For all you frequent flyers, file this under news you can use: If you ever find yourself at the mercy of abusive TSA officers who break your possessions and falsely accuse you of assault, you've now got legal recourse.

For that you can thank McDermott Will & Emery's Paul Thompson, Matthew Knowles, Alexander Kritikos, Sarah Hogarth and Le Chen. Working pro bono, they just won an en banc decision from the U.S. Court of Appeals for the Third Circuit, which held that sovereign immunity is waived for certain intentional torts committed by transportation security officers, or TSOs.

The travel horror story began in July of 2006, when Nadine Pellegrino and her husband Harry Waldman had first class tickets on a US Airways flight from Philadelphia back home to Florida, where they live in Boca Raton.

Both are business consultants with platinum frequent flyer status. Suffice to say, they knew the TSA drill. 

One of Pellegrino's bags was flagged for additional inspection. Pellegrino (who is now about 70) requested that the search be done in private—she said she "did not want her bags searched in public because it was embarrassing," according to her pro se complaint, filed in 2009 in U.S. District Court for the Eastern District of Pennsylvania.

The officer doing the search was wearing what Pellegrino described as "contaminated" gloves, so Pellegrino asked her to change them. The TSA agent "stopped all movement for several moments, shot plaintiff a hateful menacing glare then without saying a word, seething, then changed her gloves," Pellegrino wrote.

(According to "14 Secrets of TSA Agents," the officers really hate being asked to change their gloves. "We change them all the time. We might have changed them just before getting to someone and passengers will still insist they use new ones in front of their face.")

The encounter went downhill from there. 

According to Pellegrino, the TSA officers had it in for her because (in their words) she was "one of those passengers, irate passengers" who was going to give them a hard time.

In a private room, several officers went through her luggage, papers, and other effects. They allegedly "counted her currency, her coins, read the front/backs of her credit cards, insurance cards, library cards, other plastic cards, read personal notes, opened her mints lid, smelled them, then dropped the opened tin into her purse spilling out the contents, smelled her hand sanitizer leaving the cap open, smelled her lipstick, smelled her pen and put her thumbs through the snap closure of a very sentimental change purse after plaintiff asked her to be careful with it, then yanked the zippers on her handbag closed."

Pellegrino said the officers wrecked her suitcase zipper, broke her eyeglasses in half, and damaged her "expensive jewelry and other property."

The officers found nothing prohibited in her baggage. But still, that wasn't the end.

Pellegrino said her belongings were strewn about, and she was "forced to get down on her arthritic hands and knees, crawl underneath the table on the dirty floor" to reach her bag. At that point, one of the agents allegedly yelled out that she had been assaulted—claiming that Pellegrino hit her with her bag, which Pellegrino adamantly denies.

Pellegrino was promptly arrested, hauled off to jail and charged by the Philadelphia District Attorney's Office with 10 crimes, including aggravated assault, possession of an instrument of a crime (her luggage), and making terroristic threats.

Most of the charges were dismissed or abandoned. The remaining ones, as the Third Circuit noted, "came to naught when the TSA failed to produce surveillance video from the incident, one TSO failed to appear in court, and another TSO's testimony was self-contradictory on key points."

Off the hook for all criminal charges, Pellegrino turned the tables, filing a pro se suit against the TSA for civil rights violations. 

The key threshold question: Can the TSA agents be sued? Are they law enforcement officers? Or should they be viewed as low-level flunkies, "nothing more than screeners who perform routine, administrative inspections of passengers and property on commercial aircraft," as U.S. District Judge J. Curtis Joyner in Philadelphia put it when he ruled against Pellegrino?

Pellegrino stuck out again on appeal in 2018 before a three-judge panel at the Third Circuit. In a question of first impression among the federal courts of appeal, the divided panel held that TSA screeners are not "'investigative or law enforcement officers' under the law enforcement proviso," and therefore Pellegrino's claims were barred by sovereign immunity.

Under the Federal Tort Claims Act, immunity is waived for "any officer of the United States who is empowered by law to execute searches." But the panel held that this only covered criminal law searches, even though the statute didn't specify one way or the other. 

The majority recognized it wasn't a feel-good opinion—their holding meant "individuals harmed by the intentional torts of TSOs will have very limited legal redress. And we are sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs' contact with the flying public."

Enter McDermott Will & Emery. A few weeks after the loss, the team led by Paul Thompson filed notices of appearance for Pellegrino. Backed by amicus support from the ACLU, the Cato Institute, The Rutherford Institute, Freedom to Travel and Restore the Fourth, they convinced the Third Circuit to rehear the case en banc.

"[T]he majority opinion reads the word 'criminal' into the proviso … Congress, however, did not include the word 'criminal' in § 2680(h)," the McDermott lawyers wrote. Moreover, they argued, "Transportation Security Officers' searches may include pat-downs, which TSA's website describes as 'inspection of … sensitive areas such as breasts, groin, and the buttocks.' … Such invasive inspections are searches."

Nor would waiving sovereign immunity open the door to massive government liability, the McDermott team continued. "In fact, in 2015, of the 708 million passengers TSA screened, TSA received only 122 personal injury claims …This case, then, will not greatly expand the government's liability or result in a flood of litigation. Instead, reading § 2680(h) as written will allow victims like Ms. Pellegrino to sue the United States for the most egregious cases of intentional misconduct."

The en banc court was persuaded, ruling 9-3 that TSOs are indeed officers who are empowered by law to conduct searches. 

The en banc majority rejected the government's argument that consent by passengers cancels the Fourth Amendment's effect. "[T]he presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment," the court noted. "In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a 'search or inspection' may not board a flight."

The searches are also particularly personal. "This potential for abuse is borne out by Pellegrino's own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations," wrote Judge Thomas Ambro for the majority. 

The en banc court also rejected the three-judge panel's conclusion that the statute only applied to criminal searches. "Congress knows how to give an explicitly 'criminal' meaning to the term 'law enforcement officer,' and it chose not to do so here… Hence the proviso is not confined to 'criminal' law enforcement officers."

The en banc majority did recognize that the "overwhelming majority of TSOs perform their jobs professionally despite far more grumbling than appreciation." But on the rare occasions that they don't, travelers will now have recourse to hold the government responsible.