I am in the middle of a case involving a slip and fall at a TSA checkpoint at our beloved Philadelphia International Airport (PHL). It now involves a gobbledygook of abbreviations as with many things involving the federal government. As the lawyers reading may know, you cannot sue the sovereign or your government without their expressed permission. You can sue the federal government or the City of Philadelphia, but only within certain areas. My case against TSA basically says that if you force someone to take their shoes off, you should be held responsible when a certain portion of PHL and TSA passengers fall and hurt themselves. Makes sense right? My client would not have fallen if she had her shoes on. Simple enough, right? Well, no. There is a whole body of caselaw regarding suits against the feds. I am now painfully well-versed in the Discretionary Function Exception (DFE) and the Due Care Exception (DCE) to the FTCA. Fun stuff, huh?
So, the short answer to my case is that you can sue the federal government or TSA, but only if they are not carrying out some discretionary function. So, if you approach TSA and they think you need extra screening because you have a t-shirt with a huge pot leaf on it, that is TSA discretion and you cannot sue for that. But, in my case, there was a TSA rule saying no shoes. So, I am arguing that there is no discretion there and hence the DFE does not apply. A judge will make the ultimate call on who is right about the applicability of the DFE to this case. There is also this due care exception. If a federal employee uses due care in the execution of a regulation or statute, then the feds are not liable. But, and this is a big but, this only applies if there is a regulation or statute directly on point. The shoe removal rule is neither and is merely a policy. While it may be splitting hairs or nitpicking, this is what lawyers do. The shoe removal rule is neither reg nor statute. Therefore, the DCE does not apply. Why? Well, there is an old rule that statutes or legislation is strictly interpreted. If Congress or the Commonwealth did not specifically list something in a statute, a judge cannot just read into the law what they think the government intended. So, I think I will win on both these counts. But, I will report back.
Another amusing thing about the FTCA is that despite the sixth amendment right to confrontation and a jury trial, plaintiffs are not entitled to a jury trial in these cases. So, we will have a bench trial. Nevertheless, do you see a pattern emerging here? Yes, you can sue the government, but we are going to put so many restrictions on it that it is very challenging to even get to a trial.
By way of example, a semi-recent case, Pellegrino, involved a TSA officer filing false charges against a passenger who mouthed off to the TSA officer. There were any number of potential bars to the lawsuit, but the Court was clearly fed up with the TSA conduct and the federal government’s efforts to immunize itself from asinine conduct. In another PHL case, Menkin, the TSA officers took a lady’s cane away as the cane was not TSA approved. Unsurprisingly, the lady fell and broke a bone. The Court said that is bad/stupid/not protected, take your pick. Menkin won that one.
In my current case, there has been testimony that the TSA supervisors, PHL supervisors and others knew about Menkin, knew that people would periodically fall due to the slippery floors and the shoe ban, but just did not do anything with that information. In my normal non-FTCA practice, this would be damning testimony. Can you imagine a bank officer saying, yes, when it rains, people seem to go crashing on our marble floors, but we really don’t care and definitely don’t put mats down to save them from falling??? A jury would promptly crush the bank. But, in the same scenario, the federal government says we don’t care.