By David Zvirman, Staff Writer
Everyone who has flown on a plane in the U.S. in the last decade has experienced an administrative search by a Transportation Security Officer (“TSO”) of the Transportation Security Administration (“TSA”).[1] In 2017 alone, the TSA screened 771.5 million travelers in 440 federalized airports, which breaks down into about 2 million people a day.[2]
Not everyone, however, may be aware of a recent Third Circuit case, Pellegrino v. U.S. Transportation Sec. Administration, Div. of Dept. of Homeland Sec.,[3] in which a 2 -1 panel granted TSO immunity from certain tort claims such as assault and false arrest.[4]
While going through security at Philadelphia International Airport with her husband, [5] plaintiff Pellegrino was directed to undergo further screening.[6] As the TSO began searching her bag, Pellegrino demanded a private search due to the officer’s alleged disrespect. [7] The interaction deteriorated as Pellegrino demanded the inspecting TSO put on new gloves[8] and to allow her to repack her own bag,[9] and accused the TSOs of “behaving like bitches.”[10] She was then subsequently accused of striking the TSOs with her bags as she left the screening room.[11] The TSO’s reported Pellegrino to their supervisor, and Philadelphia police arrested her.[12] Pellegrino, however, was found not guilty of all charges, partially because one of the main TSO’s involved in the incident no longer worked for the TSA and was unavailable.[13]
Pellegrino then sued the TSA, the United States, and the individual TSOs, alleging false imprisonment and false arrest under the law enforcement proviso of the Federal Tort Claims Act (“FTCA”).[14] This proviso provides,
With regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter . . . shall apply to any claim arising. . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, ‘investigative or law enforcement officer’ means 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.[15]
The district court ruled against Pellegrino, finding that “TSA screeners [were] not covered by the FTCA’s law enforcement proviso because they [were] not empowered by law to execute searches … for violations of Federal law.”[16] Pellegrino appealed, arguing that TSOs qualified as “investigative or law enforcement officers, such that [her] claims [fell] within the proviso.”[17] Rejecting Pellegrino’s contention, the Third Circuit found that, “[b]ased on the proviso’s text, structure, context, purpose, and history. . . the phrase ‘investigative or law enforcement officers’ [was] limited in scope and refer[red] only to officers with criminal law enforcement powers.”[18] Because TSOs only perform administrative searches, “they [were] not subject to the law enforcement proviso, and the Government’s sovereign immunity bar[red] [the plaintiff’s] action.”[19]
Regarding the text of the FTCA, the Court noted that Congress repeatedly distinguished between “officers” and “employees” in various sections of the FTCA.[20] Furthermore, it found the language of the provision – “to execute searches, to seize evidence, or to make arrests for violations of Federal law” – all had criminal law connotations and were generally not used when concerning administrative searches.[21] Moreover, the phrase “law enforcement officer” itself has only ever been used to describe those involved in criminal law enforcement, and not those with mere administrative duties, such as TSOs.[22]
With respect to the proviso’s purpose, the Court found it senseless to read it to include administrative searches, as this “would sweep into its ambit large swaths of the federal workforce, producing an unprecedented expansion of the United States’ tort liability.”[23] Such a reading would bring FDA inspectors, EPA employees, and numerous other employees who have varying degrees of authority to perform administrative searches in certain situations under the reach of the provision.[24]
Concerning legislative history, the Court noted three factors that weighed against Pellegrino.[25] First, the bill that would become the proviso was proposed in response to two instances where federal narcotic agents had mistakenly commenced armed raids on the wrong dwellings.[26] Without such a proviso, those wrongfully raided had no legal recourse. [27] Second, Congress had specifically discussed and rejected expanding the bill to cover the actions of federal employees, as well as officers.[28] Finally, the types of torts allowed under the proviso were those most associated with federal law enforcement officers.[29]
The Third Circuit additionally found that this narrow reading of the proviso fell in line with its prior case law, as well as that of its sister circuits.[30] It referred to its prior decision in Matsko v. U.S.,[31] where it refused to include a Mine Safety and Health Administration (MSHA) inspector under the proviso, after the inspector had slammed the plaintiff’s face off a briefcase lying on a desk.[32] Regarding its sister circuits, the Court found many examples where circuits had found the provision applied to criminal law enforcement officers,[33] but not those employees who lack a criminal law component.[34]
In reaffirming that the proviso was inapplicable regarding TSOs, the Court quoted its prior ruling in Vanderklok v. U.S.,[35] where it held, “TSA employees typically are not law enforcement officers and do not act as such.”[36] Instead, TSOs “are instructed to carry out administrative searches and contact local law enforcement if they encounter situations requiring action beyond their limited though important responsibilities.”[37] Furthermore, the Aviation and Transportation Security Act (“ATSA”), which established the TSA, frequently distinguishes between “’employees’ who conduct administrative searches and ‘law enforcement officers.’”[38] The most clear distinction is that the TSA administrator may designate certain TSA employees as “law enforcement officers,” giving them the ability to carry firearm, make an arrest, and execute warrants.[39] This ability to specifically designate certain employees as “law enforcement officers” only emphasizes the distinction between law enforcement officers and general TSOs.[40]
Accordingly, the Court concluded that, like many other federal agencies, the TSA makes a clear distinction between employees, which include TSOs, and law enforcement.[41] Therefore, “[b]ecause the proviso [did] not apply, [the plaintiff’s] intentional tort claims [were] barred…and the District Court correctly dismissed those claims based on the United States’ sovereign immunity.”[42]
The reasoning behind the Third Circuit’s recent decision may have great implications for air travelers whose potential claims against a TSO are now barred. While this ruling may seem unfair to some (like the 6,700 travelers who filed complaints against the TSA in the first three quarters of the 2017 fiscal year),[43] the Third Circuit addressed this concern by stating, “Congress may well see fit to expand the proviso or otherwise legislate recourse for passengers who seek to assert intentional tort claims against TSOs. But such policy judgments, particularly as they relate to sovereign immunity and the public, fall squarely in the realm of the legislative branch.”[44]
One important item to note is that this ruling doesn’t prevent TSOs from facing criminal sanctions or disciplinary actions within the TSA due to traveler complaints. [45] Nonetheless, until Congress addresses the statutory issue, the Pellegrino ruling will likely remain the law of the land for the Third Circuit.
Sources
[1] See TSA Year in Review: Record Amount of Firearms Discovered, tsa.gov., Jan 29, 2018. Available at https://www.tsa.gov/blog/2018/01/29/tsa-year-review-record-amount-firearms-discovered-2017
[2] Id.
[3] Pellegrino v. U.S. Transportation Sec. Administration, Div. of Dept. of Homeland Sec., 896 F.3d 207 (3d Cir. 2018).
[4] Jonathan Stempel, U.S. airport screeners win immunity from abuse claims – appeals court, REUTERS, July 11, 2018; Lizzy McLellan, TSA Screeners Not Law Enforcement Under Tort Law, Circuit Rules, THE LEGAL INTELLIGENCER, July 12, 2018; Travelers should be able to sue abusive airport screens, LOS ANGELES TIMES, July 20, 2018.
[5] Pellegrino, 896 F.3dat 210.
[6] Id.
[7] Id.
[8] Id. at 211.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 212
[13] Id.
[14] Id. at 212.
[15] 28 U.S.C. § 2680(h) (emphasis added).
[16] Pellegrino, 896 F.3d at 212.
[17] Id. at 213-14.
[18] Id. at 216.
[19] Id.
[20] Id. at 217.
[21] Id.
[22] Id.at 218-19.
[23] Id. at 220.
[24] Id.
[25] Id. at 221.
[26] Id.
[27] Id.
[28] Id.
[29] Id. at 222.
[30] Id. at 222-25.
[31] Matsko v. United States, 372 F.3d 556, 560 (3d Cir. 2004) (finding “the mine inspector was not an “investigative or law enforcement officer” for the independent reason that “employees of administrative agencies, no matter what investigative conduct they are involved in, do not come within the § 2680(h) exception.”).
[32] Pellegrino., 896 F.3d at 223.
[33] Id. at 223-24 (citing Nurse v. United States, 226 F.3d 996, 1002–03 (9th Cir. 2000) (applying the proviso to customs officers); Celestine v. United States, 841 F.2d 851, 852–53 (8th Cir. 1988) (applying the proviso to Veterans Administration (“VA”) police officers); Brown v. United States, 653 F.2d 196, 198 (5th Cir. 1981) (applying the proviso to FBI agents)).
[34] Id. at 224-25 (citing Equal Empl. Opportunity Commn. v. First Nat. Bank of Jackson, 614 F.2d 1004, 1007-08 (5th Cir. 1980) (rejecting application of the proviso to EEOC agents); Solomon v. U.S., 559 F.2d 309, 310 (5th Cir. 1977) (rejecting application of the proviso security guards); Johnson v. United States, 547 F.2d 688, 691 (D.C. Cir. 1976) (rejecting application of the proviso to VA hospital doctors)).
[35] Vanderklok v. U.S., 868 F.3d 189, 208-09 (3d Cir. 2017) (finding TSOs were not law enforcement officers for purposes of Bivens claims).
[36] Id. at 225 (citing Vanderklok v. U.S. at 208).
[37] Id. at 226 (citing Vanderklok at 209).
[38] Id.
[39] Id.
[40] Id. at 226-227.
[41] Id. at 229.
[42] Id. at 229-30.
[43] Christopher Elliott, Treated badly by the TSA? Get in line, USA TODAY, Sept. 3, 2017.
[44] Pellegrino., 896 F.3d at 231.
[45] Zach Wichter, Court Gives T.S.A. Screeners Immunity From Abuse Lawsuits, THE NEW YORK TIMES, July 12, 2018.
