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Media Alerts - Roger Vanderklok v. USA - Third Circuit
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August 24, 2017
  Roger Vanderklok v. USA - Third Circuit
Headline: No implied cause of action for damages under the First Amendment against a TSA employee for retaliatory prosecution because the role of the TSA in securing public safety far outweighs the benefit of judicially implied damages liability.

Area of Law: First Amendment

Issues Presented: Whether a First Amendment claim for damages against a TSA employee for retaliatory prosecution exists in the context of airport security screenings.

Brief Summary:
The court ruled that there is no First Amendment damages remedy available against airport security screeners who allegedly retaliate against a traveler. The courts have never implied a remedy in a case involving military or national security because Congress is better positioned to evaluate the impact of a new species of litigation against those who act on the public's behalf in the national security context. The expansion of judicially implied causes of action to new contexts is strictly limited. Here, even if no alternative process was available, the role of the TSA in securing public safety was so significant that it precluded the Third Circuit from implying a cause for the plaintiff.

Extended Summary:
Roger Vanderklok packed a heart-monitor and his watch into a PVC pipe, capped it, then placed it inside his carry-on bag and went to the Philadelphia International Airport to board a flight for Miami. Shortly after his bag was x-rayed, Vanderklok had a disagreement with a TSA screener that resulted in his arrest for disorderly conduct, threatening placement of a bomb, and making terroristic threats - thwarting his plans of running a half marathon in Miami.

Shortly after being acquitted of all charges, Vanderklok filed suit for unconstitutional infringement of his First Amendment rights - one of nine claims - against the United States of America, the TSA, the TSA screener, the City of Philadelphia, Philadelphia Police officers and detectives, and an agent of the Department of Homeland Security. The district court dismissed all claims against each defending party, except the TSA screener - Charles Kieser. The district court rejected the argument that he was entitled to qualified immunity against the First Amendment retaliatory prosecution claim, and denied his motion for summary judgment. Keiser then filed the interlocutory appeal.

For the qualified immunity dispute, the court framed a dipositive threshold issue: whether there is a First Amendment right to be free from retaliatory prosecution by a TSA employee. The judiciary created a private cause of action against federal officers for deprivation of constitutional rights - a Bivens claim - but it is exceedingly rare and narrowly applied. The Supreme Court has never implied such an action under the First Amendment, and the Third Circuit has never invoked Bivens on claims of freedom from government retaliation against speech in a dispute with airport security screeners.

According to the Supreme Court, the allowance of this claim is very fact specific and should not be extended beyond the specific clauses of the specific amendments for which a cause of action has already been implied. Airport security and TSA screeners are a new context and category of defendant for a Bivens claim, which strongly weighed against recognizing Vanderklok's claim. However, this factor was not dipositive of the court's inquiry.

Special factors counseling hesitation before authorizing a new kind of litigation were ultimately determinative of the court's refusal to recognize the existence of the Vanderklok's claim. First, under the democratic process, Congress should decide whether to provide for a damages remedy - not the courts. The TSA was created in response to the September 11th attacks for the purpose of securing airports, so Vanderklok's claim implicated the government's response to 9/11. National security is the prerogative of Congress and the President, and judicially imposed damages liability may cause an official to second-guess difficult but necessary decisions concerning national-security policy, or increase the probability that a TSA agent would hesitate in making split-second decisions.

Second, the court surmised that Congress's failure to create damages liability in this context likely was not inadvertent. When it created the TSA, Congress restricted the scope of tort liability for the government and its employees, and created an administrative mechanism to adjudicate TSA complaints - TRIP. The Third Circuit believed it should hesitate to create new remedies when the ones available are already limited by congressional design.

Third, the court found Vanderklok's retaliatory prosecution claim poorly suited to address wrongs by line TSA employees because they are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers. If TSA employees encounter situations requiring action beyond their limited responsibilities, they are instructed to contact local law enforcement. The district court ruled Keiser was not an enforcement officer of the TSA and there was no challenge to whether he acted within the scope of his employment. Since a retaliatory prosecution claim hinges on whether the allegedly offending government employee had probable cause to take some enforcement action, there were practical concerns counseling hesitation from the court.

According to the opinion, when it comes to creating judicial remedies, there must be a balancing of priorities - and the proper balance is one for Congress, not the judiciary, to undertake. In the specific context of airport security screeners, special factors precluded the court from implying a Bivens cause of action for First Amendment retaliation.

Find the full opinion at:

Panel: Judges Smith, Jordan, and Roth

Argument Date: March 23, 2017

Date of Issued Opinion: August 22, 2017

Docket Number: No. 16-3422

Decided: Reversed and remanded

Case Alert Author: Kevin P. McGilloway

Counsel: John C. Connell, Jordan L. Fischer, Jeffrey M. Scott, counsel for Appellants
Nicholas A. Cummins, Charity C. Hyde, counsel for Defendants City of Philadelphia, Kenneth Flaville, Raymond Pinkney, and Michael Wojciechowski
Colin M. Cherico, Anne B. Taylor, counsel for Defendants United States of America, Transportation Security Administration, John S. Pistole, and Jen Johnson
Robyn L. Goldenberg, Thomas B. Malone, counsel for Appellee
Benjamin C. Mizer, Paul J. Fishman, Daniel J. Aguilar, Sharon Swingle, Mary Hampton Mason, Andrea Jae Friedman, counsel for Amicus Appellant

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/24/2017 03:44 PM     3rd Circuit  

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