Reddy Annappareddy v. Catherine Pascale ( 2021 )

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,
Defendant – Appellant,
and
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
dismissed the charges against him, finding that the government had used flawed analyses
of the pharmacies’ inventory and billing practices to convict Annappareddy at trial, and
then destroyed relevant evidence while a motion for retrial was pending.
After the case against him was dismissed, Annappareddy filed a wide-ranging
complaint in federal court, seeking compensatory and punitive damages from multiple
defendants. According to Annappareddy, state and federal investigators and prosecutors,
working together, violated his rights under the federal Constitution and Maryland law,
fabricating evidence against him and then destroying exculpatory evidence when it seemed
their malfeasance might come to light. For the complaint’s federal constitutional claims
against individual officers, Annappareddy relied on a Bivens cause of action. He also
sought relief against individual state officers under § 1983 and Maryland state law, and
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
court dismissed Annappareddy’s federal constitutional claims, ruling that they would
constitute impermissible extensions of the Bivens cause of action. But the court allowed
several state-law claims to proceed against one of the prosecutors in charge of
Annappareddy’s criminal case, Catherine Pascale, rejecting her argument that absolute
prosecutorial immunity shielded her from allegations that she had fabricated inculpatory
evidence and destroyed exculpatory evidence.
6
The parties appealed both determinations. On review, we affirm the district court’s
dismissal of the federal constitutional claims. Like the district court, we conclude that
these claims would extend the Bivens remedy into a new context, and that special factors
counsel against an extension to cover intertwined allegations of wrongdoing by prosecutors
and criminal investigators in Annappareddy’s prosecution. We disagree, however, with
the district court’s determination that the state-law claims can move forward against
Pascale, finding instead that absolute prosecutorial immunity bars the claims against her.
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,
accused of fabricating evidence against him and submitting a false affidavit to obtain a
search warrant.
Annappareddy is the founder and owner of Pharmacare, a now-shuttered chain of
pharmacies that once had nine locations in several states. In 2012, Maryland’s Medicaid
Fraud Control Unit (“MFCU”) began investigating Pharmacare’s billing practices after a
7
former employee accused the company of billing government health care programs for
prescriptions that were never delivered. MFCU investigators soon began working with a
pharmacist at one of Pharmacare’s stores, Lisa Ridolfi, to gather evidence. Annappareddy
alleges that Ridolfi, in the hopes of receiving payment as a “whistleblower,” began
fabricating evidence of fraud. According to Annappareddy, Ridolfi’s main contact at the
MFCU, investigator Pam Arnold, was aware of and encouraged these fabrications, and
passed the false information to prosecutors “as if it were accurate and reliable.”
At some point in 2013, federal law enforcement joined the investigation, and began
building a case that Annappareddy was submitting claims for prescriptions for high-dollar
medications that were never filled or received by patients. Maura Lating, a special agent
for the Federal Bureau of Investigation (“FBI”), took over leadership of the team of
investigators. Also on the team was Robert Mosley, a special agent in the Office of
Inspector General of the U.S. Department of Health & Human Services (“HHS”).
Mosley worked with a Medicare drug integrity contractor (“MEDIC”) to prepare
what would turn out to be a critical analysis of Pharmacare’s invoices and inventory. That
MEDIC analysis purported to find “shortages” of dozens of medications – that is, that
Pharmacare had insufficient inventory to fill prescriptions for which it billed and was paid.
Annappareddy alleges that Mosley “rig[ged]” those findings, so that they failed to account
for legal transfers between Pharmacare locations and ignored significant inventory of the
medications in question. J.A. 113. And then, according to Annappareddy, investigators
used this falsified analysis as evidence to obtain both a search warrant against Pharmacare
and a criminal indictment against him.
8
On July 23, 2013, a magistrate judge issued sealed warrants to search six
Pharmacare locations. To secure those warrants, Lating – the FBI agent now leading the
investigation – submitted an affidavit (the “Lating Affidavit”) that, Annappareddy claims,
purported to establish probable cause through “material false statements and omissions.”
J.A. 114. Most important, the Lating Affidavit included the MEDIC “invoice review”
described above, which falsely showed that Pharmacare had medication shortages that in
fact did not exist. Other claimed flaws in the Lating Affidavit included misstatements of
the law governing prescription billing and information provided by untrustworthy
informants. Annappareddy alleges that Lating had “actual knowledge” of these
fabrications and falsehoods, and “acted at least recklessly in making” them. J.A. 116. And
without this flawed evidence, he contends, the Lating Affidavit would not have established
probable cause, and the magistrate judge would not have issued the warrants.
The same day that investigators secured the search warrants, a grand jury charged
Annappareddy and two Pharmacare pharmacy technicians with health care fraud and
aggravated identity theft. Annappareddy alleges that this indictment, like the search
warrants, was secured by evidence Lating, Mosley, and Arnold knew to be false.
Two days later, on July 25, 2013, federal and state agents raided six Pharmacare
locations and executed the search warrants. Because the agents seized computers, servers,
and other material crucial to operations, the raid shut Pharmacare down for good. Four
days after that, law enforcement arrested Annappareddy. He was released pending trial,
subject to restrictions on his movement.
2.
9
We turn now to the post-indictment and trial stage of the case, which introduces the
two prosecutors who also would become defendants in this action. Here, the gist of
Annappareddy’s claim is that investigators and prosecutors used false evidence to obtain a
superseding indictment and then a conviction against him.
After the original indictment, responsibility for the case was turned over to
prosecutors Sandra Wilkinson, an Assistant U.S. Attorney, and Catherine Pascale, an
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.
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
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
produce new analyses of Pharmacare’s inventory. Capobianco, along with the other
investigator defendants, ultimately provided an updated analysis replicating the original
false data on inventory “shortages” and government “losses,” despite knowing that the
failure to account for transfers between Pharmacare locations rendered it erroneous. That
analysis, along with other purportedly fabricated evidence, then was used by prosecutors
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
misinformed” by investigators in the lead-up to the superseding indictment, and “did not
know or have reason to suspect until long after [it] was filed that material false evidence
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
or otherwise correct them, Wilkinson and Pascale continued to seek out new analyses of
Pharmacare’s inventory that could support a conviction at trial. The prosecutors worked
with an internal auditor at the U.S. Attorney’s Office to produce new “shortage” and “loss”
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
of Maryland convicted Annappareddy on two of the three counts in the superseding
indictment on December 15, 2014. Annappareddy remained on release pending
sentencing, subject to home detention. The government asked the district court to sentence
Annappareddy to 12 years in prison, followed by deportation.
3.
Finally, we turn to the post-trial period, and to Annappareddy’s allegations of
evidence destruction. After his conviction and now represented by new counsel,
Annappareddy moved for a new trial. Discovery on that motion soon uncovered evidence
of flaws in the inventory calculations prosecutors had used at trial. That flawed analysis
had been key to establishing the existence of purported shortages of medications for which
Pharmacare had billed various government insurance programs, as well as the
government’s resulting losses. As a result of these disclosures, the government joined
11
Annappareddy’s request for a new trial, and the district court granted it in June 2016. That
summer, the prosecutors secured a second superseding indictment.
As the parties prepared to litigate those new charges, the government disclosed that
while the motion for a new trial was pending, it had destroyed three boxes of documents
containing the only copies of Pharmacare medication and signature logs – documents that
Annappareddy now claims could have confirmed that Pharmacare actually filled and
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
exculpatory nature until later. And in March 2015, prosecutors Wilkinson and Pascale,
and investigators Mosley, Arnold, and Ryan, met at the U.S. Attorney’s Office and decided
to destroy this material. Wilkinson later claimed that the destruction was “part of a general
cleanup of boxes of paper.” J.A. 165. Annappareddy alleges that it was, instead, a
“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
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
also was “troubled” by the government’s unilateral destruction of several boxes of
12
documents while the motion for a new trial was pending. J.A. 174. 1 After the district
court’s order of dismissal, the government initially appealed, but then changed course and
withdrew its appeal. In March 2017, the court dismissed the charges in the original
indictment, ending the criminal case against Annappareddy.
B.
On October 1, 2018, Annappareddy filed suit in the District of Maryland against the
investigators and prosecutors in his criminal case, naming a total of seven individual
defendants. 2 Only some of the 25 counts in the 111-page amended complaint, filed on May
1, 2019, are at issue on appeal. 3
First are several federal constitutional claims, all brought under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the
federal defendants in their individual capacities. The claims brought solely against federal
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
investigators can be boiled down to three basic theories of liability: that they violated the
Fourth Amendment under Franks v. Delaware, 438 U.S. 154 (1978), by knowingly
submitting false information – primarily, MEDIC’s false inventory analysis – to secure the
Pharmacare search warrants; that they again violated the Fourth Amendment by using
similar false evidence to secure the original indictment and arrest warrant; and that they
violated the Fifth Amendment’s Due Process Clause by fabricating a new version of that
false evidence to obtain a superseding indictment and conviction. One additional Bivens
claim ropes in the prosecutors, as well, alleging that both the investigators and prosecutors
violated the Due Process Clause by intentionally destroying exculpatory documents after
Annappareddy’s trial.
Also at issue are several state-law claims against Pascale, the state prosecutor, for
her alleged fabrication and destruction of evidence. Annappareddy claims that Pascale
intentionally inflicted emotional distress on him, violated his rights to procedural and
substantive due process under Article 24 of the Maryland Constitution’s Declaration of
Rights, and participated in a civil conspiracy to violate his rights.
On October 18, 2019, the district court issued a lengthy written order addressing
several motions to dismiss filed by the individual defendants, making two determinations
at issue on appeal.
14
First, the district court dismissed Annappareddy’s Bivens claims. 4 To “determin[e]
whether to allow a claim asserted under Bivens to proceed,” the court applied the “two-step
framework” from Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), inquiring first whether
the claims presented a new Bivens context; and then, if so, whether special factors
counseled hesitation in extending a judicial remedy. J.A. 523–24 (citing Tun-Cos v.
Perrotte, 922 F.3d 514, 522–23 (4th Cir. 2019)). In conducting that analysis, the court
found especially helpful a recent Eighth Circuit decision, Farah v. Weyker, 926 F.3d 492(2019), holding that similar claims of fabrication of evidence by law enforcement agents
could not proceed under Bivens.
Applying the first step of the Abbasi framework, the district court concluded that
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
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
defendants – federal prosecutors. And even the more standard Fourth Amendment search
claims against non-prosecutor defendants, the court reasoned, involved searches –
performed with a warrant on commercial pharmacies – and conduct – “information-
gathering and case-building” – very different from the warrantless detention and search of
a person at issue in Bivens. J.A. 528 (citing Farah, 926 F.3d at 499). More generally, the
We here consider only the Bivens claims that Annappareddy has continued to press
4
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
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
counseled hesitation in extending Bivens. The interconnected allegations of widespread
malfeasance in Annappareddy’s complaint, the court explained, not only differentiated the
case from Bivens, but also counseled against extending the Bivens remedy: Evaluating
those claims would “cause a deep and wide-ranging dive into all actions taken by each
actor as well as all evidence available to investigators, prosecutors, judges, and juries (both
trial and grand jury),” which could intrude into the executive branch’s authority to enforce
the law and “impact government operations systemwide.” J.A. 530. The court also
determined that the existing, limited remedial structure Congress had crafted for criminal
defendants subject to government misconduct counseled against creating an implied Bivens
action. “[T]he fact that Congress has expressly provided a damages remedy for some
victims of this particular type of injury, but not for others, suggests that it considered the
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
entitled to absolute immunity from the remaining claims against her, which arose under
state law. As the district court explained, courts determine whether a prosecutor is
protected by absolute immunity using a functional approach, asking whether a given act is
“intimately associated with the judicial phase of the criminal process.” J.A. 535 (quoting
16
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
claims against Pascale – that she destroyed exculpatory evidence or that she fabricated
inculpatory evidence – was intimately associated with the judicial phase of a prosecution.
Specifically, as to destruction, the court concluded that the decision to throw out
documents, in this context, was purely “administrative”: As the court read the complaint,
the evidence was destroyed “as part of a general cleanup” undertaken because of limited
storage. J.A. 535–36. As to fabrication, the court reasoned that “join[ing] in a conspiracy
to fabricate evidence” was not a prosecutorial act, and more resembled the conduct of an
investigator in the “pre-prosecutorial investigative” stage of a criminal case. J.A. 536–37
(citing Kalina v. Fletcher, 522 U.S. 118, 126 (1997)). 5
II.
We consider two consolidated appeals arising out of these complex district court
proceedings. First, Annappareddy has appealed the dismissal of his Bivens claims. 6 We
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 be sound policy to
provide such a remedy, the court concluded, it would have to come from Congress, and not
the courts. See Farah, 926 F.3d at 502.
8
Annappareddy suggests that we do not need to engage in this two-part test because
Abbasi “reaffirm[ed]” the continuing availability of Bivens claims that, like his, arise in the
“common and recurrent” sphere of law enforcement operations. But we have already held
that Abbasi is “the framework that now must be applied in determining whether a Bivens
remedy is available against federal officials.” Tun-Cos, 922 F.3d at 522 (emphasis added).
21
1.
Against this backdrop, we turn now to the claims at issue in this case, starting with
Annappareddy’s two claims under the Fifth Amendment’s Due Process Clause: that
federal investigators violated his due process rights by fabricating evidence to secure the
superseding indictment, and that federal investigators and prosecutors deprived him of due
process by deliberately destroying exculpatory evidence. Although Annappareddy has
preserved these claims on appeal, he does not focus on them; at oral argument, he conceded
that they are the weaker of his Bivens claims. We agree with that assessment and may
dispense briefly with them here.
Under Abbasi’s first step, these claims clearly present a new Bivens context. As the
district court correctly recognized, Bivens has never “been extended to a Fifth Amendment
due process claim.” J.A. 525; see Abbasi, 137 S. Ct. at 1860 (listing “the constitutional
right at issue” as potential meaningful difference). Although the Supreme Court did
recognize a Bivens cause of action in a Fifth Amendment equal protection case arising from
alleged sex discrimination in federal employment, Davis, 442 U.S. at 248–49, the
fabrication and destruction of evidence claims here “are far afield from the sex[]
discrimination context presented” in Davis, J.A. 526. And beyond the different right at
issue, one of Annappareddy’s Fifth Amendment claims also seeks to hold accountable a
new set of defendants – federal prosecutors. See Abbasi, 137 S. Ct. at 1857 (naming “new
category of defendants” as potential meaningful difference). By itself, these distinctions
are enough to establish that we are in a new context for Bivens purposes.
22
We also have little difficulty concluding that special factors counsel hesitation in
extending the Bivens cause of action to this new constitutional right and class of defendants.
Proving claims like these – the falsification and destruction of evidence by prosecutors as
well as investigators, in connection with a criminal prosecution – would “invite a wide-
ranging inquiry into the evidence available to investigators, prosecutors, and the grand
jury,” Farah, 926 F.3d at 500, and could require a jury to determine “what [officers] knew,
what [they] did not know, and [their] state of mind at the time,” Ahmed, 984 F.3d at 570.
All of these “after-the-fact inquiries” pose the kind of “risk of intrusion on executive-
branch authority to enforce the law and prosecute crimes” that counsels against implying a
cause of action for damages. Farah, 926 F.3d at 501.
2.
The focus of Annappareddy’s appeal is his Fourth Amendment claims against the
federal investigators – Lating and Mosley – who were responsible for securing search
warrants against his pharmacies and an arrest warrant and indictment against him.
According to Annappareddy, those investigators violated the Fourth Amendment in two
respects: first by falsifying the affidavit submitted to obtain the search warrant (the
“Franks claims”), and then by falsifying evidence in support of the arrest warrant and
original indictment (the “false arrest claims”). On appeal, Annappareddy urges us to treat
those claims separately, but we think they are not so easily disentangled. Annappareddy’s
own complaint recognizes the significant overlap in the alleged wrongdoing associated
with each – including nearly identical calculations of “loss,” and similar misstatements of
the law governing prescription refills. Indeed, the search warrant against Pharmacare and
23
indictment charging Annappareddy were secured on the very same day. Nevertheless, we
treat these claims separately to the extent possible and useful for our analysis. And as
explained below, we find that no Bivens remedy is available for any of these factually
intertwined Fourth Amendment claims.
a.
We start with whether Annappareddy’s Fourth Amendment claims present a “new
context” under Abbasi’s first step. The most analogous Supreme Court private-remedy
case is Bivens itself, which recognized a cause of action against federal officers who
violated the plaintiff’s Fourth Amendment rights during a warrantless search and seizure.
See Bivens, 403 U.S. at 389. And there are respects in which Annappareddy’s claims
resemble those raised in Bivens. For instance, as in Bivens, the plaintiff seeks to hold
accountable only line-level investigative officers, not high-ranking officials. See Abbasi,
137 S. Ct. at 1860 (naming “rank of the officers involved” as example of possible
meaningful difference). And in both cases, the officers sought to enforce only ordinary
criminal laws. See Tun-Cos, 922 F.3d at 524 (contrasting immigration and criminal law-
enforcement officers).
Nevertheless, we are persuaded that each of these Fourth Amendment claims in fact
arises in a different context than the one recognized in Bivens. See Ahmed, 984 F.3d at 570
(“When one or more meaningful differences exist, it is not enough to identify a few
similarities.”). First, although Bivens, too, was a Fourth Amendment case, “[c]ourts 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.’” Cantú v. Moody, 933 F.3d 414, 422
24
(5th Cir. 2019). What Bivens involved was the Fourth Amendment right to be free of
unreasonable warrantless searches and seizures; this case, by contrast, involves searches
and a seizure conducted with a warrant. It thus implicates a distinct Fourth Amendment
guarantee – that “no Warrants shall issue, but upon probable cause,” see U.S. Const. amend.
IV – governed by different legal standards. See Cantú, 933 F.3d at 423 (“‘Judicial
guidance’ differs across the various kinds of Fourth Amendment violations.”). Indeed, the
Fourth Amendment sharply distinguishes between with-warrant and warrantless searches,
treating the introduction of a warrant as a signal moment in the proceedings. See United
States v. Leon, 468 U.S. 897, 913–14 (1984) (establishing “good faith” exception to
exclusionary rule for with-warrant searches). For purposes of determining whether this is
a “new” Bivens context, we think the “right at issue” here is meaningfully different from
the one at issue in Bivens itself. See Abbasi, 137 S. Ct. at 1860 (listing “right at issue” as
possible difference). 9
Other factors distinguish this context, as well. For one thing, the “alleged misdeeds”
here are “different from those in Bivens.” Farah, 926 F.3d at 498. Speaking “to witnesses,
9
We recognize that the Supreme Court in one case grappled with a Bivens claim
arising out of a challenge to a search warrant. See Groh v. Ramirez, 540 U.S. 551, 555
(2004). But Groh involved an alleged facial defect in a warrant and required no inquiry
into probable cause. See id. at 557. And more fundamentally, no party in Groh questioned
the existence of a Bivens remedy, so the Court seemed only to assume – and was not called
on to decide – that the plaintiffs should be able to proceed with that claim. See id. at 555.
Similarly, in Unus v. Kane, 565 F.3d 103 (4th Cir. 2009), on which Annappareddy relies,
we rejected a Bivens plaintiff’s Fourth Amendment fabrication-of-evidence claim on other
grounds, and so had no need to affirm that a Bivens cause of action was available. See id.at 123–25.
25
draft[ing] reports, and shar[ing] information with prosecutors and other investigators” are
“information-gathering and case-building activities” that represent “a different part of
police work than the apprehension, detention, and physical searches at issue in Bivens.”
Id. at 499. As the district court put it, “[t]he Court in Bivens never contemplated” the kind
of “extensive data gathering, analysis, examination, and coordination” at issue in this case.
J.A. 527.
These differences are especially significant because they mean that proving the
claims here would require “a different type of showing” than did the claims in Bivens, see
Ahmed, 984 F.3d at 569 – one that would pose a greater risk of intruding on the
investigatory and prosecutorial functions of the executive branch. See Abbasi, 137 S. Ct.
at 1860 (listing “risk of disruptive intrusion” by the judiciary into other branches as
potential difference). To succeed on his Franks claims, Annappareddy would have to
establish that the defendants knowingly and intentionally or with reckless disregard for the
truth made false statements or omissions in the warrant affidavit, and that those false
statements or omissions were material to the magistrate judge’s finding of probable cause.
See Evans v. Chalmers, 703 F.3d 636, 650 (4th Cir. 2012). And to prevail on his Fourth
Amendment false arrest claims, Annappareddy similarly would have to establish, among
other things, that the defendants had “deliberately or with a reckless disregard for the truth”
made material false statements or omissions, “undercut[ting] the grand jury’s probable
cause determination.” Massey v. Ojaniit, 759 F.3d 343, 357 (4th Cir. 2014). “Bivens did
not require this type of fact-checking and conscience-probing, . . . which can, as the
Supreme Court has warned, impose ‘substantial costs.’” Ahmed, 984 F.3d at 569 (quoting
26
Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982)); see also Farah, 926 F.3d at 499 (finding
new context because claim would require “probing executive charging decisions and
peeking behind the curtain of customarily secret grand-jury proceedings”).
Finally, we find it significant that the search warrants in this case ran against the
corporate entity of Pharmacare, and not the plaintiff himself. The plaintiff in Bivens, of
course, had himself been searched by the officers he was suing. There appear to be no
cases – in the Supreme Court or any other court – approving a Bivens claim for acts taken
against a corporate entity. Such a claim might well raise complex issues not at issue in
Bivens, and further distinguish this case from the Bivens context. Cf. Life Savers Concepts
Ass’n of Cal. v. Wynar, 387 F. Supp. 3d 989, 998–99 (N.D. Cal. 2019) (holding that
corporate entity seeking to assert Bivens claim on behalf of employees presents new context
under Abbasi).
When we take all of this together, we, like the district court, conclude that
Annappareddy’s Fourth Amendment claims are meaningfully different than those in
Bivens, and, if permitted to proceed, would extend Bivens into a new context.
b.
That brings us to the second step of the Abbasi analysis, and whether any “special
factors” counsel hesitation in extending the Bivens implied cause of action to
Annappareddy’s Fourth Amendment claims. See Abbasi, 137 S. Ct. at 1857–58. “The
focus of the special-factors inquiry is ‘whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and benefits of allowing
a damages action to proceed.’” Earle, 2021 WL 896399, at *3 (quoting Abbasi, 137 S. Ct.
27at 1858). We agree with the district court that it is not, and that “any such remedy [must]
come from Congress itself.” J.A. 532.
One special factor here is the existence of “an alternative remedial structure,” even
if it does not go so far as a Bivens remedy would. Abbasi, 137 S. Ct. at 1858. By itself, as
the district court emphasized, that factor “alone may limit the power of the Judiciary to
infer a new Bivens cause of action.” J.A. 529 (quoting Abbasi, 137 S. Ct. at 1858). And
as the Eighth Circuit explained in Farah, Congress indeed has created a distinct and limited
set of remedies to compensate individuals who suffer as a result of wrongful governmental
conduct in the course of criminal prosecutions. See Farah, 926 F.3d at 501 (discussing
statutory remedies allowing criminal defendants who prevail against “vexatious, frivolous,
or . . . bad[-]faith” government litigating positions to recover attorneys’ fees and providing
cause of action for those who were wrongfully convicted (quoting Act of Nov. 26, 1997,
Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (codified at 18 U.S.C. § 3006A note))).
“The fact that Congress has expressly provided a damages remedy for some victims of this
particular type of injury, but not for others, suggests that it considered the issue and made
a deliberate choice,” id. at 502 – and counsels against us stepping in to create a
“freestanding remedy in damages” here, id. (quoting Abbasi, 137 S. Ct. at 1858).
Also counseling hesitation is the risk that a Bivens action for these Fourth
Amendment claims would require courts to interfere in the executive branch’s investigative
and prosecutorial functions. See Abbasi, 137 S. Ct. at 1861 (considering whether a Bivens
action “would require courts to interfere in an intrusive way with sensitive functions of the
Executive Branch”). As the district court explained, the Fourth Amendment allegations
28
here, charging concerted action by numerous investigators and prosecutors, arise out of a
complex and multi-agency investigation into the billing practices and inventories of several
pharmacies in different states. J.A. 526–28. And the complaint alleges that the same basic
acts of wrongdoing – the purposeful manipulation of a complicated analysis of
Pharmacare’s inventory and invoices to produce fabricated medication shortages –
supported not only the securing of a warrant against Pharmacare locations, but also a grand
jury indictment against Annappareddy. Under those circumstances, we do not see how
evaluating Annappareddy’s Fourth Amendment claims could avoid “a wide-ranging dive
into all actions taken by each actor as well as all evidence available to investigators,
prosecutors, judges, and juries.” J.A. 530; see Farah, 926 F.3d at 500 (identifying as
“special factor” need for “wide-ranging inquiry into the evidence available to investigators,
prosecutors, and the grand jury”).
Annappareddy urges us to isolate his Franks claim from his intertwined allegations,
and to focus on that alone. And when it comes to Franks, Annappareddy argues, there is
nothing “special” about the inquiry into material falsity and probable cause that would be
required; indeed, courts routinely undertake that inquiry in § 1983 cases raising Franks
claims against state officers. Again, we are not convinced that the Franks claim here can
be separated cleanly from Annappareddy’s other constitutional claims. And while we of
course do not doubt that federal courts are capable of adjudicating Franks claims under
§ 1983, that is not the end of the inquiry under Abbasi: In the § 1983 context, it is
“Congress,” and not a court, that has “balanced the costs and benefits and decided that the
29
potential encroachment” on executive authority that comes along with a Franks inquiry is
worth the price. Farah, 926 F.3d at 501.
In short, we agree with the district court that “special factors” counsel against
extension of an implied cause of action into this new Bivens context. That does not mean
that we can think of no policy reasons for making such a remedy available. But it does
mean that “whether a damages action should be allowed is a decision for the Congress to
make, not the courts.” Abbasi, 137 S. Ct. at 1860.
B.
We turn now to the appeal of state prosecutor Catherine Pascale, challenging the
district court’s determination that she is not entitled to absolute prosecutorial immunity
against charges, brought under Maryland state law, that she both fabricated and destroyed
evidence. For the reasons given below, we agree with Pascale that she is shielded by
prosecutorial immunity and that the state-law charges against her must be dismissed. 10
10
Following the district court’s dismissal of the Bivens claims and other
determinations not at issue on appeal, there remained three Maryland-law claims against
Pascale: claims for intentional infliction of emotional distress, for violations of
Annappareddy’s state constitutional right to due process, and for civil conspiracy. It is not
entirely clear which factual predicates – evidence fabrication, evidence destruction, or both
– the district court permitted to go forward under each. But we read the district court order
as allowing, at a minimum, pursuit of the intentional infliction of emotional distress claim
with respect to both those predicates, and so we address both here. And because we find
that Pascale is absolutely immune as to both, regardless of the cause of action, there is no
need to disentangle this matter further.
30
1.
Again, we begin with the legal context for Pascale’s assertion of immunity. As the
district court explained, Maryland has adopted the federal doctrine of absolute
prosecutorial immunity. J.A. 537 (citing Gill, 724 A.2d 88). Under that doctrine, “absolute
immunity safeguards the process, not the person,” and so extends only to actions
“intimately associated with the judicial phase of the criminal process.” Nero, 890 F.3d at
117–18 (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)). To determine
whether an act is so “intimately” associated with the judicial phase that it warrants absolute
immunity, courts take a “functional approach,” Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993), looking to the “nature of the function performed” and not the “identity of the actor
who performed it,” Nero, 890 F.3d at 118 (quoting Buckley, 509 U.S. at 269). Even a
prosecutor, that is, will be entitled only to qualified immunity, rather than absolute
immunity, if she is performing a function that is not tied to the judicial phase of the process.
Buckley, 509 U.S. at 273.
In applying this functional approach, the timing of a prosecutor’s conduct is a key
factor. See id. at 274–75. Actions taken by a prosecutor after a probable-cause
determination has been made generally are classified as “advocative” functions, Nero, 890
F.3d at 118 – “relat[ing] to an advocate’s preparation for the initiation of a prosecution or
for judicial proceedings” – that trigger absolute immunity, Buckley, 509 U.S. at 272–73.
That includes, of course, the presentation of evidence at trial, or before a grand jury after a
decision to seek an indictment is made. Id. at 273. By contrast, actions taken before
probable cause is established are more likely to be “investigative” in nature – the same kind
31
of function normally performed by detectives or police officers – and therefore protected
only by qualified immunity. Id. Thus, in Buckley, the Court denied absolute prosecutorial
immunity to prosecutors who allegedly manufactured false evidence “during the
preliminary investigation of an unsolved crime,” because “[t]heir mission at that time was
entirely investigative.” Id. at 274–75.
We recognize that when absolute prosecutorial immunity applies – as we find it does
here – it may in some cases lead to unfair results, “leav[ing] the genuinely wronged
defendant without civil redress against a prosecutor whose malicious or dishonest action
deprives him of liberty.” Imbler, 424 U.S. at 427. But as we have explained, the Supreme
Court has concluded that “important public policy justification[s]” outweigh these harms.
Savage v. Maryland, 896 F.3d 260, 268 (4th Cir. 2018) (internal quotation marks omitted).
“The public trust of the prosecutor’s office would suffer if he were constrained in making
every decision by the consequences in terms of his own potential liability in a suit for
damages.” Nero, 890 F.3d at 117 (quoting Imbler, 424 U.S. at 424–25). And without
immunity, this threat of damages could “predispose prosecutors to bring charges based not
on merit but on the social or political capital of prospective defendants.” Id. So whatever
the perceived equities of a particular case, we protect the judicial process as a whole by
affording complete immunity to a prosecutor’s advocative functions.
2.
We turn now to Annappareddy’s claims against Pascale, beginning with the claim
that she fabricated evidence. Specifically, Annappareddy’s complaint alleges that after the
superseding indictment was returned against him in March of 2014, Pascale, along with
32
prosecutor Wilkinson, first learned of the flaws in the MEDIC analysis of Pharmacare’s
inventory, which purported to find medication “shortages” indicating that Pharmacare was
billing for prescriptions it never delivered. That summer, according to Annappareddy –
about a year after the original July 2013 indictment against him, and months after the
superseding indictment – Pascale participated in the fabrication of a new inventory
analysis, which produced the same false “shortage” and “loss” figures as the old one, and
was used at trial to convict Annappareddy. J.A. 157, 159.
We readily conclude that under Buckley’s functional analysis, these allegations go
to Pascale’s “advocative” role and are sufficiently tied to the “judicial process” to warrant
absolute prosecutorial immunity. Generously construed, Annappareddy’s complaint
alleges wrongdoing on Pascale’s part that occurred only after he had been identified as a
suspect, after probable cause had been established, and after he had been twice indicted. 11
Indeed, the complaint avers expressly – twice – that at earlier periods in the proceedings,
Pascale and her fellow prosecutor were unaware of the fabrication of false evidence and its
presentation to two grand juries. And were there any doubt on this score, Annappareddy’s
11
We think there is some question whether the complaint sufficiently alleges the
involvement of Pascale – as opposed to Wilkinson, the other prosecutor – in any evidence
fabrication at all: The complaint’s specific allegations deal exclusively with Wilkinson or
point to Wilkinson as spearheading the relevant investigations. Cf. Nero, 890 F.3d at 120
n.4 (declining to assume as true “conclusory allegations” of prosecutorial misconduct
during investigative stage of proceeding). But at this early stage of the litigation, we will
read the complaint generously, as sufficiently implicating Pascale in the evidence-
fabrication allegations.
33
counsel resolved it at oral argument, effectively conceding that all the allegations against
Pascale concerned post-indictment conduct.
In the context of this case, that is enough to establish that Pascale’s alleged evidence
fabrication was undertaken in her “advocative” capacity, in preparation for the trial that
was about to begin, and not as an “investigator” seeking probable cause for an arrest or
indictment. See Buckley, 509 U.S. at 273–74; see also, e.g., Cousin v. Small, 325 F.3d 627,
635 (5th Cir. 2003) (holding that prosecutor’s alleged solicitation of false testimony was
protected by absolute immunity because suspect already was identified and probable cause
already was established); Hill v. City of New York, 45 F.3d 653, 663 (2d Cir. 1995)
(explaining that whether alleged fabrication of evidence was “advocative” or
“investigative” turned on whether probable cause already had been established). To be
sure, “a determination of probable cause does not guarantee a prosecutor absolute
immunity from liability for all actions taken afterwards.” Buckley, 509 U.S. at 274 n.5.
But here, the specific allegation against Pascale is that she began to take a “more hands-on
approach” in anticipation of trial, once she realized that the existing MEDIC inventory
analysis was “not nearly as favorable [to] the government” as she had expected. J.A. 154,
157. This is not the hypothetical post-indictment “police investigative work” reserved by
the Court in Buckley. See 509 U.S. at 274 n.5. Instead, it falls squarely on the trial-
preparation side of the line. See Cousin, 325 F.3d at 635 (holding that prosecutor acts as
advocate in connection with interview “intended to secure evidence that would be used in
the presentation of the state’s case at the pending trial of an already identified suspect”);
Savage, 896 F.3d at 269 (describing advocative role as “encompass[ing] acts undertaken
34
by a prosecutor in preparing for . . . trial – including, specifically, the professional
evaluation of the evidence assembled by the police and appropriate preparation for its
presentation at trial” (internal citation and quotation marks omitted)). Because Pascale was
acting in her role as advocate when she allegedly fabricated evidence for use at trial, she is
shielded by absolute prosecutorial immunity.
3.
Finally, we turn to Annappareddy’s allegation that Pascale participated in the
destruction of exculpatory evidence. According to the complaint, while Annappareddy’s
motion for a new trial was pending, Pascale, in concert with other defendants, destroyed
three boxes of documents – documents that would have confirmed that Pharmacare indeed
had filled the prescriptions for which it had billed, and, conversely, that the government
had relied on false inventory analysis to prove otherwise at trial. This claim, too, we hold,
goes to actions taken in an “advocative” capacity and is therefore barred by absolute
prosecutorial immunity.
It is well established – and the parties here agree – that the failure to disclose
exculpatory evidence while a criminal proceeding is pending is an “advocative” function
protected by absolute immunity. As the Supreme Court explained in Imbler, the “deliberate
withholding of exculpatory information,” even if unconstitutional, is considered part of the
prosecutorial role for immunity purposes. See 424 U.S. at 431 n.34; see also Van de Kamp
v. Goldstein, 555 U.S. 335, 344–45 (2009) (explaining that prosecutors “enjoy absolute
immunity” for failure to disclose evidence, because such conduct necessarily involves
preparation for trial and the evidence presented at trial). As a result, we and other circuits
35
routinely hold that prosecutors are shielded by absolute immunity from claims that they
deliberately withheld materially exculpatory evidence at any point in a criminal
proceeding. See Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994) (applying absolute
immunity to failure to disclose exculpatory evidence during post-conviction and appellate
proceedings); see also, e.g., Reid v. New Hampshire, 56 F.3d 332, 336 (1st Cir. 1995)
(“[U]nder Imbler, it is now [a] well-settled rule that a prosecutor cannot be held personally
liable for the knowing suppression of exculpatory information.”).
The question in this case, then, is whether there is something about Annappareddy’s
claim that evidence was destroyed – rather than withheld – that would bring it outside this
well-established rule. The district court thought this case was different because, “viewing
the [complaint’s] allegations in the light most favorable” to Annappareddy, the decision to
discard the boxes in question was made “as part of a general cleanup” and was thus purely
“administrative” and unconnected to any advocative function. J.A. 536; see Van de Kamp,
555 U.S. at 342 (explaining that absolute immunity may not apply when prosecutor is
engaged in “administrative” tasks); Imbler, 424 U.S. at 431 n.33 (distinguishing between
advocative and administrative functions). We do not think Annappareddy’s complaint can
bear that reading. What Annappareddy is alleging is not an innocent mistake made in the
course of an office cleanup; it is that Pascale and the other defendants purposefully
shredded three boxes of evidence, singling out for “covert, selective, and intentional”
destruction “unique exculpatory documents” so that they could not be used by
Annappareddy at a retrial or to expose the defendants’ original wrongdoing. J.A. 162–65.
36
And indeed, Annappareddy does not meaningfully defend the “office cleanup” theory on
appeal, perhaps because it would so badly undermine the thrust of his actual allegations. 12
Instead, Annappareddy argues that although the failure to disclose exculpatory
evidence is advocative in nature and thus protected by absolute immunity, the destruction
of exculpatory evidence is not. The failure to furnish evidence to the defense,
Annappareddy recognizes, involves an exercise of prosecutorial discretion that bears on
the evidence that will be introduced during judicial proceedings. But once that decision
has been made, he argues, the advocative function comes to an end, and the actual disposal
of that evidence implicates only ministerial or custodial functions.
We do not think this is a meaningful distinction. Claims that evidence has been
intentionally withheld and claims that evidence has been destroyed often will be two sides
of the same coin, with one easily reframed as the other. See Imbler, 424 U.S. at 431 n.34
(finding proposed distinction between use of perjured testimony, protected by absolute
immunity, and withholding of evidence is “not susceptible of practical application”). The
Ninth Circuit rejected a similar distinction in finding that a prosecutor’s release of
exculpatory evidence, predictably leading to its destruction, was shielded by absolute
immunity: In deciding whether to preserve the evidence or allow its destruction, “the
12
Pascale also argues that even if the complaint could be read to allege the
performance of an “administrative” task, the destruction of evidence at issue would be the
kind of administrative task – directly associated with the judicial process, and requiring
legal knowledge and the exercise of discretion – that might still be protected by absolute
immunity. See Van de Kamp, 555 U.S. at 344. Because we do not think the complaint can
be read that way, we have no occasion to pass on this contention.
37
primary consideration, viewed objectively, is whether the prosecutor needs the evidence to
prosecute” – a decision that “goes to the heart of the advocate’s role ‘in initiating a
prosecution and in presenting the State’s case.’” Ybarra v. Reno Thunderbird Mobile
Home Vill., 723 F.2d 675, 679 (9th Cir. 1984) (quoting Imbler, 424 U.S. at 431); see also
Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (holding that claim against
prosecutors for destruction of exculpatory evidence is barred by absolute prosecutorial
immunity). We agree. Under the functional approach of cases like Imbler, what matters
is the decision to withhold exculpatory evidence from a defendant and the judicial process.
See 424 U.S. at 431 n.34; Van de Kamp, 555 U.S. at 345. That decision is made in an
“advocative” capacity whether or not it is accompanied by the evidence’s destruction. 13
13
We recognize that there is one case, Yarris v. County of Delaware, 465 F.3d 129(3d Cir. 2006), in which a federal circuit has distinguished between withholding and
destroying evidence for purposes of prosecutorial immunity. For the reasons given above,
we are not persuaded that this is a workable distinction. But in any event, we note that the
reasoning of Yarris – that “[o]nce the decision is made not to furnish evidence to the
defense, no additional protectible prosecutorial discretion is involved in deciding to dispose
of it,” id. at 136–37 (internal quotation marks omitted) – is a bad match for this case. Here,
the destroyed materials were properly disclosed prior to Annappareddy’s first trial, though
neither the government nor the defense made use of them. And Annappareddy does not
allege that at the time of the destruction, the defendants already had made some
independent decision not to disclose the documents in the future. Instead, it is the
destructive act itself, according to the complaint, that reflected a deliberate decision to
deprive Annappareddy of “unique exculpatory documents” while his new trial motion was
pending. See J.A. 164.
38
III.
For the reasons given above, the judgment of the district court is affirmed in part
and reversed in part, and we remand for further proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
39