Please ensure Javascript is enabled for purposes of website accessibility

Assault suit against TSA screener revived 

BridgeTower Media Newswires//July 7, 2023//

Assault suit against TSA screener revived 

BridgeTower Media Newswires//July 7, 2023//

Listen to this article

By Nick Hurston 

The Federal Tort Claims Act, or FTCA, allows people who claim they were assaulted by Transportation Security Administration, or TSA, screeners to sue the federal government, the 4th U.S. Circuit Court of Appeals has held in an issue of first impression. 

Joining with other U.S. Circuit Courts of Appeals, U.S. Circuit Judge Toby J. Heytens said the FTCA permitted a claim like the plaintiff’s and reversed the district court’s dismissal of her case. 

The appeal came down to a single controlling question: Are TSA screeners “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law?” 

Heytens said the answer is yes. 

“Congress has granted TSA the authority to ‘screen[] … all passengers and property … that will be carried aboard a passenger aircraft,’ and it has defined such ‘screening’ (at least in the context of cargo) as including a ‘physical examination’ or a ‘physical search,’” the judge explained. “What is more, federal regulations require an ‘aircraft operator’ to ‘refuse to transport’ any person ‘who does not consent to a search or inspection of his or her person’ by TSA screeners.” 

U.S. Circuit Judge Stephanie D. Thacker and U.S. District Judge Joseph Dawson III, sitting by designation from the District of South Carolina, joined Heytens in Osmon v. United States, (VLW 023-2-108). 

‘Groin search’ 

When Erin Osmon passed through a TSA security checkpoint at Asheville Regional Airport, a screener told her the body scanner “alarmed on her” and she needed to submit to a groin search. 

Per the opinion, Osmon claimed the TSA screener forced her to spread her legs wider than necessary and fondled her genitals twice during the search.  

Osmon sued the federal government for battery under the FTCA in the Western District of North Carolina. 

A magistrate judge recommended the district court dismiss the suit. It was accompanied by a detailed memorandum about whether the FTCA waived sovereign immunity for Osmon’s claim. Osmon responded with a two-and-a-half page “Objection to Memorandum and Recommendation.” 

Chief District Judge Martin K. Reidinger adopted the recommendation, saying “the Magistrate Judge’s proposed conclusions of law are correct and are consistent with current case law.” De novo review was unnecessary because Osmon failed to object with sufficient specificity, Reidinger held. 

‘Modest bar’ 

According to the Federal Magistrate’s Act, district courts are required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” Heytens noted. 

“[A] party wishing to avail itself of its right to de novo review must be ‘sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute,’” the judge wrote. “Osmon easily cleared that modest bar.” 

Here, Osmon responded to the magistrate judge’s recommendation with a written objection that framed a “‘pure question of law,’ the resolution of which controlled the outcome of a single dispositive motion,” Heytens said. 

In her objection, Osmon identified areas of agreement, summarized the competing positions and cited cases from other circuits. Where those circuits agreed with the government’s view, they did so for different reasons than the magistrate judge recommended, she pointed out. 

“There was, in short, no doubt about ‘the true ground for [Osmon’s] objection’ to the magistrate judge’s recommendation,” Heytens wrote, adding that the district court erred by finding that Osmon merely summarized arguments and didn’t specifically object to the magistrate judge’s reasoning. 

In fact, Osmon needed only to object to the magistrate’s recommendation rather than file a brief or memorandum of law and she didn’t need to frame her arguments anew.   

“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,” Heytens explained. 

TSA authority 

The FTCA contains a “law enforcement proviso” that allows claims for “assault” or “battery” arising out of “acts or omissions of investigative or law enforcement officers of the United States Government.” 

Heytens said the government’s discussion about whether TSA screeners are “law enforcement officers” generally missed the mark.  

“Congress has defined ‘investigative or law enforcement officer’ as ‘mean[ing] any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,’” the judge wrote. 

The government didn’t challenge the magistrate judge’s conclusion that TSA screeners are “officers of the United States” within the meaning of the law enforcement proviso.  

“This means the only appellate decision favoring the government’s position — an unpublished and unsigned decision issued without oral argument — rested on grounds the government no longer advances,” Heytens noted. 

Also, the Virginia Supreme Court has “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 a particular exercise of that authority,’” Heytens said. 

As such, Osmon’s appeal came down to whether TSA screeners were “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”  

Heytens said the answer was yes. 

“Because the law enforcement proviso ‘speaks in the disjunctive,’ TSA screeners need be empowered only to do one of the three listed things — that is, execute searches, seize evidence, or make arrests,” he said. 

The government contended that the language only covered searches that were criminal and investigatory, unlike an “administrative search” which takes the form of an “inspection” or “screening.”  

Heytens pointed to a flaw in the argument — the word “criminal” appears nowhere in the law enforcement proviso. 

“Here, as elsewhere, we ‘may not narrow a provision’s reach by inserting words Congress chose to omit,’” Heytens said. 

Similarly, the proviso didn’t imply police powers in criminal investigations. 

“True, the words ‘make arrests’ are limited to the criminal context, and ‘seiz[ing] evidence’ is often — and likely most often — used in that context,” Heytens said. “But government officials investigate plenty of violations of law that are civil, not criminal, in nature, and there is nothing linguistically strange about using the words ‘seize evidence’ in that context.” 

Nor was the judge persuaded by the government’s focus on the word “execute.” 

“[T]his statute — unlike all the others referenced in the opinion the government relies on for this point — does not contain the word ‘warrant,’” Heytens said. “Nor is this a trivial distinction, because the ability to execute a search does not necessarily imply power to execute a search warrant.” 

Heytens acknowledged that the law enforcement proviso was added to the FTCA more than 40 years ago, and that it didn’t contemplate people working for an agency created more than 25 years after that.  

“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth,” the judge concluded, citing Pennsylvania Dep’t of Corr. v. Yeskey. “Because the words of this statute cover the claim Osmon brought, we reverse the district court’s judgment and remand for further proceedings.”

Top Legal News

See All Top Legal News


See All Commentary