The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
REBECCA BROWN, AUGUST )
TERRENCE ROLIN, STACY JONES- )
NASR, and MATTHEW BERGER on )
behalf of themselves and all others ) Civil Action No. 20-64
similarly situated, )
)
Plaintiffs, ) Judge Marilyn J. Horan
) Magistrate Judge Lisa Pupo Lenihan
v. )
)
TRANSPORTATION SECURITY )
ADMINISTRATION; DAVID P. )
PEKOSKE, Administrator, Transportation )
Security Administration, in his official )
capacity; DRUG ENFORCEMENT )
ADMINISTRATION; TIMOTHY J. SHEA, )
Acting Administrator, Drug Enforcement )
Administration, in his official capacity; )
STEVE DAWKIN, Agent, Drug )
Enforcement Administration, in his )
individual capacity; and UNITED STATES )
OF AMERICA, )
)
Defendants. )
OPINION OF THE COURT
This case was originally referred to United States Magistrate Judge Lisa Pupo Lenihan
for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(A)
and (B), and Rule 72 for the Local Rules for Magistrate Judges. On January 7, 2021, the
Magistrate Judge issued a Report and Recommendation, recommending that the Government
Defendants’ Motion to Dismiss, ECF No. 55, be denied as to Counts I through III and granted as
to Count IV and that Defendant Dawkin’s Motion to Dismiss, ECF No. 47, be granted. (ECF
No. 66). The parties were informed that written Objections to the Report and Recommendation
were due by February 11, 2021. (ECF No. 68). Government Defendants, Transportation
Security Agency (TSA), Drug Enforcement Agency (DEA), TSA Administrator David P.
Pekoske, and DEA Acting Administrator Timothy J. Shea, and the United States, filed timely
written Objections regarding the Magistrate Judge’s decision to deny Counts I through III of
their Motion to Dismiss. (ECF No. 72). Plaintiffs, Rebecca Brown, Auguste Terrence Rolin,
Stacy Jones-Nasr, and Matthew Berger, filed timely written Objections regarding the Magistrate
Judge’s decision to grant Agent Dawkin’s motion to dismiss their Fourth Amendment Bivens
claim. (ECF No. 71). DEA Agent Steve Dawkin filed timely written Objections regarding the
Magistrate Judge’s application, though not the result, of the Plaintiffs’ Bivens claim against him
in his individual capacity as well as the Magistrate Judge’s decision regarding qualified
immunity. (ECF No. 70).
For the reasons that follow, and after de novo review, the Court finds that the written
Objections do not undermine the recommendation of the Magistrate Judge, except as provided
herein. The Court will adopt the Report and Recommendation as the Opinion of the Court to
deny the Government Defendants’ Motion to Dismiss Counts I through III and to grant said
Motion as to Count IV. However, the Court will not adopt the entire Report and
Recommendation as the Opinion of the Court regarding the new Bivens context, but will still
grant Agent Dawkin’s Motion to Dismiss Count V. The Court will likewise reject the Report
and Recommendation’s qualified immunity analysis as moot in light of the dismissal of Count V,
the only claim against Agent Dawkin.
I. DISCUSSION
The filing of timely objections requires the district judge to “make a de novo
determination of those portions of the report . . . to which objection is made.” 28 U.S.C. §
636(b)(1); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Fed. R. Civ. P. 72(b)(3).
Initially, the Court finds no error in the Magistrate Judge’s application of the standard of law.
The Government Defendants have articulated three Objections to the Magistrate Judge’s Report
and Recommendation regarding Counts I through III of their Motion to Dismiss. The Plaintiffs
have articulated three Objections and Agent Dawkin has articulated two Objections to the
Magistrate Judge’s Report and Recommendation regarding Agent Dawkin’s Motion to Dismiss.
Although Agent Dawkin agrees with his dismissal from the case, he argues the Magistrate
Judge’s analysis and interpretation of the applicable law was flawed. Each Objection will be
addressed in turn.
A. Government Defendants’ Objections
The Government Defendants’ Objections contend that Counts I through III of the
Plaintiffs’ Amended Complaint should have been dismissed. The Government Defendants argue
that the Plaintiffs lack standing and that this Court lacks jurisdiction to consider the Plaintiffs’
claims. Finally, they assert that the Amended Complaint fails to state a claim for which relief
can be granted.
1. Plaintiffs’ Standing
As regards standing, Plaintiffs have alleged that they wish to travel with large amounts of
cash and, because of TSA’s alleged seizure policies, they are forced to refrain from traveling
with such cash. (ECF No. 66, 3). Pursuant to Clapper v. Amnesty International USA, 568 U.S.
398, 414 n.5 (2010), standing can be found based on a “substantial risk” that the alleged harm
will occur rather than a “certainly impending” standard. (ECF No. 66, 4). Judge Lenihan was
correct in concluding that the Plaintiffs’ allegations of cash seizures rose above the level of “a
handful of incidents” to qualify for standing under a substantial risk standard. As such, the
Government Defendants’ Objection, that the Plaintiffs lack standing, will be overruled.
2. Jurisdiction
As regards this Court’s jurisdiction, the Government Defendants maintain that
jurisdiction lies with the United States District Court for the Third Circuit Court of Appeals.
(ECF No. 72, 9). While 49 U.S.C. § 46110 confers jurisdiction to the Circuit Courts of Appeals
for judicial review of a TSA order, this statute contemplates jurisdiction over formal
administrative orders rather than informal policies or practices. The Plaintiffs’ First Amended
Complaint challenges an informal TSA policy rather than any formal administrative order. (ECF
No. 66, 7-8). As such, the Government Defendants’ objection, asserting that this Court lacks
jurisdiction to hear the Plaintiffs’ claims, is overruled.
3. Failure to State a Claim Upon Which Relief Can Be Granted
The Government Defendants’ next Objection argues that the Magistrate Judge erred in
recommending that the Plaintiffs’ substantive claims for relief should not be dismissed pursuant
to Rule 12(b)(6). (ECF No. 72, 12). The Government Defendants characterize the Plaintiffs
allegations of cash seizures as a series of “isolated incidents” rather than a consistent agency
practice. (ECF No. 72, 13-14). The Plaintiffs have alleged at least 40 incidents of cash seizures,
which suggests a regular pattern of conduct which, at this stage, is sufficient to survive the
Government Defendants’ Motion to Dismiss. (ECF No. 75, 17). Therefore, the Government
Defendants’ Objection is overruled.
B. Plaintiffs’ and Defendant Dawkin’s Objections
Plaintiffs, Terrence Rolin and Rebecca Brown, and Defendant, Agent Steve Dawkin,
each filed objections to the Report and Recommendation concerning Agent Dawkin’s Motion to
Dismiss. The Plaintiffs challenge three aspects of the Report and Recommendations. They
challenge the Magistrate Judge’s (1) finding of qualified immunity regarding the seizure of Ms.
Brown’s person, (2) application of the Bivens framework as regards Defendant Dawkin, and (3)
analysis of special factors within the Bivens framework. Agent Dawkin’s Objections agree with
the Recommendation to grant his Motion to Dismiss Count V, which dismissed him from the
case. However, Agent Dawkin objects to the Magistrate Judge’s qualified immunity analysis
regarding the alleged seizure of Plaintiffs’ cash. Agent Dawkin also objects to the Magistrate
Judge’s application of the new context analysis of the Bivens framework. This Opinion will
discuss the Bivens analysis before turning to the issue of qualified immunity.
1. Bivens Analysis
Both the Plaintiffs and Agent Dawkin object that the Magistrate Judge incorrectly applied
the Bivens framework. (ECF No. 70, 3; ECF No. 71, 12). As a threshold matter, the Report and
Recommendation was correct in noting that “[a]lthough Bivens has become ‘a fixed principle in
the law,’ its judicial expansion is ‘disfavored,’ and accordingly Bivens is not to be extended to a
“new context’ if ‘special factors’ counsel hesitation. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857
(2017).” (ECF No. 66, 15). The Supreme Court has explained the proper framework for the
Bivens analysis:
When asked to extend Bivens, we engage in a two-step inquiry. We first inquire
whether the request involves a claim that arises in a new context or involves a
new category of defendants. . . . When we find that a claim arises in a new
context, we proceed to the second step and ask whether there are any ‘special
factors that counsel hesitation’ about granting the extension.
Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). The Supreme Court has also offered guidance
as to whether a case presents a new Bivens context:
If the case is different in a meaningful way from previous Bivens cases decided by
this Court, then the context is new. . . . A case might differ in a meaningful way
because of the rank of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of judicial guidance as to
how an officer should respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer was operating the risk of
disruptive intrusion by the Judiciary into the functioning of other branches . . . .
Abbasi, 137 S. Ct. at 1859-60. Although these factors are instructive, they do not present
an “exhaustive list” for determining whether a case presents a new Bivens context. Id.
The Magistrate Judge noted that “Count V of the FAC presents a ‘classic’ Bivens case –
an asserted Fourth Amendment violation in a routine law enforcement context.” (ECF No. 66,
15). Having given thorough analysis to the history, context, and development of the law
concerning Bivens claims, this Court disagrees with the Magistrate Judge’s above premise and
will therefore reject the Report and Recommendation to the extent it notes that Count V presents
a “classic” Bivens case. The Bivens claim allegations against Defendant Dawkin present Bivens
in a new context. This case is distinguishable from a classic Bivens case because it took place at
an airport, it involved a seizure of cash, and Agent Dawkin was operating under an alleged DEA
policy. Although the Plaintiffs’ claim does involve their Fourth Amendment rights, this is a new
Bivens context requiring judicial restraint. Because this is a new Bivens context, the Court must
next conduct the special factors analysis to determine if it is appropriate to extend Bivens in this
case.
After noting that the Plaintiffs’ claim was a classic Bivens case, the Magistrate Judge’s
report performed and applied the special factors analysis and concluded that “in the final
analysis, the intended forfeiture setting and the alleged controlling policy . . . and the associated
prospect of administrative and/or injunctive relief constitutes a sufficiently weighty special factor
to bar an implied damages remedy.” (ECF No. 66, 18). Accordingly, the Magistrate Judge’s
Report and Recommendation correctly recommended that there is no legal basis to recognize a
Bivens claim in this case and that Defendant Dawkin’s Motion to Dismiss Count V of the First
Amended Complaint be granted. As such, the Plaintiffs’ Objection is overruled as to the Report
and Recommendation rejecting their Bivens claim, and the Defendant Dawkin’s Objection to the
Magistrate’s reference that Count V presents a classic Bivens case is sustained such that said
reference is rejected and the Recommendation for dismissal of Count V will be accepted.
2. Qualified Immunity
Plaintiffs object to the Magistrate Judge’s finding of qualified immunity to dismiss Ms.
Brown’s claim against Defendant Dawkin for his seizure of her person. (ECF No. 71, 7). Agent
Dawkin objects to the Magistrate Judge’s qualified immunity analysis for the seizure of the
Plaintiffs’ cash. (ECF No. 70, 6). The Magistrate Judge performed her qualified immunity
analysis before she assessed the viability of Plaintiffs’ Bivens claim against Agent Dawkin. The
Bivens analysis is a threshold inquiry, which should be addressed first prior to a qualified
immunity analysis involving the resolution of constitutional issues. Bistrian v. Levi, 912 F.3d
79, 88-89 (3d Cir. 2018). As Agent Dawkin points out in his Objections, resolving the Bivens
claim prior to discussing the issue of qualified immunity “is in line with the principle of
constitutional avoidance, which ‘generally counsel[s] against resolving constitutional issues
when the parties’ dispute can be resolved on other grounds.’ United States v. Norwood, 819 F.
App’x 124, 125-26 (3d Cir. 2020).” (ECF No. 70, 7). In light of the Recommendation for
dismissal of Count V, the qualified immunity analysis should not have been performed. Because
the Magistrate Judge should have first examined the Bivens claim and then only assessed the
qualified immunity defense if the Bivens claim survived, this Court rejects the qualified
immunity portion of the Report and Recommendation. Because the Bivens analysis resolved
Agent Dawkin’s Motion to Dismiss Count V, the Plaintiffs’ and Mr. Dawkin’s respective
Objections to the rejected aspects of the Report and Recommendation concerning qualified
immunity are moot.
Il. CONCLUSION
Following a thorough review of the record, except for the following aspects of the Report
and Recommendation which are being rejected, this Court concurs with and accepts the
Magistrate Judge’s Report and Recommendation. The Report and Recommendation will be
rejected as regards: (1) the Magistrate Judge’s Report and Recommendation which notes this
case as a classic Bivens claim, and (2) the Magistrate Judge’s Report and Recommendation
regarding qualified immunity in relation to the dismissed Count V Bivens claims. Accordingly,
with the acceptance of the remainder of the Report and Recommendation, the Government
Defendants’ Motion to Dismiss will be denied for Counts I through III and will be granted for
Count IV. Agent Dawkin’s Motion to Dismiss at Count V will be granted. A separate order to
follow.
DATE: March 30, 2021 Deprbp. □□
Marilyn J. Hora’
United States District Judge
ce: Honorable Lisa Pupo Lenihan
United States Magistrate Judge
All Counsel of Record via CM-ECF