4th Circuit: No implied right to record TSA agents

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A lower court’s recognition of a new cause of action against Transportation and Security Administration, or TSA, officers who seized a man’s cell phone and prohibited him from recording his husband’s pat down at an airport has been grounded by the 4th U.S. Circuit Court of Appeals.

Claiming violations of his First and Fourth Amendment rights, the plaintiff successfully urged the Eastern District of Virginia to expand the narrow list of private causes of action against federal officials implied under 42 U.S.C. § 1983, known as Bivens actions.

But the Fourth Circuit disagreed.

“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,” Judge Stephanie D. Thacker wrote. “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.”

Thacker’s decision in Dyer v. Smith, (VLW 022-2-275) was joined by Judges Albert Diaz and A. Marvin Quattlebaum Jr.

Security checkpoint

In June 2019, Dustin Dyer was preparing to board a flight with his husband and their children at Richmond International Airport. Dyer and the children cleared the security checkpoint. His husband, however, did not; he was carrying infant formula that couldn’t be opened.

The TSA said Dyer’s husband needed to submit to a pat-down search. Dyer began video recording the search with his cell phone from about 10 feet away. After about a minute, a TSA officer approached Dyer and told him he was impeding their job.

When Dyer asked, “What are you talking about?” a TSA supervisor confirmed that he wasn’t allowed to record. Dyer stopped and then complied with their demand to delete the video.

Dyer and his family made their flight. He was later able to recover the deleted video.

Right to record

Dyer filed suit in December 2019, alleging that the TSA officers violated his First Amendment rights when they demanded he stop recording and delete the video. He also claimed that the TSA seizures of his husband and cell phone violated his Fourth Amendment rights.

The government moved to dismiss, but the district court found that no special factors counseled against recognizing implied damages remedies for Dyer’s claims.

The lower court held that qualified immunity didn’t protect the defendants because Dyer had a clearly established right to record government officials performing their duties.

The government sought interlocutory appeal.

New context

Thacker explained that Congress created a private cause of action for damages against a state official who violates an individual’s constitutional rights — but not against federal officials.

In 1971, though, the U.S. Supreme Court created an implied cause of action against federal officials in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Under Bivens, a federal court has the “authority to imply a new constitutional tort, not expressly authorized by statute,” the judge said.

“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,” Thacker noted.

The first step in determining whether Bivens provides a remedy is to 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.”

Neither party disputed and the court agreed that Dyer’s claims presented new Bivens contexts.

‘Special factors’

The next step required the court to consider if there are any special factors that might encourage hesitation in expanding Bivens remedies, Thacker said.

“In considering the special factors, we evaluate ‘whether Congress might doubt the need for an implied damages remedy,’… or if there is ‘reason to pause’ before extending Bivens to new contexts,” the judge wrote.

“Put another way, ‘the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?’” she said citing 2022’s Supreme Court precedent in Egbert v. Boule.

The Supreme Court hasn’t provided a complete catalogue of special factors, so courts must 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 [and] whether ‘there is an alternative remedial structure present in a certain case.’”

Thacker added that an alternative remedy weighs against expanding Bivens even if it’s less effective or isn’t expressly identified by Congress as an alternative.

But national security is a special factor to ponder.

Thacker said the district court erred by holding that the Travelers Redress Inquiry Program, or TRIP, didn’t provide an alternative remedy.

She acknowledged that Dyer wasn’t identified as a threat or delayed, and that it wasn’t clear if he could file a complaint through TRIP.

But that was the wrong query, she said.

“[T]he question is not whether TRIP maps neatly onto Appellee’s claim,” Thacker explained. “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 Fourth Circuit hasn’t yet addressed a Bivens claim against TSA agents. But Thacker agreed with the Third Circuit’s rejection of extending a Bivens remedy based upon TSA’s role in national security.

“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,’” the judge said.

Finally, the judge said that “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 disturbances 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,” she wrote.

‘Whims of Congress’

Los Angeles civil rights litigator Jonathan Corbett represented Dyer.

“This case crippled the Bivens doctrine, ending the self-executing nature of our founding document in nearly all cases, instead subjecting those guarantees to the whims of Congress,” he told Virginia Lawyers Weekly.

Corbett added that, “Last summer, the Supreme Court quite visibly destroyed abortion rights, but a lot more quietly limited our ability to enforce all of our Constitutional rights in the courts in Egbert v. Boule. Where there is a right, there must be a remedy, and we are considering our options at this time.”