In the nearly a full decade that I’ve been filing lawsuits against the TSA, they have argued for a full panoply of immunities and protections to insulate them from any accountability. They argue qualified immunity — that their screeners shouldn’t be liable except for violations of “clearly established law.” They argue that if TSA screeners are following policy, that lawsuits in the normal federal trial court can’t proceed. They argue that they are immune from state tort claims (.pdf) — ordinary false arrest, assault, etc..
But earlier this week, in the case of grandmother Rhonda Mengert who was strip searched by TSA without suspicion and in blatant violation of TSA policy, the TSA added it all up and argued that because of all of these immunities, there actually doesn’t need to be a way to sue screeners for checkpoint abuse, no matter how egregious, at all. You see, what travelers should actually do instead of suing is just file complaints with the TSA:
Or! Ms. Mengert, who was just sexually assaulted by a TSA screener, could have vindicated her rights by telling a cop or a manager!
And so, because a traveler can file an online complaint or tell a cop or a supervisor, there is no need for a lawsuit with money damages:
For the lawyers out there, yes, this argument is that a Bivens claim cannot lie against a TSA screener, after TSA has already argued that Federal Tort Claims Act claims also cannot lie, and that state tort claims are also precluded so long as the screener was even nominally performing their duties (even if performance was in direct contradiction to their training and TSA rules) — in other words, no money damages against TSA screeners for checkpoint abuse, ever.
I am sure the government would love it if the remedy for a cop falsely arresting you or beating you back at the precinct was that you get to file a complaint and no more. That if the FBI searches your house without a warrant, you get to file a complaint and no more. That if your free speech rights are violated, you get to file a complaint and no more.
Obviously, we are here because people have complained and the injuries keep happening. Those who are injured by the government are, and should be, entitled to some compensation from the government. The argument that TSA is special and should be protected from lawsuits no matter what is antithetical to justice and, frankly, legally frivolous, and I look forward to filing a motion regarding the same in due time.
Mengert v. TSA – Motion to Dismiss Individual Defendants (.pdf)
Professional Troublemaker ® 
WOW, they get more brazen every day. But, if I was this person’s lawyer, I’d have to pull up whatever argument I could find, no matter how weak or ridiculous. This is sort of like saying we can’t sue police officers for committing murder on duty because we can report the murder to their watch commander.
derp
I am a United States citizen immigrant from Europe.this kind of immunity has never been tolerated or accepted in any democratic country unless it was an ex communist country.
No one is above the law and the constitution not even the president and every body should be held accountable if we want to say we live in a democracy and not in a dictatorship country.
With so many powers the different enforcement agencies have and use without the warranty of the judicial system I am wondering what the outcome of my adopted country will be eventualy…….
I want to be sure I totally understand – the only recourse for anyone whose rights are violated is to complain to TSA or a cop; the cop has no authority over TSA for the same reasons you outlined; and (this is the part I really don’t know) TSA does not have specific guidelines on how they must respond to complaints or a mechanism for allowing law enforcement to take over when appropriate? Under such circumstances, why would TSA ever set a precedent by doing anything except acknowledge the complaint and move on?
Qualified immunity, like sovereign immunity, is nowhere to be found in the Constitution. Just the opposite. The US can be a party to lawsuits, and the federal courts have jurisdiction in such cases. The bill of rights guarantees our rights, and each and every federal officer or employee takes an oath to defend those rights. So what’s the problem?
Here’s the problem. Over 700 million passengers fly in the US every year. Even if TSA misconduct occurs only a once in a million times (A defect rate that would be the envy of any industry) that still means at least 700 people will be harmed every year. That averages out to nearly 2 Misconduct events a day, every day, rain or shine; and TSA management is unwilling and/or unable to either admit problems or to fix them.
Had my pants pulled down during a TSA screening at RDU. Supervisor came out and blamed me. Who was in charge of the screening.
They did the same thing to a co-worker who was flying commando. He stood there and told them ‘if you want my pants pulled up you will need to do it now. Got two rods in my back.’. TSA is criminal in their behavior.
This will only move the people to take matters into their own hands. Some people will and some TSA officers will be asking with the fishes.
Replying to EL: Nobody loathes the TSA more than I do, EL, but it’s not smart to threaten them with violence, in this forum or anywhere else.
I was “patted down” yesterday after the body scanner took issue with the area around my groin. Suffice it to say that I should have been wearing an athletic cup to protect my sensitive parts from the abuse I suffered. I complained in person to a TSA supervisor and filed an online complaint in the Civil Rights and Civil Liberties category within 15 minutes. I got what I suspect was a canned response today that essentially said “suck it up and take it like a man.” Nobody should walk away from a pat down search feeling like they were punched between the legs, and that situation should rightly have resulted in a lawsuit. I’m still fighting mad about the way I was treated and if I ever saw that guy on the street he’d better hope he could outrun me!
My understanding of the FTCA is that one can sue the federal government for the negligent actions of its agents occurring within the scope of their employment, but NOT for agents’ intentional acts, including battery. So if I were battered by a federal employee while they are on the job, I would have to sue the employee directly and not the federal gov.
NOW, TSA is saying that their checkpoint goons cannot be sued, period. Even if you only want to bring action on the goon and not the federal government!? Am I understanding this correctly?
In any case, gov immunity is disgusting and has no business in a democracy.
Look on the bright side: with COVID-19 in full swing, TSA checkpoints will be vectors for disease. TSA agents will suffer the consequences. Poetic justice?