Pellegrino v. U.S.A. Transportation Security Admin.—civil—reversal—Ambro

The en banc Third Circuit today held that TSA officers not immune from suit for intentional torts. The Federal Tort Claims Act waives federal sovereign immunity for specified intentional torts “investigative or law enforcement officers,” defined 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.” TSA screeners meet that definition, the court held, and “Words matter.”

The en banc court split 9 to 4. The majority: Chief Judge Smith and Judges Ambro, McKee, Chagares, Greenaway, Shwartz, Restrepo, Bibas, and Porter. The dissenters: Judges Jordan, Hardiman, Krause, and Scirica. (Judges Matey and Phipps joined the court after the oral argument and thus did not participate per circuit practice.) It’s a fascinating, ideologically fractured split sure to generate lots of conversation and tea-leaf reading by court watchers.

The panel decision had come out the other way, with Judges Krause and Scirica the majority and Judge Ambro dissenting.

Judge Krause dissented with gusto, describing the majority’s reading of the statute as “breathtaking”  and “textually unsound” and arguing that it creates a circuit split.

Arguing counsel were Paul Thompson of McDermott Will for the plaintiffs and Mark Sherer for the screeners and the government.