Tort/Negligence – FTCA – TSA Search – Inappropriate Touching Claim – Law Enforcement Proviso

While the Federal Tort Claims Act doesn’t generally waive sovereign immunity for assault and battery by a government employee, it does waive such immunity if the assault or battery arises out of “acts or omissions of investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 1346(b)(1) (the law enforcement proviso). Although the Transportation Security Administration did not exist when Congress enacted the FTCA and the law enforcement proviso, an assault or battery committed by a TSA agent during a pre-flight security screening falls within the FTCA’s waiver of sovereign immunity.

We reverse the district court’s dismissal of plaintiff’s claim.

Plaintiff alleges that, as she was passing through security at Asheville Regional Airport, a TSA screener forced her to spread her legs wider than necessary and fondled her genitals twice.

First, we note that plaintiff adequately objected to a magistrate judge’s recommendation. The district court faulted plaintiff for not “mak[ing] any specific objections” to the magistrate judge’s reasoning and “simply summariz[ing]” the arguments that “ha[d] been presented before.” But 28 U.S.C. § 636(b)(1) requires an “objection” rather than a freestanding brief or memorandum of law, and a party need not frame its arguments anew when it objects. Such a requirement would require litigants to walk a tightrope between refining their existing arguments just enough to preserve them for de novo review but not so much to risk having them considered forfeited because they were never presented to the magistrate judge in the first place. The statute creates no such trap.

We join the Third and Eighth Circuits in holding the FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.

Congress has defined “investigative or law enforcement officer” as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for the violation of Federal law.” 28 U.S.C. § 2680(h).

Millbrook v. United States, 569 U.S. 50 (2013), emphasized that “[t]he plain text” of the law enforcement proviso “confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority.” For that reason, the question is not whether the harm plaintiff alleges occurred in the course of executing a search, seizing evidence, or making an arrest. Instead, it is what the TSA screener had the legal authority to do.

49 U.S.C. § 44901 grants TSA the authority to screen aircraft passengers, and it defines such a screening to include a physical search. Accordingly, TSA screeners are empowered to execute searches within the meaning of the law enforcement proviso of the FTCA.

Reversed and remanded.

Osmon v. United States (Lawyers Weekly No. 001-051-23, 11 pp.) (Toby Heytens, J.) No. 22-2045. Appealed from USDC at Asheville, N.C. (Martini Reidinger, C.J.) Jonathan Corbett for appellant; Daniel Aguilar, Brian Boynton, Sharon Swingle and Dena King for appellee. United States Court of Appeals for the Fourth Circuit