Tobias Jones v. United States Secret Service, of the U.s. Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 22, 2024 Decided July 15, 2025
No. 23-5288
TOBIAS JONES,
APPELLANT
v.
UNITED STATES SECRET SERVICE, OF THE U.S. DEPARTMENT
OF HOMELAND SECURITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00962)
Daniel R. Yablon argued the cause for appellant. With him
on the briefs were R. Stanton Jones, Andrew Tutt, and Devin
Watkins.
Michael K. Kellogg, Matthew J. Wilkins, and Dustin G.
Graber were on the brief for amicus curiae for appellant.
Jaynie R. Lilley, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, at the time the brief was filed, and Barbara L. Herwig,
Attorney.

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Before: SRINIVASAN, Chief Judge, WALKER, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: From a Washington, D.C.
sidewalk, Tobias Jones filmed a Secret Service building’s open
garage door. Two officers told him to stop. When he didn’t,
they detained him, handcuffed him, and searched him. Then, a
third officer arrived and said Jones had a right to continue his
filming.
Jones believes the first two officers violated his First
Amendment right to free speech and his Fourth Amendment
right to be secure against unreasonable searches and seizures.
He sued in district court for damages and prospective relief.
We hold that Jones has not asserted a valid cause of action
for damages. We also hold that Jones lacks standing to seek
prospective relief. Therefore, we affirm the district court’s
decision to dismiss his case.
I. Background
Tobias Jones describes himself as a citizen journalist. He
regularly records law enforcement activity in the District of
Columbia. He then posts the videos online.
In 2019, Jones walked by a Secret Service facility. He
noticed a “strange looking building” with the type of “large
open hangar door” that often separates a loading dock from the
street. Jones v. United States Secret Service, 701 F. Supp. 3d

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4, 9 (D.D.C. 2023) (quoting Complaint ¶ 7). He began filming
it.
A Secret Service officer named James Fisher soon ordered
Jones to stop pointing his camera “inside [the] building.” JA 8.
Jones refused. Fisher then grabbed the camera and “force[d] it
to point in a different direction.” JA 7.
About ten minutes later, Sergeant Travas Holland arrived
and asked for Jones’ identification. Jones again refused to
comply. Holland instructed him to leave, but Jones insisted
that he had a right to continue filming.
Holland then handcuffed Jones and searched his pockets
and backpack. Jones “demand[ed] to know why.” JA 10.
Holland said it was for everyone’s safety.
A third officer arrived. That officer said Jones had a right
to film the building. After that, Jones was released, and he left.
Jones sued Fisher and Holland for damages and
declaratory relief and the Secret Service for injunctive relief.
He asserted a right under the First Amendment to record the
Secret Service building. He also asserted a right under the
Fourth Amendment to be free from what he called an
unreasonable seizure, an unreasonable search, and an
unreasonable use of force.1
The district court dismissed the case. It held that Jones had
not asserted a valid cause of action to sue for damages and that
1 Count V stated a failure-to-train claim. Jones does not press that
claim on appeal.

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he lacked standing to seek an injunction or a declaratory
judgment.
Jones appealed.2
II. Damages
The damages claims here depend on the scope of Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). In that case, Webster Bivens alleged that
federal agents violated his Fourth Amendment right to be free
from unreasonable searches and seizures. Id. at 389. When he
sued them, the Supreme Court held the Fourth Amendment
contained an implied cause of action for damages. Id. at 396-
97.
The Court recognized another implied cause of action in
1979 when a congressional staffer seeking damages alleged
employment discrimination prohibited by the Fifth
Amendment’s Due Process Clause. See Davis v. Passman, 442
U.S. 228, 230-31, 248-49 (1979). And the Court did so again
in 1980 when a prisoner claimed deliberate indifference to his
medical needs in violation of the Eighth Amendment. See
Carlson v. Green, 446 U.S. 14, 16 n.1, 18-23 (1980). But in
the 45 years since 1980, the Supreme Court “has consistently
declined to extend Bivens to new contexts.” Goldey v. Fields,
No. 24-809, 2025 WL 1787625, at *2 (U.S. June 30, 2025) (per
curiam); see also Egbert v. Boule, 142 S. Ct. 1793, 1799 (2022)
(“we have declined 11 times to imply a [Bivens] cause of action
for other alleged constitutional violations”).
2 Our review is de novo, accepting “as true all well-pleaded factual
allegations.” Buchanan v. Barr, 71 F.4th 1003, 1006 (D.C. Cir.
2023).

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The Court analyzes Bivens claims in two steps. First, it
asks “whether the case presents a new Bivens context.” Egbert,
142 S. Ct. at 1803 (cleaned up). If the context is not new, the
claim may proceed.
“Second, if a claim arises in a new context, a Bivens
remedy is unavailable if there are special factors indicating that
the Judiciary is at least arguably less equipped than Congress
to weigh the costs and benefits of allowing a damages action to
proceed. If there is even a single reason to pause before
applying Bivens in a new context, a court may not recognize a
Bivens remedy.” Id. (cleaned up).
A. The Fourth Amendment
Jones’ Fourth Amendment damages claims differ from the
claim in Bivens, and we cannot extend Bivens to this new
context.
1. A New Context
A new context arises if the plaintiff’s “case is different in
a meaningful way from previous Bivens cases decided by [the
Supreme] Court.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1859
(2017). Cases can meaningfully differ even if they involve the
same “right” and “mechanism of injury.” Id. Meaningful
differences may “include the rank of the officers involved, the
constitutional right at issue, and the risk of disruptive intrusion
by the Judiciary into the functioning of other branches.”
Buchanan v. Barr, 71 F.4th 1003, 1008 (D.C. Cir. 2023)
(cleaned up).
This case is meaningfully different from Bivens because it
creates a greater risk of judicial intrusion into the Executive
Branch. Unlike the agents in Bivens, Fisher and Holland were

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protecting a federal building from a perceived threat. That
protective duty is inherently defensive — a duty to stop a threat
before it harms anyone.
In contrast, the federal officers who arrested Bivens were
not protecting their space; they intruded into his space. They
arrested Bivens in his home (unlike here), searched it “stem to
stern” (unlike here), and hauled him to jail (unlike here).
Bivens, 403 U.S. at 389. That law enforcement activity
materially differs from the protective activity of guarding a
federal building from perceived threats.
Consider how those different purposes and different
environments created different risk-reward calculations for the
different agents. Bivens involved serious harm to Bivens; this
case involves comparatively less harm to Jones. And Bivens
involved a planned encounter with (at least) partially known
risks posed by an identified person; this case involves an
unplanned encounter with unknown risks posed by an
unidentified person.
Because the intrusion here would be different than in
Bivens, the context is new, and Jones may proceed only if we
extend Bivens to this new context.
2. Reasons Not To Extend Bivens
We cannot extend Bivens to this case’s new context. There
are at least two independent reasons why Congress is better
equipped than the courts here “to weigh the costs and benefits
of allowing a damages action to proceed.” Egbert, 142 S. Ct.
at 1803 (cleaned up).
First, for the reasons explained already, the Secret Service
officers’ protective posture in this case means that our creation

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of a cause of action could intrude into Executive Branch
functions in a dangerous way, and this intrusion counsels
against extending that precedent. When defending a federal
building, retreat is not an option; split-second decision-making
is often required; and the “risk of personal damages liability is
more likely to cause an official to second-guess difficult but
necessary decisions.” Ziglar, 137 S. Ct. at 1861. In that
context, Congress is better suited than the Judiciary “to
consider and weigh the costs and benefits of allowing a
damages action to proceed.” Id. at 1858; see also Hernandez
v. Mesa, 140 S. Ct. 735, 743 (2020) (courts must “consider the
risk of interfering with the authority of the other branches”).
Second, “Congress has provided alternative remedies for
aggrieved parties in [Jones’] position that independently
foreclose a Bivens action here.” Egbert, 142 S. Ct. at 1806.
Specifically, Congress has charged the Department of
Homeland Security’s Inspector General and Officer for Civil
Rights and Civil Liberties with investigating “complaints and
information indicating possible abuses of civil rights or civil
liberties.” See 6 U.S.C. § 345(a)(6). Any person may submit
a complaint of “employee misconduct,” which may include
allegations of “civil rights abuses.” See Report Employee
Misconduct, United States Secret Service,
https://perma.cc/FZR3-VZJF.
The Supreme Court deemed those alternative remedies
sufficient in Egbert. 142 S. Ct. at 1806-07. And though the
plaintiff in Egbert did not sue Secret Service officers, he did
sue an agent in another part of the Department of Homeland
Security — the United States Customs and Border Protection.
If an alternate remedy was good enough there, it is good
enough here.

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B. The First Amendment
Jones alleges that Fisher and Holland violated his First
Amendment “right to record the actions of police officers in the
public performance of their duties from a public forum.” JA
15. At oral argument, Jones explained that he is asserting this
Bivens claim primarily to preserve it for “further review.” Oral
Arg. Tr. 5; Appellant Br. 7.
We can acknowledge this claim’s preservation while
quickly dispatching it. The Supreme Court has never extended
Bivens to the First Amendment, and it has categorically
foreclosed a Bivens remedy for First Amendment retaliation
claims. See Egbert, 142 S. Ct. at 1807; Buchanan, 71 F.4th at
1008. For those reasons, as well as the officers’ protective
posture and the availability of an alternative remedy, we
decline to extend Bivens to Jones’ First Amendment claim.
III. Prospective Relief
We also affirm the district court’s holding that Jones lacks
standing to seek declaratory and injunctive relief.
To establish standing for prospective relief, a plaintiff
opposing a motion to dismiss must plausibly allege facts that
show “the threatened injury is certainly impending, or there is
a substantial risk that the harm will occur.” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014) (cleaned up); see
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). “Past wrongs” may be used as “evidence bearing on
‘whether there is a real and immediate threat of repeated
injury.’” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). But
“[p]ast exposure to illegal conduct,” without more, is

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insufficient to establish standing for prospective relief. See
O’Shea, 414 U.S. at 495.
Jones alleges a future injury — namely, that the Secret
Service will once again stymie his efforts to record a Secret
Service facility. In support of that claimed injury, he alleges
that he “‘regularly’ films police and government officials
around the District, including officials on government
property, and anticipates ‘future encounters’ with Secret
Service agents in the course of that journalistic activity.”
Appellant Br. at 23 (quoting JA 5, 12). And, as evidence that
this risk is realistic, he points to a past harm — the 2019
incident.
There is reason to doubt that Jones has sufficiently
identified “any description of concrete plans” to some day film
a Secret Service building, “or indeed even any specification of
when the some day will be.” Lujan, 504 U.S. at 564. But even
if he has done that, Jones has not plausibly alleged a
“substantial risk” that Secret Service officers will once again
detain and search him. That’s because he has not established
that “all” Secret Service officers in D.C. “always” detain and
search “any citizen” who records a Secret Service building.
Lyons, 461 U.S. at 105-06.
To see why, recall that not even “all” the officers in this
case objected to Jones’ conduct. Id. A third officer made
“clear that” Jones was “not violating any law.” JA 11. In
Jones’ words, that officer said he had a right to “continue
filming from the public sidewalk without interfering with
anyone else.” Id.
At most, Jones plausibly alleges that Fisher and Holland,
given the chance, would obstruct a future attempt by Jones to
film a Secret Service building. But Jones did not allege that he

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is likely to encounter those two officers again. Nor did he
allege that he is likely to return to the building where they work.
In response, Jones relies on Anatol Zukerman & Charles
Krause Reporting, LLC v. United States Postal Service, in
which we affirmed a declaratory judgment that remedied the
“continuing effects” of a “past injury.” 64 F.4th 1354, 1363,
1367 (D.C. Cir. 2023). But Jones has not plausibly alleged any
“continuing effects” from a “past injury.” Id. So a declaratory
judgment would not redress any harm Jones may have suffered.
And without a redressable injury, Jones lacks standing.3
IV. Conclusion
“While Bivens and its progeny have not been overruled
and claims for damages arising under the Constitution remain
available in some circumstances, the Supreme Court has
recognized that creating implied causes of action under Bivens
is a disfavored judicial activity.” Buchanan v. Barr, 71 F.4th
1003, 1007 (D.C. Cir. 2023) (cleaned up). For that reason, the
Court has set a high bar for plaintiffs like Jones.
Jones has not cleared that high bar. Nor has he established
standing to sue for prospective relief. So we affirm the district
court.
So ordered.
3 In his opening brief, Jones claims he faces a “cloud of legal
uncertainty” that qualifies as a continuing effect of a past harm.
Appellant Br. 31. But Jones did not allege this injury in his
complaint, so we decline to consider it. And by not asking the district
court for leave to amend his complaint, Jones has forfeited the
opportunity to do so. City of Harper Woods Employees’ Retirement
System v. Olver, 589 F.3d 1292, 1304 (D.C. Cir. 2009).

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