A Second Superseding Indictment Restores Probable Cause and Forecloses FTCA Malicious Prosecution; No Bivens Extension for CBP Grand Jury Testimony

Introduction

In Sanchez-Jimenez v. United States, the First Circuit affirmed dismissal of a two-pronged civil suit arising from a Customs and Border Protection (CBP) encounter at the Puerto Rico entry point. The plaintiff, José Amaury Sánchez-Jiménez, alleged malicious prosecution under the Federal Tort Claims Act (FTCA) and pursued a Bivens claim against a CBP officer for purportedly false grand jury testimony. The district court dismissed the FTCA claim for failure to exhaust administrative remedies and the Bivens claim as unavailable in this context. On appeal, the First Circuit affirmed, but on the FTCA claim took a merits route: assuming statutory jurisdiction arguendo and holding that a later, untainted second superseding indictment independently established probable cause, defeating the malicious prosecution theory under Puerto Rico law.

The opinion delivers two clear signals. First, where a grand jury returns a second superseding indictment after testimony that aligns with the plaintiff’s own admissions, that later indictment “definitively establishes probable cause” unless the plaintiff plausibly alleges it too was procured by knowing falsehood. Second, consistent with the Supreme Court’s post-Egbert jurisprudence, courts will not extend Bivens to a new context—here, a CBP agent’s grand jury testimony—particularly where national security and border-enforcement considerations are implicated, and where the appellant fails to confront controlling authority on appeal.

Summary of the Opinion

FTCA claim (malicious prosecution): The court declined to resolve the exhaustion/jurisdiction dispute and instead affirmed on the merits. Applying Puerto Rico law, the court held that a second superseding indictment—returned after new CBP testimony that the plaintiff hid documents because he was unsure whether they were valid—established probable cause. Because the plaintiff did not allege that the second superseding indictment was procured by knowingly false testimony, his malicious prosecution claim failed as a matter of law.
Bivens claim (false grand jury testimony by a CBP officer): The court refused to extend Bivens to this new context. Relying on Hernández v. Mesa and Egbert v. Boule, and echoing the Supreme Court’s recent admonitions in Goldey v. Fields, the panel held that special factors—including national security and the sensitivity of CBP operations—counsel against recognizing a new Bivens remedy. The court also emphasized appellate waiver: the appellant failed to engage with Hernández/Egbert, dooming his extension bid.
Disposition: Affirmed.

Analysis

Precedents Cited and How They Shaped the Outcome

FTCA framework and exhaustion

FDIC v. Meyer (1994): Confirms the FTCA’s waiver of sovereign immunity for certain state-law torts committed by federal employees within the scope of employment.
McNeil v. United States (1993): FTCA plaintiffs must exhaust administrative remedies before filing suit.
Holloway v. United States (1st Cir. 2017): Administrative presentment requires notice and a “sum certain,” often via Standard Form 95.
Brownback v. King (2021) and Linder v. United States (7th Cir. 2019): Reiterate that the FTCA borrows substantive law from the “law of the place.”

Malicious prosecution and probable cause under Puerto Rico law

Díaz-Nieves v. United States (1st Cir. 2017): Malicious prosecution under Puerto Rico law requires, among other elements, an absence of probable cause.
González Rucci v. U.S. INS (1st Cir. 2005): A grand jury indictment “definitively establishes probable cause” unless obtained by knowingly false testimony.

Pleading record and materials at Rule 12(b)(6)

Schatz v. Republican State Leadership Committee (1st Cir. 2012) and Arturet-Vélez v. R.J. Reynolds (1st Cir. 2005): Courts may consider documents attached to the motion to dismiss or incorporated by reference without converting to summary judgment, as well as facts suitable for judicial notice.

Assuming statutory jurisdiction to reach the merits

Gupta v. Jaddou (1st Cir. 2024) and Doe v. Town of Lisbon (1st Cir. 2023): When only statutory (not constitutional) jurisdiction is in question, courts may assume jurisdiction to decide the merits if doing so favors the party challenging jurisdiction.
Cangrejeros de Santurce Baseball Club v. Liga de Béisbol Profesional de Puerto Rico (1st Cir. 2025): Appellate courts may affirm on any ground apparent in the record.

Bivens and its contraction

The “Bivens trilogy”: Bivens v. Six Unknown Named Agents (1971) (Fourth Amendment search/seizure), Davis v. Passman (1979) (Fifth Amendment sex discrimination by a congressman), Carlson v. Green (1980) (Eighth Amendment deliberate indifference by prison officials).
Corr. Services Corp. v. Malesko (2001), Ziglar v. Abbasi (2017), Hernández v. Mesa (2020), and Egbert v. Boule (2022): The Court has “consistently refused” to extend Bivens to new contexts; expanding Bivens is a “disfavored” activity; any “special factors” advising hesitation are enough to preclude a judicially created damages remedy.
Goldey v. Fields (2025) (per curiam): Reiterates that in all but the most unusual circumstances, creating causes of action is Congress’s domain; courts should abstain from extending Bivens where institutional concerns exist.
DeVillier v. Texas (2024): Constitutional rights generally do not come with built-in private causes of action; absent statute or narrow common-law analogues, plaintiffs cannot assume a damages remedy.
Arias v. Herzon (1st Cir. 2025): Acknowledges that Bivens remains good law within its core, but emphasizes Egbert’s restrictive approach.
Quinones-Pimentel v. Cannon (1st Cir. 2023) and Snowden v. Henning (7th Cir. 2023): Any special factor is sufficient to preclude a Bivens remedy; a “meaningful” difference changes the policy balance underlying the trilogy and defeats extension.

Waiver on appeal

Miller v. Jackson (1st Cir. 2025), Vizcarrondo-González v. Vilsack (1st Cir. 2024), and Tayag v. Lahey Clinic (1st Cir. 2011): Issues not meaningfully argued in an opening appellate brief are waived.

The Court’s Legal Reasoning

1) FTCA malicious prosecution: probable cause defeats the claim

The FTCA borrows Puerto Rico’s substantive law, which requires absence of probable cause for malicious prosecution. The panel held that a second superseding indictment—returned after CBP Agent Juan Batista testified that Sánchez hid the passport because he “wasn’t sure if [the documents] were good or not”—conclusively establishes probable cause. The plaintiff’s theory hinged on a different CBP officer’s alleged lie to the first grand jury (that Sánchez “knew” the documents were fraudulent), but that causal chain was broken by the subsequent, later indictment. The court emphasized:

An indictment presumptively establishes probable cause unless the plaintiff plausibly alleges it was obtained through knowingly false testimony (Díaz-Nieves; González Rucci).
The plaintiff did not challenge the later indictment or claim Agent Batista lied to the grand jury; nor did he object contemporaneously to Batista’s testimony.
Documents showing the second superseding indictment and Batista’s testimony were properly considered at the Rule 12(b)(6) stage as incorporated materials.

This “later-indictment cures” principle aligns with core malicious prosecution doctrine: a superseding indictment, if independent and untainted, independently supplies probable cause and defeats the tort. Because the court could assume statutory jurisdiction and decide the merits where that outcome favored the party challenging jurisdiction, it bypassed the FTCA exhaustion dispute and affirmed on the lack of a plausible absence-of-probable-cause showing.

2) Bivens: no extension for CBP grand jury testimony

The court treated the claim that a CBP officer gave false grand jury testimony as a “new context,” meaningfully different from the Bivens trilogy. That alone triggers Egbert’s directive to refrain unless no reason exists to think Congress is better positioned. The opinion then identified special factors:

National security and border enforcement: Following Hernández and Egbert, courts should hesitate to subject CBP agents to Bivens damages remedies, given the close ties between their duties and national security and foreign policy considerations.
Institutional competence: As Goldey and Egbert reiterate, crafting damages remedies is a legislative task; judicial insertion of Bivens into new domains risks systemwide consequences for sensitive federal operations.

The court also underscored a procedural bar: appellate waiver. Sánchez did not confront Hernández or Egbert in his opening brief, nor did he attempt to distinguish them. That failure to engage with controlling authority independently supported affirmance of the Rule 12(b)(6) dismissal.

Finally, because Bivens failed at step one and step two, the panel did not reach the government officer’s absolute or qualified immunity defenses—a nod to the likelihood that witness immunity would also pose a formidable barrier in any event.

Impact and Practical Implications

1) FTCA malicious prosecution claims in Puerto Rico—and beyond

Superseding indictments reset probable cause: Plaintiffs must plead and support with plausible facts that the indictment under which they were tried—especially a later, superseding one—was procured through knowingly false testimony. Attacking an earlier, superseded charging instrument is insufficient if a later indictment rests on untainted testimony.
Plausibility and record materials: Defendants may attach indictments and grand jury excerpts to motions to dismiss; courts can consider them without converting to summary judgment, tightening the window for bare, speculative allegations to survive.
Exhaustion remains mandatory—even if not dispositive here: While the panel assumed statutory jurisdiction to reach the merits, FTCA presentment via SF 95 (with a sum certain) still governs. Plaintiffs who bypass the administrative process do so at risk; future panels may resolve similar cases on exhaustion grounds.
Law enforcement proviso: Although malicious prosecution is among the intentional torts potentially actionable under the FTCA’s law enforcement proviso (28 U.S.C. § 2680(h)), plaintiffs still must satisfy state-law elements, including lack of probable cause—now reinforced by the superseding-indictment rule applied here.

2) Bivens after Egbert: CBP contexts are effectively closed

New context + special factors = no remedy: False grand jury testimony by a CBP agent is meaningfully different from Bivens’s original factual predicate. National security and border policy are decisive special factors; Egbert and Hernández strongly discourage any extension touching CBP’s core functions.
Alternative avenues (limited): The opinion does not endorse alternatives, but Egbert teaches that even non-damages remedial channels (internal discipline, administrative processes, or FTCA for applicable state-law torts) can be “alternative processes” counseling hesitation.
Witness immunity in the background: Although not reached, grand jury witnesses enjoy absolute immunity for testimony; even if a Bivens remedy were theoretically available, immunity doctrines would pose an additional barrier.

3) Appellate practice: briefing discipline matters

Confront controlling authority: Failure to grapple with Hernández and Egbert in the opening brief constituted waiver and provided an independent ground for affirmance. Litigants seeking Bivens extensions must squarely address the Supreme Court’s restrictive framework.
Preservation at the charging stage: Where possible, contemporaneous objections and a record targeting the indictment that actually led to trial are critical. Plaintiffs must link alleged falsehoods to the charging instrument that mattered, not merely earlier steps in the prosecutorial timeline.

4) Scope and persuasive weight

Unpublished disposition: The opinion is “Not for Publication in West’s Federal Reporter.” While nonprecedential, it is citable and signals how the First Circuit is likely to handle similar FTCA malicious prosecution and Bivens-extension disputes, especially those involving CBP.

Complex Concepts Simplified

FTCA: A statute allowing damages suits against the United States for certain torts committed by federal employees, using state substantive law. Before suing, a claimant usually must file an administrative claim (often on SF 95) stating a “sum certain.”
Malicious prosecution (Puerto Rico law): A tort requiring, among other elements, that charges were initiated without probable cause. A grand jury indictment presumptively establishes probable cause unless the plaintiff shows it was procured by knowingly false testimony.
Superseding indictment: A new charging document that replaces earlier indictments. If untainted, it independently supplies probable cause and can break the causal link to alleged earlier misconduct.
Bivens: A judge-made cause of action allowing damages claims for certain constitutional violations by federal officials. The Supreme Court has refused to extend Bivens beyond three core contexts for decades; post-Egbert, extension is highly unlikely when any special factor suggests Congress is the better institution to create remedies.
Special factors: Considerations (e.g., national security, foreign policy, the existence of alternative remedial processes) that counsel judicial hesitation in creating new causes of action for constitutional violations by federal officers.
Appellate waiver: Arguments not raised or developed in an opening brief are typically forfeited; appellate courts may affirm on that ground alone.
Assuming statutory jurisdiction: When only statutory (not constitutional) jurisdiction is at issue, a court may bypass that question and decide the merits if doing so favors the party contesting jurisdiction.

Conclusion

Sanchez-Jimenez reinforces two important doctrines. On the FTCA side, malicious prosecution claims will fail where a later, untainted superseding indictment establishes probable cause—unless a plaintiff plausibly alleges that this later indictment was procured through knowing falsity. On the constitutional side, the opinion faithfully applies the Supreme Court’s post-Egbert direction: no Bivens extension to a new context involving a CBP agent’s grand jury testimony, especially given national security overlays. The court’s additional emphasis on rigorous appellate briefing underscores a practical lesson—claims pressing the boundaries of Bivens must directly confront the Supreme Court’s restrictive framework or face dismissal on waiver grounds.

Even as an unpublished disposition, the case offers a clear roadmap for litigants in FTCA malicious prosecution suits and constitutional damages actions against federal officers: plead concrete facts attacking the indictment that actually anchored the prosecution; observe FTCA presentment requirements; and, above all, engage squarely with Egbert, Hernández, and their progeny when seeking any expansion of Bivens.