Pellegrino v. TSA — civil — affirmance — Krause

Deciding an issue of first impression, the Third Circuit today held that the federal government is immune from suit for intentional torts committed by TSA airport security screeners.

The Federal Tort Claims Act confers sovereign immunity to the government for intentional torts by federal employees, subject to an exception for “investigative or law enforcement officers.” The core issue in today’s appeal was whether TSA screeners fall within the exception. The panel majority held that they do not, interpreting the exception to apply only to officers with criminal law enforcement powers.

Judge Ambro dissented in an opinion that ran 58 pages. Here is the heart of it, from his conclusion (cites omitted):

The[ two judges in the majority] look to other statutes for clarification, consult various canons of construction, and also examine legislative history. Ultimately they conclude § 2680(h) covers only criminal law enforcement officers. In doing so, they depart from other Circuits’ interpretation of the proviso. They also disregard Supreme Court precedent that tells us how to interpret § 2680(h)’s language. Their decision insulates TSOs from all intentional tort claims, leaving plaintiffs without a civil remedy. Absent congressional action, they cannot recover if a TSO assaults them, unlawfully detains them, or unlawfully lodges a criminal complaint against them. All of this is because my colleagues look through a lens that legislates “criminal” into a provision it nowhere appears.

This is not what Congress intended, as it enacted § 2680(h) to serve as a broad remedy against tortious conduct. It also ignores Congress’s definition of “investigative or law enforcement officer,” which we must apply “even if it varies from that term’s ordinary meaning.”

In view of these principles, I disagree with my colleagues’ reasoning. Instead of relying on non-textual sources, we must apply § 2680(h)’s plain language; other statutes, the canons, and legislative history (i.e., authorities outside of the proviso) cannot defeat its words. Because the text tells the tale, I part with today’s holding.

In a footnote, the majority responds to Judge Ambro’s assertion that the statute’s text is unambiguous with, “Would it were so.”

Both opinions are exceptionally good, and it’s inspiring to see such high-caliber work devoted to an appeal that easily could have been (and originally was on track to be, it appears) disposed of as a routine pro se appeal without argument or counsel on both sides.

Joining Krause was Scirica, with Ambro dissenting. Arguing counsel were Mark Sherer for the government and former Smith clerk Paul Thompson of McDermott Will as court-appointed amicus curiae on behalf of the pro se trial plaintiffs. The court thanked Thompson for accepting the case pro bono and for the quality of his briefing and argument.