[00:00:03] Speaker 03:
May it please the court, Yacine Almadani for plaintiff and appellant, Dr. Ferdows-Shake, with me at council table.

[00:00:11] Speaker 03:
I have my co-counsel, Mr. Ibrahim.

[00:00:14] Speaker 03:
I want to apologize to Judge Forrester.

[00:00:17] Speaker 03:
I'm having a little bit of sinus issues, so if I have trouble hearing the question, I apologize in advance.

[00:00:24] Speaker 03:
But I'll do my best.

[00:00:27] Speaker 03:
So if I may, Your Honors, what we are requesting here

[00:00:32] Speaker 03:
is a very narrow remedy in an unusual circumstance.

[00:00:38] Speaker 03:
And binding precedent in this circuit demands reversal, because this court, applying Abbasi, has actually answered the Egbert question.

[00:00:52] Speaker 03:
And this court has held in Linoza that the judicial branch is better suited for remedying circumstances

[00:01:01] Speaker 03:
where a court's integrity is compromised by the submission of false evidence in judicial proceedings.

[00:01:10] Speaker 03:
And this court didn't stop there in Linoza.

[00:01:12] Speaker 03:
It didn't say that the judiciary is just better equipped.

[00:01:15] Speaker 03:
In fact, reading from the court's opinion, the court said, the judicial branch, not Congress or the executive, is responsible, is responsible for remedying circumstances

[00:01:30] Speaker 03:
where a court's integrity is compromised by the submission of false evidence in a judicial proceeding.

[00:01:38] Speaker 01:
Let me ask you this.

[00:01:39] Speaker 01:
When you say that Lanusa is binding on us, are you suggesting that we would not undertake the two-step analysis that Egbert and several Supreme Court decisions have made, have guided lower courts to say whether there's a new Bivens context, and are there special factors?

[00:01:56] Speaker 01:
Would we, in your view, dispense with all that?

[00:02:00] Speaker 03:
In our view, Your Honor, yes, in our view that Lanouza actually is controlling in this case.

[00:02:06] Speaker 01:
And so because Lanouza has decided this precise issue that's before the court, and you know, in analogy... Let me push back on that for a second, because Lanouza involved a government attorney submitting a false document in a court, in a judicial proceeding, in an immigration proceeding.

[00:02:28] Speaker 01:
And here we don't have those allegations.

[00:02:31] Speaker 01:
There are allegations that certain federal officers falsified statements in a declaration or an affidavit in order to obtain an arrest, sorry, a search warrant.

[00:02:45] Speaker 01:
And there are Fourth Amendment claims that are being raised here that were not Lanusa.

[00:02:50] Speaker 01:
So I'm struggling with the notion that Lanusa is controlling, that it's directly on point to what we're dealing with here.

[00:02:57] Speaker 03:
That's a fair question, Your Honor.

[00:02:59] Speaker 03:
And my answer to that would be a fewfold.

[00:03:04] Speaker 03:
First of all, as concerning the Fifth Amendment claim, we would say that Lanouza is controlling.

[00:03:09] Speaker 03:
And to be clear, our position is not just that there was something falsified in a search warrant.

[00:03:15] Speaker 03:
It's that evidence was falsified to have this doctor, this very decorated doctor, indicted.

[00:03:21] Speaker 03:
she was indicted actually because of this false evidence that was proffered.

[00:03:25] Speaker 03:
And her life was thrown into shambles just because of the indictment.

[00:03:30] Speaker 03:
Any of us professionals, if that happened to us, indicted for human trafficking when we've lived a good life, it would throw our entire life into shambles.

[00:03:39] Speaker 03:
But coming back to your question, Your Honor, in Abbasi, and I'm gonna quote Abbasi here, some differences, of course,

[00:03:50] Speaker 03:
will be so trivial that they will not suffice to create a new Bivens context.

[00:03:54] Speaker 03:
So let me come to that Fifth Amendment issue.

[00:03:57] Speaker 03:
In Lanouza, when the court was making its holding, it went, even though it was a deportation proceeding, the court drew its principles from criminal proceedings.

[00:04:10] Speaker 03:
If you look at the Lanouza decision, it's all criminal proceeding principles.

[00:04:14] Speaker 03:
And in terms of the prosecutor,

[00:04:17] Speaker 03:
What the court did, because the prosecutor was claiming absolute immunity, and the court said, no, no, no, Mr. Prosecutor or Mrs. Prosecutor, you were acting in an investigatory role when you decided to falsify and submit this evidence.

[00:04:31] Speaker 03:
Here you actually have the investigators

[00:04:34] Speaker 03:
submitting the evidence.

[00:04:36] Speaker 03:
So Linusa actually analogized to get to where it got using the principles that should be applied in this case that fit squarely here.

[00:04:46] Speaker 01:
But the problem is if we go back to the two-step analysis under Egbert,

[00:04:51] Speaker 01:
You have to look at the new Bivens context from just the three Supreme Court cases, right?

[00:04:57] Speaker 01:
It's not from Lanouza.

[00:04:58] Speaker 01:
It's not from any of those circuit authority.

[00:05:00] Speaker 01:
It's, is there a new context from either Bivens or Passman or Carlson that is being suggested here by a damages remedy?

[00:05:10] Speaker 01:
And it is, because even if it's analogized to criminal proceedings, the Supreme Court hasn't recognized that Bivens damages remedy for falsification of evidence in a criminal proceeding, has it?

[00:05:25] Speaker 03:
Your Honor, again, that's a fair question.

[00:05:26] Speaker 03:
By the way, I didn't reserve, I would reserve five minutes.

[00:05:29] Speaker 03:
But to answer the court's question, I think that

[00:05:33] Speaker 01:
Well, just answer my question.

[00:05:34] Speaker 01:
Has the Supreme Court recognized a Bivens remedy for a prosecutor falsifying evidence in a court proceeding?

[00:05:41] Speaker 01:
No, it is not.

[00:05:41] Speaker 03:
Okay.

[00:05:42] Speaker 03:
Neither an agent.

[00:05:43] Speaker 03:
Okay.

[00:05:43] Speaker 01:
This is different from the... And Lanusa did recognize that in that case, it was a new Bivens context, yes?

[00:05:50] Speaker 01:
It did, it did.

[00:05:50] Speaker 03:
Okay.

[00:05:51] Speaker 03:
So what we're suggesting is case law has developed in this circuit.

[00:05:54] Speaker 01:
Okay.

[00:05:55] Speaker 03:
But it's more, in my view, it's more of an academic inquiry because, again, what we end up with is the Egbert question.

[00:06:05] Speaker 03:
And the Egbert, and let's be clear, Egbert, and I'll quote Egbert, Egbert stated, rather than dispense with Bivens altogether,

[00:06:12] Speaker 03:
It chose not to do that, the Supreme Court.

[00:06:14] Speaker 03:
We have emphasized that recognizing a cause of action under Bivens is a disfavored judicial activity.

[00:06:20] Speaker 03:
That's a quote from Egbert.

[00:06:22] Speaker 03:
So if we're to follow the Supreme Court and be faithful fully to the Supreme Court, not just the part that it's disfavored, but the part that it hasn't really been overruled, and courts should take a serious look at maybe the unusual case where it might be warranted, which is what this court did in Linoza.

[00:06:41] Speaker 01:
And I understand that point.

[00:06:43] Speaker 01:
I just would push back on the notion that we can dispense with a two-step analysis.

[00:06:48] Speaker 01:
And from my standpoint, I think you need to make the argument that, yes, it's in a new Bivens context, but still special factors don't apply.

[00:06:56] Speaker 01:
And we should still go ahead and recognize this damage as remedy.

[00:07:00] Speaker 03:
Allow me to make that argument, Your Honor.

[00:07:02] Speaker 03:
And I appreciate the court's concern.

[00:07:04] Speaker 03:
And I also agree that if we do that, it would be an even more defensible

[00:07:11] Speaker 03:
decision so I agree with the court so let's do the two-step analysis and what what the Supreme Court in Egbert stated is that often the inquiry resolves to a single question and That question I'll quote whether there is any reason to think that Congress might be better equipped to create a damages remedy

[00:07:31] Speaker 03:
And here, the answer is a resounding no.

[00:07:34] Speaker 03:
And this court has already answered that question.

[00:07:36] Speaker 03:
The judicial branch, not Congress or the executive, is responsible for remedying this sort of harm, falsification, submission of falsified evidence before a judicial tribunal.

[00:07:47] Speaker 03:
And that is correct.

[00:07:48] Speaker 03:
And it's such an important and fundamental right in our system, Your Honor.

[00:07:52] Speaker 03:
The Fifth Amendment, the Constitution itself, in black and white, gives the indictment power to a grand jury, which is an arm of the court.

[00:08:00] Speaker 03:
not an arm of the executive.

[00:08:02] Speaker 03:
It is a judicial proceeding and the only role of the executive there is to present truthful and complete information so that the court or the grand jury sitting for the court can dutifully and independently... Let me ask this.

[00:08:17] Speaker 01:
And so the government has created certain remedies that were, some of which were recognized in Egbert.

[00:08:22] Speaker 01:
One of them is

[00:08:23] Speaker 01:
Well, the Hyde Amendment, and then the other one is a code provision that applies to the entire Department of Homeland Security.

[00:08:32] Speaker 01:
Why aren't those alternative remedies dispositive of the question whether a special factor would counsel against recognizing you damage as remedy?

[00:08:43] Speaker 03:
I can answer that, Your Honor.

[00:08:44] Speaker 03:
This, and this is why this is such an unusual case.

[00:08:47] Speaker 03:
The Hyde Amendment, and let me go back to the principle of Egbert.

[00:08:51] Speaker 03:
Again, the Supreme Court uses language very carefully, and the Supreme Court, let me quote, stated in Egbert, Congress has provided alternative remedies for aggrieved parties in Boole's position that independently foreclosed a Bivens action here.

[00:09:08] Speaker 03:
in Boole's position is very important.

[00:09:10] Speaker 03:
So we have to look in Dr. Shake's position.

[00:09:13] Speaker 03:
What is her position?

[00:09:14] Speaker 03:
The Hyde Amendment doesn't apply to her because her position is such that her case was dismissed, not on the merits, but because the government engaged in egregious Brady violations and delayed the case, we were hit with a pandemic.

[00:09:27] Speaker 01:
But see, I think that cuts against you because if her case had been dismissed because of the Brady violations, couldn't she have tried to seek relief under the Hyde Amendment?

[00:09:39] Speaker 03:
Sure, well, I don't know if that would have been a dismissal.

[00:09:43] Speaker 03:
I don't believe that would have been a dismissal on the merits, Your Honor, but she does not.

[00:09:47] Speaker 01:
If the case was dismissed altogether based on Brady violations, that, I mean, the point that I'm trying to reach is just because the available remedies analysis doesn't turn on whether a particular defendant has access to all those remedies.

[00:10:04] Speaker 01:
Doesn't it turn on whether Congress has created alternatives such that the court should not step in and create new damages remedies in addition to?

[00:10:14] Speaker 03:
But it has to be for that class of plaintiff, Your Honor.

[00:10:17] Speaker 03:
Dr. Sheik is not a class of plaintiff for which Congress has created any remedies, and congressional inaction is not a reliable guide to determine legislative intent.

[00:10:27] Speaker 03:
That's a quote from this court's Perdoza opinion, which was quoting U.S.

[00:10:31] Speaker 03:
v. Kraft, the United States Supreme Court.

[00:10:33] Speaker 03:
For Dr. Sheikh's very unusual case, that's why it's such an unusual remedy that we're asking for.

[00:10:38] Speaker 03:
In this unusual case where this innocent woman was charged with fabricated evidence, which goes to the heart of the Constitution and judicial powers, it's the executive that is stepping into the judiciary's lane by submitting false evidence and depriving the judiciary of its ability to independently carry out its duties.

[00:10:58] Speaker 03:
It's a very serious issue.

[00:11:00] Speaker 00:
I think you might be overstating it slightly because what we're talking about is a damages remedy.

[00:11:06] Speaker 00:
I mean, the judiciary is not in any way foreclosed from sanctioning or taking other action for misconduct that happens within the context of the courts.

[00:11:14] Speaker 00:
So it's not like the judiciary is totally impotent here.

[00:11:18] Speaker 00:
It's just a damages remedy that we're talking about.

[00:11:20] Speaker 00:
Don't you agree?

[00:11:21] Speaker 03:
Yes, Your Honor, but the person that's deprived of her reputation and of her life has nothing.

[00:11:28] Speaker 03:
and you know just to uh... i i want to reserve some time to just speak to the you know htfr two eighty seven that's also not available to her because submission of false evidence is not one of the enumerated

[00:11:41] Speaker 03:
you know issues that you can complain for and the agents by the time her case was dismissed were retired so she couldn't even complain about them she's in a very unique context so if this court relies on Lanouza and says this in this very unique context because this woman you know person in doctor shakes position quoting the supreme court does not have any other available remedies she would be completely out

[00:12:05] Speaker 03:
in this very limited context, we would extend a Bivens remedy.

[00:12:09] Speaker 03:
I think this court would be faithful to Lanouza, to the Constitution, even to Egbert, which suggests that there are those unusual circumstances, and it would be so limited, there would be no deluge of cases.

[00:12:23] Speaker 03:
I would reserve time to respond.

[00:12:26] Speaker 01:
Thank you.

[00:12:41] Speaker 02:
Good morning, and may it please the court, Joseph Free for the appellees.

[00:12:45] Speaker 02:
This case presents a new Bivens context.

[00:12:48] Speaker 02:
It's not an employment discrimination case like Davis or Passman.

[00:12:52] Speaker 02:
It's not a deliberate indifference case like Carlson.

[00:12:55] Speaker 02:
And even though it arises in the law enforcement context, it's not Bivens.

[00:12:58] Speaker 02:
Just having a different law enforcement agency is enough to take this case.

[00:13:02] Speaker 02:
outside of Bivens as this court held in Mejia.

[00:13:05] Speaker 02:
And we've identified numerous other meaningful differences between this case and the Supreme Court's three Bivens cases in our brief.

[00:13:12] Speaker 02:
So because we're in a new context, this court faces one question.

[00:13:16] Speaker 02:
Is there any rational reason, even one, why Congress might be better suited to decide whether or not to create a damages remedy in this kind of case?

[00:13:28] Speaker 02:
The answer is yes.

[00:13:29] Speaker 02:
There are several rational reasons.

[00:13:31] Speaker 02:
First, what I think is the lower hanging fruit here is the fact that Dr. Sheikh's claims implicate the fields of national security and foreign affairs, especially in the wake of Egbert and how Egbert analyzed this special factor.

[00:13:47] Speaker 02:
In Egbert, the Supreme Court held that practically any Bivens claim

[00:13:52] Speaker 02:
against a border patrol agent is not cognizable because of the border patrol's unique role vis-a-vis national security.

[00:13:59] Speaker 02:
Even a run-of-the-mill conventional excessive force claim where literally a border patrol agent shoved an American citizen on American soil.

[00:14:09] Speaker 02:
If that kind of claim is not cognizable because of national security concerns, a type of claim that is heard day in and day out in courts across the country under section 1983 against state actors,

[00:14:21] Speaker 02:
If that type of claim is not cognizable under Bivens, then certainly these claims are not cognizable, where they're directed at the Homeland Security investigations, the principal investigative arm of the Department of Homeland Security.

[00:14:36] Speaker 02:
and seeks to directly challenge the investigation and prosecution of trafficking and harboring undocumented foreign nationals and obstructing an investigation into the same, and also challenging the way in which IHS agents utilize Congress's TV sub-program to provide temporary legal status to the victims of such crimes as they assist in the investigation and prosecution.

[00:15:03] Speaker 02:
And that's enough, Your Honor.

[00:15:05] Speaker 02:
new context, and at least one rational reason why Congress might be better suited to create a damages cause of action in this context.

[00:15:17] Speaker 02:
But there's more.

[00:15:18] Speaker 02:
There's also the existence of alternative remedial structures created by both the executive branch and by Congress.

[00:15:26] Speaker 02:
First, I wanted to address the Department of Homeland Security's grievance process, 8 CFR section 287.10,

[00:15:35] Speaker 02:
Now, Dr. Sheik contended for the first time in her reply brief on appeal that this grievance process doesn't apply here because she does not challenge or her claims do not allege the violation of a law enforcement standard in 287.8.

[00:15:54] Speaker 02:
This is wrong.

[00:15:55] Speaker 02:
But before I explain why, I have to point out this is waived.

[00:15:58] Speaker 02:
We raised 287.10 as an alternative remedial structure in our motion to dismiss.

[00:16:03] Speaker 02:
Dr. Sheik never raised this argument in her opposition, never raised it at the hearing.

[00:16:07] Speaker 02:
And even though the district court relied on 287.10 as an alternative remedial structure, Dr. Sheik never raised this argument in her opening brief.

[00:16:16] Speaker 02:
It's only at the reply brief that we're seeing this argument.

[00:16:18] Speaker 02:
But in any event,

[00:16:19] Speaker 02:
It's incorrect, and that's because in Section 287.8C2R1, that law enforcement standard governs the conduct of arrests, and it provides that persons cannot be arrested unless there is reason to believe that they committed an offense against the United States.

[00:16:38] Speaker 02:
Well, Dr. Sheik asserts a false arrest claim in her complaint at Excerpts of Record 204,

[00:16:43] Speaker 02:
contending that she was arrested without probable cause because the evidence against her was allegedly fabricated.

[00:16:50] Speaker 02:
So clearly, she does assert that one of the law enforcement standards that HSI agents are obliged to follow was violated.

[00:16:59] Speaker 01:
Are the regulations broadly worded enough to even encompass non-arrest?

[00:17:04] Speaker 01:
You know, it falsified evidence to obtain a search warrant improperly?

[00:17:09] Speaker 02:
Well, I would point the honor to 287.4

[00:17:13] Speaker 02:
which incorporates all DHS and DOJ guidelines and policies as law enforcement standards.

[00:17:22] Speaker 02:
And I would submit that at least one of those policies and standards probably prohibits fabricating evidence.

[00:17:28] Speaker 02:
And I wish I could be more specific, but again, Dr. Shaikh only raised this argument in her reply brief on appeal.

[00:17:34] Speaker 01:
What do you make of counsel's argument that these alternative remedies should actually apply to a defendant in their position?

[00:17:42] Speaker 02:
Well, Your Honor, I think as you alluded to in your questioning, that's not precisely the question.

[00:17:47] Speaker 02:
The question is whether or not, it's not whether a particular remedy applies to a particular plaintiff, in a Bivens case, in a particular case.

[00:17:56] Speaker 02:
It's whether or not Congress or the executive have acted in the space.

[00:18:01] Speaker 02:
I would refer the Court to the Chamber's decision, which states that

[00:18:07] Speaker 02:
Any decision by Congress or the executive not to create and express cause of action where it has legislated suggests they have decided against creating such an action.

[00:18:16] Speaker 02:
This is a rational reason to think Congress is better suited to weigh the costs and benefits of a new cause of action in this space.

[00:18:24] Speaker 02:
So not only do we have DHS's administrative grievance process, we have another grievance process.

[00:18:30] Speaker 02:
I want to make sure that it's clear here.

[00:18:33] Speaker 02:
There's the 287.10, but there's also the ability to submit complaints to the Department of Homeland Security's Office of Inspector General

[00:18:42] Speaker 02:
and director of or officer of civil rights and civil liberties as this court noted in the Pettibone decision when it concluded that there existed the alternative remedial structures.

[00:18:56] Speaker 02:
That's a different

[00:18:58] Speaker 02:
complaint process that is available.

[00:19:01] Speaker 02:
At the time of Dr. Shake's case and at the time of Pettibone, it was codified at Appendix 3 to Title 5 of the US Code.

[00:19:10] Speaker 02:
After December of 2022, it was recodified at 5 USC 417.

[00:19:16] Speaker 02:
So there's another administrative grievance process there.

[00:19:19] Speaker 02:
I will say that Pettibone came out after this district court's decision.

[00:19:23] Speaker 02:
This court is able to look at additional remedial structures per Egbert's footnote three.

[00:19:30] Speaker 02:
287.10, although it was considered an Egbert, was never raised below in the Ninth Circuit.

[00:19:38] Speaker 02:
But Justice Thomas, in his majority decision in footnote three, said because the court has its own concomitant duty to decide whether or not to create a new damages remedy is free to look at other potential alternative remedial structures.

[00:19:53] Speaker 02:
And so we have the executive's creation of alternative remedial structures.

[00:19:57] Speaker 02:
We also have Congress's actions in this space.

[00:20:00] Speaker 02:
We have the Hyde Amendment.

[00:20:01] Speaker 02:
We have the ability to submit a complaint for false imprisonment in the court of federal claims.

[00:20:09] Speaker 02:
Certainly not all of these remedies are available to Dr. Shaikh.

[00:20:12] Speaker 02:
I would contend that the ability to submit a complaint to DHS, whether through 287.10 or through the other grievance process, are available to her.

[00:20:24] Speaker 02:
I don't see why they wouldn't be, and these individual agents and their conduct could be investigated, and such investigations have resulted in criminal charges in the past.

[00:20:36] Speaker 02:
So, insofar as the Bivens remedy is all about deterrence, criminal prosecution, I can't think of any better deterrent than that.

[00:20:46] Speaker 02:
So we've discussed the fact that Dr. Sheikh's claims arise in the fields of national security and foreign affairs.

[00:20:54] Speaker 02:
We've addressed the fact that there exists alternative remedial structures in this space.

[00:20:58] Speaker 02:
The next factor that I think counsel's hesitation here is the fact that Dr. Sheikh's claims

[00:21:04] Speaker 02:
present an intrusion into law enforcement prerogatives.

[00:21:07] Speaker 02:
And this special factor has been recognized by numerous circuits.

[00:21:12] Speaker 02:
We have the Third Circuit in the Shee versus Wagon case, the Fourth Circuit in the Anna Peretti case, the Eighth Circuit in Farah and Ahmed, and we also have district courts in this circuit, the Lowe case and the Libman case, and in the Second Circuit.

[00:21:26] Speaker 01:
Now, Dr. Shaikh argues... Now, these are the cases that I think your 2018 letter referred to, the fabrication of evidence cases.

[00:21:33] Speaker 02:
Since the filing of our answering brief, some additional cases had come out, and our 28-J letter includes those.

[00:21:41] Speaker 02:
The majority of these, however, are in our answering brief, I believe at footnote four, page 31, that collects these authorities from other circuits.

[00:21:48] Speaker 02:
Now, Dr. Shaikh argues that the facts underlying her

[00:21:55] Speaker 02:
Bivens claims here are largely in the public domain because of attachments that in the criminal proceeding, various attachments to the suppression motions and the Brady motions are largely in the public domain.

[00:22:10] Speaker 02:
And as such, there wouldn't be an extensive intrusion into law enforcement prerogatives.

[00:22:17] Speaker 02:
But I think that falls into the trap that Egbert explained, which is you're

[00:22:22] Speaker 02:
The role of the court is not to assess or measure the degree of intrusion into executive or congressional prerogatives in a particular case.

[00:22:34] Speaker 02:
What the court's role is, is to identify the existence of potential intrusion in these types of cases.

[00:22:41] Speaker 02:
And so I think that Dr. Sheikh's argument that the facts underlying her claims are in the public domain misses that point.

[00:22:48] Speaker 01:
But even if we were to- I take it your argument is the risk of intrusion is that it would have to delve into reasons why prosecutors brought forward charges or sought indictment or other things within the executive branch is prerogative.

[00:23:04] Speaker 02:
Yes, Your Honor, because it's our position that, well, let me take a step back.

[00:23:10] Speaker 02:
The evidence that was allegedly fabricated in this case all has to do with a theory of physical coercion being imposed on Prakash and Alfredo, a physical coercion theory of forced labor.

[00:23:26] Speaker 02:
which was recounted in a search warrant affidavit in 2013, and also in support of T visa applications in 2014.

[00:23:35] Speaker 02:
Dr. Sheikh's indictment came down in 2018, and it's our position that the charges against her were brought based on economic coercion, withholding these men's wages, as well as legal coercion, threatening them with arrest and deportation.

[00:23:52] Speaker 02:
Dr. Sheikh disagrees, Dr. Sheikh contends that

[00:23:55] Speaker 02:
these charges would not have been brought, these trafficking charges would not have been brought without the alleged fabricated evidence of physical coercion and without the trafficking charges, moreover,

[00:24:06] Speaker 02:
the harboring and obstruction and false statement charges would also not have been brought.

[00:24:11] Speaker 02:
So there's a dispute here.

[00:24:12] Speaker 02:
In order to litigate and defend this case would involve intrusion into prosecutorial deliberation as well as grand jury secrecy.

[00:24:20] Speaker 02:
Now, Dr. Sheik has contended that the grand jury is an arm of the judiciary.

[00:24:26] Speaker 02:
And what I understand that argument to be is that no hesitation is counseled here because

[00:24:31] Speaker 02:
There's no intrusion.

[00:24:32] Speaker 02:
The grand jury is just part of the judicial branch.

[00:24:35] Speaker 02:
But that's just incorrect.

[00:24:37] Speaker 02:
I'd refer the court to Justice Scalia's opinion in United States versus Williams.

[00:24:42] Speaker 02:
The grand jury is an independent body.

[00:24:44] Speaker 02:
It doesn't fall into any of the branches of government.

[00:24:47] Speaker 02:
And instead, both the executive and the judiciary play complementary roles.

[00:24:53] Speaker 02:
And who better than Congress to mediate those complementary roles?

[00:24:57] Speaker 02:
In fact, it's Congress who has legislated vis-a-vis

[00:25:00] Speaker 02:
grand jury secrecy in the form of Federal Rule of Criminal Procedure 6E, as well as 18 USC 3322.

[00:25:08] Speaker 02:
And if Congress is the one legislating with respect to when grand jury secrecy can be overcome, then certainly it would seem to be at least rational that Congress would be better suited to be the one to create or decide to create a cause of action that would directly implicate grand jury secrecy.

[00:25:30] Speaker 01:
Let me ask you, does this panel need to get into any question of whether Lanusa binds our decision in recognizing a damages remedy or not?

[00:25:42] Speaker 02:
No, Your Honor.

[00:25:42] Speaker 02:
I think that Lanusa is readily distinguishable from this case.

[00:25:47] Speaker 02:
In Lanusa, the court found that there were no national security or foreign affairs implications.

[00:25:53] Speaker 02:
Here, especially in light of Egbert, there are.

[00:25:56] Speaker 02:
In Lanusa, the court held that there were no alternative remedial structures in existence that counseled hesitation.

[00:26:03] Speaker 02:
Here, there are, there's a constellation of alternative remedial structures that certainly counsel the judiciary to stay its hand before intruding in this space.

[00:26:14] Speaker 02:
And in Lanusa, the court went out of its way to find that there was no intrusion into executive prerogatives by creating the cause of action in that case, because in fact, Lanusa went out of its way to suggest that the executive and the judiciary were aligned in that case.

[00:26:31] Speaker 02:
that there'd be no intrusion.

[00:26:32] Speaker 02:
So to your question, Your Honor, I don't believe that... I think that Lanusa is distinguishable enough that this court can affirm the district court's judgment below without needing to decide whether or not Lanusa is or is not good law anymore.

[00:26:50] Speaker 01:
Okay.

[00:26:50] Speaker 01:
Well, I have no other questions.

[00:26:52] Speaker 01:
Let me see if Judge Forrest has anything.

[00:26:55] Speaker 02:
Thank you.

[00:26:55] Speaker 02:
I would just reiterate this case is unlike any of the Supreme Court's three Bivens cases and there are numerous rational reasons why Congress would be better suited to create a damages remedy in this space.

[00:27:08] Speaker 02:
Thank you very much.

[00:27:09] Speaker 01:
Thank you, Mr. Fray.

[00:27:29] Speaker 03:
Your Honor, thank you again.

[00:27:31] Speaker 03:
I'm going to try to move fast because I have little time.

[00:27:35] Speaker 03:
Just to be clear, false evidence here was presented to obtain an indictment, which is a far greater intrusion into what happened to Dr. Sheik than just a search warrant.

[00:27:45] Speaker 03:
So it is, and it did have massive implications on her life.

[00:27:50] Speaker 03:
The national security issue, that's a red herring.

[00:27:53] Speaker 03:
What are we saying?

[00:27:53] Speaker 03:
The issue here is that

[00:27:56] Speaker 03:
Agents submitted perjury certifications to have folks who were here undocumented, who were looking for benefits, immigration benefits, lied about a citizen to have her criminally prosecuted.

[00:28:08] Speaker 03:
And if we curb that activity that has national security implications, it does not.

[00:28:13] Speaker 03:
It's so narrow.

[00:28:15] Speaker 03:
In this particular case, Your Honor, if agents want to provide benefits and provide perjury certifications to USCIS, that's fine.

[00:28:24] Speaker 03:
But when they do it for the purpose of then bringing that person into court and lying to the court and committing perjury, that's when we're now in the lane of the judiciary, not the executive anymore.

[00:28:35] Speaker 03:
In terms of alternative remedies, 287, these agents are retired.

[00:28:39] Speaker 03:
That is not available to Dr. Shaikh.

[00:28:41] Speaker 03:
That, again, is why this is so very narrow.

[00:28:44] Speaker 03:
Council stated that there's probably some complaint procedure.

[00:28:51] Speaker 03:
It's not.

[00:28:51] Speaker 03:
It's not available to her.

[00:28:53] Speaker 03:
They were no longer there.

[00:28:55] Speaker 03:
In terms of congressional intent, council stated the law, and I don't believe that what council stated was correct.

[00:29:07] Speaker 03:
And I'll quote from the Ninth Circuit.

[00:29:10] Speaker 03:
Council stated, quote of Chambers, that's a 2023 case.

[00:29:13] Speaker 03:
The quote here is, Congressional inaction is not a reliable guide to determine legislative intent.

[00:29:19] Speaker 03:
That is the Perdoza case, 6-24, F-3 at 9-33, which quotes the Supreme Court, an older case in chambers, U.S.

[00:29:27] Speaker 03:
v. Kraft, 5-35 U.S.

[00:29:29] Speaker 03:
at 2-87.

[00:29:30] Speaker 03:
Dr. Shake has no remedy available because nobody could have thought of her particular situation.

[00:29:36] Speaker 03:
It is unusual.

[00:29:37] Speaker 03:
It happens every hundred years.

[00:29:38] Speaker 03:
She was a victim of not only Brady violations, but the pandemic hitting at that time.

[00:29:43] Speaker 03:
And that's why her case was dismissed as it was dismissed.

[00:29:46] Speaker 03:
And in the order, the court found that

[00:29:49] Speaker 03:
the court could understand why she would be so frustrated at not bringing the case.

[00:29:54] Speaker 03:
And to this issue of economic harm, no, if the court reads our reply at the end, we quote the district court.

[00:30:04] Speaker 03:
Their entire case was built on force and all of that, but those are factual issues.

[00:30:09] Speaker 03:
Right now, we're here to really decide whether Lanusa has answered the expert question, and it has.

[00:30:16] Speaker 03:
And even if we analyze it in a new context, we can't ignore Lanusa.

[00:30:20] Speaker 03:
The issue of intrusion into executive activities, that also is a red herring, Your Honor, because we are not hearing

[00:30:32] Speaker 03:
There are well-established standards in Devereux.

[00:30:35] Speaker 03:
If this were a 1983 case, we would peer into grand jury transcripts.

[00:30:39] Speaker 03:
We would peer into prosecutorial decisions.

[00:30:43] Speaker 03:
That's what we would do.

[00:30:44] Speaker 03:
There are well-established standards there.

[00:30:46] Speaker 03:
And here, grand jury secrecy does not bar that.

[00:30:50] Speaker 03:
The counsel is incorrect.

[00:30:51] Speaker 03:
The Supreme Court has ruled that the grand jury is an arm of the court.

[00:30:57] Speaker 01:
But how would you get to resolving this seeming dispute as to what were the grounds by which prosecutors sought an indictment?

[00:31:07] Speaker 01:
I know you're saying it was forcibly keeping these people on the property and the government is saying it was more economic related, but how would one even get to those questions without delving into internal matters of the executive branch?

[00:31:27] Speaker 03:
Because, Your Honor, what would the grand jury or the petty jury would sit and decide whether presented with, you know, all of the facts, whether a reasonable person could have come to a probable cause conclusion.

[00:31:41] Speaker 03:
I think that, and if this were a 1983 case, which have been, that there are 1983 case based on this Fifth Amendment issue where there's fabrication of evidence.

[00:31:50] Speaker 03:
And if it were, we would easily look into that evidence.

[00:31:53] Speaker 03:
Grand jury transcripts would be unsealed for that reason.

[00:31:56] Speaker 03:
That actually happens and we do it in 1983 cases.

[00:32:00] Speaker 03:
It's just that we have this development in the Bivens law.

[00:32:03] Speaker 03:
But, you know, this development doesn't preclude Dr. Sheikh's case because Lanusa answers the Egbert question.

[00:32:10] Speaker 03:
And when you look at somebody in Dr. Sheikh's position,

[00:32:14] Speaker 03:
the egregious harm that's occurred to her, she has no other remedy.

[00:32:18] Speaker 03:
Nothing was available.

[00:32:19] Speaker 03:
Nobody thought of a person in her position.

[00:32:22] Speaker 03:
They couldn't have.

[00:32:23] Speaker 03:
It's so limited and so narrow that what we're asking the court to do here is fashion a very narrow remedy based on binding precedent in the circuit.

[00:32:37] Speaker 01:
Okay.

[00:32:37] Speaker 01:
Anything else?

[00:32:39] Speaker 01:
No, your honor.

[00:32:40] Speaker 01:
Thank you.

[00:32:40] Speaker 01:
Thank you council.

[00:32:41] Speaker 01:
Thank you both for your helpful arguments the matter will stand submitted