Roger Vanderklok v. United States
2017 U.S. App. LEXIS 15947
| 3rd Cir. | 2017Background
- Vanderklok was stopped at Philadelphia International Airport when TSA screeners discovered a heart monitor and watch inside a sealed PVC pipe, prompting secondary screening.
- TSA supervisor Charles Kieser and Vanderklok gave conflicting accounts; Kieser reported that Vanderklok said he "could bring a bomb through here," leading Kieser to call Philadelphia police.
- Vanderklok was arrested, charged with disorderly conduct and threats, tried, and acquitted when surveillance video undermined Kieser’s testimony.
- Vanderklok sued Kieser, the TSA, the United States, and local officials alleging (inter alia) First Amendment retaliatory prosecution (Bivens/§1983) and Fourth Amendment malicious prosecution; most defendants/claims were dismissed, leaving only Vanderklok’s First Amendment and Fourth Amendment claims against Kieser.
- The district court denied Kieser summary judgment on (1) a First Amendment retaliatory prosecution claim (finding such a Bivens action exists) and (2) the Fourth Amendment malicious prosecution claim (on the merits). Kieser appealed interlocutorily.
- The Third Circuit held it had jurisdiction only over the qualified-immunity denial as to the First Amendment claim and, before reaching immunity, addressed whether a Bivens remedy exists against TSA screeners for First Amendment retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens implies a damages remedy for First Amendment retaliatory prosecution by a TSA screener | Vanderklok: Bivens can be extended to protect First Amendment rights against retaliatory prosecution by federal actors | Kieser/Govt: Extending Bivens here would create a new context and is disfavored; national security and separation-of-powers concerns counsel hesitation | Denied: Special factors (national security, Congress's role, TSA's function and limited training, existing administrative schemes) preclude implying a Bivens remedy in this context; no First Amendment Bivens claim against TSA screeners |
| Whether the denial of qualified immunity on the First Amendment claim is appealable interlocutorily | Vanderklok: The district court correctly held the claim exists and immunity was improper | Kieser: Denial of qualified immunity is reviewable; but court must first decide if the claim exists | Appealable issue limited to immunity question, but circuit resolved threshold: no Bivens claim, so judgment for Kieser on First Amendment claim; immunity not reached |
| Whether this court can review denial of summary judgment on Fourth Amendment malicious prosecution claim | Kieser: argues he remains immune and asks review | Vanderklok: district court correctly denied summary judgment on factual disputes | Not reviewable here: Kieser did not raise qualified immunity below on the Fourth Amendment claim, so interlocutory jurisdiction lacking; court declined to consider it |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (establishing implied damages remedy for Fourth Amendment violations)
- Davis v. Passman, 442 U.S. 228 (recognition of Bivens-type remedy under Fifth Amendment in a specific context)
- Carlson v. Green, 446 U.S. 14 (Bivens remedy recognized under Eighth Amendment in a specific context)
- Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (refusal to extend Bivens to new contexts or new defendant classes)
- Wilkie v. Robbins, 551 U.S. 537 (framework for deciding whether to imply a new Bivens remedy; consider alternative remedies and special factors)
- Minneci v. Pollard, 565 U.S. 118 (assessing availability of alternative processes as reason not to imply Bivens)
- Hartman v. Moore, 547 U.S. 250 (elements of retaliatory-prosecution claims and relevance of probable cause)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (recent articulation of factors counseling hesitation in extending Bivens, with emphasis on national-security and separation-of-powers concerns)