USCA11 Case: 20-13123 Date Filed: 11/17/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13123
Non-Argument Calendar
____________________
DONOVAN G. DAVIS, JR.,
Plaintiff-Appellant,
versus
ROY DOTSON, JR.,
individually,
KARA WICK,
individually,
ANDREW BAZEMORE,
individually,
Defendants-Appellees.
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2 Opinion of the Court 20-13123
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02235-CEH-TGW
____________________
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Donovan Davis, Jr., appeals the dismissal of his pro se civil
complaint, filed pursuant to Bivens v. Six Unknown Narcotic
Agents,
403 U.S. 388 (1971), against United States Secret Service
agents Andrew Bazemore and Roy Dotson, Jr., and Assistant
United States Attorney Kara Wick. We conclude that Davis failed
to state a Bivens claim against the defendants, and we therefore af-
firm.
I.
In his complaint, Davis alleged that Bazemore and Dotson
destroyed his personal property, after receiving authorization from
Wick, by erasing electronic data from a hard drive he owned that
had been seized pursuant to a grand jury subpoena and stored in a
Secret Service vault. Davis alleged that by intentionally and
wrongfully destroying the data, the defendants violated his Fifth
Amendment rights and their constitutional duty of care for his
property.
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20-13123 Opinion of the Court 3
The defendants moved to dismiss Davis’s complaint for fail-
ure to state a claim. The district court granted their motions and
dismissed the complaint, explaining that the Supreme Court has
not authorized an implied cause of action under Bivens for Fifth
Amendment property-damage claims or a constitutional “duty of
care” for property, and expanding Bivens to encompass Davis’s
claims was not warranted because Davis had alternate remedies.
Davis appealed.
II.
We review the district court’s grant of a motion to dismiss
for failure to state a claim de novo, “accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003).
In Bivens, the Supreme Court inferred a private cause of ac-
tion for damages against federal officers for alleged violations of the
plaintiff’s Fourth Amendment rights. Bivens,
403 U.S. at 397. The
Court later extended the implied remedy it recognized in Bivens to
two additional contexts: a sex discrimination claim under the Fifth
Amendment Due Process Clause and an Eighth Amendment claim
alleging cruel and unusual punishment. See Davis v. Passman,
442
U.S. 228 (1979); Carlson v. Green,
446 U.S. 14 (1980).
Since 1980, however, the Supreme Court has made clear
that further expansion of Bivens is “disfavored.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662,
675 (2009)). It has therefore “consistently refused to extend Bivens
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4 Opinion of the Court 20-13123
to any new context or new category of defendants.”
Id. (quoting
Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 68 (2001)).
When evaluating a plaintiff’s proposed Bivens claim, we en-
gage in a two-step inquiry. Hernandez v. Mesa,
140 S. Ct. 735, 743
(2020). First, we ask whether the claim arises in a new context or
involves a new category of defendants.
Id. That is the case here—
Davis concedes, and we agree, that his Fifth Amendment property
claims are “different in a meaningful way from previous Bivens
cases decided by” the Supreme Court.
Id. (quoting Abbasi, 137 S.
Ct. at 1859).
If the plaintiff seeks to bring a Bivens claim in a new context,
we proceed to the second step and consider whether any “special
factors” exist that “counse[l] hesitation” about creating a new
Bivens cause of action for plaintiff’s claim. Id. (alteration in the
original). At this stage of the inquiry, “separation-of-powers prin-
ciples are or should be central to the analysis.” Abbasi, 137 S. Ct.
at 1857. If “there are sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy as part of the system
for enforcing the law and correcting a wrong, the courts must re-
frain from creating the remedy in order to respect the role of Con-
gress in determining the nature and extent of federal-court jurisdic-
tion under Article III.” Id. at 1858. And in “a related way, if there
is an alternative remedial structure present in a certain case, that
alone may limit the power of the Judiciary to infer a new Bivens
cause of action.” Id.; see Malesko,
534 U.S. at 70 (noting that the
Court has implied a Bivens action only “to provide an otherwise
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20-13123 Opinion of the Court 5
nonexistent cause of action” or where the plaintiff “lacked any al-
ternative remedy for harms caused by an individual officer’s un-
constitutional conduct” (emphasis in the original)).
Here, Congress has provided at least one alternative means
for Davis to seek compensation for the destruction of his property:
by statute, the Attorney General may settle claims up to $50,000
for loss of private property caused by Justice Department investi-
gative or law enforcement employees acting within the scope of
their employment.
31 U.S.C. § 3724. The fact that a settlement
under the statute may not fully compensate Davis for his lost
data—which he says was worth around $100,000—does not justify
the expansion of Bivens to a new context. See Schweiker v.
Chilicky,
487 U.S. 412, 425–29 (1988) (refusing to extend Bivens to
provide damages remedy for denial of Social Security benefits even
though remedies available under the Social Security Act did not
provide “complete relief”).
On appeal, Davis argues that he cannot pursue a settlement
with the Attorney General because the government has not certi-
fied that the defendants were acting within the scope of their em-
ployment when they destroyed his property. This argument is mis-
placed. Davis cites
28 U.S.C. § 2679(d), which provides for the sub-
stitution of the United States as defendant in a Federal Tort Claims
Act suit if the Attorney General certifies that the defendant federal
employee was acting within the scope of his employment at the
time of the incident from which the claim arose. Section 2679(d)
does not apply to claims for settlement by the Attorney General
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6 Opinion of the Court 20-13123
under
31 U.S.C. § 3724, and the lack of certification under § 2679(d)
does not preclude Davis from pursuing a settlement for the de-
struction of his property if he wishes to do so.
It is also significant that while Congress has created one av-
enue for claimants to recover for the loss or destruction of property
by federal law enforcement officers, it has explicitly closed another
by barring claims like Davis’s under the Federal Tort Claims Act.
28 U.S.C. § 2680(c) (FTCA waiver of sovereign immunity does not
apply to claims against law enforcement officers “arising in respect
of” the “detention” of property); Ali v. Fed. Bureau of Prisons,
552
U.S. 214, 216, 227–28 (2008) (section 2680(c) bars FTCA claims
against law enforcement officers for the loss of property). This ex-
isting legislation is enough to convince us that extending Bivens to
create an additional damages remedy for Davis’s claims is neither
necessary nor appropriate.
III.
We conclude that Davis failed to state a Bivens claim against
the defendants because the Supreme Court has not previously ap-
proved a cause of action under Bivens for property claims, and
“there are sound reasons to think Congress might doubt the effi-
cacy or necessity of a damages remedy” in this context. Abbasi, 137
S. Ct. at 1858. We therefore affirm the district court’s dismissal of
Davis’s complaint for failure to state a claim.
AFFIRMED.