[Jonathan Corbett argues on behalf of Michele Leuthauser]

Two years ago, at least a dozen women on a Qatar Airways flight to Sydney were ordered off the plane at Doha Airport in Qatar and subjected to forced vaginal examinations.

Australia made diplomatic protests, as both the airline and the airport are controlled by the government of Qatar. The Qatari government issued a public apology and said that, “Those responsible for these violations and illegal actions have been referred to the Public Prosecution Office.” Last month, just before the start of the World Cup soccer tournament in Qatar, some of the women filed a lawsuit in an Australian court  against the airport operator and the airline.

If you think that this couldn’t happen in the USA, or that the victims would fare better with government authorities and in the courts in the USA than in Qatar, think again.

Today a panel of judges of the 9th Circuit Court of Appeals heard oral argument in San Francisco in a lawsuit (Michele Leuthauser v. USA) brought by a woman who complained that a Transportation Security Administration staff person pushed their finger into her vagina — i.e., raped her — in 2019 after they ordered her into a back room at the airport in Las Vegas for a “pat-down” after she went through a whole-body imaging  machine.

It’s bad enough to require that, if anything “anomalous” is spotted on the images taken by  the “virtual strip-search” machine, you have to go through a hands-on strip search. It’s another thing to turn that into a body cavity search involving groping and penetration.

Local police who were standing by refused to take a complaint from Ms. Leuthauser. Traumatized and unable to face TSA checkpoints again, she lost her job, which required frequent air travel. Eventually, after her claim against the US government for damages was administratively denied, she sued the TSA employees and the US government for damages.

Unlike the government of Qatar, however, the US government hasn’t apologized, said that what happened was illegal (or would be illegal if the complaint is proven to be true), or referred the TSA checkpoint staff for investigation and possible prosecution.

The TSA hasn’t even tried to dispute the truth and factual accuracy of the complaint.

Instead, the TSA has argued that, even if all of the allegations in Ms. Leuthauser’s complaint are true, the TSA and its employees have absolute impunity. Regardless of what “torts”, even rape, TSA checkpoint staff commit against travelers, the government claims that Federal courts have no jurisdiction to hear lawsuits or consider claims against them.

One might think that “sovereign immunity” would be a doctrine invoked by, say, the Qatari monarchy to dismiss lawsuits against the Emir. But in this case, it’s being invoked by the US government to exempt the TSA and an accused TSA rapist from any legal accountability.

The Federal Tort Claims Act, as amended in 1974 in response to abuses and violent acts by Federal agents executing “no-knock” searches, makes the Federal government liable for assaults committed by “investigative or law enforcement officers… empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

It should be obvious that this description includes TSA checkpoint staff. But in defending the TSA, the US government has argued that (1) these aren’t the officers Congress meant to make liable under the FTCA (because they aren’t the sort of officers “traditionally” regarded as police, although there’s no such limitation in the law), and (2) the searches conducted by TSA “screeners” aren’t the sort of searches Congress intended (even though they do search for items that it would violate Federal law to bring onto airplanes).

Two Federal Circuits — the 3rd Circuit in 2019 and the 8th Circuit in 2020 — have rejected this tortured argument and ruled that TSA employees who wear badges identifying themselves as Transportation Security “Officers” and whose job is to search passengers for items that it would be a Federal crime to bring onto airplanes are “officers who execute searches”. That’s consistent with common sense as well as with close reading of the law.

Despite these precedents, the TSA persists in making this bogus argument for TSA impunity in every new Federal Circuit in which the issue arises.

A Federal District Court judge in Nevada accepted the TSA’s argument for impunity and dismissed Ms. Leuthauser’s complaint. Ms. Leuthauser appealed that dismissal to the 9th Circuit Court of Appeals, which heard oral argument today on that appeal.

Jonathan Corbett, who has made a practice for many years of holding the TSA accountable, shared the argument with Patrick Jaicomo of the Project on Immunity and Accountability of the Institute for Justice (IJ), one of the organizations that intervened in the case as friends of the court. Freedom to Travel USA and Restore the Fourth also submitted a friend-of-the-court brief highlighting the persistent and chronic pattern of abusive conduct by TSA checkpoint staff.

As is often the case, both the briefs filed earlier and today’s oral argument commingled fundamental issues of justice with abstruse arguments (especially for the government) about statutory construction and case law:

• Opening brief on appeal by Ms. Leuthauser
• Answer to the appeal by the TSA
• Reply by Ms. Leuthauser
• Amicus brief by Freedom to Travel USA and Restore the Fourth
• Amicus brief by the Institute for Justice
• Video of oral argument

Daniel Aguilar of the Department of Justice flew in from Washington to argue on behalf of the TSA. He had barely begun his presentation when Judge Jacqueline Nguyen, presiding over the argument, broke in to ask, “But you’re asking us to create a circuit split, right, if we rule for the government in this case? … The two circuits that have addressed this issue and published on this have both ruled against the government?”

“That’s correct, Your Honor”.

From where we sat in the courtroom, it appeared that at least some members of the three-judge panel might want to find that TSA “screeners” are immune from lawsuits, but couldn’t find any tenable basis in the text of the law for doing so, and were reluctant either to create a circuit split or to leave victims of TSA misconduct with no redress at all.

Mr. Aguilar tried to argue that “administrative” searches weren’t the sort of searches for which Congress intended to create liability for Federal officers. “I don’t see anything in the text of the law that excludes administrative searches,” Judge Nguyen responded.

And as for whether Transportation Security Officers “execute” searches, Judge Nguyen noted that, “They ‘execute’ the search — they are looking through your property for things.”

Judge Lucy Koh (participating remotely, as was routine for 9th Circuit judges even before the COVID-19 pandemic) seemed the most willing to entertain the government’s argument that the law is ambiguous and that any ambiguity should be resolved in the government’s favor. “If there is any ambiguity that can support sovereign immunity, you must adopt it,” Mr. Aguilar argued.

Senior District Judge Joseph F. Bataillon of Nebraska, sitting on the appellate panel by designation, noted the intrusiveness of TSA body searches compared to most “administrative” searches. That would seem to be a reason why TSA screeners/searchers  should, and why Congress would want them to be, subject to liability if they assault or otherwise abuse members of the public.

Judge Bataillon also homed in on the most fundamental issue in this and similar cases: “Does the general public have any remedy against a TSA agent who decides to grope?”

Mr. Aguilar tried to argue that if a TSA officer gropes travelers, the government wouldn’t  certify that they were acting within the scope of their employment. And if the Federal government doesn’t come forward to shield a TSA officer with such a certification, pursuant to the federal Westfall Act, the screener could be vulnerable for damages under state law.

But in his rebuttal argument, in response to questions from Judge Koh, Mr. Corbett noted that, “In my experience, when someone complains of sexual assault by the TSA, the local police refuse even to take the report.”.

Mr. Corbett also pointed out that, “In this case my client was sexually assaulted by a TSA screener. The government argues that if a TSA screener deviates from their duties, maybe they’ll not issue Westfall certification. But if they didn’t do it [withhold certification that they were acting within the scope of their employment] here where my client was digitally penetrated by a TSA screener, when will they do it? There will be no remedy.”

The case stands submitted. A decision will be issued in due course. It remains to be seen whether travelers abused at TSA checkpoints in the 9th Circuit will get more or less justice from the courts than those abused at the airport in Qatar.