USCA4 Appeal: 21-1508 Doc: 49 Filed: 12/29/2022 Pg: 1 of 15

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1508

DUSTIN WALLACE DYER,

Plaintiff – Appellee,

v.

SHIRRELLIA SMITH; NATALIE STATON,

Defendants – Appellants.

------------------------------

UNITED STATES OF AMERICA,

Amicus Supporting Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:19-cv-00921-JAG)

Argued: October 27, 2022 Decided: December 29, 2022

Before DIAZ, THACKER, and QUATTLEBAUM, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.

ARGUED: John P. O’Herron, THOMPSONMCMULLAN, P.C., Richmond, Virginia, for Appellants. Jonathan W. Corbett, CORBETT RIGHTS, P.C., Los Angeles, California, for Appellee. Catherine Meredith Padhi, UNITED STATES DEPARTMENT OF JUSTICE, USCA4 Appeal: 21-1508 Doc: 49 Filed: 12/29/2022 Pg: 2 of 15

Washington, D.C., for Amicus United States. ON BRIEF: William W. Tunner, William D. Prince IV, THOMPSONMCMULLAN, P.C., Richmond, Virginia, for Appellants. Brian M. Boynton, Acting Assistant Attorney General, Sharon Swingle, Barbara L. Herwig, Daniel Aguilar, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States.

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THACKER, Circuit Judge:

Dustin Dyer (“Appellee”) filed suit against two Transportation and Security

Administration (“TSA”) officers, Shirrellia Smith (“Smith”) and Natalie Staton (“Staton”)

(collectively “Appellants”), alleging they violated the First Amendment by prohibiting

Appellee from recording a pat-down search and the Fourth Amendment by seizing

Appellee and seizing and searching his cell phone. To state a cause of action for damages,

Appellee brought his claims pursuant to Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics,

(1971).

Appellants moved to dismiss, challenging Appellee’s reliance on Bivens and also

asserting qualified immunity as to Appellee’s First Amendment claim. The district court

denied Appellants’ motion, recognizing that both claims presented new Bivens contexts

but finding that no special factor counseled hesitation in extending Bivens as to either

claim. The district court also held that Appellants were not entitled to qualified immunity,

as Appellee had a clearly established right to record government officials performing their

duties.

Applying Supreme Court precedent, including the recent decision in Egbert v.

Boule,

(2022), we disagree, concluding that Bivens remedies are

unavailable in this case.

I.

On June 8, 2019, Appellee, his husband, and their children were preparing to board

a flight departing Richmond International Airport in Richmond, Virginia. With valid

boarding passes, Appellee and his family approached the security checkpoint and presented

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themselves for screening. Appellee and his children cleared the TSA checkpoint.

However, TSA policy required Appellee’s husband to submit to a pat-down search because

he possessed infant formula that could not be opened for testing. 1

When TSA began the pat-down search, Appellee turned on his cell phone camera

and began recording. About a minute into Appellee’s recording, TSA officer Staton

approached Appellee and stated, “For the purposes of this, this is sensitive when we’re

doing pat-downs of the person’s body, alright, and you’re impeding [unidentified TSA

officer’s] ability to do his job.” J.A. 8. 2 Appellee, who was standing ten feet away from

the pat down, asked TSA officer Staton, “What are you talking about?” Id. at 9.

TSA officer Staton then left and immediately returned with her supervisor, TSA

officer Smith. Appellee asked TSA officer Smith, “Are you not allowed to record?” J.A.

9. TSA officer Smith responded, “No, no recording.” Id. As a result of his interactions

with Appellants, Appellee stopped recording. Nevertheless, TSA officer Smith then

ordered Appellee to delete the existing recording of the pat down search, and Appellee

complied. Thereafter, Appellee and his family were permitted to leave the checkpoint and

catch their flight. Appellee subsequently recovered the deleted video from his cell phone.

1 TSA policy generally prohibits liquids in containers over 3.4 ounces; however, infant formula may be transported if it can be tested for trace explosives. If a potential passenger does not want the formula to be X-rayed or opened, additional steps are taken to clear the liquid, and the traveling guardian will undergo additional screening. 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Appellee filed suit in the Eastern District of Virginia, alleging Appellants violated

the First Amendment by prohibiting him from recording the pat down search of his husband

and ordering him to delete the video from his cell phone. Appellee also alleged a Fourth

Amendment violation based on the search and seizure of his cell phone, and seizure of

Appellee. Appellants filed a motion to dismiss Appellee’s complaint because Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics,

(1971), did not

confer a basis for Appellee to assert his constitutional claims for damages. Appellants also

asserted qualified immunity as to Appellee’s First Amendment claim.

The district court denied Appellants’ motion to dismiss, determining “no special

factors counsel against recognizing implied damages remedies for” Appellee’s First or

Fourth Amendment claims. Dyer v. Smith, No. 3:19-cv-921,

, at *1 (E.D.

Va. Feb. 23, 2021). Additionally, the district court held Appellee “has a clearly established

right to record government officials performing their duties,” such that “qualified immunity

does not protect [Appellants] at this stage of litigation.”

Appellants successfully moved

to certify the district court’s order for interlocutory appeal. Thereafter, Appellants filed a

petition to appeal pursuant to

(b).

II.

When we consider issues certified pursuant to

(b) on interlocutory

appeal, “we employ the usual appellate standard governing motions to dismiss.” Curtis v.

Propel Prop. Tax Funding, LLC,

(4th Cir. 2019) (quoting EEOC v.

Seafarers Int’l Union,

, 200 (4th Cir. 2005)). We “consider questions of law

de novo and construe the evidence in the light most favorable to the non-movant.”

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Seafarers Int’l, 394 F.3d at 200. Additionally, “[w]e review de novo the denial of a motion

to dismiss based on qualified immunity, accepting as true the facts alleged in the complaint

and viewing them in the light most favorable to the plaintiff.” Evans v. Chalmers,

(4th Cir. 2012) (quoting Ridpath v. Bd. of Governors Marshall Univ.,

, 306 (4th Cir. 2006)).

III.

A.

While Congress created

to provide a claim for damages when a

state official violates an individual’s constitutional rights, “Congress did not create an

analogous statute for federal officials.” Ziglar v. Abbasi,

(2017).

However, in 1971, the Supreme Court created an implied cause of action for monetary

damages against federal officials who violate the Fourth Amendment. See Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics,

(1971). Private

causes of action for damages against federal officials for constitutional violations have

become known as Bivens actions.

A federal court’s “authority to imply a new constitutional tort, not expressly

authorized by statute, is anchored in our general jurisdiction to decide all cases ‘arising

under the Constitution, laws, or treaties of the United States.’” Corr. Servs. Corp. v.

Malesko,

(2001) (quoting

). But this authority is rarely

invoked: in the 50 years since Bivens was decided, the Supreme Court has recognized only

two additional contexts in which an individual may pursue damages against federal

officials for violating the individual’s constitutional rights. See Davis v. Passman, 442

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(1979) (allowing an administrative assistant to sue a congressman for firing her

because of her gender, thereby violating the Fifth Amendment’s Due Process Clause);

Carlson v. Green,

(1980) (allowing a prisoner’s estate to sue federal jailers for

failing to treat the prisoner’s asthma, thereby violating the Eighth Amendment).

Just three years ago, this court detailed numerous occasions where the Supreme

Court has declined to extend Bivens to new contexts. See Tun-Cos v. Perrotte,

(4th Cir. 2019) (identifying eight instances where the Court refrained from

recognizing an implied damages remedy against federal officials in new contexts). And

this year, the Supreme Court all but closed the door on Bivens remedies. See Egbert v.

Boule,

(2022) (Gorsuch, J., concurring) (opining that the majority

has left “a door ajar and [held] out the possibility that someone someday might walk

through it even as it devises a rule that ensures no one . . . ever will” (internal quotation

marks omitted)). It is against this backdrop that we evaluate whether Appellee’s claims

may give rise to an implied damages remedy.

B.

We begin our analysis by determining whether an implied remedy for damages may

exist as to Appellee’s First or Fourth Amendment claims pursuant to Bivens.

To determine “whether a Bivens remedy is available against federal officials,” we

first ask “whether a given case presents a new Bivens context,” i.e., whether it is “different

in [any] meaningful way from the three cases in which the [Supreme] Court has recognized

a Bivens remedy.” Tun-Cos, 922 F.3d at 522–23 (internal quotation marks omitted)

(alternations in original). “If the context is not new . . . then a Bivens remedy continues to

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be available.”

(emphasis in original). But if the claim arises in a new Bivens context,

we must next “evaluate whether there are special factors counselling hesitation” in

expanding Bivens. Id. at 523 (internal quotation marks omitted) (emphasis in original).

1.

The district court determined that Appellee’s First and Fourth Amendment claims

both presented new Bivens contexts. As to Appellee’s First Amendment claim, the district

court noted, “[t]he Supreme Court has ‘never held that Bivens extends to First Amendment

claims.’” Dyer v. Smith, No. 3:19-cv-921,

, at *5 (E.D. Va. Feb. 23,

2021) (quoting Reichle v. Howards,

, 663 n.4 (2012)). The district court also

concluded that Appellee’s Fourth Amendment claim differed “in a meaningful way” from

the original Bivens case because “TSA agents operate under a different statutory mandate

from other law enforcement officers.” Dyer,

, at *3.

In determining whether a case presents a new Bivens claim, “a radical difference is

not required” to make a case meaningfully different from the three cases in which the Court

has recognized a Bivens remedy. Tun-Cos,

. The Supreme Court has

explained:

A case might differ in a meaningful way because of 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.

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Ziglar,

. Neither party disputes that Appellee’s claims present new

Bivens contexts. And for the reasons stated by the district court, we likewise agree that the

claims presented here are new Bivens claims. Therefore, we move on to the second step of

the analysis to determine whether or not a remedy is available in this case.

2.

Expanding Bivens to create implied causes of action is a “significant step under

separation-of-powers principles” and is “disfavored.” Ziglar, 137 S. Ct. at 1856–57. Thus,

“the analytical framework established by the Ziglar Court places significant obstacles in

the path to recognition of an implied cause of action.” Earle v. Shreves,

(4th Cir. 2021).

Accordingly, at the second step of the analysis, we consider whether there are any

special factors that might counsel hesitation in expanding Bivens remedies. In considering

the special factors, we evaluate “whether Congress might doubt the need for an implied

damages remedy,” Tun-Cos,

(emphasis in original), or if there is “reason

to pause” before extending Bivens to new contexts, Hernandez v. Mesa,

(2020). “‘A single sound reason to defer to Congress’ is enough to require a court to

refrain from creating [a damages] remedy.” Egbert,

(quoting Nestlé

USA, Inc. v. Doe,

, 1937 (2021) (plurality opinion)). “Put another way, ‘the

most important question is who should decide whether to provide for a damages remedy,

Congress or the courts?’” Egbert,

(quoting Hernandez,

). “If there is a rational reason to think that the answer is Congress—as it will be in

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most every case . . . —no Bivens action may lie.” Egbert,

(internal

citation omitted).

While the Supreme Court has not provided a comprehensive list of special factors,

courts are instructed to consider “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.” Ziglar,

. Courts are also instructed to look to whether

“there is an alternative remedial structure present in a certain case.”

An alternative

remedy weighs against recognizing a new Bivens claim even if it is less effective than the

damages that would be available under Bivens and is not expressly identified by Congress

as an alternative remedy. Id.; Egbert,

. National security is another

special factor to be considered, Ziglar, 137 S. Ct. at 1861–62, as are the “difficulty of

devising a workable” standard for courts and concerns about “invit[ing] an onslaught of

Bivens actions.” Wilkie v. Robbins,

, 561–62 (2007).

The district court held, “Assuming the truth of the factual allegations in the

complaint and drawing all inferences in favor of [Appellee], the [c]ourt finds that no special

factors counsel against recognizing implied damages remedies for either of [Appellant’s]

claims.” Dyer,

, at * 1. Appellants argue the district court erred in

finding that (1) an alternative remedial structure; (2) national security; and/or (3) a possible

impact on TSA operations nationwide did not serve as special factors counseling against

the expansion of Bivens remedies in this case.

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a.

We turn first to a review of the district court’s determination that no alternative

remedial structure exists. “[A] court may not fashion a Bivens remedy if Congress already

has provided, or has authorized the Executive to provide, ‘an alternative remedial

structure.’” Egbert,

(quoting Ziglar,

). The district

court specifically found that the Travelers Redress Inquiry Program (“TRIP”) “does not

provide [Appellant] an alternative remedy” and concluded “the absence of a statutory

damages remedy for alleged constitutional violations by TSA agents does not counsel

against extending a Bivens remedy here.” Dyer,

, at *4–5.

Congress directed the Secretary of the Department of Homeland Security to

“establish a timely and fair process for individuals who believe they have been delayed or

prohibited from boarding a commercial aircraft because they were wrongly identified as a

threat . . . by the [TSA].”

(a). The resulting program, TRIP, “is

essentially a clearinghouse for traveler grievances.” Latif v. Holder,

(9th Cir. 2012). The Third Circuit has held that although TRIP appears to be principally

related to passengers’ inclusion on the “No-Fly List,” by its terms, it also could provide

relief to passengers delayed or detained in their travel. Vanderklok v. United States,

, 204–05 (3d Cir. 2017).

The plaintiff in Vanderklok was “delayed or prohibited from boarding a commercial

aircraft” based upon wrongful identification “as a threat.”

. Here, however,

Appellee was never identified as a threat. Thus, it is not clear whether Appellee may file

a complaint through TRIP. Significantly, however,

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[T]he relevant question is not whether a Bivens action would disrupt a remedial scheme . . . or whether the court should provide for a wrong that would otherwise go unredressed. . . . Nor does it matter that existing remedies do not provide complete relief. . . . Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.

Egbert,

(internal citations and quotation marks omitted)

(emphasis supplied). Therefore, the question is not whether TRIP maps neatly onto

Appellee’s claim. The question is whether Congress has acted or intends to act. And in

this context, Congress has acted by establishing TRIP.

While TRIP may not squarely address complaints by an individual similarly situated

to Appellee, that silence does not give this court license to usurp Congress’s authority in

an area where Congress has previously legislated. See Tun-Cos,

(stating

that lack of a remedy or “institutional silence speaks volumes and counsels strongly against

judicial usurpation of the legislative function”). That is particularly so because Congress

has limited judicial review of TSA decisions and refrained from providing any financial

remedy for passengers against TSA employees.

For these reasons, we hold that Congress, not the judiciary, is better equipped to

provide a remedy here. This counsels against extending Bivens in this case.

b.

We turn next to whether national security is a special factor that counsels hesitation

in extending Bivens in the context of this case. The district court held it was not, finding

that TSA screening and enforcement of airport restrictions “do not affect diplomacy,

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foreign policy, or the national security interests that have precluded a Bivens remedy in

other cases.” Dyer,

, at *4.

The Supreme Court has explained, “Matters intimately related to foreign policy and

national security are rarely proper subjects for judicial intervention.” Haig v. Agee,

(1981). TSA was created as part of the country’s national security effort

following the September 11, 2001 terrorist attacks. Transp. Workers Union of Am., AFL-

CIO v. Transp. Sec. Admin.,

(D.C. Cir. 2007) (citing the Aviation and

Transportation Security Act,

Stat. 597 (2001) (codified in part at

et seq.)). And TSA and its employees are tasked with the critical role

of “securing our nation’s airports and air traffic.” Vanderklok, 868 F.3d at 206–07.

While we have never addressed a Bivens claim against TSA agents, the Third

Circuit has declined to extend a Bivens remedy based upon TSA’s role in national security.

Vanderklok,

. In Vanderklok, the Third Circuit held, “the role of the TSA

in securing public safety is so significant that we ought not create a damages remedy in

this context. The dangers associated with aircraft security are real and of high

consequence.”

. We agree. And although Appellee claims he did not pose a

national security risk, it is not our task to ask “whether Bivens relief is appropriate in light

of the balance of circumstances in th[is] ‘particular case.’” Egbert,

(quoting United States v. Stanley,

(1987)). To avoid “frustrat[ing]

Congress’ policymaking role,” we instead ask whether Congress is better suited than the

courts to conduct that balancing, id. at 1803, 1805.

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As the Supreme Court has recognized, “[n]ational-security policy is the prerogative

of Congress and the President,” and to impose damages or liability is likely to “caus[e] an

official to second-guess difficult but necessary decisions concerning national-security

policy.” Ziglar,

. Thus, creating a cause of action against TSA agents

could “increase the probability that a TSA agent would hesitate in making split-second

decisions about suspicious passengers” or disruptions at security checkpoints. Vanderklok,

. The nature and gravity of these risks, and whether they are outweighed by

countervailing interests in judicial relief for passengers, make such a situation ill-suited to

judicial determination.

Therefore, we hold that the district court erred in concluding that national security

concerns do not counsel hesitation in extending a Bivens remedy against Appellants.

c.

As “even a single sound reason to defer to Congress” will be enough to require the

court refrain from creating a Bivens remedy, we decline to extend an implied damages

remedy pursuant to Bivens against Appellants based on the existence of an alternative

remedial structure and/or the interest of national security. Nestlé USA, Inc., 141 S. Ct. at

1937. 3 And since Appellee has presented no cognizable claim for damages, we need not

address Appellants’ qualified immunity defense as to Appellee’s First Amendment claim.

See Tun-Cos,

.

3 We do not separately consider the possible impact on TSA’s nationwide operations, as the first two special factors are sufficient to preclude a Bivens remedy here.

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IV.

Therefore, we reverse the district court’s denial of Appellants’ motion to dismiss

and remand with instructions to dismiss.

REVERSED AND REMANDED

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