The headline suggests that the Third Circuit Court of Appeals affirmative immunized employees of the Transportation Safety Administration from suit, but it’s not really true. The TSA didn’t quite “win” immunity, and the court didn’t quite give it to them. And nobody is unaware that it leaves the worst-trained, least-educated, most ubiquitously offense government agency essentially untouchable.

This question, one of first impression among the Courts of Appeals, arises because Appellant Nadine Pellegrino has asserted intentional tort claims against TSA screeners. Although under the FTCA the United States generally enjoys sovereign immunity for intentional torts committed by federal employees, this rule is subject to an exception known as the “law enforcement proviso,” which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h). Pellegrino’s claims may proceed only if TSA screeners fall into this category

Spoiler alert: Nadine Pelligrino lost, but before going further, there is another crack here into which this case unfortunately falls.

It was a defeat for Nadine Pellegrino, a business consultant from Boca Raton, Florida. She and her husband had sued for false arrest, false imprisonment and malicious prosecution over a July 2006 altercation at Philadelphia International Airport.

Pellegrino, who represented herself, said she was reviewing the decision.

Had she been competently represented, would the outcome have been different? Who knows, but given that this was a case of first impression, a pro se appellant isn’t the optimal way to lose. On the bright side, the court appointed amicus so that it wouldn’t be a total botch.

The default for the federal government is sovereign immunity, that the government and its employees are immune from suit. The §1983 suits discussed so often relate to a law passed by Congress that entitles people to sue state and local government workers, curiously omitting any mention of the miscreants on their own payroll. But the Supreme Court created a federal analogue of sorts in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. That judicially created cause of action, however, is limited to law enforcement officers.

In Vanderklok v. United States, 868 F.3d 189 (3d Cir.2017), we declined to imply a Bivens cause of action against airport screeners employed by the Transportation Security  Administration (TSA) in part because they “typically are not law enforcement officers and do not act as such.” Id. at 208. We now must decide a related question that we anticipated, but did not resolve, in Vanderklok: whether TSA screeners are “investigative or law enforcement officers” under the Federal Tort Claims Act (FTCA).

Oddly enough, TSA screeners dodged the Bivens bullet because they’re kinda nothing, basically dumb cogs in a dumb wheel of little purpose and even less authority. The only alternative means of going after them for wreaking havoc with travelers when the federal government feels a compulsion to have random blue-shirted individuals molest children and threaten the lives of the elderly is the FTCA.

Based on our review of the statute’s text, purpose, and legislative history, as well as precedent from this Court and other Courts of Appeals, we now reach the conclusion that we foreshadowed in Vanderklok and hold that TSA screeners are not “investigative or law enforcement officers” under the law enforcement proviso.

After a not atypical experience with the pleasant and helpful transportation safety officers performing a private screening, during which Pellegrino told the two female TSOs they were “acting like bitches,” things went south.

But simple closure was not to be. Instead, Pellegrino saw that Abdul-Malik had not re-packed her shoes, asked if she intended to do so, and was told “no.” Pellegrino Dep. 122:2, D.Ct. Dkt. No. 156. At that point, intending to re-pack her bags outside of the screening room, Pellegrino tossed her shoes through the open door toward the screening lanes and began to carry her largest bag out of the room. In the process, according to Labbee and Kissinger, she struck Labbee in the stomach with the bottom of the bag.

And there was worse to come.

When Pellegrino then returned to the screening room for her smaller rolling tote, Abdul-Malik
allegedly stood in her way, forcing her to crawl on the floor under a table to retrieve it. According to the TSOs, Pellegrino then struck Abdul-Malik in the leg with this bag as she was removing it. Although Pellegrino denied (and has consistently denied) that either bag touched either TSO, Labbee and AbdulMalik immediately went to the supervisor’s station to press charges against Pellegrino.

Pellegrino was arrested by Philadelphia police upon the TSOs’ complaints.

Eventually, the Philadelphia District Attorney’s Office filed ten charges against Pellegrino: two
counts each of felony aggravated assault, see 18 Pa. Cons. Stat. § 2702; possession of instruments of a crime, see id. § 907; reckless endangerment, see id. § 2705; simple assault, see id. § 2701; and making terroristic threats, see id. § 2706.

At trial, the judge entered a verdict of not guilty because, wait for it, Nuyriah Abdul-Malik was no longer working for the TSA and failed to appear, and Laura Labbee was outside the room when the relevant allegations occurred and was precluded from testifying since she wasn’t an actual witness. So much for the terroristic threats.

Bizarrely, the saving grace for the government under the FTCA was that screeners are so utterly lacking in consequence and authority as to fall below the threshold for recognition under the law enforcement proviso.

Based on the proviso’s text, structure, context, purpose, and history, as well as the relevant case law, we are persuaded that the phrase “investigative or law enforcement officers” is limited in scope and refers only to officers with criminal law enforcement powers. Because TSOs only conduct administrative searches and do not have such powers, they are not subject to the law enforcement proviso, and the Government’s sovereign immunity bars this action.

The Third Circuit appreciated the conundrum this created:

We recognize that our holding here, combined with our decision in Vanderklok, means that 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.

But the court put the question to Congress as to whether the offensive conduct of TSA screeners should be subject to liability.

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 fisc, fall squarely in the realm of the legislative branch.

The court, thus, didn’t so much immunize the TSA, as Congress has failed to amend the FTCA to cover their offensive and outrageous conduct. So they fall into the gap of sovereign immunity, which allows screeners to be as awful as they are.