Is a TSA Screener a “Law Enforcement Officer”? Court Allows Lawsuit Against United States to Proceed

Is a TSA Screener a “Law Enforcement Officer”? Court Allows Lawsuit Against United States to Proceed

Legal Sidebari

Is a TSA Screener a “Law Enforcement
Officer”? Court Allows Lawsuit Against
United States to Proceed
November 19, 2019
According to a complaint that air traveler Nadine Pellegrino filed in 2009 against the United States in
federal court, several Transportation Security Officers (TSOs) working for the Transportation Security
Administration (TSA) detained Pellegrino, damaged her property, and fabricated criminal charges against
her after she attempted to pass through a security checkpoint at Philadelphia International Airport in 2006.
In relevant part, Pellegrino’s complaint demanded monetary compensation from the federal government
under the Federal Tort Claims Act (FTCA). After a divided panel of judges of the U.S. Court of Appeals
for the Third Circuit (Third Circuit) initially ruled that one of the FTCA’s provisions barred Pellegrino
from pursuing her claims, the Third Circuit voted to rehear the case as a full court. Then, last August, a
majority of the participating judges concluded—contrary to the panel’s determination—that Pellegrino’s
suit could proceed.
The Pellegrino case is noteworthy for several reasons. For one, the court’s competing opinions reflect
judicial disagreements over how to interpret statutes governing private lawsuits against the federal
government. More specifically, the Third Circuit’s holding could also render the government liable not
only for tortious acts committed by TSOs, but also for unlawful actions committed by other federal
employees who perform similar duties. To inform Congress of the Pellegrino decision’s potential legal,
policy, and financial consequences, this Sidebar (1) describes the law governing when a plaintiff may
pursue tort litigation against the United States, (2) explains how the Third Circuit applied those laws in
Pellegrino, and (3) identifies potential considerations for Congress.
Sovereign Immunity and the Federal Tort Claims Act
The doctrine of sovereign immunity ordinarily bars private parties from suing the United States without
the government’s consent. To enable persons injured by the federal government to obtain recourse,
however, Congress has waived the United States’ immunity from certain lawsuits. As relevant here, the
FTCA enables plaintiffs to pursue certain state law tort claims against the federal government. For
instance, depending on the circumstances, a plaintiff injured by a federal employee’s negligence may sue
the United States under the FTCA for monetary compensation.
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However, the FTCA’s waiver of sovereign immunity is subject to numerous conditions and limitations.
For example, subject to a caveat discussed below, 28 U.S.C. § 2680(h)—known as the intentional tort
exception—preserves the federal government’s immunity from “[a]ny claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights” that a federal officer or employee commits while acting within
the scope of his employment. As some commentators have observed, the FTCA’s legislative history
“contains scant commentary” explaining why Congress chose to prohibit these types of lawsuits. At least
some Members of Congress appeared to believe, however, that (1) it would be “unjust” to require the
government to pay taxpayer funds when its employees commit acts of intentional misconduct like assault
or battery; and (2) exposing the government to liability for those categories of lawsuits could threaten the
public fisc.
Not only can 28 U.S.C. § 2680(h) prevent plaintiffs from suing the United States; it can potentially
prevent plaintiffs from asserting tort claims against anyone at all. A separate provision of the FTCA, 28
U.S.C. § 2679, ordinarily immunizes federal employees from private lawsuits for torts they commit in the
scope of their employment. The Supreme Court has interpreted that provision to preclude tort lawsuits
against federal employees even when an exception codified in 28 U.S.C. § 2680 bars the plaintiff from
suing the United States itself. As a result, if the intentional tort exception prohibits a plaintiff from
bringing a particular lawsuit against the federal government, the plaintiff may be entirely unable to pursue
tort litigation against any other defendant.
There are limited circumstances, however, in which a plaintiff may assert one of the types of claims
enumerated in 28 U.S.C. § 2680(h) against the United States notwithstanding the intentional tort
exception. Congress, alarmed by what some Members characterized as inappropriate behavior by federal
law enforcement officers conducting investigative raids, amended 28 U.S.C. § 2680(h) in 1974 to specify
that the intentional tort exception does not bar claims for “assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution” committed by “investigative or law enforcement
officers of the United States Government.” The statute defines “investigative or law enforcement officer”
as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.” Courts refer to this “exception to the exception” as the “law
enforcement proviso.”
The Pellegrino Case
At bottom, the Pellegrino case is a dispute over the law enforcement proviso’s breadth. As mentioned
above, Pellegrino alleges that TSOs damaged her belongings during a screening at the Philadelphia
airport. According to Pellegrino, when she expressed her displeasure to those TSOs, they falsely accused
Pellegrino of physically assaulting them. Pellegrino further alleges that Philadelphia police officers then
arrested Pellegrino and charged her with various crimes, including committing aggravated assault and
making terroristic threats. After a municipal judge found Pellegrino not guilty based on insufficient
evidence, Pellegrino sued the federal government for false arrest, false imprisonment, and malicious
prosecution. Because 28 U.S.C. § 2680(h) places all three of those claims within the intentional tort
exception’s ambit, however, Pellegrino’s lawsuit could only proceed if the law enforcement proviso
exempted her claims from the exception’s scope.
To resolve that issue, the Third Circuit needed to consider whether a TSO is an “officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations
of Federal law” as defined by the FTCA. Complicating that question was the fact that TSOs, unlike other
TSA employees that the agency explicitly designates as “law enforcement officers,” do not carry firearms,
make arrests, or seek or execute warrants. Rather, TSOs strictly perform screening of passengers and
property at airports. Indeed, TSA called TSOs “screeners” rather than “officers” until 2005, when the
government relabeled them as “officers” “as part of an effort to improve morale.”

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A majority of the full Third Circuit ultimately concluded that TSOs qualify as “investigative or law
enforcement officers” within the law enforcement proviso’s meaning, and that Pellegrino’s lawsuit could
therefore proceed. The majority first broke 28 U.S.C. § 2680(h)’s definition of “investigative or law
enforcement officer” into its component parts:
1. “any officer of the United States;”
2. “who is empowered by law;”
3. “to execute searches, to seize evidence, or to make arrests;”
4. “for violations of Federal law.”
Having parsed the proviso’s text, the majority first concluded that TSOs are “officers of the United
States” because “they are ‘tasked with assisting in a critical aspect of national security—securing our
nation’s airports and air traffic.’” Second, the majority reasoned that TSOs are “empowered by law” to
execute their duties, as federal law contemplates that TSOs will conduct “screening of all passengers and
property” on passenger aircraft. Third, the majority determined that TSO screenings constitute
“searches” under the proviso, as TSOs perform physical searches of luggage and passengers. Finally, the
majority decided that TSOs execute searches “for violations of federal law” to prevent passengers from
bringing prohibited items onto planes in contravention of applicable statutes and regulations.
In addition to these textual arguments, the majority also maintained that policy considerations supported
its conclusion. The majority first emphasized that Third Circuit precedent foreclosed air travelers from
suing TSOs under the “Bivens” doctrine, which, subject to various limitations, allows private citizens to
assert constitutional claims against federal officers. The majority therefore reasoned that, because judicial
precedent barred Pellegrino from asserting constitutional claims against the TSOs who allegedly harmed
her, interpreting the FTCA to also foreclose Pellegrino’s tort claims would leave Pellegrino (and other
similarly situated airline passengers) with “no remedy when TSOs assault them, wrongfully detain them,
or even fabricate criminal charges against them.”
In response to objections from the government and the dissenting judges, the majority rejected the view
that allowing such lawsuits to proceed would expose the United States to expansive liability. Citing
statistics from 2015 suggesting that “fewer than 200 people (out of over 700 million screened) filed
complaints with the TSA alleging harm that would fall within the scope of the proviso,” the majority
maintained that comparatively few litigants would file lawsuits like Pellegrino’s in the future. The
majority likewise disagreed that its holding would subject the United States to sweeping liability for
intentional torts committed by federal employees other than TSOs who perform routine “administrative
searches” like health inspections (as contrasted with investigative searches “based on individualized
suspicion” of criminal activity conducted by criminal law enforcement officers). Instead, the majority
contended that its interpretation of the proviso would only cover officers who perform searches that “are
more personal than traditional administrative inspections,” such as security screenings that “extend to the
general public and involve searches of an individual’s physical person and her property.”
Four dissenting judges disagreed with these conclusions. The dissenters first interpreted the phrase
“empowered by law to execute searches . . . for violations of federal law” to refer only to investigatory
searches conducted pursuant to the government’s traditional police powers, not to purely administrative
searches like TSA screenings. The dissenters similarly concluded that the statutory term “officer” did not
include mere federal employees, but instead only covered government personnel “charged with police
duties.” Thus, maintained the dissenters, the proviso only applies to officers like FBI agents and U.S.
Marshals who conduct investigatory searches pursuant to their police duties. In the dissenters’ view, the
proviso does not cover employees like TSOs who merely conduct routine administrative screenings and
lack the authority to carry firearms, make arrests, and seek and execute warrants.

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Turning to the potential practical consequences of the majority’s holding, the dissenters asserted that the
court’s interpretation of the proviso would “sweep[] in not just TSA screeners, but also countless other
civil servants” who “perform inspections, issue administrative subpoenas, conduct audits, perform drug
testing, or conduct any of the countless other routine, suspicionless searches authorized by federal law.”
The dissenters therefore argued that a broader conception of the law enforcement proviso would “subject
the United States Treasury to vast tort liability.” The dissenters further maintained that the majority’s
ruling created a circuit split, as a different court of appeals had previously reached the opposite
conclusion that the law enforcement proviso does not cover TSOs.
The United States has until late November 2019 to decide whether to ask the U.S. Supreme Court to
review the Third Circuit’s decision.
Considerations for Congress
Pellegrino thus raises questions about the proper scope of the government’s immunity. Decisions
regarding whether—and under what circumstances—private plaintiffs may sue the federal government
are largely entrusted to Congress. Preserving a broader measure of the federal government’s sovereign
immunity could reduce the government’s susceptibility to litigation and liability, but could also foreclose
a greater number of Americans injured by federal officers from obtaining recourse through the judicial
system. Expanding the universe of circumstances in which private plaintiffs may sue the United States, by
contrast, could potentially place a greater strain on the public fisc and interfere with governmental
operations.
In addition to these broader questions regarding when private plaintiffs should be able to sue the federal
government generally, Pellegrino also raises narrower questions about the law enforcement proviso’s
breadth. As the foregoing discussion reflects, judges in different courts—and even in the same court—do
not always agree whether the proviso applies to any given scenario. In particular, the exchange between
the majority and dissenting judges in Pellegrino suggests that it is unclear how Pellegrino’s holding
might apply to government employees who perform administrative searches for federal agencies beyond
just the TSA. If, as the Pellegrino dissent maintains, the majority’s interpretation of the law enforcement
proviso covers a potentially broad array of federal employees, then the government’s exposure to liability
and litigation could increase. Moreover, decisions regarding the law enforcement proviso’s scope could
affect the way TSOs and other federal employees conduct searches, as some courts have suggested that an
employee who believes his actions may subject his employer to liability might perform his duties less
zealously than one whose actions are insulated by an exception to the FTCA. On the other hand, some
jurists maintain that interpreting the law enforcement proviso more narrowly could leave some Americans
harmed by overzealous federal employees with no legal remedy.
Depending on how Congress weighs these competing policy considerations, it could amend 28
U.S.C. § 2680(h) to further specify which officers qualify as “investigative or law enforcement
officers” under the proviso. For instance, Congress could resolve the disagreement at the heart of
the competing opinions in Pellegrino by explicitly specifying that the proviso does (or does not)
cover TSOs. Alternatively, to address the broader policy implications of the Third Circuit’s
decision, Congress could clarify whether the law enforcement proviso covers federal employees
who conduct “searches of an individual’s physical person and her property”—or whether it
merely covers governmental workers who perform other types of “administrative inspections.”
As an alternative to modifying the rules governing litigation against the federal government,
Congress could also consider compensating persons injured by federal employees outside the tort
system, such as through an administrative claims process.

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Author Information

Kevin M. Lewis

Legislative Attorney

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