Date: 08-23-2017

Case Style:

Case Number: 16-3422

Judge: Jordan

Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania (Philadelphia County)

Plaintiff's Attorney: Robyn Goldenberg and Tom Malone

Defendant's Attorney: John C. Connell, Jordan Fischer, Jeffrey Scott, Nicholas Cummins and Charity Hyde Counsel for Defendants City of Philadelphia, Kenneth Flaville, Raymond Pinkney and Michael Wojciechowski

Colin M. Cherico and Anne B. Taylor for Counsel for Defendants United States of America, Transportation Security Administration, John S. Pistole and Jeh Johnson

Description: Roger Vanderklok wanted to fly from Philadelphia to
Miami, where he intended to run a half-marathon. In his
carry-on luggage, he had a heart monitor and watch stored
inside a piece of PVC pipe that was capped on both ends.
During screening at the airport security checkpoint, the pipe
and electronics prompted secondary screening, supervised by
Transportation Security Administration (TSA) employee
Charles Kieser. According to Vanderklok, Kieser was
disrespectful and aggressive, so Vanderklok stated an intent
to file a complaint against him. Vanderklok claims that
Kieser, in retaliation, called the Philadelphia police and
falsely reported that Vanderklok had threatened to bring a
bomb to the airport. Based on Kieser’s statement,
Vanderklok was arrested. He was later acquitted of all
criminal charges when Kieser’s testimony about
Vanderklok’s behavior did not match airport surveillance
footage. Vanderklok then brought this suit against Kieser and
others, asserting numerous statutory and constitutional
violations.
Kieser moved for summary judgment, arguing, among
other things, that he was entitled to qualified immunity on
Vanderklok’s First Amendment claim and that Vanderklok
had failed to make out a Fourth Amendment claim on the
merits. The United States District Court for the Eastern
District of Pennsylvania concluded that Kieser lacked
qualified immunity as to Vanderklok’s First Amendment
claim and that a reasonable jury could find in Vanderklok’s
favor as to his Fourth Amendment claim. It therefore denied
5
the summary judgment motion. Kieser filed this interlocutory
appeal.
Because Kieser sought and was denied summary
judgment on the merits of Vanderklok’s Fourth Amendment
claim, rather than on the basis of qualified immunity, that
claim cannot be reviewed on interlocutory appeal. By
contrast, Kieser’s appeal of the denial of qualified immunity
as to Vanderklok’s First Amendment claim is properly before
us. As it turns out, however, a preliminary and dispositive
question must be answered first: whether a First Amendment
claim against a TSA employee for retaliatory prosecution
even exists in the context of airport security screenings.
Because we conclude that it does not, we will vacate the
District Court’s order, without reaching the issue of qualified
immunity, and direct the District Court to enter judgment for
Kieser on the First Amendment claim.
I. BACKGROUND
A. Factual Background1
In January 2013, Vanderklok, a gentleman in his late
fifties, arrived at the Philadelphia International Airport,
intending to travel to Miami to participate in a half-marathon.
He entered the passenger screening area, where his carry-on
bag was x-rayed by TSA personnel. The x-ray images
1 In reviewing the District Court’s denial of qualified
immunity, we are required to take the facts in the light most
favorable to Vanderklok. Scott v. Harris, 550 U.S. 372, 377
(2007).
6
revealing his heart monitor and watch, stored in a short length
of PVC pipe, triggered secondary screening of his bag.
Vanderklok was directed to the secondary screening
area, where TSA screeners manually examined his bag and its
contents. At this point in the story, the parties’ versions of
events diverge dramatically. Kieser, a TSA supervisor and
the last remaining defendant in this case, left his supervisory
station and came to the secondary screening area to observe
the line agent’s examination of Vanderklok’s bag.
Vanderklok maintains that at all times he was patient and not
agitated during the secondary screening but that Kieser was
agitated and argumentative throughout. Kieser asserts
essentially the opposite: that Vanderklok was belligerent
during the secondary search. In Kieser’s telling, Vanderklok
said, “I could bring a bomb through here any day I want and
you’ll never find it.” (JA 8.) Vanderklok denies making that
or any similar statement. He says that Kieser fabricated the
statement after Vanderklok asked for a complaint form and
stated his intention to report Kieser’s behavior. There were
no other known witnesses to Vanderklok’s alleged statement.
Once the secondary screening was complete, Vanderklok’s
bag and all of its original contents, other than the PVC pipe,
were returned. Vanderklok then exited the security
checkpoint area and began to rearrange his bag.
As Vanderklok exited the screening area, Kieser called
an airport police officer to report the statement Vanderklok
allegedly made about a bomb. Officer Pinkney of the
Philadelphia Police Department approached Vanderklok
outside the screening area approximately five minutes after
Vanderklok had requested the complaint form. Based on
Kieser’s claim that Vanderklok had made a bomb threat,
7
Pinkney and another officer took Vanderklok into custody,
placing him in a holding cell at the airport police station.
Detective Wojciechowski, also of the Philadelphia Police
Department, was assigned to further investigate. He spoke
with Kieser, who repeated that Vanderklok made a bomb
threat and was “irate” and “loud” during the secondary
screening.2 (JA 311.) After a brief investigation,
Wojciechowski recommended that Vanderklok be charged
with disorderly conduct and threatening placement of a bomb.
The District Attorney approved those charges and eventually
added a third charge for making terroristic threats.
Vanderklok was handcuffed and transported to a nearby
police station where he was held until making a first
appearance and posting bond.
Vanderklok was tried in the Philadelphia Court of
Common Pleas on April 8, 2013. During that trial, the only
witness produced by the Commonwealth was TSA agent
Kieser. Kieser testified on direct examination that
Vanderklok was agitated and waved his arms in the air
repeatedly during the secondary screening. On cross
examination, he further elaborated on his assertion that
Vanderklok was physically disruptive at the checkpoint.
Surveillance video of almost the entire interaction was played
during the cross examination of Officer Pinkney and Kieser’s
testimony was shown to be largely inconsistent with the
video. After the Commonwealth’s case-in-chief, Vanderklok
2 Detective Wojciechowski’s investigative report
shows that Officer Pinkney’s original detention of
Vanderklok and the formal charges against him were based
entirely on Kieser’s assertions.
8
made a motion for judgment of acquittal on all counts, which
was granted.
B. Procedural Background
Following his acquittal, Vanderklok brought suit in the
District Court against Kieser, the United States, the TSA, the
City of Philadelphia, and various police officers. In his
Amended Complaint, Vanderklok asserted nine claims: (1)
unconstitutional search and seizure in violation of the Fourth
Amendment, under 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics;3 (2)
unconstitutional infringement of the freedom of speech in
violation of the First Amendment, under § 1983 and Bivens;
(3) false arrest, under Pennsylvania law and the Federal Tort
Claims Act (“FTCA”); (4) false imprisonment, under
Pennsylvania law and the FTCA; (5) assault and battery,
under Pennsylvania law and the FTCA; (6) constitutional
deprivations by the City of Philadelphia, under Monell v.
Department of Social Services;4 (7) malicious prosecution in
violation of the Fourth Amendment, under Pennsylvania law,
the FTCA, and § 1983; (8) retaliatory prosecution in violation
3 403 U.S. 388, 392 (1971) (holding that a remedy is
available for a federal agent’s violation of a citizen’s Fourth
Amendment right to be free from warrantless searches and
seizures).
4 436 U.S. 658, 694 (1978) (holding that a
municipality is subject to suit under 42 U.S.C. § 1983 when a
constitutional deprivation is the result of a policy or custom
instituted by its policymakers).
9
of the Fourth Amendment, under Pennsylvania law, the
FTCA, and § 1983; and (9) violations of due process rights,
under the Fourteenth Amendment and the FTCA.
The police officers and the City of Philadelphia
responded with a motion to dismiss. The District Court
granted the motion as to the police officers, holding that they
had probable cause to arrest Vanderklok and, even if they did
not, they were protected by qualified immunity. Vanderklok
v. United States, 140 F. Supp. 3d 373, 385 (E.D. Pa. 2015).
Then, after dismissing the claims against the police officers,
the Court held that, “[w]ithout an underlying constitutional
violation, Vanderklok’s Monell claim [against the City of
Philadelphia] must similarly be dismissed.” Id. at 387.
The claims under the FTCA, in addition to being
brought against individual defendants, were asserted against
the United States. The United States moved to substitute
itself in place of those individual defendants and then moved
to dismiss all claims against itself, citing sovereign immunity.
Vanderklok v. United States, 142 F. Supp. 3d 356, 360 (E.D.
Pa. 2015), appeal dismissed (Feb. 8, 2016). The District
Court granted those motions, and therefore all of the state tort
claims were dismissed. Id. at 358.
None of those rulings are before us now.5 Vanderklok
v. United States, No. CV 15-00370, 2015 WL 12844282, at
5 Vanderklok moved under Federal Rule of Civil
Procedure 54(b) to certify the orders of dismissal for appeal.
That rule permits district courts to “direct entry of final
judgment as to one or more, but fewer than all, claims or
parties … if the court expressly determines that there is no
10
*2 (E.D. Pa. Dec. 4, 2015). Only Vanderklok’s First
Amendment retaliatory prosecution claim and his Fourth
Amendment malicious prosecution claim are left, and only as
to Kieser.6 Kieser had moved for summary judgment on
those claims too, but the District Court denied that motion.
As to the First Amendment retaliatory prosecution claim, the
Court first determined that such a cause of action does exist,
relying on Bivens. It then concluded that Kieser was not
entitled to qualified immunity from that claim. As to the
Fourth Amendment malicious prosecution claim, the Court
addressed the merits and determined that there was a material
dispute of fact that precluded summary judgment.
This interlocutory appeal followed.
II. JURISDICTION
“[W]e normally do not entertain appeals from a district
court order denying a motion for summary judgment because
such orders do not put an end to the litigation.” Rivas v. City
of Passaic, 365 F.3d 181, 191 (3d Cir. 2004). But a special
just reason for delay.” Fed. R. Civ. P. 54(b). The District
Court denied certification. Vanderklok v. United States, No.
CV 15-00370, 2015 WL 12844282, at *2 (E.D. Pa. Dec. 4,
2015).
6 The District Court granted partial summary judgment
to Kieser on Vanderklok’s Fourth Amendment
unconstitutional search and seizure claim because Vanderklok
did not oppose Kieser’s motion on that claim. Vanderklok v.
United States, No. CV 15-00370, 2016 WL 4366976, at *1
(E.D. Pa. Aug. 16, 2016).
11
class of rulings called “collateral orders” escape that general
practice. Id. We will hear interlocutory appeals from such
orders because they “(i) conclusively determine the disputed
issue, (ii) resolve an important issue entirely separate from
the merits of the lawsuit, and (iii) cannot be effectively
reviewed on appeal from a final judgment.” Id.
Included within the classification of “collateral orders”
is a denial of “a defendant’s motion for summary judgment
… so long as: (1) the defendant is a public official asserting a
qualified immunity defense; and (2) the issue on appeal is
whether the facts alleged by the plaintiff demonstrate a
violation of clearly established federal law, not which facts
the plaintiff might be able to prove at trial.” Id. (emphasis
removed) (citing Mitchell v. Forsyth, 472 U.S. 511, 528
(1985)). Excepted from that classification is an order denying
summary judgment that, “though entered in a ‘qualified
immunity’ case, determines only a question of ‘evidence
sufficiency,’ i.e., which facts a party may, or may not, be able
to prove at trial.” Id. at 192 (quoting Johnson v. Jones, 515
U.S. 304, 313 (1995)). Here, the only properly appealable
issues are the ones related to the District Court’s denial of
qualified immunity on Vanderklok’s First Amendment claim.
The Court denied Kieser’s motion for summary
judgment on that claim after concluding that the law does
provide for such a claim and that Kieser was not entitled to
qualified immunity with respect to it. The qualified immunity
dispute centers on whether a First Amendment right to be free
from retaliation by a TSA employee was clearly established at
the time of the incident in question. That is exactly the type
of issue we have jurisdiction to review, because qualified
immunity is immunity from suit altogether and thus “cannot
12
be effectively vindicated after the trial has occurred.”
Mitchell, 472 U.S. at 525. And since the issue of whether a
cause of action even exists against a TSA employee for First
Amendment retaliation is a threshold question of law, we
have jurisdiction to consider that as well. See Wilkie v.
Robbins, 551 U.S. 537, 549 n.4 (2007) (explaining that the
existence of a cause of action is “directly implicated by the
defense of qualified immunity and properly before us on
interlocutory appeal” (quoting Hartman v. Moore, 547 U.S.
250, 257 n.5 (2006))).
We do not, however, have jurisdiction over Kieser’s
appeal to the extent that it challenges the District Court’s
denial of summary judgment as to Vanderklok’s Fourth
Amendment malicious prosecution claim. Kieser attempts to
add a jurisdictional hook to his Fourth Amendment challenge
by arguing that, because there is no way for him to be liable
on the present record, he “remains qualifiedly immune.”
(Opening Br. at 30.) More particularly, he argues that “[t]he
District Court’s denial of qualified immunity at the summary
judgment stage fundamentally misapplied the premise that the
existence of probable cause will not insulate a defendant from
liability if that defendant can be shown to have fabricated the
predicate for that probable cause.” (Id. at 31.)
Whatever the merit of that argument, it ignores that
Kieser did not seek a qualified immunity ruling from the
District Court on the Fourth Amendment malicious
prosecution claim, and thus the Court did not adjudicate the
qualified immunity issue. Kieser instead argued in the
District Court that there was a lack of sufficient admissible
evidence to support that constitutional claim. A reading of
the District Court’s thorough opinion confirms that the Court
13
denied summary judgment based on material disputes of fact
essential to the elements of Vanderklok’s Fourth Amendment
malicious prosecution claim, including that Kieser lacked
probable cause. At no point in the Court’s discussion of that
claim did the issue of qualified immunity arise.
Kieser’s failure to obtain a qualified immunity ruling
from the District Court is not simply a waiver problem that
we can overlook, as he seems to hope. The fact that he was
denied summary judgment on the merits of that Fourth
Amendment claim rather than on qualified immunity grounds
deprives us of jurisdiction on interlocutory appeal, and we
have no discretion to overlook that. His argument that we
should consider qualified immunity on that claim because it
serves judicial economy similarly fails. Judicial economy
gives us no warrant to extend our jurisdiction past its set
limits.7
In sum, our jurisdiction at this point extends only to
the issue of whether Kieser ought to be immune from suit for
Vanderklok’s First Amendment retaliation claim, and,
7 Even if Kieser had properly raised the issue of
qualified immunity, we would still be without jurisdiction to
review it because that issue would turn on the disputed facts
of the case decided by the District Court. See Rivas v. City of
Passaic, 365 F.3d 181, 191 (3d Cir. 2004) (“[W]e lack
jurisdiction to consider whether the district court correctly
identified the set of facts … sufficient to establish a violation
of a clearly established constitutional right.” (quoting
Ziccardi v. City of Philadelphia, 288 F.3d 57, 61 (3d Cir.
2002))).
14
preliminary to that, whether such a claim exists at all in the
specific circumstances of this case.
III. DISCUSSION
A. The Expansion of Bivens Actions to New
Contexts is Strictly Limited.
It may help at the outset to examine the development
of implied rights of action, to establish the perspective we
must take in evaluating Vanderklok’s First Amendment
retaliation claim. The Supreme Court first implied a private
right of action for damages for a deprivation of constitutional
rights by federal officers in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). Thus, such actions brought directly under the
Constitution against federal officials have become known as
“Bivens actions.” The authority of federal courts “to imply a
new constitutional tort, not expressly authorized by statute, is
anchored in our general jurisdiction to decide all cases
‘arising under the Constitution, laws, or treaties of the United
States.’” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66
(2001) (quoting 28 U.S.C. § 1331). It is, however, an
authority rarely invoked. In Bivens itself, the Supreme Court
implied a private right of action under the Fourth
Amendment. 403 U.S. at 389. Since Bivens, such actions
have been recognized under the Fifth Amendment’s due
process clause, Davis v. Passman, 442 U.S. 228 (1979), and
the Eighth Amendment’s prohibition against cruel and
unusual punishment, Carlson v. Green, 446 U.S. 14 (1980).
But, over the course of nearly four decades, the Supreme
Court has repeatedly refused to recognize Bivens actions in
any new contexts. Cf. Carlson, 446 U.S. 14 (providing the
15
last set of novel circumstances in which the Court implied a
Bivens action).
The Supreme Court has never implied a Bivens action
under any clause of the First Amendment. See Reichle v.
Howards, 566 U.S. 658 n.4 (2012) (“We have never held that
Bivens extends to First Amendment claims.”). Instead, it has,
solely for analytical purposes, assumed that such an action
exists. It has not actually decided the matter. See Wood v.
Moss, 134 S. Ct. 2056, 2067 (2014) (“[W]e have several
times assumed without deciding that Bivens extends to First
Amendment claims. We do so again in this case.” (internal
citation omitted)).
Our Court, on the other hand, has taken that step.
First, in Paton v. La Prade, we held that a high school student
who mailed an envelope to the Socialist Workers Party, and
had her name and address recorded by the FBI as a result,
could seek redress under Bivens for a violation of her First
Amendment free speech rights. 524 F.2d 862, 870 (3d Cir.
1975). Then, in Milhouse v. Carlson, we extended Paton to
imply a Bivens cause of action under the First Amendment for
the denial of a prisoner’s right of access to the courts. 652
F.2d 371, 374 (3d Cir. 1981). Recently, though, in George v.
Rehiel, we took a more cautious approach and assumed
without deciding that a Bivens action could exist to vindicate
a First Amendment right to be free of government retaliation
for speech. 738 F.3d 562, 585 n.24 (3d Cir. 2013) (“[W]e
will proceed on the assumption that there is a Bivens cause of
action for First Amendment retaliation claims.”). We made
that assumption, coincidentally, in the very context we now
face – a dispute involving airport security screeners. Id. at
567-68.
16
The present case compels us to decide the issue we
assumed away in George. The facts here require it.
Moreover, as the role of the TSA has become prevalent in the
lives of the traveling populace, disputes involving airport
screening personnel may come up with some frequency, and
the existence of a Bivens action for First Amendment
retaliation is no longer something that we should assume
without deciding. Today we hold that Bivens does not afford
a remedy against airport security screeners who allegedly
retaliate against a traveler who exercises First Amendment
rights.
Our conclusion is informed by a long course of
precedent. Since our decisions in Paton and Milhouse
permitting Bivens actions in certain First Amendment
contexts, the Supreme Court has plainly counseled against
creating new Bivens causes of action.8 The Court has
explained that its recognition of a cause of action under a
constitutional amendment does not mean that such an action
can vindicate every violation of the rights afforded by that
8 See, e.g., Minneci v. Pollard, 565 U.S. 118 (2012)
(refusing to extend Eighth Amendment Bivens action to
individuals working at a private prison); FDIC v. Meyer, 510
U.S. 471 (1994) (refusing to extend Bivens claim to federal
agency defendant); Schweiker v. Chilicky, 487 U.S. 412
(1988) (refusing to extend Bivens to case involving wrongful
denials of disability benefits); United States v. Stanley, 483
U.S. 669 (1987) (refusing to extend Bivens to case involving
injuries suffered incident to military service); Chappell v.
Wallace, 462 U.S. 296 (1983) (refusing to extend Bivens to
case involving racial discrimination by superiors in military).
17
particular amendment. Compare Davis, 442 U.S. at 243-44
(permitting Bivens action against Congressman for violation
of Fifth Amendment due process rights) with Schweiker v.
Chilicky, 487 U.S. 412, 428-29 (1988) (refusing to permit
Bivens action in social security context for violation of Fifth
Amendment due process rights). The recognition of a cause
of action is context-specific. As the Supreme Court said only
last month,
[a] case might differ in a meaningful way
because of the rank of the officers involved; the
constitutional right at issue; the generality or
specificity of the official action; the extent of
judicial guidance as to how an officer should
respond to the problem or emergency to be
confronted; the statutory or other legal mandate
under which the officer was operating; the risk
of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence
of potential special factors that previous Bivens
cases did not consider.
Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017).
Our past pronouncements are thus not controlling in
the specific circumstances now at issue. It is not enough to
argue, as Vanderklok does, that First Amendment retaliation
claims have been permitted under Bivens before. We must
look at the issue anew in this particular context, airport
security, and as it pertains to this particular category of
defendants, TSA screeners. Malesko, 534 U.S. at 68 (“[W]e
have consistently refused to extend Bivens liability to any
new context or new category of defendants.”).
18
Since Bivens was decided, judicial attitudes about the
creation of new causes of action have changed considerably.
Courts will no longer imply rights and remedies as a matter of
course, “no matter how desirable that might be as a policy
matter, or how compatible with the statute [or constitutional
provision].” Ziglar, 137 S. Ct. at 1856 (quoting Alexander v.
Sandoval, 532 U.S. 275, 287 (2001)); see also Ziglar, 137 S.
Ct. at 1869 (Thomas, J. concurring) (“Bivens is a relic of the
heady days in which this Court assumed common-law powers
to create causes of action.” (internal quotations omitted)).
“Given the notable change in the [Supreme] Court’s approach
to recognizing implied causes of action … the Court has
made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Ziglar, 137 S. Ct. at 1848
(citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). So, for
decades, the Supreme Court has repeatedly refused to extend
Bivens actions beyond the specific clauses of the specific
amendments for which a cause of action has already been
implied, or even to other classes of defendants facing liability
under those same clauses. See, e.g., Wilkie, 551 U.S. 537
(refusing to extend Bivens to invasion of property rights);
Malesko, 534 U.S. 61 (refusing to extend Bivens to alleged
Eighth Amendment violations by employees of private
prisons); Bush v. Lucas, 462 U.S. 267, 390 (1983) (refusing to
imply a First Amendment Bivens action against a federal
employer). Instead, it has established a rigorous inquiry that
must be undertaken before implying a Bivens cause of action
in a new context or against a new category of defendants.
Wilkie, 551 U.S. at 550.
In accordance with that inquiry, as laid out in Wilkie v.
Robbins, we must first ask “whether any alternative, existing
19
process for protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.” Id. Then, “even in the
absence of an alternative, … ‘[we] must make the kind of
remedial determination that is appropriate for a common-law
tribunal, paying particular heed … to any special factors
counselling hesitation before authorizing a new kind of
federal litigation.’” Id. (quoting Bush, 462 U.S. at 378). We
turn to those questions next.
B. No Alternative Process May Have Been
Available.
At the first step in the Wilkie analysis, we ask whether
there is any “‘alternative, existing process’ capable of
protecting the constitutional interests at stake.” Minneci v.
Pollard, 565 U.S. 118, 125 (2012) (quoting Wilkie, 551 U.S.
at 550). Here, Vanderklok’s constitutional interest is in
exercising his right to free speech at an airport security
checkpoint without retaliation by a TSA screener.
Vanderklok attempted to vindicate that constitutional interest
by bringing state law and constitutional claims against both
Kieser and the United States. He asserted in his Amended
Complaint that his state law claims could be brought against
Kieser individually and against the United States under the
FTCA’s waiver of sovereign immunity. But the District
Court held that the United States could substitute itself in
place of Kieser as a defendant. The Court then dismissed all
claims against the United States, including those for which
the United States had substituted itself in place of Kieser.
Although those rulings are not before us, we take note of
them as we determine whether remedies exist as an
alternative to a Bivens claim.
20
The United States can generally be substituted for
federal employees facing liability for state law tort claims
when they “are sued for damages for harms caused in the
course of their employment[.]” Hui v. Castaneda, 559 U.S.
799, 801 (2010) (citing 28 U.S.C. §§ 1346, 2671-2680).
Once the United States substitutes itself for an individual
defendant, the district courts only have jurisdiction to hear
those claims if the United States has explicitly waived its
sovereign immunity. If it has, then it can be held liable under
the FTCA for the acts or omissions of federal employees, but
only if it would otherwise be liable under “the law of
respondeat superior of the state in which the act or omission
occurred.” Lomando v. United States, 667 F.3d 363, 373 (3d
Cir. 2011) (quoting McSwain v. United States, 422 F.2d 1086,
1087-88 (3d Cir. 1970) (further citation omitted)).
If the United States is sued in tort, or once the United
States substitutes itself as a defendant in a tort case, the
FTCA provides the exclusive avenue to relief, if any can be
had. See 28 U.S.C. § 2679(b)(1) (“The remedy against the
United States provided by sections 1346(b) and 2672 of this
title … is exclusive of any other civil action or proceeding for
money damages[.]”). The remedies available are either an
administrative settlement, as allowed by 28 U.S.C. § 2672,9
9 28 U.S.C. § 2672 provides, in relevant part, that:
The head of each Federal agency or his
designee, in accordance with regulations
prescribed by the Attorney General, may
consider, ascertain, adjust, determine,
compromise, and settle any claim for money
damages against the United States for injury or
21
or traditional tort damages, as afforded under 28 U.S.C.
§ 1346(b).10 There are two types of claims that are exempt
from the general rule that the FTCA provides the exclusive
means for relief: first, claims that are “brought for a violation
of the Constitution of the United States,” and second, claims
that are “brought for a violation of a statute of the United
States under which such action against an individual is
otherwise authorized.” 28 U.S.C. § 2679(b)(2)(A) and (B).
Since, at this point in the analysis, we are considering
whether any alternatives to a Bivens action are available to
loss of property or personal injury or death
caused by the negligent or wrongful act or
omission of any employee of the agency while
acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred
10 28 U.S.C. § 1346(b) provides, in relevant part, that:
[T]he district courts … shall have exclusive
jurisdiction of civil actions on claims against
the United States, for money damages, … for
injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the law
of the place where the act or omission occurred.
22
remedy a constitutional violation, the first exemption does not
advance our inquiry, as it simply notes that a Bivens action
itself is available. And because there is no explicit statutory
violation at issue here, the second exception also provides no
alternative remedy. Vanderklok thus has only his state law
claims as a possible alternative to a Bivens action. But there
is no waiver of immunity for state law claims brought against
a government employee “acting within the scope of his office
or employment[,]” except to the extent specified in the FTCA.
Id. § 2679(b)(1). That leaves Vanderklok to proceed with his
state law claims against the government under either § 2672
or § 1346(b).11
Under § 2672, an agency is authorized to settle with
claimants for money damages up to $25,000, or higher if
approval from the Attorney General is obtained. Here,
Vanderklok did not obtain such a remedy.12 Therefore, he is
left with whatever relief may exist under § 1346(b). As noted
earlier, see supra n.10, § 1346(b) provides that the district
courts “shall have exclusive jurisdiction of civil actions on
11 Section 1346(a) is inapplicable as it relates to “the
recovery of … internal-revenue tax[.]”
12 The record is unclear as to whether or not
Vanderklok sought such an administrative settlement. If he
did, no mention is made of it. We may presume that he did,
however, since failure to pursue that administrative remedy
would likely be grounds for dismissal in itself. See McNeil v.
United States, 508 U.S. 106, 113 (1993) (“The FTCA bars
claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”).
23
claims against the United States, for money damages …
caused by the negligent or wrongful act or omission of any
employee of the [g]overnment while acting within the scope
of his office or employment[.]” 28 U.S.C. § 1346(b). That
section further provides that the government is liable for such
damages “under circumstances where [it], if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission or occurred.” Id.
Even when the government can be sued under
§ 1346(b), however, there are exceptions contained within
§ 2680 that preclude the application of § 1346(b) to certain
tort claims. The exceptions laid out in § 2680 include a
disclaimer of liability for the United States for “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights.” 28 U.S.C. § 2680(h). That is known as the
“intentional tort exception,” Millbrook v. United States, 133
S. Ct. 1441, 1443 (2013) (quotation omitted), and
Vanderklok’s state law tort claims – false arrest, false
imprisonment, battery, assault, retaliatory prosecution,13 and
13 It might be asked whether Vanderklok’s “PA State
Retaliatory Prosecution” claim falls within that exception. In
our view, it does. The Supreme Court has likened a
retaliatory prosecution claim to the common law analogs of
malicious prosecution and abuse of process, Hartman 547
U.S. at 258 (“[W]e could debate whether the closer commonlaw
analog to retaliatory prosecution is malicious prosecution
(with its no-probable-cause element) or abuse of process
(without it).”), both of which are included explicitly within
the statute. In addition, we have interpreted the “arising
24
malicious prosecution – fall within that exception to the
waiver of immunity. So it would appear that Vanderklok is
out of luck under the FTCA.
But, in an added bit of complication, claims that fall
within the intentional tort exception in that statute have
another chance at survival because there is an exception to the
exception that can bring them back within the waiver of
sovereign immunity. Section 2680(h) creates that secondlevel
exception “with regard to acts or omissions of
investigative or law enforcement officers of the United States
Government,” for any claim arising “out of assault, battery,
false imprisonment, false arrest, abuse of process, or
malicious prosecution.” That is known as the “law
enforcement proviso.” Millbrook, 133 S. Ct. at 1444. The
FTCA defines an “investigative or law enforcement officer”
as “any officer of the United States who is empowered by law
to execute searches, to seize evidence, or to make arrests for
violations of Federal law.” 28 U.S.C. § 2680(h).
Here, the District Court concluded that Kieser was not
an investigative or law enforcement agent because he was not
an “officer” of the United States under that definition.
Vanderklok, 142 F. Supp. 3d at 361. In reaching that
under” language of the intentional tort exception broadly. See
Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91,
96-97 (3d Cir. 1995) (holding that a fraud claim falls within
the intentional torts of “misrepresentation” and “deceit” listed
in the exception). Therefore, although not explicitly
enumerated in the statute, retaliatory prosecution also falls
within the intentional tort exception.
25
conclusion, the District Court first noted that, in other
sections of the FTCA, Congress chose to use the term
“federal employee” rather than “officer of the United States.”
Id. It therefore sought to determine when a TSA employee
becomes an officer of the United States. The Court found its
answer in the Aviation and Transportation Security Act,
which created the TSA and designates as “law enforcement
personnel” only those TSA agents who are “(1) authorized to
carry and use firearms; (2) vested with the degree of the
police power …; and (3) identifiable by appropriate indicia of
authority.” 49 U.S.C. § 44903(a)(1)-(3). Based on that, the
District Court concluded that Kieser was a “federal
employee[], who conduct[s] airport security screening;” not a
“law enforcement officer[], who perform[s] various law
enforcement functions.”14 Id. Therefore, it held that the
United States retained its sovereign immunity and that the
state law claims had to be dismissed for lack of jurisdiction.
Vanderklok, 142 F. Supp. 3d at 362. The District Court’s
decision about the applicability of the law enforcement
proviso is not on appeal at this time, Vanderklok, 2015 WL
12844282, at *2 (denying certification of an interlocutory
appeal under Rule 54(b)), but the existence of that proviso is
nevertheless important because it assures that, in cases where
a TSA agent has been entrusted with the greater
responsibilities of an investigative or law enforcement officer,
a tort action will lie.
14 As further support for that conclusion, the District
Court relied on our statement in Matsko v. United States, that
“employees of administrative agencies, no matter what
investigative conduct they are involved in, do not come
within the [law enforcement] exception.” 372 F.3d 556, 560
(3d Cir. 2004).
26
In addition to the remedy that exists by virtue of the
law enforcement proviso, we note that the United States
would not be permitted to substitute itself as a defendant in
the first place in cases where a government employee acted
outside the scope of his duties. 28 U.S.C. § 2679(d). In
determining whether an employee was acting within or
outside of the scope of his duties, we look to the law of the
state in which the action took place. CNA v. United States,
535 F.3d 132, 146 (3d Cir. 2008), as amended (Sept. 29,
2008). In this case, that is Pennsylvania law, which
incorporates the Second Restatement of Agency’s definition
of conduct within the scope of employment. Id. “According
to the Restatement, ‘conduct is within the scope of
employment if, but only if: (a) it is the kind [the employee] is
employed to perform; (b) it occurs substantially within the
authorized time and space limits [and] (c) it is actuated, at
least in part, by a purpose to serve the master[.]’” Brumfield
v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting
Restatement (Second) Agency § 228) (alterations in
Brumfield).
Whether it was proper to allow the substitution of the
United States as the defendant in this suit, in place of Kieser,
for Vanderklok’s state law claims is a question not now
before us.15 We nevertheless note that, in extreme cases, the
15 It would be particularly difficult to review whether
Kieser was acting within the scope of his employment when
he took the actions in this case, since that District Court did
not address that issue before substituting and dismissing the
claims against the United States. Vanderklok v. United
States, 142 F. Supp. 3d 356, 362 (E.D. Pa. 2015), appeal
27
United States would likely not be substituted as a defendant
and thus claims against an egregiously erring government
employee could not be dismissed on sovereign immunity
grounds. See Melo v. Hafer, 912 F.2d 628, 639-42 (3d Cir.
1990) (allowing district courts to review whether defendant
was acting within scope of employment before permitting
substitution of United States and dismissal on sovereign
immunity grounds) aff’d Hafer v. Melo, 502 U.S. 21 (1991)
(affirming on other grounds, without addressing issue of
substitution). Instead, we expect that in such cases the
employee will not have acted within the scope of employment
and therefore will face individual liability under state law.
See Matsko v. United States, 372 F.3d 556, 558 n.5 (3d Cir.
2004) (dismissing FTCA claims against United States for lack
of jurisdiction where employee acted outside scope of
employment while recognizing that a state law claim would
proceed in state court). So, although in such cases the United
States would retain its sovereign immunity, state law tort
claims against the individual could proceed. That would
provide an alternative remedy for an airline passenger who
suffers as a result of a TSA screener’s actionable conduct
outside the scope of his employment. In instances where the
TSA screener has acted within the scope of his employment,
it is possible that no judicial remedy will exist if a Bivens
action is not implied because the United States could
substitute itself for the screener and claim sovereign
immunity. But that is by design. Cf. United States v. Smith,
499 U.S. 160, 166 (1991) (“Congress recognized that the
required substitution of the United States as the defendant in
dismissed (Feb. 8, 2016). As a result, even if it were proper
to consider the issue, there would be no record on which to do
so at this time.
28
tort suits filed against Government employees would
sometimes foreclose a tort plaintiff’s recovery altogether.”).
In summary, then, there can be a remedy against the
United States in cases where the employee had the
responsibility of an officer, and there can be a state law
remedy against the individual when the offending TSA
employee acted outside the scope of employment. Based on
the District Court’s orders as they now stand, however, there
are no alternative judicial remedies available to Vanderklok,
because the District Court concluded that Kieser was not an
investigative or law enforcement officer and there was no
challenge as to whether Kieser acted within the scope of his
employment.
While an alternative judicial remedy is absent, there
may be a non-judicial “alternative, existing process[.]”
Minneci, 565 U.S. at 125 (quoting Wilkie, 551 U.S. at 550).
In 2007, Congress enacted a statute requiring the Secretary of
Homeland Security to “establish a timely and fair process for
individuals who believe they have been delayed or prohibited
from boarding a commercial aircraft because they were
wrongly identified as a threat … by the [TSA.]” 49 U.S.C.
§ 44926(a). Pursuant to that statutory requirement, the
Department of Homeland Security established the Traveler
Redress Inquiry Program (“TRIP”), which is administered by
the TSA and “is essentially a clearinghouse for traveler
grievances.” Latif v. Holder, 686 F.3d 1122, 1125 (9th Cir.
2012). In practice, it appears that TRIP is primarily used as a
method by which individuals can challenge their inclusion on
the “No-Fly List” that is part of the government’s “Terrorist
Screening Database.” See Dept. of Homeland Sec. Office of
Inspector Gen., Effectiveness of the Dept. of Homeland Sec.
29
Traveler Redress Program 35 (2009),
https://www.oig.dhs.gov/assets/Mgmt/OIG-09-
103r_Sep09.pdf, (“Most TRIP redress requests stem from
watch list misidentifications in commercial aviation security
settings.”).16 Yet, by its terms, TRIP appears to provide an
administrative mechanism by which Vanderklok could have
chosen to pursue his complaint against Kieser because he was
“delayed or prohibited from boarding a commercial aircraft
because [he was] wrongly identified as a threat[.]”17 49
U.S.C. § 44926(a).
The TRIP website supports that understanding, stating
that a person can use TRIP if they “were denied or delayed
boarding” or believe they “were unfairly detained during
[their] travel experience[.]” Dept. of Homeland Sec., Should
I Use DHS TRIP?, https://www.dhs.gov/step-1-should-i-use-
16 Although neither Vanderklok nor Kieser addressed
the existence of this administrative scheme as an alternative,
the government as amicus curiae brought it to our attention.
To the extent that we rely on information beyond what the
government included in its amicus brief, that information is
publicly available on government websites and therefore we
take judicial notice of it. See Daniels-Hall v. Nat’l Educ.
Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (“It is appropriate to
take judicial notice of … information … made publicly
available by government entities[.]”).
17 Since neither Vanderklok nor Kieser addressed the
existence of this administrative mechanism, we do not know
whether Vanderklok attempted to avail himself of it. If he
knew of TRIP and chose not to avail himself of it, we do not
have any explanation for that decision.
30
dhs-trip (last visited July 13, 2017). Vanderklok was
indisputably denied boarding because of a purported threat,
and that alone appears sufficient to file a TRIP complaint. He
also believes he was detained unfairly. The online complaint
form, by its terms, permits passengers to submit complaints if
they feel their “civil rights have been violated because [the]
questioning or treatment during screening was abusive or
coercive[.]” Dept. of Homeland Sec. Traveler Redress
Inquiry Program, https://trip.dhs.gov (last visited July 13,
2017). Therefore, it seems plain that an alternative
administrative process exists for addressing claims such as
Vanderklok’s. Nonetheless, because the TRIP process
appears to be used primarily as a means to challenge
inclusion on terrorism watch lists, we will assume for the sake
of discussion that it was not a meaningful remedy for
Vanderklok in this case.
C. There Are Special Factors Counseling
Hesitation.
Although it is possible that no alternative remedy
exists for Vanderklok, that does not conclude our analysis
because, “even in the absence of an alternative, a Bivens
remedy is a subject of judgment[.]” Wilkie, 551 U.S. at 550;
see also Meshal v. Higgenbotham, 804 F.3d 417, 425 (D.C.
Cir. 2015) (refusing to imply a Bivens remedy, even where
the government admitted the plaintiff had no alternative
remedy). In determining whether to imply a Bivens claim for
First Amendment retaliation by TSA screeners, we must ask
whether there are special factors counseling hesitation. Id.
We conclude that there are and that they are dispositive.
31
Considering whether there are such factors, requires us
to “weigh[] reasons for and against the creation of a new
cause of action, the way common law judges have always
done.” Wilkie, 551 U.S. at 554. The critical question is
“‘who should decide’ whether to provide for a damages
remedy, Congress or the courts?” Ziglar, 137 S. Ct. at 1857
(quoting Bush, 462 U.S. at 380). Most often, the answer is
Congress. Id. Because, “[w]hen an issue involves a host of
considerations that must be weighed and appraised, it should
be committed to those who write the laws rather than those
who interpret them.” Id. (internal quotations and citations
omitted). The government, as amicus, argues that that is the
correct answer in this instance, pointing to the serious risks at
stake in the context of airport security and the superior
position Congress has in weighing those risks and deciding
upon their management.
The TSA was created in response to the terrorist
attacks of September 11, 2001, specifically for the purpose of
securing our nation’s airports and air traffic. Transp. Workers
Union of Am., AFL-CIO v. Transp. Sec. Admin., 492 F.3d
471, 473 (D.C. Cir. 2007) (citing Pub L. No. 107-71, 115
Stat. 597 (2001) (codified in part at 49 U.S.C. § 44936 et
seq.)). A special factor counseling hesitation in implying a
Bivens action here is that Vanderklok’s claims can be seen as
implicating “the Government’s whole response to the
September 11 attacks, thus of necessity requiring an inquiry
into sensitive issues of national security.” Ziglar, 137 S. Ct.
at 1861.
“The Supreme Court has never implied a Bivens
remedy in a case involving the military, national security, or
intelligence.” Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir.
32
2012). To the contrary, it has recognized that “[m]atters
intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention.” Haig v.
Agee, 453 U.S. 280, 292 (1981). In recognition of that,
national security decisions, insofar as they relate to foreign
relations18 and the military,19 have, to a large extent, been
18 “The political question doctrine excludes from
judicial review those controversies which revolve around
policy choices and value determinations constitutionally
committed for resolution to the halls of Congress or the
confines of the Executive Branch.” Japan Whaling Ass’n v.
Am. Cetacean Soc., 478 U.S. 221, 230 (1986). That does not
exclude from judicial review all cases touching on issues of
foreign relations, but it does exclude those that are not
susceptible to judicial determination in “light of [the] nature
and posture [of the foreign relations question] in the specific
case, and of the possible consequences of judicial action.”
Baker v. Carr, 369 U.S. 186, 211-12 (1962).
19 In Feres v. United States, the Supreme Court held
that “the Government is not liable under the Federal Tort
Claims Act for injuries to servicemen where the injuries arise
out of or are in the course of activity incident to service.” 340
U.S. 135, 146 (1950). “[T]he Feres doctrine has been applied
consistently to bar all suits on behalf of service members
against the Government based upon service-related injuries.”
United States v. Johnson, 481 U.S. 681, 687-88 (1987). In
addition, “[t]he complex subtle, and professional decisions as
to the composition, training, equipping, and control of a
military force are essentially professional military
judgments,” and therefore challenges to those judgments are
nonjusticiable. Gilligan v. Morgan, 413 U.S. 1, 10 (1973);
33
insulated from judicial review. And our sister circuits have
relied on the hesitancy of the Supreme Court to intrude on
national security matters in refusing to imply Bivens actions.20
Although there is no doctrine depriving us of jurisdiction, the
see also Harris v. Kellog Brown & Root Servs., Inc., 724 F.3d
458, 478 (3d Cir. 2013) (explaining that whether an issue is
justiciable “turns on whether a strategic military decision
must be reviewed”).
20 See, e.g. Meshal v. Higgenbotham, 804 F.3d 417,
426 (D.C. Cir. 2015) (“Matters touching on national security
and foreign policy fall within an area of executive action
where courts hesitate to intrude absent congressional
authorization.”); Mirmehdi v. United States, 689 F.3d 975,
982-83 (9th Cir. 2012) (refusing to extend Bivens to
immigration issues because such issues tend to affect foreign
policy and national security); Vance v. Rumsfeld, 701 F.3d
193, 200 (7th Cir. 2012) (en banc) (refusing to extend Bivens
against Secretary of Defense for mistreatment of military
detainees abroad because, although it would “lead the
Secretary to hold the rights of detainees in higher regard[,] …
that change would come at an uncertain cost in national
security”); Arar v. Ashcroft, 585 F.3d 559, 575 (2d Cir. 2009)
(refusing to extend Bivens to the detention and transfer of an
individual to Syria because it touches upon national security
and thus “fall[s] within ‘an area of executive action in which
courts have long been hesitant to intrude’ absent
congressional authorization.” (emphasis in Arar) (quoting
Lincoln v. Vigil, 508 U.S. 182 (1993) (further quotations
omitted)); Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008)
(concluding political question doctrine did not bar review, but
that Bivens should not extend to a national security context).
34
reluctance of the Supreme Court to weigh in on issues of
national security strongly suggests that we too should hesitate
to create a remedy when those issues are in play. See Dept. of
Navy v. Egan, 484 U.S. 518, 527 (1988) (explaining that the
presumption in favor of appellate review “runs aground when
it encounters concerns of national security”); cf. Bush, 462
U.S. at 379-80 (recognizing that the Supreme Court has
generally been hesitant to imply a damages remedy not
explicitly provided by Congress where such a remedy would
interfere with other branches of government (citing United
States v. Standard Oil Co., 332 U.S. 301 (1947), and United
States v. Gilman, 347 U.S. 507 (1954))).
The hesitancy to imply a Bivens remedy in a case with
national security implications must be particularly
“pronounced when the judicial inquiry comes in the context
of a claim seeking money damages rather than a claim
seeking injunctive or other equitable relief.” Ziglar, 137 S.
Ct. at 1861. That is because “[n]ational-security policy is the
prerogative of the Congress and President[,]” and imposing
damages liability would likely interfere with that prerogative
by “caus[ing] an official to second-guess difficult but
necessary decisions concerning national-security policy.” Id.
Here, Vanderklok asks us to imply a Bivens action for
damages against a TSA agent. TSA employees like Kieser
are tasked with assisting in a critical aspect of national
security – securing our nation’s airports and air traffic. The
threat of damages liability could indeed increase the
probability that a TSA agent would hesitate in making splitsecond
decisions about suspicious passengers. In light of
35
Supreme Court precedent, past and very recent, that is surely
a special factor that gives us pause.21
In addition to that, we must recognize that “‘Congress
is in a far better position than a court to evaluate the impact of
a new species of litigation’ against those who act on the
public’s behalf.” Wilkie, 551 U.S. at 562 (quoting Bush, 462
U.S. at 389). “And Congress can tailor any remedy to the
problem perceived[.]” Id. (citing Bush, 462 U.S. at 389).
That is especially compelling here, as Congress chose to limit
the scope of judicial review of TSA actions. In creating the
21 In Ziglar v. Abbasi, decided last month, detainees
held in the wake of the September 11, 2001 terrorist attacks
brought suit against federal officials and wardens of their
detention facility, claiming that they were abused and
subjected to excessive detention in violation of the Fifth
Amendment. 137 S. Ct. 1843 (2017). The Supreme Court
recognized that it had previously implied a Bivens action
under the Fifth Amendment and for vindication of prisoners’
rights under the Eighth Amendment, but concluded that the
case presented a new context because it differed from
previous Bivens cases in a meaningful way. Id. at 1859.
Ultimately, the Court noted that “[n]ational-security policy is
the prerogative of the Congress and President[,]” id. at 1861,
and that “Congress’ failure to provide a damages remedy
might be more than mere oversight.” Id. at 1862. Therefore,
in part to preserve the separation of powers, it refused to
imply a Bivens remedy and instead left the matter to
Congress. Id. at 1861-63. We have had the advantage of
seeing this most recent pronouncement of the Supreme Court,
but the District Court did not.
36
TSA, Congress restricted judicial review to affirming,
amending, modifying, or setting aside orders of the agency.
49 U.S.C. § 46110(c). When courts do review such orders,
the findings of fact made by the TSA are conclusive, if
supported by substantial evidence. 49 U.S.C. § 46110(c);
Ickes v. F.A.A., 299 F.3d 260, 264 (3d Cir. 2002).22
Furthermore, we cannot ignore that remedies in the
airport security context are circumscribed as a direct result of
22 Another reason to believe that Congress may have
thought about whether to permit suits against TSA employees
and chose not to do so is because it decided to insulate from
review personnel decisions regarding those employees.
Congress has granted the Under Secretary of Transportation
for Security full discretion to “employ, appoint, discipline,
terminate, and fix the compensation, terms, and conditions of
employment of Federal service for such a number of
individuals as the Under Secretary determines to be necessary
to carry out the screening functions of the Under Secretary.”
49 U.S.C. § 44935 note, Pub. L. 107-71, title I, §111(d), 115
Stat. 620 (2001), as amended by Pub. L. 112-171, § 1(a), 126
Stat. 1306 (2012). Courts have decided that the discretion
thus granted precludes judicial review of personnel decisions
regarding security screeners, those matters being left entirely
to the Administrator of the TSA. See Conyers v. Rossides,
558 F.3d 137, 144-45 (2d Cir. 2009) (joining every other
court that has decided the issue in concluding that judicial
review of personnel decisions is foreclosed). Therefore,
although our review in this case is not expressly limited,
Congressionally-enacted restrictions on judicial review
further counsel against creating a damages remedy against
TSA security screeners.
37
Congressional decisions. See Ziglar, 137 S. Ct. at 1862
(“Congress’ failure to provide a damages remedy might be
more than mere oversight, and that congressional silence
might be more than ‘inadvertent.’” (quoting Schweiker, 487
U.S. at 423)). Congress decided the scope of tort liability for
the government and government employees and Congress
allowed the creation of an administrative mechanism by
which to adjudicate certain TSA complaints. See Bush, 462
U.S. at 388 (refusing to discount an administrative scheme
simply because it did not provide complete relief to the
plaintiff). We should hesitate to create new remedies when it
appears that the available ones are limited by Congressional
design.
Finally, there is a practical concern with establishing a
court-crafted remedy in the circumstances presented here.
TSA employees typically are not law enforcement officers
and do not act as such. As previously discussed, only those
TSA employees specifically designated by the Under
Secretary with the responsibilities of an officer, in accordance
with 49 U.S.C. § 44903(a), operate like police officers. As a
result, line TSA employees are not trained on issues of
probable cause, reasonable suspicion, and other constitutional
doctrines that govern law enforcement officers. See 49
C.F.R. § 1542.213 (delineating mandatory training). Instead,
they are instructed to carry out administrative searches and
contact local law enforcement if they encounter situations
requiring action beyond their limited though important
responsibilities. Cf. 49 C.F.R. § 1542.215 (providing for
“[u]niformed law enforcement personnel in the number and
manner adequate to support” passenger screenings). Since a
First Amendment retaliatory prosecution claim hinges, in
part, on whether the allegedly offending government
38
employee had probable cause to take some enforcement
action, Hartman, 547 U.S. at 259-66, a Bivens claim is poorly
suited to address wrongs by line TSA employees. Indeed, the
inherent uncertainty surrounding the probable cause standard
is itself a factor counseling hesitation. See Ziglar, 137 S. Ct.
1864-65 (distinguishing the case from Carlson, in part,
because the constitutional standard was unclear, thus
affording less judicial guidance for defendants).
Ultimately, the role of the TSA in securing public
safety is so significant that we ought not create a damages
remedy in this context. The dangers associated with aircraft
security are real and of high consequence. Cf. Chappell v.
Wallace, 462 U.S. 296, 304 (1983) (refusing to imply a
Bivens action where “the need for unhesitating and decisive
action … would be undermined by a judicially created
remedy”). We, of course, do not suggest that TSA screeners
should act with disdain for passenger rights or that they can
escape all the consequences of their bad behavior. Discipline
by the government should be swift and certain, when its
employees’ actions warrant it. But, when it comes to creating
judicial remedies, there must be a balancing of priorities, and
“[t]he proper balance is one for the Congress, not the
Judiciary, to undertake.” Ziglar, 137 S. Ct. at 1863.
Otherwise, in this context, there is reason to “fear that a
general Bivens cure would be worse than the disease.”
Wilkie, 551. U.S. at 561. Accordingly, in the specific context
of airport security screeners, special factors preclude us from
implying a Bivens cause of action for First Amendment
retaliation.

Outcome: For the foregoing reasons, we will reverse in part and
remand to the District Court with an instruction to enter
judgment for Kaiser on the First Amendment retaliation
claim, and will decline to exercise jurisdiction over the
remainder of the appeal.

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