56 F.4th 271
4th Cir.2022Background
- At Richmond airport in June 2019, TSA conducted a pat‑down of Dyer’s husband because sealed infant formula could not be tested; Dyer began recording the pat‑down on his cell phone from about ten feet away.
- TSA Officer Staton told Dyer the recording impeded screening; Supervisor Smith ordered Dyer to stop recording and to delete the video; Dyer complied but later recovered the deleted file.
- Dyer sued Smith and Staton under Bivens alleging (1) First Amendment violation for prohibiting recording and ordering deletion, and (2) Fourth Amendment violation for seizure/search of his phone and seizure of his person.
- The district court denied the officers’ motion to dismiss, treating both claims as new Bivens contexts and finding no special factors counseling hesitation; it also held the right to record officials was clearly established for qualified immunity purposes.
- The officers obtained interlocutory appellate review; the Fourth Circuit reversed, holding Bivens remedies unavailable because (a) Congress provided an alternative remedial structure (TRIP) and (b) national‑security concerns counsel hesitation in extending Bivens to TSA screening operations.
- The Fourth Circuit remanded with instructions to dismiss, and therefore did not reach the officers’ qualified immunity defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens damages remedy is available for the First Amendment claim (prohibition on recording and deletion order) | Dyer: Bivens supports damages for constitutional violations by federal officers, including First Amendment interference with recording | Smith/Staton: The case presents a new Bivens context; special factors (alternative remedies, national security, TSA statutory scheme) counsel against creating a damages remedy | New Bivens context; court declined to extend Bivens, rejecting First Amendment damages claim due to alternative remedial scheme and national‑security concerns |
| Whether a Bivens damages remedy is available for the Fourth Amendment claim (seizure/search of phone and seizure of person) | Dyer: Bivens supports damages for Fourth Amendment violations by federal agents | Smith/Staton: TSA operates under distinct statutory mandate; special factors counsel hesitation (TRIP, national security, separation‑of‑powers) | New Bivens context; court declined to extend Bivens, so no damages remedy for Fourth Amendment claim |
| Whether the officers are entitled to qualified immunity on the First Amendment claim | Dyer: Right to record government officials performing duties is clearly established; officers thus not entitled to qualified immunity | Officers: Assert qualified immunity | Court did not decide qualified immunity because it held Bivens relief unavailable; qualified immunity analysis was unnecessary |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages action against federal officers for Fourth Amendment violation)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (established framework limiting expansion of Bivens and requiring consideration of special factors)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (emphasized deference to Congress; a single sound reason to defer forecloses Bivens expansion)
- Davis v. Passman, 442 U.S. 228 (1979) (one of the limited extensions of Bivens to a Fifth Amendment employment‑based claim)
- Carlson v. Green, 446 U.S. 14 (1980) (one of the limited extensions of Bivens for Eighth Amendment deliberate indifference by federal jailers)
- Tun‑Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019) (survey of Supreme Court’s refusals to extend Bivens and application of special‑factors analysis)
- Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017) (declined to recognize a Bivens remedy against TSA agents based on national‑security considerations)