# Elisabeth Koletas v. United States

> Court of Appeals for the Eleventh Circuit · November 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11201499

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** November 12, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11201499

## How later opinions describe it (automated extraction)

- rejecting invocation of the canon as an “attempt to create ambiguity where the statute’s text and structure suggest none”
- holding that the rule of the last antecedent could be “re- but[ted]” where the modifying clause comes “at the end of a single integrated list—for example ‘receives, possesses, or transports, in commerce or affecting commerce.’” (emphasis added)

## Opinion text

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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 24-10545
____________________

ELISABETH KOLETAS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________

Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:23-cv-00733-SPC-KCD
____________________
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2 Opinion of the Court 24-10545

Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.
LAGOA, Circuit Judge:
The Federal Tort Claims Act (FTCA) effects a broad waiver
of sovereign immunity for torts committed by United States em-
ployees. 28 U.S.C. §§ 1346(b), 2674. Although this broad waiver is
subject to several exceptions, including 28 U.S.C. § 2680(h)’s inten-
tional tort exception, Congress enacted a “law enforcement pro-
viso” to § 2680(h), preserving the FTCA’s waiver of sovereign im-
munity for certain intentional torts committed by a defined class
of “investigative or law enforcement officers.”
This appeal asks us to determine whether Transportation
Security Officers authorized to conduct searches of people and
their property at airports fall within that defined class, which com-
prises “officer[s] of the United States” who are “empowered by law
to execute searches, to seize evidence, or to make arrests for viola-
tions of Federal law.” 28 U.S.C § 2680(h).
Because federal regulations expressly authorize Transporta-
tion Security Officers to conduct searches of both people and prop-
erty to prevent prohibited items from being brought onto aircraft,
we join our five sister circuits that have addressed this issue in hold-
ing that Transportation Security Officers are “investigative or law
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24-10545 Opinion of the Court 3

enforcement officers” under the plain language of § 2680(h)’s law
enforcement proviso.
I. FACTUAL AND PROCEDURAL HISTORY 1
On June 23, 2022, Plaintiff Elisabeth Koletas was traveling
through Southwest Florida International Airport. Upon arriving at
the security screening area, Koletas, four months pregnant, re-
quested to undergo a pat-down instead of walking through a body
scanner. She explained that she was concerned about the effects of
radiation emitted from the body scanner on her pregnancy. Her
request was granted.
Koletas was then directed to the side of the security screen-
ing area, where Transportation Security Officer (TSO) Sarno per-
formed a pat-down search of Koletas. During this search, Sarno
engaged in a prolonged probe of Koletas’s vaginal area, homing in
on unidentified material in Koletas’s underwear. Koletas explained
to Sarno that the unidentified material was a piece of toilet paper
to stem vaginal bleeding resulting from her pregnancy. Skeptical
of this explanation, Sarno moved Koletas to an isolated room to
conduct further searching, and left to retrieve her supervisor.
Sarno returned with Supervising TSO Shane, who con-
ducted further probing of Koletas’s underwear and vaginal area.

1 Consistent with the standard of review for motions to dismiss, we take our

factual summary from the allegations in Koletas’s complaint and construe the
allegations in the light most favorable to the plaintiff. See Newbauer v Carnival
Corp., 26 F.4th 931, 933 n.1 (11th Cir. 2022).
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4 Opinion of the Court 24-10545

Shane asked Koletas to lift up her dress and expose her underwear
so that Shane could see the purported toilet paper. Koletas de-
murred, suggesting instead that she could remove the toilet paper
from her underwear and show it to Shane. But Shane rejected
Koletas’s suggestion and again directed her to lift up her dress.
Koletas relented. Shane then pulled down Koletas’s underwear, ex-
posed her vaginal area, and removed the bloodied toilet paper. No
prohibited items were uncovered. So Shane permitted Koletas to
leave the room and proceed through security.
Koletas was deeply shaken by her encounter with Sarno and
Shane, and developed a host of psychological and physical symp-
toms as a result of enduring their strip search. Accordingly, after
exhausting her administrative remedies, on September 13, 2023,
Koletas filed a FTCA suit against the United States, alleging battery,
false imprisonment, intentional infliction of emotional distress,
and negligence.
The United States moved to dismiss for lack of subject-mat-
ter jurisdiction, arguing that § 2680(h)’s intentional tort exception
granted the United States sovereign immunity from the battery
and false imprisonment allegedly committed by TSOs Sarno and
Shane. 2 Koletas responded that the Third and Eighth Circuits had
recently published decisions, concluding that TSOs fall under §

2 The government argued that Koletas’s other claims—intentional infliction of

emotional distress and negligence—were derivative claims arising from the
same underlying conduct as her battery and false imprisonment claims and
would therefore rise and fall with them.
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24-10545 Opinion of the Court 5

2680(h)’s law enforcement proviso carve-out of the intentional tort
exception.
The district court agreed with the government. But the dis-
trict court’s economical dismissal order did not grapple at all with
the thorough analyses provided by the Third and Eighth Circuits in
the cases cited by Koletas, nor with other then-recently published
decisions from the Fourth and Ninth Circuits reaching the same
conclusion. Instead, relying exclusively on our unpublished, per cu-
riam decision in Corbett v. Transp. Sec. Admin., 568 F. App’x 690 (11th
Cir. 2014) (Corbett I), the district court concluded that TSOs are not
“officer[s] of the United States” under § 2680(h)’s law enforcement
proviso, and are therefore subject to § 2680(h)’s intentional tort ex-
ception to the FTCA’s sovereign immunity waiver. Accordingly, the
district court granted the government’s motion to dismiss for lack
of subject-matter jurisdiction. Koletas timely appealed.
II. STANDARD OF REVIEW
We review de novo the dismissal of a complaint for lack of
subject-matter jurisdiction due to sovereign immunity. Smith v.
United States, 14 F.4th 1228, 1230 (11th Cir. 2021).
III. ANALYSIS
The United States is generally immune from suit unless
Congress explicitly waives the government’s immunity. See Lane v.
Pena, 518 U.S. 187, 192 (1996). As such, Congress enacted the
FTCA, which “waives the Government’s immunity from suit in
sweeping language.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 492
(2006) (quoting United States v. Yellow Cab Co., 340 U.S. 543, 547
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6 Opinion of the Court 24-10545

(1951)). The FTCA provides that federal district courts possess ex-
clusive jurisdiction over claims against the United States for “injury
or loss of property, or personal injury or death caused by the neg-
ligent or wrongful act or omission of any employee of the govern-
ment while acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1).
But the FTCA subjects this “broad waiver of sovereign im-
munity” to 13 exceptions. Millbrook v. United States, 569 U.S. 50, 52
(2013); see 28 U.S.C. § 2680(a)–(n). As pertinent to this appeal,
§ 2680(h) of the FTCA preserves sovereign immunity for various
intentional torts, including “assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.”
Thus, Koletas’s primary claims 3 for battery and false imprisonment
generally could not be asserted against the United States.
Our inquiry does not stop there, however. In 1974, Congress
added a carve-out to § 2680(h)’s preservation of sovereign immun-
ity that covers certain torts arising out of the wrongful conduct of
“investigative or law enforcement officers of the United States.”
Millbrook, 569 U.S. at 52–53. This carve-out, generally referred to
as the “law enforcement proviso,” 4 provides:

3 Koletas does not appeal the district court’s holding that her other two claims

are purely derivative for purposes of sovereign immunity.
4 This terminology is obviously inexact, as the proviso refers to both “investi-

gative officers” and “law enforcement officers.” Nevertheless, because this
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24-10545 Opinion of the Court 7

[W]ith regard to acts or omissions of investigative or
law enforcement officers of the United States Govern-
ment, the provisions of this chapter and section
1346(b) of this title shall apply to any claim arising, on
or after the date of the enactment of this proviso, out
of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution. For the
purpose of this subsection, “investigative or law enforce-
ment 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). In sum, § 2680(h)’s law en-
forcement proviso waives sovereign immunity for certain inten-
tional torts—including battery and false imprisonment—commit-
ted by “investigative or law enforcement officers,” which the pro-
viso 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.”
The question presented in this appeal is whether a TSO qual-
ifies as “any officer of the United States who is empowered by law
to execute searches, to seize evidence, or to make arrests for viola-
tions of Federal law.” If so, the United States is not immune from
Koletas’s suit.
Over the past five years, five of our sister circuits have pub-
lished decisions on this issue. All five concluded that the law

terminology is widely used by other courts, we adopt it throughout to main-
tain stylistic consistency.
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8 Opinion of the Court 24-10545

enforcement proviso’s definition of “investigative or law enforce-
ment officers” unambiguously encompasses TSOs. See Mengert v.
United States, 120 F.4th 696 (10th Cir. 2024); Leuthauser v. United
States, 71 F.4th 1189 (9th Cir. 2023); Osmon v. United States, 66 F.4th
144 (4th Cir. 2023); Iverson v. United States, 973 F.3d 843 (8th Cir.
2020); Pellegrino v. U.S. Trans. Sec. Admin., 937 F.3d 164 (3d Cir. 2019)
(en banc). We agree with our sister circuits: TSOs are plainly “of-
ficer[s] of the United States” who are “empowered by law to exe-
cute searches.”
A. Officer of the United States
The FTCA does not define “officer,” so we “construe it in
accord with its ordinary or natural meaning.” Smith v. United States,
508 U.S. 223, 228 (1993). “Ordinarily, a word’s usage accords with
its dictionary definition.” Yates v. United States, 574 U.S. 528 (2015).
The term “officer” naturally encompasses a Transportation Secu-
rity Officer. And dictionary definitions of the term “officer” con-
temporaneous with the law enforcement proviso’s enactment con-
firm that natural intuition. The Fourth Edition of Black Law’s Dic-
tionary defines an “officer” as “[o]ne who is charged by a superior
power (and particularly by government) with the power and duty
of exercising certain functions” or “[o]ne who is invested with
some portion of the functions of the government to be exercised
for the public benefit.” Officer, Black’s Law Dictionary (4th ed. rev.
1968). Likewise, Webster’s Third New International Dictionary de-
fines “officer” as “one charged with a duty” or “one who is ap-
pointed or elected to serve in a position of trust, authority, or
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24-10545 Opinion of the Court 9

command esp. as specif. provided for by law.” Officer, Webster’s
Third New International Dictionary (1971).
We agree with our sister circuits that TSOs easily satisfy
these definitions. See Pellegrino, 937 F.3d at 170; Iverson, 973 F.3d at
848; Leuthauser, 71 F.4th at 1194; Mengert, 120 F.4th at 705. 5 Con-
gress, through the Aviation and Transportation Security Act
(ATSA) vests TSOs with the power to conduct airport screenings.
See 49 U.S.C. § 44901(a). And the ATSA’s regulations provide that
the screenings executed by TSOs facilitate passenger safety and na-
tional security—i.e. “public benefits”—by preventing passengers
from bringing “weapons, explosives, and incendiaries” onto planes.
49 C.F.R. § 1540.4. TSOs also serve in positions of “authority” and
“trust,” as the Transportation Security Administration (TSA) holds
TSOs out to the public as officers through their title and uniform,
which contains a badge prominently displaying “US Officer.” In
fact, the government chose to vest TSOs with their “officer” title
and badges precisely to cultivate the public’s respect for TSO au-
thority. 6

5 The Fourth Circuit did not address this issue because the government there

did not even bother to “challenge[] the magistrate judge’s conclusion that
[TSOs] are ‘officers of the United States’ within the meaning of the law en-
forcement proviso.” Osmon, 66 F.4th at 147–48.
6 TSA stated that it altered TSOs’ uniforms, including adding badges, to “ad-

dress[ ] officers’ concerns of utility, respect, and confidence, and . . . as a readily
identifiable symbol of TSA’s security mission and officers’ role of keeping the
traveling public safe.” Press Release, Transportation Security Officers Have
Renewed Focus and New Look on Seventh Anniversary of 9/11, Transp. Sec.
Admin. (Sept. 11, 2008),
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10 Opinion of the Court 24-10545

Unlike in its appeals before several of our sister circuits, the
government here does not push back on the above analysis. To the
extent that the government challenges whether TSOs are “of-
ficer[s] of the United States,” it does so primarily by maintaining
that we—like the district court—ought to uphold our unpublished,
per curiam decision in Corbett I that concluded otherwise. Because
both the government and the district court rely heavily on Corbett’s
authoritative weight, we briefly address the unpublished decision.
First, we note that Corbett I is not precedential. The district
court’s sparse opinion relied entirely on Corbett I without any anal-
ysis of our sister circuits’ published decisions refuting its reasoning,
which the parties extensively briefed. While such an approach may
be appropriate where we have adjudicated the issue at bar in a pub-
lished decision, “[u]npublished decisions are not binding authority
and they are ‘persuasive only to the extent that a subsequent panel
finds the rationale expressed in that opinion to be persuasive after
an independent consideration of the legal issue.’” Collado v. J. & G.
Transp., Inc., 820 F.3d 1256, 1259 n.3 (11th Cir. 2016) (quoting Twin
City Fire Ins. Co. v. Ohio Cas. Ins. Co., 480 F.3d 1254, 1260 n.3 (11th
Cir. 2007)); see 11th Cir. R. 36-2. Accordingly, we caution district

https://www.tsa.gov/news/releases/2008/09/11/transportation-security-
officers-have-renewed-focus-and-new-look-seventh. “The attire aims to con-
vey an image of authority to passengers, who have harassed, pushed and in a
few instances punched screeners. ‘Some of our officers aren’t respected,’ TSA
spokeswoman Ellen Howe said.” Thomas Frank, TSA’s New Policelike
Badges a Sore Point with Real Cops, ABC News (June 23, 2008),
https://abcnews.go.com/Travel/story?id=517321 & page=1.
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24-10545 Opinion of the Court 11

courts from relying on our unpublished decisions purely because
they are our decisions, without carefully evaluating the legal sua-
sion of an unpublished Eleventh Circuit opinion. See McNamara v.
Gov’t Emps. Ins. Co., 30 F.4th 1055, 1061 (11th Cir. 2022).
Second, we do not find Corbett I persuasive, as it focused on
the FTCA’s distinction between a federal “employee” and an “of-
ficer.” 568 F. App’x at 701; compare 28 U.S.C. § 1346(b)(1) (waiving
immunity for claims based on the acts or omissions of “any em-
ployee of the Government…”) with 28 U.S.C. § 2680(h) (waiving im-
munity for claims based on the acts of “any officer of the United
States.” (emphases added)). We reasoned that the law enforcement
proviso purposely used the more limited term “officer” to exclude
some subset of government employees who do not qualify as offic-
ers. Id.
While we correctly concluded in Corbett I that the law en-
forcement proviso does not encompass all federal employees, Cor-
bett I did not proceed to analyze the text of the law enforcement
proviso or the FTCA to ascertain whether it does encompass TSOs.
Instead, Corbett I assumed that because another statute—the
ATSA—distinguished between TSOs, which it designated as “Fed-
eral Government employee[s], and TSA “law enforcement officers,” 7
TSOs do not qualify as officers under the law enforcement proviso.

7 And only those so designated may “carry a firearm,” “make an arrest”, or

“seek and execute warrants for arrest or seizure of evidence.” 49 U.S.C.
§ 114(p)(2)(A)-(C).
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12 Opinion of the Court 24-10545

Corbett I, 568 F. App’x at 701 (quoting 49 U.S.C. §§ 44901, 114(p)(1))
(emphases added).
As our sister circuits noted, the reasoning in Corbett I is not
persuasive for two reasons. First, it did not conduct a textual anal-
ysis of the relevant statute, the FTCA. See e.g., Iverson, 973 F.3d at
850 (explaining that the ATSA postdates the FTCA and cannot “si-
lently alter[]” the scope of a statute enacted 30 years prior). Sec-
ond, as the Third Circuit explained, it is perfectly consistent for
TSOs to be classified as both “employees” and “officers,” but not
“law enforcement officers.” See Pellegrino, 937 F.3d at 171 (“[T]here
is no textual indication that only a specialized ‘law enforcement of-
ficer’ in the [ATSA] qualifies as an ‘officer of the United States’ un-
der the [FTCA].”).8
Because the government does not meaningfully defend Cor-
bett I’s holding that TSOs are not “officers” under the law enforce-
ment proviso, and because we are persuaded by the plain-meaning
analysis conducted by our sister circuits, we conclude that TSOs
qualify as “officers” under the proviso.

8 In fact, both the ATSA and FTCA define “employee” to include “officer.” See

49 U.S.C. § 44901(a) (cross referencing 5 U.S.C. § 2105(a) (defining employee
as “an officer and an individual”)) (ATSA); 28 U.S.C. § 2671 (providing that an
“[e]mployee of the Government” includes “officers or employees of any fed-
eral agency”) (FTCA). And the law enforcement proviso’s reference to both
“investigative or law enforcement officers” reinforces the notion that the pro-
viso encompasses “officers” beyond just law enforcement officers. See
§ 2680(h) (emphasis added).
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24-10545 Opinion of the Court 13

B. Empowered by Law to Execute Searches
So TSOs are “officer[s] of the United States,” but are they
investigative officers? We agree with our five sister circuits that
TSOs are investigative officers under the law enforcement proviso
because they are “empowered by law to execute searches.”
§ 2680(h); see Pellegrino, 937 F.3d at 172–77; Iverson, 973 F.3d at 851–
53; Leuthauser, 71 F.4th at 1196–97; Osmon, 66 F.4th at 148–49;
Mengert, 120 F.4th at 706–10. TSO “screenings” are searches (1) as
a matter of the ordinary meaning of the term “search”; (2) under
the Fourth Amendment; and (3) under the Supreme Court’s defini-
tion in Terry v. Ohio, 392 U.S. 1 (1968).
1. Ordinary Meaning
The term “search” naturally describes a TSO’s primary func-
tion. Indeed, there are few jobs more closely associated by the pub-
lic with the notion of a “search” than a TSO; it is effectively the
bulk of their job. And again, dictionaries contemporaneous with
the enactment of the law enforcement proviso confirm this under-
standing. Webster’s Third New International Dictionary defines a
search as: “to examine (a person) thoroughly to check on whatever
articles are carried or concealed.” Search, Webster’s Third New In-
ternational Dictionary (1971). Likewise, the Fourth Edition of
Black’s Law Dictionary defines a search as “an examination or in-
spection ... with [a] view to discovery of stolen, contraband, or il-
licit property.” Search, Black’s Law Dictionary (4th ed. rev. 1968).
The ATSA’s description of a TSO’s job responsibilities read-
ily comports with these definitions. Per 49 U.S.C. §§ 44901(a) &
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14 Opinion of the Court 24-10545

g(4), TSOs perform “screening[s] of all passengers and property,”
which include “physical search[es],” to assess whether any cargo
“possesses a threat to transportation security.” (emphasis added);
see also 49 U.S.C. § 44935(f )(1)(B)(v) (“[s]creeners who perform pat-
downs or hand-held metal detector searches of individuals shall have
sufficient dexterity and capability to thoroughly conduct those pro-
cedures over an individual’s entire body.” (emphasis added)).
TSA’s own regulations and descriptions of its practices fur-
ther confirm that TSO screenings constitute “searches” under the
term’s ordinary meaning. Those 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…who does not consent to a search or inspection
of that property…” 49 C.F.R. § 1544.201(c) (emphases added). And
such searches are undertaken with “millimeter wave advanced im-
aging technology,” to “safely screen[] passengers ... for metallic and
non-metallic threats, including weapons and explosives, which may
be concealed under clothing.” Security Screening, Trans. Sec. Ad-
min., https://www.tsa.gov/travel/security-screening (select
“Screening Technology” tab) (last visited February 13, 2025). TSOs
may also conduct “[p]at-down procedures,” which include “inspec-
tion[s] of the head, neck, arms, torso, legs, and feet.” Id. (select
“Pat-Down Screening” tab). Such techniques “are used to deter-
mine whether prohibited items or other threats to transportation
security are concealed on the person.” Id.
2. Fourth Amendment
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24-10545 Opinion of the Court 15

In Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1179 (11th Cir.
2014) (Corbett II), a published decision, we joined many of our sister
circuits in holding that TSO screenings constitute “reasonable ad-
ministrative search[es] under the Fourth Amendment.” See, e.g.,
Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 10–11
(D.C. Cir. 2011); United States v. Aukai, 497 F.3d 955, 962–63 (9th Cir.
2007) (en banc); United States v. Hartwell, 436 F.3d 174, 178 (3d Cir.
2006); United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974).
Such searches may not require individualized suspicion and the ex-
ecution of a warrant, but they still qualify as searches.
Indeed, the Supreme Court itself has described a TSO
screening as an administrative search. See Nat’l Treasury Emps. Un-
ion v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (referring to “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,” and approvingly explaining that
“the lower courts that have considered the question have consist-
ently [applied precedents dealing with administrative searches and]
concluded that such searches are reasonable under the Fourth
Amendment”).
3. Terry v. Ohio
In Terry, the Supreme Court explained that “it 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.’” 329
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16 Opinion of the Court 24-10545

U.S. at 16. “Careful exploration of the outer surfaces of a person’s
clothing all over his or her body in an attempt to find weapons”
perfectly encapsulates a TSOs responsibilities. Id. As the Third Cir-
cuit noted, a TSO may “thoroughly conduct” an exploration “over
an individual’s entire body.” Pellegrino, 937 F.3d at 173 (quoting 49
U.S.C. § 44935(f )(1)(B)(v)). And the TSA website elaborates that
TSOs inspect “sensitive areas such as breasts, groin, and the but-
tocks” and must use “sufficient pressure to ensure detection.” Id.
(quoting Transp. Sec. Admin., Security Screening,
https://www.tsa.gov/travel/security-screening (last visited Febru-
ary, 13, 2025).
In sum, TSOs execute highly invasive physical and non-phys-
ical screening procedures to detect whether passengers are carrying
concealed contraband or other dangerous and prohibited items.
That is a paradigmatic search.
The government advances three challenges to our conclu-
sion that TSO administrative searches constitute “searches” under
the law enforcement proviso. 9
First, the government notes that the law enforcement pro-
viso’s operative phrase is “execute searches,” which it argues, point-
ing to several statutes and cases, is a term of art that specifically

9 The government does not dispute that TSOs are “empowered by law” to

conduct screenings; the sole dispute is whether TSO screenings constitute
“searches” within the context of the law enforcement proviso.
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24-10545 Opinion of the Court 17

connotes “the traditional police power to execute a warrant or
other type of criminal search, such as a search incident to arrest.”
This argument is flawed: the operative statutory phrase is
“execute searches,” not “execute search warrants.” Yet every stat-
ute and case the government relies on refers to “search warrants.”
See e.g., 18 U.S.C. § 2231(a) (“Whoever forcibly assaults, resists, op-
poses, prevents, impedes, intimidates, or interferes with any person
authorized to serve or execute search warrants[.]”); 22 U.S.C.
§ 2709(a)(2) (“Under such regulations as the Secretary of State may
prescribe, special agents of the Department of State and the For-
eign Service may…obtain and execute search and arrest war-
rants.”); United States v. Ramirez, 523 U.S. 65, 69 (1998) (“[A]pproxi-
mately 45 officers gathered to execute the warrant.”); Los Angeles
Cnty., California v. Rettele, 550 U.S. 609, 614 (2007) (“In executing a
search warrant officers may take reasonable action to secure the
premises and to ensure their own safety and the efficacy of the
search.”).
Congress’s non-inclusion of the term “warrant” in the
phrase “execute searches” is therefore notable. As our sister cir-
cuits explained, the phrase “execute searches,” without any refer-
ence to “warrant,” indisputably connotes greater breadth “because
authority to execute a search does not necessarily imply authority
to execute a search warrant.” Leuthauser, 71 F.4th at 1198; see Bunch
v. United States, 880 F.3d 938, 945 (7th Cir. 2018) (“[S]ection 2680(h)
does not require [the officer] to have had authority to seek and ex-
ecute search warrants; it speaks only of executing searches, and
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18 Opinion of the Court 24-10545

many searches do not require warrants.”); Osmon, 66 F.4th at 149
(same).
If anything, the government’s examples show that Congress
could have included the terms “warrant” or “search warrant” in the
law enforcement proviso, just like it did in the statutes the govern-
ment relies on. See Pellegrino, 937 F.3d at 174; Mengert, 120 F.4th at
709. Its failure to do so provides good evidence that “execute
searches” encompasses more than a traditional police investigative
search conducted pursuant to a warrant.
Second, the government invokes the noscitur a sociis canon,
arguing that we must interpret “search” in consonance with the
other terms listed in the law enforcement proviso, “seize evidence”
and “make arrests,” which “necessarily carry criminal connota-
tions.”
This canon has no application here. Noscitur a sociis is used
“where words are of obscure or doubtful meaning.” Iverson, 973
F.3d at 852–53 (quoting Russell Motor Car Co. v. United States, 261 U.S.
514, 520 (1923)); see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226–
27 (2008) (rejecting invocation of the canon as an “attempt to create
ambiguity where the statute’s text and structure suggest none”).
But “execute searches” is a “perfectly plain” term. Russell Motor,
261 U.S. at 519. The government improperly invokes noscitur a
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24-10545 Opinion of the Court 19

sociis to “create [doubt]” as to its meaning, but the canon is used
only when we are already in the “domain of ambiguity.” Id. 10
Third, the government contends that the proviso’s use of the
term “investigative or law enforcement officer” “naturally evokes”
criminal law enforcement, pointing to other statutes using that
same phrase.
But as the Tenth Circuit explained, the two statutes the gov-
ernment cites, the Wiretap Act, 18 U.S.C. § 2510(7), and the Foreign
Intelligence Surveillance Act, 50 U.S.C. § 1809(b), provide defini-
tions of “investigative or law enforcement officer” that are “mate-
rially distinguishable” from the law enforcement proviso’s defini-
tion. Mengert, 120 F.4th at 707 n.6. Both statutes provide definitions
of the phrase that expressly implicate criminal law enforcement.
See 18 U.S.C. § 2510(7) (defining the phrase as “any officer of the
United States or of a State or political subdivision thereof, who is
empowered by law to conduct investigations of or to make arrests

10 Further, the three phrases in the law enforcement proviso, “execute
searches,” “seize evidence,” and “make arrests for violations of Federal law,”
are listed in the disjunctive, and the Supreme Court has explained “that terms
connected in the disjunctive” reflect “an intent” by Congress to give each term
“their separate, normal meanings.” Garcia v. United States, 469 U.S. 70, 73
(1984); see Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel.
Wilson, 559 U.S. 280, 288 (2010) (“A list of three items, each quite distinct from
the other no matter how construed, is too short to be particularly illuminat-
ing.”). We agree with the Ninth Circuit that “the substantive connection
among the terms execute searches, seize evidence, and make arrests is not so tight
or self-evident as to demand that we rob any one of them of its independent
and ordinary significance.” Leuthauser, 71 F.4th at 1199.
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20 Opinion of the Court 24-10545

for offenses enumerated in this chapter, and any attorney author-
ized by law to prosecute or participate in the prosecution of such
offenses”); 50 U.S.C. § 1809(b) (defining the phrase as someone “en-
gaged in the course of his official duties and the electronic surveil-
lance was authorized by and conducted pursuant to a search war-
rant or court order of a court of competent jurisdiction.”).
By contrast, the law enforcement proviso gives its own spe-
cific definition of “investigative or law enforcement officer.” See
§ 2680(h) (“For the purpose of this subsection, ‘investigative or law en-
forcement officer’ means…” (emphasis added)). And that defini-
tion does not expressly implicate criminal law enforcement. It
therefore makes little sense to look to those other statutes for clar-
ification of the scope of “investigative or law enforcement officer”
as specifically used in the law enforcement proviso. See Pellegrino,
937 F.3d at 164 (“When a statute includes an explicit definition, we
must follow that definition, even if it varies from that term’s ordi-
nary meaning.”). 11

11 The government also points to two of our decisions, Equal Emp. Opportunity

Comm’n v. First Nat. Bank of Jackson, 614 F.2d 1004 (5th Cir. 1980) and Solomon
v. United States, 559 F.2d 309 (5th Cir. 1977), that it claims held that officers
who conduct only administrative searches “do[] not fall within the law en-
forcement proviso.” Both cases are distinguishable. In Equal Emp. Opportunity
Comm’n, we held that EEOC agents do not fall under the law enforcement
proviso because they “are not…given the authority to execute searches” de-
spite having the ability to “access” and “examin[e]” “any evidence of a person
being investigated.” 614 F.2d at 1007–08. Unlike EEOC agents, however,
TSOs are authorized to conduct searches of individuals and their effects. That
function fits neatly into the law enforcement proviso; an EEOC agent’s ability
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24-10545 Opinion of the Court 21

C. For Violations of Federal Law
The law enforcement proviso applies to any officer who is
authorized “to execute searches, to seize evidence, or to make ar-
rests for violations of Federal law.” 28 U.S.C. § 2680(h) (emphasis
added). The government contends that this modifying phrase “re-
fers to “criminal violations,” and that TSO searches, as suspicion-
less administrative searches, cannot qualify.
As an initial matter, “for violations of Federal law” presump-
tively does not modify “to execute searches.” See Pellegrino, 937 F.3d
at 177. Per the rule of the last antecedent, “a list of terms or
phrases followed by a limiting clause…should ordinarily be read as
modifying only the noun or phrase that it immediately follows.”
Lockhart v. United States, 577 U.S. 347, 351 (2016). “Th[is] rule re-
flects the basic intuition that when a modifier appears at the end of
a list, it is easier to apply that modifier only to the item directly
before it.” Id. at 351–52 (applying the rule to the list “aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward” to hold that the limiting phrase “involving a minor
or a ward” only modified “abusive sexual conduct”). Accordingly,
“for violations of Federal law” modifies solely “to make arrests.”

to access and examine evidence of any person under investigation does not.
And in Solomon, we simply held, without providing any explanation, that se-
curity employees hired by a military base were not empowered by law to ex-
ecute searches. 559 F.2d at 310. The opinion says nothing about the types of
jobs and functions that would satisfy the proviso.
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22 Opinion of the Court 24-10545

Opposing application of the last antecedent rule, the gov-
ernment maintains that “for violations of Federal law” modifies
each of the three alternative categories listed in the law enforce-
ment proviso, invoking the competing “series qualifier” principle,
id. at 355, that a modifying phrase “follow[ing] a ‘straightforward,
parallel construction that involves all nouns or verbs in a series’”
modifies each term in the series. United States v. Miles, 75 F.4th 1213,
1222 (11th Cir. 2023) (quoting Antonin Scalia & Bryan A. Garner,
Reading Law 147 (2012)).
But the Supreme Court has clarified that the rule of the last
antecedent is a default rule that gives way to the series qualifier
canon only when it is rebutted by adequate “structural or contex-
tual evidence” suggesting it should not apply. Lockhart, 577 U.S. at
355–56; see Jama v. Immigration and Customs Enf ’t, 543 U.S. 335, 344,
n.4 (2005) (holding that the rule of the last antecedent could be “re-
but[ted]” where the modifying clause comes “at the end of a single
integrated list—for example ‘receives, possesses, or transports, in
commerce or affecting commerce.’” (emphasis added)); Porto Rico
Railway, Light & Power Co. v. Mor, 253 U.S. 345, (1920) (“[w]hen sev-
eral words are followed by a clause which is applicable as much to
the first and other words as to the last, the natural construction of
the language demands that the clause be read as applicable to all”
if “special reasons exist for so construing the clause in question.”).
Here, the government does not proffer adequate “structural
or contextual evidence” rebutting the default rule of the last ante-
cedent. In fact, the proviso’s grammatical structure militates
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24-10545 Opinion of the Court 23

against application of the series qualifier canon. “[F]or violations
of Federal law” is “not set off by a comma,” and a “qualifying
phrase separated from antecedents by a comma is evidence that
the qualifier is supposed to apply to all the antecedents instead of
only to the immediately preceding one.” Facebook, Inc. v. Duguid,
592 U.S. 395, 403–04 (2021) (quoting W. Eskridge, Interpreting Law:
A Primer on How To Read Statutes and the Constitution 67–68
(2016)). Additionally, the list of three alternatives are “crafted each
as a separate infinitive.” Frey v. Pekoske, 2021 WL 1565380, at *6
(S.D.N.Y. Apr. 21, 2021); see 28 U.S.C. § 2680(h) (“to execute
searches, to seize evidence, or to make arrests for violations of Fed-
eral law” (emphases added)). Had “Congress intended ‘for viola-
tions of Federal law’ to apply to all three [alternatives], it would not
have crafted each as a separate infinitive and applied ‘for violations
of Federal law’ only to the last one.” Frey, 2021 WL 1565380, at *6.
Contrast the law enforcement proviso’s structure with the
structure of the statute in Miles, cited by the government, where
we correctly applied the series qualifier canon. The statute there
prohibited “manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance.” Miles, 75
F.4th at 1218. We held that the modifying phrase “a controlled sub-
stance” applied equally to all three listed verbs: (1) “manufactur-
ing,” (2) “distributing,” and (3) “possessing.” Id. at 1221–22. Unlike
the law enforcement proviso, however, the modifying phrase con-
sidered in Miles is offset by a comma, and, more significantly, failure
to apply the modifier to each of the three verbs would “read a gap
into the statute” by leaving the listed verbs “without any object in
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24 Opinion of the Court 24-10545

the text.” Id. at 1222. Thus, in Miles, the statute’s structure de-
manded application of the series qualifier canon.
Conversely, in the law enforcement proviso, each alternative
category—(1) “to execute searches,” (2) “to seize evidence” and
(3) “to make arrests”—possesses both a verb and an object and
stands independent of the modifying phrase “for violations of Fed-
eral law.” 28 U.S.C. § 2680(h). And the last antecedent inference
makes good sense here. An officer can only arrest someone if they
violated the law, but he may conduct a search or seize evidence for
all sorts of other reasons.
In sum, neither the structure nor the context of the law en-
forcement proviso adequately supports application of the series
qualifier canon. We therefore conclude that the government fails
to “rebut the last antecedent inference.” Lockhart, 577 U.S. at 355
(quoting Jama, 543 U.S. at 344, n.4).
But even assuming “for violations of Federal law” modifies
“to execute searches,” the government’s argument still fails—TSO
searches are also for violations of federal law. For example, TSOs
are tasked to screen for a variety of “hazardous materials” that are
“forbidden in transportation.” 49 C.F.R. § 172.101(a). And while
§ 172.101(a) concerns only civil violations, the modifying phrase
“for violations of Federal law” plainly encompasses more than just
criminal violations. See Pellegrino, 937 F.3d at 177 (“for violations of
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24-10545 Opinion of the Court 25

Federal law” “sweeps notably broader than other statutes that spec-
ify violations of criminal law.”). 12
D. The Sovereign Immunity Canon Does Not Apply
Generally, “a waiver of sovereign immunity must be une-
quivocally expressed in statutory text.” F.A.A. v. Cooper, 566 U.S.
284, 290 (2012) (citation and quotations omitted). This interpretive
canon requires us to construe “any ambiguities in the statutory lan-
guage” in “favor of immunity.” Id. So the government stakes much
of its appeal on the contention that its interpretation of the statute
is “at a minimum—plausible,” as “ambiguity exists” so long as there
is an alternative “plausible interpretation of the statute.” Id.
We do not see ambiguity in the law enforcement proviso.
We agree with our sister circuits that a plain reading of the text
impels the conclusion that it applies to TSOs. See Pellegrino, 937
F.3d at 180 (the “statute is clear on its face.”); Iverson, 973 F.3d at 854
(the statute “is not ambiguous.”); Osmon, 66 F.4th at 150 (“the plain
language of this statute supplies a clear answer.”); Leuthauser, 71
F.4th at 1199 n.4 (“the statutory text is unambiguous”); Mengert, 120

12 The government contends that “for violations of Federal law” must mean

criminal violations because the phrase also modifies “to make arrests,” and
only criminal violations justify an arrest. Even granting this contention, our
analysis remains unchanged—TSOs also execute searches in connection with
criminal violations. TSOs inspect individuals “for the presence of weapons,
explosives, or incendiaries,” and 49 U.S.C. §§ 46505(b)(1) & (3) make it a crime
to bring such items onto an airplane.
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26 Opinion of the Court 24-10545

F.4th at 710 (agreeing with Pellegrino that the statute is “clear on its
face”).13
TSOs are “officer[s] of the United States” by virtue of their
title and authority. These officers are “empowered by law to exe-
cute searches” because Congress vests them with the authority to
perform searches—often highly invasive—of both individuals and
their property. And, even assuming the government’s argument
regarding modification of “execute searches”, those searches are
“for violations of Federal law” because they are executed to prevent
the transportation of contraband or dangerous items prohibited
from airlines. Further, several torts subject to the law enforcement
proviso—assault, battery, false imprisonment—are precisely the
type of torts that could be committed by officers tasked exclusively
with conducting physical and highly invasive searches of individu-
als. It would be odd for the government to retain immunity from
intentional torts arising from such searches when performed by
TSOs but accept liability for those same searches when performed
by traditional law enforcement.
Resisting the text’s plain language, the government manu-
factures ambiguity where there is none, importing absent terms
(“criminal,” “warrant”), invoking inapplicable statutory canons

13 Because the proviso is unambiguous, we also decline to look at the govern-

ment’s legislative history evidence. See Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958, 969 (11th Cir. 2016) (en banc) (“[W]e do not consider legislative
history when the text is clear. … When the words of a statute are unambigu-
ous, ... judicial inquiry is complete.” (internal quotation marks omitted)).
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24-10545 Opinion of the Court 27

(noscitur a sociis, series-qualifier), and comparing inapposite statues
(ATSA, Wiretap Act). But the government provides no legitimate
reason to alter the plain text of the law enforcement proviso by
cabining its reach to only those officers who wield “traditional law
enforcement police powers.”
The government’s reliance on the sovereign immunity
canon faces another hurdle: the Supreme Court has clarified that
the sovereign immunity canon does not apply to interpretations of
the FTCA. In Dolan, which dealt with one of § 2680’s exceptions,
the Court held that disputes over the breadth of the FTCA “do[]
not implicate the general rule that a ‘waiver of the Government’s
sovereign immunity will be strictly construed, in terms of its scope,
in favor of the sovereign.’” 546 U.S. at 491 (quoting Lane, 518 U.S.
at 192). This is because strict construction of sovereign immunity
in favor of the government is ‘“unhelpful’ in the FTCA context,
where ‘unduly generous interpretations of the exceptions run the
risk of defeating the central purport of the statute,’ which ‘waives
the Government’s immunity from suit in sweeping language.’” Id.
(first quoting Kosak v. United States, 465 U.S. 848, 853 n.9 (1984); then
quoting Yellow Cab Co., 340 U.S. at 547); see Richards v. United States,
369 U.S. 1, 6 (1962) (“The FTCA … was designed primarily to re-
move the sovereign immunity of the United States from suits in
tort.”). Thus, the Court concluded that “the proper objective of a
court attempting to construe one of the subsections of [§ 2680] is
to identify those circumstances which are within the words and rea-
son of the exception—no less and no more.” Id. (quoting Kosak,
465 U.S. at 853 n.9) (internal quotations omitted).
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28 Opinion of the Court 24-10545

The government attempts to distinguish Dolan by limiting
its holding only to those “provisions where Congress reclaimed sov-
ereign immunity,” i.e., the 13 exceptions presented in § 2680. And
it argues that because the law enforcement proviso technically con-
stitutes a re-waiver of sovereign immunity within § 2680(h)’s recla-
mation of immunity, Dolan does not apply. We are not convinced.
The thrust of the Supreme Court’s pronouncement in Dolan is that
the FTCA’s central purpose is a broad waiver of sovereign immun-
ity and courts should therefore avoid applying a methodological
preference for narrow interpretations of immunity-waiver in the
FTCA context. Although Dolan dealt with one of the FTCA excep-
tions, it expressed an overarching principle against strict construc-
tion “in the FTCA context,” 546 U.S. at 492, that applies equally to
any provision of the FTCA. In other words, application of the sov-
ereign immunity canon makes little sense where the sole subject of
the statute is the government’s sovereign immunity. Thus, as the
Court in Dolan stated, the FTCA reserves a “neutral methodologi-
cal approach” in its interpretation. 546 U.S. at 492 (quoting Kosak,
465 U.S. at 853 n.9).
Nor did Dolan recognize the government’s formalistic dis-
tinction between “exceptions” to waiver (i.e., the 13 exceptions in
§ 2680) and “exceptions to the exceptions” (i.e., the law enforce-
ment proviso) in outlining how to interpret the provisions of
§ 2680. As noted above, it simply proclaimed that, when “con-
stru[ing] one of the subsections of 28 U.S.C. § 2680,” courts should
apply a neutral methodological approach. Dolan, 546 U.S. at 492
(quoting Kosak, 465 U.S. at 853 n.9) (emphasis added). Because the
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24-10545 Opinion of the Court 29

law enforcement proviso is indisputably part of subsection 2680(h),
it too falls within the scope of the Court’s holding in Dolan.
Adopting a less restrictive interpretive approach aligns with
the Supreme Court’s FTCA jurisprudence, as illustrated by its most
recent consideration of the law enforcement proviso in Millbrook v.
United States, 569 U.S. 50 (2013). There, the Court held that the law
enforcement proviso’s re-waiver of sovereign immunity for inten-
tional torts was not limited to torts committed while officers were
engaged in investigative or law enforcement activity, but instead ex-
tended to any tort committed by an officer within the scope of his
or her employment. Id. at 51–52. In so holding, the Court rejected
the approach of multiple district courts and the Ninth Circuit,
which sought to limit the proviso’s breadth by restricting its re-
waiver of immunity only to tortious conduct committed “during
the course of executing a search, seizing evidence, or making an
arrest.” Id. at 55–56.
The Court explained that this restrictive approach does not
comport with the statute’s text, which “focuses on the status of per-
sons whose conduct may be actionable, not the types of activities
that may give rise to a tort claim against the United States.” Id. at
56 (emphasis in original). It reasoned that “[h]ad Congress in-
tended to further narrow the scope of the proviso, Congress could
have limited it to claims arising from ‘acts or omissions of investi-
gative or law enforcement officers acting in a law enforcement or in-
vestigative capacity.’” Id. at 57 (emphasis in original). It therefore
“decline[d] to read such limitation into unambiguous text.” Id.
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30 Opinion of the Court 24-10545

Millbrook is notable for two reasons. First, the Court never
invoked the sovereign immunity canon. Although that may reflect
its view that the language was unambiguous, the fact that Millbrook
found the text clear—despite most lower courts and the Ninth Cir-
cuit contending otherwise—is itself noteworthy. The Court was
evidently unmoved by the argument, echoed here by the govern-
ment, that judicial disagreement itself evinces ambiguity.
Second, as our sister circuits have pointed out, the govern-
ment advocates for precisely what Millbrook militates against—the
insertion of limitations absent from the law enforcement proviso.
The proviso contains neither the qualifying modifier “criminal,”
nor the term “execute search warrants,” yet the government seeks
to insert both. Such an approach runs counter to Millbrook’s clear
directive.
For this reason, the Third, Fourth, Fifth, Seventh, Eighth,
Ninth, and Tenth Circuits have interpreted Millbrook to condone
more expansive applications of the proviso. See Pellegrino, 937 F.3d
at 172 (“Furthermore, as recently as 2013 the Supreme Court [in
Millbrook] clamped down on a cramped reading of the proviso.”);
Osmon, 66 F.4th at 148 (“The problem with the government’s argu-
ment is that it reprises a tactic the Supreme Court [in Millbrook] has
already rejected: ‘read[ing] into the text additional limitations de-
signed to narrow the scope of the law enforcement proviso’”); Cam-
pos v. United States, 888 F.3d 724, 737 (5th Cir. 2018) (“We apply
Millbrook’s refusal to allow limitations to be placed on the law en-
forcement proviso to the law of this Circuit.”); Bunch, 880 F.3d at
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24-10545 Opinion of the Court 31

945 (“We are also influenced by the broad reading of the law-en-
forcement proviso that the Court adopted in Millbrook.”); Iverson,
973 F.3d at 853–54 (“[T]wo of our sister circuits have adopted simi-
larly broad interpretations of the law enforcement proviso .... Our
analysis here is consistent with the Supreme Court’s instructions
[in Millbrook] and our sister circuits’ interpretations.” (citations
omitted)); Leuthauser, 71 F.4th at 1198 (“Because we cannot ‘read
into the text additional limitations,’ Millbrook, 569 U.S. at 55, we re-
ject the government’s contention that the proviso applies only to
searches executed for criminal investigations.”); Mengert, 120 F.4th
at 707 (“The problem with the government’s argument is that it
reprises a tactic the Supreme Court has already rejected: “read[ing]
into the text additional limitations designed to narrow the scope of
the law enforcement proviso.” (quoting Millbrook, 569 U.S. at 55)).
While we read Dolan and Millbrook as establishing that we
should not strictly construe the law enforcement proviso in favor
of the government, the government points out that our precedents
mandate otherwise. See, e.g., Dotson v. United States, 30 F.4th 1259,
1264 (11th Cir. 2022) (because “statutory waivers of sovereign im-
munity are to be construed strictly in favor of the sovereign…. The
FTCA’s waiver “must be scrupulously observed, and not expanded,
by the courts.” (quoting Suarez v. United States, 22 F.3d 1064, 1065
(11th Cir. 1994)); Zelaya v. United States, 781 F.3d 1315, 1322 (11th
Cir. 2015) (the FTCA exceptions “must be strictly construed” (quot-
ing JBP Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d 1260,
1263–64 (11th Cir. 2000)). We are, of course, bound by our prior
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32 Opinion of the Court 24-10545

panel precedent rule,14 which contains no exception for “a per-
ceived defect in the prior panel’s reasoning or analysis as it relates
to the law in existence at that time,” United States v. Hicks, 100 F.4th
1295, 1300 (11th Cir. 2024) (citation and quotations omitted). Our
holding here remains unchanged by these cases; as discussed ear-
lier, the sovereign immunity canon does not apply because the law
enforcement proviso unambiguously covers TSOs. We lay out this
analysis of Dolan to highlight that our precedents on the construc-
tion of the FTCA may be appropriate for en-banc reevaluation in
an applicable case.
IV. CONCLUSION
The law enforcement proviso waives sovereign immunity
for certain intentional torts—including those alleged by Koletas—
committed by United States officers who execute searches for vio-
lations of federal law. TSOs fall within that statutory definition.
Accordingly, we reverse the district court’s order of dismissal and
remand for consideration of Koletas’s claims on the merits.
REVERSED AND REMANDED.

14 Under the prior-panel-precedent rule, we are required “to follow the prece-

dent of the first panel to address the relevant issue, unless and until the first
panel’s holding is overruled by the Court sitting en banc or by the Supreme
Court.” Scott v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018) (quotation
marks and citation omitted).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11201499. Public record. Not legal advice.