MICHELE LEUTHAUSER V. USA, ET AL, No. 22-15402 (9th Cir. 2023)
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Plaintiff alleged that a Transportation Security Officer (“TSO”) sexually assaulted her during an airport security screening. At issue is whether Plaintiff may bring claims for battery and intentional infliction of emotional distress against the United States under the Federal Tort Claims Act (“FTCA”).
The Ninth Circuit reversed the district court’s summary judgment in favor of the United States. The panel held that TSOs fall under the FTCA’s “law enforcement proviso,” which waives sovereign immunity for torts such as assault and battery committed by “investigative or law enforcement officers of the United States Government.” 28 U.S.C. Section 2680(h). The panel joined the Third, Fourth, and Eighth Circuits in holding that the FTCA’s limited waiver of sovereign immunity applies to certain intentional torts committed by TSOs. The district court, therefore, had subject matter jurisdiction over Plaintiff’s FTCA claims.
The panel considered whether, as officers of the United States, TSOs are “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. Section 2680(h). The government argued that TSOs do not “execute searches” by conducting screenings. The panel held that the screenings fit the ordinary, contemporary, and common meanings of searches.
Court Description: Federal Tort Claims Act The panel reversed the district court’s summary judgment in favor of the United States in a Federal Tort Claims Act (“FTCA”) action brought by Michele Leuthauser, alleging that a Transportation Security Officer (“TSO”) sexually assaulted her during an airport security screening.
Plaintiff alleged claims for battery and intentional infliction of emotional distress.
The panel held that TSOs fall under the FTCA’s “law enforcement proviso,” which waives sovereign immunity for torts such as assault and battery committed by “investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 2680(h). The panel joined the Third, Fourth, and Eighth Circuits in holding that the FTCA’s limited waiver of sovereign immunity applies to certain intentional torts committed by TSOs. The district court therefore had subject matter jurisdiction over plaintiff’s FTCA claims.
First, the panel addressed whether a TSO fits the statutory definition of “any officer of the United States.” 28 U.S.C. § 2680(h). The panel held that a TSO easily satisfies dictionary definitions of officer at the time of the proviso’s enactment in 1974. That TSOs are titled, uniformed, and badged as “officers” reinforces the conclusion that they are “officers of the United States” as understood in ordinary parlance. The panel rejected the government’s contention that the proviso is limited to officers with traditional police powers. While the TSA Administrator did not designate TSO Anita Serrano as a “law enforcement officer” under the Aviation Security Act, this did not preclude her from qualifying as an “officer of the United States” under the FTCA. The panel also rejected the government’s contention that TSOs are not officers partly because the Airport Transportation Security Act refers to them as “employees,” where the Act defines employees to include officers.
Next, the panel considered whether, as officers of the United States, TSOs are “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). The government argued that TSOs do not “execute searches” by conducting screenings. The panel held that the screenings fit the ordinary, contemporary, and common meaning of searches. Further, given the intrusion involved in TSA screenings, caselaw explicitly recognizes them as searches under the Fourth Amendment. Having established that TSOs execute searches, the panel turned to whether they do so for violations of Federal law. The panel held that TSOs are empowered by law to execute searches for violations of Federal law based on the statutory test’s plain meaning, as supported by caselaw and the TSA’s statutory and regulatory framework. The panel rejected the government’s contention that the proviso applies only to searches executed for criminal investigations.
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