Nadine Pellegrino v. TSA

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-3047

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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

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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

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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

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OPINION OF THE COURT

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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

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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).

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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.

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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.

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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.

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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).

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(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.

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(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

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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.

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