The TSA has largely succeeded in arguing that lawsuits for violations of constitutional rights aren’t allowed, courts are reluctant to extend the Bivens precedent into new contexts especially where the government provides another “process for protecting the interest” of the individual. That leaves the Federal Tort Claims Act as the only avenue of redress.
The Federal Tort Claims Act spells out the limited circumstances in which an individual can sue for harms caused by employees of the federal government (that is, where the doctrine of sovereign immunity does not apply).
The federal Third Circuit Court of Appeals has ruled that lawsuits are permitted for abusive searches under the Federal Tort Claims Act. An en banc panel of the court decided 9-4 that TSA security checkpoint employees are “officers or employees” of the federal government and that they “execute searches.” The TSA for its part claims not to search passengers, only to ‘screen’ them.
The ruling in Pellegrino v. TSA means that when a TSA checkpoint employee intentionally engages in “assault, battery, false imprisonment, false arrest, [and] malicious prosecution” that a suit may proceed. However the ruling only allows for such lawsuits in three states.
The Third Circuit covers Delaware, New Jersey, and Pennsylvania (as well as the U.S. Virgin Islands). Of course there’s no longer commercial air service in Wilmington, Delaware so the issue for that state is largely moot.
While this sort of abuse of power doesn’t happen regularly, I’ve written about a case for instance where a TSA screener intentionally hit a passenger in the groin. The third circuit ruled that in a case like that the passenger can sue, provided it occurred within that court’s jurisdiction.
The TSA disagreed, arguing in effect that its screeners can hit passengers in the groin with impunity and lawsuits shouldn’t be permitted. The decision in Pellegrino overturned a three judge panel of the same court which ruled for the TSA last summer.