PRECEDENTIAL - ca3.uscourts.gov

1 PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____ No. 15-3047 _____ NADINE PELLEGRINO; HARRY WALDMAN, Appellants v. UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION, Div. of Dept. of Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK, Sued in her individual capacity; TSA STSO LAURA LABBEE, Sued in her individual capacity; TSA TSO DENICE KISSINGER, Sued in her individual capacity; JOHN/JANE DOE TSA Aviations Security Inspector defendants sued in their individual capacities; JOHN/JANE DOE TSA, Official Defendants, sued in their individual capacities _____ On Appeal from the United States District Court for the Eastern District of Pennsylvania ( Pa.)

2 Civ. No. 2-09-cv-05505) District Judge: Honorable J. Curtis Joyner _____ 2 Argued: October 3, 2017 Before: AMBRO, KRAUSE and SCIRICA, Circuit Judges (Opinion filed: july 11, 2018) Nadine Pellegrino and Harry Waldman Unit 1205 South 550 South Ocean Boulevard Boca Raton, FL 33432 Pro Se Appellants Mark J. Sherer, Esq. (Argued) Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellees Paul M. Thompson, Esq. (Argued) Sarah P. Hogarth, Esq. McDermott Will & Emery 500 North Capitol Street, Washington, DC 20001 Matthew L.

3 Knowles, Esq. McDermott Will & Emery 28 State Street 33rd Floor Boston, MA 02109 Court Appointed Amicus Curiae 3 _____ OPINION OF THE COURT _____ KRAUSE, Circuit Judge. In Vanderklok v. United States, 868 189 (3d Cir. 2017), we declined to imply a Bivens cause of action against airport screeners employed by the Transportation Security Administration (TSA) in part because they typically are not law enforcement officers and do not act as such. Id. at 208. We now must decide a related question that we anticipated, but did not resolve, in Vanderklok: whether TSA screeners are investigative or law enforcement officers under the Federal Tort Claims Act (FTCA).

4 This question, one of first impression among the Courts of Appeals, arises because Appellant Nadine Pellegrino has asserted intentional tort claims against TSA screeners. Although under the FTCA the United States generally enjoys sovereign immunity for intentional torts committed by federal employees, this rule is subject to an exception known as the law enforcement proviso, which waives immunity for a subset of intentional torts committed by employees who qualify as investigative or law enforcement officers. 28 2680(h).

5 Pellegrino s claims may proceed only if TSA screeners fall into this category. Based on our review of the statute s text, purpose, and legislative history, as well as precedent from this Court and other Courts of Appeals, we now reach the conclusion that we foreshadowed in Vanderklok and hold that TSA screeners are not investigative or law enforcement officers under the law 4 enforcement proviso. Pellegrino s claims are therefore barred by the Government s sovereign immunity, and we will affirm the District Court s judgment dismissing this action. I. Facts and Procedural History A.

6 Airport Security and Screeners To place what follows in proper context, we briefly describe the structure of the TSA and the screeners place within that structure. Congress created the TSA in the aftermath of the terrorist attacks of September 11, 2001, with the enactment of the Aviation and Transportation Security Act (ATSA), Pub. L. No. 107-71, 115 Stat. 597 (2001). The head of the TSA is the Under Secretary of Transportation for Security, 49 114(b), who is responsible for security in all modes of transportation, including civil aviation, id.

7 114(d). Pertinent here is the Under Secretary s responsibility to provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. Id. 44901(a). With exceptions not relevant here, this screening is required to be performed by a Federal Government employee. Id. These employees were referred to as screeners at the time of the ATSA s enactment but were reclassified as Transportation Security Officers (TSOs) in 2005 as part of an effort to improve morale and combat employee-retention problems.

8 The Transportation Security Administration s Airline Passenger and Baggage Screening: Hearing Before the S. Comm. on Commerce, Sci., & Transp., 5 109th Cong. 7 (2006) [hereinafter Screening Hearing] (statement of Edmund Kip Hawley, Assistant Secretary, Transportation Security Administration).1 In 2016, the TSA screened more than 2 million passengers per day. See Bob Burns, TSA Year in Review, Transp. Sec. Admin. (Jan. 12, 2017), TSOs form just one part of the airport-security apparatus. The Under Secretary may also designate employees to serve as law enforcement officer[s].

9 49 114(p)(1). An employee so designated may carry a firearm, make arrests, and seek and execute warrants for arrest or seizure of evidence. Id. 114(p)(2). The Under Secretary is required to deploy law enforcement personnel at each screening location; typically, at least one such law enforcement officer must be at each location. Id. 44901(h)(1) (2). Screening locations are thus staffed by both TSOs and law enforcement officers. B. Factual Background2 In 2006, Pellegrino and her husband, Harry Waldman, arrived at the Philadelphia International Airport, where they planned to catch a flight home to Florida.

10 Pellegrino brought 1 Throughout this opinion, we will use the terms TSO and TSA screener without distinction. 2 Because the District Court granted summary judgment in the defendants favor, we view the facts in the light most favorable to Pellegrino. See, , Moody v. Atl. City Bd. of Educ., 870 206, 210 (3d Cir. 2017). 6 three bags to the security checkpoint: a rolling tote, a larger rolling bag that would fit in the overhead compartment of the airplane, and a small black canvas bag. After Pellegrino passed through a metal detector, a TSO directed her to step aside for further screening.