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Nadine Pellegrino v. TSA

Court of Appeals for the Third Circuit
937 F.3d 164 (2019)
ELI5:

Rule of Law:

Transportation Security Officers (TSOs) qualify as "investigative or law enforcement officers" under the Federal Tort Claims Act proviso, 28 U.S.C. § 2680(h), thereby waiving the United States' sovereign immunity for intentional torts committed by them.


Facts:

  • Nadine Pellegrino and her husband arrived at Philadelphia International Airport to board a flight home to Florida.
  • Pellegrino was selected for additional screening at the security checkpoint and requested a private room.
  • During the private screening, TSA officers roughly examined her belongings, allegedly counting her coins, reading her credit cards, and damaging her jewelry and eyeglasses.
  • Pellegrino informed the officers that she intended to report their conduct to a supervisor.
  • While Pellegrino was repacking her bags, the TSA officers claimed she struck them with her bag and her hand.
  • Pellegrino denied striking the officers and allegedly heard them conspiring to fabricate the story.
  • Based on the officers' allegations, Pellegrino was charged with ten crimes, including aggravated assault and terroristic threats.
  • The criminal charges were later dismissed or abandoned after the TSA failed to produce surveillance video and the officers gave contradictory testimony.

Procedural Posture:

  • Pellegrino filed a lawsuit against the TSA and individual officers in the U.S. District Court for the Eastern District of Pennsylvania alleging intentional torts under the Federal Tort Claims Act (FTCA) and constitutional violations under Bivens.
  • The District Court granted summary judgment in favor of the defendants, ruling that TSOs are not "investigative or law enforcement officers" under the FTCA proviso.
  • Pellegrino appealed the decision to the United States Court of Appeals for the Third Circuit.
  • A three-judge panel of the Third Circuit affirmed the District Court's dismissal.
  • The Third Circuit granted Pellegrino's petition for a rehearing en banc, vacating the panel opinion to have the full court decide the issue.

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Issue:

Are Transportation Security Officers (TSOs) considered "investigative or law enforcement officers" within the meaning of the Federal Tort Claims Act's intentional tort exception, such that the government waives immunity for their alleged misconduct?


Opinions:

Majority - Ambro

Yes. The Court held that TSOs meet the statutory definition of "investigative or law enforcement officers" under the Federal Tort Claims Act (FTCA) proviso. The Court analyzed the text of 28 U.S.C. § 2680(h), which defines such officers as those empowered to "execute searches, to seize evidence, or to make arrests for violations of Federal law." First, the Court found TSOs are "officers of the United States" because they hold positions of trust and authority and wear badges titled "Officer." Second, they are "empowered by law" to conduct screenings under the Aviation and Transportation Security Act. Third, these screenings constitute "searches" under both the ordinary meaning of the word and Fourth Amendment jurisprudence, including the standard set in Terry v. Ohio. Finally, these searches are conducted "for violations of Federal law" because TSOs search for weapons and explosives that are criminally prohibited on aircraft. The Court rejected the Government's argument that the proviso applies only to traditional criminal law enforcement, noting that the text does not contain such a limitation and that denying coverage would leave plaintiffs with no remedy for intentional torts.


Dissenting - Krause

No. The dissent argued that the statutory language, read in context, excludes administrative employees like TSOs who conduct routine, suspicionless searches. The dissent emphasized that the phrase "execute searches... for violations of Federal law" is a term of art referring to traditional police powers and criminal investigations, not administrative or programmatic screenings. By expanding the definition, the dissent argued the majority impermissibly broadened the waiver of sovereign immunity to potentially include all federal employees who conduct administrative inspections (such as meat inspectors or OSHA auditors). Furthermore, the dissent pointed to the Aviation and Transportation Security Act, which distinguishes between "employees" (screeners) and "law enforcement officers," arguing that Congress did not intend to conflate the two under the FTCA.



Analysis:

This en banc decision marks a significant split from other circuits and previous interpretations regarding the scope of the FTCA's "law enforcement proviso." By holding that TSOs are law enforcement officers for FTCA purposes, the Third Circuit opened the door for plaintiffs to sue the federal government for intentional torts (like assault or false arrest) committed by airport security screeners. This fills a remedial gap, as the court had previously ruled that TSOs cannot be sued personally under Bivens. However, the decision also arguably expands the government's liability exposure to other federal employees who conduct administrative searches, rejecting a strict distinction between "criminal" and "administrative" searches in the context of sovereign immunity waivers.

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