You’re missing a step, I think. Under the Westfall Act, a federal employee cannot be sued for a tort claim if he is acting “within the scope of his office or employment at the time of the incident out of which the claim arose.” The Attorney General (in practice, the local US Attorney) must certify that the employee was so acting and, upon such certification, the United States itself is substituted as the defendant. This puts you in the world of the FTCA and sovereign immunity. (It’s worth noting that, in the case that is the subject of the OP, the Plaintiff specifically brought a FTCA claim against the TSA and the individuals, so I don’t think this issue was contested).
I don’t know the scope of pre-Westfall Act sovereign immunity, but obviously there was some. But in any event, as I understand the Westfall Act, if you’re not acting “within the scope of your office”, then you’re outside of the act and (presumably) outside of sovereign immunity and subject to suit. (I don’t know a lot about this area, but Osborn v. Haley certainly seems to suggest that no-certification means no immunity, even as it expanded the scope of the certification).
Which leads you to Chronos’ question about what kind of misconduct is outside of the scope of the office of a TSA screener and the various problems with trying to define that.
Shouldn’t be any problem. Screeners are given explicit guidance on exactly how to conduct body searches. Use this part of the hand, move hand this way, don’t touch that body part, etc. Any deviation should be considered outside the scope.
After stepping into a body scanner, Leuthauser was told that she had to submit to a “groin search.”Leuthauser then entered a private room with two TSOs, including Defendant Anita Serrano. Leuthauser was directed to stand on a floor mat with footprints painted on it to show where to place her feet. Leuthauser alleges that TSO Serrano directed her to spread her legs far more widely than the footprints indicated. TSO Serrano then conducted a pat-down during which TSO Serrano slid her hands along the inside of Leuthauser’s thighs, touched her vulva and clitoris with the front of her fingers, and digitally penetrated her vagina.She asserts that she suffered symptoms of emotional distress, including shortness of breath, uncontrollable shaking, and nausea.