Federal Appeals Court Limits Ability to Sue TSA and its Screeners

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By on July 12, 2018 in Court Cases with 0 Comments

TSA officer searches a passenger's bag at an Amtrak security checkpoint

This case (Pellegrino v. U.S. Transportation Security Administration et al (CA 3rd Circuit No. 15-3047, July 11, 2018, Precedential) started because of an obviously heated encounter between the plaintiff and several screeners of the TSA (Transportation Security Administration) in 2006 at the Philadelphia airport.

The facts are amply spelled out in the court’s decision. Just say, by the time the dust settled, Ms. Pellegrino was arrested, charged with various criminal offenses against the TSA screeners, found not guilty, and she then brought suit in federal court against TSA as well as the screeners in their individual capacities, fashioning so-called “Constitutional torts” against the individuals. 

Enter the Federal Tort Claims Act (FTCA). Trying not to overcomplicate, the U.S. government and its agencies are immune from suit unless it has waived its sovereign immunity, which it has done under FTCA.

One exception to this waiver of immunity is if a claim arises because of an intentional tort committed by the government’s agent (such as assault, battery, false imprisonment, etc.) But there is an exception to this exception–the “law enforcement proviso” that waives immunity for certain intentional torts committed by “investigative or law enforcement officers.” In other words, the federal government HAS consented to be sued if its investigative or law enforcement officers commit certain torts.

The district court threw out all but one tort claim against TSA for property damage. As for Pellegrino’s claims of false arrest, false imprisonment and malicious prosecution, the court sided with the government, ruling that the government was immune from suit. The court also threw out the constitutional tort claims against the screeners in their individual capacities. 

So…the question before the appeals court in this case boiled down to whether TSA screeners fall under the law enforcement proviso. Perhaps this is oversimplification, but, if so, then a claim can proceed. If not, then the government is immune from suit by Ms. Pellegrino and other disgruntled flyers asserting they have been illegally arrested, imprisoned, etc. as the result of the actions of TSA screeners.

The 3rd Circuit held that the “law enforcement proviso covers only officers who are engaged in criminal law enforcement,” and TSA screeners do not meet that standard. (p. 25) The word “officer” in their job title is not enough to make it so. As the court notes, “We are not persuaded that the word ‘officer’ has this talismanic property, and it would be surprising indeed if such a superficial gloss were sufficient to trigger a waiver of federal sovereign immunity.” (pp. 41-42) Elaborating further, the court finds that TSA screeners conduct administrative, not criminal searches. “[L]ine TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers.” (p. 43)

This decision is good news for TSA screeners.

Pellegrino v. TSA (15-3047)

© 2018 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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