Last week, the U.S. Court of Appeals for the Tenth Circuit was the fifth federal appeals court in a row to hold that TSA screeners are “investigative or law enforcement officers,” a category of federal employees who may be sued for intentional misconduct like battery or false arrest under the Federal Tort Claims Act. The decision was a 2-1 victory in Mengert v. U.S., argued by my firm on behalf of a woman who was strip searched by TSA screeners in Oklahoma who alleged they were confused by a feminine hygiene product she was wearing.
The opinion in this case was unfortunately not all good news, as the court also held that in Oklahoma, one can’t recover for emotional distress claims unless their emotional distress is so severe that it, for example, affects their daily life. This is bad news for those injured in Oklahoma (although attorneys seeking to recover in Oklahoma should consider negligence, battery, and other tort claims that may still be viable), though we will, of course, consider our options to challenge that overly-strict standard for emotional distress.
There are twelve regional federal circuit courts of appeals and each one is precedential only for its own region — so the government can try in each circuit to get a different decision, but it is extremely rare for one circuit to go against a consensus of five. Undeterred, TSA is now pursuing the same issue in the Eleventh Circuit, likely to be heard on oral argument in March, which I’ll be arguing for a fourth client.
Summary of the law by circuit:
- First Circuit – No Decision
- Second Circuit – No Decision
- Third Circuit – TSA Lost (Pellegrino, 2019)
- Fourth Circuit – TSA Lost (Osmon, 2023)
- Fifth Circuit – No Decision
- Sixth Circuit – No Decision
- Seventh Circuit – No Decision
- Eighth Circuit – TSA Lost (Iverson, 2020)
- Ninth Circuit – TSA Lost (Leuthauser, 2023)
- Tenth Circuit – TSA Lost (Mengert, 2024)
- Eleventh Circuit – Oral Arguments Likely March 2025 (Koletas)
- DC Circuit – No Decision
Professional Troublemaker ® 
I was hesitant to stay subscribed to this figuring it might be triggering. My father died recently and after looking at my travel options I decided it was time to face tsa, but as my date got closer I wondered why I bought a nonrefundable ticket. There wasn’t time to get pre-check (I tried). I was worried after putting in a complaint 7 years ago that I might be flagged forever. I followed the complaint process to the end and found out there isn’t one. TSA can do whatever they want if you purchase a ticket. In my letter I talked about my kryptonite vagina and do they make women show their sanitary pads. That wasn’t the case with me, but they did stick their hand down my pants. I would advocate that multiple cameras are a MUST in the private room, but I would never go in there again. Anyway, I decided not to go to my father’s service but my husband said, “I have a terrible idea.” He had booked his own ticket on points cancellable by noon. We decided to go thru security as an exercise, packed bogus bags and got up at 4am. With a little Xanax I made it down the gang plank (in Raleigh) of 3 strangers walking the colored lines while bomb sniffing dogs pass behind. We went thru the metal detector instead of xray and if my husband hadn’t left his dang phone in his pocket….but he didn’t get a pat down, they allowed him to go thru again. So, I guess I’m not flagged for life for my kryptonite vagina, but I’d be hesitate to plan a trip to Europe. Where did this all go so wrong? Background checks on TSA agents are meaningless because unless you’ve been caught as pedophile, rapist or whatever, that could be who is feeling us up at the airport and looking at our xray-ed bodies. I was molested by my pediatrician from age 2-12. He has a case against him right now brought by 6 women. Their time line is 1985-2005. I can change that to 1972-2005. He practiced his entire career until 2016 without ever being caught/turned in….so yeah my mind goes to extreme places, but that’s what trauma does. TSA is supposed to make us feel “safe”. They do anything but that. If there is absolutely anything useful in this vent that helps you think differently about how profoundly a person can be triggered by TSA…I had not left my body since childhood sexual assault and TSA SUCCESSFULLY triggered that. Thank you for tackling this gap in human decency. Alyson Bahr Alysonbahr.com I
Thank you for keeping this up, Jon. Too bad you werenât an attorney back when I was strip-searched.
You GO, DUDE!!!!!
Regards,
Wendy Thomson
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Keep up the good work. I hope one day you get the TSA in their rightful place.