Brian Iverson v. United States ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3137
___________________________
Brian Iverson
lllllllllllllllllllllPlaintiff - Appellant
v.
United States of America; Transportation Security Administration
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 15, 2019
Filed: August 31, 2020
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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SMITH, Chief Judge.
The Federal Tort Claims Act (FTCA) waives sovereign immunity, allowing
individuals to sue the United States for certain harms caused by its agents. For some
torts, the FTCA specifies that an individual may only sue if the tort is committed by
a specific class of government officer. This case involves a battery claim. Pursuant
to the FTCA, a battery claim can proceed if an investigative or law enforcement
officer committed it. 28 U.S.C. § 2680(h). The central question here is whether
Transportation Security Administration (TSA) screening personnel, known as
Transportation Security Officers (TSOs), satisfy the FTCA’s definition of an
investigative or law enforcement officer. Holding that they do, we reverse and
remand.
I. Background
Generally, sovereign immunity prevents “the United States [from being] sued
without its consent.” Hinsely v. Standing Rock Child Protective Servs., 516 F.3d 668,
671 (8th Cir. 2008). When it passed the FTCA, Congress “remove[d] the sovereign
immunity of the United States from suits in tort.” Millbrook v. United States, 569 U.S.
50, 52 (2013) (internal quotation omitted). “The Act gives federal district courts
exclusive jurisdiction over claims against the United States for ‘injury or loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission’ of a federal employee ‘acting within the scope of his office or
employment.’” Id. (quoting 28 U.S.C. § 1346(b)(1)). Congress’s waiver of sovereign
immunity, however, “is subject to a number of exceptions set forth in § 2680.” Id.
Specifically, Congress excepted certain intentional torts from the statutory
waiver of sovereign immunity. This exception bars “[a]ny claim arising out of 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). Thus, claims for these acts remain barred by sovereign immunity.
To complicate matters, however, the statute also contains an exception to the
exception. The “law-enforcement proviso” allows plaintiffs to file claims arising “out
of assault, battery, false imprisonment, false arrest, abuse of process, [and] malicious
prosecution.” Id. The proviso only applies, however, to claims that are the result of
“acts or omissions of investigative or law enforcement officers of the United States
Government.” Id. (emphasis added). The proviso defines investigative or law
enforcement officer as “any officer of the United States who is empowered by law to
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execute searches, to seize evidence, or to make arrests for violations of Federal law.”
Id. In sum, a plaintiff may sue the United States for injuries resulting from assault,
battery, false imprisonment, false arrest, abuse of process, and malicious prosecution,
if committed by an investigative or law enforcement officer.
In this case, Brian Iverson went through security at the Minneapolis-St. Paul
airport. Because of a prior injury, Iverson walked with the aid of crutches. At the
security checkpoint, TSOs performed a pat-down search. During that search, Iverson
was allowed to place his hands on his crutches but had to stand on his own power.
Iverson alleges that a TSO pulled him forward and then abruptly let go, causing
Iverson to fall. The fall injured Iverson.
Iverson filed an administrative claim, which the TSA denied. He then filed this
suit, asserting battery and negligence claims. The government moved to dismiss,
arguing that the FTCA’s waiver of sovereign immunity does not cover intentional
torts, such as battery. It also asserted that the FTCA bars claims that arise out of an
intentional tort, such as Iverson’s negligence claim. Iverson argued that TSOs are
investigative or law enforcement officers under the proviso, and thus they are not
immune from suit. In the alternative, he argued that his negligence claim did not arise
out of his battery claim. After finding for the government, the district court dismissed
Iverson’s complaint. This appeal followed.
II. Discussion
Iverson contends that TSOs are investigative or law enforcement officers under
the proviso. See 28 U.S.C. § 2680(h). Therefore, he claims, the district court erred in
finding that they are immune from suit. We review the district court’s grant of a
motion to dismiss de novo. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928,
933 n.4 (8th Cir. 2012). In our review, we “accept[] all factual allegations in the
complaint as true and draw[] all inferences in favor of the nonmovant.” Id.
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 Are TSOs investigative or law enforcement officers under the law-enforcement
proviso of the FTCA? See 28 U.S.C. § 2680(h). We begin with the statute’s text. The
statute defines those officers 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.” Id. (emphasis added).
The parties disagree about the meaning of the emphasized terms. Iverson
contends a plain reading of the statute shows that TSOs are officers who are
empowered by law to execute searches. The government disagrees and avers that the
proviso refers only to “traditional” law enforcement activities, not to the work of the
uniformed employees screening passengers at airports. Appellee’s Br. at 17, 21–22.
Thus, it claims, TSOs are not legally empowered to do those acts excepted from
sovereign immunity’s bar under any reading of the statue.
“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). But “[w]hen a word is not defined by statute, we normally construe
it in accord with its ordinary or natural meaning.” United States v. Jungers, 702 F.3d
1066, 1071 (8th Cir. 2013) (quoting Smith v. United States, 508 U.S. 223, 228
(1993)). We have stated that “[o]rdinarily, a word’s usage accords with its dictionary
definition.” Thompson Truck & Trailer, Inc. v. United States, 901 F.3d 951, 953 (8th
Cir. 2018) (quoting Yates v. United States, 135 S. Ct. 1074, 1082 (2015)).
While interpreting another provision of § 2680, the Supreme Court has
instructed that “[t]he definition[s] of words in insolation . . . [are] not necessarily
controlling in statutory construction.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
(2006). “A word in a statute may or may not extend to the outer limits of its
definitional possibilities. Interpretation of a word or phrase depends upon reading the
whole statutory text, considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the analysis.” Id.
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 Whether TSOs satisfy the law-enforcement proviso is a new issue for this
court. Two of our sister circuits have addressed it but are divided on the answer. See
generally Pellegrino v. U.S. Trans. Sec. Admin., 937 F.3d 164, 180 (3d Cir. 2019) (en
banc) (finding that TSOs constitute investigative or law enforcement officers);
Corbett v. Trans. Sec. Admin., 568 F. App’x 690, 701 (11th Cir. 2014) (per curiam)
(finding that TSOs do not constitute investigative or law enforcement officers). Most
recently, the Third Circuit, sitting en banc, found that TSOs satisfy the proviso’s
definition. See Pellegrino, 937 F.3d at 180.1 These decisions provide persuasive
authority only. See Jaben v. United States, 333 F.2d 535, 538 (8th Cir. 1964).
We first address each term and the parties’ relevant arguments separately, but
will bear in mind that when interpreting the statute, we consider “the whole statutory
text.” Dolan, 546 U.S. at 486.
A. Officers
To qualify as an investigative or law enforcement officer under the proviso, a
TSO must be “any officer of the United States.” 28 U.S.C. § 2680(h) (emphasis
added). The parties disagree about the definition of officer. Because the term is not
statutorily defined, we consider its ordinary dictionary definition. See Thompson
Truck & Trailer, 901 F.3d at 953.
Congress enacted the proviso in 1974. One dictionary from the time defines
officer as “one charged with a duty” and “one who is appointed or elected to serve in
a position of trust, authority, or command esp. as specif. provided for by law.”
Officer, Webster’s Third New Int’l Dictionary (1971). Another defines officer as
“[o]ne who is charged by a superior power (and particularly by government) with the
1
When it considered this question, the district court relied on the earlier panel
decision, which the Third Circuit reversed en banc. See Pellegrino v. U.S. Transp.
Sec. Admin., 896 F.3d 207 (3d Cir. 2018), vacated, 904 F.3d 329 (3d Cir.).
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power and duty of exercising certain functions” or “[o]ne who is invested with some
portion of the functions of the government to be exercised for the public benefit.”
Officer, Black’s Law Dictionary (4th ed., rev. 1968).
Applying those definitions, the Pellegrino majority found that TSOs are
officers. See 937 F.3d at 170–72. These individuals are tasked with government
functions, specifically, carrying out safety screenings at airports. Id. at 170. And, they
perform those functions for the public’s benefit. Id. It also noted that the TSA itself
calls TSOs officers, and that “TSOs wear uniforms with badges that prominently
display the title.” Id.
We also conclude that TSOs are officers. They are “charged with a duty,”
Officer, Webster’s Third New Int’l Dictionary (1971), and “charged by a superior
power . . . with the power and duty of exercising certain functions.” Officer, Black’s
Law Dictionary (4th ed., rev. 1968). Congress, by statute, charged TSOs with the
power to conduct airport screenings. See 49 U.S.C. § 44901.
Those screenings are a “ function[] of the government . . . exercised for the
public benefit.” Officer, Black’s Law Dictionary (4th ed., rev. 1968). Specifically, the
screenings ensure that no passenger enters a plane with a prohibited item, including
“weapons, explosives, and incendiaries.” 49 C.F.R. § 1540.5 (defining “Screening
function”). This function protects passenger safety and national security.
Further, TSOs “serve in a position of . . . authority.” Officer, Webster’s Third
New Int’l Dictionary (1971). The TSA holds them out to the public as officers
through their title and uniforms. It does so to ensure the public respects them.2
2
TSA stated that it altered TSOs’ uniforms, including adding badges, to
“address[] officers’ concerns of utility, respect, and confidence, and will stand as a
readily identifiable symbol of TSA’s security mission and officers’ role of keeping
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Agreeing with the Pellegrino dissent, see 937 F.3d at 189–94 (Krause, J.,
dissenting), the government argues that more specific definitions should apply. For
example, the government argues that we should adopt a recent dictionary definition
of United States Officer, which is defined as “an officer appointed under the authority
of the federal government.” Appellee’s Br. at 12 (quoting United States officer,
Black’s Law Dictionary (10th ed. 2014)). Even applying that definition, the analysis
would be unchanged.
Additionally, Iverson’s definitions better reflect the ordinary meaning of
officers in the proviso. First, the use of the term any before officers does not favor a
narrow definition to those who are classified as appointed. See United States v.
Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting
Webster’s Third New Int’l Dictionary 97 (1976)). Second, Iverson’s definition comes
from dictionaries that are contemporaries of the proviso, while the government favors
newer dictionaries. Our task is to find the word’s “ordinary meaning at the time
Congress enacted the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070
(2018) (cleaned up). Webster’s Third New International and Black’s Revised Fourth
Edition are the more helpful references.
the traveling public safe.” Press Release, Transportation Security Officers Have
Renewed Focus and New Look on Seventh Anniversary of 9/11, Transp. Sec. Admin.
(Sept. 11, 2008),
https://www.tsa.gov/news/releases/2008/09/11/transportation-security-officers-ha
ve-renewed-focus-and-new-look-seventh. “The attire aims to convey an image of
authority to passengers, who have harassed, pushed and in a few instances punched
screeners. ‘Some of our officers aren’t respected,’ TSA spokeswoman Ellen Howe
said.” Thomas Frank, TSA’s New Policelike Badges a Sore Point with Real Cops,
ABC News (June 23, 2008),
https://abcnews.go.com/Travel/story?id=5173231&page=1.
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As a consequence, we find that TSOs fall within the ordinary meaning of the
proviso. But the government also argues that statutory contexts, both within and
outside of the FTCA, counsel that we should depart from the plain meaning. We
address those arguments, aware of the Court’s directive that “[t]he case must be a
strong one indeed, which would justify a Court in departing from the plain meaning
of words . . . in search of an intention which the words themselves did not suggest.”
Bouie v. City of Columbia, 378 U.S. 347, 362–63 (1964) (quoting United States v.
Wiltberger, 18 U.S. 76, 96 (1820) (Marshall, C.J.)).
The government first argues that TSOs are not officers under the FTCA
because Congress identified them in a different Act as employees. The Airport
Transportation Security Act (ATSA) directs that “screening . . . shall be carried out
by a Federal Government employee.” 49 U.S.C. § 44901(a) (emphasis added). The
ATSA indicates, via cross reference, that an employee is “an officer and an
individual.” 5 U.S.C. § 2105(a).
Put another way, the government argues that Congress would have described
TSOs as officers in the ATSA if it wanted courts to consider TSOs officers in the
FTCA. We decline the invitation to disregard the FTCA’s ordinary meaning and
instead import Congress’s classification of TSOs as employees from the ATSA. To
be sure, Congress described TSOs as employees in the ATSA, but it also defined
employees in ATSA to include officers. See 49 U.S.C. § 44901(a) (cross-referencing
5 U.S.C. § 2105 (defining employee as “an officer and an individual”)).
Consequently, it appears that Congress did not intend to exclude officers when using
the term employee to describe screening personnel. Its choice to not cross-reference
Title V’s definition of officer does not alter that analysis; Congress simply chose a
more inclusive term.
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Second, the government’s argument has an unacceptable statutory effect: It
uses a later enactment—the ATSA—to limit the scope of an earlier enactment—the
FTCA proviso. As it stands, the proviso, passed in 1974, covers TSOs because they
satisfy the ordinary meaning of officers. If we were to import Congress’s
classification of TSOs from the ATSA, which was passed in 2001, with the
interpretation the government prefers, TSOs would not be officers but mere
employees. That would limit the earlier enactment’s scope and alter its definition of
officers. In short, this would require us to hold that Congress silently altered a term’s
meaning in one statute by passing an unrelated statute almost 30 years later. Such a
holding would be contrary to principles of statutory interpretation. See Bilski v.
Kappos, 561 U.S. 593, 607 (2010) (“Section 273’s definition of ‘method,’ to be sure,
cannot change the meaning of a prior-enacted statute.”); Patel v. Napolitano, 706
F.3d 370, 376 (4th Cir. 2013) (“[T]he meaning of words in a statute cannot change
with the statute’s application.” (alteration in original) (quoting United States v.
Santos, 553 U.S. 507, 522 (2008)); In re Roser, 613 F.3d 1240, 1247 (10th Cir. 2010)
(“[A] later legislature cannot change the meaning of a statute; it can only amend the
statute.”).
Admittedly, courts “do[] not lightly assume that Congress silently attaches
different meanings to the same term in the same or related statutes.” Azar v. Allina
Health Servs., 139 S. Ct. 1804, 1812 (2019) (emphasis added). Relying on this
language, the dissent in Pellegrino argued that the ATSA “mapped” itself into the
FTCA. 937 F.3d at 191–92 (Krause, J., dissenting). But that analysis skipped a key
part of the inquiry: Whether the statutes are “the same or related.” Azar, 139 S. Ct. at
1812.
The FTCA and ATSA are certainly not the same statute. Nor does the
government argue that they are materially related. Indeed, a relevant statutory canon
requires that the statutes be in pari materia (“on the same subject”) before courts can
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construe them “as if they were one law.” Wachovia Bank v. Schmidt, 546 U.S. 303,
316 (2006) (internal quotation omitted); see also United States v. Stewart, 311 U.S.
60, 64 (1940) (“That these two acts are in pari materia is plain. Both deal with
precisely the same subject matter, viz., the scope of the tax exemption afforded farm
loan bonds. The later act can therefore be regarded as a legislative interpretation of
the earlier act . . . .”). The FTCA and ATSA are not on the same subject. The former
deals with federal sovereign immunity while the latter deals with traveler safety.
Therefore, there is no reason to assume that Congress attached the same meanings to
employee and officer in each. Nor is there reason to believe that Congress was
attempting to avoid waiving sovereign immunity when it classified TSOs as
employees. In sum, there is little to be gained from ATSA’s use of employee when
analyzing the FTCA’s definition of officers; TSO’s status as an employee under the
ATSA does not prevent them from being an officer.
The government argues that interpreting officers to cover TSOs renders the
FTCA’s use of employee redundant. Even if TSOs satisfied the definition of employee
and officer in the FTCA, it does not mean that the terms are redundant. Similar to the
ATSA, the FTCA’s definition of employee includes officers. 28 U.S.C. § 2671. Thus
the statute itself contemplates that an officer might also be an employee. In that
instance, “[w]e are hesitant to put too much stock into a distinction between two
terms that are not themselves mutually exclusive.” Pellegrino, 937 F.3d at 171.
In summary, the phrase “any officer of the United States,” as written in 28
U.S.C. § 2680(h), includes TSOs.
B. Empowered by Law
The government next argues that, even if TSOs are officers, they are not
empowered by law. It asks this court, when evaluating if an actor is empowered by
law, to “look to whether there is a specific statutory grant of authority to search, seize,
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or arrest.” Appellee’s Br. at 18. That standard appears consistent with the ordinary
meaning of empowered. Dictionaries from the time of the proviso’s enactment
defined empower as “to give official authority to” or to “delegate legal power to.”
Empower, Webster’s Third New Int’l Dictionary (1971).
Under that definition, TSOs are empowered by law to execute searches.
Through the ATSA, Congress requires the Administrator of the TSA (the
“Administrator”) to “provide for the screening of all passengers and property . . . that
will be carried aboard a passenger aircraft.” 49 U.S.C. § 44901(a). Congress also
required that those screenings “be carried out by a Federal Government
employee”—the TSOs. Id. The ATSA indicates that those screenings can include
various electronic means, canine detection teams, and “a physical search . . . with
manifest verification.” Id. § 44901(g)(4). Congress thus mandated that TSOs carry
out screenings and authorized physical searches as one means to complete that duty.
The statute specifically authorizes federal employees, TSOs, to screen passengers and
property. We consider this sufficient to conclude that they are empowered by law to
conduct searches.
The government argues that delegation does not constitute empowerment for
two reasons. First, it argues that the ATSA delegates the authority to search to the
Administrator—not to the TSOs. That argument is contrary to the statutory language.
Section 44901(a) indicates that the Administrator “shall provide for the screening of
all passengers.” 49 U.S.C. § 44901(a) (emphasis added). Yet it specifies that “the
screening . . . shall be carried out by [TSOs].” Id. (emphasis added). Congress
requires that the Administrator provide the screening, and that TSOs carry out the
screening. The party providing for the screening “make[s] provision” to ensure that
it is conducted. Provide, Oxford English Dictionary (3d ed. 2007). But the party
carrying out the screening must have the authority to put the screening “into practice”
and bring it “to completion.” Carry Out, Oxford English Dictionary (3d ed. 2007).
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Because it is during the execution of the screening that the power to search is
exercised, Congress necessarily empowered TSOs to effectuate searches.
Second, the government urges that the statutory authorization is limited and
non-discretionary. We disagree. Congress gave TSOs discretion. The ATSA did not
direct TSOs to “physically search” all passengers or cargo. Instead, it indicated that
they could also use “x-ray systems, explosives detection systems, explosives trace
detection, explosives detection canine teams . . . . [and] additional methods.” 49
U.S.C. § 44901(g)(4). Therefore, TSOs have discretion in exercising their authority
to search passengers and property.
Thus, we conclude TSOs are “empowered by law to execute searches.” 28
U.S.C. § 2680(h) (emphasis added).
C. To Execute Searches for Violations of Federal Law
The government also maintains that TSOs do not “execute searches . . . for
violations of Federal law.” 28 U.S.C. § 2680(h) (emphasis added). This belies the
ordinary meaning of search. Webster’s defines search as “to look into or over
carefully or thoroughly in an effort to find or discover.” Search, Webster’s Third New
Int’l Dictionary (1971). Black’s indicates that it means “[a]n examination of a
man’s . . . person, with a view to the discovery of contraband or illicit or stolen
property.” Search, Black’s Law Dictionary (4th ed., rev. 1968).
By statute and practice, TSOs satisfy these definitions. TSOs are tasked with
executing screenings “of all passengers and property.” 49 U.S.C. § 44901(a). Those
screenings include “a physical examination or non-intrusive methods of assessing
whether cargo poses a threat to transportation security.” Id. § 44901(g)(4). TSOs are
empowered to use “x-ray systems, explosives detection systems, explosives trace
detection, explosives detection canine teams certified by the Transportation Security
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Administration, or a physical search.” Id. Accordingly, while screening, TSOs “look
into or over” passengers and their property “carefully . . . in an effort to find or
discover” “contraband or illicit . . . property.” Search, Webster’s Third New Int’l
Dictionary (1971); Search, Black’s Law Dictionary (4th ed., rev. 1968). Therefore,
the screenings satisfy search’s ordinary meaning.
The same is true for TSOs’ practices. TSOs use “[m]illimeter wave advanced
imaging technology,” which “safely screens passengers . . . for metallic and
non-metallic threats, including weapons and explosives, which may be concealed
u n d e r c l o t h i n g . ” S e c u r i t y S c r e e n i n g , T r a n s . S e c . A d mi n . ,
https://www.tsa.gov/travel/security-screening (select “Screening Technology” tab)
(last visited March 25, 2020). They may also conduct “[p]at-down procedures,” which
include “inspection[s] of the head, neck, arms, torso, legs, and feet.” Id. (select “Pat-
Down Screening” tab). Those “are used to determine whether prohibited items or
other threats to transportation security are concealed on the person.” Id. These
methods allow TSOs to look over passengers “carefully . . . in an effort to find or
discover” “contraband or illicit . . . property.” Search, Webster’s Third New Int’l
Dictionary (1971); Search, Black’s Law Dictionary (4th ed., rev. 1968). We hold that
TSOs conduct searches.
The government argues that (1) the proviso’s use of execute searches refers to
traditional law enforcement searches, and therefore, (2) TSOs’ administrative
searches do not satisfy the proviso.
The textual indicium that supports the government’s first argument is that
execute searches is followed by “seize evidence, or . . . make arrest.” 28 U.S.C.
§ 2680(h). The powers referred to, it argues, are traditional law enforcement
activities, so the searches referred to are only traditional law enforcement searches.
The interpretative canon of noscitur a sociis undergirds that argument. That canon
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“counsels lawyers reading statutes that a word may be known by the company it
keeps.” Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S.
280, 287 (2010) (internal quotations omitted). Put another way, a word’s meaning is
ascertained “from the words around it.” Babbitt v. Sweet Home Chapter of Cmtys. for
a Great Or., 515 U.S. 687, 702 (1995) (internal quotations omitted). Because execute
searches is followed by seize evidence or make arrest, execute searches’ meaning, the
argument goes, is limited by those terms. Since those terms refer to traditional police
powers, the government urges searches does as well.
The Pellegrino majority rejected the same argument. See 937 F.3d at 174–75.
Two of its rationales for doing so are particularly persuasive. Id. First, because the
term searches is clear, the court was hesitant to apply the canons. Id. at 174 (citing
Russell Motor Car Co. v. United States, 261 U.S. 514, 520 (1923) (“‘Noscitur a
sociis’ is a well-established and useful rule of construction, where words are of
obscure or doubtful meaning, and then, but only then, its aid may be sought to remove
the obscurity or doubt by reference to the associated words.”)). Second, “the three
duties in the proviso are listed in the disjunctive,” where “the canon often is of little
help.” Id. at 174–75 (internal quotations omitted).
We agree with that analysis. Noscitur a sociis may only be used “where words
are of obscure or doubtful meaning.” Russell Motor Car Co., 261 U.S. at 520.
Searches is neither an obscure word nor is its meaning doubtful. In addition, the
canon is not “particularly illuminating” where there is “[a] list of three items, each
quite distinct from the other.” Graham Cty., 559 U.S. at 288. That is especially so
where that list is joined by the disjunctive “or.” See id. Therefore, we believe that the
terms in the list need not modify each other.
Even if the terms do limit each other and execute searches in the proviso has
a law enforcement connotation, TSOs satisfy that definition. The ordinary meaning
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of search remains broad, even if limited to a criminal investigation context. Under a
heading indicating that it is discussing “Criminal Law,” Black’s defines a search as
“[a]n examination of a man’s . . . person, with a view to the discovery of contraband
or illicit or stolen property.” Search, Black’s Law Dictionary (4th ed., rev. 1968). As
discussed above, TSOs are given the power to execute physical searches, such as pat
downs, with the intent of finding weapons, explosives, or other prohibited items. So
even in the criminal context, TSOs’ screenings constitute searches.
For those reasons, TSOs execute searches, as required by the proviso.
Therefore, we conclude they are contemplated within the meaning of the phrase “any
officer . . . empowered by law to execute searches.”3 28 U.S.C. § 2680(h). In
consequence, TSOs satisfy the proviso’s definition of an investigative or law
enforcement officer.
D. Proviso as a Whole
Reading the proviso as a whole does not alter our analysis. Its full text provides
the following:
[W]ith regard to acts or omissions of investigative or law enforcement
officers of the United States Government, the provisions of this chapter
and section 1346(b) of this title shall apply to any claim arising, on or
after the date of the enactment of this proviso, out of assault, battery,
false imprisonment, false arrest, abuse of process, or malicious
prosecution. For the purpose of this subsection, “investigative or law
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).
3
In its brief, the government does not challenge that TSOs’ searches are for
violations of federal law. Therefore, we assume that argument is waived. See United
States v. Frausto, 636 F.3d 992, 997 (8th Cir. 2011).
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The proviso does not use the phrase traditional law enforcement to modify
officers of the United States Government. Instead, it uses the phrase “investigative or
law enforcement officers.” Id. (emphasis added). Certainly, the language used
contemplates traditional law enforcement officers in various federal law enforcement
agencies. But there is nothing in the language of the proviso to prevent TSOs from
also being included as they perform their specialized searches to ensure public safety
and national security. The proviso itself expressly defines the officers whose acts can
cause injuries that are actionable irrespective of sovereign immunity. That definition
is not narrow but broad as it includes “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. (emphasis added). TSOs search persons and baggage
for weapons and explosives which might be transported by plane in violation of
federal law. See, e.g., 49 U.S.C. § 46505 (providing criminal penalties for “[c]arrying
a weapon or explosive on an aircraft”). Whether traditional or not, these officers fall
into the class of “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).
The government also argues that legislative history4 indicates that Congress
intended the proviso to refer to traditional law enforcement personnel. “In the usual
case, if the statute’s language is plain, the sole function of the courts is to enforce it
according to its terms, without reference to its legislative history.” Owner-Operator
Indep. Drivers Ass’n v. Supervalu, Inc., 651 F.3d 857, 863 (8th Cir. 2011) (cleaned
up). We decline to resort to legislative history to interpret the proviso. It is not
ambiguous.
4
The government points out that the proviso was enacted in response to certain
abusive police actions. See Appellee’s Br. at 15 (citing S. Rep. No. 93-588, at 8 (Nov.
29, 1973), as reprinted in 1974 U.S.C.C.A.N. 2789, 2791). That may be true, but the
language Congress ultimately enacted suggests a broader context. And per that
language, the need to compensate citizens for injuries caused by certain acts of the
government’s officers would obtain in airports as well as other locales.
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The dissent views our reading as inconsistent with the “general rule that
ambiguity in waivers of sovereign immunity are construed in favor of the
government.” See infra. But as the Pellegrino majority indicated, the Supreme Court
has held that conflicts “in the FTCA context” “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, 546 U.S. at 491–92 (internal quotation omitted); see
also Pellegrino, 937 F.3d at 171–72. In Millbrook, the Court further counseled
against “a cramped reading of the proviso.” Pellegrino, 937 F.3d at 172 (citing
Millbrook, 569 U.S. at 56–57 (“declin[ing] to read . . . a limitation” of the law
enforcement proviso’s waiver of sovereign immunity “into unambiguous text”)). In
light of Millbrook and Dolan, two of our sister circuits have adopted similarly broad
interpretations of the law enforcement proviso. See id.; Bunch v. United States, 880
F.3d 938, 944–45 (7th Cir. 2018). Our analysis here is consistent with the Supreme
Court’s instructions and our sister circuits’ interpretations.
The dissent also believes that we should construe the proviso in the
government’s favor because it is an exception to the exception. See Foster v. United
States, 522 F.3d 1071, 1079 (9th Cir. 2008) (“We interpret not an exception to the
FTCA’s waiver of sovereign immunity, but instead interpret an exception to the
exception.”). But as discussed above, the Court’s language in Dolan is broad; it does
direct application of strict construction “in the FTCA context.” 546 U.S. at 492.
Whether analyzing an exception or an exception to the exception, we are within the
FTCA context, and therefore the rule does not apply.5
5
In LaFromboise v. Leavitt, a panel of this court noted, even in light of Dolan,
that “the scope of waivers of sovereign immunity must be strictly construed.” 439
F.3d 792, 795 (8th Cir. 2006). However, that panel was not interpreting the proviso
and said that its statement was “not necessary to our conclusion.” Id. The language
is dicta and thus nonbinding. See Boaz v. United States, 884 F.3d 808, 810–11 (8th
Cir. 2018).
-17-
Thus, given the powers delegated to TSOs and the highly intrusive search
techniques they are authorized to use, we find that they fall within the ordinary public
meaning of the proviso’s definition of investigative or law enforcement officers. 28
U.S.C. § 2680(h). In enacting the proviso, Congress waived sovereign immunity for
actions arising out of battery claims committed by such officers. Therefore, we hold
that sovereign immunity does not bar Iverson’s battery claim. In addition, because the
battery claim is not barred, Iverson’s negligence claim is not barred, regardless of
whether it “aris[es] out of” his battery claim. See id. (stating that the proviso applies
to “any claim arising . . . out of . . . battery”).
III. Conclusion
For the foregoing reasons, we reverse and remand for proceedings consistent
with this opinion.
GRUENDER, Circuit Judge, dissenting.
Today, the court decides that Transportation Security Administration
(“TSA”) screening employees are “investigative or law enforcement officers of the
United States Government” as defined in the Federal Tort Claims Act (“FTCA”).
See 28 U.S.C. § 2680(h). In so doing, the court expands federal tort liability,
relinquishing the sovereign immunity of the United States without a clear
statement from Congress authorizing such a waiver. Because I do not believe this
interpretation is consistent with the text, history, or structure of the FTCA, I
respectfully dissent.
I.
The FTCA waives the United States’ immunity for certain torts committed
by its employees. 28 U.S.C. § 1346(b)(1). This waiver of sovereign immunity is
limited by a number of exceptions, including the “intentional tort exception,”
-18-
which preserves the United States’ immunity from suit for—as the nickname
implies—intentional torts committed by government employees. See id.
§ 2860(h). “In 1974, Congress carved out an exception to § 2680(h)’s
preservation of the United States’ sovereign immunity,” adding what is known as
the “law enforcement proviso.” Millbrook v. United States, 569 U.S. 50, 52
(2013) (citing Act of Mar. 16, 1974, Pub. L. No. 93-253, § 2, 88 Stat. 50)). This
rewaiver of sovereign immunity provides federal district courts with exclusive
jurisdiction over claims arising from a limited list of intentional torts committed
by “investigative or law enforcement officers,” § 2680(h), which Congress, in
turn, defined 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,” id.
We are tasked in this case with determining whether the law enforcement
proviso extends to include TSA security screening employees. “[W]e normally
construe [a statute] in accord with [the] ordinary and natural meaning” of its terms.
United States v. Jungers, 702 F.3d 1066, 1071 (8th Cir. 2013). In so doing, we
consider “the whole statutory text,” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
(2006), analyzing its individual terms for relationships between one another that
create and affect meaning, see Kircher v. Putnam Funds Tr., 547 U.S. 633, 643
(2006) (“[W]e do not read statutes in little bites.”). As a result, though a word’s
meaning will “[o]rdinarily” “accord[] with its dictionary definition,” Thompson
Truck & Trailer, Inc. v. United States, 901 F.3d 951, 953 (8th Cir. 2018), “[t]he
definition[s] of words in isolation . . . [are] not necessarily controlling in statutory
construction,” Dolan, 546 U.S. at 486. Instead, as faithful interpreters of a statute
written by Congress, we do not read the text without context. See Bostock v.
Clayton Cty., 590 U.S. ---, 140 S. Ct. 1731, 1825 (2020) (Kavanaugh J.,
dissenting) (“[C]ourts must adhere to the ordinary meaning of phrases, not just the
meaning of the words in a phrase.”); Neal v. Clark, 95 U.S. 704, 708-09 (1877)
(confirming that the “meaning of a word” must be “ascertained by reference” to
“the context” surrounding it).
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The ordinary use of the English language makes the good sense of this rule
apparent. If I said, “I saw her duck,” the meaning of my words would vary greatly
based on whether I finished the sentence by describing an object that had just been
hurled across the room or if instead I explained that I had recently visited a
friend’s aviary. For this reason, “[t]he plainness or ambiguity of statutory
language is determined by reference to the language itself, the specific context in
which that language is used, and the broader context of the statute as a whole.”
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Acknowledging this maxim
both of ordinary language and statutory interpretation, the court wisely notes that
“[a] word in a statute may or may not extend to the outer limits of its definitional
possibilities.” Dolan, 546 U.S. at 486.
Yet while the court and I agree on these settled principles, we disagree on
how to apply them to the text at hand. In my view, the court errs in choosing the
broadest possible definition of statutory terms while analyzing them without
context—both that which exists within the four corners of the statutory text and
the public meaning of the terms at the time the statute was enacted. See Smith v.
United States, 508 U.S. 223, 241 (1993) (Scalia, J., dissenting) (“[T]he meaning of
a word cannot be determined in isolation, but must be drawn from the context in
which it is used.”); see also Frank. H. Easterbrook, Foreword to A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts xxv (2012) (noting that
“[w]ords don’t have intrinsic meanings” and “the significance of an expression
depends on how the interpretive community alive at the time of the text’s adoption
understood those words”).
The court thus commits the same error Judge Krause recognized in her well-
reasoned dissent from the Third Circuit’s en banc decision in Pellegrino v. U.S.
Trans. Sec. Admin., 937 F.3d 164, 181 (3d Cir. 2019) (en banc): it “dissects” the
statute and then “recasts” it. By the end of the opinion, instead of finding that
TSA screeners are “officer[s] of the United States empowered by law to execute
-20-
searches . . . for violations of Federal law,” the court determines it is good enough
that they “serve in positions of . . . authority” and have “legal power” to conduct
“screenings” to “ensure public safety.” Respectfully, I do not agree with this
approach, and as a result, I do not agree that TSA screeners are “investigative or
law enforcement officers” as defined by the FTCA. In my view, the ordinary
meaning of the statute is that which nearly every other court has given it. See
Corbett v. Trans. Sec. Admin., 568 F. App’x 690, 700 (11th Cir. 2014) (per
curiam) (collecting cases).
II.
A. TSA screeners are not “officer[s] of the United States.”
Start with the phrase “officer of the United States.” The court adopts the
broadest reading of the relevant statutory terms, relying solely on its chosen
dictionary definitions of “officer” to conclude that the law enforcement proviso
covers TSA screeners. This approach is particularly problematic in this instance
because Congress specifically distinguished between employees and officers in the
FTCA and because it identified TSA screeners not as officers but as employees in
the relevant authorizing statute.
The FTCA draws a clear distinction between employees on the one hand
and officers on the other. For instance, the FTCA waives sovereign immunity for
torts “caused by the negligent or wrongful act or omission of any employee.” 28
U.S.C. § 1346(b)(1) (emphasis added). It does the same 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). But Congress made a different
choice when writing the law enforcement proviso: it did not waive sovereign
immunity for the intentional torts of federal employees but instead granted federal
district courts jurisdiction over certain intentional torts committed by an “officer of
the United States.” Id. § 2680(h) (emphasis added). The distinction signals a
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clear difference—one which courts are tasked to define. See Ctr. for Special
Needs Tr. Admin., Inc. v. Olson, 676 F.3d 688, 701-02 (8th Cir. 2012) (explaining
that when Congress uses “particular language” in one section of a statute but
different terminology in another, we “generally presume[]” Congress intended a
difference in meaning).
Because § 2680(h) does not further define what it means by “officer of the
United States,” we have previously consulted an agency’s authorizing statute to
determine whether the person holding the position is an “officer.” Celestine v.
United States, 841 F.2d 851, 852-53 (8th Cir. 1988) (per curiam) (holding that
Veterans’ Administration hospital security guards are covered by the proviso
because they were statutorily defined by 38 U.S.C. § 218 (1987) as “VA police
officers” who were “empowered to make arrests for violation of federal law”). As
the Pellegrino dissent noted, the FTCA specifically points to the particular “law”
that “empower[s]” employees of that agency. 937 F.3d at 192 (Krause, J.,
dissenting) (quoting 28 U.S.C. § 2680(h)); see also 28 U.S.C. § 2671 (defining
“[e]mployee of the government” for purposes of the FTCA as “officers or
employees of any federal agency” (emphasis added)).
The relevant empowering law—here, the Airport Transportation Security
Act (“ATSA”)—directs that security “screening . . . shall be carried out by a
Federal Government employee.” 49 U.S.C. § 44901(a) (emphasis added). And,
like the FTCA, the ATSA draws a clear distinction between types of TSA
personnel: it creates both TSA employees and TSA officers. Compare id.
(screening employees), with id. § 114(p)(1) (law enforcement officers). The
ATSA then assigns the screening duties to the TSA employees. Id. § 44901(a).
But the TSA Administrator may assign particular employees to serve as law
enforcement officers, and they may carry firearms, make arrests, and seek and
execute warrants for arrest or seizure of evidence. Id. §114(p)(1)-(2). Therefore,
the very statutory scheme creating the TSA screening position classifies them as
“employees” while excluding them from its classification of “officers.”
-22-
The court “decline[s] the invitation” to follow Congress’s clear directive.
Supra at 8. It concedes that Congress described TSA screeners as employees in
the ATSA, but it counters that Congress also defined employees in the ATSA to
include officers. See 49 U.S.C. § 44901(a) (defining “employee” by reference to 5
U.S.C. § 2105). But the court should not be troubled by a sensible point: all
officers are employees, but not all employees are officers. Helpfully, in this
instance, Congress has told us which is which. For example, the ATSA tasks the
TSA Administrator with “develop[ing] standards for the hiring and retention” of
security screening employees, 49 U.S.C. § 114(e)(2), but grants the Administrator
the power to “designate an employee . . . to serve as a law enforcement officer,” id.
§ 114(p). Further, the TSA Administrator is required to “order the deployment of
at least 1 law enforcement officer at each airport security screening location.” Id.
§ 44901(h)(2). Thus, screening employees not “designate[d]” as officers are not
officers, even though some personnel stationed at an airport screening location are
officers. As a result, conflating “officer” with “employee” risks running afoul of
the “usual rule that when the legislature uses certain language in one part of the
statute and different language in another, the court assumes different meanings
were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (internal
quotation marks omitted); see also Scalia & Garner, Reading Law 170 (“[A]
material variation in terms suggests a variation in meaning.”).
The court rejects the ATSA’s clear distinction for two other reasons. First,
in its view, adopting the ATSA’s definition of TSA screeners as employees would
impermissibly rewrite the FTCA. Supra at 9. And second, the court concludes
that Congress’s decision to label screeners as “employees” and other TSA officials
as “officers” should not affect our reading of the FTCA because the statutes are
not in pari materia and thus we are under no obligation to construe them “as if
they were one law.” Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006); supra
at 9-10.
-23-
Neither of these assertions is correct, and for the same reason. The Supreme
Court has held that the law enforcement proviso “focuses on the status of persons
whose conduct may be actionable.” Millbrook, 569 U.S. at 56. As a result, “[t]he
plain text confirms that Congress intended immunity determinations to depend on
a federal officer’s legal authority.” Id. Accordingly, the FTCA directs courts to
look to the agency’s implementing statute to determine whether an individual is an
employee or an officer. See Metz v. United States, 788 F.2d 1528, 1532 (11th Cir.
1986) (holding that the law enforcement proviso “cannot be expanded to include
governmental actors who procure law enforcement actions, but who are
themselves not law enforcement officers”). As explained above, the FTCA directs
courts to examine the particular “law” that “empower[s]” employees of the
relevant agency. See 28 U.S.C. § 2680(h); id. § 2671.
In this instance, Congress did more than use the same labels in different
statutes. It specifically defined the authority of the relevant positions, determining
that employees could do no more than conduct routine, consensual administrative
screenings, while officers were empowered by law to conduct traditional law
enforcement functions: execute searches, seize evidence, and make arrests. See
Corbett, 568 F. App’x at 701 (explaining that the statutory scheme indicates there
are within the TSA “(1) federal employees, who conduct airport security
screening; and (2) law enforcement officers, who perform various law
enforcement functions”). We need not look very far for reasons why Congress
might choose to waive immunity for the actions of those vested with discretion to
carry out traditional law enforcement functions while retaining immunity for the
actions of mere employees. See O’Connor v. Ortega, 480 U.S. 709, 724 (1987)
(explaining that investigative and law enforcement officers “are expected to
‘schoo[l] themselves in the niceties’” of the Fourth Amendment’s doctrinal
restrictions) (alteration in original) (quoting New Jersey v. T.L.O., 469 U.S. 325,
343 (1985)).6
6
In a footnote, the court appears to suggest that it is relevant that TSA screeners
wear uniforms and have badges. Supra at 6 & n.2. But we are tasked with
-24-
Instead of relying on the statutory distinction drawn in the ATSA, the court
relies on dictionary definitions of “officer” that it selected. For example, it notes
that Black’s Law Dictionary defines “officer” as “[o]ne who is invested with some
portion of the functions of the government to be exercised for the public benefit.”
Supra at 6. It also directs us to Webster’s definition that an officer is one “charged
with a duty” or one who “serve[s] in a position of trust, authority or command esp.
as specif. provided for by law.” Id. at 5. But it is not clear why one should choose
any of the definitions offered by the court, especially when others—more
approximate to the ordinary meaning of “officer” when situated in context—exist.
For instance, the same version of Webster’s cited by the court also defines
determining whether the TSA screeners are statutorily authorized as “officer[s] of the
United States.” The uniforms prescribed by TSA regulations cannot change the law
Congress has written. See Metz, 788 F.2d at 1532. Tellingly, the news report the
court cites in support for its finding that TSA screeners are officers begins:
“Screeners at the nation’s airport checkpoints are going to start wearing police-style
badges—but real officers aren’t too happy about it.” Thomas Frank, TSA’s New
Policelike Badges a Sore Point with Real Cops, ABC News (June 23, 2008),
https://abcnews.go.com/Travel/story?id=5173231&page=1 (emphasis added)).
Appearances aside, there are real differences between TSA screeners and
officers, in terms of not only their statutory authorization but also their training. TSA
screeners are required to “possess a high school diploma” or experience “sufficient”
to satisfy the Administrator they can “perform the duties of the position.” 49 C.F.R.
§ 44935(f). They must also 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 “manipulate and handle such baggage,
containers, and other objects subject to security processing.” Id. On the other hand,
TSA law enforcement officers are required to undergo the standard law enforcement
training required by the state in which they work, a program that must include
training in firearms and “treatment of persons subject to inspection, detention, search,
arrest, and other aviation security activities.” Id. § 1542.217(c). For this reason, in
the very job description for screeners, it explains that while they carry out an
important duty in service of the nation, “[t]his position is not a law enforcement
position.” Transportation Security Officer (TSO), USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/466395100.
-25-
“officer” as “one charged with administering and maintaining the law (as a
constable, bailiff, [or] sheriff).” Webster’s Third New Int’l Dictionary 1567
(1971). Webster’s New Collegiate Dictionary defines “officer” as simply “one
charged with police duties.” Webster’s New Collegiate Dictionary 791 (1979).
In the face of a clear textual distinction drawn by Congress, and without any
guidance to what definition is preferred, a judge’s choice of dictionary should not
be dispositive. Ardestani v. INS, 502 U.S. 129, 135 (1991) (noting that the word
“under” “has many dictionary definitions and must draw its meaning from its
context”); 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 . . . .”). “Because common words typically have more than one
meaning, [courts] must use the context in which a given word appears to
determine its aptest, most likely sense.” Scalia & Garner, Reading Law 418.
Ironically, the court’s chosen definitions of “officer” suggest the court
should look to the terms used in the ATSA. In the exact same definition, Black’s
explains that “[a]n ‘officer’ is distinguished from an ‘employee’ in the greater
importance, dignity, and independence of his position,” Officer, Black’s Law
Dictionary 1235 (4th ed. 1968), and that “[i]n determining whether one is an
‘officer’ or ‘employee,’” we should look to how the position is “defined by the
statute or ordinance creating it” or “whether it is created by an appointment or
election, or merely by a contract of employment,” id. (emphasis added). Webster’s
Third New International Dictionary, cited by the court, clarifies at the end of its
definition not only that an officer is one “as specif. provided for by law” but also
that officer is “distinguished from employee.” Webster’s Third New Int’l
Dictionary 1567 (1971) (emphasis in original). Yet the court dismisses the
statutory distinctions drawn between the same terms both in the FTCA and in the
TSA’s authorizing statute.
-26-
As Justice Scalia once explained, “the good textualist is not a literalist.” A.
Scalia, A Matter of Interpretation: Federal Courts and the Law 24 (1997).
Because TSA screeners are specifically deemed “employees” and not “officers” in
the relevant authorizing statute, they are not “officer[s] of the United States” as
defined in the FTCA.
B. TSA screeners are not “empowered by law to execute searches . . . for
violations of Federal law.”
Even if I were to agree that TSA screeners are “officer[s] of the United
States,” I still would not find that they are “investigative or law enforcement
officers” as defined in the law enforcement proviso because TSA screeners are not
“empowered by law to execute searches . . . for violations of Federal law.”7 28
U.S.C. § 2680(h).
The court concludes that TSA screening personnel are “empowered by law”
to conduct searches for violations of federal law because they are authorized to
conduct “the screening of all passengers and property,” 49 U.S.C. § 44901(a), and
screening, in turn, is defined in part as a “physical examination,” including a
“physical search,” id. § 44901(g)(4). The court thus finds that TSA screenings
satisfy the “plain meaning” of the word “search,” supra at 12, drawing from
Black’s Law Dictionary and defining “search” as “[a]n examination of a man’s . . .
person, with a view to the discovery of contraband or illicit or stolen property.”
7
Iverson does not argue that TSA screeners are empowered to seize evidence
or make arrests, and for obvious reasons. The relevant provisions of the ATSA
specify that screeners do not have the power to perform these functions. The section
of the Act that establishes the powers and responsibilities of the TSA has separate
provisions for “screening operations” and “law enforcement powers.” See 49 U.S.C.
§ 114(e), (p). The TSA Administrator has the power to designate a “law enforcement
officer” with ability to “make an arrest without a warrant” and “seek and execute
warrants for arrest or seizure of evidence . . . upon probable cause that a violation has
been committed.” Id. § 114(p)(1)-(2). TSA screeners lack the powers given to TSA
law enforcement officers. See id. § 44901(g)(4).
-27-
 But the court omits a key clause from its chosen definition. The same
edition of Black’s continues beyond the court’s excerpted section, defining
“search” as “[a]n examination of a man’s . . . person, with a view to the discovery
of contraband or illicit or stolen property or some evidence of guilt to be used in
the prosecution of a criminal action for some crime or offense.” Black’s Law
Dictionary 1518 (4th ed. 1968) (emphasis added). The court’s omission is telling.
It neglects the investigative context of its chosen definition of search just as it
neglects a key distinction between two types of searches: investigative and
administrative.
As other courts have acknowledged, search is “a legal term of art,” Widgren
v. Maple Grove Twp., 429 F.3d 575, 578 (6th Cir. 2005), and sometimes a “search
is not a search” in the relevant sense of the word, Kyllo v. United States, 533 U.S.
27, 32 (2001). When Congress passed the law enforcement proviso in 1974,
“execute searches” primarily referred to criminal law enforcement searches
(otherwise known as investigative searches) executed by traditional law
enforcement officers. The Supreme Court did not recognize the concept of
administrative searches until 1967, compare Camara v. Municipal Ct. of City &
Cty. of San Francisco, 387 U.S. 523 (1967), with Frank v. Maryland, 359 U.S.
360 (1959); see also 5 Wayne R. LaFave, Search and Seizure § 10.1 (5th ed.
2012), and, as a result, the term “search” had barely begun to be used in reference
to examinations for noncriminal law enforcement purposes, see Administrative
Search, Black’s Law Dictionary (11th ed. 2019) (citing an origin date of 1960).
Consistent with the complete version of the court’s chosen contemporaneous
definition of search, see Black’s Law Dictionary 1518 (4th ed. 1968), the FTCA
waives sovereign immunity for intentional torts committed by officers empowered
to execute investigative searches, not administrative searches, see EEOC v. First
Nat’l Bank of Jackson, 614 F.2d 1004, 1007-08 (5th Cir. 1980) (holding that
EEOC agents authorized to copy evidence during inspection were not given
authority to “execute searches” as contemplated in § 2680(h)).
-28-
Supporting the Government’s contention, the Pellegrino dissent emphasized
that at least four textual cues in the law enforcement proviso suggest that Congress
only referred to criminal or investigative searches: the word preceding searches
(“execute”); the terms to be defined (“investigative or law enforcement officer”);
the other responsibilities listed (“seize evidence” and “make arrests”); and the
series qualifier (“for violations of Federal law”). See 937 F.3d at 185. I agree.
Taken together, the surrounding context for the term “searches” makes clear that
the statute refers solely to traditional criminal or investigative searches. See
Gutierrez v. Ada, 528 U.S. 250, 254-55 (2000) (interpreting words in a statute
consistently with their neighbors to avoid giving unintended breadth to an Act of
Congress).
First, Congress did not simply use the term “search” alone but instead
defined the relevant officials as those with the power to “execute searches.” When
Congress uses the phrase “execute searches,” it “invariably refers to traditional
investigatory searches.” Pellegrino, 937 F.3d at 185 (Krause, J., dissenting)
(citing 18 U.S.C. § 2231(a); id. § 2234; id. § 3109; 22 U.S.C. § 2709(a)(2)). And
prior to the enactment of the proviso in 1974, neither the Supreme Court nor any
circuit court had ever used the phrase outside of the investigative search context.
See, e.g., Chimel v. California, 395 U.S. 752, 756 (1969); Wong Sun v. United
States, 371 U.S. 471, 482 (1963); Ker v. State of Cal., 374 U.S. 23, 38 (1963); Ng
Pui Yu v. United States, 352 F.2d 626, 628 (9th Cir. 1965); United States v. Hurse,
453 F.2d 128, 129 (8th Cir. 1971). On the other hand, when granting authority to
conduct administrative searches, Congress has generally employed very different
language. See Pellegrino, 937 F.3d at 185 (Krause, J., dissenting). As Judge
Krause explained, see id., for instance, the TSA is authorized to carry out
“screening[s],” 49 U.S.C. § 44901(a), while OSHA, FDA, and EPA employees
“inspect,” 29 U.S.C. § 657(a)(2) (OSHA); 21 U.S.C. § 374(a)(1) (FDA); 42 U.S.C.
§ 6927(a) (EPA).
-29-
“[I]t is a cardinal rule of statutory construction that, when Congress employs
a [legal] term of art, it presumably knows and adopts the cluster of ideas that were
attached to each borrowed word.” FAA v. Cooper, 566 U.S. 284, 292 (2012)
(internal quotation marks omitted). Put another way, “if a word is obviously
transplanted from another legal source, whether the common law or other
legislation, it brings the old soil with it.” Hall v. Hall, 584 U.S. ---, 138 S. Ct.
1118, 1128 (2018) (quoting Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947)).
Here, Congress chose to use the term “execute searches,” a phrasing it has
employed repeatedly and consistently to the same effect. We are thus bound to
give it the same meaning. Finley v. United States, 490 U.S. 545, 556 (1989),
abrogated on other grounds by 28 U.S.C. § 1367 (noting that it “is of paramount
importance . . . that Congress be able to legislate against a background of clear
interpretive rules, so that it may know the effect of the language it adopts”).
Second, the term “execute searches” logically draws meaning from the
terms it defines: investigative or law enforcement officer. “[T]he meaning of [a]
definition is almost always closely related to the ordinary meaning of the word
being defined.” Scalia & Garner, Reading Law 228; id at 232 (“[T]he word being
defined is the most significant element of the definition’s context.”). Put a bit
more bluntly: “It should take the strongest evidence to make us believe that
Congress has defined a term in a manner repugnant to its ordinary and traditional
sense.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687,
719 (1995) (Scalia, J., dissenting).
Here, it is beyond contention that the phrase “investigative or law
enforcement officer” evokes criminal law enforcement. See Law Enforcement,
Black’s Law Dictionary (11 ed. 2019) (“The detection and punishment of
violations of the law.”); Investigative Search, Black’s Law Dictionary (11 ed.
2019) (“A search, esp. a police search, . . . for the purpose of cataloguing the items
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. . . .”); see also Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws 171 (2d ed. 1911) (“The words of a statute are to be
construed with reference to its subject-matter.”). As Judge Krause explained when
discussing the same issue, “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.” Pellegrino, 937 F.3d at 188 (Krause, J.,
dissenting). Both statutes discuss the authority of certain officers to conduct
investigations relevant to criminal law enforcement. Id. For this reason, courts
have almost uniformly determined that the proviso covers positions that
“participate[] in traditional law enforcement” while excluding those “positions that
lack a criminal law component.” See id. at 198-99 (Krause, J., dissenting)
(collecting cases).
Third, § 2680(h) pairs “execute searches” with other traditional law
enforcement functions, “seiz[ing] evidence” and “mak[ing] arrests.” The rule of
noscitur a sociis—that a word is known by the company it keeps—is intended to
prevent courts from heedlessly assigning one word an expansive meaning such
that it gives “unintended breadth to the Acts of Congress.” Gustafson v. Alloyd
Co., 513 U.S. 561, 575 (1995). Here, these three functions are regularly used to
refer to the powers of law enforcement. See 21 U.S.C. § 878; United States v.
Rabinowitz, 339 U.S. 56, 61 (1950) (explaining that law enforcement officers may
“search the place where the arrest is made in order to find and seize things
connected with the crime” (emphasis added)). Thus, the Government contends,
under the canon of noscitur a sociis, the criminal law enforcement connotation
attached to seizing evidence and making arrests should attach to executing
searches too, limiting the reach of the terms. See Dolan, 546 U.S. at 486;
Weinraub v. United States, 927 F. Supp. 2d 258, 263 (E.D.N.C. 2012) (“[I]t would
be unreasonable to interpret ‘to execute searches’ to include the TSA screener’s
performance of narrowly focused, consensual searches that are administrative in
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nature, when considered in light of the other traditional law enforcement functions
(i.e., seizure of evidence and arrest) that Congress chose to define ‘investigative or
law enforcement officers.’”).
The court dismisses the invocation of the canon of noscitur a sociis in this
case, reasoning (1) that the term “searches” is clear and (2) that the three duties in
the proviso are listed in the disjunctive and thus application of the canon is
inappropriate. Supra at 14. I respectfully disagree with the court’s view of when
the canon is appropriate.
In Dolan, a case the court repeatedly cites, the Supreme Court invoked
noscitur to hold that another provision in the FTCA that bars claims arising out of
the “loss, miscarriage, or negligent transmission of letters or postal matter” did not
include slip-and-fall hazards created by mail carriers because the words “negligent
transmission” were necessarily limited by the words “loss” and “miscarriage.”
Dolan, 546 U.S. at 486 (emphasis added). As in Dolan, so too here. The term
“execute searches” is necessarily limited by the words “seize evidence” and “make
arrests.” The use of the disjunctive or does not change this fact. See Scalia &
Garner, Reading Law 196-97 (discussing approvingly the invocation of noscitur a
sociis to define the term “case” in the phrase “fastened case, gunbox, or securely
tied package” (emphasis added)).8
At any rate, there is another reason why one should not adopt the court’s
reading of the law enforcement proviso. Each function in the law enforcement
proviso is connected at the end of the sentence by the phrase “for violations of
Federal law,” a postpositive modifier (sometimes called a series qualifier) that
8
Indeed, there may just as well be times where the conjunctive and is a
misleading signal for when the canon is applicable. See Scalia & Garner, Reading
Law 196 (noting that words must be “conjoined in such a way as to indicate that they
have some quality in common” and that, as a result, the “walrus’s allusion to ‘shoes
and ships and sealing-wax, . . . cabbages and kings’ provides no occasion for noscitur
a sociis” (quoting Lewis Carroll, Through the Looking Glass 64 (1871; repr. 1917))).
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affects the meaning of each term. See Scalia & Garner, Reading Law 147.
Reading the phrase “execute searches” to exclude the terms “for violations of
Federal law” would result in one meaning when modifying “make arrests”
(criminal only) and another when modifying “execute searches” (criminal and
noncriminal). That is not how we traditionally read statutes. See Gutierrez, 528
U.S. at 255 (noting that it would be “odd” to think Congress “suddenly” changed
the meaning of a phrase “midway through a statute”); United States v. Bass, 404
U.S. 336, 339-40 (1971) (applying the series-qualifier canon).
The court sidesteps this problem by stating that the United States did not
argue TSA screeners do not execute searches for violations of federal law. Supra
at 15 n.3. It thus assumes the screenings TSA personnel conduct must be for
violations of federal law. But the Government argues that TSA screeners do not
“execute searches” at all, which means, a fortiori, that they are not executing
searches for violations of federal law. Moreover, the Government repeatedly
asserts that, even if the screening actions taken by TSA employees constitute
“searches” in the literal sense of the word, TSA screeners do not “execute
searches” in the manner described by the FTCA because they serve a different
programmatic purpose. That is, again, they are not searches for violations of law,
because as “[s]everal courts have concluded,” “TSA screeners perform consensual,
pre-boarding administrative searches for certain prohibited items (i.e., knives,
firearms, liquids, gels, etc.), not traditional law enforcement functions such as
making arrests and executing searches for violations of federal law.” Corbett, 568
F. App’x at 700 (collecting cases); see also United States v. Marquez, 410 F.3d
612, 616 (9th Cir. 2005) (“Airport screenings of passengers and their baggage
constitute administrative searches . . . .”). Even Iverson admits that such “searches
would seemingly not satisfy § 2680(h)’s requirement that an official be
‘empowered by law to execute searches.’” Cf. Wilson v. United States, 959 F.2d
12, 15 (2d Cir. 1992) (determining that parole officers with the power to “seize
evidence” are not “investigative or law enforcement officers” because the seizure
“depends on the consent of the person from whom the evidence is to be taken”).
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Indeed, to suggest otherwise is to put the entire TSA screening program in
constitutional doubt, see Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001)
(holding that to be constitutional, a suspicionless search must advance an interest
“divorced from the State’s general interest in law enforcement”), and we have
repeatedly held that such readings are disfavored when another construction is
possible, see, e.g., Saxton v. Fed. Hous. Fin. Agency, 901 F.3d 954 (8th Cir. 2018).
Because of this constitutional requirement, the TSA’s authorizing statute
makes clear that TSA screeners are to screen only for “cargo [that] poses a threat
to transportation security.” 49 U.S.C. § 44901(a)(4). While TSA seeks to uncover
firearms, explosive devices, and other items prohibited on aircraft under threat of
criminal penalty, id. § 46505, they search “for the programmatic purpose of
removing prohibited items, which is designed to prevent ‘violations of Federal
law’ from occurring,” Pellegrino, 937 F.3d at 187 (Krause, J., dissenting).
Accordingly, “[s]creeners do not have the authority to detain individuals
and must call law enforcement officers to search, seize, and arrest individuals if
illegal items are found.” Welch v. Huntleigh USA Corp., No. 04-663 KI, 2005 WL
1864296 at *5 (D. Or. Aug. 4, 2005) (emphasis added); see also Pellegrino, 937
F.3d at 184 (Krause, J., dissenting) (citing the TSA’s own regulations and
explaining that if a screener discovers evidence of a crime, he must “refer it to a
supervisor or law enforcement official for appropriate action”); Walcott v. United
States, No. 13-CV-3303, 2013 WL 5708044 at *2 (E.D.N.Y. Oct. 18, 2013)
(making similar point and holding that TSA screeners do not “execute searches”
under § 2680(h)). Contrary to the court’s suggestion today, the administrative
nature of such inspections does not change simply because TSA screeners
“discover evidence of crimes.” See New York v. Burger, 482 U.S. 691, 716
(1987). Therefore, TSA agents “do not search, and may not constitutionally
search, ‘for violations of Federal law.’” Pellegrino, 937 F.3d at 187 (Krause, J.,
dissenting).
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For similar reasons, the ATSA does not vest TSA screeners with the same
discretion to execute searches as it vests in officers. See supra at 12. TSA
screeners cannot choose whom to screen or what to look for. Instead, at the
direction of the TSA Administrator, they must “screen[] all passengers and
property,” they must do so “before boarding,” and they must follow the “methods”
specified by statute or the TSA Administrator. See 49 U.S.C. § 44901(a), (g)(4)
(emphasis added). By contrast, TSA officers may “make an arrest . . . for any
offense against the United States . . . or for any felony cognizable under the laws
of the United States,” and they are empowered with discretion to “seek and
execute warrants” whenever they have “probable cause that a violation has been
committed.” Id. § 114(p)(2)(B)-(C) (emphasis added). In fact, it is in part
precisely because screeners lack this discretion that the first courts to consider the
constitutionality of airport screenings determined that they were constitutional.
See, e.g., United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973), overruled on
other grounds by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007); 5 LaFave,
Search and Seizure § 10.6(c) (reviewing cases).
In context, then, it is clear that the FTCA waives sovereign immunity only
for intentional torts committed by officers who execute searches for violations of
federal criminal law. As a result, TSA screeners are not investigative or law
enforcement officers.
C. Ambiguity in waivers of sovereign immunity are to be narrowly
construed in favor of the United States
There is yet another reason why, respectfully, I cannot adopt the court’s
reading of the law enforcement proviso: we generally require a “clear statement”
to find a waiver of sovereign immunity, and we apply a general rule that ambiguity
in waivers of sovereign immunity are construed in favor of the Government. See
United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Lane v.
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Peña, 518 U.S. 187, 192 (1996) (“[A] waiver of the Government’s sovereign
immunity will be strictly construed, in terms of its scope, in favor of the
sovereign.”). If anything, the closeness of this issue dictates that TSA screeners
are not “investigative or law enforcement officers” as defined by the FTCA. See
Cooper, 566 U.S. 290-91.
In light of this well-established principle, the breadth of its chosen
definitions of “officer,” particularly when coupled with its definition of “search,”
should give the court pause. First, the court defines the term “officer” as “one
charged with a duty” who “serve[s] in a position of trust, authority, or command.”
Supra at 5. On its face, that broad definition is elastic enough to cover almost all
federal employees, suggesting it likely is not what the term “officer” means in the
statutory context of a limited waiver of sovereign immunity concerning intentional
torts of “investigative or law enforcement officers.” And second, because its
definition of “search” is equally broad, the court significantly expands federal tort
liability, seemingly covering all intentional torts of all federal employees who
conduct administrative searches, investigations, or inspections, without
distinction. See Millbrook, 569 U.S. at 57 (holding that the United States is liable
for the intentional torts committed by an investigative or law enforcement officer
even when the officer is not carrying out the law enforcement proviso’s statutorily
prescribed duties).
With the court’s broad construction in hand, future litigants will be hard-
pressed to distinguish between TSA screeners and other federal employees that
perform screenings at the entrances of government buildings or any other
administrative search for that matter. See City of Indianapolis v. Edmond, 531
U.S. 32, 39 (2000); 41 C.F.R. § 102-74.370 (authorizing all federal agencies to,
“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”); see also Pellegrino, 937 F.3d at 196-97 (Krause, J.,
dissenting) (describing the numerous government employees that conduct
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administrative, programmatic, or security screenings). Justice Scalia once vividly
counselled that “[Congress] does not . . . hide elephants in mouseholes.” Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Disregarding this rule of
construction, the court’s reading of the FTCA smuggles a very large pachyderm
into the statute.9
I am mindful that the Supreme Court has counseled that courts must be
cautious when interpreting exceptions to the FTCA’s waiver of sovereign
immunity so as not to defeat the purpose of the statute, Dolan, 546 U.S. at 491-92,
but as the Ninth Circuit has noted, in the context of the law enforcement proviso,
“[w]e interpret not an exception to the FTCA’s waiver of sovereign immunity, but
instead interpret an exception to the exception,” Foster v. United States, 522 F.3d
1071, 1079 (9th Cir. 2008). That is, “our task is to interpret a waiver of sovereign
immunity.” Id.; see Millbrook, 569 U.S. at 52-53 (noting that the law enforcement
proviso “extends the waiver of sovereign immunity”). The rule that we “strictly
construe[]” “the scope of waivers of sovereign immunity” thus still applies. See
LaFromboise v. Leavitt, 439 F.3d 792, 795 (8th Cir. 2006) (noting that this rule
remains applicable in the FTCA context generally even though Dolan suspends its
application when “interpreting the scope of exceptions to the government’s waiver
of immunity under the FTCA”).10 Therefore, we must resolve any doubts about
the scope of the law enforcement proviso in favor of the United States. Cooper,
566 U.S. at 290-91 (holding that where “a plausible interpretation of the statute”
exists that would preserve the United States’ sovereign immunity, a court must
adopt it). Given that the Eleventh Circuit, a Third Circuit panel, and at least four
district courts have found that TSA screeners are not “investigative or law
9
On their own, the approximately 50,000 TSA screeners screen approximately
two million passengers each day. Factsheet, TSA by the Numbers, Trans. Sec. Admin
1 (Feb. 4, 2020), https://www.tsa.gov/sites/default/files/resources/tsabythenumbers
_factsheet.pdf.
10
Even if LaFromboise’s discussion of this issue is “dicta and thus
nonbinding,” supra at 17 n.5, as discussed below, it is correct.
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enforcement officers,” see Pellegrino v. U.S. Trans. Sec. Admin., 896 F.3d 207 (3d
Cir. 2018); Corbett, 568 F. App’x at 700 (collecting cases), I do not believe one
can conclude that the United States has clearly waived immunity from suit for the
intentional torts of government employees who conduct routine administrative
screenings.
The court points out, supra at 17, that the Pellegrino en banc majority read
Dolan to mean that “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,’” Pellegrino, 937 F.3d at
171 (quoting Dolan, 546 U.S. at 491). Notably, however, the Pellegrino en banc
majority misread Dolan for the same reason it misread the proviso: it lifted
language out of the surrounding context and recast it. The immediate context in
Dolan makes clear the Court was discussing only the exceptions to the FTCA’s
waiver of sovereign immunity, as it found “this principle” of strict construction
“unhelpful” “where unduly generous interpretations of the exceptions run the risk
of defeating the central purpose of the statute.” Dolan, 546 U.S. at 491-92
(emphasis added and internal quotation marks and citation omitted). Pellegrino
thus overread Dolan by treating it as carving out interpretation of the waivers of
sovereign immunity in the FTCA from the general rule that such waivers are
strictly construed in favor of the United States. Unsurprisingly, the majority of our
sister circuits still apply the strict-construction rule to waivers of sovereign
immunity in the FTCA, Dolan notwithstanding. See, e.g., Cooke v. United States,
918 F.3d 77, 82 (2d Cir. 2019); Hajdusek v. United States, 895 F.3d 146, 151 (1st
Cir. 2018); Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017); Tsolmon v.
United States, 841 F.3d 378, 382 (5th Cir. 2016); Burton v. United States, 559 F.
App’x 780, 781 (10th Cir. 2014); Valadez-Lopez v. Chertoff, 656 F.3d 851, 855
(9th Cir. 2011); Ramos v. U.S. Dep’t of Health & Human Servs., 429 F. App’x
947, 950 (11th Cir. 2011) (per curiam).
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Millbrook is not to the contrary; it is entirely inapposite. Millbrook did not
discuss—let alone reject—the applicability of the strict-construction rule to the
FTCA generally. See 569 U.S. at 51-57. As a result, I would not read the opinion
as creating sub silentio an idiosyncratic carveout to two centuries of precedent
recognizing generally that waivers of sovereign immunity are strictly construed in
favor of the Government. See Price v. United States, 174 U.S. 373, 375-76
(1899); Scalia & Garner, Reading Law 281-89 (explaining history of sovereign
immunity). Millbrook simply found, with respect to a different issue involving the
law enforcement proviso, that the proviso was “unambiguous.” See 569 U.S. at
57. Millbrook thus stands for the unremarkable proposition that “the canon
favoring strict construction of waivers of sovereign immunity” must “give way”
when the words of a statute are unambiguous. See Sebelius v. Cloer, 569 U.S.
369, 380-81 (2013). Notably, the issue before us now was not before the Court in
Millbrook. See 569 U.S. at 55 n.3 (“The Government conceded in the proceedings
below . . . that the named correctional officers qualify as ‘investigative or law
enforcements officers’ within the meaning of the FTCA. Accordingly, we express
no opinion on . . . th[is] issue[].” (citations omitted)).11
Finally, regardless of whether the general rule that waivers of sovereign
immunity are to be strictly construed applies in the FTCA context, I do not believe
11
If one needed additional evidence that Millbrook did not abrogate the strict-
construction rule as applied to waivers in the FTCA, one only needs to consider who
authored the opinion. Justice Thomas dissented in Dolan, arguing among other
things that the Court should strictly construe the FTCA’s exceptions in favor of the
Government. See 546 U.S. at 498 (Thomas, J., dissenting). It is therefore somewhat
curious to construe Millbrook, authored by Justice Thomas and written just a few
years after Dolan, see Millbrook, 569 U.S. at 51, as rejecting (without analysis or
explanation) the strict-construction rule’s applicability to the FTCA in toto. The
better view, reading both Dolan and Millbrook together, is that (1) Dolan requires
different interpretive rules for the FTCA’s exceptions than for its waivers, and
(2) Millbrook had no occasion to invoke an otherwise permissible interpretive rule
to construe the law enforcement proviso because it found the proviso unambiguous
regarding the issue before it.
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the court is empowered to give the FTCA’s terms “an expansive meaning.” Supra
at 7. Indeed, I am aware of no case that suggests waivers of sovereign immunity
should be construed broadly against the Government. Instead, Dolan, to the
extent it applies, directs courts to identify “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 omitted).
Here, because TSA screeners are not “investigative or law enforcement
officers” as defined by the FTCA—that is, they are not “within the words and
reason” of any waiver of immunity—I respectfully dissent.
______________________________
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