case of Bivens v. Six Unknown Federal Narcotics Agents.
The Bivens court recognized, in an opinion by Justice William Brennan Jr. (now deceased), an implied cause of action under the Fourth Amendment, allowing the plaintiff in that matter to sue federal narcotics agents for an allegedly unreasonable search and seizure. Subsequent high court cases recognized implied causes of action for certain Fifth Amendment violations. Shubb, saying he was “acutely familiar with plaintiff’s allegations, having presided over the criminal case brought against her in 2018,” determined that Sheikh failed to meet the threshold requirements to state a claim under Bivens and dismissed the action without leave to amend. Sanchez noted that, under the jurisprudence that followed the Bivens decision, courts apply a two-step inquiry to determine whether a plaintiff should be afforded an implied claim under the Fourth or Fifth Amendment.
First, the court asks whether the case presents a new context than the few cases that have found such a cause of action. A case presents a “new context” if it is different in meaningful ways from previous Bivens cases decided by the high court.
Second, if the case arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the judiciary is arguably less equipped than Congress to create the requested damages remedy.
New Context
Sanchez explained that meaningful differences have been found where there are distinctions in the rank of the officers involved, the constitutional rights at issue, and the risk of disruptive intrusion by the judicial branch into the functioning of other branches, among other circumstances.
Turing to Sheikh’s complaint, the jurist reasoned:
“Dr. Sheikh’s Fourth Amendment claim involves a new category of defendants operating under a different legal mandate as compared to Bivens….While the Fourth Amendment claim in Bivens was against Federal Bureau of Narcotics agents, Dr. Sheikh brings her claim against HSI agents investigating illegal cross-border movement….Such differences alone make this a new Bivens context.”
He continued: “Dr. Sheikh’s Fourth Amendment claim also arises from distinctly different misconduct than that alleged in Bivens. Indeed, Dr. Sheikh’s allegations bear little resemblance to the warrantless search and seizure in Bivens where ‘agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family.’ ”
Sheikh argued the Lanuza decision provides a basis for her lawsuit and that her claims are not meaningfully different from those implicated in that decision. In an opinion by Circuit Judge Kim McLane Wardlaw, the Lanuza court held that a Bivens cause of action could be implied for a government immigration attorney’s falsification of a legal form in a removal proceeding.
Sanchez was not persuaded, noting that the Supreme Court has made clear that a context is new if it is meaningfully different from previous high court cases and lower court decisions do not come into play.
Applying that key aspect of the analysis, he said the Lanuza case is inapplicable. He remarked that “given that the similarities between Lanuza and the instant case begin and end with allegations that evidence was fabricated, Lanuza does not control our decision here.”
Special Factors
As to whether there are special factors indicating that the judiciary is less equipped than Congress to weigh the costs and benefits of allowing a damages claim, Sanchez said:
“In this case, several special factors counsel hesitation in extending Bivens to Dr. Sheikh’s claims. First, Dr. Sheikh’s claims implicate unanswered questions that risk intrusion into the Executive Branch’s investigative and prosecutorial functions….To determine whether defendants’ misconduct caused Dr. Sheikh’s injuries requires review of a causal sequence of events, including defendants’ production of evidence to prosecutors, prosecutors’ internal charging decisions, prosecutors’ presentation of evidence to the grand jury, and the grand jury’s internal deliberations leading to its decision to indict Dr. Sheikh.”
He noted the international concern over human trafficking and remarked that “Dr. Sheikh’s claims against HSI agents give us reason to pause based on the type of investigations HSI carries out and their foreign policy implications.”
Sanchez opined that the alleged wrong could have been redressed by filing a complaint with the federal agency or, had she been successful in having the criminal case dismissed on the merits, by seeking litigation expenses under the Hyde Amendment.
Nelson’s View
Nelson noted that the 2022 Supreme Court decision in Egbert v. Boule made clear that a Bivens cause of action should only apply in the most unusual of circumstances because prescribing a cause of action is a legislative decision. However, he said:
“Because Egbert did not eliminate the ‘special factors’ test, Lanuza is not so inconsistent with Egbert that it can be overruled by a three-judge panel….But that does not mean that Lanuza was correct even pre-Egbert. I have serious doubts that it was. At any rate, the reasoning in Lanuza is impossible to defend post-Egbert.”
He continued:
“Congress’s silence about a remedy for the plaintiff’s injury in Lanuza should therefore give us pause. Lanuza should be read and applied narrowly. It should also be overruled en banc when the opportunity presents itself.”
The case is Sheikh v. U.S. Department of Homeland Security, 22-16983.
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