March 23, 2017
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
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
M. Cherico Anne B. Taylor Office of United States Attorney
Counsel for Defendants United States of America,
Transportation Security Administration, John S. Pistole and
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.
JORDAN, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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. (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.
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.
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; (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; (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.
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.
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.
those rulings are before us now. 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. 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
interlocutory appeal followed.
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.
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
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)