Transportation Security Administration screeners inspect passengers' bags at the international terminal of San Francisco International Airport. Photo credit: Getty Images Transportation Security Administration screeners inspect passengers’ bags at the international terminal of San Francisco International Airport. Photo credit: Getty Images

Transportation Security Administration screeners are not investigative or law enforcement officers under the Tort Claims Act and thus claims related to their conduct are barred by sovereign immunity, the Third Circuit has ruled in a precedential opinion.

In the July 11 decision in Pellegrino v. TSA, the court noted that the screeners’ status was a question of first impression. The court affirmed a U.S. district court ruling in favor of the TSA, which dismissed pro se appellant Nadine Pellegrino’s claims over a security search gone awry at the Philadelphia International Airport.

Judge Cheryl Ann Krause of the U.S. Court of Appeals for the Third Circuit said in her opinion that the court had foreshadowed its decision in an earlier case, Vanderklok v. United States, where the court evaluated whether TSA screeners are law enforcement officers for purposes of a Bivens claim under the Fourth Amendment. But in Pellegrino, Krause said, the court took up the same issue in connection with the Tort Claims Act.

“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,” Krause wrote. “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.”

According to Krause’s opinion, the incident took place in 2006, when Pellegrino and her husband were planning to catch a flight to Florida from the Philadelphia airport. When a TSA screener began searching her bags, Pellegrino asked for a private search, the opinion said.

TSA screener Nuyriah Abdul-Malik did the private search, which Pellegrino has alleged was “unnecessarily rough and invasive,” and caused damage to some of her belongings. The interaction deteriorated, the opinion said, and when Pellegrino left the room, she allegedly struck Abdul-Malik with a bag.

The TSA screener pressed charges, and Pellegrino was charged with felony aggravated assault, possession of instruments of crime, reckless endangerment, simple assault and making terroristic threats, the court noted. At Pellegrino’s trial, however, Abdul-Malik, no longer a TSA employee, did not appear. So Pellegrino was found not guilty.

After the trial, in 2008, Pellegrino submitted a claim for $951,000 in damages to the TSA, which was denied. Then in 2009, she brought a civil rights action in the U.S. District Court for the Eastern District of Pennsylvania. The district court ruled in the government’s favor on all claims, except one property damage claim, which the parties settled.

In evaluating whether TSA screeners are investigative or law enforcement officers, Krause noted that district courts have come to different conclusions on the issue. But no circuit court has decided the question precedentially.

Judge Thomas Ambro wrote a dissenting opinion, in which he said the majority’s reasoning was not in line with what Congress intended in the Tort Claims Act.

“They equate airport screenings with routine administrative inspections, even though the former involve rigorous and thorough searches that often extend to an individual’s physical person,” Ambro wrote. “Their opinion leaves several plaintiffs without a remedy, even if a TSO assaults them, wrongfully detains them, or fabricates criminal charges against them.”

Called for comment, Pellegrino said, “The facts that are stated [in the opinion] are not the facts that are stated in our pleadings and our complaint.”

In a statement, U.S. Attorney William M. McSwain said he is pleased with the decision.

“Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases,” McSwain said. “The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”