`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 19-2285
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`CATHERINE SCHUSTER PASCALE,
`
`
`Defendant – Appellant,
`
`
`and
`
`
`MAURA LATING; ROBERT MOSLEY; PAM ARNOLD; JAMES P. RYAN;
`SANDRA WILKINSON; STEVEN CAPOBIANCO; UNITED STATES OF
`AMERICA,
`
`
`Defendants.
`
`
`No. 19-2337
`
`
`
`
`
`
`
`
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellant,
`
`
`v.
`
`MAURA LATING; ROBERT MOSLEY; JAMES P. RYAN; SANDRA
`WILKINSON; STEVEN CAPOBIANCO,
`
`
`Defendants – Appellees,
`
`
`
`and
`
`CATHERINE SCHUSTER PASCALE; PAM ARNOLD; UNITED STATES OF
`AMERICA,
`
`
`Defendants.
`
`
`No. 19-2344
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`MAURA LATING,
`
`
`and
`
`Defendant – Appellant,
`
`
`
`CATHERINE SCHUSTER PASCALE; ROBERT MOSLEY; PAM ARNOLD;
`JAMES P. RYAN; SANDRA WILKINSON; STEVEN CAPOBIANCO; UNITED
`STATES OF AMERICA,
`
`
`Defendants.
`
`
`No. 19-2351
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`JAMES P. RYAN,
`
`
`
`
`Defendant – Appellant,
`
`
`2
`
`
`
`
`
`
`
`
`
`
`
`and
`
`
`CATHERINE SCHUSTER PASCALE; MAURA LATING; ROBERT MOSLEY;
`PAM ARNOLD; SANDRA WILKINSON; STEVEN CAPOBIANCO; UNITED
`STATES OF AMERICA,
`
`
`Defendants.
`
`
`No. 19-2352
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`STEVEN CAPOBIANCO,
`
`
`Defendant – Appellant,
`
`
`and
`
`
`CATHERINE SCHUSTER PASCALE; MAURA LATING; ROBERT MOSLEY;
`PAM ARNOLD; JAMES P. RYAN; SANDRA WILKINSON; UNITED STATES
`OF AMERICA,
`
`
`Defendants.
`
`
`No. 19-2369
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`ROBERT MOSLEY,
`
`
`Defendant – Appellant,
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`and
`
`
`CATHERINE SCHUSTER PASCALE; MAURA LATING; PAM ARNOLD;
`JAMES P. RYAN; SANDRA WILKINSON; STEVEN CAPOBIANCO; UNITED
`STATES OF AMERICA,
`
`
`Defendants.
`
`
`
`No. 19-2370
`
`
`
`
`
`
`REDDY VIJAY ANNAPPAREDDY,
`
`
`Plaintiff – Appellee,
`
`
`v.
`
`
`SANDRA WILKINSON,
`
`
`Defendant – Appellant,
`
`
`and
`
`
`CATHERINE SCHUSTER PASCALE; MAURA LATING; ROBERT MOSLEY;
`PAM ARNOLD; JAMES P. RYAN; STEVEN CAPOBIANCO; UNITED STATES
`OF AMERICA,
`
`
`Defendants.
`
`
`Appeals from the United States District Court for the District of Maryland, at Baltimore.
`Joseph F. Anderson, Jr., Senior District Judge. (1:18-cv-03012-JFA)
`
`
`
`
`Argued: January 25, 2021
`
`
`
`Decided: April 26, 2021
`
`
`
`Before GREGORY, Chief Judge, and MOTZ and HARRIS, Circuit Judges.
`
`
`
`
`
`
`
`4
`
`
`
`Affirmed in part, reversed in part, and remanded by published opinion. Judge Harris wrote
`the opinion, in which Chief Judge Gregory and Judge Motz joined.
`
`
`
`
`ARGUED: Joshua D. Greenberg, JOSH GREENBERG LAW FIRM, Washington, D.C.,
`for Plaintiff-Appellee/Cross-Appellant Reddy Vijay Annappareddy. Steven M. Klepper,
`KRAMON & GRAHAM, P.A., Baltimore, Maryland; Brian Frey, ALSTON & BIRD,
`LLP, Washington, D.C.; Jodie Buchman, SILVERMAN | THOMPSON | SLUTKIN |
`WHITE LLC, Baltimore, Maryland; Wesley Wintermyer, CADWALADER,
`WICKERSHAM & TAFT LLP, Washington, D.C., for Defendants-Appellees/Cross-
`Appellants. ON BRIEF: Stuart M. Paynter, PAYNTER LAW FIRM PLLC, Washington,
`D.C., for Plaintiff-Appellee/Cross-Appellant. John A. Bourgeois, Geoffrey H. Genth,
`William J. Harrington, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant
`Catherine Pascale. Andrew C. White, Christopher J. Macchiaroli, SILVERMAN |
`THOMPSON | SLUTKIN | WHITE LLC, Baltimore, Maryland, for Appellee/Cross-
`Appellant Maura Lating. Brent J. Gurney, Kelly P. Dunbar, Edward Williams, WILMER
`CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellee/Cross-
`Appellant Steven Capobianco. Thomas H. Barnard, Kelly M. Preteroti, Christopher C.
`Dahl, BAKER, DONELSON, BEARMAN, CALDWELL BERKOWITZ, PC, Baltimore,
`Maryland, for Appellee/Cross-Appellant James P. Ryan. Edward T. Kang, Brandon
`Springer, ALSTON & BIRD, LLP, Washington, D.C., for Appellee/Cross-Appellant
`Sandra Wilkinson.
` Douglas Gansler, William Simpson, CADWALADER,
`WICKERSHAM & TAFT LLP, Washington, D.C., for Appellee/Cross-Appellant Robert
`Mosley.
`
`
`
`
`
`
`
`
`
`
`5
`
`
`
`PAMELA HARRIS, Circuit Judge:
`
`
`
`Reddy Vijay Annappareddy was the owner of a chain of pharmacies in Maryland
`
`and nearby states when he was prosecuted for Medicaid fraud. A district court ultimately
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`dismissed the charges against him, finding that the government had used flawed analyses
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`of the pharmacies’ inventory and billing practices to convict Annappareddy at trial, and
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`then destroyed relevant evidence while a motion for retrial was pending.
`
`
`
`After the case against him was dismissed, Annappareddy filed a wide-ranging
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`complaint in federal court, seeking compensatory and punitive damages from multiple
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`defendants. According to Annappareddy, state and federal investigators and prosecutors,
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`working together, violated his rights under the federal Constitution and Maryland law,
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`fabricating evidence against him and then destroying exculpatory evidence when it seemed
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`their malfeasance might come to light. For the complaint’s federal constitutional claims
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`against individual officers, Annappareddy relied on a Bivens cause of action. He also
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`sought relief against individual state officers under § 1983 and Maryland state law, and
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`against the United States under the Federal Tort Claims Act.
`
`
`
`At issue in these appeals are two preliminary rulings by the district court. First, the
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`court dismissed Annappareddy’s federal constitutional claims, ruling that they would
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`constitute impermissible extensions of the Bivens cause of action. But the court allowed
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`several state-law claims to proceed against one of the prosecutors in charge of
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`Annappareddy’s criminal case, Catherine Pascale, rejecting her argument that absolute
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`prosecutorial immunity shielded her from allegations that she had fabricated inculpatory
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`evidence and destroyed exculpatory evidence.
`6
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`
`
`
`
`
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`The parties appealed both determinations. On review, we affirm the district court’s
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`dismissal of the federal constitutional claims. Like the district court, we conclude that
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`these claims would extend the Bivens remedy into a new context, and that special factors
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`counsel against an extension to cover intertwined allegations of wrongdoing by prosecutors
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`and criminal investigators in Annappareddy’s prosecution. We disagree, however, with
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`the district court’s determination that the state-law claims can move forward against
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`Pascale, finding instead that absolute prosecutorial immunity bars the claims against her.
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`Accordingly, we affirm in part and reverse in part, and remand for further proceedings.
`
`
`
`I.
`
`A.
`
`Because we review this case at the motion-to-dismiss stage, we draw the following
`
`facts from the complaint, accepting them as true for the purposes of this appeal. See Nero
`
`v. Mosby, 890 F.3d 106, 114 (4th Cir. 2018).
`
`1.
`
`We begin with the investigation and indictment of Reddy Vijay Annappareddy. We
`
`focus here on several investigators who would become defendants in Annappareddy’s suit,
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`accused of fabricating evidence against him and submitting a false affidavit to obtain a
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`search warrant.
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`Annappareddy is the founder and owner of Pharmacare, a now-shuttered chain of
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`pharmacies that once had nine locations in several states. In 2012, Maryland’s Medicaid
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`Fraud Control Unit (“MFCU”) began investigating Pharmacare’s billing practices after a
`7
`
`
`
`
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`former employee accused the company of billing government health care programs for
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`prescriptions that were never delivered. MFCU investigators soon began working with a
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`pharmacist at one of Pharmacare’s stores, Lisa Ridolfi, to gather evidence. Annappareddy
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`alleges that Ridolfi, in the hopes of receiving payment as a “whistleblower,” began
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`fabricating evidence of fraud. According to Annappareddy, Ridolfi’s main contact at the
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`MFCU, investigator Pam Arnold, was aware of and encouraged these fabrications, and
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`passed the false information to prosecutors “as if it were accurate and reliable.”
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`At some point in 2013, federal law enforcement joined the investigation, and began
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`building a case that Annappareddy was submitting claims for prescriptions for high-dollar
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`medications that were never filled or received by patients. Maura Lating, a special agent
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`for the Federal Bureau of Investigation (“FBI”), took over leadership of the team of
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`investigators. Also on the team was Robert Mosley, a special agent in the Office of
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`Inspector General of the U.S. Department of Health & Human Services (“HHS”).
`
`Mosley worked with a Medicare drug integrity contractor (“MEDIC”) to prepare
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`what would turn out to be a critical analysis of Pharmacare’s invoices and inventory. That
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`MEDIC analysis purported to find “shortages” of dozens of medications – that is, that
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`Pharmacare had insufficient inventory to fill prescriptions for which it billed and was paid.
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`Annappareddy alleges that Mosley “rig[ged]” those findings, so that they failed to account
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`for legal transfers between Pharmacare locations and ignored significant inventory of the
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`medications in question. J.A. 113. And then, according to Annappareddy, investigators
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`used this falsified analysis as evidence to obtain both a search warrant against Pharmacare
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`and a criminal indictment against him.
`
`
`
`8
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`
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`On July 23, 2013, a magistrate judge issued sealed warrants to search six
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`Pharmacare locations. To secure those warrants, Lating – the FBI agent now leading the
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`investigation – submitted an affidavit (the “Lating Affidavit”) that, Annappareddy claims,
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`purported to establish probable cause through “material false statements and omissions.”
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`J.A. 114. Most important, the Lating Affidavit included the MEDIC “invoice review”
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`described above, which falsely showed that Pharmacare had medication shortages that in
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`fact did not exist. Other claimed flaws in the Lating Affidavit included misstatements of
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`the law governing prescription billing and information provided by untrustworthy
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`informants. Annappareddy alleges that Lating had “actual knowledge” of these
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`fabrications and falsehoods, and “acted at least recklessly in making” them. J.A. 116. And
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`without this flawed evidence, he contends, the Lating Affidavit would not have established
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`probable cause, and the magistrate judge would not have issued the warrants.
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`The same day that investigators secured the search warrants, a grand jury charged
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`Annappareddy and two Pharmacare pharmacy technicians with health care fraud and
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`aggravated identity theft. Annappareddy alleges that this indictment, like the search
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`warrants, was secured by evidence Lating, Mosley, and Arnold knew to be false.
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`Two days later, on July 25, 2013, federal and state agents raided six Pharmacare
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`locations and executed the search warrants. Because the agents seized computers, servers,
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`and other material crucial to operations, the raid shut Pharmacare down for good. Four
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`days after that, law enforcement arrested Annappareddy. He was released pending trial,
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`subject to restrictions on his movement.
`
`
`
`2.
`9
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`
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`We turn now to the post-indictment and trial stage of the case, which introduces the
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`two prosecutors who also would become defendants in this action. Here, the gist of
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`Annappareddy’s claim is that investigators and prosecutors used false evidence to obtain a
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`superseding indictment and then a conviction against him.
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`After the original indictment, responsibility for the case was turned over to
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`prosecutors Sandra Wilkinson, an Assistant U.S. Attorney, and Catherine Pascale, an
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`Assistant Attorney General in the MFCU who appeared in the federal criminal case as a
`
`Special Assistant U.S. Attorney. According to the complaint, at the time of the original
`
`indictment, Wilkinson and Pascale did not know about the alleged falsehoods and
`
`fabrications that had been presented to the grand jury – and in fact had been misled by
`
`investigators about problems with the underlying evidence.
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`By late 2013, however, other members of the investigative team were aware of
`
`problems with the invoice analyses and were actively working to produce new – and
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`equally misleading – evidence against Annappareddy. According to the complaint, Steven
`
`Capobianco, an investigator in the U.S. Attorney’s Office, began working with MEDIC to
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`produce new analyses of Pharmacare’s inventory. Capobianco, along with the other
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`investigator defendants, ultimately provided an updated analysis replicating the original
`
`false data on inventory “shortages” and government “losses,” despite knowing that the
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`failure to account for transfers between Pharmacare locations rendered it erroneous. That
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`analysis, along with other purportedly fabricated evidence, then was used by prosecutors
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`to secure a superseding indictment against Annappareddy on March 11, 2014. Again, the
`
`complaint alleges that the two prosecutors – Wilkinson and Pascale – were “misled and
`10
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`
`
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`misinformed” by investigators in the lead-up to the superseding indictment, and “did not
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`know or have reason to suspect until long after [it] was filed that material false evidence
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`was presented to that grand jury.” J.A. 153.
`
`But at some later point, Annappareddy claims, Wilkinson and Pascale did learn of
`
`the problems with the evidence in their case. Rather than reveal them to the defense team
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`or otherwise correct them, Wilkinson and Pascale continued to seek out new analyses of
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`Pharmacare’s inventory that could support a conviction at trial. The prosecutors worked
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`with an internal auditor at the U.S. Attorney’s Office to produce new “shortage” and “loss”
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`calculations that would – again falsely – inculpate Annappareddy in fraud. J.A. 157, 159.
`
`As a result of the presentation of this and other false evidence, a jury in the District
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`of Maryland convicted Annappareddy on two of the three counts in the superseding
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`indictment on December 15, 2014. Annappareddy remained on release pending
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`sentencing, subject to home detention. The government asked the district court to sentence
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`Annappareddy to 12 years in prison, followed by deportation.
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`3.
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`Finally, we turn to the post-trial period, and to Annappareddy’s allegations of
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`evidence destruction. After his conviction and now represented by new counsel,
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`Annappareddy moved for a new trial. Discovery on that motion soon uncovered evidence
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`of flaws in the inventory calculations prosecutors had used at trial. That flawed analysis
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`had been key to establishing the existence of purported shortages of medications for which
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`Pharmacare had billed various government insurance programs, as well as the
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`government’s resulting losses. As a result of these disclosures, the government joined
`11
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`
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`Annappareddy’s request for a new trial, and the district court granted it in June 2016. That
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`summer, the prosecutors secured a second superseding indictment.
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`As the parties prepared to litigate those new charges, the government disclosed that
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`while the motion for a new trial was pending, it had destroyed three boxes of documents
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`containing the only copies of Pharmacare medication and signature logs – documents that
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`Annappareddy now claims could have confirmed that Pharmacare actually filled and
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`delivered the prescriptions for which it had billed. According to Annappareddy, though he
`
`had access to those documents during pre-trial discovery, he did not understand their
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`exculpatory nature until later. And in March 2015, prosecutors Wilkinson and Pascale,
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`and investigators Mosley, Arnold, and Ryan, met at the U.S. Attorney’s Office and decided
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`to destroy this material. Wilkinson later claimed that the destruction was “part of a general
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`cleanup of boxes of paper.” J.A. 165. Annappareddy alleges that it was, instead, a
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`“selective” and “intentional” act. J.A. 164.
`
`Citing the prosecutors’ and investigators’ alleged malfeasance, Annappareddy
`
`moved to dismiss with prejudice the charges in the second superseding indictment. The
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`district court granted
`
`that request, finding
`
`that
`
`the government had violated
`
`Annappareddy’s due process rights by presenting erroneous inventory and loss calculations
`
`at his first trial without disclosing the potential for error to the defense. The district court
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`also was “troubled” by the government’s unilateral destruction of several boxes of
`
`
`
`12
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`
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`documents while the motion for a new trial was pending. J.A. 174.1 After the district
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`court’s order of dismissal, the government initially appealed, but then changed course and
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`withdrew its appeal. In March 2017, the court dismissed the charges in the original
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`indictment, ending the criminal case against Annappareddy.
`
`B.
`
`On October 1, 2018, Annappareddy filed suit in the District of Maryland against the
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`investigators and prosecutors in his criminal case, naming a total of seven individual
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`defendants.2 Only some of the 25 counts in the 111-page amended complaint, filed on May
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`1, 2019, are at issue on appeal.3
`
`First are several federal constitutional claims, all brought under Bivens v. Six
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`Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the
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`federal defendants in their individual capacities. The claims brought solely against federal
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`
`1 We take this description of the district court’s decision – like the rest of our factual
`recitation – from Annappareddy’s complaint. But we note that Annappareddy’s account is
`consistent with the record of the court’s oral ruling of September 1, 2016. The government
`defendants emphasize a different portion of the ruling, in which the court found that there
`remained other evidence of fraud. See J.A. 86. But there is no dispute as to the substance
`of the district court’s decision.
`
`2 All judges in the district recused themselves, and the Fourth Circuit assigned Judge
`Joseph F. Anderson, Jr., of the District of South Carolina to hear the case.
`
`3 As referenced above, the operative complaint includes twenty claims against
`individual federal and state officers – brought under some combination of Bivens, 42
`U.S.C. § 1983, and Maryland state law – as well as five Federal Tort Claims Act (“FTCA”)
`claims against the United States. Several claims against Arnold, a Maryland state
`investigator, as well as the FTCA claims against the United States, remain pending in the
`district court and are not at issue in this appeal.
`
`
`
`13
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`
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`investigators can be boiled down to three basic theories of liability: that they violated the
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`Fourth Amendment under Franks v. Delaware, 438 U.S. 154 (1978), by knowingly
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`submitting false information – primarily, MEDIC’s false inventory analysis – to secure the
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`Pharmacare search warrants; that they again violated the Fourth Amendment by using
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`similar false evidence to secure the original indictment and arrest warrant; and that they
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`violated the Fifth Amendment’s Due Process Clause by fabricating a new version of that
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`false evidence to obtain a superseding indictment and conviction. One additional Bivens
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`claim ropes in the prosecutors, as well, alleging that both the investigators and prosecutors
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`violated the Due Process Clause by intentionally destroying exculpatory documents after
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`Annappareddy’s trial.
`
`Also at issue are several state-law claims against Pascale, the state prosecutor, for
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`her alleged fabrication and destruction of evidence. Annappareddy claims that Pascale
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`intentionally inflicted emotional distress on him, violated his rights to procedural and
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`substantive due process under Article 24 of the Maryland Constitution’s Declaration of
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`Rights, and participated in a civil conspiracy to violate his rights.
`
`
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`On October 18, 2019, the district court issued a lengthy written order addressing
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`several motions to dismiss filed by the individual defendants, making two determinations
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`at issue on appeal.
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`
`
`14
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`
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`First, the district court dismissed Annappareddy’s Bivens claims.4 To “determin[e]
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`whether to allow a claim asserted under Bivens to proceed,” the court applied the “two-step
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`framework” from Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), inquiring first whether
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`the claims presented a new Bivens context; and then, if so, whether special factors
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`counseled hesitation in extending a judicial remedy. J.A. 523–24 (citing Tun-Cos v.
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`Perrotte, 922 F.3d 514, 522–23 (4th Cir. 2019)). In conducting that analysis, the court
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`found especially helpful a recent Eighth Circuit decision, Farah v. Weyker, 926 F.3d 492
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`(2019), holding that similar claims of fabrication of evidence by law enforcement agents
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`could not proceed under Bivens.
`
`
`
`Applying the first step of the Abbasi framework, the district court concluded that
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`the Bivens claims all arose in new contexts. Several counts, it noted, asserted rights not
`
`recognized in past Bivens cases – including those arising under the Fifth Amendment’s
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`Due Process Clause, and the right to be free from malicious prosecution under the Fourth
`
`Amendment. Others, the court explained, would extend Bivens to a new group of
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`defendants – federal prosecutors. And even the more standard Fourth Amendment search
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`claims against non-prosecutor defendants, the court reasoned, involved searches –
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`performed with a warrant on commercial pharmacies – and conduct – “information-
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`gathering and case-building” – very different from the warrantless detention and search of
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`a person at issue in Bivens. J.A. 528 (citing Farah, 926 F.3d at 499). More generally, the
`
`
`4 We here consider only the Bivens claims that Annappareddy has continued to press
`on appeal.
`
`
`
`15
`
`
`
`court finished, “[p]robing the causal chain” in this case, unlike in Bivens, would implicate
`
`the judgments of “numerous decisionmakers, including federal investigators, prosecutors,
`
`and the grand jury,” presenting a greater risk of interference with other branches of
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`government. J.A. 528–29 (quoting Farah, 926 F.3d at 499).
`
`The court then considered the second step of Abbasi and held that special factors
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`counseled hesitation in extending Bivens. The interconnected allegations of widespread
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`malfeasance in Annappareddy’s complaint, the court explained, not only differentiated the
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`case from Bivens, but also counseled against extending the Bivens remedy: Evaluating
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`those claims would “cause a deep and wide-ranging dive into all actions taken by each
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`actor as well as all evidence available to investigators, prosecutors, judges, and juries (both
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`trial and grand jury),” which could intrude into the executive branch’s authority to enforce
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`the law and “impact government operations systemwide.” J.A. 530. The court also
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`determined that the existing, limited remedial structure Congress had crafted for criminal
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`defendants subject to government misconduct counseled against creating an implied Bivens
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`action. “[T]he fact that Congress has expressly provided a damages remedy for some
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`victims of this particular type of injury, but not for others, suggests that it considered the
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`issue and made a deliberate choice.” J.A. 532 (quoting Farah, 926 F.3d at 502).
`
` Second, the district court determined that Pascale – the state prosecutor – was not
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`entitled to absolute immunity from the remaining claims against her, which arose under
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`state law. As the district court explained, courts determine whether a prosecutor is
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`protected by absolute immunity using a functional approach, asking whether a given act is
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`“intimately associated with the judicial phase of the criminal process.” J.A. 535 (quoting
`16
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`
`
`
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`Nero, 890 F.3d at 117); see also J.A. 537 (citing Gill v. Ripley, 724 A.2d 88 (Md. 1999)).
`
`Applying that approach, the district court concluded that neither factual predicate for the
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`claims against Pascale – that she destroyed exculpatory evidence or that she fabricated
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`inculpatory evidence – was intimately associated with the judicial phase of a prosecution.
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`Specifically, as to destruction, the court concluded that the decision to throw out
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`documents, in this context, was purely “administrative”: As the court read the complaint,
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`the evidence was destroyed “as part of a general cleanup” undertaken because of limited
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`storage. J.A. 535–36. As to fabrication, the court reasoned that “join[ing] in a conspiracy
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`to fabricate evidence” was not a prosecutorial act, and more resembled the conduct of an
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`investigator in the “pre-prosecutorial investigative” stage of a criminal case. J.A. 536–37
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`(citing Kalina v. Fletcher, 522 U.S. 118, 126 (1997)).5
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`
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`II.
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`We consider two consolidated appeals arising out of these complex district court
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`proceedings. First, Annappareddy has appealed the dismissal of his Bivens claims.6 We
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`5 Pascale moved for reconsideration of the denial of immunity, which the court
`denied.
`
`6 Before the district court, all the Bivens defendants argued that even assuming a
`Bivens cause of action, they were entitled to absolute or qualified immunity. In “the interest
`of judicial economy,” the district court also considered and rejected those immunity claims.
`J.A. 534. The defendants again press their immunity arguments on appeal, now as an
`alternative ground for affirmance. Because we affirm the district court’s dismissal of the
`Bivens claims under Abbasi, we need not reach those contentions.
`
`
`
`
`
`17
`
`
`
`have jurisdiction over that appeal because the district court entered final judgments in favor
`
`of the relevant defendants under Federal Rule of Civil Procedure 54(b). See Braswell
`
`Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th Cir. 1993).7 In addition, Pascale
`
`has appealed the district court’s denial of prosecutorial immunity. We have jurisdiction
`
`over that appeal because denials of absolute immunity are immediately appealable under
`
`28 U.S.C. § 1291 and the collateral order doctrine. See Nero, 890 F.3d at 117.
`
`
`
`We review de novo both the district court’s dismissal of the Bivens claims, see
`
`Lebron v. Rumsfeld, 670 F.3d 540, 547 (4th Cir. 2012), and the court’s denial of absolute
`
`prosecutorial immunity, see Nero, 890 F.3d at 117. We conclude, like the district court,
`
`that the Bivens claims before us are impermissible extensions of this judicially crafted
`
`remedy into new contexts, and affirm the district court’s dismissal of those claims. We
`
`disagree, however, with the district court on Pascale’s entitlement to absolute prosecutorial
`
`immunity, and therefore reverse and remand with instructions to enter judgment in favor
`
`of Pascale on the remaining state-law claims against her.
`
`
`
`A.
`
`
`
`We begin with Annappareddy’s Bivens claims, and with the legal framework that
`
`governs them. In those claims, Annappareddy alleges that the federal investigators and
`
`prosecutors named as defendants violated his rights under the Fourth and Fifth
`
`
`7 Though the district court did not enter a final judgment as to Pascale, it certified
`its dismissal of the federal Bivens claims against her for interlocutory appeal under 28
`U.S.C. § 1292, while allowing the state-law claims to proceed. J.A. 572. Annappareddy,
`however, has not sought to revive his Bivens claims against Pascale.
`
`
`
`18
`
`
`
`Amendments. The question before us is not whether those violations occurred; indeed, we
`
`are cognizant that the district court in Annappareddy’s criminal case, without passing on
`
`these claims directly, concluded that significant government wrongdoing required the
`
`dismissal of the charges against him. The question is whether, assuming the constitutional
`
`violations exist, there is a cause of action that would allow Annappareddy to recover money
`
`damages from the individual federal defendants. See Earle v. Shreves, 990 F.3d 774, No.
`
`19-6655, 2021 WL 896399, at *2 (4th Cir. Mar. 10, 2021) (“Whether an implied damage
`
`remedy is available for a constitutional claim is logically antecedent to any question about
`
`the merits of the claim.” (internal quotation marks omitted)).
`
`If Annappareddy were bringing these claims against state officials, then there would
`
`be no question that he could seek money damages under 42 U.S.C. § 1983. See Tun-Cos,
`
`922 F.3d at 520. And indeed, as noted earlier, his § 1983 claim against state investigator
`
`Arnold remains pending before the district court. But no statute provides an analogous
`
`“cause of action against federal officials.” Id. So if there is a remedy, then it must come
`
`in the form of the implied cause of action first recognized in Bivens, allowing suits “for
`
`damages against federal officers alleged to have violated a citizen’s rights under the
`
`Constitution.” Earle, 2021 WL 896399, at *2. In that case and then in two subsequent
`
`cases, the Supreme Court allowed plaintiffs alleging certain Fourth, Fifth, and Eighth
`
`Amendment violations to proceed under this implied cause of action. See Bivens, 403 U.S.
`
`at 396–97 (finding remedy for Fourth Amendment violation related to use of unreasonable
`
`force during warrantless search and seizure); Davis v. Passman, 442 U.S. 228, 248–49
`
`(1979) (same for violation of equal protection component of Fifth Amendment Due Process
`19
`
`
`
`
`
`Clause); Carlson v. Green, 446 U.S. 14, 17–19 (1980) (same for violation of Eighth
`
`Amendment Cruel and Unusual Punishments Clause).
`
`In the years since those cases were decided, however, “the Supreme Court’s
`
`approach to implied damage remedies has changed dramatically, to the point that
`
`‘expanding the Bivens remedy is now a disfavored judicial activity.’” Earle, 2021 WL
`
`896399, at *2 (quoting Abbasi, 137 S. Ct. at 1857). Indeed, the Court has “gone so far as
`
`to observe that if ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is
`
`doubtful that [it] would have reached the same result.” Hernandez v. Mesa, 140 S. Ct. 735,
`
`742–43 (2020) (quoting Abbasi, 137 S. Ct. at 1856). “And for almost 40 years, [the Court
`
`has] consistently rebuffed requests to add to the claims allowed under Bivens.” Id. at 743
`
`(gathering cases).
`
`Consistent with that view, the Abbasi framework for determining whether a Bivens
`
`remedy is available “places significant obstacles in the path to recognition of an implied
`
`cause of action.” Earle, 2021 WL 896399, at *3. First, the court must evaluate “whether
`
`a given case presents a ‘new Bivens context.’” Tun-Cos, 922 F.3d at 522. To present a
`
`new context, “a radical difference is not required.” Id. at 523. The Court has set out a non-
`
`exhaustive list of potentially meaningful differences, “some of which are quite minor”:
`
`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 the presence of potential special factors that
`previous Bivens cases did not consider.
`
`20
`
`
`
`
`
`
`
`Id. (quoting Abbasi, 137 S. Ct. at 1860). “If the context is not new . . . then a Bivens remedy
`
`continues to be available.” Id. at 522–23. But if the context is new, courts must move on
`
`to the second step of the Bivens analysis: “evaluat[ing] whether there are ‘special factors
`
`counselling hesitation in the absence of affirmative action by Congress.’” Id. at 523
`
`(quoting Abbasi, 137 S. Ct. at 1857). If such special factors are present, “a Bivens action
`
`is not available.” Id. 8
`
`
`
`We have not yet applied the Abbasi standard to a factual context like the one
`
`presented here – where investigators and prosecutors allegedly participated together in a
`
`long-running scheme to fabricate and destroy evidence during a criminal investigation and
`
`prosecution. But as the district court noted, the Eighth Circuit has, in a set of appeals
`
`arising out of claims by several plaintiffs that a police officer, acting as a deputized U.S.
`
`Marshal, had exaggerated and invented facts and hidden exonerating evidence in order to
`
`implicate them in an alleged sex-trafficking operation. See Farah, 926 F.3d at 496–97;
`
`Ahmed v. Weyker, 984 F.3d 564, 566 (2020). In each case, that court held that Bivens could
`
`not be extended, under the Abbasi framework, to imply a cause of action to remedy the
`
`plaintiffs’ wrongful arrests and prosecutions. Whether or not it would
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