Traveler with a bag on the speedwalk
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Officers of the Transportation Security Administration aren’t immune to Bivens actions, a federal judge has ruled in a case arising from the contentious search of a woman’s baggage at the Philadelphia airport.

Although U.S. District Judge J. Curtis Joyner of the Eastern District of Pennsylvania decided that the TSA officers who screen and inspect baggage at airports would be covered by sovereign immunity under the Federal Tort Claims Act, he held that his dismissal of the FTCA claims wouldn’t bar the similar Bivens claims brought by the plaintiffs.

So named for the 1971 U.S. Supreme Court case of Bivens v. Six Unknown Named Agents, Bivens actions allow plaintiffs to sue federal agents for alleged constitutional violations.

The government had argued that the court’s finding on the FTCA claims would bar the plaintiffs’ similar Bivens claims. It cited to the section of the U.S. Code that says a judgment on one claim against a government employee can bar a claim based on the same circumstance.

“Some courts—though not the Third Circuit—have held that a judgment on FTCA claims extinguishes Bivens claims brought in the same lawsuit,” Joyner said, citing to the Sixth, Seventh and Tenth circuits.

The judge, though, distinguished between a judgment on the merits under the FTCA and a finding that the court lacks jurisdiction to hear claims under the FTCA, as was the case in this suit since he had found that the TSA officers were covered by sovereign immunity under the FTCA.

“The present circumstances warrant a holding that plaintiff’s Bivens claims are not precluded. Here, the court determined that it lacks jurisdiction over plaintiff’s FTCA claims; it has not entered judgment that plaintiff has failed to adduce sufficient evidence to present those claims at trial or entered judgment following a jury verdict. Indeed, subject-matter jurisdiction is an element without which a court is powerless to proceed, and without which it is unable to enter a judgment on the merits,” Joyner said.

The judge followed the reasoning of the U.S. Court of Appeals for the Second Circuit in its 2004 opinion in Hallock v. Bonner, which held that claims dismissed due to sovereign immunity under the FTCA doesn’t constitute a judgment that would trigger the judgment bar.

The U.S. Supreme Court has explained that the intent of the judgment bar is to avoid duplicative litigation, Joyner said, citing the high court’s 2006 opinion in Will v. Hallock.

“In this case, there is no possibility of duplicative litigation given the court’s lack of jurisdiction over the FTCA claims, nor is there any possibility of dual recovery by Pellegrino,” Joyner said. He referred to Nadine Pellegrino, who brought the suit after she had been the subject of an inspection at the Philadelphia airport that became increasingly combative as it went on. Directly following the incident, Pellegrino was charged with 10 criminal violations, including making terroristic threats, and she was found not guilty by a jury. She then filed these various claims against the TSA and its officers.

Regarding her FTCA claims, Joyner said that he would first have to interpret the act’s definition of a law enforcement officer, since the government has waived its sovereign immunity in cases brought against “investigative or law enforcement officers of the United States government.” The parameters of that provision, and who is included in it, are unclear, he said.

“The analysis of the legislative history by the Fifth and Fourth circuits strongly suggests that the law enforcement proviso 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,” Joyner said.

Therefore, they are covered by sovereign immunity.

However, that immunity doesn’t carry over to the Bivens claims, the judge ruled.

“Though cognizant of the fact that it stands against decisions made by courts in other circuits, the court holds that its dismissal of plaintiff’s FTCA claims for lack of jurisdiction does not require dismissal under 28 U.S.C. § 2676 of plaintiff’s Bivens claims,” Joyner said, referring to the bar articulated in the U.S. Code.

The Seventh, Ninth and Tenth circuits have held that dismissal of FTCA claims, even those not made on the merits, would trigger the bar, he said in a footnote.

“The critical nature of the work performed by TSOs does not persuade the court to wholly preclude Bivens liability against them,” Joyner said.

“It is true that cases implicating national security concerns have traditionally evoked judicial caution … and ‘there can be no doubt that preventing terrorist attacks on airplanes is of paramount importance,’” he said, quoting from the Third Circuit’s 2006 opinion in United States v. Hartwell.

“Yet the right of a person being screened at an airport to be free of retaliatory actions for speaking out is not diminished by the heightened security interest at airport checkpoints,” Joyner said.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 42-page opinion in Pellegrino v. TSA, PICS No. 14-0571, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)