Transportation Security Administration officers are protected by federal law from lawsuits over disputes at airport checkpoints because they aren’t law-enforcement officers, a divided three-judge panel of a federal appeals court ruled Wednesday.
Nadine Pellegrino filed her case alleging false imprisonment and malicious prosecution after a 2006 conflict with TSA officers at the Philadelphia International Airport. But U.S. District Court Judge Curtis Joyner dismissed the case because federal employees generally are immune from lawsuits unless they are “investigative or law enforcement officers,” under the Federal Tort Claims Act.
“Pellegrino’s claims are therefore barred by the government’s sovereign immunity, and we will affirm the District Court’s judgment dismissing this action,” 3rd U.S. Circuit Court of Appeals Judge Cheryl Ann Krause wrote Wednesday in upholding the lower-court ruling in a 53-page decision with Judge Joseph Scirica.
But Judge Thomas Ambro warned in a 58-page dissent that travelers would have no recourse if they feel mistreated by TSA officers. Ambro said TSA officers who rigorously search passenger bags and bodies should be subject to lawsuits that apply to “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.”
The court’s opinion “leaves several plaintiffs without a remedy, even if a TSO assaults them, wrongfully detains them, or fabricates criminal charges against them,” Ambro wrote.
U.S. Attorney William McSwain of the Eastern District of Pennsylvania said he was pleased with the decision. Under the tort claims act, Congress sought to carefully balance federal immunity to protect taxpayer dollars against the need to provide a remedy for legal plaintiffs, he said.
"The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities," McSwain said.
TSA declined comment on the decision.
Wendy Patrick, a lawyer and lecturer in business ethics at San Diego State University, said the decision could spur more lawsuits exploring what other recourse a traveler has after a conflict with TSA.
“Given how eager people are to film everything that goes on at the airport, it’s a problem that isn’t going away. It’s going to get worse,” Patrick said. “I wouldn’t be surprised if we see more litigation that focuses on what can the recourse be if you feel you have been unfairly subjected to unlawful force or some type of discrimination by a TSA agent.”
Pellegrino of Boca Raton, Florida, was catching a flight home with her husband when TSA officers searched her bags: a rolling tote, a larger rolling bag and a small black canvas bag. After she passed through a metal detector, a TSA officer asked her to step aside for further screening.
Pellegrino thought the TSA officer wasn’t treating her or her bags respectfully, she asked for a private screening. As TSA another officer began searching her bags, Pellegrino didn’t think his gloves were clean and asked him to change them. He did.
In the private screening room with a female TSA officer and a supervisory officer, one of the women swabbed Pellegrino’s shirt for explosives residue and left to test it. Pellegrino alleged that the bag search was unnecessarily rough and invasive, extending to her credit cards, coins, cell phone and lipstick.
After the rolling tote was searched, Pellegrino thought her eyeglasses and jewelry were damaged. As the TSA officer zipped the tote, he pressed his knee into it to force it shut and Pellegrino thought he damaged it. Pellegrino then told two TSA officers they were “behaving like bitches,” according to her deposition in the case.
Pellegrino was told she could go after the bag search and swabbing was completed. She intended to repack her bag outside the room, so she tossed her shoes through the door toward the screening lanes and began carrying her larger bag.
The bag struck one of the TSA officers in the stomach, according to the officers. Pellegrino said an officer stood in her way as she tried to retrieve her smaller bag, and the bag hit him in the leg as she left, according to the officers.
Pellegrino consistently denied touching either officer with a bag, but the two officers immediately went to a supervisor to press charges against her. Philadelphia police arrested her and took her to a police station, where she was held 18 hours before posting bond. The Philadelphia District Attorney’s Office filed 10 charges against Pellegrino.
But by the time the case went to court, one officer wasn’t employed by TSA any more and didn’t appear. The other officer’s testimony was precluded in the absence of video surveillance because she was partially outside the screening room during the alleged assault. Pellegrino was found not guilty.
Pellegrino submitted a claim to TSA in July 2008 alleging misconduct and seeking $951,200. TSA denied the claim.
In November 2009, Pellegrino and Waldman filed a civil lawsuit against the TSA and the officers alleging property damage, false arrest, malicious prosecution, civil conspiracy, defamation and intentional infliction of emotional distress.
The District Court rejected all of the claims except a property-damage claim that was settled. The appeal focused on whether the Federal Tort Claims Act exempted the workers from claims of false arrest, false imprisonment and malicious prosecution.
The appeals-court ruled that TSA officers search for weapons and explosives in an administrative way, rather than like a criminal investigation that would lead to arrests. TSA checkpoint officers are unarmed and rely on local law enforcement officers at airports to arrest travelers, in cases where charges are pressed.
TSA officers, like most administrative employees, don’t receive training on legal standards relevant to assault, battery, false imprisonment, false arrest, abuse of power and malicious prosecution, the appeals court ruled in keeping the immunity from lawsuits.
But Ambro wrote in dissent that the Supreme Court has instructed judges to interpret the Federal Tort Claims Act broadly to waive government immunity and allow Pellegrino’s claims of false arrest, false imprisonment and malicious prosecution to go to trial.