Airline passengers now have limited legal options in the event of TSA abuse due to a recent ruling by a federal appeals court that Transportation Security Administration officers—also known as screeners—who operate checkpoints at the nation’s airports cannot be sued over allegations of abuse.

TSA agents may face disciplinary action within the agency for misconduct, but they cannot be sued by passengers for incidents that occur during security checks. Although the Federal Tort Claims Act permits private parties to sue the United States in federal court when an offense is committed by someone acting on behalf of the United States, it was determined that TSA officers do not qualify.

Even though their titles indicate that they are “officers,” they are not “investigative or law enforcement officers” who can be held legally responsible for abuses under the Federal Tort Claims Act, the Third Circuit ruled on July 11 in a 2-1 decision.

The case, Pellegrino v. U.S. Transportation et al, centered on a 2006 encounter at the Philadelphia International Airport between TSA agents and a traveler named Nadine Pellegrino. TSA agents asked Pellegrino to step aside with her luggage for further checkpoint screening after passing through a metal detector. Pellegrino objected to the treatment of her and her luggage and asked for a private screening. She was then taken into an examination room.

Pellegrino objected to how TSA agents conducted this private screening and alleged that it was unnecessarily rough and invasive because the screening extended to such nebulous items as her credits cards, mobile phone, and even her lipstick.

After the screening was finished, Pellegrino was told she could leave. She began collecting her belongings and, according to TSA, she allegedly “knocked” two of the agents with her bags, a charge Pellegrino denies. This prompted the TSA agents to summon police to arrest Pellegrino and she was subsequently charged with 10 counts of felony aggravated assault, simple assault, making terroristic threats, and possession of instruments (possibly her lipstick) of a crime. She was eventually acquitted.

Pellegrino subsequently sued the TSA for false arrest and other claims in her case in federal court, citing $951,000 in damages and legal fees. The district court granted Pellegrino relief for property damage, but held that TSA agents could not be held individually liable for their conduct.

Seeming to anticipate the response to its decision deciding in favor of the TSA, the Third Circuit expressed sympathy to Pellegrino’s (and future passengers’) plights because its holding would leave fliers with limited recourse for alleged abuse or misconduct by TSA agents.

“[W]e are sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs’ [Transportation Security officers’] contact with the flying public,” the decision stated. “For most people, TSA screenings are an unavoidable feature of flying . . . and they may involve thorough searches of not only the belongings of passengers but also their physical persons—searches that are even more rigorous and intimate for individuals who happen to be selected for physical pat-downs after passing through a metal detector or imaging scanner.”

The decision went on to say that the court “recognize[s] that our holding here . . . means that individuals harmed by the intentional torts of TSOs will have very limited redress.”

In his dissent, Circuit Judge Thomas Ambro wrote “my colleagues preclude victims of TSA abuses from obtaining any meaningful remedy for a variety of intentional tort claims.” Ambro also noted that the majority’s opinion would bar passengers from brining legal claims even in the most extreme cases.

The Third Circuit also noted that when the TSA was created, the initial job description given to its employees at airport checkpoints was simply “screener.” This was later switched to “transportation security officer” only as some sort of morale booster, claims TSA. The court distinguished screeners from what it argued were actual law enforcement officers because they are given the power to, among many other things, execute arrests and carry firearms as part of their official duties.

“[W]e are persuaded that the phrase ‘investigative or law enforcement officers’ refers only to criminal law enforcement officers, not to federal employees who conduct only administrative searches” the opinion says. And, again, the court acknowledged that its holding means passengers “will have very limited legal redress.”

The ramifications of this opinion are potentially devastating to airline passengers, and there have been no shortage of complaints against TSA agents since the creation of the agency in the wake of the September 11, 2001 terrorist attacks.

Individuals who believe they have had their civil rights violated in any way should contact a federal attorney for assistance in handling the matter.

Tyler K. Patterson, Esq. is an Associate in Tully Rinckey PLLC’s Binghamton office, where he focuses his practice civil rights law and appellate law.