Virginia Lawyers Weekly VA Lawyers Weekly
In an issue of first impression, the court joined the Third and Eighth Circuits in holding the Federal Tort Claims Act, or FTCA, permits people who allege they were assaulted by Transportation Security Administration screeners to sue the federal government.
Background
According to the complaint, Erin Osmon passed through security at Asheville Regional Airport before a scheduled flight. A Transportation Security Administration, or TSA, screener told Osmon “the body scanner alarmed on her and that she would need to submit to a ‘groin search.’ ” During the resulting interaction, Osmon alleges the screener forced her to spread her legs wider than necessary and fondled her genitals twice.
Osmon sued the federal government under the FTCA, alleging one count of battery. A magistrate judge recommended dismissing Osmon’s suit for lack of subject matter jurisdiction in a detailed memorandum devoted solely to whether the FTCA waives sovereign immunity for the type of claim Osmon brought. The district court adopted the magistrate judge’s recommendation. The court concluded it need not review the recommendation de novo because Osmon failed to object with sufficient specificity and, in any event, “the Magistrate Judge’s proposed conclusions of law are correct and are consistent with current case law.”
Review
A party wishing to avail itself of its right to de novo review must be “sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute.” Osmon easily cleared that modest bar. In response to the magistrate judge’s recommendation, Osmon filed a two-and-a-half page “Objection to Memorandum and Recommendation” framing a “pure question of law,” the resolution of which controlled the outcome of a single dispositive motion. That document identified areas where Osmon and the government agreed and summarized the parties’ competing positions.
It also cited cases from other circuits that have considered the issue and pointed out the “only circuit court to agree with the government’s view did so for different reasons than” the magistrate judge recommended. There was, in short, no doubt about “the true ground for [Osmon’s] objection” to the magistrate judge’s recommendation. Nothing more was required.
The district court faulted Osmon for not “mak[ing] any specific objections” to the magistrate judge’s reasoning and “simply summariz[ing]” the arguments that “ha[d] been presented before.” But the statute requires an “objection” rather than a freestanding brief or memorandum of law, and a party need not frame its arguments anew when it objects. Such a requirement would require litigants to walk a tightrope between refining their existing arguments just enough to preserve them for de novo review but not so much to risk having them considered forfeited because they were never presented to the magistrate judge in the first place. The statute creates no such trap.
FTCA
Everyone agrees the federal government is normally immune from suit, but that Congress may waive that immunity. Everyone agrees the FTCA contains a waiver and permits people injured “by the … wrongful act or omission” of on-duty federal employees to sue the government in situations where state law would make a private employer liable.
Everyone agrees this waiver has various exceptions, including one that generally precludes suits for “[a]ny claim arising out of assault [or] battery.” And finally, everyone agrees this exception has its own exception, which allows claims for “assault” or “battery” arising out of “acts or omissions of investigative or law enforcement officers of the United States Government.”
This appeal thus comes down to a single controlling question: Are TSA screeners “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”? The court concludes the answer is yes. It thus joins the Third and Eighth Circuits in holding the FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government. The district court’s judgment is thus reversed and remanded for further proceedings.
So ordered.
Osmon v. United States, Case No. 22-2045, April 18, 2023. 4th Cir. (Heytens), from WDNC at Asheville (Reidinger). Jonathan W. Corbett for Appellant. Daniel Aguilar for Appellee. VLW 023-2-108. 11 pp.
