sbrower

I am not sure whether you are making an argument or misunderstanding. That is, what the TSA agent did is against the law. It is a deprivation of constitutional rights for a governmental actor to retaliate in violation of 1st Amendment rights. And the Court of Appeals "hinted" that if the plaintiff had sought an injunction, instead of damages, they might have given one (assuming that the case was otherwise proper for injunctive relief). However, governmental agents are immune from being personally sued for damages UNLESS there is an exception in law (whether a statute, as suggested by the Court, or an extension of Bivens, as denied by this Court.)

Loren Pechtel

Yeah, whatever the merits of the case the courts have been totally unwilling to interfere in any way with TSA screening.

saizai

I've put my analysis, with some extra details, links, and specific suggestion for how to improve the law, @ https://s.ai/essays/vanderklok.

Also FYI, LA Times official editorial against this: http://www.latimes.com/opinion/edito...826-story.html


That is incorrect.

There are basically two types of sovereign immunity in the US: for the United States itself, and for each of the States. None of them can be sued at all unless they consent to be sued by passing a law that explicitly grants the right to sue.

The US has granted people the right to sue it for certain tort actions under the FTCA, 28 USC Ch. 171.

There's an exception to the FTCA, § 2680(h) aka the "law enforcement proviso", that says you can't sue the US for "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights".

It also has an exception to its exception. You can sue the US for those things if they arise from "acts or omissions" … of "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".

There's a split about whether TSA screeners are included in that. Most courts have said "no"; a few have said yes; and the 3rd Circuit (which decided this case) has a pending lawsuit where they appoint an amicus specifically to brief this question.


That is all about suing the United States itself. Not the agent, Keiser. Keiser does not have sovereign immunity and never will.

He might have qualified immunity, which is when you can't get damages against the individual because at the time they did the bad thing it wasn't clear enough in the law that the bad thing was bad. The 3rd Circuit didn't reach that question.

Whether you can sue a federal agent or not comes under a different part of the FTCA, the Westfall Act, 28 USC 2679(d). By that law, if you sue a Federal employee and the United States decides that "the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose", then that defendant gets substituted out and replaced with the United States. Which does have sovereign immunity, with exceptions, as above.

You can challenge whether the employee was in fact acting within the scope of their office by doing the bad thing, but that's a state by state issue and gets very complicated.

If you do defeat the Westfall substitution, you get to sue the individual (not the US) under state tort law, e.g. for assault, battery, etc.


Also, the FTCA only applies to ordinary tort claims.

Constitutional torts, aka Bivens actions in the case of Federal agents, are a separate species. The US doesn't have the right to prevent you from bringing a Constitutional case against an individual by statute ('cause statute law is lower rank than the constitution), so the Westfall Act doesn't matter for Bivens. (Sovereign immunity can still apply, though that gets more complicated.)

However, courts recently are very hesitant about the scope of Bivens, as seen in this case.


So in short: yes, you can sue the individual. But there's a law that says that the US can swap itself in for the individual, and the US has sovereign immunity. And there are exceptions to exceptions to exceptions.

Isn't justice fun?

yandosan

It's amazing that these <screeners> have more immunity than the President. Consider Lewinsky-gate, which led to impeachment processes. Imagine if a U.S. President, like Kieser, got caught filing false charges against someone over a petty disagreement while in office. He/she would be toast, or at least sent through the wringer.
Something's gone horribly wrong with our system.

Boggie Dog

I see no reason for any TSA screener to have, or need, immunity from anything. To me, if this screener did in fact file a false police report they have no place in TSA or any other government agency and should be in jail for some time.

TSA claims to hold its employees to a high ethical standards yet watch government jump in to defend these criminals.

petaluma1

Government jumps in to defend so that the TSA SOP isn't exposed for what it really is - worthless.

saizai

They do not.

The President is generally absolutely immune from being sued in personal capacity for anything he does as President. (Ditto for members of Congress, BTW. And judges and prosecutors.)

The AG can refuse to grant Westfall Act certification to an employee, i.e. say that what they did was outside the scope of their employment, which'd leave them without the cover of substitution. They can also refuse to defend a Bivens action. I've never seen either of those happen, though.

Impeachment is a very long, political process to fire someone, with no other consequences. Whereas if you win a Bivens or tort claim against an individual, they are personally on the hook to pay you however much you win.

(Again though, the agency will pretty much always pay out for the employee, so it being 'individual liability' is more theory than practice.)


In short: no, they don't come even close to the kind of immunity the President has. Don't exaggerate.

yandosan

In short: no, they don't come even close to the kind of immunity the President has. Don't exaggerate.

You're using lawsuits as the sole standard of immunity.
I was talking in broader terms. Do you know of any TSA screeners who got fired for grabbing crotches or filing false reports or giving innocent people the third degree? It's very rare... whereas the President is held to a higher standard of decency, at least pre-Donald.

Section 107

He just isn't conflating two entirely separate principles. And to paraphrase Mr. Holmes (not John) the law is primarily concerned with justice not fairness. See slavery or any other of a vast number of laws....

Ari

The plaintiff has petitioned for rehearing en banc. ACLU is counsel. ^