Asheville traveler can pursue federal lawsuit for alleged TSA screening assault | Eastern NC Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The 4th U.S. Circuit Court of Appeals has ruled that an airline traveler can pursue a lawsuit claiming she was sexually assaulted during a security screening for a flight from Asheville.

    "May people who claim they were assaulted by Transportation Security Administration screeners sue the federal government under the Federal Tort Claims Act? Joining the Third and Eighth Circuits, we hold the answer is yes," wrote Judge Toby Heytens for the unanimous three-judge panel.

    "As all commercial air travelers must, plaintiff Erin Osmon passed through security at Asheville Regional Airport before a scheduled flight. A TSA screener told Osmon 'the body scanner alarmed on her and that she would need to submit to a "groin search,"'" Heytens wrote. "During the resulting interaction, Osmon alleges the screener forced her to spread her legs wider than necessary and fondled her genitals twice."

    Osmon sued under the FTCA. She claimed one count of battery. A magistrate judge recommended dismissing the suit. Chief U.S. District Judge Martin Reidinger agreed.

    "The district court faulted Osmon 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 the statute requires an 'objection' rather than a freestanding brief or memorandum of law, and a party need not frame its arguments anew when it objects," Heytens wrote.

    "Such a requirement would require litigants to walk a tightrope between refining their existing arguments just enough to preserve them ... 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," he added.

    "We also conclude the district court erred in dismissing Osmon's complaint for lack of subject matter jurisdiction. In so doing, 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," Heytens wrote.

    The judge explained why the 4th Circuit, which covers North Carolina, now joins two other Appeals Courts throughout the country in permitting suits against TSA screeners.

    "This appeal thus comes 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'? If yes, Osmon's suit may proceed. If no, it may not. We conclude the answer is yes," Heytens wrote.

    Heytens and his colleagues rejected the federal government's arguments that TSA screeners do not fall under a "law enforcement proviso" that would allow the suit to proceed.

    "We recognize that when Congress added the law enforcement proviso to the FTCA in 1974, it was not thinking about people who work for an agency that was not created until more than a quarter of a century later," Heytens wrote. "'But ... it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.' And 'the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.' Because the words of this statute cover the claim Osmon brought, we reverse the district court's judgment and remand for further proceedings."

    The case will head back to a trial court, where Osmon can pursue her claims. Fellow 4th Circuit Judge Stephanie Thacker and U.S. District Judge Joseph Dawson of South Carolina joined Heytens' opinion.