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Vanderklok v. United States

United States Court of Appeals, Third Circuit

August 22, 2017

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

          ARGUED March 23, 2017

         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

          John C. Connell [ARGUED] Archer & Greiner, Jordan L. Fischer Jeffrey M. Scott Archer & Greiner Counsel for Appellant

          Nicholas A. Cummins Charity C. Hyde Bennett Bricklin & Saltzburg Counsel for Defendants City of Philadelphia, Kenneth Flaville, Raymond Pinkney and Michael Wojciechowski

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

          Robyn L. Goldenberg, Thomas B. Malone [ARGUED] The Malone Firm, LLC 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 Counsel for Amicus Appellant

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

          OPINION

          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 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 Background[1]

         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 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, 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 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 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 *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 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 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) ...


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