Fourth Circuit Strikes Ruling on Bivens Expansion

The Fourth Circuit recently struck down the Eastern District of Virginia’s decision to expand the list of private causes of action against federal officials implied under 42 U.S.C. § 1983, known as Bivens actions.

The case at hand was first filed in December of 2019 when the plaintiff alleged TSA officers violated his First Amendment rights by demanding he cease recording a pat down and violated his Fourth Amendment rights by seizing said phone after refusal to comply. Despite the government moving to dismiss, the lower court stated that the plaintiffs had alleged a cognizable Bivens claim and that the defendants were not protected by qualified immunity because the plaintiff had an established right to record government officials. As a result, the government sought interlocutory appeal.

In 1971, 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. This case addressed whether new contexts had arisen outside of those under Bivens and therefore whether the plaintiff could assert a violation of his First and Fourth Amendment rights. In this case, the Fourth Circuit agreed with the Third Circuit’s rejection of extending a Bivens remedy based upon TSA’s role in national security.

“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.”

Appellate attorney John O’Herron successfully represented the TSA agents in the Fourth Circuit.