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Did SCOTUS Make It Harder To Hold Nasty TSA Agents Accountable?

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Kevin Daley Supreme Court correspondent
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Roger Vanderklok claims he was arrested at a security checkpoint at the Philadelphia International Airport because he tried to file a complaint against a moody TSA agent — but the 3rd U.S. Circuit Court of Appeals ruled Tuesday that Vanderklok can’t sue him.

The decision was dictated in significant part by recent Supreme Court precedent limiting the reach of civil actions against government officials.

The case arose after Vanderklok’s arrest in 2013. A TSA supervisor, Charles Kieser, called police after he claims Vanderklok made a bomb threat. The charges were dismissed when surveillance video conclusively corroborated Vanderklok’s version of events. The case against him was dismissed, and he then brought a civil suit against Kieser.

A three-judge panel of the 3rd Circuit dismissed his case. The court found that the prospect of civil liability could deter TSA agents from vigorously performing their jobs, therefore imperiling the security of the nation. The court writes:

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 Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause.

The recent Supreme Court precedent to which the court refers is a case called Ziglar v. Abbasi, a ruling handed down in June which restricted the circumstances under which a plaintiff can collect damages from government officials for constitutional violations.

Damages actions against federal law enforcement for constitutional violations are called Bivens actions, named for the Supreme Court case that first announced this remedy. In the Bivens case, the Court ruled that a private citizen named Webster Bivens could sue six federal agents for their unwarranted search of his home. In the years since this decision, however, the justices have consistently declined to expand the scope of Bivens far beyond its original facts.

In the Abbasi case, a group of Muslim men who were detained for an extended period of time after the Sept. 11 terror attacks brought a Bivens action against senior officials in the Bush administration. The plaintiffs claim they were held in inhumane, punitive conditions for months, despite the fact they had no connection to terrorist groups.

A four justice majority led by Justice Anthony Kennedy dismissed all but one of these claims. The majority concluded that their claims did not fall within the scope of Bivens. The Court further explained that adjudicating their claims would force the courts to intrude on the most sensitive deliberative processes of government, which could compromise national security.

The case was argued before a six-justice Court. Justices Sonia Sotomayor and Elena Kagan recused themselves given their previous involvement in the litigation, and Justice Neil Gorsuch had not yet been confirmed.

Writing in dissent, Justice Stephen Breyer warned the Court’s decision could effectively abolish all civil remedies for constitutional violations committed in the national security context. In other words, Breyer warned that the Court made it impossible for citizens to sue grumpy, dishonest TSA agents.

“[T]he Court’s abolition, or limitation of, Bivens actions goes too far,” Breyer wrote. “If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.”

His dissent may have just found its first vindication.

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