A recent decision by the Third Circuit Court of Appeals provides airline travelers with an avenue of recourse for mistreatment at the hands of Transportation Security Officers (TSOs).
In Pellegrino v. United States of America Transportation Security, Plaintiff Nadine Pellegrino was randomly selected for additional screening at the Philadelphia International Airport as she travelled home to Boca Raton, Florida. Once selected, Pellegrino requested a more discreet setting, to which the TSOs obliged and took her to a private room. While in the room, Pellegrino alleged the TSOs went through her cellphone, counted coins, smelled her cosmetics and rummaged through her belongings, ultimately damaging her jewelry and eyeglasses. One of the TSOs alleged that Pellegrino struck her as Pellegrino was attempting to repack her bags, and a second officer also alleged Pellegrino struck her while she crawled underneath a table to reach her luggage. As a result of these allegations, the Philadelphia District Attorney's Office charged Pellegrino with ten crimes, including aggravated assault, possession of an instrument of crime (PIC) and terroristic threats. The charges were dismissed after the Transportation Security Administration (TSA) failed to produce any surveillance video of the incident and one of the TSOs failed to appear in court.
After her "ordeal," Pellegrino brought claims against the TSA and several TSOs for various violations, including, but not limited to, property damage, false arrest, false imprisonment, malicious prosecution under the Tort Claims Act, and malicious prosecution under Bivens in violation of the First and Fourth Amendments.
In a 9-4 decision, the Third Circuit departed from the long-standing principle and precedent that federal government employees are generally immune from lawsuits. Instead, the Court held that "TSOs are 'investigative or law enforcement officers' as defined in the Tort Claims Act at 28 U.S.C. §2680(h)...[who] are empowered by law to execute searches...[where] they may physically examine passengers and the property they bring with them to airports...'for violations of Federal law." This means TSOs can now be sued in their individual capacity for torts committed while carrying out their official functions because "investigative or law enforcement officers" are exempted from sovereign immunity protections provided by the Tort Claims Act. In articulating the consequences of the Court's ruling, Judge Ambro (writing for the majority) stated, "[i]f TSOs are not 'investigative or law enforcement officers' under the proviso, then plaintiffs like Pellegrino are left with no avenue for redress."
In her dissent, Circuit Judge Cheryl Ann Krause stated that while she was "sympathetic to the concern that the current legal regime provides no obvious remedy" to individuals like Pellegrino, Congress only expressly exempted officers with "traditional police powers" from the immunity provision, and any expansion should be left to those who write the laws, not those who interpret them. Pellegrino v. United States Transp. Sec. Admin., 931 F.3d 164 (3d Cir. 2019).
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