[00:00:00] Speaker 02:
23-5100 Mengert versus United States.

[00:00:03] Speaker 02:
This is Mr. Corbett.

[00:00:06] Speaker 04:
You may proceed.

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Jonathan Corbett for Appellant Rhonda Menger may please the court as background, largely for the audience.

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This case is about whether TSA officers may be held viable for an illegal strip search via the Federal Tort Claims Act.

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But to be clear, some of the government's arguments is that there is no recourse to the courts under any theory when there's check point appeals.

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And if that sounds wrong, it's because there is, because it is wrong.

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There were four issues presented to the court.

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I will try and touch them all unless the court expresses an interest in focusing in one area.

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The first is whether or not the Federal Tort Claims Act TSA officers are covered.

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There's a law enforcement proviso that says that intentional torts are only covered from investigative or law enforcement officers.

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I argued this position in front of the 4th Circuit and the 9th Circuit last year and both of those panels unanimously held that TSA officers are investigative or law enforcement officers.

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The 8th Circuit and 3rd Circuit both held the same in 2020 and 2019 respectively, 3rd Circuit and Banque.

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There was quite a robust dissent in the Third Circuit case.

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What's wrong with it?

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There was.

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So this is an issue that has divided lower courts and the Third Circuit, but not the ones after that so much.

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The government's argument is essentially that we need to read a whole lot of context into a very narrow definition that says federal officers who are powered by federal law to execute searches, conduct seizures, and make arrests.

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And they want to take the context of this whole statute and a bunch of things from outside the statute and say that Congress must have met criminal searches only.

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And that's just not supported by the plain text of the statute.

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There's been no binding authority in any circuit to the contrary.

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And the government here is essentially trying to use its 13 bytes of the apple to create a circuit split.

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We're now on court number five.

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And that's not a particularly fair way to litigate.

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They've never petitioned for certiorari on this issue.

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They're waiting until a court finally agrees with them and creates that.

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They want to give you a shot at the Supreme Court.

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You know, I can't complain that much.

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If I lose this case, we end up in the Supreme Court.

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It would be my first time and an honor.

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But unfortunately, I'm here for a client who's a woman who was taken into a back room and told that she needs to lower her pants and underwear so that the TSA could get a good look at her.

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And TSA's

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own rules state unambiguously that they're not allowed to do that under any circumstances.

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What legal way do we give to the TSA's internal rules to that effect?

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I'm not sure about that question, about the answer to that.

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Well, the question would be under a false arrest warrant, whether they were empowered by law, whether they had lawful authority.

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The internal regulations aren't law.

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Those are simply

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That's the guidance, so we just don't know where it fits in.

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Certainly, but there's no statutory authority, there's no federal rules, there's no regulations, and there's also no constitutional authority.

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So these searches TSA does are administrative searches that are allowed to make a very narrow search in the general public without a warrant.

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And no court has ever held that an administrative search can go as far as a strip search.

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These are supposed to be unobtrusive.

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But how do we rule in your favor and not draw every type of administrative search into the ambit of this proviso?

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I think that the largest difference here is that TSA physically has its hands on members of the public and inside of the bags of members of the public in a way that's likely to put them in a position where intentional torts will happen eventually.

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There are two million passengers every day who go through these screenings.

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And every once in a while, something goes wrong.

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But that argument is it's probably not going to happen, but it's not that the statute, it's not linked to the statutory text, right?

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There's nothing in the text that talks about hands-on.

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It's just searches.

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I agree that we should stop at the actual plain words of the text.

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It says the word searches.

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TSA is conducting searches.

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And we can save the next 10 and a half minutes.

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But if we want to go into context clues that the government is demanding that we do,

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we have to consider what TSA is actually doing here.

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And I think that it's different from the cases where the government cites where a USDA agriculture inspector goes into a meat plant.

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That's not likely to generate an intentional tort.

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Where a tax person goes and searches through some records, that's not likely to generate a battery of false arrest.

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But TSA searches are.

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Let me ask you just a factual question.

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I'm not even quite sure where it fits in.

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But what if they find either a gun or a bomb?

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And the passenger says, whoops, I'm sorry.

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I don't want to let you just take it and dispose of it.

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I will take it and leave.

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Do they have the power to say, I'm sorry, friend, you can't leave, you're restrained, and we'll keep the bomb or the gun?

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Or is there only power to say, well, all we can do is keep you from boarding the plane.

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We've done that if you want to leave on your own, and we cannot confiscate it.

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What's the consequence if that happens?

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That's a great question, Your Honor.

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The government has argued that TSA has no right to seize evidence at all.

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And obviously that's not the way it goes.

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If you show up at the airport with a gun in your bag, the TSA isn't giving it back for you to leave the airport.

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What authority do you have on that and what was given to the district court?

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What's the record going to show on that?

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The record will show that there's two different types of things TSA are looking for.

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Contraband, which is actually illegal to possess, and then other things which are not allowed through the airport.

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So your water bottle more than 3.4 ounces is not allowed.

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So let's just focus on guns, which you can possess in Colorado.

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Or a bomb, which you cannot typically possess, but let's talk about those explosives.

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My simple question is, what does the record show about what would happen if that was discovered?

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Would TSA be able to hold that passenger who said, I'm not going to get on a plane again?

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Or not?

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Or do they have to release man number two?

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Can he take the gun or he or she take the gun and bomb with them when they decide not to go on the plane?

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The record will show that if contraband, something that is illegal to possess, is found.

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TSA holds the item to call law enforcement, who then has to respond from there.

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Most of the screeners are not traditional law enforcement officers.

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I'm coming back to the text, and maybe this links to Judge E. Bill's questions.

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They're a screening force that's designed to make sure planes can fly safely.

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And there's these subsidiary questions about drug possession and

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gun possession and the like.

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And I understood the record to say that there, in addition to the TSA screeners, these checkpoints also had traditional real law enforcement.

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A certified police officer or one of the TSA agents would be a certified police officer.

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And that person then could be responsible for

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a seizure of illegal drugs.

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So I'm looking at two classes of screeners.

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One would be a traditional law enforcement.

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The others would be this quasi law enforcement that the screeners are.

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And the strip search here was conducted by the quasi law enforcement.

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And I don't know, is it fair to look at this regime as setting up two different types of

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law enforcement, one that might be covered by the law enforcement proviso and one that was not.

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Yeah, so at the checkpoint, they're generally not federal law enforcement officers.

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Those federal TSA law enforcement officers tend to be air marshals and people at other locations other than from the checkpoint.

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The only law enforcement at the checkpoint

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is usually local police.

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But to answer your question, yes, the government is basically saying, TSA has some federal sworn officers, guns, arrest rights, handcuffs, and they have these screeners.

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And they would like to have the law enforcement offered covered by the law enforcement proviso and the screeners not.

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But that's not what the text of the statute says.

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Both of these people conduct searches, execute seizures, or make arrests.

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And that or is very important.

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If you do one of the three, you're covered by the law.

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The government trying to argue that TSA screeners, those non-law enforcement, do not conduct searches because the law meant criminal law enforcement searches is just a step too far.

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That's adding words into the statute.

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Do we need to worry at all about the way that the Aviation Security Act fits in, that it does not define TSOs as officers or their employees?

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I think that it doesn't define every employment role or really many employment roles at all for TSA.

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That was up to TSA to figure out from there.

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As to whether or not these people are officers, I think that

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The indications are that they are people who serve a public trust and a public safety mission.

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They wear badges that say United States officer.

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They refer to themselves as transportation security officers.

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So, you know, these are some kind of officers and that's the other important part of this textual reading is that

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Congress wrote investigative or law enforcement officer as this group of people.

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And the government essentially wants to cut off that investigative or.

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And that's exactly what TSA is.

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They're not law enforcement, but they're the people that do the searches.

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They do this investigation.

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And if law enforcement is necessary because someone has a bomb or a gun, they'll call that law enforcement in there.

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So your argument, if I understand correctly, is we don't need to look beyond the text.

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Exactly.

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We don't think that the text is ambiguous at all.

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And I think that all four of the courts of appeals to put out opinions on this matter agreed that this was not an ambiguous statute.

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The ambiguity is being created by the government trying to put in words.

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Would you concede if we deemed it ambiguous that the government

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would work when under the dole and cooper and i don't know i i i think the dole is important i think that the idea that the federal court claims exception should be construed uh... uh... in a way that has been

[00:11:02] Speaker 04:
Opposed by the Supreme Court, the Supreme Court said the exact opposite, knowing that this was intended by Congress to be sweeping authority, to cover a large array of torts.

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And especially now that the Supreme Court has largely abrogated Bidens, which Congress thought might be in effect at the time it created the FTCA,

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Now is these remedies or nothing?

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So to tie and take this narrow view?

[00:11:28] Speaker 00:
Well, it's these remedies or what?

[00:11:29] Speaker 00:
The government denies Westfall certification and you sue the individuals, right?

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In state court.

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Your Honor, I've fought several dozen TSA cases.

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The government has never declined to issue Westfall certification.

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I've had clients that were digitally penetrated by TSA screeners, strip searchers, this and so forth.

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And no challenge to scope of employment, right?

[00:11:50] Speaker 04:
I have challenged it before.

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I've given up on doing it at this point because it's simply not effective.

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The government won't waive it.

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And if the attorney general doesn't decertify it, there's pretty much no way that the courts overrule that.

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I'd like to reserve my time if that's OK.

[00:12:10] Speaker 02:
You may.

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Thank you, counsel.

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All right, let's hear from the United States, Mr. Aguilar.

[00:12:20] Speaker 01:
Good morning, may it please the court, Daniel Aguilar for the United States.

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The district court correctly addressed America's advanced state law tort claims and acted appropriately in denying leave to amend after the deadline for amending the complaint had passed.

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I'm happy to address those issues.

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But turning to the sovereign immunity and the limited waiver of sovereign immunity in the Federal Tort Claims Act,

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Before 1976, the United States had not waived immunity for the intentional force of its employees.

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As we discussed in our brief, there were a series of high-profile incidents that led Congress to revisit that and enacted the law enforcement proviso here, which waives immunity for investigative law enforcement officers who are empowered by law to execute searches, seize evidence, or make arrests for violations of federal law.

[00:13:08] Speaker 01:
Outside of the TSA context, it has consistently been understood over decades by the courts of appeals to encompass officers who have traditional criminal law enforcement authority, regardless of which agency they work for, and to exclude those who do not possess such authority.

[00:13:23] Speaker 03:
Would you speak a little louder or closer into the microphone?

[00:13:28] Speaker 01:
Yes, Your Honor, I apologize.

[00:13:29] Speaker 01:
So for instance, the Second Circuit in Wilson held that a parole officer

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who can go into a parolees apartment and seize evidence with consent doesn't have those powers doesn't fall within the law enforcement proviso similarly the fifth circuit with the euc inspectors who have the authority to search through people's papers they said that is not the kind of authority that's being discussed in the law enforcement proviso they don't fall within it similarly for the air force security guards it's talking about traditional criminal law enforcement and i'm happy to go to the

[00:13:59] Speaker 02:
Well, you're 0 for 4 in the circuit so far on this argument, and there have been a dissent or two.

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I mean, focus on what's the fatal flaw in the other circuit arguments?

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Basically, these TSA screeners are investigating passengers looking for prohibited or illegal

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objects, items for the safety of the flying traffic.

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Everybody has to go through it, but it's consensual.

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You can turn away at the checkpoint if you choose not to.

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But once you're in the queue and decided to be screened, then

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these TSA officials have the authority to do a lot of things.

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For some reason, I always get the random, the deeper, and I always get the pat down, even once in one of the private rooms.

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I suppose it's somewhat random, although maybe they have me targeted, I don't know.

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You know, once you're in the queue, there's a lot that the screeners can do, including taking passengers to private rooms.

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You know, a strip search is a different matter, but at that point they're doing

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Like, what you'd expect a police officer to do at a traffic stop.

[00:15:29] Speaker 01:
So I disagree with that last point, Your Honor.

[00:15:31] Speaker 01:
So if I can just address a factual question that you raised earlier about what their actual powers are, and then get to why those other courts of appeals decisions are wrong.

[00:15:38] Speaker 01:
So that's pages 12 to 13 of the supplemental appendix.

[00:15:42] Speaker 01:
That's the uncontested evidence that if a screener encounters something like a bomb or a gun, or even an item that's lawful to possess but you can't bring onto the plane like a baseball bat, that's when they call law enforcement over.

[00:15:53] Speaker 01:
And the person is given a choice about whether or not they need to remove it to their car.

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But any decisions about whether there needs to be criminal enforcement action taken, that's taken by the Police Department.

[00:16:04] Speaker 03:
You really are going to have to get that microphone up closer.

[00:16:11] Speaker 03:
We often ask people to get closer, and for the first two minutes they're closer, and then they drift back to their natural comfort zone.

[00:16:18] Speaker 03:
So you try to stay outside your natural comfort zone.

[00:16:21] Speaker 01:
Yes, Your Honor.

[00:16:23] Speaker 01:
So it's why the other courts of appeals decisions are wrong.

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The third and the eighth circuits, there they held that the sovereign immunity canon just doesn't come into play in the FTCA at all.

[00:16:32] Speaker 01:
That's wrong.

[00:16:32] Speaker 01:
That's based on a misreading of Dolan.

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Dolan said, when the United States is reclaiming sovereign immunity, when those parts of the FTC where it says, we're not liable, they're the parts that say, well, you don't do sovereign immunity in that, you don't construe it narrowly or broadly, you just give it as per your meaning.

[00:16:47] Speaker 01:
Here, that's the intentional court exception.

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Nobody disagrees that the United States has very clearly reclaimed sovereign immunity for intentional courts.

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The question is about that waiver for investigative or law enforcement officers.

[00:17:01] Speaker 01:
That's a waiver of sovereign immunity.

[00:17:02] Speaker 00:
Is the question about breadth or ambiguity?

[00:17:05] Speaker 01:
So the question is about the breadth of the waiver.

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It's clear that the waiver does something right for traditional law enforcement officers.

[00:17:13] Speaker 01:
So that's the Supreme Court's decision in FAA versus Cooper.

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There, the United States had waived immunity for actual damages.

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The question is, what does that encompass?

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How broad is that?

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And the Supreme Court held, when it's going to the scope of the waiver,

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There, if there is any ambiguity, then we rule for the government.

[00:17:31] Speaker 01:
The quote is, the question we must answer is whether it is plausible to read the statute as the government does.

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If so, then sovereign immunity has been maintained because there has not been a clear and unequivocal waiver.

[00:17:42] Speaker 01:
The mistake that the fourth and ninth circuits did is they said, well, there are five textual indicia, which all support the government.

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But those all have problems with them.

[00:17:52] Speaker 01:
Number one has a problem.

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Number two has a problem.

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Number three has a problem.

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And so because each one of those, we find them persuasive, therefore we don't bring the sovereign immunity canon into it.

[00:18:01] Speaker 01:
That's error.

[00:18:02] Speaker 01:
The courts don't read statutes in little bites.

[00:18:04] Speaker 01:
You read them as a whole.

[00:18:05] Speaker 01:
So the textual condition that we're pointing to is first, it's talking about officers instead of employees.

[00:18:11] Speaker 01:
And that's the 11th Circuit's decision in Corbett.

[00:18:13] Speaker 00:
The FTC waves to generally... How much should we rely on Corbett?

[00:18:17] Speaker 01:
I think you can rely on it for this point about whether or not they're an officer or employee.

[00:18:20] Speaker 00:
But it's unpublished, prosaic litigant.

[00:18:23] Speaker 01:
And so it's persuasive to the extent it has to persuade.

[00:18:26] Speaker 01:
So for example, all TSA employees don't have law enforcement powers, the TSA administrator can make them an officer.

[00:18:33] Speaker 01:
That's a 49 USC 1114 key.

[00:18:37] Speaker 01:
And that's making somebody an officer, like the statute of contemplate.

[00:18:40] Speaker 01:
It talks about investigative or law enforcement officers.

[00:18:43] Speaker 01:
And then we talk about the Wiretap Act and the FISA.

[00:18:45] Speaker 01:
Those are other parts of the US Code where that's talking about somebody with those criminal enforcement authorities.

[00:18:50] Speaker 01:
The related meanings for making arrests, seizing evidence.

[00:18:54] Speaker 01:
Those are talking about criminal functions.

[00:18:55] Speaker 01:
And similarly, we would construe, execute searches in that criminal fashion.

[00:19:00] Speaker 00:
The problem that I think was well articulated, at least I thought so, in Osmond, in the Fourth Circuit case,

[00:19:06] Speaker 00:
The government's, the flaw in your argument is that it contravenes Millbrook, right?

[00:19:11] Speaker 00:
That you're reading things into the statute, like the word criminal, which isn't there.

[00:19:17] Speaker 00:
So can you help explain why that isn't a fatal flaw here?

[00:19:21] Speaker 01:
Sure.

[00:19:21] Speaker 01:
So Millbrook's entirely different.

[00:19:23] Speaker 01:
Millbrook is saying somebody was clearly a law enforcement officer.

[00:19:26] Speaker 01:
They were your prison guard with the arrest authority.

[00:19:29] Speaker 01:
The question there was the intentional court occurred when they weren't making an arrest, executing a search, or seizing evidence.

[00:19:36] Speaker 01:
And there is Supreme Court help that you're still a law enforcement officer.

[00:19:38] Speaker 01:
They don't limit it to just performing those functions.

[00:19:40] Speaker 01:
You're liable for any of the intentional courts that come up later because you're an investigative officer.

[00:19:46] Speaker 01:
So as long as it's happening within the scope of duty, the United States will be substituted in when the Westville Act, the liability arises.

[00:19:53] Speaker 01:
Here the question is, are you a law enforcement officer?

[00:19:56] Speaker 01:
That wasn't the question in the notebook.

[00:19:57] Speaker 01:
And they're not the kind of investigative or law enforcement officers here.

[00:20:01] Speaker 01:
You can look at that because it's for violations of federal law.

[00:20:05] Speaker 01:
There's, plaintiffs don't identify any particular federal law that would prevent you from taking an eight ounce bottle onto the plane or a baseball bat.

[00:20:12] Speaker 01:
you can search and stop somebody from doing that because you're trying to ensure the safety of everybody.

[00:20:16] Speaker 01:
That's why it's an administrative search.

[00:20:18] Speaker 01:
And just the last part is the torts that we waive immunity for are not all of the torts that are accepted, right?

[00:20:24] Speaker 01:
We don't waive immunity for deceit or slander or misrepresentation.

[00:20:28] Speaker 01:
Congress waived immunity for the kinds of torts, assault and battery, false imprisonment, that you would expect somebody with traditional law enforcement afforded to do.

[00:20:37] Speaker 01:
And to the point about reading words into the statute,

[00:20:39] Speaker 01:
I mean, that was a concern in this court's decision in Poche, which involved the Equal Access to Justice Act.

[00:20:45] Speaker 01:
There, Congress waived immunity and would provide fees and costs for somebody under the Equal Access to Justice Act if they were, quote, a prevailing party in a case brought by or against the United States.

[00:20:57] Speaker 01:
There, the plaintiff was a prevailing party, but they have prevailed against third parties.

[00:21:01] Speaker 01:
They were on the same side as the United States.

[00:21:08] Speaker 01:
against us.

[00:21:09] Speaker 01:
This court reversed and it held a fair reading of the statute is that it doesn't contemplate the scenario

[00:21:16] Speaker 01:
And we applied the sovereign immunity canon.

[00:21:19] Speaker 01:
Even if the other side has a reasonable interpretation, the government's interpretation is at minimum plausible.

[00:21:25] Speaker 01:
And therefore, sovereign immunity is retained.

[00:21:26] Speaker 01:
There hasn't been a clear and unequivocal way.

[00:21:29] Speaker 00:
I'm still a little bit confused about the government's position on ambiguity.

[00:21:32] Speaker 00:
Do you contend that this proviso is ambiguous or it is not?

[00:21:36] Speaker 01:
Yes, we concede it's ambiguous.

[00:21:38] Speaker 00:
You say it is ambiguous.

[00:21:40] Speaker 01:
We concede the plainest reading isn't beyond the pale.

[00:21:43] Speaker 01:
plausibly read it in plainest way.

[00:21:45] Speaker 01:
And that was the same thing that happened in the Supreme Court's decision in Cooper.

[00:21:49] Speaker 01:
In Cooper, the court held, we do not claim that plainest reading, the contrary reading of the statute, is inconceivable.

[00:21:56] Speaker 01:
The court conceded you could read it either way.

[00:21:58] Speaker 00:
And so your position is that Dolan helps us resolve ambiguity?

[00:22:01] Speaker 01:
So, Dolan helps you resolve ambiguity.

[00:22:03] Speaker 00:
How?

[00:22:03] Speaker 00:
I mean, Dolan seems to be about breadth.

[00:22:05] Speaker 00:
I don't, I'm not tracking.

[00:22:06] Speaker 01:
Oh sure, so Dolan helps you resolve ambiguity because there the question was,

[00:22:10] Speaker 01:
Is the United States liable for the, quote, negligent transition of mail?

[00:22:14] Speaker 01:
So the mail had been spewed on somebody's porch and they slipped on it.

[00:22:18] Speaker 01:
And you could read that as like, well, negligent transmission.

[00:22:20] Speaker 01:
That was done in negligent fashion.

[00:22:22] Speaker 01:
The United States has one with a community court.

[00:22:24] Speaker 01:
The courts have looked at the rest of the statute.

[00:22:26] Speaker 01:
It's talking about miscarriage, loss of mail, mail being delivered improperly to the wrong person or lost in the system.

[00:22:33] Speaker 01:
That limits the breadth of negligent transmission, so it's not covering just leaving it on the porch, it's talking about mail going somewhere else.

[00:22:41] Speaker 01:
So similarly here, we think execute searches has a criminal connotation, but if you just viewed it totally in isolation,

[00:22:48] Speaker 01:
You might have it encompass administrative searches as well.

[00:22:52] Speaker 01:
But when it's paired with make arrests, clearly criminal, seize evidence for violations of criminal law.

[00:22:58] Speaker 01:
Or, sorry, seize evidence for violations of law.

[00:23:00] Speaker 01:
That's reading into a criminal context.

[00:23:03] Speaker 01:
And so you can appropriately narrow execute searches.

[00:23:06] Speaker 01:
to the criminal context.

[00:23:07] Speaker 00:
But then we have to read out OR, right?

[00:23:10] Speaker 01:
No, no, no.

[00:23:11] Speaker 01:
So the OR point, I think my colleague said, we're reading the investigative out.

[00:23:15] Speaker 01:
That's incorrect.

[00:23:16] Speaker 01:
And I pointed you to the Seventh Circuit's decision in Bunch.

[00:23:19] Speaker 01:
And there it was discussing whether an ETF employee had authority to either just enter into a site of suspected arson

[00:23:27] Speaker 01:
and conduct a search for violations of federal law, whether or not there had been an explosive use, and potentially seize any evidence there.

[00:23:34] Speaker 01:
That person did not have arrest authority, and the court remanded back for further factual finding about whether or not that person had that kind of authority.

[00:23:43] Speaker 01:
But still, it would be traditional criminal law enforcement authority there.

[00:23:47] Speaker 01:
And just going back to Your Honor's question at the beginning, I don't hear plaintiffs articulating

[00:23:58] Speaker 01:
The other courts of appeals have held outside the TSA context administrative switches are covered.

[00:24:03] Speaker 01:
So as somebody, a USDA inspector, who inspects meatpacking plants for violations of the Food Drug Cosmetic Act, they're doing an administrative search.

[00:24:11] Speaker 01:
I don't think there's any fair reading of the statute that would say they're an investigative or law enforcement officer.

[00:24:17] Speaker 01:
Plaintiff posits, like the Third Circuit majority did, that maybe you can have an atextual reading that limits it.

[00:24:22] Speaker 01:
It's about physical touches or intrusive searches.

[00:24:25] Speaker 01:
But that's atextual.

[00:24:27] Speaker 01:
And the question here is about Congress's words

[00:24:30] Speaker 01:
the words of Congress chose, and whether those by themselves unambiguously waive sovereign immunity.

[00:24:35] Speaker 01:
And we don't think they do.

[00:24:37] Speaker 01:
And just on the last point, I know that there's been some discussion of this as a strip search, so just to clarify the facts here.

[00:24:45] Speaker 02:
Before you get to that, kind of the flip side of TSA, having just returned from an international flight, I had to go through passport control and customs, and custom officers could

[00:25:03] Speaker 02:
They didn't, but they could have gone through my luggage.

[00:25:05] Speaker 02:
And are they law enforcement investigatory officers under the proviso, or are they something else?

[00:25:16] Speaker 01:
I'm over here on the name of the Justice Center brief, but I can't recall.

[00:25:20] Speaker 01:
Border control officers under the nurse versus United States is at page 24 of her brief, are law enforcement officers because they possess those traditional police officers.

[00:25:32] Speaker 01:
Who said that?

[00:25:33] Speaker 01:
Page 24 of our brief.

[00:25:35] Speaker 01:
Your brief, but I mean, is there authority for that?

[00:25:36] Speaker 01:
It's a Ninth Circuit decision.

[00:25:38] Speaker 01:
It's North versus United States.

[00:25:39] Speaker 01:
And if I recall correctly, the basis for that was that customs and border control have statutory authority to make arrests.

[00:25:46] Speaker 02:
And I think border control is kind of the international border versus airports.

[00:25:52] Speaker 02:
Are they the same?

[00:25:53] Speaker 02:
Are customs the same as a...

[00:25:55] Speaker 02:
you know, border patrol between the United States and Mexico.

[00:25:59] Speaker 01:
I mean, obviously, there are going to be some differences.

[00:26:01] Speaker 01:
The scope of searches at the border is greater, and I also think there may be greater authority to conduct a criminal investigative search at the border as well.

[00:26:10] Speaker 01:
But here, the searches aren't for finding a violation of federal law.

[00:26:13] Speaker 01:
They're to ensure the safety of the passengers on the plane, right?

[00:26:16] Speaker 01:
It's completely legal to have a lithium ion battery.

[00:26:19] Speaker 02:
No, I get that.

[00:26:20] Speaker 02:
So are customs, airport customs officers, are they

[00:26:25] Speaker 02:
covered by the FTC or not.

[00:26:27] Speaker 01:
Yeah, I think this is true.

[00:26:29] Speaker 01:
If they have my statute of regulation authority to make those arrests or seize evidence or execute those searches, then they have the authority that the law enforcement provides or contemplates they would qualify.

[00:26:41] Speaker 01:
But that's different from the TSA screeners here who don't have that authority.

[00:26:45] Speaker 00:
Before you move on, I had a question about what is the government's view on how we should be thinking about this case in light of Bivens or the absence, potential absence of a Bivens remedy.

[00:26:56] Speaker 00:
And I guess I should preface that by asking you, our circuit has not considered whether a Bivens cause of action can be sustained against a TSO.

[00:27:04] Speaker 00:
Is that correct?

[00:27:05] Speaker 01:
Yes, I would believe it would be a question of first impression.

[00:27:10] Speaker 00:
I'm not going to predict what the government's litigation position would be in that case, but let's assume there would be no such remedy given the Supreme Court's directives of late.

[00:27:18] Speaker 00:
How do we understand this case in the context of the absence of a Bivens cause of action, and really what would be the remedy in this case for folks who are harmed in the way that this plaintiff was?

[00:27:28] Speaker 01:
So the question about whether or not to make taxpayer funds available for redress is a decision that Congress needs to make as a politically accountable branch.

[00:27:36] Speaker 01:
But the question of whether or not there are other available avenues for redress, there is a TSA administrative redress process that you can submit complaints to.

[00:27:43] Speaker 01:
Plaintiffs can challenge TSA screening procedures.

[00:27:46] Speaker 01:
as arbitrary, capricious, or violent of law in other ways.

[00:27:49] Speaker 01:
If the screeners' actions are not within the scope of employment, the United States won't certify them, and that, even if the United States does, that certification can be challenged in court.

[00:27:58] Speaker 01:
There's a process for adjudicating that.

[00:28:01] Speaker 01:
Obviously, if the screener does something totally inappropriate or outside the bounds, we can fire them.

[00:28:06] Speaker 01:
And there have been instances where TSA screeners have been criminally prosecuted.

[00:28:10] Speaker 01:
for conducting things that are not even searches, but just amounting to sexual assault.

[00:28:16] Speaker 01:
There's a case in the Eastern District of New York about that from some years ago.

[00:28:19] Speaker 02:
Is there any monetary damages remedy on the list you just provided?

[00:28:24] Speaker 01:
No because the question about providing

[00:28:27] Speaker 01:
monetary damages there, as the Supreme Court explained in those Bivens decisions, really is a separation of powers question.

[00:28:35] Speaker 01:
The courts usually don't have the authority to create that cause of action and the choice that Congress made in enacting both the MTCA and the West Pole Act

[00:28:43] Speaker 01:
is about when does the United States waive its own sovereign immunity, and that's why the canon is about sovereign immunity coming there.

[00:28:50] Speaker 01:
If there is a policy choice, if it's good policy, to expand the MTC, to encompass these or other types of claims, that's something that Congress is investigating to consider.

[00:29:00] Speaker 02:
Alright, Council, thank you.

[00:29:01] Speaker 02:
Your time's expired.

[00:29:02] Speaker 02:
Mr. Corbett, you had some rebuttal time?

[00:29:10] Speaker 04:
I am glad that opposing counsel conceded that my reading is plausible because seventeen circuit judges in the last five years have also considered the same, so I'm glad we all have a plausible way of looking at it.

[00:29:25] Speaker 04:
As the court just alluded to, there is no money damages remedy.

[00:29:29] Speaker 04:
There is no

[00:29:31] Speaker 04:
Guaranteed remedy at all.

[00:29:32] Speaker 04:
TSA is basically saying we have a complaint department and that's enough.

[00:29:36] Speaker 04:
We might fire employees.

[00:29:38] Speaker 04:
I'm working on a case right now in Texas where a TSA screener, a male, grabbed a woman's breasts at the checkpoint.

[00:29:44] Speaker 04:
He wasn't fired.

[00:29:45] Speaker 04:
It's been two years.

[00:29:47] Speaker 04:
There is no remedy here other than the FTCA.

[00:29:50] Speaker 04:
So I just hope the court keeps that in mind that no matter how

[00:29:53] Speaker 04:
ridiculous and outrageous to conduct.

[00:29:56] Speaker 04:
If it happens while the employee is working, there will be no remedy if the court denies FTCA remedies.

[00:30:03] Speaker 04:
Shall we move on to the other issues or does the court have more questions on FTCA?

[00:30:08] Speaker 04:
they're going to move on okay so that there are many many three issues are the court essentially decided uh... i think most significantly that my client uh... did not suffer sufficiently severe symptoms of emotional distress and uh...

[00:30:25] Speaker 04:
In this case, my client listed the following symptoms in her complaint.

[00:30:29] Speaker 04:
Symptoms of panic attack, racing heart, shortness of breath, uncontrollable shaking, nausea, uncontrollable movement of arms, trembling of her legs requiring her to sit, distressing memory, fear of loss of control of the body, sweating, tightness of throat, headaches, hot flashes, emotional numbness, and avoidance of the incident.

[00:30:44] Speaker 04:
Many of these symptoms, that lasted for months.

[00:30:47] Speaker 04:
She had a deposition where there was no inconsistent testimony with that.

[00:30:50] Speaker 04:
There's been no testimony otherwise.

[00:30:52] Speaker 04:
The district court held that this is, as a matter of law, insufficiently severe for an emotional distress claim, largely because my client ended up going back to work.

[00:31:02] Speaker 02:
Is there an objective component to that?

[00:31:04] Speaker 02:
I certainly credit the subjective experience of your client.

[00:31:09] Speaker 02:
I understand the district court saying, in effect, that objectively what happened here wouldn't

[00:31:21] Speaker 02:
raised to the severity of the other attacks under Oklahoma law that sustained an inflection.

[00:31:29] Speaker 04:
I think the subjective part is that the district court is supposed to be a gatekeeper.

[00:31:34] Speaker 04:
Essentially, there's no way that the finder of fact could conclude that this was sufficiently severe.

[00:31:39] Speaker 04:
And in this case, I don't think you can say that.

[00:31:42] Speaker 04:
The court can't say as a matter of law that this isn't enough.

[00:31:45] Speaker 04:
It is kind of a subjective thing at the end.

[00:31:47] Speaker 04:
At the end, the trial of fact has to be convinced that this is severe.

[00:31:51] Speaker 04:
And you can try and balance it against cases that have gone one way versus the other.

[00:31:56] Speaker 04:
And we have.

[00:31:56] Speaker 04:
We've shown cases where someone was subject to workplace verbal abuse and that person was found to have severe enough emotional distress and so forth.

[00:32:04] Speaker 04:
So we think the court below is applying plainly the wrong standard with the emotional distress claim.

[00:32:12] Speaker 04:
I see I'm out of time.

[00:32:13] Speaker 02:
Thank you, counsel.

[00:32:14] Speaker 04:
We appreciate your arguments.

[00:32:15] Speaker 04:
Thank you.

[00:32:16] Speaker 02:
Counselor excused and the case is submitted.