Virginia Lawyers Weekly//January 5, 2023
Virginia Lawyers Weekly//January 5, 2023//
Where a man alleged that two Transportation and Security Administration, or TSA, officers, violated the First Amendment by prohibiting him from recording a pat-down search and the Fourth Amendment by seizing him and seizing and searching his cell phone, but there were special factors “counselling hesitation” in allowing a claim in this context, including that Congress has already provided remedies and national security concerns, the suit was dismissed.
Dustin Dyer filed suit against two TSA officers, alleging they violated the First Amendment by prohibiting him from recording a pat-down search and the Fourth Amendment by seizing him and seizing and searching his cell phone. Appellee brought his claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Appellants moved to dismiss, challenging reliance on Bivens and also asserting qualified immunity as to the First Amendment claim. The district court denied appellants’ motion. It recognized that both claims presented new Bivens contexts but found 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.
To determine “whether a Bivens remedy is available against federal officials,” the court first asks “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.” “If the context is not new … then a Bivens remedy continues to be available.” But if the claim arises in a new Bivens context, the court must next “evaluate whether there are special factors counselling hesitation” in expanding Bivens.
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.’” 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.”
Neither party disputes that appellee’s claims present new Bivens contexts. And for the reasons stated by the district court, this court likewise agrees that the claims presented here are new Bivens claims.
At the second step of the analysis, the district court held, “[a]ssuming 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.”
“[A] court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’” The district court specifically found that the Travelers Redress Inquiry Program, or 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.”
It is not clear whether appellee may file a complaint through TRIP. However 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.
The district court also erred in concluding that national security concerns do not counsel hesitation in extending a Bivens remedy against appellants. 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. 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.
Reversed and remanded.
Dyer v. Smith, Case No. 21-1508, Dec. 29, 2022. 4th Cir. (Thacker), from EDVA at Richmond (Gibney). John P. O’Herron for Appellants. Jonathan W. Corbett for Appellee. Catherine Meredith Padhi for Amicus United States. VLW 022-2-275. 15 pp.