Sheikh v. U.S. Dep't of Homeland Sec.

106 F.4th 918

Firdos SHEIKH, Plaintiff-Appellant, v. U.S. DEPARTMENT OF HOMELAND SECURITY; Carol Webster, Special Agent of U.S;Eugene Kizenko, DHS Special Agent, Defendants-Appellees.

No. 22-16983

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 5, 2024 San Francisco, California

Filed July 5, 2024

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding, D.C. No. 2:22-cv-00409-WBS-AC

Yasin M. Almadani (argued), Almadani Law, Newport Beach, California; Ahmed Ibrahim, AI Law PLC, Newport Beach, California; for Plaintiff-Appellant.

Joseph B. Frueh (argued), Assistant United States Attorney; Phillip A. Talbert, United States Attorney; Eastern District of California, Office of the United States Attorney, Sacramento, California; for Defendants-Appellees.

Before: Ryan D. Nelson, Danielle J. Forrest, and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez;

Concurrence by Judge R. Nelson

OPINION

SANCHEZ, Circuit Judge:

Plaintiff Doctor Firdos Sheikh appeals from the district court's dismissal of her Fourth and Fifth Amendment claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants Carol Webster and Eugene Kizenko, former special agents with the Department of Homeland Security Investigations (HSI). Dr. Sheikh alleges that defendants fabricated evidence in a search warrant affidavit and submitted misleading reports to prosecutors that resulted in her arrest and criminal prosecution. Applying the Supreme Court's two-step framework articulated in Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), the district court concluded that Dr. Sheikh's claims arose in a new context and that special factors counselled against extending a Bivens damages remedy to her claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Because the district court dismissed Dr. Sheikh's claims at the motion to dismiss stage, we accept as true the facts as alleged in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A.

On July 1, 2013, HSI agents Webster and Kizenko conducted a warrantless search of Dr. Sheikh's 20-acre ranch in Elk Grove, California, investigating a lead about workers being held against their will.¹ During the search, defendants interviewed three undocumented men, named "Gildardo," "Prakash," and "Alfredo," who worked for Dr. Sheikh and claimed to be victims of human trafficking. According to Dr. Sheikh, the three men made statements that were materially inconsistent with each other's, and were at odds with defendants' observations of the working conditions on the ranch. For example, Prakash and Alfredo stated that they were forced to work 10-to-12-hour days, seven days a week, and were not free to leave because the gates to the property were secured with chains and padlocks. However, defendants observed that the men could walk on and off the property freely and their investigation revealed there was significantly less work to do than what the men asserted.

On July 8, 2013, Agent Kizenko obtained a search warrant for Dr. Sheikh's ranch, making numerous materially false statements in the search warrant application. After conducting a second search of the ranch, defendants wrote reports for prosecutors that intentionally omitted exculpatory evidence and credited Prakash and Alfredo's clearly false and exaggerated statements that they were held against their will and forced into labor by Dr. Sheikh. Defendants also supported Prakash and Alfredo's T-Visa applications to secure their presence in the United States to testify against Dr. Sheikh.² In the process of supporting their T-Visa applications, Agent Webster provided perjurious certifications to the United States Citizenship and Immigration Services indicating that Prakash and Alfredo endured sweatshop-style working hours on a locked-down compound.

B.

In June 2018, Dr. Sheikh was charged with two counts of trafficking with respect to forced labor under 18 U.S.C. § 1590(a), two counts of harboring for financial gain under 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i), one count of obstructing a forced labor investigation under 18 U.S.C. § 1590(b), and one count of making false statements under 18 U.S.C. § 1001. The charges arose from Alfredo and Prakash's allegations that Dr. Sheikh harbored them and forced them to work on her property between 2008 and 2013 through various means. The charges were eventually dismissed in October 2020. Because the district court's dismissal of the charges gave rise to Dr. Sheikh's Bivens claims, we discuss what transpired in those proceedings.

Dr. Sheikh moved to dismiss the indictment based on the government's failure to disclose exculpatory evidence that undermined the government's claim that she had employed physical force, restraint, harm, or threats against Prakash and Alfredo. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).³ Following an evidentiary hearing, the district court denied Dr. Sheikh's motion to dismiss. Although the court concluded that the government should have disclosed material evidence tending to show that the alleged victims were free to leave the premises of their own accord and did not work 12-to-14-hour days, the court declined to dismiss the indictment. The district court determined that dismissal was not appropriate because the government had disclosed the exculpatory evidence well in advance of trial, the government attorneys did not appear to have made any intentionally or recklessly false statements to the court, and the previously undisclosed material was not as obviously Brady material as in other cases warranting dismissal. To limit the impact of the government's untimely disclosure, the district court postponed hearings and expressed a willingness to reopen proceedings on the pretrial motions already decided.

In August 2020, the district court denied Dr. Sheikh's amended motion to suppress evidence arising out of the July 9, 2013, search of her property. Dr. Sheikh alleged that the search warrant application omitted key facts which tended to undermine the warrant affidavit's portrayal of forced labor and jail-like conditions, in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).⁴ After conducting a Franks hearing, the district court expressed "grave[ ]" concerns about certain omissions in the warrant affidavit that cast "some doubt" on Prakash and Alfredo's credibility. The court determined that Agent Kizenko recklessly omitted certain facts from the search warrant application and should have known that his affidavit overstated the gravity of the physical force, restraint, harm or threats used by Dr. Sheikh against Prakash and Alfredo. Notwithstanding these omissions, the district court found that probable cause supported a search of Dr. Sheikh's property and denied her Franks motion. The district court observed that forced labor under 18 U.S.C. § 1589 may be established by means other than physical violence, and there was a "fair probability" that a search of Dr. Sheikh's property would result in "evidence of forced labor via financial or immigration harm."

On October 9, 2020, upon Dr. Sheikh's motion, the district court dismissed without prejudice her indictment under the Speedy Trial Act, 19 U.S.C. § 3161. The district court reasoned that the ends of justice required dismissal because, had the government timely disclosed all Brady material, the case would have proceeded to trial before the suspension of all trials in the district occasioned by the COVID-19 pandemic. The government did not re-indict Dr. Shiekh.

C.

In March 2022, Dr. Sheikh brought a civil action asserting two Bivens claims against defendants: Fourth and Fifth Amendment violations based on her arrest and prosecution, respectively, resulting from defendants' fabrication of evidence.⁵ In August 2022, defendants moved to dismiss Dr. Sheikh's claims primarily arguing that they presented an improper extension of Bivens. In November 2022, after holding a hearing on the motion, the district court granted defendants' motion to dismiss with prejudice.

In dismissing Dr. Sheikh's claims against defendants, the district court employed Abbasis two-step test, which the Supreme Court clarified in Egbert v. Boule, 596 U.S. 482, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022), to determine whether an implied cause of action exists under Bivens outside of the narrow contexts the Court has already recognized. Applying Abbasi and Egbert, the district court held that Dr. Sheikh's claims arose in a new context and that special factors indicated that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed. As for the special factors counseling against extending Bivens to Dr. Sheikh's claims, the district court emphasized "[f]oremost" the existence of remedial processes provided by the administrative complaint procedures in 8 C.F.R. § 278.10(a)-(b) and the Hyde Amendment, Pub L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A Note). Relying on Egbert, the district court further determined that allowing a Bivens claim against DHS employees could have potentially systemwide consequences for DHS's ability to investigate and prosecute cross-border human trafficking and enforce immigration laws. Ultimately, the district court rejected Dr. Sheikh's invitation to permit Bivens claims against defendants for fabrication of evidence, concluding that "Congress . . . is much better equipped than the courts to fashion a remedy tailored to address this particular concern." The district court dismissed Dr. Sheikh's claims without leave to amend.

II.

"We review de novo a district court's order granting a motion to dismiss for failure to state a claim under Federal Rule of Civil...