Cliff Rieders

In my first article on Pellegrino v. Transportation Safety Administration, No. 15-3047 (3d Cir. July 11, 2018) (Krause, J.), I predicted that, when revisited, the panel decision supporting the district court's grant of summary judgment in favor of the United States would be overturned. This time, I was correct!

At issue was a TSO, transportation safety officer, screening of Nadine Pellegrino and her husband. A melee ensued between the TSO and Pellegrino, with the question of who struck who and when. Pellegrino was charged with 10 crimes, including assault. Many of the charges were dismissed, and the district attorney abandoned others. The remaining charges came to naught when the Transportation Safety Administration (TSA) failed to produce surveillance video from the incident and another TSO agent failed to appear in court. Other TSO testimony was self-contradictory on key points.

As Judge Thomas Ambro noted, joined by Chief Judge D. Brooks Smith and Judges Theodore McKee, Michael Chagares, Joseph Greenaway, Patty Shwartz, Felipe Restrepo, Stephanos Bibas and David Porter, the federal government is typically immune from suit. The Federal Tort Claims Act waives immunity for torts under 28 U.S.C. Section 2680(a). One such waiver is for intentional torts committed by "investigative or law enforcement officers," which is defined 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."

The majority ruled that because the TSOs are indeed officers of the United States empowered to execute searches for violation of federal law, Pellegrino's lawsuit may proceed. A divided panel of the court had affirmed the district court's grant of summary judgment previously.

The government's immunity is provided as to 11 intentional torts laid out in the intentional-tort exception at Section 2680(h). Those 11 are: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit and interference with contractual rights. The exception does not apply to six of the 11 torts: assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution committed by investigative or law enforcement officers. For definitional purposes, "investigative or law enforcement officers" would include 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 swept aside the defense that the passengers "consented" to the search and therefore have no quarrel regardless of how the search is conducted. As with Gertrude Stein's observation concerning roses, that search is a search by any other name. The court noted the "intimate physical nature" of TSA searches. Further, the risk of abuse is greater for TSA screenings than for most other administrative searches. "Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential 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."

The court concluded that TSO screenings are "searches" because they are more personal than traditional administrative inspections. They extend to the general public and involve examinations, "often intrusive, of an individual's physical person along with her property."

Interestingly, the court made an observation regarding the politics of its decision. If TSOs are not considered to be investigative or law enforcement officers, then people like the Pellegrinos are left with no avenue for redress. The TSOs, ruled the court in a bone thrown to the government, that these government officials are not susceptible to an implied right of action directly for alleged constitutional violations. In other words, there is no so-called Bivens action and the only way for an aggrieved passenger to bring a claim is through the Tort Claims Act, with its various restrictions and hurdles.

In sum, the court stated:

• TSOs are investigative or law enforcement officers as specifically defined at 28 U.S.C. Section 2680(h).
• TSOs are officers of the United States as a result of their title, badge and authority.
• TSOs are empowered by law to execute searches by statute and regulation.
• TSOs may physically examine passengers and property at airports.
• The TSO searches are in connection with possible violations of federal law.

The court was split with a dissent by Judges Cheryl Ann Krause, Kent Jordan, Thomas Hardiman and Anthony Scirica. Look for Hardiman and Scirica to be potential Trump nominees to the U.S. Supreme Court if another vacancy opens up during the president's term.

Anyone who has traveled at an airport in the United States, especially internationally, appreciates the importance of the work performed by TSOs and the fact that most of them are cordial and professional. Frequent fliers, and maybe even those not so frequent, also have seen TSOs overstep their boundaries and act in a manner that is both arbitrary, intrusive and rude. Decisions like Pellegrino help to put a constable on the beat who will be sensitive to the difficulties faced by the flying public in an age of terrorism and other dangers that stalk the not-always-so-friendly skies.

Will the U.S. Supreme Court hear the same case? Probably not, and it should not. There is not a serious split between the circuits, and this is not an issue crying out for Supreme Court intervention.

Cliff Rieders, of Rieders, Travis, Humphrey, Waters, & Dorhmann, is a board-certified trial advocate in Williamsport, is past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority.