Dustin Dyer v. Shirrellia Smith

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                                                 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,
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        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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