Barry Doe v. David Meron, 929 F.3d 153

Background

Doe, a U.S. Navy civilian at NSA Bahrain, sued Navy officers and DOD employees alleging they conspired to seize, interrogate, sexually batter his three minor children and to seize and batter him in Bahrain in 2015.
Doe pleaded state-law intentional torts and constitutional claims (Fourth, First, Fifth Amendments) under Bivens; also alleged a §1985 conspiracy.
The DOJ certified under the Westfall Act (and Gonzalez Act for one defendant) that the individual defendants acted within the scope of employment and moved to substitute the United States for the tort claims.
The district court denied Doe’s motion to set aside certification (finding his proffered evidence inadmissible/insufficient), substituted the United States, and dismissed the tort claims under the FTCA’s foreign-country exception.
The district court also declined to extend Bivens to the asserted constitutional claims and dismissed them for failure to state a claim; the Fourth Circuit affirmed on all grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Westfall/Gonzalez scope-of-employment certification should be set aside	Doe: proffered evidence shows defendants acted for personal motives and outside employment scope	Government/defendants: certification is prima facie correct; Doe’s evidence is hearsay, speculative, and insufficient	Denied: certification stands; Doe failed to meet preponderance burden and discovery denial was not an abuse of discretion
Choice of law for scope-of-employment analysis	Doe: Maryland law applies because scheme was conceived in Maryland and differs from D.C. law	Defendants: D.C. law applies for conduct abroad and is substantially similar to Maryland law	D.C. law applies for conduct on bases abroad; D.C. and Maryland tests are substantially similar, result unaffected
Whether tort claims against substituted United States survive FTCA jurisdiction given events on a U.S. military base abroad	Doe: FTCA waiver should apply; torts are actionable	Government: FTCA’s foreign-country exception bars claims arising abroad (including on U.S. bases in foreign countries)	Dismissed for lack of jurisdiction: tort claims fall within the FTCA foreign-country exception
Whether Bivens should be extended to Doe’s constitutional claims (Fourth, First, Fifth Amendments)	Doe: constitutional violations from seizures, battering, and interference with familial relations justify Bivens damages remedy	Defendants: Abbasi/Tun-Cos and military/extraterritorial/special-factor concerns counsel against extension	Denied: each claim presents a new Bivens context and special factors (military context, extraterritoriality, alternative remedial schemes) counsel against extending Bivens

Key Cases Cited

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy for unconstitutional Fourth Amendment search/seizure)
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (two-step framework for Bivens: new-context inquiry and special-factors analysis)
Maron v. United States, 126 F.3d 317 (4th Cir. 1997) (Westfall Act scope-of-employment certification standard)
Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148 (4th Cir. 1997) (plaintiff’s burden and discovery standards when challenging certification)
Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019) (refusal to extend Bivens in immigration enforcement context under Abbasi)
Cioca v. Rumsfeld, 720 F.3d 505 (4th Cir. 2013) (special factors counsel against Bivens in military-service contexts)
Medina v. United States, 259 F.3d 220 (4th Cir. 2001) (FTCA is a limited waiver of sovereign immunity)