     Case: 18-40434   Document: 00515064162        Page: 1   Date Filed: 08/05/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 18-40434                     August 5, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
DANIEL ENRIQUE CANTÚ,

             Plaintiff-Appellant,


v.


JAMES M. MOODY; ERIN S. LABUZ, also known as Erin S. Hayne; NATHAN
HUSAK; DAVID DE LOS SANTOS; RYAN PORTER; ROSA LEE GARZA;
ALFREDO BARRERA; UNITED STATES OF AMERICA; CHRISTOPHER
LEE,

             Defendants-Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas



Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      Daniel Enrique Cantú is a member of the Texas Mexican Mafia. He says
the U.S. Constitution and federal civil rights laws afford him money damages
against state and federal law enforcement officers for claims arising from a
drug bust. We disagree.
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                                  No. 18-40434
                                        I.
                                       A.
        This case arises from a transnational drug-trafficking investigation. In
2010, the federal government began investigating the Texas Mexican Mafia.
As part of its investigation, the government identified Jesus Rodriguez
Barrientes as the gang’s leader in the Rio Grande Valley. Working with state
and local law enforcement, the FBI planned a sting operation as part of
Barrientes’s regular heroin purchases from Mexican drug smugglers.
        FBI agents convinced Juan Pablo Rodriguez, a member of the Texas
Mexican Mafia, to work as an informant. When Barrientes’s heroin shipment
arrived, Rodriguez would meet the drug smugglers at the border and then drive
everyone to a drop-off location. There Rodriguez would deliver the heroin to
whomever Barrientes designated as his authorized recipient.
        On the morning of August 10, 2011, things went mostly according to
plan. Rodriguez, accompanied by an undercover police officer, drove to the Rio
Grande where he met the drug smugglers. Then, at 7:30 a.m., Rodriguez called
Cantú and asked him to come to an H-E-B parking lot so they could talk in
person. According to Cantú, Rodriguez did not say what he wanted to talk
about.
        When Cantú arrived, he parked to the left of Rodriguez’s car and rolled
down his passenger-side window. Rodriguez then got out of his car, went to
the trunk, took out a cooler, and placed it through Cantú’s open window and
onto the passenger seat. “I need you to do me a favor,” Rodriguez allegedly
said.    Cantú says he had time to ask only one question—“What are you
doing?”—before forty-five law enforcement officers descended on his vehicle.
One of the officers, FBI Agent David de los Santos, pulled Cantú from his car,
searched him, and placed him under arrest. The cooler contained nearly two
kilograms of heroin.
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                                  No. 18-40434
      Although Cantú says he remained in his car the whole time and never
touched the cooler, two federal agents swore otherwise in affidavits. FBI Agent
James Moody said Cantú exited his vehicle and personally took the cooler from
Rodriguez’s trunk. FBI Agent Erin LaBuz said Rodriguez handed the cooler to
Cantú, who personally placed it in his passenger seat.
      A federal grand jury indicted Cantú, Barrientes, his wife, and two
smugglers for possession of heroin with intent to distribute and conspiracy.
Barrientes, his wife, and one of the smugglers pleaded guilty and were sent to
federal prison. Cantú elected to stand trial. On October 31, 2013, a federal
jury acquitted him. By that time, he had spent more than two years in jail.
                                       B.
      Cantú then sued a slew of defendants under Bivens, the Federal Tort
Claims Act, § 1983, § 1985, and state law. In the complaint, he alleged twenty-
one claims under the Fourth Amendment, Fifth Amendment, Fourteenth
Amendment, and various tort theories—like malicious prosecution, false
arrest, false imprisonment, assault, civil conspiracy, conversion, and
negligence. And he offered his theory of how he went from his bed to a grocery
store to a jail cell: Forty-five officers jeopardized a sophisticated, multi-year,
multi-jurisdictional sting operation aimed at a transnational gang to frame an
otherwise-innocent member of the Texas Mexican Mafia in an effort “to
improve each of their professional arrest and conviction rate records against
drug traffickers.” However far-fetched that might seem, we take Cantú’s well-
pleaded allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009).
      Cantú alleges he was never the intended recipient of the heroin. He says
Rodriguez, while driving to the H-E-B, tried and failed to get in touch with the
actual recipient.    So he called Cantú instead.     The gravamen of Cantú’s
complaint is that officers who were privy to Rodriguez’s audible—and Cantú’s
professed ignorance about why he was being called to the grocery store—knew
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Cantú was not the guy who was supposed to show up that morning. Yet they
permitted him to be arrested and then doubled down, fabricating facts about
Cantú’s behavior to create the impression he was the guy.
       After several hearings, the district court dismissed all of Cantú’s claims
against all fifteen federal, state, and county defendants.                 It also granted
Cantú’s motion to voluntarily dismiss (with prejudice) his claims against the
only remaining defendant—the private company that operated the prison
where he was housed before trial. The court further denied Cantú’s request to
file a Fourth Amended Complaint. It later filed four separate dismissal orders.
Cantú appealed the orders dismissing the federal, state, and county
defendants. 1
                                              II.
       In his briefs before our Court, Cantú pursues only a subset of his claims
against only a subset of the defendants—FBI Agent James Moody, FBI Agent
Erin LaBuz, FBI Agent David de los Santos, and Texas DPS Officer Alfredo
Barrera. He has forfeited everything else. See United States v. Vazquez, 899
F.3d 363, 380 n.11 (5th Cir. 2018) (holding appellant’s “failure to clearly




       1  In his notice of appeal, Cantú says “FINAL JUDGMENT has not been entered.” But
in his opening brief he argues we have jurisdiction pursuant to a final judgment. Cantú does
not explain the discrepancy, nor do the defendants. It’s possible Cantú thought the four
dismissal orders did not satisfy the separate-judgment requirement of Federal Rule of Civil
Procedure 58(a). But it doesn’t matter that each “order [was] denominat[ed] as an ‘order,’
rather than a ‘judgment.’ ” Local Union No. 1992 of Int’l Bhd. of Elec. Workers v. Okonite Co.,
358 F.3d 278, 285 (3d Cir. 2004). And in all events, parties are “free to waive” Rule 58, as
they have here. Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 (1978); see also FED. R. APP. P.
4(a)(7)(B); Orr v. Plumb, 884 F.3d 923, 931 (9th Cir. 2018). The real restriction on our
jurisdiction is § 1291, which is entirely distinct from Rule 58(a). See Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 379 (1981); 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
& PROCEDURE § 2785 (3d ed. 2019) (“Rule 58 states how a judgment is entered. It does not
speak to whether a judgment entered in this fashion is a ‘final judgment’ for purposes of
appeal.”). Like the parties, we have no doubt the district court’s dismissal orders constitute
its “final decision” under § 1291.
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                                  No. 18-40434
identify [an issue] as a potential basis for relief forfeits the argument on
appeal”).
      We review the dismissal of Cantú’s claims de novo. Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). We start with his
§ 1985 claim against the federal officers. It fails under Federal Rule of Civil
Procedure 12(b)(6). Second, we address his § 1983 claims against Barrera.
They fail under the same standard. Third, we hold the purported Bivens claim
against Moody and LaBuz is not cognizable.
                                       A.
      Cantú alleges the federal defendants—Moody, LaBuz, and de los
Santos—conspired to violate his civil rights under 42 U.S.C. § 1985(3). But he
has two problems. Under our precedent, § 1985(3) does not cover every kind of
defendant. And its plain text doesn’t cover every kind of conspiracy.
      Our precedent holds § 1985(3) does not apply to federal officers. In Mack
v. Alexander, 575 F.2d 488 (5th Cir. 1978) (per curiam), we concluded § 1983
and § 1985 “provide a remedy for deprivation of rights under color of state law
and do not apply when the defendants are acting under color of federal law.”
Id. at 489; accord Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971). Other
circuits have criticized that holding for failing to grapple with Supreme Court
precedent. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 176 n.13 (2d Cir. 2007), rev’d
on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Ogden v.
United States, 758 F.2d 1168, 1175 n.3 (7th Cir. 1985). And the Supreme Court
recently assumed § 1985(3) applies to federal officers. See Ziglar v. Abbasi,
137 S. Ct. 1843, 1865–69 (2017). Mack may not have aged well, but we need
not decide whether it remains binding on us.
      Even if we were inclined to ignore Mack, Cantú’s claim would fail for an
independent reason.      The relevant text of § 1985(3) criminalizes only
conspiracies that involve depriving someone of “equal protection of the laws”
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                                  No. 18-40434
or “equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3); see
Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971). This kind of conspiracy
requires some form of class-based discrimination. United Bhd. of Carpenters
& Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 834–35 (1983).
      Cantú says “he belongs to a class of individuals who have felony
convictions and/or were previously incarcerated.”            But the Supreme
“Court . . . has never held that nonracial animus is sufficient.” Newberry v. E.
Tex. State Univ., 161 F.3d 276, 281 n.2 (5th Cir. 1998). And we have held racial
animus is required: “[I]n this circuit . . . the only conspiracies actionable under
section 1985(3) are those motivated by racial animus.” Deubert v. Gulf Fed.
Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987); see also Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 269–74 (1993); Scott, 463 U.S. at 835–
38; Griffin, 403 U.S. at 104–05 (noting that § 1985(3) was passed pursuant to
the Thirteenth Amendment).
      Even assuming § 1985(3) covers Cantú’s proffered class—convicted
felons—Cantú’s claims still can’t survive a Rule 12(b)(6) motion. First, Cantú
can’t cross from “the factually neutral [to] the factually suggestive” because he
doesn’t link his conspiracy allegations to his status. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 n.5 (2007). At most, he alleges Moody and LaBuz were aware
of his prior felony conviction. But the rest of his allegations suggest officers
fabricated evidence against him to save the sting operation. He does not allege
Moody and LaBuz’s motivations were “directed specifically at [felons] as a
class” or that their actions were motivated “by reason of ” his prior conviction.
Bray, 506 U.S. at 270. Second, Cantú can’t cross from “the conclusory [to] the
factual.” Twombly, 550 U.S. at 557 n.5. His allegation that Moody and LaBuz
“[d]iscussed and willfully and knowingly agreed with other DEFENDANTS to
fabricate evidence . . . in order to have [Cantú] convicted” is conclusory. It


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                                 No. 18-40434
amounts to “nothing more than a formulaic recitation of the elements” of his
claim. Iqbal, 556 U.S. at 681 (quotation omitted).
      There’s an even easier answer for Agent de los Santos. Cantú singles
him out as the officer who removed Cantú from his vehicle, arrested and
searched him, and then drove him to the FBI building. Cantú makes no
allegation—not even a conclusory one—that de los Santos formed any kind of
agreement with Moody, LaBuz, or anyone else. He doesn’t even allege that de
los Santos was privy to Rodriguez’s last-minute change of plans to call Cantú.
By Cantú’s own account, de los Santos was simply the tip of the spear in the
final phase of the sting operation. The district court was correct to dismiss the
§ 1985(3) claims.
                                       B.
      Cantú presses several § 1983 claims against Texas DPS Officer Barrera.
First, he argues Barrera conspired to violate Cantú’s civil rights. He alleges
Barrera helped federal officers conduct the larger investigation and identified
someone other than Cantú as “the person to receive the heroin” on the morning
of the sting operation. As with his § 1985(3) claim against de los Santos,
however, Cantú nowhere alleges Barrera formed any kind of agreement with
anyone. Nor does he say Barrera learned about what transpired on the phone
call between Rodriguez and Cantú.
      Next, Cantú argues Barrera maliciously prosecuted him in violation of
the Fourth Amendment and fabricated evidence against him in violation of the




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                                       No. 18-40434
Fourth and Fourteenth Amendments. 2 Both claims against Barrera fail for
the same reason the conspiracy claim does.                        Cantú claims Barrera
“[m]aliciously initiated a criminal case against [him] . . . without probable
cause.” He also claims Barrera intentionally or recklessly falsified facts “in
order to fabricate evidence and/or establish probable cause.” These are all
conclusions without any factual allegations to support them. See Iqbal, 556
U.S. at 681. Cantú never says how Barrera falsified evidence or participated
in the decision to prosecute him. What’s more, his only concrete allegations
point the other way because Barrera briefed investigators on nabbing someone
else—the unknown intended recipient.
       We need not decide whether Cantú can bring a separately cognizable
Fourteenth Amendment claim for fabrication of evidence against Barrera after
Manuel v. City of Joliet, 137 S. Ct. 911 (2017), and Jauch v. Choctaw County,
874 F.3d 425 (5th Cir. 2017). It’s unclear whether he appealed or forfeited that
claim. And his allegations are conclusory and hence insufficient in any event.




       2  Litigants (and courts) often write and speak about § 1983 claims as if the plaintiff
asserts a common-law tort action, like malicious prosecution. This habit is not a profile in
precision. In a § 1983 case, the plaintiff must assert someone violated the Constitution or
other federal law. See 42 U.S.C. § 1983. And we have no federal general common law. Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938). That’s why “[t]he first step in any [§ 1983] claim is
to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S.
266, 271 (1994) (plurality opinion); see also Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir.
2003) (en banc) (holding “no such freestanding constitutional right to be free from malicious
prosecution exists”). Courts consider common law tort analogues to constitutional claims
because those analogues may furnish things like the accrual rules for the applicable
limitations period. See Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017) (“In defining the
contours and prerequisites of a § 1983 claim, including its rule of accrual, courts are to look
first to the common law of torts.”). Although Cantú brings a “fabrication of evidence” claim
and a “malicious prosecution” claim, he is really arguing Barrera violated the Fourth
Amendment in two different ways. See id. at 921–22 (recognizing the claim fell under the
Fourth Amendment regardless of whether it should be likened to malicious prosecution or
false arrest).

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                                    No. 18-40434
                                           C.
      Cantú also brings a would-be cause of action against Moody and LaBuz
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).        He says they violated the Fourth Amendment by
fabricating evidence against him. 3         From a pleading standpoint, Cantú’s
strongest allegations are that Moody and LaBuz lied to justify seizing him. But
Bivens does not provide a vehicle to bring that claim.
                                           1.
      As the Supreme Court recently reminded us, Bivens is the byproduct of
an “ancien regime.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quotation
omitted). In 1971, the Court recognized an implied cause of action to sue
federal officers for violating an arrestee’s “rights of privacy” by “manacl[ing]
petitioner in front of his wife and children,” “threaten[ing] to arrest the entire
family,” and strip searching him. Bivens, 403 U.S. at 389–90. In the next nine
years, the Court recognized two more implied causes of action under Bivens: a
Fifth Amendment equal protection claim for employment discrimination by a
congressman, see Davis v. Passman, 442 U.S. 228 (1979), and an Eighth
Amendment claim for inadequate medical care by federal jailers, see Carlson
v. Green, 446 U.S. 14 (1980).
      Since 1980, however, “the Court has refused” every Bivens claim
presented to it. Abbasi, 137 S. Ct. at 1857; see also ibid. (collecting cases). The
Court has emphasized that Bivens, Davis, and Carlson remain good law. See
id. at 1856–57. At the same time, “it is possible that the analysis in the Court’s
three Bivens cases might have been different if they were decided today.” Id.


      3  Cantú also sued Moody and LaBuz under the Fifth-Amendment-by-way-of-Bivens.
We reject that claim for the same reason we reject his Fourteenth Amendment claim against
Barrera: It is unclear whether he appealed the Fifth Amendment claim at all; the phrase
“Fifth Amendment” appears nowhere in the argument of his opening brief. And his
allegations to support that claim are conclusory in all events.
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at 1856. And it has admonished us to exercise “caution” in the “disfavored
judicial activity” of extending Bivens to any new set of facts. Id. at 1857
(quotations omitted).
      So, before allowing Cantú to sue under Bivens, we must ask two
questions. First, do Cantú’s claims fall into one of the three existing Bivens
actions? Second, if not, should we recognize a new Bivens action here? The
answer to both questions is no.
      Cantú purports to address the first question. And he thinks he’s home
free because his malicious-prosecution-type-claim alleges a violation of his
Fourth Amendment right to be free from unlawful seizures—the same right
recognized in Bivens. That’s wrong. Courts do not define a Bivens cause of
action at the level of “the Fourth Amendment” or even at the level of “the
unreasonable-searches-and-seizures clause.” See FDIC v. Meyer, 510 U.S. 471,
484 n.9 (1994).
      Here’s an example.          No one thinks Davis—which permitted a
congressional employee to sue for unlawful termination in violation of the Due
Process Clause—means the entirety of the Fifth Amendment’s Due Process
Clause is fair game in a Bivens action. The Supreme Court rejected a claim
under the same clause of the same amendment nine years later. See Schweiker
v. Chilicky, 487 U.S. 412, 420 (1988) (denying a Bivens action under the Fifth
Amendment’s Due Process Clause for wrongful denial of Social Security
disability benefits). Not even the Schweiker dissenters suggested Davis settled
the question before the Court. See id. at 431–32 (Brennan, J., dissenting).
      What if a plaintiff asserts a violation of the same clause of the same
amendment in the same way? That still doesn’t cut it. In Chappell v. Wallace,
462 U.S. 296 (1983), the Supreme Court rejected a Fifth Amendment Due
Process claim for unlawful termination (the claim at issue in Davis) because
the plaintiff was a military servicemember rather than a congressional
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employee. Id. at 305. The Court has done the same thing in the Eighth
Amendment cruel-and-unusual-punishment context. Compare Carlson, 446
U.S. at 17–18 (recognizing Bivens action—against federal prison officials—for
failure to provide medical treatment), with Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 74 (2001) (rejecting Bivens action—against private prison officials—
for failure to provide medical treatment). Naturally, these principles apply in
the Fourth Amendment context too. See, e.g., Alvarez v. ICE, 818 F.3d 1194,
1199, 1206 (11th Cir. 2016) (treating plaintiff ’s Bivens claim for unreasonable
seizure as a “new” one); id. at 1218 n.12 (Pryor, J., concurring in part and
dissenting in part) (same); De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir. 2015)
(same); cf. Arevalo v. Woods, 811 F.2d 487, 489–90 (9th Cir. 1987) (barring
plaintiff ’s Bivens claim for unreasonable search and seizure).
      The Supreme Court recently addressed this threshold question. And it
rejected just this sort of “same right” reasoning. In Abbasi, the Second Circuit
had created a two-part test to determine whether a Bivens claim was novel:
“First, it asked whether the asserted constitutional right was at issue in a
previous Bivens case. Second, it asked whether the mechanism of injury was
the same mechanism of injury in a previous Bivens case.” 137 S. Ct. at 1859
(citation omitted); see Turkmen v. Hasty, 789 F.3d 218, 235 (2d Cir. 2015)
(concluding plaintiffs’ condition-of-confinement claim “stands firmly within a
familiar Bivens context”).    The Court rejected that approach, pointing to
Chappell and Malesko. “The proper test,” it said, is simply whether “the case
is different in a meaningful way from previous Bivens cases.” Abbasi, 137 S.
Ct. at 1859.
      The Court then provided a non-exhaustive list of “differences that are
meaningful enough to make a given context a new one”:
      A case might differ in a meaningful way because of [1] the rank of
      the officers involved; [2] the constitutional right at issue; [3] the

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      generality or specificity of the official action; [4] the extent of
      judicial guidance as to how an officer should respond to the
      problem or emergency to be confronted; [5] the statutory or other
      legal mandate under which the officer was operating; [6] the risk
      of disruptive intrusion by the Judiciary into the functioning of
      other branches; or [7] the presence of potential special factors that
      previous Bivens cases did not consider.

Id. at 1859–60. In the wake of Abbasi, our Court and at least one of our sister
circuits have rejected new Fourth Amendment claims under Bivens.               See
Hernandez v. Mesa, 885 F.3d 811, 816–17 (5th Cir. 2018) (en banc); Tun-Cos v.
Perrotte, 922 F.3d 514, 517–18 (4th Cir. 2019).
                                       2.
      By any measure, Cantú’s claims are meaningfully different from the
Fourth Amendment claim at issue in Bivens. He does not allege the officers
entered his home without a warrant or violated his rights of privacy. Rather,
Cantú alleges Moody and LaBuz violated the Fourth Amendment by falsely
stating in affidavits that Cantú willingly took possession of the cooler . . . to
suggest he knowingly participated in a drug transaction . . . to induce
prosecutors to charge him . . . to cause Cantú to be seized.        See Wilkie v.
Robbins, 551 U.S. 537, 552 n.6 (2007). This claim involves different conduct
by different officers from a different agency. The officers’ alleged conduct is
specific in one sense: They allegedly falsified affidavits. But it’s general in
another: Cantú claims Moody and LaBuz induced prosecutors to charge him
without any basis, which led to unjustified detention. The connection between
the officers’ conduct and the injury thus involves intellectual leaps that a
textbook forcible seizure never does. See Hartman v. Moore, 547 U.S. 250, 259–
62 (2006).   “Judicial guidance” differs across the various kinds of Fourth
Amendment violations—like seizures by deadly force, searches by wiretap,
Terry stops, executions of warrants, seizures without legal process (“false
arrest”), seizures with wrongful legal process (“malicious prosecution”), etc.
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This is therefore a new context, and Cantú’s claims cannot be shoehorned into
Bivens, Davis, or Carlson.
      The second question is whether we should engage in the “disfavored
judicial activity” of recognizing a new Bivens action. Id. at 1857 (quotation
omitted). Again, no. There are legion “special factors” counseling that result.
One is the existence of a statutory scheme for torts committed by federal
officers. See 28 U.S.C. § 2680(h); Abbasi, 137 S. Ct. at 1858 (noting “that alone
may limit the power of the Judiciary to infer a new Bivens cause of action”).
Another is the length of time Congress has gone without statutorily creating a
Bivens-type remedy for this context. Because Congress has long been on notice
that the Supreme Court is disinclined to extend Bivens to new contexts, see
Abbasi, 137 S. Ct. at 1857, its “failure to provide a damages remedy” here
suggests “more than mere oversight,” id. at 1862; see also De La Paz, 786 F.3d
at 377 (noting Congress had not created a damages remedy against
immigration agents despite legislative attention to immigration matters).
      A final special factor counseling hesitation is the nature of the
underlying federal law enforcement activity.        While Bivens involved an
investigation into seemingly local conduct, this case involves a multi-
jurisdictional investigation into transnational organized crime committed by a
violent gang that has wreaked havoc along our border with Mexico. This case
therefore implicates the security of our international border. Cf. Abassi, 137
S. Ct. at 1861 (identifying national security as a special factor); Meshal v.
Higgenbotham, 804 F.3d 417, 430–31 (D.C. Cir. 2015) (Kavanaugh, J.,
concurring) (same). If members of the Texas Mexican Mafia want a damages
suit—including potentially burdensome discovery—regarding complicated
investigations such as this one, that request must be made to Congress not the
courts. See Abbasi, 137 S. Ct. at 1860–61 (discussing discovery and litigation
costs as a special factor).
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       In the face of these considerations, “courts may not create [a cause of
action], no matter how desirable that might be as a policy matter.” Alexander
v. Sandoval, 532 U.S. 275, 286–87 (2001); see also Malesko, 534 U.S. at 75
(Scalia, J., concurring). 4
                                             III.
       Finally, Cantú appeals the denial of leave to file a fourth amended
complaint.      The district court denied leave because Cantú already had
numerous opportunities to amend his complaint, and the proposed amended
complaint contained claims that Cantú’s counsel previously agreed to remove.
See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that “undue delay,” “bad
faith,” “dilatory motive,” and “repeated failure to cure deficiencies by
amendments previously allowed” are grounds for denying leave to amend a
complaint). The district court did not abuse its discretion in denying Cantú’s
motion.
       AFFIRMED.




       4   Our dissenting colleague takes issue with our analysis in two ways. First, Judge
Graves notes this case is factually distinguishable from Abbasi. See post, at 15–17 (Graves,
J., dissenting in part). But mere distinguishability is irrelevant; were it otherwise, federal
courts would be free to infer Bivens actions in any case not involving post-9/11 detention
policies. And we know that’s wrong. See Abbasi, 137 S. Ct. at 1857 (noting such lawmaking
is a “ ‘disfavored’ judicial activity”). Second, Judge Graves notes the FTCA might not provide
a remedy to Cantú. See post, at 17 (Graves, J., dissenting in part). Fair enough. But the
Supreme Court has said that possibility is insufficient to warrant the judicial creation of a
Bivens action—after all, it could be evidence that Congress chose not to afford a remedy. See
Abbasi, 137 S. Ct. at 1858–59, 1865.
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                                  No. 18-40434
JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
      I respectfully dissent from the majority’s opinion insofar as it concludes
there is no Bivens cause of action for fabrication of evidence.
      I agree with the majority’s conclusion that Cantú’s claim of malicious
prosecution/fabrication of evidence presents a “new context” for a Bivens claim
under Supreme Court precedent. However, while the majority concludes
several special factors counsel against recognizing a new claim, I would reach
the opposite conclusion and determine no such factors dictate against
recognizing a new Bivens action here.
      Abbasi instructs courts to focus the “special factors” inquiry “on
maintaining the separation of powers: ‘separation-of-powers principles are or
should be central to the analysis.’” Hernandez v. Mesa, 885 F.3d 811, 818 (5th
Cir. 2018) (en banc) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857
(2017)), cert. granted, No. 17-1678, 2019 WL 2257285 (U.S. May 28, 2019).
Essentially, courts need to consider whether “there are sound reasons to think
Congress might doubt the efficacy or necessity of a damages remedy as part of
the system for enforcing the law and correcting a wrong.” Abassi, 137 S. Ct. at
1858. If there are, “the courts must refrain from creating the remedy in order
to respect the role of Congress in determining the nature and extent of federal-
court jurisdiction under Article III.” Id.
      Some of the factors the Supreme Court considered in Abassi which
counseled against recognizing a Bivens action were that the plaintiffs were
suing high level Executive Officials for the acts of their subordinates, the
lawsuit challenged “the formulation and implementation of a general policy,”
and the claim implicated “sensitive issues of national security.” Id. at 1860–61.
These factors meant the plaintiffs were going beyond challenging “standard
‘law enforcement operations’” and were challenging “major elements of the
Government’s whole response to the September 11 attacks.” Id. at 1861. As a
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                                      No. 18-40434
result, the Court found it prudent to decline to create a new claim and instead
deferred to the Executive Branch’s authority in military and national security
affairs, as well as to Congress’ ability to designate a specific channel for the
courts to review such authority. Id.
       No such concerns are present in this case. Here, Cantú seeks to hold
accountable two individual law enforcement officers who allegedly lied to
support a finding of probable cause and a grand jury indictment, thereby
leading to his prosecution and two years of imprisonment. This is exactly the
type of run-of-the-mill “law enforcement overreach” claim Abassi emphasized
could still be recognized under Bivens. Abassi, 137 S. Ct. at 1862. In the instant
case, there are no national security concerns, 1 no broad governmental policies
at stake, and no high-level executive officials being sued for the actions of their
subordinates. Nor is the giving of affidavits by law enforcement officials a
heavily regulated area closely overseen by Congress so as to suggest Congress
prefers courts not to interfere. See Hernandez, 885 F.3d at 820 (noting
Congressional silence may be relevant “especially where ‘Congressional
interest’ in an issue ‘has been frequent and intense’” (quoting Abassi, 137 S.Ct.
at 1862)). Lastly, the legal standards for adjudicating this type of claim are
well established and easily administrable,” meaning it is a “workable cause of
action.” Wilkie v. Robbins, 551 U.S. 537, 555 (2007); see also Lanuza v. Love,
899 F.3d 1019, 1033 (9th Cir. 2018) (discussing judicial administrability of a
Bivens claim for fabrication of evidence in an immigration context); Engel v.




       1 While the majority characterizes the investigation at issue in this case as a multi-
jurisdictional investigation into transnational organized crime necessarily involving the
security of our international border, the Government has not argued that this case implicates
any national security interests. In fact, the Government’s main argument against recognizing
a Bivens action here is that Cantú could have filed suit under the Federal Tort Claims Act.
See discussion infra. Given the Government’s ability to articulate its own interests, I would
decline to create a national security concern where the Government has not alleged one.
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                                    No. 18-40434
Buchan, 710 F.3d 698, 708 (7th Cir. 2013) (discussing judicial administrability
of a Bivens claims for Brady violations).
      Moreover, while the Government argues that Cantú may have other
remedies available through the Federal Tort Claims Act (“FTCA”), the FTCA
does not provide remedies for constitutional violations. See 28 U.S.C.
§ 2679(b)(2)(A) (stating FTCA “does not extend or apply to a civil action against
an employee of the Government . . . which is brought for a violation of the
Constitution of the United States . . . .”). Nor would an injunction here remedy
the alleged constitutional violation, assuming Cantú even had standing to
pursue one. This is essentially a “damages or nothing” case, where the very
nature of Cantú’s allegations “are difficult to address except by way of damages
after the fact.” Abassi, 137 S. Ct. at 1862. While recognizing a Bivens claim
may be a “disfavored judicial remedy” these days, it is still a judicial remedy,
available in certain circumstances where special factors are not present. See
Lanuza, 899 F.3d at 1021 (recognizing the availability of new Bivens claims
even after Abassi). Such is the case here.
      Having recognized a Bivens cause of action, I would then conclude that
Cantú adequately alleged such a claim. Accordingly, I dissent from the
majority’s opinion on this issue.




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