It’s been nearly 12 years since Nadine Pellegrino clashed with Transportation Security Administration officers at an airport checkpoint in Philadelphia, and she’s still furious about what happened.
She might even be angrier, now that her case has led to a federal appeals court decision saying TSA screeners cannot be sued for civil damages over alleged abuses.
“I’m outraged, as well as many other people who hear the real facts of what happened,” Pellegrino, 69, of Boca Raton, Fla., said in an interview. “I was illegally arrested. . . . I refer to what happened to me as a cesspool of corruption at the TSA. And nothing is done about it.”
Pellegrino is able to recite from memory her version of what happened before local police at Philadelphia International Airport led her away in handcuffs on July 29, 2006, and what has happened during the legal fight since. She even acted as her own attorney in her lawsuit afterward, including questioning a witness. She is not ready to let the matter drop.
Pellegrino and her husband, Harry Waldman, are reviewing their options and thinking of taking the appeal higher, perhaps to the Supreme Court.
“I would say it’s likely,” Waldman, 76, said Monday.
The U.S. Court of Appeals for the 3rd Circuit filed an opinion July 11 saying that TSA screeners cannot be sued for alleged abuses because they enjoy sovereign immunity as government employees. The decision means that while a TSA agent could face criminal charges for intentional acts that harm others, the government and the officers could not be sued for such behavior.
The precedent-setting case turned on two issues: whether the sort of searches conducted by TSA agents trigger Fourth Amendment protections and whether TSA screeners should be classified as law enforcement officials.
Pellegrino argued that the narrow legal questions decided by the appeals court overlook governmental abuses she describes as “Kafkaesque.” The couple, who filed the lawsuit together, said TSA officers and their supervisors treated her roughly at the checkpoint, fabricated assault charges against her, and lost or destroyed surveillance video of the event — even though the couple had retained an attorney days after her arrest and requested that the agency preserve any such videos.
The couple also said the TSA benefited by claiming one thing in the lower courts — namely that the TSA screeners were law enforcement officers, thereby triggering felony assault charges against Pellegrino — but then saying the opposite in federal court.
Meanwhile, the controversy has taken its toll, Pellegrino said. She has spent 18 hours in a city lockup, nearly two years battling criminal charges, which were dismissed, and almost nine years in federal court hoping to hold the government accountable.
“It destroyed me professionally,” said Pellegrino, who taught communications at Pennsylvania State University and the College of New Jersey before becoming a consultant for clients such as Novartis and Holiday Inn.
The federal lawsuit — which was filed in November 2009 on a pro se basis, meaning Pellegrino and Waldman were representing themselves without an attorney — describes the checkpoint encounter as a “nightmare.” Their suit offers a highly detailed, often combative account routinely describing TSA officers as “false witnesses,” accusing them of displaying “unwarranted venomous nonverbal animosity” during the screening, and characterizing their checkpoint as “remarkably mismanaged.” In several instances, Pellegrino objects to statements of fact adopted by court opinions as “TSA-washed” versions of the truth.
The saga began July 29, 2006, as the Florida couple headed home after a visit to their previous residence in the Philadelphia area. Both — who have logged hundreds of thousands of air miles as business consultants in the communications field — were flying platinum status with US Airways.
“This wasn’t our first experience going through a checkpoint,” Waldman said. “We’ve probably been through most airports in the U.S. — and never, ever had a problem, even in the roughest countries.”
At least an hour before Flight 955 to Fort Lauderdale was scheduled to depart at 8:30 p.m., they reported to the TSA checkpoint in Concourse B of the Philadelphia International Airport to begin screening, court papers say.
After Pellegrino, with three pieces of luggage, passed through a metal detector, a male TSA officer told her she would have to step aside for additional screening. But his “rude” demeanor and his violent handling of her bags prompted her to ask for a private search, her complaint says.
When a female TSA officer — identified in court papers as Nuyriah Abdul-Malik — appeared a few minutes later to conduct the private search, Pellegrino asked the TSA agent to first replace her gloves, as they appeared soiled. That request caused tensions to increase further, the U.S. District Court’s opinion says. Abdul-Malik is quoted in court papers as saying that Pellegrino seemed like “one of those passengers, irate passengers . . . who would give me a hard time.”
Pellegrino, accompanied by Abdul-Malik and two additional female TSA officers, was led to a tiny room beside the checkpoint for the private pat-down and search. This, too, was unnecessarily rough and intrusive, Pellegrino said.
Besides being frisked and swabbed for possible explosives, Pellegrino said, Abdul-Malik looked at her cellphone data, delved into library and credit cards, examined private papers, smelled her cosmetics and hand sanitizer, and examined her lipstick. Lids were left open on some of the items, which spilled into the rest of her luggage. She also said that Abdul-Malik manhandled her bags, at one point breaking a zipper, breaking her eyeglasses and damaging her jewelry.
“What is going on here — both of you are behaving like b—-es,” the U.S. District Court opinion quotes Pellegrino as saying.
Pellegrino threatened to report the TSA agents to a superior. The TSA agents threatened to call the police.
But then the search wound down, and Pellegrino was told she could repack her things and go — and the situation deteriorated further.
When she went to remove her luggage, the TSA agents accused her of deliberately shoving a bag into one of the TSA screeners near the door — a charge Pellegrino denies. While collecting another bag from under the table, she allegedly hit another TSA officer’s leg — which Pellegrino also denies. In her frustration, Pellegrino tossed a pair of shoes from the small room, making sure no one was in the vicinity, because she said she wanted to pack those in public.
This time, police were summoned. Pellegrino was led away in handcuffs and spent about 18 hours in a city lockup before she was released.
Philadelphia authorities booked Pellegrino on 10 charges for allegedly assaulting the two TSA agents. These included felony aggravated assault, simple assault, reckless endangerment, making terroristic threats and “possession of instruments of a crime” — i.e., the luggage. The TSA threatened to file a civil claim against Pellegrino for violating security procedures.
Nearly two years after her arrest, however, Pellegrino was acquitted. Owing to the missing video, the presiding judge barred the TSA agents from testifying about some of the events that day, and Abdul-Malik did not appear, court papers say.
Then Pellegrino sought redress from the TSA. She filed a claim against the agency in 2008, which was denied, and then filed the lawsuit, alleging false arrest, malicious prosecution and other charges. A U.S. District Court judge allowed her claim for about $5,000 in property damage to proceed but otherwise found that the TSA and its officers could not be held liable. The couple appealed, and in February 2017, the appellate court appointed attorney Paul M. Thompson to assist in the case by filing an amicus brief on their behalf.
Last week, the U.S. Court of Appeals for the 3rd Circuit held that TSA screeners enjoy sovereign immunity because, despite their badges and titles as “officers,” they do not qualify as “investigative or law enforcement officers” who could be held legally responsible for abuses under the Federal Tort Claims Act.
The court, which sits in Philadelphia, also revisited the question of when a search should trigger Fourth Amendment protections. The court found TSA searches are “administrative” in nature, making TSA screeners more like federal meat inspectors than police officers.
The U.S. attorney whose office handled the case and other federal officials praised the ruling.
“We are pleased with the decision by the Court of Appeals,” said U.S. Attorney William M. McSwain in a statement. “Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases. The Court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”
The TSA also welcomed the decision and sought to reassure the public that their officers will be held accountable for wrongdoing.
“The Pellegrino decision does not change the well-established law that the United States can be sued for the negligent acts of its employees, but cannot be sued for the intentional acts of its employees, unless the employee is a law enforcement officer,” TSA spokeswoman Lisa Farbstein said in an email, adding that passengers can still seek compensation for checkpoint injuries. “TSA takes allegations of misconduct by its employees very seriously. Such complaints are swiftly reviewed. If the allegations are substantiated, the responsible employees are subject to discipline up to and including removal.”
But Pellegrino and Waldman said they believe the decision has given TSA checkpoint screeners free rein to treat passengers badly, and even the appeals court acknowledged that passengers have very limited legal options in the face of outrageous TSA misconduct.
“It’s hard enough now if you want to go against the federal government for anything, they make it extraordinarily difficult and expensive,” Waldman said. “Now they’ve made it impossible.”
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