Michele Leuthauser v. USA
71 F.4th 1189 (2023)
Rule of Law:
Transportation Security Officers (TSOs) qualify as 'investigative or law enforcement officers' under the Federal Tort Claims Act (FTCA), thereby waiving the United States' sovereign immunity for intentional torts committed by TSOs during security screenings.
Facts:
- On June 30, 2019, Michele Leuthauser was a passenger passing through a security checkpoint at Harry Reid International Airport.
- After Leuthauser triggered an alarm in the body scanner, she was informed she required a 'groin search' and was taken to a private room by TSO Anita Serrano and another agent.
- Leuthauser alleges that during the pat-down, Serrano ordered her to spread her legs wider than the floor markings indicated.
- Leuthauser claims that Serrano slid her hands along Leuthauser's inner thighs, touched her vulva and clitoris, and digitally penetrated her vagina.
- As a result of the encounter, Leuthauser experienced immediate physical symptoms of emotional distress, including shaking, nausea, and shortness of breath.
- A TSA supervisor eventually dismissed Serrano and completed the search, finding no prohibited items or contraband.
- Leuthauser attempted to report the incident to airport police immediately, but was told the TSA was outside their jurisdiction.
Procedural Posture:
- Leuthauser filed a complaint in the United States District Court for the District of Nevada against the United States (under the FTCA) and TSO Serrano (under Bivens).
- The District Court dismissed the Bivens claim against Serrano individually.
- The United States moved to dismiss the FTCA claims, arguing TSOs are not law enforcement officers.
- The District Court initially denied the motion to dismiss to allow discovery regarding TSO Serrano's specific designation.
- Discovery revealed Serrano was not a specifically designated law enforcement officer under the Aviation Security Act.
- The United States moved for summary judgment.
- The District Court granted summary judgment in favor of the United States, ruling that TSOs do not qualify as investigative or law enforcement officers under the FTCA.
- Leuthauser appealed the grant of summary judgment to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Are Transportation Security Officers (TSOs) considered 'investigative or law enforcement officers' under the Federal Tort Claims Act proviso, 28 U.S.C. § 2680(h), such that the United States government waives sovereign immunity for intentional torts they commit?
Opinions:
Majority - Judge Nguyen
Yes, Transportation Security Officers are 'investigative or law enforcement officers' under the FTCA because they are officers of the United States empowered to execute searches for violations of federal law. The Court relied on the plain text of the 'law enforcement proviso' in 28 U.S.C. § 2680(h). First, the Court determined that TSOs are 'officers' because they hold positions of trust and authority, wear uniforms with badges titled 'Officer,' and are commonly understood as such. Second, the Court found that TSOs are empowered to 'execute searches.' The Court rejected the government's argument that screenings are not searches, noting that under the Fourth Amendment and ordinary dictionary definitions, the intrusive physical examination of passengers constitutes a search. Third, the Court concluded these searches are 'for violations of Federal law' because they are designed to detect weapons and explosives prohibited on aircraft by federal statutes. The Court rejected the government's attempt to limit the proviso only to officers with traditional police powers (like arrest authority) or criminal investigative duties, noting that the statute is written in the disjunctive and clearly covers officers who conduct administrative searches.
Analysis:
This decision is legally significant because it removes a major barrier to liability for the Transportation Security Administration (TSA). By holding that TSOs fall under the FTCA's law enforcement proviso, the Ninth Circuit joined the Third, Fourth, and Eighth Circuits in widening the scope of the government's waiver of sovereign immunity. Practically, this means victims of intentional misconduct by TSOs (such as assault, battery, or false imprisonment) can sue the United States government for damages in federal court. It rejects the government's long-standing defense that TSOs are merely administrative screeners rather than law enforcement officers, clarifying that the power to conduct intrusive searches is sufficient to trigger liability under the FTCA.
