Third Circuit: No Sovereign Immunity Waiver Under FTCA for Transportation Security Officers
The Third Circuit Court of Appeals affirmed a lower court decision dismissing a tort claim filed under the Federal Tort Claims Act by an airline traveler who was arrested after an alleged altercation with Transportation Security Officers (“TSOs”). The appeals court held that the United States did not, through the Federal Tort Claims Act (“FTCA”), waive sovereign immunity from tort claims made against TSOs, who were not “investigative or law enforcement officers.”
In 2006, the plaintiff airline traveler and her husband were planning to travel from Philadelphia to Florida, but the plaintiff was subjected to further screening after passing through a metal detector. The plaintiff did not believe the screener was “treating her bags respectfully,” and asked for a private screening. When a new screener came to perform the requested private screening, the airline traveler claimed that the new screener’s gloves were not clean, and asked that new gloves be used. The new screener complied with that request, and they moved to the private screening room. The airline traveler and TSOs performing the screening argued about the invasiveness of the screening and the alleged roughness with which the TSOs allegedly treated the traveler’s belongings. When the screening concluded, the TSOs alleged that the traveler struck them with bags. The traveler alleged that the TSOs blocked her path and forced her to crawl on the floor under at able to retrieve her bag. After charges were pressed by the TSOs against the traveler for allegedly striking them with bags, the traveler was arrested. However, after the TSO from the private screening room did not appear in court for the criminal trial, the trial judge entered a verdict of not guilty. In July 2008, the traveler submitted a claim to the TSA requesting damages of $951,200. The TSA denied the claim by letter, and the traveler commenced a civil rights action in the Eastern District of Pennsylvania in November 2009.
The civil rights claims which were denied by the district court and which the traveler appealed to the Third Circuit were FTCA claims for the intentional torts of false arrest, false imprisonment, and malicious prosecution. The district court “granted summary judgment on those claims on the ground that TSA screeners are not covered by the FTCA’s law enforcement proviso because they are not ‘empowered by law to execute searches…for violations of Federal law.’” The law enforcement proviso of the FTCA waives sovereign immunity for certain intentional torts committed by “investigative or law enforcement officers.” The district court turned to legislative history, and found that the “law enforcement proviso” of the FTCA was enacted “as a response to specific egregious behavior during raids conducted by federal law enforcement officers,” and was not intended “to be expansive enough to cover airport security screeners.”
The appeals court noted that this was an issue of first of impression in the U.S. Courts of Appeals. In reaching its affirmation, the appeals court performed substantive statutory interpretation, relying in large part on the interpretive canon of noscitur a sociis, which means that the “meaning of a word should be determined by considering the words with which it is associated in context.” The appeals court found that the “law enforcement proviso” of the FTCA listed powers of law enforcement officers (including the execution of searches, seizure of evidence, and arrests for violation of Federal law) that had criminal law connotations that did not apply to TSOs. The appeals court also examined the purpose of the FTCA, the legislative history, and the relevant case law, citing Matsko v. United States, 372 F.3d 556 (3d Cir. 2004), Bunch v. United States, 880 F.3d 938 (7th Cir. 2018) (holding that there were genuine disputes of material fact as to whether an ATF chemist fell within the proviso because she was an “ATF officer” authorized to participate in criminal investigations), and First National Bank of Jackson, 614 F.2d 1004 (5th Cir. 1980), among others.
Ultimately, the appeals court held that given their interpretation of the “scope of the [law enforcement] proviso, [the appeals court has] little difficulty concluding it does not cover TSA screeners.” The appeals court found that “TSA screeners conduct only administrative searches, are not criminal law enforcement officers, and thus do not qualify as ‘investigative or law enforcement officers’ under the FTCA.” According to the appeals court, the Aviation and Transportation Security Act distinguishes between “employees” who conduct administrative searches, including TSOs, and “law enforcement officers” who are empowered to carry firearms, make arrests, and seek and execute warrants. The appeals court cited its previous decision in Vanderklok v. TSA, 868 F.3d 189 (3d Cir. 2017) to reinforce that distinction.
For these reasons, the United States Court of Appeals for the Third Circuit affirmed the district court’s dismissal of the traveler’s claims.
Read the full case: Pellegrino v. TSA.
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Posted in Case Law Update