Pellegrino v. United States of America Transportation Security Administration, 083019 FED3, 15-3047

Docket Nº:15-3047
Opinion Judge:AMBRO, CIRCUIT JUDGE
Party Name:NADINE PELLEGRINO; HARRY WALDMAN, Appellants v. UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION, Div. of Dept. of Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK, Sued in her individual capacity; TSA TSO DENICE KISSINGER, Sued in her individual capacity; JOHN/JANE DOE TSA Aviations Security Inspector Defendants sued in their...
Attorney:Paul M. Thompson (Argued) Sarah Hogarth McDermott Will & Emery Matthew L. Knowles McDermott Will & Emery Counsel for Appellants Mark J. Sherer (Argued) Office of the United States Attorney Counsel for Appellees Jonathan H. Feinberg David Rudovsky Kairys Rudovsky Messing & Feinberg Hugh Handeyside...
Judge Panel:Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER and SCIRICA, Circuit Judges KRAUSE, Circuit Judge, dissenting, joined by JORDAN, HARDIMAN, and SCIRICA, Circuit Judges.
Case Date:August 30, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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NADINE PELLEGRINO; HARRY WALDMAN, Appellants

v.

UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION, Div. of Dept. of Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK, Sued in her individual capacity; TSA TSO DENICE KISSINGER, Sued in her individual capacity; JOHN/JANE DOE TSA Aviations Security Inspector Defendants sued in their individual capacities; JOHN/JANE DOE TSA, Official Defendants, sued in their individual capacities

No. 15-3047

United States Court of Appeals, Third Circuit

August 30, 2019

Argued before original panel on October 3, 2017

Petition for Rehearing En Banc granted on October 3, 2018

Argued En Banc on February 20, 2019

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-09-cv-05505) District Judge: Honorable J. Curtis Joyner

Paul M. Thompson (Argued) Sarah Hogarth McDermott Will & Emery Matthew L. Knowles McDermott Will & Emery Counsel for Appellants

Mark J. Sherer (Argued) Office of the United States Attorney Counsel for Appellees

Jonathan H. Feinberg David Rudovsky Kairys Rudovsky Messing & Feinberg Hugh Handeyside Hina Shamsi Counsel for Amicus Appellants

American Civil Liberties Union; American Civil Liberties Union of Pennsylvania; Cato Institute; Rutherford Institute. Mahesha P. Subbaraman Counsel for Amicus Appellants Freedom to Travel USA; Restore the Fourth Inc.

Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER and SCIRICA, Circuit Judges

OPINION

AMBRO, CIRCUIT JUDGE

The Federal Government is typically immune from suit. The Federal Tort Claims Act waives the Government's immunity for certain torts committed by its employees. 28 U.S.C. § 2680(h) does so for specific intentional torts committed by "investigative or law enforcement officers," which it defines as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." If a federal official fits this definition, plaintiffs may sue for certain intentional torts.

Nadine Pellegrino relies on § 2680(h), which we also refer to as the "proviso," to recover against Transportation Security Officers (TSOs) at the Philadelphia International Airport who allegedly detained her, damaged her property, and fabricated charges against her. The District Court dismissed her case on the ground that TSOs are not "officer[s] of the United States" who "execute searches . . . for violations of Federal law." The underlying theme was that the subsection's waiver of immunity covers only criminal law enforcement officers, and TSOs, though nominally officers, are nothing more than screeners who perform routine, administrative inspections of passengers and property on commercial aircraft.

We disagree. The words of the proviso dictate the result here. Because TSOs are "officer[s] of the United States" empowered to "execute searches" for "violations of Federal law," Pellegrino's lawsuit may proceed.

Background

A. Factual Background

Pellegrino and her husband arrived at the Philadelphia International Airport to board a flight home to Florida. This meant passing through the security checkpoint maintained by the Transportation Security Administration (TSA) with TSOs. Congress created the TSA after the terrorist attacks of September 11, 2001, with the enactment of the Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001). Under that Act, TSOs perform screenings at TSA checkpoints in airports in the United States. See 49 U.S.C. § 44901(a).

As Pellegrino passed through the security checkpoint, she was randomly selected for additional screening. A TSO began examining her bags, but she stopped him and requested a more discreet screening. In a private room, several TSOs combed through Pellegrino's luggage, papers, and other effects. One allegedly counted her coins and currency, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO also spilled the contents of several containers and was so rough with her belongings that her jewelry and eyeglasses were damaged. Frustrated, she told the TSOs that she would report their conduct to a supervisor.

The screening ended, but the TSOs' alleged torment did not. Pellegrino was left to clean up the mess created by the search, a task that took several trips to and from the screening room. As she was repacking her first bag, one of the TSOs claimed that Pellegrino struck her with it. On a trip to retrieve another bag, another TSO allegedly blocked Pellegrino's access to it, forcing her to crawl under a table to reach it. When she did so, the table tipped over, and the TSO claimed Pellegrino struck her in the leg while she was collecting the bag. Pellegrino denies striking either TSO and alleges she heard both say to one another, "[Y]ou saw her hit me, didn't you?"

As a result of the TSOs' allegations, the Philadelphia District Attorney's Office charged Pellegrino with ten crimes, including aggravated assault, possession of an instrument of a crime (her luggage), and making terroristic threats. At a preliminary hearing, the presiding judge dismissed many of the charges and the District Attorney abandoned others. The remaining charges came to naught when the TSA failed to produce surveillance video from the incident, one TSO failed to appear in court, and another TSO's testimony was self-contradictory on key points.

B. Procedural History

After her ordeal at the airport and victory in the courtroom, Pellegrino and her husband brought numerous constitutional and statutory claims (including under the Administrative Procedure Act and the Freedom of Information Act) against the TSA and several TSOs. The District Court winnowed them down to claims for property damage, false arrest, false imprisonment, and malicious prosecution under the Tort Claims Act and implied rights of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for malicious prosecution in violation of the First and Fourth Amendments. The claim for property damage settled, and the Court granted summary judgment on the Bivens claims.

As for the claims under the Tort Claims Act for false arrest, false imprisonment, and malicious prosecution, the Court granted summary judgment for the defendants on the ground that TSOs are not "investigative or law enforcement officer[s]" whose intentional torts expose the United States to liability. See Pellegrino v. U.S. Transp. Sec. Admin., No. 09-cv-5505, 2014 WL 1489939, at *7 (E.D. Pa. Apr. 16, 2014). In particular, the Court stated that it was "ambiguous" whether TSOs perform the requisite "searches . . . for violations of Federal law," id. at *5, and turned to the legislative history of the proviso at 28 U.S.C. § 2680(h) to rule in favor of the Government, id. at *6-7.

On appeal we appointed amicus counsel to argue Pellegrino's side on, inter alia, the Tort Claims Act issue. A divided panel of our Court affirmed the District Court in full (including as to summary judgment on the non-Tort Claims Act claims). See Pellegrino v. U.S. Transp. Sec. Admin., 896 F.3d 207, 209 (3d Cir. 2018). We then granted rehearing en banc to consider whether TSOs are "investigative or law enforcement officer[s]" as defined in the Tort Claims Act.

Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 1346(b) and 1331. We have jurisdiction per 28 U.S.C. § 1291, and we review anew the District Court's interpretation of the Tort Claims Act. See Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013).

Analysis

As noted, the United States enjoys baseline immunity from suit. See Millbrook v. United States, 569 U.S. 50, 51-52 (2013). Congress has overridden this rule with the Tort Claims Act's general waiver of immunity for injuries "caused by . . . any employee of the Government." See 28 U.S.C. § 1346(b)(1). The waiver of immunity does not extend to several circumstances noted in 28 U.S.C. § 2680, including the subsection pertinent here; hence the Government's immunity is reclaimed as to eleven intentional torts laid out in the so-called intentional-tort exception at § 2680(h). Those eleven are "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, [and] interference with contract rights." Id. § 2680(h).

But even the intentional-tort exception has its limits. Under the proviso, the exception does not apply to (and thus the United States may still be sued for) six of the eleven torts - "assault, battery, false imprisonment...

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