Vanderklok v. TSA, No. 16-3422 (3d Cir. Aug. 22, 2017) 2017-08-23

Opinion PDF

appealing: No. 2:15-cv-370 (E.D. Penn. Aug. 16, 2015) (re Keiser's MSJ, dismissing 4th Am search & seizure claim, denying dismissal of retaliatory prosecution & malicious prosecution claims)

see also: 140 F. Supp. 3d 373 (E.D. Penn. Sept. 30, 2015) (dismissing claims against city and individual police), 142 F. Supp. 3d 356 (E.D. Penn. Oct. 6, 2015) (dismissing FTCA claims as not under 2680(h) proviso), Dec. 4, 2015 (denying FRCP 54(b) certification), and April 29, 2016 (re discovery)

tl;dr

Bivens not extended to 1st Am retaliatory prosecution. Decision vacated w/ instructions to dismiss for this claim.

4th Am., QI, & FTCA 2680(h) claims not reached on procedural grounds, will still be open on final appeal if decision in Pellegrino doesn't address them.

Importance

In this case, a TSA screener allegedly lied to police in order to get a Vanderklok arrested on false charges of making terroristic threats etc. He was criminally prosecuted, and acquitted on all charges.

Nevertheless, it's extremely difficult to actually punish the screener for this. In oral argument, TSA's lawyers actually said that there is nothing that a TSA screener could say or do during a screening — outright lies, falsifying evidence, sexual assault, whatever — that would allow the person harmed to get remedy in court.

I suggest you contact your senator/rep and ask them to pass a law overturning this. Specifically, they should:

  • Amend 49 USC 46110 to only apply to orders in which all affected people have had a full administrative hearing and received a full copy of the order in question, as defined in 49 USC 46105 — not to general procedures, secretly issued orders, matters with no hearing, etc.
  • Delete the "note" on 49 USC 44935, and make TSA employees treated the same as all other Federal employees.
  • Amend 28 USC 2680(h) to make clear that it applies to any Federal employee who conducts investigation or law enforcement, and amend the Transportation Security Act to explicitly state that TSA screeners fall within "investigatory … officers" as defined by 2680(h).

Background

Vanderklok had food and a watch in a PVC pipe, and went through TSA. They thought it looked like a pipe bomb, so selected him. Things escalated.

Kieser, the main TSA screener, claimed that Vanderklok made threats. Vanderklok claimed that nothing of the sort happened and that Kieser flat out lied to police to get him arrested.

Vanderklok was criminally prosecuted and acquitted of all charges.

FTCA / Bivens suit followed for retaliatory/malicious prosecution, etc. etc.

District court history

Dismissed police & city on reasonable reliance / probable cause grounds.

Granted US' motion to Westfall substitute, and to dismiss FTCA claims on sovereign immunity grounds. Held that TSA do not full within 2680(h) exemption because TSA are not "officers of the US", but merely "federal employees". 142 F. Supp. 3d 356, 361.

FRCP 54(b) cert re 2680(h) was denied.

(Those are not on appeal here, but are relevant.)

District court denied MSJ for Kieser on 1st Am. on QI grounds & 4th Am. on merits w/out ruling on QI. This appeal is collateral from that last MSJ, and brought by Kieser (seeking QI).

Holdings

  1. Kieser's 4th Am. appeal doesn't qualify as collateral because it was on merits, not on QI. Therefore no holding on that part.

  2. Bivens alternative remedy - no

    1. Retaliatory prosecution is intentional tort for FTCA purposes.

      TSA screeners acting egregiously might not qualify for Westfall substitution, so may be individually liable.

      However, in Vanderklok's case, he has no alternative FTCA remedy because the district court ruled against him on it an it's not on appeal.

    2. TSA's TRIP procedure is a partial administrative alternative, but does not provide meaningful remedy for Vanderklok.

    3. Therefore, no Bivens alternative.

  3. Bivens extension special factors - yes (dispositive)

    1. National security context present — contrast (finding no special factors) Linlor v Polson, No. 1:17-cv-13 (E.D. Va. July 11, 2017) at § III.A.3

    2. 49 USC 46110 & 49 USC 44935 note (re TSA employment decisions being unreviewable) imply Congress wanted to insulate TSA from court review

    3. Screeners are not police, therefore not trained on probable cause factors, therefore it's OK for them to be incompetent on them even to the point of malicious/retaliatory prosecution

    4. Remedy sought is damages, not declaratory/injunctive, so Bivens extension standard is heightened

    5. Therefore, no Bivens remedy for 1st Am. retaliatory prosecution in this context. QI question not reached.

Notes

  1. Re FTCA, Pellegrino v. TSA, No. 15-3047 (3d Cir.), squarely presents that issue, and 3d Cir appointed amicus to brief it (brief, appendix), so presumably they see it as a better vehicle. It is slated for oral argument early September.

  2. Re 49 USC 44935, TSA's union hates that note, because it means they don't get protections of MSPB process, disability discrimination, normal federal salary / benefits schedules, etc etc. We may have common cause with them on this. However, I don't know how it's to be taken up except through Congress.