576 F.Supp.3d 806
D. Nev.2021Background
- On June 30, 2019, plaintiff Michele Leuthauser went through TSA screening at McCarran/Las Vegas Airport; a body scanner alarm led to an extra screening and escort to a private room.
- TSA employee Anita Serrano performed a pat-down that allegedly involved sliding hands up plaintiff’s inner thighs and digitally penetrating/fondling plaintiff; a supervisor thereafter completed the screening.
- Leuthauser reported the incident to airport police (who did not act) and later sued the United States and Serrano, asserting a Fourth Amendment unreasonable-search claim (Bivens), and state-law battery and IIED claims.
- Serrano moved to dismiss the Fourth Amendment claim under Rule 12(b)(6), arguing a Bivens damages remedy should not be extended to TSA screening context; the court analyzed whether a new Bivens context exists and whether special factors or alternative remedies preclude extension.
- The court found this a new Bivens context, identified congressionally-created administrative remedies (DHS/TSA civil-rights complaint process and related review mechanisms), and concluded special factors (notably national security and operational concerns) counsel against a Bivens extension.
- The Fourth Amendment/Bivens claim against Serrano was dismissed with prejudice (court declined to reach qualified immunity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens extends to a Fourth Amendment claim against a TSA screener for airport security screening | Leuthauser: analogous to Bivens because it’s a one-time, individualized Fourth Amendment violation | Serrano: context is meaningfully different (administrative airport security, national-security mandate), so Bivens should not be extended | Court: New Bivens context; decline to extend Bivens |
| Whether adequate alternative remedies exist that preclude Bivens | Leuthauser: DHS/TSA processes aren’t an adequate substitute; denial of judicial remedy leaves plaintiff without recourse | Serrano: Congress created civil-rights complaint process and other administrative/agency procedures; those are adequate alternatives | Court: An administrative remedy exists (DHS/TSA civil-rights process); that militates against Bivens extension |
| Whether special factors (national security, operational concerns) counsel hesitation about creating a damages remedy | Leuthauser: routine TSA screening is no different from other contexts where courts have allowed Bivens | Serrano: potential chilling of screener decision-making, national-security implications, and congressional role counsel hesitation | Court: Special factors (national security, scale of screening) counsel against judicially creating a damages remedy |
| Whether dismissal should be with or without leave to amend | Leuthauser: dismissal should be without prejudice or with leave to amend because she would lack other judicial recourse | Serrano: Bivens extension is legally improper regardless of factual amendments | Court: Dismissal is with prejudice because additional facts would not change the legal conclusion declining a Bivens extension |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (U.S. 1971) (recognized implied damages remedy for certain Fourth Amendment searches)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (U.S. 2017) (Bivens extensions are disfavored; new contexts require caution)
- Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (U.S. 2001) (limits on extending Bivens to new defendant categories)
- Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2012) (two-step test: alternative remedies and special factors)
- Wilkie v. Robbins, 551 U.S. 537 (U.S. 2007) (courts should defer to Congress about creating new remedies)
- Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017) (hesitancy to create new remedies when Congress has limited available ones)
- Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016) (Tenth Circuit extended Bivens in a pre-Ziglar administrative-search context)
- Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013) (discussed limits of Bivens in related airport/investigative contexts)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard for factual plausibility on Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (Rule 12 plausibility pleading framework)