By Jonathan Stempel
(Reuters) – Fliers may have a tough time recovering damages for invasive screenings at U.S. airport security checkpoints, after a federal appeals court on Wednesday said screeners are immune from claims under a federal law governing assaults, false arrests and other abuses.
In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA).
The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which adds to the ordinary stresses of air travel.
“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.
The FTCA generally affords the government sovereign immunity when employees commit intentional torts, a type of civil wrong.
Wednesday’s decision was the first by a federal appeals court on whether a waiver of immunity for investigative and law enforcement officers extended to screeners.
It was a defeat for Nadine Pellegrino, a business consultant from Boca Raton, Florida. She and her husband had sued for false arrest, false imprisonment and malicious prosecution over a July 2006 altercation at Philadelphia International Airport.
Pellegrino, who represented herself, said she was reviewing the decision.
U.S. Attorney William McSwain in Philadelphia, whose office defended TSA screeners, said the decision reflected Congress’ desire to balance the government’s sovereign immunity and “duty to protect taxpayer dollars” against the need to provide remedies for some plaintiffs.
The 3rd Circuit hears appeals from Delaware, New Jersey and Pennsylvania.
According to court papers, Pellegrino had been randomly selected for additional screening at the Philadelphia airport before boarding a US Airways flight to Fort Lauderdale, Florida.
Pellegrino, then 57, objected to the invasiveness of the screening, but conditions deteriorated and she was eventually jailed for about 18 hours and criminally charged, the papers show. She was acquitted at a March 2008 trial.
Circuit Judge Thomas Ambro dissented from Wednesday’s decision, faulting the majority for barring victims of TSA abuses from recoveries “by analogizing TSA searches to routine administrative inspections.”
Last August, the same court threw out a First Amendment claim by an architect, Roger Vanderklok, who said he was arrested in retaliation for asking to file a complaint against an ill-tempered TSA supervisor.
The case is Pellegrino et al v U.S. Transportation Security Administration et al, 3rd U.S. Circuit Court of Appeals, No. 15-3047.
(Reporting by Jonathan Stempel in New York; Editing by David Gregorio)