Barry Doe v. David Meron , 929 F.3d 153 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2024
BARRY DOE, individually and as Next Friend of his minor children M.D. (2006),
E.D. (2008) and K.D. (2009),
Plaintiff – Appellant,
v.
DAVID J. MERON, individually and in his official capacity as Navy Officer and
former Commanding Officer at NSA Bahrain (DOD); BARBARA R. CRAIG,
individually and in her official capacity as Director of Armed Forces Center for
Child Protection (DOD); KRISTEN E. WEBB, individually and in her official
capacity as social worker at Armed Forces Center for Child Protection (DOD);
TERRY GREENE, individually and in her official capacity as Principal of Bahrain
School (DOD); DAVID LASPISA, individually and in his official capacity as
current or former Executive Office, NSA Bahrain (DOD); STEVEN
STUTZMAN, individually and in his official capacity as Regional Counseling and
Advocacy Coordinator, Navy Installations Command (EURAFSWA); JOHN
SCORBY, individually and in his official capacity as a U.S. Navy Rear Admiral
and Commander of Navy Installation Command, EURAFSWA; CLARK
JACKSON, individually and in his official capacity as current or former Family
Advocacy Representative (FAR), NSA Bahrain (DOD); UNITED STATES OF
AMERICA,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paula Xinis, District Judge. (8:17-cv-00812-PX)
Argued: May 8, 2019 Decided: July 3, 2019
Before KING, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge
King and Judge Diaz joined.
ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria, Virginia,
for Appellant. Daniel Aguilar, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: T. Roe Frazer II, FRAZER PLC,
Nashville, Tennessee; Roy L. Mason, SMOUSE & MASON, LLC, Towson, Maryland;
Marie Celeste Bruce, RIFKIN WEINER LIVINGSTON, LLC, Bethesda, Maryland, for
Appellant. Joseph H. Hunt, Assistant Attorney General, Mary Hampton Mason, James R.
Whitman, Torts Branch, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellees.
2
QUATTLEBAUM, Circuit Judge:
Barry Doe claims officers of the United States Navy and employees of the
Department of Defense (“DOD”) conspired to seize, interrogate and batter his three
minor children and to seize and batter him. In response, Doe, individually and on behalf
of his three minor children, (collectively “Doe”) sued those officers and employees
alleging intentional torts under state law and constitutional violations under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The district court dismissed Doe’s claims under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Regarding Doe’s tort claims, the district court determined that the
individual defendants were acting within the scope of their employment and were,
therefore, immune from suit under the Federal Employees Liability Reform and Tort
Compensation Act of 1988 (the “Westfall Act”) and the Medical Malpractice Immunity
Act (the “Gonzalez Act”). Under those acts, the district court determined that the
government was properly substituted for the individual defendants for the tort claims.
The district court then held that the government was not subject to suit because the tort
claims arose in a foreign country, an exception to the government’s limited waiver of
sovereign immunity under the Federal Tort Claims Act (the “FTCA”).
Regarding the constitutional claims, the district court declined to extend Bivens to
the circumstances of this case, and, accordingly, dismissed those claims for failure to
state a claim. For the reasons set forth below, we affirm.
3
I.
Because of their importance to the background of this case, we first describe the
applicable provisions of the Westfall Act, the Gonzalez Act and the FTCA. The Westfall
Act immunizes federal employees from personal liability for claims that arise within the
scope of their employment. Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997).
To provide this immunity, the Attorney General of the United States, or his delegee, must
certify that the defendant employees were acting within the scope of their employment at
the time of the incident out of which the claim arose. 28 U.S.C. § 2679(d)(1). Following
certification, the proceeding is deemed a tort action against the United States under the
provisions of the FTCA. 28 U.S.C. § 2679(d)(1).
Similarly, the Gonzalez Act immunizes federal employees in the medical field
from personal liability for claims arising from the performance of medical or related
health care functions. 10 U.S.C. § 1089(a). It does this by allowing the United States to
substitute itself as a defendant upon certification by the Attorney General that the medical
employee was acting within the scope of his employment at the time of the incident out
of which the suit arose. 10 U.S.C. § 1089(c).
After certification, the ball is in the plaintiff’s court. If a plaintiff does not
challenge the Attorney General’s certification, the certification is conclusive. Gutierrez
de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997). 1 If a
1
The certification itself satisfies the government’s prima facie burden of showing
that the defendant employees acted within the scope of their employment but does not
(Continued)
4
plaintiff challenges the Attorney General’s certification, he must prove that the
defendants were not acting within the scope of their employment. Maron, 126 F.3d at
323. If the plaintiff presents persuasive evidence refuting certification, the government
must provide evidence and analysis supporting its conclusion that the conduct at issue
was carried out within the scope of employment. Id. If the plaintiff’s evidence carries the
burden of proof, the district court may allow any discovery it deems appropriate.
Gutierrez de Martinez, 111 F.3d at 1155.
If the district court determines that the employees were acting within the scope of
their employment, the government is substituted as the defendant for the individual
employees. Normally, the government would be immune from civil liability for these tort
claims under the sovereign immunity doctrine. However, the FTCA is a limited waiver of
the government’s sovereign immunity for injury or loss caused by the negligent or
wrongful act or omission of government employees acting within the scope of their
employment. Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001).
The waiver is limited because Congress has provided several exceptions to this
waiver under 28 U.S.C. § 2680. Relevant here, Congress excluded from the FTCA waiver
of immunity “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). If an
exception applies, a court must dismiss a complaint for lack of jurisdiction. Medina, 259
F.3d at 223.
carry an evidentiary weight unless it details and explains its conclusions. Maron, 126
F.3d at 323.
5
II.
With these legal principles in hand, we turn to the facts and procedural history. In
2017, Doe sued David J. Meron, Barbara R. Craig, Kristen E. Webb, Terry Greene, Clark
Jackson, David LaSpisa, Steven Stutzman and Josh Scorby in the District of Maryland.
Doe’s suit arose from conduct which allegedly occurred at Naval Support Activity
Bahrain (“NSA Bahrain”), a United States Navy installation in the Kingdom of Bahrain,
in 2015. 2 At the time of the alleged conduct, Doe was employed as a federal civil servant
by the Navy at NSA Bahrain. Meron was the Installation Commanding Officer at NSA
Bahrain. Craig and Webb were employees of the DOD or the Defense Health Agency
(“DHA”) in Bethesda, Maryland. Greene was an employee of the Department of Defense
Education Activity in Bahrain, serving as the Principal of the Bahrain School. Jackson
was an employee of the Navy at NSA Bahrain, serving as a clinical social worker in the
DOD’s Family Advocacy Program. LaSpisa was a commissioned officer in the Navy at
NSA Bahrain, serving as Meron’s second-in-command. Stutzman was an employee of the
2
An island nation in the Persian Gulf, the Kingdom of Bahrain’s historical roots
date back to antiquity. For centuries, various powers, including the Persian Empire,
Portugal and the British Empire, have sought to control or influence the island nation in
part because of its strategic location and in part because of its rich natural resources. The
United States’ relationship with Bahrain dates back to the early 20th century. During the
Second World War, Bahrain was aligned with the Allied powers, and the United States
sent a naval detachment to the region. Since 1948, the United States has maintained a
naval command presence in Bahrain. The United States recognized Bahraini
independence in 1971, and, in 1991, the United States and Bahrain signed a Defense
Cooperation Agreement. Today, Bahrain hosts the Navy’s Fifth Fleet and has participated
in the military coalition against ISIS.
6
Navy. Scorby was a Rear Admiral, serving as Commander, Navy Region Europe, Africa,
Southwest Asia.
The allegations in Doe’s complaint arise from a 2015 investigation at NSA
Bahrain into complaints that Doe abused and neglected his three minor children. Jackson
reported the allegations to Meron in April 2015. Meron then authorized Craig and Webb
to interview and examine Doe’s three minor children based on the allegations against
Doe. They did so on the same day, interviewing and physically examining the three
children. During the interview and examinations, Craig and Webb found no evidence of
sexual abuse. 3
Doe’s complaint alleges the investigation was illegitimate. He alleges that Meron,
Craig, Webb, Greene, Jackson, LaSpisa and other unnamed individuals in Maryland
conceived a plan to seize Doe’s minor children without a court order and to interrogate
and batter each of them. He further alleges that Scorby was consulted on aspects of the
plan and did not prevent it.
According to Doe, this plan was brought to fruition when Doe’s three minor
children were twice seized, interrogated and battered. Doe alleges that Greene allowed
Craig and Webb to seize, detain and interrogate Doe’s three minor children at the Bahrain
3
For purposes of reviewing a motion to dismiss for failure to state a claim, all of
the factual allegations pled in Doe’s complaint must be accepted as true. Day v. Johns
Hopkins Health System Corporation, 907 F.3d 766, 770 (4th Cir. 2018). Consequently,
the majority of the facts in this opinion are derived from Doe’s complaint and accepted as
true. However, for the limited purpose of the scope of employment analysis under the
Westfall Act and Gonzalez Act, this Court must consider and weigh the evidence
presented by Doe.
7
School. He further alleges that LaSpisa forcibly seized the three minor children a second
time later the same day. He contends that the children were then taken to another
location, where Craig sexually battered all three minor children during the course of their
physical examinations. Doe claims that he was also seized, battered, detained and
unlawfully imprisoned the following day in the presence of his children.
In the complaint, Doe alleges five constitutional claims under Bivens. First, he
alleges that the defendants violated the Fourth Amendment rights of his three minor
children when LaSpisa allegedly seized the children and Craig and Webb allegedly
battered them. Second, Doe alleges the defendants violated the Fourth Amendment rights
of his three minor children when Greene, Craig and Webb allegedly seized and
interrogated the children at the Bahrain School. Third, he alleges the defendants violated
his Fourth Amendment rights when Naval security forces seized, detained, searched and
battered him. Fourth, Doe alleges that the defendants violated his and his children’s First
and Fifth Amendment rights to parentage and familiar relations. Fifth, he alleges that his
and his children’s Fifth Amendment rights to due process and equal protection were
denied as a result of the defendant’s conduct and on account of their race.
In addition to his constitutional claims, Doe alleges five intentional tort claims—
intentional infliction of emotional distress, assault, battery, false imprisonment and false
light invasion of privacy. He also alleges a conspiracy claim under 42 U.S.C. § 1985.
After the complaint was filed, the Acting Director of the Torts Branch of the Civil
Division of the United States Department of Justice certified that Scorby, Meron,
LaSpisa, Craig, Webb, Jackson, Stutzman and Greene were acting within the scope of
8
employment at the time of these incidents under the Westfall Act. He also certified that
Craig was at all relevant times a physician employed by the DOD and was acting within
the scope of her employment under the Gonzalez Act.
The government notified the court and Doe of its substitution for the individual
defendants with respect to the tort claims. On the same day, the individual defendants and
the government moved to dismiss the complaint, or, in the alternative, for summary
judgment. Doe moved to set aside the government’s scope of employment certification.
The district court denied Doe’s motion to set aside and granted the motions to
dismiss filed by the government and the individual defendants. In denying Doe’s motion,
the district court rejected much of Doe’s proffered evidence as inadmissible hearsay or as
conclusory characterizations about the individual defendants’ motives. The district court
concluded that Doe did not meet his burden of proving that the defendants acted outside
the scope of their employment. The district court thus allowed the substitution of the
government for the tort claims.
The district court then granted the government’s motion to dismiss. The district
court determined that the foreign country exception to the FTCA, which creates an
exception to the FTCA for claims arising in a foreign country, required the dismissal of
the tort claims for lack of subject matter jurisdiction. Next, the district court declined to
9
extend Bivens to Doe’s constitutional claims 4 and dismissed those claims for failure to
state a claim. 5
Doe filed a timely notice of appeal on August 29, 2018. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
III.
On appeal, Doe argues that the district court erred in (1) denying his motion to set
aside the scope of employment certification, (2) granting the government’s motion to
dismiss the tort claims and (3) granting the individual defendants’ motion to dismiss the
constitutional claims. The district court’s denial of Doe’s motion to set aside the scope of
employment certification decision is reviewed de novo. Gutierrez de Martinez, 111 F.3d
at 1152. Factual findings upon which the legal scope of employment determination rest
are reviewed for clear error. Id. at 1152 n.3. The district court’s grant of a motion to
dismiss for lack of subject matter jurisdiction and for failure to state a claim is reviewed
4
The government argued that, under the Gonzalez Act, it was substituted for Craig
for both the common law and constitutional claims. It also argued because a Bivens
action under the Constitution cannot ordinarily be brought directly against the
government, the constitutional claims against Craig should be dismissed. The district
court declined to address the government’s argument, instead dismissing the
constitutional claims against Craig because the claims improperly extended Bivens.
5
The district court dismissed Doe’s conspiracy claim under 42 U.S.C. § 1985,
concluding that Doe failed to allege specific incidents of discriminatory animus to
support such a claim. In the alternative, the district court held that it would dismiss the
conspiracy claim on the grounds of qualified immunity.
10
de novo. Sucampo Pharm., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir.
2006). We address these arguments in turn.
A.
Doe raises two principal arguments in challenging the district court’s
determination that the officers and employees were acting within the scope of their
employment. First, Doe contends that the district court applied the wrong law. Second,
Doe argues that he met his burden of proving that the officers and employees acted
outside the scope of their employment. 6
First considering the applicable law, Doe argues that the district court incorrectly
applied District of Columbia law in conducting its scope of employment analysis. Doe
contends that the district court should have applied Maryland law because the alleged
scheme was initially conceived and orchestrated in Maryland. Doe argues that the
application of Maryland law would lead to a different result because Maryland law is
materially different from District of Columbia law on the issue of scope of employment.
Specifically, Doe notes that Maryland law applies a two-factor test in its scope of
employment analysis, while the District of Columbia applies a four-factor test
incorporated from the Restatement Second of Agency.
6
Even if he did not meet his burden in challenging certification, Doe argues that
he demonstrated a need for additional discovery. A district court’s discovery decisions
are reviewed for an abuse of discretion. Gutierrez de Martinez, 111 F.3d at 1155. Here,
the district court did not abuse its discretion in refusing to allow additional discovery and
an evidentiary hearing.
11
When conducting a scope of employment analysis under the Westfall Act, courts
generally apply the law of the state where the conduct occurred. 28 U.S.C. § 1346(b)(1);
Gutierrez de Martinez, 111 F.3d at 1156. When the allegedly tortious conduct occurs in a
foreign country, rather than apply the law of a foreign country, courts have frequently
applied District of Columbia law. See, e.g., Kashin v. Kent, 457 F.3d 1033, 1037-38 (9th
Cir. 2006). Although this Court has yet to address which law applies when allegedly
tortious conduct occurs in a foreign country, we hold District of Columbia law applies in
these circumstances. Applying District of Columbia law leads to “single, cogent body of
law” on the scope of employment issue. Kashin, 457 F.3d at 1038. It is also appropriate
due to the relationship between the military and the nation’s capital. Id. at 1037.
However, as the district court pointed out, even if Maryland law were applied, the
result would not change. Contrary to Doe’s argument, the pertinent law of the District of
Columbia and Maryland are materially the same. The District of Columbia, in
determining whether an employee’s conduct falls within the scope of his employment,
examines whether (1) the conduct is of the kind he is employed to perform; (2) the
conduct occurs substantially within the authorized time and space limits; (3) the conduct
is actuated, at least in part, by a purpose to serve the employer; and (4) if force is
intentionally used by the employee against another, the use of force is not unexpectable
by the employer. Allaithi v. Rumsfeld, 753 F.3d 1327, 1330 (D.C. Cir. 2014). Maryland
considers similar factors, including whether (1) the conduct is of the kind the employee is
employed to perform; (2) the conduct occurred during a period not unreasonably
disconnected from the authorized period of employment in a locality not unreasonably
12
distant from the authorized area; and (3) the conduct was actuated at least in part by a
purpose to serve the master. Sawyer v. Humphries, 587 A.2d 467, 471 (Md. 1991)
(quoting E. Coast Lines v. M & C.C. of Balto, 58 A.2d 290, 304 (Md. 1948)). Because the
law of the District of Columbia and Maryland are substantially similar on the issues
relevant here, we reject Doe’s argument that the application of Maryland law to the scope
of employment analysis would lead to a different result.
We next turn to Doe’s argument he met his burden in challenging certification. In
challenging the scope of employment certification, a plaintiff must prove by a
preponderance of the evidence that the defendant was acting outside the scope of his
employment. Gutierrez de Martinez, 111 F.3d at 1153. To meet this burden, a plaintiff
must present or forecast specific evidence that contradicts the certification. Id. at 1155.
More specifically, Doe must, at minimum, present or forecast evidence that shows that
the conduct of the officers and employees at issue did not involve the type of work they
were employed to perform, occurred outside authorized space and time or was purely
personal in nature. Allaithi, 753 F.3d at 1330; Sawyer, 587 A.2d at 471. To do this, a
plaintiff may rely on the pleadings, affidavits or any other supporting documentary
evidence. Gutierrez de Martinez, 111 F.3d at 1155. He cannot rely on conclusory
allegations and speculation. Id.
In an attempt to meet his burden, Doe offered three exhibits: (1) a transcript of a
conversation between Doe and Regina Waller, who allegedly voiced concerns about
Doe’s treatment of his children (the “Waller Transcript”); (2) a statement of Valera
Young, who allegedly participated in the investigation (the “Young Statement”); and (3)
13
Doe’s affidavit. 7 As an initial matter and as the district court correctly pointed out, much
of this evidence constitutes inadmissible hearsay. Looking first at the Waller Transcript,
the document is an unsworn transcript of an audio recording of a conversation between
Doe and Waller. Many statements in the transcript are hearsay and the statements Waller
and Doe attribute to others are double hearsay. Likewise, the Young Statement contains
hearsay and double hearsay. Finally, Doe’s affidavit also contains hearsay purporting to
describe the statements of others and conclusory and speculative statements.
Given the questionable admissibility of these documents, these statements
arguably should not be considered in reviewing the district court’s scope of employment
determination. Some courts reviewing challenges to the scope of employment
certification have held that the plaintiff’s proffered evidence must be admissible to be
considered in their scope of employment analysis. See, e.g., Gilbar v. United States, 108
F. Supp. 2d 812, 816 (S.D. Ohio 1999), aff'd, 229 F.3d 1151 (6th Cir. 2000). Our caselaw
also seems to suggest as much without explicitly saying so. See, e.g., Gutierrez de
Martinez, 111 F.3d at 1153–55. Such an approach makes sense if the scope of
employment certification is effectively treated as a motion for summary judgment. See,
e.g., Maron, 126 F.3d at 322 (affirming the district court’s treatment of a certification
filing under the Westfall Act as effectively a motion for summary judgment). After all, a
7
Since all three documents are filed under seal, our discussion of the proffered
evidence is limited to general descriptions of the statements and allegations therein.
14
party opposing summary judgment must offer evidence that could be presented in a form
that would be admissible at trial. Fed. R. Civ. P. 56(c)(2).
But even if we consider all the evidence presented by Doe and credit the hearsay
statements, it does not satisfy Doe’s burden. Considering Doe’s evidence in turn, the
Waller Transcript purports to memorialize a conversation between Doe and Waller about
the investigation into Doe’s alleged conduct. To be sure, the conversation criticizes the
investigation. However, it contains no probative evidence that the defendants were acting
outside the scope of their employment. The very few statements that relate to a potential
personal motive for some of the defendants are speculative and conclusory.
Turning next to the Young Statement, it purports to describe Valera Young’s role
in the investigation into Doe’s alleged conduct. The statement indicates that Young was
involved in the investigation and objected to continuing the investigation into Doe. This
statement provides some background or context into the origins of the investigation and
even some criticism of it, but, like the Waller Transcript, it contains no evidence relevant
to the scope of employment analysis.
Considering last Doe’s affidavit, the vast majority of it criticizes the investigation,
attests to his own fitness as a parent and questions the necessity of the investigation in the
first place. This evidence, even if true, does not address the central issue, which is
whether the conduct of the defendants was or was not within the scope of their
employment.
There are portions of the affidavit that are relevant to the scope of employment
analysis. First, Doe alleges that defendants acted tortiously and illegally. But under
15
District of Columbia (and Maryland) law, even intentional torts and illegal conduct may
fall within employees’ scope of employment. See Weinberg v. Johnson, 518 A.2d 985,
988 (D.C. 1986); Fid. First Home Mortg. Co. v. Williams, 56 A.3d 501, 515 (Md. Ct.
Spec. App. 2012). In considering whether an intentional tort or an illegal act falls within
the scope of employment, the inquiry is whether the tort or crime was a foreseeable
aspect of the employee’s employment. Weinberg, 518 A.2d at 990–91; Williams, 56 A.3d
at 515–16. Here for example, Doe alleges that Craig sexually battered his three minor
children in the course of her medical examination of them. Craig’s job responsibilities
included medical examinations related to alleged sexual abuse. As a result, a physical
examination of the children during the course of an investigation into alleged sexual
abuse by Doe was a foreseeable consequence of her job. The district court’s conclusion
on this point is not clear error.
Next, in his affidavit, Doe also alleges that the defendants were motivated by a
personal desire for revenge against Doe. Specifically, Doe suggests that the defendants
were angered by Doe’s involvement in the firing of another employee at NSA Bahrain.
However, these allegations lack any evidencing support and are thus speculative. 8
“[U]nsubstantiated speculation about the ill will of his colleagues . . . is not enough, in
and of itself, to transform acts which are facially within the scope of employment into
acts that fall outside of that scope.” Maron, 126 F.3d at 327.
8
To the extent Doe relies on Waller’s statements to support this allegation, her
own statements in the transcript were also speculative.
16
But even if we credit the speculative and conclusory statements about personal
motives in Doe’s affidavit and Waller Transcript, they do not satisfy Doe’s burden.
Under District of Columbia (and Maryland) law, employees’ conduct need only be
motivated at least in part by a purpose to serve their employer to be within the scope of
their employment. Weinberg, 518 A.2d at 988; E. Coast Freight Lines, Inc. v. Mayor and
City Council of Baltimore, 58 A.2d 290, 304 (Md. 1948). To demonstrate that the
individual defendants were acting outside the scope of their employment, Doe must be
able to show that all the defendants were solely motivated by a personal desire. However,
Doe’s evidence fails to make this showing. The evidence does not show that this desire
could be attributed to all the defendants—much less that it was the sole desire of all the
defendants. 9
In determining that the evidence presented by Doe did not meet his burden in
challenging certification, the district court also relied on documents submitted by the
individual defendants and the government in support of their motions to dismiss Doe’s
claims. As described above, the initial burden in challenging certification is on Doe.
Maron, 126 F.3d at 323. If Doe meets his burden in challenging certification, the
government is then required to present evidence to support its conclusion that the torts
occurred within the scope of employment. Id. Since the district court concluded that Doe
did not meet his burden in challenging certification, it need not have considered the
9
With regards to the factual findings of the district court, the district court’s
conclusion that both Meron and Jackson were at least partially motivated by a purpose to
serve their respective roles does not constitute clear error.
17
defendants’ evidence. The evidence submitted by the defendants, however, only
reinforces the conclusion that the defendants were acting within the scope of their
employment, investigating allegations of child abuse or neglect.
For these reasons, we affirm the court’s denial of Doe’s motion to set aside the
scope of employment certification. 10
B.
Turning next to the district court’s order granting the government’s motion to
dismiss, Doe first contends that because the district court erred in its scope of
employment analysis, it should not have reached the subject matter jurisdiction issue.
Because we conclude that the government was properly substituted for the defendants,
we reject this argument and only consider whether the district court was correct in finding
that an exception to the FTCA applies.
As noted above, the FTCA is a limited waiver of the government’s sovereign
immunity. Medina, 259 F.3d at 223. If an exception to the FTCA applies, the
government’s immunity is not waived and courts lack jurisdiction to hear a case. Id. One
such exception to the FTCA is the foreign country exception. Section 2680(k) provides
that the FTCA does not apply to “[a]ny claim arising in a foreign country.” 28 U.S.C.
10
In affirming the district court, we hold that the government was properly
substituted for the individual defendants under the Westfall Act. Neither party addressed
whether substitution under the Gonzalez Act is appropriate when a medical professional’s
alleged torts occur abroad. See Pelphrey v. United States, 674 F.2d 243, 246 (4th Cir.
1982). However, we need not resolve this issue today since the government substituted
itself for all the individual defendants under the Westfall Act. See United States v. Smith,
111 S. Ct. 1180 (1991).
18
§ 2680(k). Courts have routinely held that conduct which occurs on an American military
base in a foreign country also falls within this exception. Heller v. United States, 776
F.2d 92, 97 (3d Cir. 1985); Roberts v. United States, 498 F.2d 520, 522 n.2 (9th Cir.
1974). We agree with this approach and hold that conduct occurring on an American
military base in a foreign country falls within the foreign country exception to the FTCA.
Accordingly, the district court correctly dismissed these claims because they arose on a
foreign military base.
C.
Last, Doe argues that the district court erred in dismissing his constitutional claims
because it misapplied Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). 11 In Abbasi, the Supreme
Court discussed the continued viability of constitutional claims under Bivens. In doing so,
it observed that the Bivens remedy is now “disfavored” and has not been extended to new
contexts for the past 30 years. Abbasi, 137 S. Ct. at 1857 (internal quotation marks
omitted).
The Court also outlined the two-step framework required to analyze whether a
Bivens remedy is available against federal officials. A court must first consider whether a
case presents a new Bivens context. Id. at 1859. A context is considered new if it “is
different in a meaningful way from previous Bivens cases decided by this Court. . . .” Id.
According to the Supreme Court, a case may differ in a meaningful way:
11
Doe also argues that the district court erred in dismissing his conspiracy claim
under 42 U.S.C. § 1985 for failure to state a claim. For the reasons set forth in the district
court opinion below, we affirm the district court’s dismissal of the conspiracy claim.
19
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; or the presence of potential special
factors that previous Bivens cases did not consider.
Id. at 1860. The Supreme Court noted that there have been only three circumstances
where the Court has recognized an implied damages remedy under the Constitution since
1971. Id. at 1854–55. In 1971, the Court in Bivens held that it would “enforce a damages
remedy to compensate persons injured by federal officers who violated the prohibition
against unreasonable search and seizures” under the Fourth Amendment. Id. at 1854. In
1979, the Court recognized an implied cause of action for damages under the Fifth
Amendment Due Process Clause for gender discrimination in Davis v. Passman, 442 U.S.
228 (1979). Id. at 1854–55. In 1980, the Court recognized an implied cause of action for
damages under the Eighth Amendment Cruel and Unusual Punishments Clause for
inadequate medical treatment of a prisoner in Carlson v. Green, 446 U.S. 14 (1980). Id.
at 1855.
If the case presents a new context, a court must then conduct a special factors
analysis to determine whether an action should proceed. Id. at 1857. Although the Court
has not defined special factors, it explained “a factor must cause a court to hesitate before
answering [whether the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of allowing a damages action to
proceed] in the affirmative.” Id. at 1858. Relevant factors include the “impact on
governmental operations systemwide,” “the burdens on Government employees who are
20
sued personally,” the regulatory authority of Congress in a context, and the existence of
an “alternative remedial structure” in a case. Id. If a case presents a new Bivens context
and special factors counsel against extending Bivens in the circumstances of the case,
courts should not recognize a damages action under the Constitution. Id. at 1857.
This Court recently interpreted Abbasi to preclude the extension of a Bivens
remedy in the context of a Fourth Amendment claim against Immigration and Customs
Enforcement (“ICE”) Agents. Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019). In
doing so, we held that the Fourth Amendment claims against the ICE agents presented a
new Bivens context. Tun-Cos, 922 F.3d at 525. We reasoned the statutory and legal
mandate under which the officers operated, policy concerns unique to the enforcement of
immigration laws, new categories of defendants and the unprecedented constitutional
claims in the case all were different from Bivens, indicating the proposed claim would be
a new context. Id. at 524–25. We next determined the impact of immigration on
diplomacy, foreign policy, and security; the special role of Congress in setting
immigration policy; and the existence of an alternative remedial structure were special
factors counseling against an extension of Bivens. Id. at 526. We thus held that a Bivens
remedy was not available. Id. at 528.
Applying the Abbasi framework here, Doe’s constitutional claims present a new
Bivens context because they differ in meaningful ways from previous Bivens cases.
Beginning with Doe’s Fourth Amendment claims, while the plaintiffs in Bivens also
asserted a Fourth Amendment claim, the other circumstances surrounding the claims
differ significantly. Similar to the differences described in Tun-Cos, the differences
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between Doe’s claims and the claim recognized in Bivens include the rank of the officers
and the legal mandate under which the officers were operating. Also in contrast to Bivens,
these defendants were officers in the United States Navy or employees of the Department
of Defense, operating under naval regulations.
Likewise, Doe’s Fifth Amendment claims differ significantly from the Fifth
Amendment claim recognized by the Supreme Court in Davis. In Davis, the Court
recognized an implied damages remedy under the Fifth Amendment Due Process Clause
for gender discrimination where an administrative assistant sued a congressman for firing
her because of her gender. 442 U.S. at 244. Unlike those alleged constitutional claims,
Doe asserts multiple alleged Fifth Amendment Due Process Clause violations, including
violations of his right to parentage, to familial relations and to equal protection of the
laws. Additionally, there are meaningful differences between the rank of the officers
involved and the legal mandate under which the officers were operating. We therefore
find Doe’s Fifth Amendment claim also presents a new Bivens context.
Like his Fourth Amendment and Fifth Amendment claims, Doe’s First
Amendment claim also presents a new Bivens context. As Doe concedes, his First
Amendment claim requires an extension of Bivens since it involves a new constitutional
right. The Supreme Court has not recognized a Bivens remedy for an alleged violation of
the First Amendment.
Having determined that all Doe’s constitutional claims present new Bivens
contexts, we now consider whether any special factors counsel against extending a Bivens
remedy. Multiple special factors counsel against such an extension. First, Doe’s claims
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arose in a military context. As this Court has observed, “Distilling these cases to their
core holdings, we restate the principles guiding our analysis in the case at bar: no Bivens
action will lie where special factors counsel hesitation in creating an implied right of
action and special factors clearly counsel hesitation in implying a cause of action for
injuries arising out of military service.” Cioca v. Rumsfeld, 720 F.3d 505, 512 (4th Cir.
2013). Second, Doe’s claims would extend Bivens extraterritorially. See, e.g., Vance v.
Rumsfeld, 701 F.3d 193, 198–99. (7th Cir. 2012) (en banc) (“This Court has never
created or even favorably mentioned a non-statutory right of action for damages on
account of conduct that occurred outside the borders of the United States.”). Finally, the
existence of an alternative remedial scheme, in this case an administrative claim under
the Military Claims Act, counsels against extension.
Applying the Abbasi framework, we conclude that Doe lacks an implied cause of
action under the constitution, and we affirm the district court’s dismissal of Doe’s
constitutional claims. 12
IV.
For the reasons outlined above, the order of the district court is
AFFIRMED.
12
Since we have declined to address whether Craig was properly substituted under
the Gonzalez Act, we also decline to reach the novel argument that the Gonzalez Act
immunizes defendants from both tort and constitutional claims. We find that the
constitutional claims against Craig are also appropriately dismissed under the Abbasi
framework.
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