Nadine Pellegrino v. TSA

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 (E.D. Pa. Civ. No. 2-09-cv-05505) District Judge: Honorable J. Curtis Joyner ____________________________________ 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, N.W. Washington, DC 20001 Matthew L. Knowles, Esq. McDermott Will & Emery 28 State Street 33rd Floor Boston, MA 02109 Court Appointed Amicus Curiae 2 ___________ OPINION OF THE COURT ___________ KRAUSE, Circuit Judge. In Vanderklok v. United States, 868 F.3d 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). 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 U.S.C. § 2680(h). 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 3 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. 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 ...

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