U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

TSA Agent First Amendment Retaliation Doesn't Exist

In a shocking case, the Third Circuit Court of Appeals held that a TSA agent cannot be held liable for violating the civil rights of a traveler he falsely accused of making a bomb threat.

Following the analysis under Zigler v. Abbasi, the appellate court refused to extend Bivens to hold a TSA agent liable for retaliating against a passenger that wanted to file a complaint. Additionally, it noted that TSA agents enjoy a special protection for national security reasons.

What Happened?

Roger Vanderklok was flying within the United States, and inside his carry-on luggage, TSA spotted a suspicious item. That item turned out to be a heart monitor and a watch which were both being transported/stored in a PVC pipe container. When the agent sought to do an additional screening of Vanderklok's baggage, Vanderklok alleged the officer was rude. Allegedly, when Vanderklok stated that he wanted to file a complaint, the TSA agent retaliated by calling the local police and telling them Vanderklok had made a bomb threat.

Vanderklok was arrested, but all charges were dismissed when security footage did not substantiate the TSA agent's story. Vanderklok then filed suit against the agent and others. The District Court denied the defendants motion for summary judgment on the grounds of qualified immunity. However, the Third Circuit, in reviewing the denial of summary judgment, found that the claim being brought by Vanderklok could not actually be presented against a TSA agent.

Only Congress Can Prevent TSA Constitutional Deprivations

What makes this decision, along with the SCOTUS decision in Zigler, so significant is the placement of the onus on Congress. Essentially, both courts are explicitly saying that since Congress hasn't created a right to relief, and national security is at issue, the court cannot extend a new right to relief under Bivens.

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