Nadine Pellegrino v. TSA ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-3047
________________
NADINE PELLEGRINO;
HARRY WALDMAN,
Appellants
v.
UNITED STATES OF AMERICA TRANSPORTATION
SECURITY ADMINISTRATION,
Div. of Dept. of Homeland Security;
TSA TSO NUYRIAH ABDUL-MALIK,
Sued in her individual capacity;
TSA TSO DENICE KISSINGER,
Sued in her individual capacity;
JOHN/JANE DOE TSA Aviations Security Inspector
Defendants sued in their individual capacities;
JOHN/JANE DOE TSA, Official Defendants,
sued in their individual capacities
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-09-cv-05505)
District Judge: Honorable J. Curtis Joyner
________________
Argued before original panel on October 3, 2017
Petition for Rehearing En Banc granted on October 3, 2018
Argued En Banc on February 20, 2019
________________
Before: SMITH, Chief Judge, McKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
SHWARTZ, KRAUSE, RESTREPO,
BIBAS, PORTER and SCIRICA, Circuit Judges
(Opinion filed August 30, 2019)
Paul M. Thompson (Argued)
Sarah Hogarth
McDermott Will & Emery
500 North Capitol Street, N.W.
Washington, DC 20001
Matthew L. Knowles
McDermott Will & Emery
28 State Street, Suite 3400
Boston, MA 02109
Counsel for Appellants
Mark J. Sherer (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
2
Counsel for Appellees
Jonathan H. Feinberg
David Rudovsky
Kairys Rudovsky Messing & Feinberg
718 Arch Street, Suite 501 South
Philadelphia, PA 19106
Hugh Handeyside
Hina Shamsi
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Molly M. Tack-Hooper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106
Counsel for Amicus Appellants
American Civil Liberties Union;
American Civil Liberties Union of Pennsylvania;
Cato Institute; Rutherford Institute.
Mahesha P. Subbaraman
222 South 9th Street, Suite 1600
Minneapolis, MN 55402
Counsel for Amicus Appellants
Freedom to Travel USA; Restore the Fourth Inc.
3
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge, with whom Chief Judge Smith and
Judges McKee, Chagares, Greenaway, Jr., Shwartz, Restrepo,
Bibas, and Porter join.
The Federal Government is typically immune from
suit. The Federal Tort Claims Act waives the Government’s
immunity for certain torts committed by its employees.
28 U.S.C. § 2680(h) does so for specific intentional torts
committed by “investigative or law enforcement officers,”
which it defines as “any officer of the United States who is
empowered by law to execute searches, to seize evidence, or
to make arrests for violations of Federal law.” If a federal
official fits this definition, plaintiffs may sue for certain
intentional torts.
Nadine Pellegrino relies on § 2680(h), which we also
refer to as the “proviso,” to recover against Transportation
Security Officers (TSOs) at the Philadelphia International
Airport who allegedly detained her, damaged her property,
and fabricated charges against her. The District Court
dismissed her case on the ground that TSOs are not
“officer[s] of the United States” who “execute searches . . .
for violations of Federal law.” The underlying theme was
that the subsection’s waiver of immunity covers only criminal
law enforcement officers, and TSOs, though nominally
officers, are nothing more than screeners who perform
routine, administrative inspections of passengers and property
on commercial aircraft.
4
We disagree. The words of the proviso dictate the
result here. Because TSOs are “officer[s] of the United
States” empowered to “execute searches” for “violations of
Federal law,” Pellegrino’s lawsuit may proceed.
Background
A. Factual Background
Pellegrino and her husband arrived at the Philadelphia
International Airport to board a flight home to Florida. This
meant passing through the security checkpoint maintained by
the Transportation Security Administration (TSA) with TSOs.
Congress created the TSA after the terrorist attacks of
September 11, 2001, with the enactment of the Aviation and
Transportation Security Act, Pub. L. No. 107-71, 115 Stat.
597 (2001). Under that Act, TSOs perform screenings at
TSA checkpoints in airports in the United States. See
49 U.S.C. § 44901(a).
As Pellegrino passed through the security checkpoint,
she was randomly selected for additional screening. A TSO
began examining her bags, but she stopped him and requested
a more discreet screening. In a private room, several TSOs
combed through Pellegrino’s luggage, papers, and other
effects. One allegedly counted her coins and currency,
examined her cell phone data, read the front and back of her
membership and credit cards, and opened and smelled her
cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO
also spilled the contents of several containers and was so
rough with her belongings that her jewelry and eyeglasses
were damaged. Frustrated, she told the TSOs that she would
report their conduct to a supervisor.
The screening ended, but the TSOs’ alleged torment
did not. Pellegrino was left to clean up the mess created by
5
the search, a task that took several trips to and from the
screening room. As she was repacking her first bag, one of
the TSOs claimed that Pellegrino struck her with it. On a trip
to retrieve another bag, another TSO allegedly blocked
Pellegrino’s access to it, forcing her to crawl under a table to
reach it. When she did so, the table tipped over, and the TSO
claimed Pellegrino struck her in the leg while she was
collecting the bag. Pellegrino denies striking either TSO and
alleges she heard both say to one another, “[Y]ou saw her hit
me, didn’t you?”
As a result of the TSOs’ allegations, the Philadelphia
District Attorney’s Office charged Pellegrino with ten crimes,
including aggravated assault, possession of an instrument of a
crime (her luggage), and making terroristic threats. At a
preliminary hearing, the presiding judge dismissed many of
the charges and the District Attorney abandoned others. The
remaining charges came to naught when the TSA failed to
produce surveillance video from the incident, one TSO failed
to appear in court, and another TSO’s testimony was self-
contradictory on key points.
B. Procedural History
After her ordeal at the airport and victory in the
courtroom, Pellegrino and her husband brought numerous
constitutional and statutory claims (including under the
Administrative Procedure Act and the Freedom of
Information Act) against the TSA and several TSOs. The
District Court winnowed them down to claims for property
damage, false arrest, false imprisonment, and malicious
prosecution under the Tort Claims Act and implied rights of
action under Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971), for malicious prosecution in violation of the First
and Fourth Amendments. The claim for property damage
6
settled, and the Court granted summary judgment on the
Bivens claims.
As for the claims under the Tort Claims Act for false
arrest, false imprisonment, and malicious prosecution, the
Court granted summary judgment for the defendants on the
ground that TSOs are not “investigative or law enforcement
officer[s]” whose intentional torts expose the United States to
liability. See Pellegrino v. U.S. Transp. Sec. Admin., No. 09-
cv-5505, 2014 WL 1489939, at *7 (E.D. Pa. Apr. 16, 2014).
In particular, the Court stated that it was “ambiguous”
whether TSOs perform the requisite “searches . . . for
violations of Federal law,” id. at *5, and turned to the
legislative history of the proviso at 28 U.S.C. § 2680(h) to
rule in favor of the Government, id. at *6–7.
On appeal we appointed amicus counsel to argue
Pellegrino’s side on, inter alia, the Tort Claims Act issue. A
divided panel of our Court affirmed the District Court in full
(including as to summary judgment on the non–Tort Claims
Act claims). See Pellegrino v. U.S. Transp. Sec. Admin., 896
F.3d 207, 209 (3d Cir. 2018). We then granted rehearing en
banc to consider whether TSOs are “investigative or law
enforcement officer[s]” as defined in the Tort Claims Act.
Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§§ 1346(b) and 1331. We have jurisdiction per 28 U.S.C.
§ 1291, and we review anew the District Court’s
interpretation of the Tort Claims Act. See Baer v. United
States, 722 F.3d 168, 172 (3d Cir. 2013).
7
Analysis
As noted, the United States enjoys baseline immunity
from suit. See Millbrook v. United States, 569 U.S. 50, 51–52
(2013). Congress has overridden this rule with the Tort
Claims Act’s general waiver of immunity for injuries “caused
by . . . any employee of the Government.” See 28 U.S.C.
§ 1346(b)(1). The waiver of immunity does not extend to
several circumstances noted in 28 U.S.C. § 2680, including
the subsection pertinent here; hence the Government’s
immunity is reclaimed as to eleven intentional torts laid out in
the so-called intentional-tort exception at § 2680(h). Those
eleven are “assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, [and] interference with contract
rights.” Id. § 2680(h).
But even the intentional-tort exception has its limits.
Under the proviso, the exception does not apply to (and thus
the United States may still be sued for) six of the eleven torts
— “assault, battery, false imprisonment, false arrest, abuse of
process, [and] malicious prosecution” — committed by
“investigative or law enforcement officers.” Id. “For the
purpose of this subsection, ‘investigative or law enforcement
officer’ means any officer of the United States who is
empowered by law to execute searches, to seize evidence, or
to make arrests for violations of Federal law.” Id. The
question for us is whether TSOs fit this definition.
A. Text of the Proviso, 28 U.S.C. § 2680(h)
Are TSOs (1) “officer[s] of the United States” who are
(2) “empowered by law” to (3) “execute searches” for (4)
“violations of Federal law”? To begin, we track the text.
8
1. “Any Officer of the United States . . .”
“Ordinarily, a word’s usage accords with its dictionary
definition.” Yates v. United States, 135 S. Ct. 1074, 1082
(2015). Under one prominent dictionary definition shortly
before 1974, the year of the proviso’s enactment, an officer
“serve[s] in a position of trust” or “authority,” especially as
“provided for by law.” Officer, Webster’s Third New
International Dictionary (1971); see also Officer, Black’s
Law Dictionary (4th ed. rev. 1968) (“[A]n officer is one
holding a position of trust and authority . . . .”). TSOs satisfy
this definition, as they are “tasked with assisting in a critical
aspect of national security — securing our nation’s airports
and air traffic.” Vanderklok v. United States, 868 F.3d 189,
207 (3d Cir. 2017). To take another definition from the time,
officers are “charged” by the Government “with the power
and duty of exercising certain functions . . . to be exercised
for the public benefit.” Officer, Black’s Law Dictionary,
supra. TSOs qualify under this definition as well, as they
perform “the screening of all passengers and property,”
49 U.S.C. § 44901(a), to protect travelers from hijackings,
acts of terror, and other threats to public safety. For good
reason, the role is Transportation Security Officer, and TSOs
wear uniforms with badges that prominently display the title
“Officer.”1 Hence they are “officer[s]” under the proviso.
1
The title “officer” was adopted by the TSA in 2005,
with the uniforms and “officer” badges added in 2008. See
Press Release, Transp. Sec. Admin., Transportation Security
Officers Have Renewed Focus and New Look on Seventh
Anniversary of 9/11 (Sept. 11, 2008),
https://www.tsa.gov/news/releases/2008/09/11/transportation-
security-officers-have-renewed-focus-and-new-look-seventh.
Interestingly, a bill was introduced in 2011 that would have
9
If TSOs are officers by name, wear uniforms with
badges noting that title, and serve in positions of trust and
authority, what is the textual argument to rebut the
straightforward conclusion that they are “officer[s] of the
United States” under the proviso? It would be that the
Aviation Security Act creates the position of “law
enforcement officer,” 49 U.S.C. § 114(p)(1), one who carries
a firearm and can make arrests for criminal law violations, id.
§ 114(p)(2), while designating TSOs as “employee[s],” id.
§ 44901(a). This latter provision of the Aviation Security Act
borrows from the general civil-service statute for who is an
“employee.” That general provision is 5 U.S.C. § 2105,
which in turn defines “employee” to include “officer[s]” in
§ 2105(a). “Officer” is further defined as an individual
“appointed in the civil service by,” among others, “the head
of an Executive agency.” Id. § 2104(a)(1). But TSOs are not
appointed by the head of an Executive agency. Rather, they
are appointed by the TSA Administrator, formerly known as
the Under Secretary of Transportation for Security. See
49 U.S.C. § 44935 (1994), amended by FAA Reauthorization
Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186 (2018).
This official leads the TSA, see 49 U.S.C. § 114(b), but is not
the head of an Executive agency. Thus TSOs technically are
not “officers” under the Aviation Security Act.
But are they “officer[s]” under the Tort Claims Act?
A distinction between “employee[s]” and “officer[s]” appears
stripped TSOs of the title “officer” and of the “officer” badge.
See Stop TSA’s Reach In Policy Act, H.R. 3608, 112th Cong.
(2011), https://www.congress.gov/bill/112th-congress/house-
bill/3608/text (to be known, were it passed, as the STRIP
Act). It went nowhere. Thus what we know is that Congress
knew of the “officer” designation and decided to do nothing
to counter it.
10
in that Act, which (as noted) waives sovereign immunity for
the torts of an “employee,” see 28 U.S.C. § 1346(b), but
applies § 2680(h)’s waiver only to “officer[s],” id. § 2680(h).
Because TSOs fall on the “employee” side of the line in the
Aviation Security Act, do they as well in the Tort Claims
Act?
We think not.2 Aside from the single shared word
“officer,” there is no textual indication that only a specialized
“law enforcement officer” in the Aviation Security Act,
49 U.S.C. § 114(p), qualifies as an “officer of the United
States” under the proviso in the Tort Claims Act.
And neither Act’s statutory distinction between
“officer[s]” and “employee[s]” is airtight. Instead, both
statutes include “officers” within the meaning of the term
“employee.” See 28 U.S.C. § 2671 (providing in the Tort
Claims Act that “[e]mployee of the Government” includes
“officers or employees of any federal agency”); 49 U.S.C.
§ 44901(a) (providing in the Aviation Security Act that
“employee” is defined by 5 U.S.C. § 2105, which in turn
defines “employee” to include “officer”). We are hesitant to
put too much stock into a distinction between two terms that
are not themselves mutually exclusive. See also 49 U.S.C.
§ 44922(e) (providing that “[a] State or local law enforcement
officer who is deputized” into federal service by the TSA
Administrator “shall be treated as an ‘employee of the
Government’” for purposes of the proviso) (emphases added).
2
One Circuit has answered yes, see Corbett v. Transp.
Sec. Admin., 568 F. App’x 690, 701 (11th Cir. 2014) (per
curiam), but it did so in an unpublished, per curiam opinion
that is not binding in that Circuit, see 11th Cir. R. 36-2,
I.O.P. 7.
11
Moreover, grafting the Aviation Security Act’s
definitions of “employee” and “officer” onto the Tort Claims
Act yields a result inconsistent with case law, which includes
non-officers in the general civil-service laws as “investigative
or law enforcement officers” under the Tort Claims Act’s
proviso. See, e.g., Caban v. United States, 671 F.2d 1230,
1234 (2d Cir. 1982) (immigration agents); Moore v. United
States, 213 F.3d 705, 708 (D.C. Cir. 2000) (postal inspectors).
Because the definitions of “officer” and “employee” in
5 U.S.C. §§ 2104 and 2105 are underinclusive as applied to
the proviso, we are reluctant to depend on them for our
reading of “officer of the United States.” See also Jack Boger
et al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497,
519 & n.103 (1976) (arguing that the limitation to “any
officer of the United States” in the newly enacted proviso was
“apparently” not meant to import the “[w]ell-established . . .
statutory . . . distinction[]” between “officers” and
“employees” from 5 U.S.C. § 2104).
Even if there were uncertainty about the reach of the
term “officer of the United States,” it would be resolved in
favor of a broad scope. To begin, disputes over the breadth of
the Tort Claims Act “do[] not implicate the general rule that
‘a waiver of the Government’s sovereign immunity will be
strictly construed . . . in favor of the sovereign.’” Dolan v.
U.S. Postal Serv., 546 U.S. 481, 491 (2006) (quoting Lane v.
Peña, 518 U.S. 187, 192 (1996)). And here the statutory
reference to “any officer” — as opposed to, say, criminal
officer — supports an expansive reading. See Boyle v. United
States, 556 U.S. 938, 944 (2009) (“The term ‘any’ ensures
that the definition has a wide reach[.]” (citation omitted)).
Furthermore, as recently as 2013 the Supreme Court clamped
down on a cramped reading of the proviso. See Millbrook,
569 U.S. at 56–57. As the Fifth Circuit recently put it, “[t]he
[Millbrook] Court held there to be no implicit limits on the
12
statutory language.” Campos v. United States, 888 F.3d 724,
737 (5th Cir. 2018). If we follow suit, then no limiting words
— like “criminal” or “traditional” before “officer” — should
be added to the proviso.
The Supreme Court’s expansive reading also set the
tone for the Seventh Circuit’s sweeping view of the proviso
last year. See Bunch v. United States, 880 F.3d 938, 945 (7th
Cir. 2018) (Wood, C.J.) (concluding that an ATF chemist
could qualify under the proviso, and explaining that “[w]e are
also influenced by the broad reading of the law-enforcement
proviso that the Court adopted in Millbrook”). Our decision
today that TSOs are “officer[s] of the United States” is
consistent with the broad constructions announced in
Millbrook and Bunch.
2. “ . . . Empowered by Law . . .”
To repeat, the complete proviso definition for an
“investigative or law enforcement officer” is “any officer of
the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations
of Federal law.” 28 U.S.C. § 2680(h). By its plain terms, the
phrase “empowered by law” narrows the scope of “officer[s]”
covered from the set of all “officer[s] of the United States” to
the subset of those with the authority to, among other things,
“execute searches.”
Turning, then, to the statutory authority of TSOs, they
are empowered by law to conduct “the screening of all
passengers and property.” 49 U.S.C. § 44901(a). Screening,
in turn, is defined in part as a “physical examination,”
including a “physical search.” Id. § 44901(g)(4) (regarding
screening of luggage). Hence TSOs are “empowered by law”
within the meaning of the proviso.
13
3. “ . . . To Execute Searches . . .”
TSO screenings are “searches” (i) as a matter of
ordinary meaning, (ii) under the Fourth Amendment, and
(iii) under the definition provided in Terry v. Ohio, 392 U.S. 1
(1968). Attempts to distinguish (iv) between administrative
and criminal “searches” are divorced from the plain text, and
any distinction, if one must be made, should account for
(v) the fact that TSA searches extend to the general public
and involve examinations of an individual’s physical person
and her property.
(i) Ordinary Meaning. — TSOs perform “searches” as
understood in ordinary parlance. Of the many dictionary
definitions that bear this out, to search is “to examine (a
person) thoroughly to check on whatever articles are carried
or concealed.” Search, Webster’s Third New International
Dictionary (1971); see also Search, Black’s Law Dictionary
(4th ed. rev. 1968) (“an examination or inspection . . . with [a]
view to discovery of stolen, contraband, or illicit property”).
Dictionaries aside, one could simply ask any passenger at any
airport. Indeed, the very TSOs who screened Pellegrino
called their procedure a search: “While [a TSO] was doing
the searches, [Pellegrino] continued to be verbally abusive.
When the search was complete, the passenger asked that she
repack her own bags . . . .” J.A. 215 (incident report).
The Aviation Security Act’s statutory and regulatory
regime reflects this ordinary usage. TSOs perform
“screening[s] of all passengers and property,” 49 U.S.C.
§ 44901(a), which include “physical search[es],” id.
§ 44901(g)(4) (screening of luggage). Likewise, TSA
regulations provide that airlines “must refuse to transport . . .
[a]ny individual who does not consent to a search or
inspection of his or her person” and “[a]ny property of any
individual or other person who does not consent to a search
14
or inspection of that property.” 49 C.F.R. § 1544.201(c)
(emphases added); see also id. § 1540.107(a) (“No individual
may enter a sterile area or board an aircraft without
submitting to the screening and inspection of his or her
person and accessible property in accordance with the
procedures being applied to control access to that area or
aircraft under this subchapter.”).
(ii) Fourth Amendment. — Setting aside the ordinary
meaning of “search,” airport screenings are searches as well
under the Fourth Amendment. George v. Rehiel, 738 F.3d
562, 577 (3d Cir. 2013). No warrant is required, and no
individualized suspicion need exist. Id.; see also Nat’l
Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3
(1989) (noting “the Federal Government’s practice of
requiring the search of all passengers seeking to board
commercial airliners, as well as the search of their carry-on
luggage, without any basis for suspecting any particular
passenger of an untoward motive”) (emphases added).
The Government does not dispute that holding.
Instead, it contends that consent by passengers cancels the
Fourth Amendment’s effect. But the presence or absence of
consent does not determine whether a search has occurred for
purposes of the Fourth Amendment. See George, 738 F.3d at
575 (“The constitutionality of an airport screening search . . .
does not depend on consent . . . . [A]ll that is required is the
passenger’s election to attempt entry into the secured area.”
(internal quotation marks omitted) (quoting United States v.
Aukai, 497 F.3d 955, 961 (9th Cir. 2007) (en banc))). In any
event, TSO screenings are not consensual. As noted, per TSA
regulations any individual who does not consent to a “search
or inspection” may not board a flight. 49 C.F.R.
§ 1544.201(c); see also id. § 1540.107(a).
15
(iii) Meaning under Terry. — TSA screenings even
meet the definition of the particular subset of Fourth
Amendment searches announced in Terry just six years
before the enactment of the proviso. “[W]hen Congress
employs a term of art, it . . . knows and adopts the cluster of
ideas that were attached to each borrowed word in the body of
learning from which it was taken . . . .” FAA v. Cooper, 566
U.S. 284, 292 (2012) (internal quotation marks omitted).
Terry provided a vivid definition of “search”: “[I]t is
nothing less than sheer torture of the English language to
suggest that a careful exploration of the outer surfaces of a
person’s clothing all over his or her body in an attempt to
find weapons is not a ‘search.’” Terry, 392 U.S. at 16
(emphasis added). This is an apt description of the duties of a
TSO, who by statute may “thoroughly conduct” an
exploration “over an individual’s entire body.” 49 U.S.C.
§ 44935(f)(1)(B)(v). The TSA’s website elaborates that
TSOs inspect “sensitive areas such as breasts, groin, and the
buttocks” and must use “sufficient pressure to ensure
detection.” Transp. Sec. Admin., Security Screening,
https://www.tsa.gov/travel/security-screening (last visited
Aug. 14, 2019). To deny that TSOs perform “searches” is to
ignore Terry’s admonition against side-stepping the term’s
obvious meaning.
To be sure, Terry typically requires reasonable
suspicion for a search. But that is not the point here. Under
Terry, the existence of reasonable suspicion determines
whether a search was justified, not whether it occurred in the
first place. An inspection may meet the definition of “search”
under Terry yet involve no reasonable suspicion. In that
situation, the incident is still a search; it is simply an unlawful
search.
16
(iv) Refuting a Distinction Between Criminal and
Administrative Searches. — Some courts have perceived a
distinction between two types of “searches”: those based on
individualized suspicion performed by criminal law
enforcement (no doubt covered by the proviso), and those,
like health inspections, that further an administrative purpose
(not covered). See, e.g., Hernandez v. United States, 34 F.
Supp. 3d 1168, 1180–81 (D. Colo. 2014).
The only textual support for this distinction comes
from the interpretive canon noscitur a sociis (to know
something by its accompanying words). At three points in the
proviso — “execute searches,” “seize evidence,” and “make
arrests” — neighboring words arguably carry criminal
connotations that possibly color the meaning of “searches.”
In reverse order, “mak[ing] arrests” to curb federal law
violations no doubt has a criminal color, and TSOs (unless
specially designated, see 49 U.S.C. § 114(p)) do not make
arrests. They arguably seize evidence, but for our purposes
they typically confiscate contraband in the pre-boarding
process; thus we assume for the sake of argument that “seize
evidence” also has a criminal connotation. If both making
arrests and seizing evidence have criminal functions, why
doesn’t “execute searches”? After all, Congress typically
uses “execute” in the sense of “to execute a search warrant,”
which is based on probable cause to believe that criminal
activity exists. E.g., 18 U.S.C. § 3109 (emphasis added).
But Congress chose not to include the terms “warrant”
or “search warrant” in § 2680(h). For this reason, the Seventh
Circuit recently rejected a reading of the proviso that would
have limited “searches” to those based on warrants:
“[S]ection 2680(h) does not require [the officer] to have had
authority to seek and execute search warrants; it speaks only
of executing searches, and many searches do not require
warrants.” Bunch, 880 F.3d at 945 (emphasis in original)
17
(citations omitted). This removes the proviso from the ambit
of exclusively criminal searches. Nor does the verb
“execute” automatically transform “searches” into
specifically criminal searches; Congress uses milder verbs
than “execute” even in the criminal context. E.g., 42 U.S.C.
§ 2000aa-11(a)(4) (discussing requirements “for a warrant to
conduct a search”). As a result, mere use of “execute” does
not create a distinction between criminal searches and
administrative searches.
Moreover, we are doubly slow to apply the noscitur
canon here. Not only is the term “searches” clear, see Russell
Motor Car Co. v. United States, 261 U.S. 514, 520 (1923),
but the three duties in the proviso are listed in the disjunctive
(“to execute searches, to seize evidence, or to make arrests”).
“When Congress has separated terms with the conjunction
‘or,’” the canon often “is of little help.” In re Continental
Airlines, Inc., 932 F.2d 282, 288 (3d Cir. 1991) (Scirica, J.)
(citations omitted). Each of the three duties independently
suffices to define “investigative or law enforcement officer.”
See Bunch, 880 F.3d at 943. As even the counsel for the
Government stated at oral argument, satisfying the proviso
“would depend . . . on the individual statutory authority”
measured against the three listed duties. Tr. of En Banc Oral
Arg. at 35:10–11. We agree; the three statutory duties in the
proviso begin and end the inquiry. No resort to amorphous
criminal connotations is warranted.
No surprise, then, that every decision on the scope of
the proviso tests whether any single duty is statutorily
present. Some federal officers qualify because they perform
“searches.” See Bunch, 880 F.3d at 943 (ATF chemists); cf.
Caban, 671 F.2d at 1234 n.4 (immigration agents). Others
make arrests, and therefore qualify even if they don’t play a
traditional law enforcement role. See Campos, 888 F.3d at
737 (Customs and Border Protection officers); Nurse v.
18
United States, 226 F.3d 996, 1002 (9th Cir. 2000) (same);
Celestine v. United States, 841 F.2d 851, 853 (8th Cir. 1988)
(per curiam) (Veterans’ Administration hospital security
guards); Hernandez v. Lattimore, 612 F.2d 61, 64 n.7 (2d Cir.
1979) (Bureau of Prisons officers); cf. Moore, 213 F.3d at 708
(postal inspectors). Only when officers lack all three duties
are they outside the scope of the proviso. See Wilson v.
United States, 959 F.2d 12, 15 (2d Cir. 1992) (per curiam)
(parole officers); EEOC v. First National Bank of Jackson,
614 F.2d 1004, 1008 (5th Cir. 1980) (Equal Employment
Opportunity Commission agent); Solomon v. United States,
559 F.2d 309, 310 (5th Cir. 1977) (per curiam) (security
guard at military exchange). These cases do not speak in
terms of “criminal” or “non-criminal” functions. Instead,
they measure each job’s statutory duties against the three
duties listed in the proviso. Our reading does the same.
Indeed, we could apply the same analysis to both
TSOs and TSA “law enforcement officers” per 49 U.S.C.
§ 114(p)(1). Between the two groups, all three of the
proviso’s listed duties are accounted for. TSA law
enforcement officers are authorized to (i) make arrests and
(ii) seize evidence, see id. § 114(p)(2), while TSOs
(iii) execute searches, see id. § 44901(a). Taken together, the
roles of both groups map onto the three-part, and disjunctive,
definition set out in the proviso.
Another conceivable way the noscitur canon might
arrive at a distinction between criminal and administrative
searches is by parsing the particular intentional torts against
which the proviso waives immunity: assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution. To be sure, these torts are commonly claimed
against criminal law enforcement officers performing
criminal law functions. But as our case demonstrates, that
these torts are typically brought against criminal law
19
enforcement officers does not mean that they are exclusively
brought against them.
Nor does a lack of training on the constitutional
doctrines underpinning these torts absolve TSOs of liability.
Congress knows how to define “law enforcement officers” by
reference to training. See, e.g., 12 U.S.C. § 248(q)(4) (“[T]he
term ‘law enforcement officers’ means personnel who have
successfully completed law enforcement training . . . .”).
Here, by contrast, the proviso defines “investigative or law
enforcement officer” not by reference to constitutional
training, but by the legal authority to “execute searches.”
Training has no bearing on whether TSOs are “investigative
or law enforcement officers.” For good reason, no court has
ever relied on an officer’s lack of training to conclude that she
was not an “investigative or law enforcement officer” under
28 U.S.C. § 2680(h).
At bottom, Congress chose to re-waive sovereign
immunity only for certain torts to cabin the Government’s
liability, not to provide an indirect textual clue about the
meaning of “investigative or law enforcement officer.” See
Sami v. United States, 617 F.2d 755, 764–65 (D.C. Cir. 1979)
(“[B]y limiting the wrongs covered in the § 2680(h) exception
. . . , Congress set finite boundaries around the kind of law
enforcement abuses for which it wished to make the
government liable.”).
(v) Distinctions From Typical Administrative
Searches. — If we must draw distinctions between “searches”
in the proviso, the possible distinction between criminal and
administrative searches is incomplete. A further distinction
within administrative searches may be needed — one that
accounts for the physically intrusive and ubiquitous nature of
TSA searches.
20
To begin, TSO screenings often involve invasive
examinations of the physical person. As even the panel
majority in this case acknowledged, TSA searches are
“rigorous and intimate for individuals.” Pellegrino, 896 F.3d
at 230. This sets them apart from other administrative
searches that involve only inspections of property or the
environment. E.g., 21 U.S.C. § 606(a) (providing for “an
examination and inspection of all meat food products”);
15 U.S.C. § 330c(a) (providing for “inspection of the books,
records, and other writings” relating to weather modification).
The intimate physical nature of TSA searches also
harmonizes our decision today with Matsko v. United States,
372 F.3d 556 (3d Cir. 2004), in which we held that an
inspector of the Mine Safety and Health Administration, who
had the “authority to inspect mines and investigate possible
violations,” was not covered by the proviso. Id. at 560
(citation omitted). Our Court also asserted in a dictum that
“employees of administrative agencies, no matter what
investigative conduct they are involved in, do not come
within the § 2680(h) exception.” Id. Taken literally, this
statement says too much; employees of “administrative
agencies” such as the FBI, DEA, and ATF all are within the
ambit of § 2680(h). To the extent Matsko can be read to hold
that mine safety inspectors are outside the proviso simply
because they are administrative agency employees, it is no
longer valid.
Next, the risk of abuse is greater for TSO screenings
than for most other administrative searches. Because TSA
searches affect the public directly, the potential for
widespread harm is elevated. This potential for abuse in
borne out by Pellegrino’s own experience. There is a reason
21
that FDA meat inspectors do not generate headlines about
sexual assault and other intimate violations.3
In sum, we hold only that TSO screenings are
“searches” under the proviso because they are more personal
than traditional administrative inspections — they extend to
the general public and involve examinations, often intrusive,
of an individual’s physical person along with her property.
3
See, e.g., Rowaida Abdelaziz, Muslim Woman Says
TSA Forced Her to Show Her Bloodied Pad During Airport
Screening, Huffington Post (Aug. 23, 2018),
https://bit.ly/2LjzI7r; Lori Aratani, Watch the Video of TSA
Officers Doing a Pat-Down of a 96-Year-Old Woman in a
Wheelchair That Has People Outraged, Wash. Post (June 12,
2018), https://wapo.st/2Om6SFi; Travis Andrews, ‘You
Cannot Touch Me There,’: Breast Cancer Patient Claims TSA
‘Humiliated’ and ‘Violated’ Her, Wash. Post (Dec. 8, 2016),
http://wpo.st/ieQP2; Elizabeth Chuck, Father Outraged by
‘Uncomfortable’ TSA Pat-Down on 10-Year-Old Daughter,
NBC News (Jan. 6, 2016), http://nbcnews.to/1Ju6h0M; Ray
Sanchez, New York TSA Worker Accused of Sexually Abusing
Passenger, CNN (Aug. 29, 2015, 7:29 AM),
https://www.cnn.com/2015/08/28/us/new-york-tsascreener-
charged/index.html; Omar Villafranca, TSA Agents Allegedly
Strip-Search Woman, Fiddle with Feeding Tube, NBC News
(July 19, 2012), http://bit.ly/2dk1VjL; Richard Esposito &
Alicia Tejada, Now Three Grandmas Say They Were Strip-
Searched at JFK, ABC News (Dec. 6, 2011),
http://abcn.ws/2dSDiJL.
22
4. “ . . . For Violations of Federal Law.”
Under the proviso, investigative or law enforcement
officers must be authorized “to execute searches, to seize
evidence, or to make arrests for violations of Federal law.”
28 U.S.C. § 2680(h) (emphasis added). To begin, the phrase
“for violations of Federal law” may not even apply to the
power to “execute searches.” When interpreting a statute that
includes “a list of terms or phrases followed by a limiting
clause,” that clause “should ordinarily be read as modifying
only the noun or phrase that it immediately follows.”
Lockhart v. United States, 136 S. Ct. 958, 962 (2016)
(citations omitted). This is the so-called rule of the last
antecedent, which the Supreme Court recently applied as
follows: Interpreting a statute listing “aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward,” the Court held that “the limiting phrase that
appears at the end of that list — ‘involving a minor or ward’
— . . . modifies only ‘abusive sexual conduct,’ the antecedent
immediately preceding it.” Id. (construing 18 U.S.C.
§ 2252(b)(2)). Applying that rule here, the phrase “for
violations of Federal law” would modify only the last
antecedent, “make arrests,” not “execute searches.”
But we need not decide whether that rule applies here,
as TSOs do execute searches “for violations of Federal law.”
See, e.g., 49 U.S.C. § 46505 (providing criminal penalties for
“[c]arrying a weapon or explosive on an aircraft”); 49 C.F.R.
§§ 172.101, 175.10(a) (listing “hazardous materials” that are
not permitted on flights). The phrase “for violations of
Federal law” sweeps notably broader than other statutes that
specify violations of criminal law. See, e.g., 18 U.S.C.
§ 115(c)(1) (defining “Federal law enforcement officer” by
reference to “any violation of Federal criminal law”);
5 U.S.C. § 8331(20) (defining “law enforcement officer” by
reference to “offenses against the criminal laws of the United
23
States”). To be sure, Congress could have said that an officer
could “seize evidence” or “make arrests” only “for violations
of Federal [criminal] law.” But it didn’t. And even if it did,
TSOs search for weapons and explosives, and carrying them
on board an aircraft is a criminal offense. See, e.g., 49 U.S.C.
§ 46505; see also Enforcement Sanction Guidance Policy,
Transp. Sec. Admin.,
https://www.tsa.gov/sites/default/files/enforcement_sanction_
guidance_policy.pdf (last visited Aug. 15, 2019) (noting that
TSOs may refer offenders “for criminal investigation and
enforcement . . . where there appears to be a violation of
criminal laws”). In sum, “violations of Federal law” means
only what it says; by its plain text, it covers more than just
criminal violations.
Finally, that airport contraband is legal in some non-
flight contexts does not change this conclusion. As long as
TSOs screen for items federal law bars on airplanes, they are
searching for “violations of Federal law.”
B. Usages of “Law Enforcement Officer” Beyond the
Proviso
The textual analysis above is enough to satisfy the
proviso’s four-part definition of “investigative or law
enforcement officer.” For three reasons, other statutory
usages of “law enforcement officer” beyond the proviso do
not change that outcome.
First, Congress’s use of the bare term “law
enforcement officer” says nothing about the term
“investigative or law enforcement officer” in the proviso.
“[O]r” is “disjunctive,” and “terms connected by a disjunctive
[should] be given separate meanings unless the context
dictates otherwise.” United States v. Urban, 140 F.3d 229,
232 (3d Cir. 1998) (internal quotation marks omitted); see
24
also Whether Agents of the Department of Justice Office of
Inspector General Are ‘Investigative or Law Enforcement
Officers’ Within the Meaning of 18 U.S.C. § 2510(7), 14 Op.
O.L.C. 107, 108 (1990) (recognizing that the disjunctive “or”
means that “law enforcement” officers must be different from
“investigative” officers). This diminishes any purported
value of several statutes that define “law enforcement officer”
in criminal circumstances. E.g., 5 U.S.C. § 8331(20)
(providing that “‘law enforcement officer’ means . . . .”);
12 U.S.C. § 248(q)(4) (providing that “the term ‘law
enforcement officers’ means . . . .”); 18 U.S.C. § 245(c)
(same); id. § 1515(a)(4) (same); id. § 115(c)(1) (providing
that “the term . . . ‘Federal law enforcement officer’
means . . . .”). Deploying these other statutes to discern the
meaning of § 2680(h) “would render a significant part of [the
proviso] a nullity,” see Prot. & Advocacy for Persons with
Disabilities v. Mental Health & Addiction Servs., 448 F.3d
119, 125 (2d Cir. 2006) (Sotomayor, J.), by disregarding its
reference to “investigative” officers. That disregard “violates
the settled rule that a statute must . . . be construed in such
fashion that every word has some operative effect.” United
States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992) (citations
omitted).
Second, it is unnecessary to explore the entire U.S.
Code to discern the contours of the term “investigative or law
enforcement officer,” because Congress provided an
expressly local definition in the proviso. “When a statute
includes an explicit definition, we must follow that definition,
even if it varies from that term’s ordinary meaning.”
Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (citation
omitted); see also Bond v. United States, 572 U.S. 844, 871
(2014) (Scalia, J., concurring in the judgment) (observing that
we may not resolve any perceived “‘dissonance’ between
ordinary meaning and the unambiguous words of a definition
. . . in favor of ordinary meaning” because, “[i]f that were the
25
case, there would hardly be any use in providing a
definition”). The proviso fits this rule: “For the purpose of
this subsection, ‘investigative or law enforcement officer’
means any officer of the United States who is empowered by
law to execute searches, to seize evidence, or to make arrests
for violations of Federal law.” 28 U.S.C. § 2680(h)
(emphasis added). Indeed, criminal-related definitions of
“law enforcement officer” are also expressly local. See, e.g.,
5 U.S.C. § 8331(20) (“For the purpose of this
subchapter . . . .”); 12 U.S.C. § 248(q)(4) (“For purposes of
this subsection . . . .”); 18 U.S.C. § 115(c)(1) (“As used in this
section . . . .”); id. § 245(c) (“For purposes of the preceding
sentence . . . .”); id. § 1515(a)(4) (“As used in sections 1512
and 1513 of this title and in this section . . . .”); id. § 2510(7)
(“As used in this chapter . . . .”). In short, the proviso’s own
definition overrides any other usages of “law enforcement
officer.”
Third, Congress knows how to give an explicitly
“criminal” meaning to the term “law enforcement officer,”
and it chose not to do so here. See, e.g., 5 U.S.C. § 8331(20)
(defining “law enforcement officer” by reference to “offenses
against the criminal laws of the United States”); 18 U.S.C.
§ 115(c)(1) (defining “Federal law enforcement officer” by
reference to “any violation of Federal criminal law”); id.
§ 2510(7) (defining “investigative or law enforcement
officer” by reference to “offenses enumerated in this chapter
[of the criminal title]”); 34 U.S.C. § 12392(b)(2) (“state and
local criminal law enforcement officials”). That other usages
of “law enforcement officer” explicitly speak in terms of
“criminal” law only heightens the absence of any such
reference in § 2680(h). Hence the proviso is not confined to
“criminal” law enforcement officers.
26
C. No Recourse to Legislative History
We make no mention of legislative history. Where a
statute is unclear on its face, good arguments exist that
materials making known Congress’s purpose “should be
respected, lest the integrity of legislation be undermined.”
Robert A. Katzmann, Judging Statutes 4 (2014).
Accordingly, our Court “has declined to employ legislative
history if a statute is clear on its face,” but “we have allowed
recourse to legislative history in the face of ambiguity.”
Bruesewitz v. Wyeth, Inc., 561 F.3d 233, 244 (3d Cir. 2009)
(Smith, J.), aff’d sub nom. Bruesewitz v. Wyeth LLC, 562 U.S.
223, 242 (2011) (Scalia, J.) (noting that “legislative history is
persuasive to some because it is thought to shed light on what
legislators understood an ambiguous statutory text to mean”
(citation omitted)).
Here, however, the text tells the tale. Cf. United States
v. A.M., 927 F.3d 718, 719 (3d Cir. 2019) (“The text of a law
governs its reach. We will neither read in new limits nor read
out existing limits on its application.”). Congress could have
chosen to insert “criminal” into the proviso. It did not, and
thus we follow suit.4
4
Even precise and voluminous legislative history can be
off the mark at times. For example, the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§§ 1961–68, was enacted in 1970 to combat the rise of
organized crime. See, e.g., United States v. Turkette, 452
U.S. 576, 589 (1981) (“[I]t was the declared purpose of
Congress ‘to seek the eradication of organized crime in the
United States . . . .’”) (quoting the statement of findings
prefacing the Organized Crime Control Act of 1970, Pub. L.
91-452, 84 Stat. 923); see also 116 Cong. Rec. 602 (1970)
27
Our following Congress’s lead rests on our view of the
proper relationship between Congress and the courts. As we
recently put it,
[t]he critical question is who should decide
whether to provide for a damages remedy,
Congress or the courts? Most often, the answer
is Congress. Because, when an issue involves a
host of considerations that must be weighed and
appraised, it should be committed to those who
write the laws rather than those who interpret
them.
(remarks of Sen. Yarborough) (“a full scale attack on
organized crime”); id. at 819 (remarks of Sen. Scott)
(“purpose is to eradicate organized crime in the United
States”); id. at 35199 (remarks of Rep. Rodino) (“a truly full-
scale commitment to destroy the insidious power of organized
crime groups”). But, following “the statute as written” to its
logical linguistic conclusion, the Supreme Court allowed
private civil actions under RICO against not only “the
archetypal, intimidating mobster,” but also “respected and
legitimate enterprises.” Sedima, S.P.R.L. v. Imrex Co., 473
U.S. 479, 499 (1985) (quotation marks omitted). In doing so,
the Court recognized that RICO was “evolving into
something quite different from the original conception of its
enactors,” id. at 500, but insisted that the job of correcting
“this defect — if [a] defect it is — . . . lie[s] with Congress,”
id. at 499. “[T]he fact that RICO has been applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.” Id.
(quotations omitted). So too with the proviso.
28
Vanderklok, 868 F.3d at 206 (citations and quotations
omitted). Our reading today is consistent with this
conception of the judicial role. As counsel for the
Government put it at oral argument, “ultimately it’s up to
Congress to create a remedy.” Tr. of En Banc Oral Arg. at
44:9–10. Here, Congress has created a remedy; we are
simply giving effect to the plain meaning of its words.
D. Consequences of Our Ruling
Before concluding, we note the implications of the
choice before us. If TSOs are not “investigative or law
enforcement officers” under the proviso, then plaintiffs like
Pellegrino are left with no avenue for redress. We have
already held (and correctly so) that TSOs are not susceptible
to an implied right of action under Bivens for alleged
constitutional violations, see Vanderklok, 868 F.3d at 209, so
a Tort Claims Act action is the only remaining route to
recovery. Without recourse under that Act, plaintiffs like
Pellegrino will have no remedy when TSOs assault them,
wrongfully detain them, or even fabricate criminal charges
against them.
If, on the other hand, TSOs are “investigative or law
enforcement officers,” we discern no risk of sweeping
liability and certainly no concomitant threat to the public fisc.
In 2015, for example, fewer than 200 people (out of over 700
million screened) filed complaints with the TSA alleging
harm that would fall within the scope of the proviso.
Corrected Tr. of Panel Oral Arg. at 26:8–17. In 2017, only
one out of every 100,000 passengers lodged a complaint
about the “courtesy” of a TSO, see Gary S. Becker, TSA
Complaint Data Reveals Airport Screening Trends, Security
Debrief (Mar. 16, 2018),
http://securitydebrief.com/2018/03/16/tsa-complaint-data-
airport-screening/, a statistic beyond suits alleging harm that
29
could fit § 2680(h). If past is prologue, a passenger is
unlikely to bother bringing a suit short of facing mistreatment
akin to Pellegrino’s.
Nor is our ruling meant to draw every administrative
search into the ambit of the proviso. As explained above,
TSO screenings fall within the proviso because they are more
personal than traditional administrative inspections: They
extend to the general public and involve searches of an
individual’s physical person and her property. See supra pp.
20–22.
Conclusion
Words matter. This core tenet of statutory
interpretation channels our conclusion today: TSOs are
“investigative or law enforcement officers” as defined in the
Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s]
of the United States” by dint of their title, badge, and
authority. They are “empowered by law to execute searches”
because, by statutory command and implementing regulation,
they may physically examine passengers and the property
they bring with them to airports. And the TSOs’ searches are
“for violations of Federal law” given that their inspections are
for items that federal law bans on aircraft (often with criminal
consequences).
As nearly all of us can attest who have flown on an
aircraft in the United States, the overwhelming majority of
TSOs perform their jobs professionally despite far more
grumbling than appreciation. Their professionalism is
commensurate with the seriousness of their role in keeping
our skies safe. The life-and-death duties entrusted to them
fall naturally within the ambit of the proviso.
30
Thus we reverse the decision of the District Court as it
pertains to the interpretation of the proviso in the Tort Claims
Act. We affirm in all other respects.
31
KRAUSE, Circuit Judge, dissenting, joined by JORDAN,
HARDIMAN, and SCIRICA, Circuit Judges.
The Majority and I agree that words matter, that our role
is to interpret Congress’s statute and not to rewrite it, and that
the United States retains sovereign immunity absent a clear and
unambiguous waiver. But our statutory analyses of the so-
called “law enforcement proviso” lead us to very different
conclusions and demonstrate definitively, in my view, that
TSA screeners do not qualify as “investigative or law
enforcement officers.” At the very minimum, however, these
two thoughtful opinions demonstrate that the proviso is
susceptible to divergent yet “plausible interpretation[s].” FAA
v. Cooper, 566 U.S. 284, 290–91 (2012). That conclusion, in
and of itself, requires us to affirm the District Court’s dismissal
of Pellegrino’s FTCA claims because “a waiver of sovereign
immunity must be ‘unequivocally expressed’ in statutory text,”
and “[a]ny ambiguities in the statutory language are to be
construed in favor of immunity.” Id. at 290 (quoting Lane v.
Pena, 518 U.S. 187, 192 (1996)).
From its earliest days, the Supreme Court has counseled
that the “meaning of a word, and consequently, the intention of
the legislature,” must be “ascertained by reference to the
context” in which that word appears. Neal v. Clark, 95 U.S.
704, 709 (1878). I therefore read the words at issue in the
context of the statute as a whole and of settled Fourth
Amendment doctrine to conclude that the law enforcement
proviso is limited by its terms to officers empowered to
exercise traditional police powers—including investigatory
searches for law enforcement purposes, but not administrative
searches for programmatic purposes.
1
The Majority, by contrast, dissects the law enforcement
proviso into individual words and isolated phrases—text
without context—and picks the broadest conceivable
definition of each word. It thereby recasts Congress’s chosen
words—“any officer of the United States empowered by law
to execute searches . . . for violations of Federal law”—in its
own mold as “any Federal employee empowered to perform a
Fourth Amendment search . . . for any purpose.” In this way,
the Majority provides a remedy where Congress has not and
sweeps in not just TSA screeners, but also countless other civil
servants, simply because they (a) are employed by the federal
government; and (b) have authority to perform inspections,
issue administrative subpoenas, conduct audits, perform drug
testing, or conduct any of the countless other routine,
suspicionless searches authorized by federal law.
That breathtaking expansion of the proviso is textually
unsound, departs from other circuits, and contravenes the rule
that waivers of sovereign immunity must be strictly construed
in favor of the Government. Because we should be reading
Congress’s words together to give them the meaning that
Congress intended and because we should not subject the
United States Treasury to vast tort liability where Congress has
not done so clearly and unambiguously, I respectfully dissent.
I. The Plain Language of the Proviso Excludes
Administrative Employees, Like TSA Screeners,
Who Conduct Routine, Suspicionless Searches
As with all cases involving statutory interpretation, the
text must guide our analysis. But text cannot be interpreted in
a vacuum. In law as in life, the meaning that we ascribe to
words depends on the words that surround them, considering
both “the specific context in which that language is used, and
2
the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997); see Abramski v.
United States, 573 U.S. 169, 179 (2014) (explaining that courts
must “interpret the relevant words not in a vacuum, but with
reference to the statutory context”). If a friend told me she was
“held up,” for example, I would need to consider the context to
know if she had been robbed or merely delayed. As applied to
statutes, this commonsense principle, in legal jargon termed
noscitur a sociis, is “wisely applied where a word is capable of
many meanings in order to avoid the giving of unintended
breadth to the Acts of Congress.” Dolan v. USPS, 546 U.S.
481, 486 (2006) (quoting Jarecki v. G. D. Searle & Co., 367
U.S. 303, 307 (1961)).
Applying this principle to interpret the words of the law
enforcement proviso in their statutory context, TSA screeners
are neither “empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal law,” nor
empowered by law as “officer[s] of the United States.” 28
U.S.C. § 2680(h).
A. Screeners Are Not “Empowered by Law to
Conduct Searches . . . for Violations of
Federal Law”
The law enforcement proviso waives sovereign
immunity only if the alleged tortfeasor “is empowered by law
to execute searches, to seize evidence, or to make arrests for
violations of Federal law.” 28 U.S.C. § 2680(h). The Majority
contends the proviso covers TSA screeners because they are
“empowered by law to execute searches . . . for violations of
Federal law.” 28 U.S.C. § 2680(h) (emphasis added). Read in
context, however, “execute searches . . . for violations of
Federal law” connotes traditional police powers and refers to
3
investigatory searches, not administrative searches.
1. The Law Distinguishes Between
Investigatory and Administrative Searches,
with TSA Screeners Conducting Only the
Latter
To interpret the meaning of “execute searches . . . for
violations of Federal law,” I begin with contemporaneous
dictionaries and Fourth Amendment jurisprudence. While
leaning on Black’s Law Dictionary to pick a favored definition
of “officer,” see Maj. Op. 9, the Majority omits that the same
edition defined “search” as “[a]n examination of a man’s house
or other buildings or premises, or of his person, with a view to
the discovery of . . . some evidence of guilt to be used in the
prosecution of a criminal action.”1 Search, Black’s Law
Dictionary 1518 (4th ed. 1968) (emphasis added). As this
definition reflects, when Congress passed the law enforcement
proviso in 1974, “execute search,” just like “seize evidence”
and “make arrests,” referred in the law primarily to the exercise
1
In a curious “see also” citation, the Majority quotes
what it describes as a definition of “[s]earch” that purportedly
would cover TSA screenings. See Maj. Op. 14. But the
Majority is not quoting the definition of “search,” but rather
the definition of the separate entry for “unlawful search.” And
once the omission in the Majority’s quotation is restored, it is
clear that the definition actually refers to traditional
investigatory searches: “[a]n examination or inspection
without authority of law of premises or person with view to
discovery of stolen, contraband, or illicit property, or for some
evidence of guilt to be used in prosecution of criminal action.”
Unlawful Search, Black’s Law Dictionary 1518 (4th ed. 1968)
(emphasis added).
4
of traditional police powers.
At that time, “search” had only recently entered the
legal lexicon to refer to examinations “for non-law-
enforcement purposes such as employee drug screenings,
building inspections, health inspections, and other
administrative inspections.” Special-Needs Doctrine, Black’s
Law Dictionary (11th ed. 2019); see Administrative Search,
Black’s Law Dictionary (11th ed. 2019) (origin date of 1960);
Eve Brensike Primus, Disentangling Administrative Searches,
111 Colum. L. Rev. 254, 260 (2011) (noting that “the concept
of administrative searches first entered the law in the 1960s”).
To distinguish these searches from investigatory ones, they
were (and often still are) called “inspections,” “inspection
searches,” “regulatory searches,” or “administrative searches.”
Administrative Search, Black’s Law Dictionary (11th ed.
2019); see Inspection Searches, Black’s Law Dictionary 717
(5th ed. 1979).
Then, as now, the distinction between these two types
of searches undergirds much of Fourth Amendment doctrine.
In its foray into administrative searches, the Supreme Court
held that the Fourth Amendment posed no barrier, because they
were not “searches for evidence to be used in criminal
prosecutions.” Frank v. Maryland, 359 U.S. 360, 365 (1959);
see 5 Wayne R. LaFave, Search & Seizure § 10.1(a) (5th ed.
2018) (observing that under Frank the Fourth Amendment’s
applicability “depended upon whether the search was a part of
a criminal investigation which might lead to prosecution”).
Even when later overruling Frank, the Court deemed
administrative searches a distinct category of “search” that did
not require individualized suspicion because a routine
inspection presented “a less hostile intrusion than the typical
policeman’s search for the fruits and instrumentalities of
5
crime.” Camara v. Mun. Court of City & Cty. of San
Francisco, 387 U.S. 523, 530, 538 (1967). And to this day, the
Court continues to differentiate between investigatory and
administrative searches, City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000), with the “critical” distinction between these
two types of searches lying in their “primary purpose,”
Ferguson v. City of Charleston, 532 U.S. 67, 83–84 (2001).
Investigatory searches, which pertain “to criminal
investigations, not routine, noncriminal procedures,” Colorado
v. Bertine, 479 U.S. 367, 371 (1987) (citation omitted), have as
their “primary purpose . . . to detect evidence of ordinary
criminal wrongdoing,” and serve “the general purpose of
investigating crime,” Edmond, 531 U.S. at 38, 39; see
Ferguson, 532 U.S. at 73, 77, 83 (distinguishing searches with
“criminal investigatory purposes” and “the immediate
objective . . . to generate evidence for law enforcement
purposes” from “constitutionally permissible suspicionless
searches” (emphasis omitted)); Whren v. United States, 517
U.S. 806, 811–12 (1996) (distinguishing searches for
“violation of law” from administrative searches).
Administrative searches, on the other hand, require
neither individualized suspicion nor a warrant, but only
because “the ‘primary purpose’ of the search[] is
‘[d]istinguishable from the general interest in crime control’”
and is “other than conducting criminal investigations.”2 City
2
While the Supreme Court has also deemed school
searches a type of “special needs” search, they differ from
administrative searches because they are conducted to
determine whether a child “has violated or is violating . . . the
law” and therefore require reasonable suspicion. New Jersey
6
of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (quoting
Edmond, 531 U.S. at 44). These administrative searches are
ubiquitous and include regulatory searches, Colonnade
Catering Corp. v. United States, 397 U.S. 72, 74 (1970),
administrative subpoenas, Donovan v. Lane Steer, Inc., 464
U.S. 408, 415 (1984), inventory searches, South Dakota v.
Opperman, 428 U.S. 364, 382–83 (1976), workplace drug
testing, Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 620–
21 (1989), and border checkpoints, United States v. Martinez-
Fuerte, 428 U.S. 543, 561 (1976)—just to name a few.
Of these two types of searches, the screenings “now
routine at airports and at entrances to courts and other official
buildings,” Chandler v. Miller, 520 U.S. 305, 323 (1997), fall
squarely within the realm of “administrative searches,” Nat’l
Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3
(1989). At airports, such suspicionless screenings are not
implemented to gather evidence of a crime with an eye toward
criminal prosecution,3 but rather to effect “an administrative
v. T.L.O., 469 U.S. 325, 342 (1985); Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 371 (2009); see O’Connor v.
Ortega, 480 U.S. 709, 726 (1987) (declining to resolve whether
workplace searches require individualized suspicion). School
searches are therefore “special needs” searches not because
they further an administrative purpose, but because of the
government’s unique role as custodian of children. See T.L.O.,
469 U.S. at 342.
3
Most of the prohibited items for which TSA screeners
search are perfectly legal to possess in other contexts. See
What Can I Bring?, TSA, https://www.tsa.gov/travel/security-
7
purpose, namely, to prevent the carrying of weapons or
explosives aboard aircraft,” United States v. Aukai, 497 F.3d
955, 960 (9th Cir. 2007) (en banc) (internal quotation marks
and citation omitted), and thereby “prevent[] hijacking or like
damage,” Von Raab, 489 U.S. at 675 n.3 (quoting United States
v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (Friendly, J.)).
Unsurprisingly, then, TSA policy directs that screenings
“be tailored to the transportation security purpose for which
they are conducted” and forbids “[a]dministrative and special
needs searches . . . to detect evidence of crimes unrelated to
transportation security.” TSA Mgmt. Directive No. 100.4
¶¶ 6.B(1), C(1). If a screener’s preventative screening happens
to uncover evidence of a crime, she must “refer it to a
supervisor or a law enforcement official for appropriate
action”; she cannot seize the item, continue searching, or make
an arrest. Id. ¶ 6.C(1); see also id. ¶ 6.G(2). The “only TSA
personnel who [can] engage in law enforcement activities”—
such as detentions, arrests, seizures, and investigatory
searches—are TSA “law enforcement officers.” Id. ¶ 6.G(3);
see TSA Mgmt. Directive No. 1100.88-1 ¶ 4.A.
Thus, properly framed, the question presented today is
screening/whatcanibring/all (last visited Aug. 13, 2019). Thus,
if an individual is found with a prohibited item, the TSA can
impose only civil penalties: “Criminal penalties and fines are
different and wholly separate from the civil penalties assessed
by TSA,” and “[r]eferral for criminal investigation and
enforcement is appropriate where there appears to be a
violation of criminal laws.” Enforcement Sanction Guidance
Policy, TSA, https://www.tsa.gov/sites/default/files/
enforcement_sanction_guidance_policy.pdf (last visited Aug.
13, 2019); see also 49 C.F.R. § 1503.401.
8
whether, in enacting the proviso, Congress meant to include
only traditional investigatory searches aimed at uncovering
“evidence of guilt to be used in the prosecution of a criminal
action,” Search, Black’s Law Dictionary 1518 (4th ed. 1968),
or also the then-newly recognized class of administrative
searches.
2. The Law Enforcement Proviso Covers Only
Investigatory Searches
In determining whether Congress intended to cover
administrative searches, we need not look beyond the proviso’s
inclusion of “execute,” “for violations of Federal law,” the
other duties (“seize evidence” and “make arrests”),
“investigatory or law enforcement officer,” and a narrowly
defined list of intentional torts. Each phrase suggests that
Congress intended to refer only to investigatory searches, and
together, they convey Congress’s unmistakable intent.
Execute Searches. The proviso does not use the word
“search” alone; it refers to the power to “execute searches”—a
term of art. Without exception, every other statute in the
United States Code that uses this phrase refers to investigatory
searches. E.g., 18 U.S.C. § 2231(a); id. § 2234; id. § 3109; 22
U.S.C. § 2709(a)(2). So does every Supreme Court and circuit
case that had been published before the proviso was enacted.
See, e.g., Chimel v. California, 395 U.S. 752, 756 (1969); Ng
Pui Yu v. United States, 352 F.2d 626, 628 (9th Cir. 1965).
Conversely, Congress typically uses markedly different
phrasing when granting employees the power to perform
9
administrative searches.4 See, e.g., 49 U.S.C. § 44901(a) (TSA
screeners conduct “screening[s]”); 29 U.S.C. § 657(a)(2)
(OSHA inspectors may “inspect and investigate”); 21 U.S.C.
§ 374(a)(1) (FDA inspectors may “enter” and “inspect”); 42
U.S.C. § 6927(a) (authorizing EPA inspectors “to enter” and
“to inspect”). Use of the phrase “execute searches” thus
signifies Congress’s intent to refer to investigatory searches.
Implying that it has some relevance to the plain meaning
of “execute searches,” the Majority observes that Congress
sometimes uses “milder” verbs than “execute” in the criminal
context and that the proviso does not include the terms
“warrant” or “search warrant.” Maj. Op. 18. But those
observations are neither here nor there: The point is not that
“execute” is a “harsh” word (as opposed to a “mild” one), but
that the words “execute” and “search” must be read together,
not in isolation. When Congress uses the phrase “execute
searches,” it invariably refers to traditional investigatory
searches. And, of course, “execut[ing] searches” in the
criminal context is not limited to the execution of warrants.
Investigatory searches also include brief stops if an officer
reasonably suspects that “criminal activity may be afoot,”
Terry v. Ohio, 392 U.S. 1, 30 (1968); searches incident to arrest
to protect officers and “to prevent the concealment or
destruction” of evidence, Arizona v. Gant, 556 U.S. 332, 339
(2009) (internal alterations, emphasis, and citation omitted);
and protective sweeps “to ensure [officers’] safety after, and
4
The section of the ATSA that the Majority quotes for
the proposition that TSA screeners conduct “physical
search[es],” Maj. Op. 13, 14, in fact relates to searches of
cargo, not passengers, see 49 U.S.C. § 44901(g)(4).
10
while making, [an] arrest,” Maryland v. Buie, 494 U.S. 325,
334 (1990).
For Violations of Federal Law. Beyond the word
“execute,” the term “searches” is further qualified by the
phrase “for violations of Federal law.”5 28 U.S.C. § 2680(h).
That phrase immediately follows a “single, integrated list,” so
it modifies each term in the list. Jama v. ICE, 543 U.S. 335,
344 n.4 (2005); see also Paroline v. United States, 572 U.S.
434, 447 (2014). And “violations of Federal law” must refer
to criminal law given that the phrase also modifies “make
arrests,” which can only be made for violations of Federal
criminal law. Otherwise, the phrase “for violations of Federal
law” would carry one meaning when modifying “make arrests”
5
The Majority expresses skepticism on this point based
on the rule of the last antecedent. Maj. Op. 23. But, as the
Supreme Court recently cautioned, “that . . . rule would not be
appropriate where the ‘modifying clause appear[s] . . . at the
end of a single, integrated list.’” Lockhart v. United States, 136
S. Ct. 958, 965 (2016) (second and third alteration in original)
(quoting Jama v. ICE, 543 U.S. 335, 344 n.4 (2005)). Instead,
where, as here, “the listed items are simple and parallel without
unexpected internal modifiers or structure,” and are “items that
readers are used to seeing listed together”—much less where it
is “a concluding modifier that readers are accustomed to
applying to each of them”—that modifier should be read as
applying to each item. Id. at 963 (providing as an example “the
laws, the treaties, and the constitution of the United States”
(internal quotation marks and citation omitted)). Those
descriptions apply to a tee to the way “for violations of Federal
law” modifies “to execute searches, to seize evidence, or to
make arrests” in 28 U.S.C. § 2680(h).
11
yet another when modifying “execute searches.” That cannot
be. See, e.g., Clark v. Martinez, 543 U.S. 371, 378 (2005) (“To
give the[] same words a different meaning for each category
would be to invent a statute rather than interpret one.”).
Given the criminal connotation of “for violations of
Federal law,” i.e., “to generate evidence for law enforcement
purposes,” Ferguson, 532 U.S. at 83, instead of for
“programmatic purpose[s],” id. at 81, the searches TSA
screeners conduct simply are not “search[es] . . . for violations
of Federal law.” 28 U.S.C. § 2680(h). That screeners conduct
searches, up to and including pat-downs and property searches,
only for an administrative purpose was the premise of United
States v. Hartwell, 436 F.3d 174, 181 n.13 (3d Cir. 2006)
(Alito, J.), and the condition of their constitutionality set by the
Supreme Court in Von Raab, Chandler, and Edmond. Indeed,
the Supreme Court “ha[s] never approved a checkpoint
program whose primary purpose was to detect evidence of
ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41. To
the contrary, it has repeatedly explained that if the purpose of
a routine, suspicionless search is for “violation[s] of law,”
Whren, 517 U.S. at 811, and not to serve “special needs,
beyond the normal need for law enforcement,” the entire
program would be unconstitutional, Edmond, 531 U.S. at 37;
Ferguson, 532 U.S. at 79 (holding that the search must advance
an interest “divorced from the State’s general interest in law
enforcement”).
The Majority argues that because carrying weapons or
explosives on an aircraft is a criminal offense and screeners are
authorized to search for those items, screeners are searching
“for violations of Federal law,” even if that does have criminal
connotations. But aside from the constitutional cloud that
would place over the entire TSA screening program, this
12
argument misapprehends the administrative search doctrine.
There is no doubt that (as in Pellegrino’s case) a screening
aimed at removing prohibited items may turn up evidence of a
crime and lead to prosecution, just as may a sobriety
checkpoint aimed at removing drunk drivers from the road or
a border search aimed at removing illegal aliens from
smuggling operations. But the Supreme Court has made clear
that such inspections do not become searches for “violation[s]
of law,” Whren, 517 U.S. at 811, as the Majority suggests,
“simply because, in the course of enforcing [the regulatory
scheme], an inspecting officer may discover evidence of
crimes.”6 New York v. Burger, 482 U.S. 691, 716 (1987).
6
Sobriety checkpoints and border searches, like TSA
screenings, are quintessential administrative searches because
their immediate purpose is not “crime control,” but to
“apprehend[] stolen vehicles” and “reduc[e] the immediate
hazard posed by the presence of drunk drivers on the
highways,” Edmond, 531 U.S. at 39, 40; see generally Mich.
Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990), or to
“[i]nterdict[] the flow of illegal entrants.” Martinez-Fuerte,
428 U.S. at 552. The Court only “tolerate[s] suspension of the
Fourth Amendment’s warrant or probable-cause requirement”
in routine administrative searches like TSA screenings
“because there [is] no law enforcement purpose behind the
searches in those cases, and there [is] little, if any,
entanglement with law enforcement.” Ferguson, 532 U.S. at
79 n.15. Hence the sharp divide between screeners who
conduct preventative searches and TSA “law enforcement
officer[s]” to whom screeners are required to “refer” the
13
In sum, screeners can conduct routine, suspicionless
searches only for the programmatic purpose of removing
prohibited items, which is designed to prevent “violations of
Federal law” from occurring; they do not search, and may not
constitutionally search, “for violations of Federal law.”
“Seize Evidence” and “Make Arrests.” The other terms
in the list (“seize evidence” and “make arrests”) provide
important context. As the Majority concedes, “make arrests”
necessarily carries criminal connotations. See Maj. Op. 17. So
does “seize evidence.”7 Under the canon noscitur a sociis,
Congress’s listing of “execute searches” alongside “seize
evidence” and “make arrests”—three actions routinely listed in
tandem to describe police powers, see, e.g., 21 U.S.C.
§ 878(a)—reinforces that it intended to limit “searches” to
continuation of any search that happens to turn up criminal
evidence. TSA Mgmt. Directive 100.4 ¶¶ 6.C(1), 6.G(2).
7
The word “seize” in this context comes directly from
the Fourth Amendment, see U.S. Const. amend. IV (requiring
that a warrant describe the “things to be seized”), and Congress
uses the phrase in the criminal context throughout the United
States Code, see, e.g., 7 U.S.C. § 2270; 10 U.S.C. §§ 282–283;
16 U.S.C. § 1437; 34 U.S.C. § 21114; id. § 30103; 42 U.S.C.
§ 9153; 49 U.S.C. § 114(p). The Supreme Court also uses the
phrase routinely to connote the seizure of evidence in criminal
matters. See, e.g., United States v. Leon, 468 U.S. 897, 923
n.23 (1984); Payton v. New York, 445 U.S. 573, 577 n.5 (1980);
Franks v. Delaware, 438 U.S. 154, 167 (1978); Stone v.
Powell, 428 U.S. 465, 489 (1961).
14
those conducted for investigatory, not administrative,
purposes.
In a cautionary tale, albeit not heeded by the Majority,
the Supreme Court held that a nearby provision in the FTCA
barring claims arising out of the “loss, miscarriage, or
negligent transmission of letters or postal matter,” 28 U.S.C.
§ 2680(b), did not extend to mail carriers creating slip-and-fall
hazards. Dolan, 546 U.S. at 483. Although acknowledging
that the phrase “negligent transmission” of mail could, “[i]f
considered in isolation, . . . embrace a wide range of negligent
acts,” the Court cautioned that a word “may or may not extend
to the outer limits of its definitional possibilities.” Id. at 486.
The other terms specified in the list (“loss” and “miscarriage”),
the Court concluded, “limit the reach of transmission.”8 Id.
So too in § 2680(h)—just a few subsections later—
where the terms “seize evidence” and “make arrests” are
properly read in the proviso to “limit the reach,” id., of
“execute searches.”
Investigative or Law Enforcement Officer. The very
term being defined here—“investigative or law enforcement
8
The Majority balks at applying noscitur a sociis to the
law enforcement proviso because it contains the disjunctive
“or.” Maj. Op. 18. But the Supreme Court did not hesitate to
use it in Dolan and, indeed, has used the canon many times in
precisely this way. See, e.g., McDonnell v. United States, 136
S. Ct. 2355, 2368–69 (2016) (“question, matter, cause, suit,
proceeding, or controversy”); Yates v. United States, 135 S. Ct.
1074, 1085–86 (2015) (“record, document, or tangible
object”); Jarecki, 367 U.S. at 307, 310 (“exploration,
discovery, or prospecting”).
15
officer”—also naturally evokes criminal law enforcement. See
generally United States v. Stevens, 559 U.S. 460, 474 (2010)
(“[A]n unclear definitional phrase may take meaning from the
term to be defined.”). The only other statutes found in the
United States Code that employ analogous terminology are the
Wiretap Act, 18 U.S.C. §§ 2510–2522, 3121–3127, which
Congress enacted six years before the law enforcement
proviso, and the Foreign Intelligence Surveillance Act (FISA),
50 U.S.C. §§ 1809, 1827, which was enacted four years
afterward. Both statutes use the term to identify who can
lawfully conduct or receive information about wiretaps or
electronic surveillance—classic examples of investigatory
searches. See 18 U.S.C. § 2510(7); 50 U.S.C. §§ 1809, 1827.
And notably, in construing “investigative or law enforcement
officer” under the Wiretap Act, the Office of Legal Counsel
recognized that the powers of an “investigative . . . officer” do
not coincide with those of a “law enforcement officer” but that
both positions execute criminal law enforcement functions.9
See 14 Op. O.L.C. 107, 108 (1990).
9
The Majority suggests that I render the remainder of
the law enforcement proviso a nullity by interpreting
“investigative or law enforcement officer” to refer to officers
with criminal law authority. See Maj. Op. 25. But as the Office
of Personnel Management’s Occupational Handbook makes
clear, numerous investigative officers are not law enforcement
officers, see OPM, Handbook of Occupational Groups and
Families 109 (Dec. 2018), and not all investigative officers
“execute searches, seize evidence, or make arrests,” compare
id. at 1801, 1810 (“[g]eneral,” i.e., administrative
investigators), with id. at 109 (criminal investigators). Thus,
16
Intentional Torts Covered. Finally, the law
enforcement proviso waives immunity only for the types of tort
claims typically asserted against traditional investigative or
law enforcement officers—assault, battery, false
imprisonment, false arrest, abuse of process, and malicious
prosecution; it preserves the United States’s immunity for libel,
slander, misrepresentation, deceit, and interference with
contract rights. See 28 U.S.C. § 2680(h). The Majority brushes
this point off by saying that the specific tort claims in the
proviso can be brought against administrative employees like
screeners. But that begs the question: Before today’s holding,
sovereign immunity precluded these intentional tort claims
from being brought against any employee of an administrative
agency.
Congress’s intentional selection of torts premised on
use of excessive force and lack of probable cause cannot be
waved aside by the observation that screeners, like any other
federal employee, can commit “assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” 28 U.S.C. § 2680(h). The
point is that, of those intentional torts for which Congress
the proviso’s definition of “investigative or law enforcement
officer” is necessary to distinguish between investigative
officers involved in criminal investigations conducted for
violations of federal law and those involved in administrative
searches conducted for other purposes. Nor is it unusual for
Congress to define “law enforcement officer” by reference to
the officer’s duties, even if those duties all sound in criminal
law. See, e.g., 5 U.S.C. § 8331(20); 12 U.S.C. § 248(q)(4); 18
U.S.C. § 245(c); id. § 1515(a)(4).
17
preserved sovereign immunity, it excepted only torts typically
associated with traditional police powers for the proviso.
For these reasons, the law enforcement proviso evinces
no intent to waive sovereign immunity for administrative
searches. And on that basis alone, Pellegrino’s FTCA claims
do not fall within the proviso.
B. TSA Screeners Are Not “Officers” Under the
Proviso
The law enforcement proviso further limits the waiver
of sovereign immunity to alleged torts committed by
“officer[s].” See 28 U.S.C. § 2680(h). The FTCA does not
define “officer,” so the Majority turns to dictionaries. See Maj.
Op. 9. But any particular dictionary definition of “officer”
cannot resolve this question on its own because those
definitions run the gamut. See United States v. Costello, 666
F.3d 1040, 1044 (7th Cir. 2012) (“The selection of a particular
. . . [dictionary] definition is not obvious and must be defended
on some other grounds of suitability.”); see also Frank H.
Easterbrook, Text, History, and Structure in Statutory
Interpretation, 17 Harv. J. L. & Pub. Pol’y 61, 67 (1994)
(“[T]he choice among meanings [of words in statutes] must
have a footing more solid than a dictionary . . . .”). For every
broad definition of “officer” that could possibly cover
screeners, see, e.g., Officer, Webster’s Third New International
Dictionary of the English Language 1567 (1971) (one
“serv[ing] in a position of trust [or] authority,” or one “charged
with a duty”), there is a narrower definition requiring far more
authority than screeners possess—traditional police
authority—that easily could take its place, see, e.g., Officer,
Webster’s New Collegiate Dictionary 797 (1976) (“one
charged with police duties”); Officer, The Random House
18
Dictionary of the English Language 1000 (1973) (“A
policeman or constable.”).
Without explanation, the Majority adopts the broadest
possible dictionary entries, defining “officer” as someone
“‘charged’ by the Government ‘with the power and duty of
exercising certain functions,’” Maj. Op. 9 (quoting Officer,
Black’s Law Dictionary 1235 (4th ed. 1968)), or who “serve[s]
in a position of trust [or] authority” id. (quoting Officer,
Webster’s Third New International Dictionary 1567 (1971)).
Such expansive definitions of “officer” could theoretically pass
muster if they did no violence to neighboring words in the
statute. See, e.g., United States v. Locke, 529 U.S. 89, 105
(2000); King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991).
But here they do.
1. The Majority’s Reading Gives No Meaning
to Congress’s Choice of “Officer,” Rather
Than “Employee,” in the Law Enforcement
Proviso
Several provisions in the Federal Tort Claims Act use
the term “employee” to identify whose acts or omissions are
covered. For example, the FTCA grants federal district courts
exclusive jurisdiction over torts “caused by the negligent or
wrongful act or omission of any employee.” 28 U.S.C.
§ 1346(b)(1) (emphasis added). Similarly, the frequently
invoked discretionary function exception, found in the very
same statutory section as the law enforcement proviso,
reasserts sovereign immunity for “[a]ny claim based upon . . .
a discretionary function or duty on the part of . . . an employee
of the Government.” Id. § 2680(a) (emphasis added). In stark
contrast, the law enforcement proviso refers not to
“employees,” but to “investigative or law enforcement
19
officers,” which it defines as an “officer of the United States
. . . empowered by law” to perform the enumerated functions.
Id. § 2680(h) (emphasis added).
Where, as here, Congress uses certain language in one
part of a statute but distinct terminology elsewhere, courts
should “‘presume[]’ that Congress intended a difference in
meaning.” Loughrin v. United States, 573 U.S. 351, 358
(2014) (quoting Russello v. United States, 464 U.S. 16, 23
(1983)); see, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 711
n.9 (2004). If Congress wanted the proviso to sweep broadly,
it could have—just as in the discretionary function exception a
few subsections above, see 28 U.S.C. § 2680(a)—defined
“investigative or law enforcement officer” as any “employee”
empowered to execute searches. It did not.
The Majority disregards this presumption by choosing
a dictionary definition of “officer” so broad as to render the
term coextensive with “employee.” Indeed, I am hard pressed
to conceive of any employee of an agency who conducts
administrative searches and is not, as the Majority defines it, in
“a position of trust and authority,” or, for that matter, any
federal employee at all who has not been “‘charged’ by the
Government ‘with the power and duty of exercising certain
functions.’” Maj. Op. 9 (citations omitted).
Instead of conflating “officer” with “employee,” I read
Congress’s markedly different language in the very same
statutory section to signal an intent to limit the proviso to a
specific class of federal government personnel: those “charged
with police duties.” Officer, Webster’s New Collegiate
Dictionary 797 (1976). After all, the FTCA itself defines
“[e]mployee of the government” as “officers or employees of
any federal agency.” 28 U.S.C. § 2671 (emphasis added). And
20
the law enforcement proviso, in using “officer” to define
“investigative or law enforcement officer,” likewise specifies
that such officers be “empowered by law”—i.e., the statute or
regulation governing that officer’s agency—to perform
traditional police functions.10 28 U.S.C. § 2680(h) (emphasis
added). And when we look at the statute “empower[ing]”
screeners, the Aviation and Transportation Security Act
(ATSA), screeners clearly do not qualify as officers.
2. The ATSA Distinguishes Between Screeners
and Officers Empowered with Investigative
and Law Enforcement Powers
The ATSA specifies that “screening . . . shall be carried
out by a Federal Government employee (as defined in section
2105 of title 5).” 49 U.S.C. § 44901(a) (emphasis added). This
contrasts with 49 U.S.C. § 114(p)(1), which permits the TSA
Administrator to “designate” particular TSA employees “to
serve as . . . law enforcement officer[s].” Those distinctions
between screener “employees” and law enforcement “officers”
recur throughout the statute.11
10
Notably, the only other exception in the FTCA
mentioning “officers” indisputably refers to law enforcement
officers. See 28 U.S.C. § 2680(c) (“[A]ny officer of customs
or excise or any other law enforcement officer . . . .”); Ali v.
Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008).
11
Compare 49 U.S.C. § 114(e)(2) (providing that the
TSA Administrator is responsible for “hiring and retention of
security screening personnel”), id. § 44901(a) (explaining that
screenings will be performed by an “employee”), id.
21
Only TSA employees designated as “officers” are
empowered by law to “carry a firearm,” “make an arrest,” and
“seek and execute warrants for arrest or seizure of evidence,”
id. § 114(p)(2)—functions that place them squarely within the
proviso. Those law enforcement officers are required to be
stationed “at each airport security screening location,” id.
§ 44901(h)(1), “to support each system for screening” and
perform those functions that TSA screeners have neither the
authority nor the expertise to fulfill, 49 C.F.R.
§ 1542.215(a)(2).
And were there any doubt about whether Congress
intended that mapping, the ATSA dispels it: Congress
expressly cross-referenced the FTCA when it distinguished the
liability of state and local law enforcement officers—who may
be deputized by the Administrator to supplement “Federal law
enforcement officers” at airports, 49 U.S.C. § 44922—from
the liability of “personnel of a qualified private screening
§ 44935(e)–(f) (describing training programs, hiring
qualifications, and employment standards for “[s]ecurity
screeners”), and id. § 44936(a) (requiring background
investigation of a “security screener”), with id. § 114(p)
(describing “law enforcement officer[s]”), id. § 44901(h)(1)
(requiring the deployment of “law enforcement personnel” at
screening locations), id. § 44903(a) (defining “law
enforcement personnel”), and id. § 44922 (permitting the TSA
Administrator to deputize “state and local law enforcement
officers”); see also TSA Mgmt. Directive No. 100.4
(separately defining “law enforcement officer” and
“transportation security officer”).
22
company”—who may be approved for private contracting by
the Administrator to assist airport operators under the
Screening Partnership Program, 49 U.S.C. § 44920. On the
one hand, a deputized state or local law enforcement officer
“shall be treated as a Federal law enforcement officer,” id.
§ 44922(b), and is expressly made subject to the FTCA “while
carrying out Federal airport security duties within the course
and scope of the officer’s employment,”12 id. § 44922(e). On
the other hand, contracted airport “screening personnel”—
who, notably, must be overseen by “Federal Government
supervisors . . . and . . . Federal Government law enforcement
officers at the airport pursuant to this chapter,” id.
§ 44920(e)(1)—are not made subject to the FTCA and instead
retain “liability related to [their] own acts of negligence, gross
negligence, or intentional wrongdoing,” id. § 44920(g)(3).
12
In seeking to downplay the significance of the
ATSA’s explicit cross-reference to the FTCA, with its
differential treatment of deputized officers and contracted
airport screeners under the proviso, the Majority emphasizes
that § 44922(e) designates a deputized officer an “‘employee
of the Government’ for purposes of the proviso,” Maj. Op. 11.
Again, the Majority mistakes meaning for lack of context:
Section 44922(e) is using “[e]mployee of the Government” as
a term of art, defined in turn in the FTCA not as limited to
“employees” but as “officers or employees of any federal
agency,” 28 U.S.C. § 2671—thus applying the proviso to
“officers” and again distinguishing between the terms “officer”
and “employee.” Congress’s intention to cover deputized
officers under the proviso but to treat contracted airport
screeners (like their TSA counterparts) as regular employees
could not be more clear.
23
Congress could hardly be more explicit that (1) it knew
it was legislating in the ATSA against the backdrop of the
FTCA; (2) it intended the terms “employee” and “officer” to
carry the same meaning in the ATSA and the FTCA; and (3) it
intended for the TSA’s “law enforcement officers” (whether
federally employed or deputized) to be treated as “officers”
subject to the proviso, but for “screeners” (whether federally
employed or contracted) to be treated as employees who are
not. See Azar v. Allina Health Servs., 139 S. Ct. 1804, 1812
(2019) (“This Court does not lightly assume that Congress
silently attaches different meanings to the same term in the
same or related statutes.”).
3. The Majority’s Contrary Arguments Are
Unavailing
In the face of the plain text to the contrary, the Majority
offers several reasons why its broad interpretation of “officer,”
which would encompass a screener, should prevail. None is
persuasive.
First, the Majority tells us that we should not rely on the
distinction between an “officer” and “employee” in the FTCA
and ATSA because both statutes define “employee” to include
“employees” and “officers,” and there can be no “distinction
between two terms that are not themselves mutually
exclusive.” Maj. Op. 11 (citing 28 U.S.C. § 2671; 49 U.S.C.
§ 44901(a)). But the commonsense proposition that “officers”
are still employed by the Government does not detract from the
significance of Congress’s choosing different words: It
distinguished between “officers” and “employees” and made
only “officers” subject to the proviso. See 28 U.S.C. § 2680(h);
49 U.S.C. § 114(p)(1) (allowing the TSA Administrator to
designate a TSA “employee . . . to serve as a law enforcement
24
officer”).
Second, the Majority argues against mapping the
ATSA’s definition of “employee” and “officer” onto the
FTCA. But its syllogism is flawed. According to the Majority,
(a) because the ATSA defines the term “employee” by
reference to the general civil-service laws, see 49 U.S.C.
§ 44901(a) (citing 5 U.S.C. § 2105), the term “officer” in the
ATSA must also be defined by reference to the general civil-
service laws, 5 U.S.C. § 2104 (defining “officer”);13 (b) using
the civil-service definition of “officer” in the FTCA would
make the proviso underinclusive because certain officers
indisputably covered by the proviso, like postal inspectors, are
not “appointed by the head of an Executive agency,” Maj. Op.
10 (citing 5 U.S.C. § 2104(a)(1)); ergo (c) the FTCA must
define “officer” differently than the ATSA.
But both premises are wrong. Congress did not define
“officer” in the proviso by reference to civil-service laws; it
told us in no uncertain terms to look to the particular “law” that
“empower[s]” employees of that agency—here, the ATSA, to
act as officers; see also 28 U.S.C. § 2671 (defining
“[e]mployee of the government” for purposes of the FTCA as
13
At § 44901(a), the ATSA provides that “screening . . .
shall be carried out by a Federal Government employee (as
defined in section 2105 of title 5).” For its part, the general
civil-service laws define “employee” as either an officer or any
other individual appointed by another member of the federal
government. 5 U.S.C. § 2105(a)(1). They separately define
“officer” to refer to individuals who, under the Constitution’s
Appointments Clause, must be appointed by the President, the
head of an executive agency or department, or a court. See id.
§ 2104(a).
25
“officers or employees of any federal agency”) (emphasis
added). Nor did Congress define “officer” in the ATSA by
way of cross-reference to the civil-service definition, as it did
for the definition of “employee.” Instead, the ATSA defines
“officer” by virtue of the powers bestowed on those
employees. See 49 U.S.C. § 114(p). There is no inconsistency
in considering the statute and implementing regulations to
deduce who is empowered by law to act as an “officer” under
the proviso; that is precisely what Congress directed.
With that reading, moreover, the FTCA’s reference to
“officer” is not “underinclusive.” The laws that empower
employees of various agencies consistently demarcate those
who carry police powers from regular employees. Examples
include the Internal Revenue Code, 26 U.S.C. § 7608(a), the
statute governing postal inspectors, 18 U.S.C. § 3061(a), and
the implementing regulations for the Department of Homeland
Security and Drug Enforcement Agency, 8 C.F.R. § 287.5(c)–
(e) (DHS); 28 C.F.R. pt. 0, subpt. R, app. § 3 (delegating
powers under 21 U.S.C. §§ 878–879). And, as our discussion
makes clear, when it comes to those with police powers under
the ATSA, the statute clearly and unambiguously distinguishes
employees from officers, which TSA screeners are not. See,
e.g., 49 U.S.C. § 114(p)(2)(A)–(C).
Third, the Majority relies on the fact that screeners “are
officers by name” and “wear uniforms with badges noting that
title.” Maj. Op. 10. It is surprising indeed that such a
superficial gloss is deemed relevant to understanding a waiver
of federal sovereign immunity—particularly as these
employees were originally called “screeners” (and remain so
in the statute and regulations), and TSA (not Congress)
changed their name to Transportation Security Officer (TSO)
in 2005 only in an effort to improve morale and foster “upward
26
mobility opportunities within [the] profession.”14 Notably,
these changes were intended to “give[] TSOs an opportunity
. . . to apply for DHS law enforcement positions.” U.S. Gov’t
Accountability Office, GAO-07-299, Aviation Security 56
(Feb. 2007) (emphasis added)—a nonsensical proposition if
screeners were already investigative or law enforcement
officers.
Fourth, the Majority seizes on the modifier “any” before
“officer” to garner support for its expansive interpretation.
But, again, this is text without context. The argument would
carry appeal “only if we stopped reading right there,” but “we
do not stop there; we do not read statutes in little bites.”
Kircher v. Putnam Funds Tr., 547 U.S. 633, 643 (2006).
Whether “use of the word ‘any’ . . . indicate[s] that Congress
intended particular statutory text to sweep broadly . . .
necessarily depends on the statutory context.” See Nat’l Ass’n
of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 629 (2018). The
definition of “investigative or law enforcement officer” does
not end after the words “any officer of the United States”; it
goes on to delineate those officers “empowered by law to”
perform the traditional police powers that follow. 28 U.S.C.
§ 2680(h). TSA screeners are not.
14
The Transportation Security Administration’s Airline
Passenger and Baggage Screening: Hearing Before the S.
Comm. on Commerce, Sci., & Transp., 109th Cong. 7 (2006)
(statement of Edmund “Kip” Hawley, Assistant Sec’y, TSA);
see Press Release, TSA, Transportation Security Officers Have
Renewed Focus and New Look on Seventh Anniversary of 9/11
(Sept. 11, 2008), https://www.tsa.gov/news/releases/
2008/09/11/transportation-security-officers-have-renewed-
focus-and-new-look-seventh.
27
Finally, relying on Millbrook v. United States, 569 U.S.
50 (2013), the Majority contends that the Supreme Court has
cautioned against a “cramped reading of the proviso.” Maj.
Op. 12 (citing Millbrook, 569 U.S. at 56–57). But Millbrook
had nothing to do with who qualifies as an “officer” under the
proviso; it held only that the scope of liability for those who
did qualify as “officers” was not limited to the acts of
“executing a search, seizing evidence, or making an arrest.”
569 U.S. at 56. In other words, Millbrook concerned only “the
acts for which immunity is waived,” not, as here, “the class of
persons whose acts may give rise to an actionable FTCA
claim.” Id.
In sum, screeners are not “officers” and for that reason,
too, they are not “investigative or law enforcement officers.”
II. The Legislative History Confirms That Congress
Did Not Intend to Cover Administrative Searches
While legislative history cannot manufacture ambiguity
where none exists, “for those of us who use legislative history
to help interpret statutes, the history . . . supports our reading,”
Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 1037
(2019), confirming the textual cues on which I rely. The
Supreme Court and our Circuit have similarly considered
legislative history as a useful “cross-check.” United States ex
rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 95 (3d
Cir. 2018) (Ambro, J.); see, e.g., Sturgeon v. Frost, 139 S. Ct.
1066, 1085 (2019).
Congress did not come to use the word “officer” rather
than “employee” in the proviso by accident. Responding to
two appalling “no-knock” raids by federal narcotics officers,
Congress considered three bills to amend the broad immunity
28
preserved by the intentional tort exception, with Members
referring regularly to the other bills as each was debated. Jack
Boger et al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497,
510–17 (1976). Two of the bills waived sovereign immunity
for the specified intentional torts for all federal employees. Id.
But Congress enacted a third bill (the “Proviso Bill”) that
limited the waiver of immunity to “investigative or law
enforcement officers.” See Act of March 16, 1974, Pub. L. No.
93-253, 88 Stat. 50 (codified at 28 U.S.C. § 2680(h)).
In its deliberations, policymakers discussed the fact that
the Proviso Bill, unlike the other bills, would not cover federal
employees who perform administrative searches. Some
observed that the Proviso Bill “only applies to law enforcement
officers. It does not apply to any other Federal employees that
might violate the rights of an individual.” 120 Cong. Rec. 5287
(statements of Reps. Donohue and Wiggins). Others, urging
passage of the alternative bills that waived immunity for all
federal employees, lamented that the Proviso Bill would
provide no remedy for assaults committed by those who
perform administrative searches: “We have Department of
Agriculture investigators who go [in to] look at books and
records. We have Defense Department auditors to look at
books and records. . . . They are not law enforcement officers
even under this definition. They don’t qualify.”15 But the
15
Federal Tort Claims Amendments: Hearings on H.R.
10439 Before the Subcomm. on Claims and Governmental
Relations of the H. Comm. on the Judiciary, 93d Cong. 18
(1974) [hereinafter H.R. 10439 Hearings] (testimony of Irving
Jaffe, Acting Assistant Att’y Gen.); see also id. at 15
29
Proviso Bill carried the day.
The legislative history concerning the particular torts
selected for the proviso also confirms my plain text reading:
Congress’s intention, in excepting “assault, battery, false
imprisonment, false arrest, abuse of process, [and] malicious
prosecution,” 28 U.S.C. § 2680(h), from the broader list of
immunized torts was to cover “the types of tort[s] most
frequently arising out of activities of Federal law enforcement
officers.” H.R. 10439 Hearings at 14 (statement of Jaffe); see
also 119 Cong. Rec. 33,496 (1973) (giving verbatim
explanation in reference to S. 2558).
This history simply corroborates what the text itself
conveys: After debating competing options, Congress decided
to afford a remedy only to “victims of Federal law enforcement
abuses.” Caban v. United States, 671 F.2d 1230, 1235 (2d Cir.
1982) (quoting S. Rep. No. 93-588, at 4 (1973)); see Carlson
v. Green, 446 U.S. 14, 19 (1980) (“Congress amended FTCA
in 1974 to create a cause of action against the United States for
intentional torts committed by federal law enforcement
officers.”).
(testimony of Irving Jaffe) (“It should be noted that . . . H.R.
8245 is confined in its applicability to Federal investigative or
law enforcement officers, while . . . H.R. 10439 would waive
the sovereign immunity of the United States as to the same acts
or omissions on the part of all Government employees.”).
30
III. The Majority’s Approach Waives Sovereign
Immunity for All Employees Who Conduct
Administrative Searches
After dismissing “[a]ttempts to distinguish . . . between
administrative and criminal ‘searches’” as purportedly
“divorced from the plain text,” the Majority offers up an
atextual reading, positing that a distinction could be drawn
between physical and nonphysical searches. Maj. Op. 14, 20.
But the Majority provides no principled basis for that
distinction. That is because there is not one: Its reading
sweeps in all administrative searches.
A. The Majority Offers No Principled Basis for
Limiting Its Reading to Physical Searches
Uneasy with the breadth of its holding, the Majority
posits that TSA screenings can be distinguished from other
administrative searches because they may include pat-downs.
For an opinion premised on adhering to the text’s plain
meaning, this marks a striking shift. Nothing in the proviso
even remotely hints at a distinction between administrative
searches that include pat-downs and administrative searches
that do not. It does not use the term “physical searches,” but
simply “searches.” My colleagues cannot in the same breath
proclaim fidelity to the text and devise an atextual line between
“physical searches” and “non-physical searches” to attempt to
cabin the proviso’s reach: Congress either intended the proviso
to waive sovereign immunity for those conducting both
categories of Fourth Amendment “searches”—investigatory
and administrative—or it did not.
Not only is this reading of the proviso as limited to
“physical searches” atextual, it is made out of whole cloth. The
31
Supreme Court has never distinguished between administrative
searches that include pat-downs and other administrative
searches. To the contrary, it has treated administrative
searches that include physical searches—such as drug
screenings, searches at the entrances of certain government
buildings, airport screenings, border inspections, and sobriety
checkpoints—like any other kind of administrative search.
Edmond, 531 U.S. at 39, 41–42, 47–48. The distinction the
Court has drawn is not between physical and non-physical
searches, but between administrative searches for
“programmatic purposes” and investigatory searches to
“uncover evidence of ordinary criminal wrongdoing.” Id. at
42, 45–46; see supra at 4–9.
The Majority also suggests that its expansion of the
proviso today is limited only to TSA screenings because “they
extend to the general public and involve examinations, often
intrusive, of an individual’s physical person along with her
property.” Maj. Op. 22. But those features are not unique to
airport searches. Searches to which the general public is
subjected involving examinations of persons and property are
“now routine . . . at entrances to courts and other official
buildings.” Chandler, 520 U.S. at 323. They are “used widely
at state and local levels to enforce laws regarding drivers’
licenses, safety requirements, weight limits, and similar
matters.” Martinez-Fuerte, 428 U.S. at 560 n.14. All federal
agencies “may, at their discretion, inspect packages, briefcases
and other containers in the immediate possession of . . .
persons arriving on, working at, visiting, or departing from
Federal property.” 41 C.F.R. § 102-74.370. And regulations
also authorize such searches, including pat-downs, at cruise-
ship terminals, 33 C.F.R. § 105.290, prison visitor entrances,
28 C.F.R. § 543.13(f), chemical facilities, 6 C.F.R.
32
§ 27.230(a)(3), and nuclear sites, 10 C.F.R. § 73.46(d)(4)(i).
We cannot pluck TSA screenings from Pandora’s box without
casting it open.
Finally, the Majority errs in conflating airport pat-
downs with Terry stops. Airport pat-downs serve a
programmatic purpose; Terry stops require individualized
suspicion. We made that point clearly in Hartwell, where we
upheld a frisk “without individualized suspicion” of an airport
passenger as “permissible under the administrative search
doctrine.” 436 F.3d at 181. Hartwell further observed that,
unlike Terry stops, airport screenings are “well-tailored to
protect personal privacy,” lack virtually any stigma, provide
passengers with advance notice, and are “made under
supervision and not far from the scrutiny of the traveling
public.” Id. at 180–81 (citation omitted). Terry stops are on
the other side of that Fourth Amendment divide: They require
a “reasonable belief” that “criminal activity may be afoot.”
392 U.S. at 28, 30.
In the end, the Majority succumbs to the siren call that
we need only concern ourselves today with “hold[ing] . . . that
TSO screenings are ‘searches’ under the proviso,” leaving
future panels to fend off the consequences. Maj. Op. 22. But
we should not undertake even a purportedly narrow holding—
and the Majority’s holding is far from narrow—without having
both a principled basis and a considered view of the
repercussions. The Majority’s inability to identify any
sustainable distinction between TSA screenings and other
administrative searches does not bode well for either.
33
B. The Majority’s Approach Would Naturally
Result in the Waiver of Sovereign Immunity for
All Employees Who Perform Administrative
Searches
Without a limiting principle, the Majority’s
interpretation of the law enforcement proviso works a
staggering expansion of the Government’s waiver of sovereign
immunity. Much of what administrative agencies and their
employees are empowered to do qualifies as a “search” under
the Fourth Amendment. Several agencies routinely perform
audit examinations. See, e.g., 12 U.S.C. § 483 (Federal
Reserve); 17 C.F.R. § 1.31(d)(1) (CFTC). Nearly all agencies
exercise the subpoena power to inspect the books and records
of regulated or contracting parties. See, e.g., 41 U.S.C. § 4706
(Defense Contract Audit Agency); 29 U.S.C. § 209 (DOL); id.
§ 161 (NLRB); see also Donovan v. Lone Steer, Inc., 464 U.S.
408, 415 (1984) (noting that administrative subpoenas
constitute “searches” under the Fourth Amendment). Many
agencies also employ personnel to physically inspect
commercial premises for security, health, and safety violations:
The Department of Defense scrutinizes defense contractors,
see, e.g., 10 U.S.C. § 2313(a), the FDA inspects meatpackers,
21 U.S.C. § 606(a), and the EPA surveys hazardous waste sites,
42 U.S.C. § 6927(a). Even examinations of employees’
workspaces and drug tests constitute searches under the Fourth
Amendment. See, e.g., Skinner, 489 U.S. at 616–17 (drug test);
O’Connor, 480 U.S. at 717 (workspaces).
Here, the significance of the Supreme Court’s decision
in Millbrook v. United States, 569 U.S. 50 (2013), warrants
emphasis. Under Millbrook, if an employee has the authority
to perform any of these “searches”—and thus, under the
Majority’s interpretation, qualifies as an “investigative or law
34
enforcement officer”—it matters not whether an enumerated
intentional tort occurred during a search, seizure, or arrest. See
id. at 57. The United States will be liable for any of the
intentional torts committed by that employee at any point in
the scope of her employment. Id. By my colleagues’ reading,
that includes any employee with authority to issue an
administrative subpoena, inspect premises, conduct an audit,
or administer a drug test.
The potential scale of that liability is why Congress
sought to limit the proviso to “investigative or law enforcement
officers” and the specific subset of intentional torts they are
carefully trained to avoid. Law enforcement officers “are
expected to ‘schoo[l] themselves in the niceties’” of Fourth
Amendment doctrine, applying some practical limit to the
proviso’s waiver of immunity. O’Connor, 480 U.S. at 724
(alteration in original) (quoting New Jersey v. T.L.O., 469 U.S.
325, 343 (1985)); see, e.g., 8 C.F.R. § 287.5(b)–(c) (DHS). But
“no such expectation is generally applicable to public
employers, at least when the search is not used to gather
evidence of a criminal offense.”16 Id.
16
TSA screeners are a case in point. While undoubtedly
performing an important job in furtherance of our nation’s
security, screeners neither are law enforcement officers nor are
“trained on issues of probable cause, reasonable suspicion, and
other constitutional doctrines that govern law enforcement
officers.” Vanderklok v. United States, 868 F.3d 189, 208 (3d
Cir. 2017). TSA law enforcement officers must complete
standard law enforcement training prescribed by the state,
including training in the use of firearms and in “treatment of
persons subject to inspection, detention, search, arrest, and
35
In short, instead of drawing the principled and
constitutionally grounded line between investigatory and
administrative searches, my colleagues today open the United
States Treasury to liability for the intentional torts of every
federal employee with the authority to conduct any Fourth
Amendment search—regardless of the employee’s knowledge
of, or training in, Fourth Amendment doctrine. In my view,
Congress chose its words in the proviso carefully to avoid this
very result.
IV. The Majority Creates, and Takes the Wrong Side
of, a Circuit Split
If, as the Majority claims, its reading reflected an
intuitive reading of the law enforcement proviso, presumably
it would find some support in our precedent or that of other
circuits. But instead it marks a dramatic departure.
Among our precedents, the Majority’s approach is in
sharp tension with Matsko v. United States, 372 F.3d 556 (3d
Cir. 2004), where we held that a Mine Safety and Health
Administration employee with “authority to inspect mines and
investigate possible violations” was not covered by the
proviso, because “employees of administrative agencies, no
matter what investigative conduct they are involved in, do not
other aviation security activities.” 49 C.F.R. § 1542.217(c).
Screeners, by contrast, must “possess a high school diploma”
or “sufficient[ly]” relevant experience and have “basic
aptitudes and physical abilities, including color perception,
visual and aural acuity, physical coordination, and motor
skills” as well as “sufficient dexterity and capability” to
“perform pat-downs or hand-held metal detector searches.” Id.
§ 44935(f).
36
come within the § 2680(h) exception.” Id. at 560. Without
explaining how it distinguishes TSA screeners from such
inspectors, the Majority leaves Matsko in limbo, purporting to
leave its holding intact while declaring its rationale “no longer
valid.” Maj. Op. 21. Of course, the en banc court may jettison
our precedent, but a survey of other circuits’ precedent reveals
that Matsko is no outlier.
A unanimous panel of the Eleventh Circuit squarely
rejected the Majority’s interpretation in a persuasive and well-
reasoned, albeit non-precedential,17 opinion. See Corbett v.
TSA, 568 F. App’x 690 (11th Cir. 2014) (per curiam). The
court there considered the pertinent statutory language and
concluded that TSA screeners are not covered by the proviso
for the “simple[]” reason that they are “employees,” not
“officers.” Id. at 701. The court therefore relied on the same
textual distinction that the Majority in this case elides.18
17
Unpublished opinions of the Eleventh Circuit, while
not binding on that court, “may be cited as persuasive
authority.” 11th Cir. R. 36-2.
18
Most district courts have reached the same conclusion
as Corbett. Compare, e.g., Hernandez v. United States, 34 F.
Supp. 3d 1168, 1182 (D. Colo. 2014) (holding that the proviso
does not cover TSA screeners), Weinraub v. United States, 927
F. Supp. 2d 258, 266 (E.D.N.C. 2012) (same), and Coulter v.
U.S. Dep’t of Homeland Sec., No. 07-4894, 2008 WL 4416454,
at *9 (D.N.J. Sept. 24, 2008) (same), with Armato v. Doe 1, No.
CV-11-02462-PHX-ROS, 2012 WL 13027047, at *4 (D. Ariz.
May 15, 2012) (holding that the proviso covers TSA
screeners).
37
Along those same lines, other Courts of Appeals have
consistently treated only those performing traditional law
enforcement duties as “investigative or law enforcement
officers” under the proviso. For example, the D.C. Circuit has
concluded that postal inspectors, who are empowered to
investigate criminal matters, see 18 U.S.C. § 3061, are covered
by the proviso. See Moore v. United States, 213 F.3d 705, 708–
10 (D.C. Cir. 2000). Courts have also ruled that the proviso
covers customs officers, see Nurse v. United States, 226 F.3d
996, 1002–03 (9th Cir. 2000), Veterans’ Administration (VA)
police officers, see Celestine v. United States, 841 F.2d 851,
852–53 (8th Cir. 1988) (per curiam), U.S. Marshals, see
Hoston v. Silbert, 681 F.2d 876, 879 (D.C. Cir. 1982) (per
curiam), ICE agents, see Caban, 671 F.2d at 1234, FBI agents,
see Brown v. United States, 653 F.2d 196, 198 (5th Cir. Unit A
1981), and federal correctional officers, see Hernandez v.
Lattimore, 612 F.2d 61, 64 n.7 (2d Cir. 1979). Each of those
positions participates in traditional law enforcement.19
Consistent with these decisions, the Seventh Circuit
held in Bunch v. United States, 880 F.3d 938 (7th Cir. 2018),
that the limited record “d[id] not foreclose the possibility” that
the proviso could apply to an ATF forensic chemist whose
duties may have included “the identification of relevant
19
While ICE agents have some civil responsibilities,
they are also empowered “to make arrests for felonies which
have been committed and which are cognizable under any law
of the United States regulating the admission, exclusion,
expulsion, or removal of aliens.” 8 U.S.C. § 1357(a)(4).
Likewise, Bureau of Prisons officers are entitled to carry
firearms and make arrests for violations of federal law, see 18
U.S.C. § 3050, as are customs officers, see 19 U.S.C. § 1589a.
38
evidence for colleagues during crime-scene investigations.”
Id. at 943, 945 (emphasis added). To be sure, Bunch held that
“executing searches” under the proviso was not limited to
executing search warrants. Id. at 945. But the Seventh Circuit
emphasized that the forensic chemist may have had the
authority under Title 18, the federal criminal code, “to inspect
the site of any accident, or fire, in which there is reason to
believe that explosive materials were involved,” id. at 943
(quoting 18 U.S.C. § 846 (1994)), and offered, as other
examples of the types of searches covered by the proviso,
searches incident to arrest, protective sweeps, and searches
conducted pursuant to the automobile exception, id. at 945—
all of which are executed by traditional law enforcement
officers.
On the other hand, other circuits have held that the
proviso does not cover positions that lack a criminal law
component. In EEOC v. First National Bank of Jackson, for
example, the Fifth Circuit concluded that EEOC agents fell
outside the proviso, distinguishing between federal employees
who “have access to, for the purpose of examination, and the
right to copy any evidence of any person being investigated or
proceeded against that relates to unlawful employment
practices,” and “investigative or law enforcement officers”
who have the power to “execute searches.” 614 F.2d 1004,
1007–08 (5th Cir. 1980) (citation omitted); see also Wilson v.
United States, 959 F.2d 12, 15 (2d Cir. 1992) (per curiam)
(parole officers); Moore, 213 F.3d at 710 (federal prosecutors);
Solomon v. United States, 559 F.2d 309, 310 (5th Cir. 1977)
(per curiam) (security guards); Johnson v. United States, 547
F.2d 688, 691 (D.C. Cir. 1976) (per curiam) (VA hospital
physicians).
In short, with no exception until today, the Courts of
39
Appeals have consistently interpreted the proviso to
distinguish between federal officers involved in traditional law
enforcement and federal employees who are not. We should
not be creating this circuit split, much less putting ourselves on
the wrong side of it.
V. Where, as Here, At Least Two Plausible
Interpretations Exist, We Must Construe the
Law Enforcement Proviso in Favor of the
Sovereign
By departing from precedent to expose the United
States to enormous liability, the Majority’s interpretation runs
afoul of another principle of statutory interpretation: that
waivers of sovereign immunity must be construed narrowly in
favor of the United States.
Because courts do not casually infer that the United
States has waived its sovereign immunity, a waiver must be
“strictly construed, in terms of its scope, in favor of the
sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). Thus,
where “a plausible interpretation of the statute” exists that
would preserve the United States’s sovereign immunity, a
court must adopt it. Cooper, 566 U.S. at 290–91. Our Circuit,
just like every other, has applied these principles to the FTCA’s
waiver of immunity. Lightfoot v. United States, 564 F.3d 625,
628 (3d Cir. 2009); see also Evans v. United States, 876 F.3d
375, 380 (1st Cir. 2017); Tsolmon v. United States, 841 F.3d
378, 382 (5th Cir. 2016); McGowan v. United States, 825 F.3d
118, 126 (2d Cir. 2016); Lopez v. United States, 823 F.3d 970,
976 (10th Cir. 2016); Jackson v. United States, 751 F.3d 712,
717 (6th Cir. 2014).
While Dolan held that the general rule does not adhere
40
when interpreting an exception to the FTCA, i.e., when the
United States reclaims its sovereign immunity,20 see 546 U.S.
at 491–92, we consider here an exception to an exception.
Having restored the baseline of sovereign immunity for
intentional torts, Congress carved out an exception in the
proviso—that is, a waiver once more. And faced with a waiver
of sovereign immunity, we must revert to the general rule of
strict construction applicable to waivers of immunity. See
Foster v. United States, 522 F.3d 1071, 1079 (9th Cir. 2008)
(applying this analysis). Under that rule, the Majority cannot
seriously argue that the original Pellegrino panel majority, the
four dissenters here, and the unanimous panel in Corbett—not
to mention the unanimous panel in Matsko—all adopted an
“implausible” view of the law enforcement proviso. Nor
would I suggest as much of my colleagues in the Majority. But
there’s the rub: A “waiver of sovereign immunity must extend
unambiguously,” Lane, 518 U.S. at 192, such that no
“plausible interpretation of the statute” exists under which the
United States would remain immune from suit, Cooper, 566
U.S. at 290–91. Our reasonable disagreement makes one thing
clear: There is ambiguity in the scope of the proviso. In these
circumstances, we may not impute to Congress so significant a
waiver of sovereign immunity.
* * *
Like my colleagues, I am sympathetic to the concern
that the current legal regime provides no obvious remedy for
20
Even then, Dolan tasked us with “identify[ing] those
circumstances which are within the words and reason of the
exception—no less and no more,” 546 U.S. at 492 (internal
quotation marks and citation omitted)—not with interpreting
the exception against the sovereign.
41
torts committed by TSA screeners. For most, TSA screenings
are an unavoidable feature of flying, see 49 U.S.C. § 44901(a),
and, like all government functions, screenings carry a risk of
abuse. For these reasons, Congress may well see fit to expand
the law enforcement proviso or otherwise provide recourse for
passengers seeking to assert intentional tort claims against
screeners.
But courts “do not sit as councils of revision,
empowered to rewrite legislation in accord with their own
conceptions of prudent public policy.” United States v.
Rutherford, 442 U.S. 544, 555 (1979). Congress to date has
limited the proviso to “investigative or law enforcement
officers”—a term that covers only officers with traditional
police powers. The wisdom of this policy, especially as it
implicates the public fisc, lies beyond our purview. I therefore
respectfully dissent.
42