Roger Vanderklok v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-3422

_____________

ROGER VANDERKLOK

v.

UNITED STATES OF AMERICA;

TRANSPORTATION SECURITY ADMINISTRATION

(TSA);

CHARLES KIESER, TSA; CITY OF PHILADELPHIA;

RAYMOND PINKNEY, Philadelphia Police;

DETECTIVE M. WOJCIECHOWSKI, Philadelphia Police;

KENNETH FLAVILLE, Philadelphia Police;

JEH JOHNSON, Department of Homeland Security;

JOHN S. PISTOLE, TSA

Charles Kieser, TSA,

Appellants

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-15-cv-00370)

District Judge: Hon. Gerald J. Pappert

_______________

ARGUED

March 23, 2017

Before: SMITH, Chief Judge, JORDAN, and ROTH, Circuit

Judges.

(Filed: August 22, 2017)

_______________

John C. Connell [ARGUED]

Archer & Greiner

One Centennial Square

33 East Euclid Ave.

Haddonfield, NJ 08033

Jordan L. Fischer

Jeffrey M. Scott

Archer & Greiner

1650 Market St. – 32nd Fl.

Philadelphia, PA 19103

Counsel for Appellant

Nicholas A. Cummins

Charity C. Hyde

Bennett Bricklin & Saltzburg

1601 Market St. – 16th Fl.

Philadelphia, PA 19103

Counsel for Defendants City of Philadelphia,

Kenneth Flaville, Raymond Pinkney and

Michael Wojciechowski

2

Colin M. Cherico

Anne B. Taylor

Office of United States Attorney

615 Chestnut Street - #1250

Philadelphia, PA 19106

Counsel for Defendants United States of America,

Transportation Security Administration,

John S. Pistole and Jeh Johnson

Robyn L. Goldenberg

50 Ross Way

Marlton, NJ 08053

Thomas B. Malone [ARGUED]

The Malone Firm, LLC

1650 Arch St. – Ste. 2501

Philadelphia, PA 19103

Counsel for Appellee

Bejamin C. Mizer

Paul J. Fishman

Daniel J. Aguilar [ARGUED]

Sharon Swingle

Mary Hampton Mason

Andrea Jae Friedman

United States Dept. of Justice

Civil Division – Rm. 7266

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Amicus Appellant

_______________

OPINION OF THE COURT

3

_______________

JORDAN, Circuit Judge.

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

4

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).

5

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,

6

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.

7

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).

8

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

9

*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).

10

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

11

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

12

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))).

13

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

14

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.

15

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).

16

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.”).

17

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

18

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.

19

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

20

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.

21

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.”).

22

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 common-

law 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

23

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 second-

level 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.

24

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).

25

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

26

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.

27

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.

28

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.

29

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.

30

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.

31

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);

32

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).

33

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 split-

second decisions about suspicious passengers. In light of

34

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.

35

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.

36

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

37

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.

38

IV. CONCLUSION

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.

39