In Three States You Can Now Sue If TSA Employees Intentionally Harm You

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.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. While I don’t share your intense dislike of the TSA, I’m glad to see some minimal safeguards enacted.

  2. I’m all for safety when flying, and I think that most Americans are likely to stop a “terrorist” if they are convinced that it is an act of terror about to occur or that is happening…personally, if a terrorist wants to ruin my vacation he better be REALLY BIG or have a really big gun because otherwise I’m going to beat him to death with my purse or anything in it! DON’T MESS WITH MY VACATION! LOL
    That said, I read about it constantly on these travel blogs where abuses occur and while most TSA screeners are good people and doing what must be an AWFUL job…I mean, sure if you’re patting down gorgeous models who are heading to fashion week, it might not be a bad job, but most of us don’t look like that, they’re inspecting a bunch of grumpy, tired, overworked people who are in a crappy mood because they’re having to go through security.
    Unfortunately, those good people have some over-the-top bullies they work with who likely bully their co-workers too so the good ones stay silent while abuses occur. EVERY government agency NEEDS to have checks and balances and there should always be redress for folks who’ve been wronged to file complaints.

  3. If enhanced searches mean groping, sorry but TSA will be on the ground and I ask for a citizens arrest.
    With the new xray machines 95% of the weapons that get thru on test basis should be caught now.
    Whenever I have time to watch TSA in action the majority of people getting extra pay down are the ages and kids in strollers. Just the exact opposite of the people more than likely to be a “terrorist”. Reading people’s body language and attitude is more beneficial. When was the last time El Al had any issues?

  4. TSA = THOUSANDS STANDING AROUND. I’m thankful TSA don’t carry guns. Many of them have a “bullish” attitude of power hunger, that “You’re mine now you little pretty” crap. TELL ME WHY if I pay $100 or $169 that I can skip 85% of the BS going through the scanner? Is this about safety or money? Well having said that, we all know that $afety begins with a “$”.

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