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Biden Judge Reverses Lower Court and Authorizes Passengers to Sue Government for Assaults by TSA Screeners

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Biden Judge Reverses Lower Court and Authorizes Passengers to Sue Government for Assaults by TSA Screeners

Judge Toby Heytens, who was nominated by President Biden to the US Court of Appeals for the Fourth Circuit, wrote a unanimous opinion that reversed a lower court ruling and gave a passenger who was assaulted by a Transportation Security Administration (TSA) screener the opportunity to sue the government under the Federal Tort Claims Act (FTCA). The April 2023 decision was in Osmon v United States.


What Happened in this Case?

When Erin Osmon went through passenger screening at the Asheville Regional Airport, a TSA screener claimed that the body scanner had “alarmed” and she would be subject to a “groin search.” She contended that the screener “forced her to spread her legs wider than necessary” and “fondled her genitals twice.”

Osmon filed suit against the federal government under the FTCA, an important remedy for victims of battery or other harm caused by federal employees, particularly when they cannot be identified. The FTCA allows a suit for damages against the government under specified circumstances. But the district court ruled that those circumstances did not apply to Ms. Osmon’s claim and dismissed the case Osmond then  appealed to the Fourth Circuit.

How did Judge Heytens and the Fourth Circuit Rule and Why is it Important?

Judge Heytens wrote a unanimous opinion for the Fourth Circuit panel that reversed the district court and ruled that Ms. Osmon could proceed with her claim against the government under the FTCA.  The court also made clear that its ruling means generally that “the FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”

The legal issue in the case was whether the FTCA’s provisions allowing damage claims  for “assault” or “battery” due to acts of “investigative or law enforcement officers” of the federal government applies to TSA screeners. The law defines such an “officer” as any government official who is “empowered by law to execute searches, to seize evidence, or to make arrests.” Based on the “plain text” of the statute and the clear authority of TSA screeners to “execute searches,” Judge Heytens wrote that the FTCA clearly authorizes suits against the government in cases like Ms. Osmon’s. Two other courts of appeal, Heytens noted, have reached the same result.

In addition to allowing Erin Osmon to proceed with her case for damages for the harm and indignity she suffered, Judge Heytens’ opinion is important for airline passengers across the country who may be assaulted by TSA screeners. In just the Fourth Circuit, which is home to National, Dulles, and BWI airports, the rights of millions of passengers will be better protected as a result. In addition, the ruling provides another illustration of the importance of promptly confirming fair-minded judicial nominees by President Biden like Judge Heytens.



Biden judges, transportation security administration