Pellegrino v. U.S. Transp. SEC. Admin.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3047
___________
NADINE PELLEGRINO;
HARRY WALDMAN,
Appellants
v.
UNITED STATES OF AMERICA TRANSPORTATION
SECURITY ADMINISTRATION, Div. of Dept. of
Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK,
Sued in her individual capacity; TSA STSO LAURA
LABBEE, 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
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 2-09-cv-05505)
District Judge: Honorable J. Curtis Joyner
____________________________________
Argued: October 3, 2017
Before: AMBRO, KRAUSE and SCIRICA, Circuit Judges
(Opinion filed: July 11, 2018)
Nadine Pellegrino and Harry Waldman
Unit 1205 South
550 South Ocean Boulevard
Boca Raton, FL 33432
Pro Se Appellants
Mark J. Sherer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellees
Paul M. Thompson, Esq. (Argued)
Sarah P. Hogarth, Esq.
McDermott Will & Emery
500 North Capitol Street, N.W.
Washington, DC 20001
Matthew L. Knowles, Esq.
McDermott Will & Emery
28 State Street
33rd Floor
Boston, MA 02109
Court Appointed Amicus Curiae
2
___________
OPINION OF THE COURT
___________
KRAUSE, Circuit Judge.
In Vanderklok v. United States, 868 F.3d 189 (3d Cir.
2017), we declined to imply a Bivens cause of action against
airport screeners employed by the Transportation Security
Administration (TSA) in part because they “typically are not
law enforcement officers and do not act as such.” Id. at 208.
We now must decide a related question that we anticipated, but
did not resolve, in Vanderklok: whether TSA screeners are
“investigative or law enforcement officers” under the Federal
Tort Claims Act (FTCA).
This question, one of first impression among the Courts
of Appeals, arises because Appellant Nadine Pellegrino has
asserted intentional tort claims against TSA screeners.
Although under the FTCA the United States generally enjoys
sovereign immunity for intentional torts committed by federal
employees, this rule is subject to an exception known as the
“law enforcement proviso,” which waives immunity for a
subset of intentional torts committed by employees who
qualify as “investigative or law enforcement officers.” 28
U.S.C. § 2680(h). Pellegrino’s claims may proceed only if
TSA screeners fall into this category.
Based on our review of the statute’s text, purpose, and
legislative history, as well as precedent from this Court and
other Courts of Appeals, we now reach the conclusion that we
foreshadowed in Vanderklok and hold that TSA screeners are
not “investigative or law enforcement officers” under the law
3
enforcement proviso. Pellegrino’s claims are therefore barred
by the Government’s sovereign immunity, and we will affirm
the District Court’s judgment dismissing this action.
I. Facts and Procedural History
A. Airport Security and Screeners
To place what follows in proper context, we briefly
describe the structure of the TSA and the screeners’ place
within that structure. Congress created the TSA in the
aftermath of the terrorist attacks of September 11, 2001, with
the enactment of the Aviation and Transportation Security Act
(ATSA), Pub. L. No. 107-71, 115 Stat. 597 (2001). The head
of the TSA is the Under Secretary of Transportation for
Security, 49 U.S.C. § 114(b), who is responsible for security in
all modes of transportation, including civil aviation, id.§ 114(d).
Pertinent here is the Under Secretary’s responsibility to
“provide for the screening of all passengers and property,
including United States mail, cargo, carry-on and checked
baggage, and other articles, that will be carried aboard a
passenger aircraft operated by an air carrier or foreign air
carrier in air transportation or intrastate air transportation.” Id.
§ 44901(a). With exceptions not relevant here, this screening
is required to be performed “by a Federal Government
employee.” Id. These employees were referred to as
“screeners” at the time of the ATSA’s enactment but were
reclassified as “Transportation Security Officers” (TSOs) in
2005 as part of an effort to improve morale and combat
employee-retention problems. The Transportation Security
Administration’s Airline Passenger and Baggage Screening:
Hearing Before the S. Comm. on Commerce, Sci., & Transp.,
4
109th Cong. 7 (2006) [hereinafter Screening Hearing]
(statement of Edmund “Kip” Hawley, Assistant Secretary,
Transportation Security Administration).1 In 2016, the TSA
screened more than 2 million passengers per day. See Bob
Burns, TSA Year in Review, Transp. Sec. Admin. (Jan. 12,
2017), https://www.tsa.gov/blog/2017/01/12/tsa-year-review-
record-amount-firearms-discovered-2016.
TSOs form just one part of the airport-security
apparatus. The Under Secretary may also designate employees
to serve as “law enforcement officer[s].” 49 U.S.C.
§ 114(p)(1). An employee so designated may carry a firearm,
make arrests, and seek and execute warrants for arrest or
seizure of evidence. Id. § 114(p)(2). The Under Secretary is
required to deploy law enforcement personnel at each
screening location; typically, at least one such law enforcement
officer must be at each location. Id. § 44901(h)(1)–(2).
Screening locations are thus staffed by both TSOs and law
enforcement officers.
B. Factual Background2
In 2006, Pellegrino and her husband, Harry Waldman,
arrived at the Philadelphia International Airport, where they
planned to catch a flight home to Florida. Pellegrino brought
Throughout this opinion, we will use the terms “TSO”
1
and “TSA screener” without distinction.
2
Because the District Court granted summary judgment
in the defendants’ favor, we view the facts in the light most
favorable to Pellegrino. See, e.g., Moody v. Atl. City Bd. of
Educ., 870 F.3d 206, 210 n.1 (3d Cir. 2017).
5
three bags to the security checkpoint: a rolling tote, a larger
rolling bag that would fit in the overhead compartment of the
airplane, and a small black canvas bag. After Pellegrino passed
through a metal detector, a TSO directed her to step aside for
further screening. A few minutes later, TSO Thomas
Clemmons arrived and began to search Pellegrino’s bags, but
because Pellegrino believed that Clemmons was treating
neither her nor her bags respectfully, she asked for a private
screening. According to Pellegrino, Clemmons then “walked
off with a very arrogant, negative, hostile attitude,” Pellegrino
Dep. 85:24–86:2, D.Ct. Dkt. No. 156, and TSO Nuyriah
Abdul-Malik came to perform the screening in Clemmons’s
stead.
As Abdul-Malik prepared to search Pellegrino’s bags,
Pellegrino “had the distinct feeling” that Abdul-Malik’s gloves
were not clean and asked her to put on new ones. Pellegrino
Dep. 90:18–22, D.Ct. Dkt. No. 156. Abdul-Malik did as
Pellegrino asked, but Pellegrino asserts that this request
engendered hostility from Abdul-Malik. Abdul-Malik and
Pellegrino then proceeded to a private screening room, where
they were joined by TSA employees Laura Labbee, a
supervisory TSO, and Denise Kissinger, another TSO.3
Kissinger swabbed Pellegrino’s shirt and left the room to test
the sample (for the presence of explosives), while Abdul-Malik
inspected Pellegrino’s luggage. Pellegrino contends that
Abdul-Malik’s screening was unnecessarily rough and
3
Labbee was a supervisor, but because no party has
claimed that her duties were materially different from those of
Abdul-Malik or Kissinger, we will not distinguish among their
positions.
6
invasive—extending to her credit cards, coins, cell phone, and
lipstick.
At some point, Pellegrino asked Labbee why she was
being subjected to this screening, and Labbee responded that it
was an “airline-designated search.” Pellegrino Dep. 104:12,
D.Ct. Dkt. No. 156. Pellegrino took this to mean that her
airline ticket had been marked in a way that prompted the
search, and because she and Waldman had accidentally
switched tickets, she sought to stop the search by explaining
that she believed that Waldman should have been searched
instead. Nevertheless, the search continued, and Pellegrino
told Labbee that she was going to report her to TSA authorities.
Once Abdul-Malik finished searching the rolling tote,
Pellegrino, who believed that Abdul-Malik had damaged her
eyeglasses and jewelry, asked Abdul-Malik to leave her items
outside the tote so that Pellegrino could re-pack it herself.
Abdul-Malik refused and the interaction continued to
deteriorate. First, Abdul-Malik had trouble zipping the tote
closed and had to press her knee into it to force it shut. Next,
when Pellegrino asked Labbee for permission to examine the
tote, which she believed Abdul-Malik had damaged, that
request was also denied. Pellegrino then told Labbee and
Abdul-Malik they were “behaving like bitches.” Pellegrino
Dep. 114:13–14, D.Ct. Dkt. No. 156. Finally, after Abdul-
Malik had searched Pellegrino’s largest bag, which contained
clothes and shoes, and Kissinger finished swabbing and
testing, Pellegrino was told that she could leave.
But simple closure was not to be. Instead, Pellegrino
saw that Abdul-Malik had not re-packed her shoes, asked if she
intended to do so, and was told “no.” Pellegrino Dep. 122:2,
D.Ct. Dkt. No. 156. At that point, intending to re-pack her bags
7
outside of the screening room, Pellegrino tossed her shoes
through the open door toward the screening lanes and began to
carry her largest bag out of the room. In the process, according
to Labbee and Kissinger, she struck Labbee in the stomach
with the bottom of the bag. When Pellegrino then returned to
the screening room for her smaller rolling tote, Abdul-Malik
allegedly stood in her way, forcing her to crawl on the floor
under a table to retrieve it. According to the TSOs, Pellegrino
then struck Abdul-Malik in the leg with this bag as she was
removing it. Although Pellegrino denied (and has consistently
denied) that either bag touched either TSO, Labbee and Abdul-
Malik immediately went to the supervisor’s station to press
charges against Pellegrino.
Philadelphia police officers arrived at the scene a short
time later, arrested Pellegrino, and took her to the police
station, where she was held for about 18 hours before being
released on bond. Eventually, the Philadelphia District
Attorney’s Office filed ten charges against Pellegrino: two
counts each of felony aggravated assault, see 18 Pa. Cons. Stat.
§ 2702; possession of instruments of a crime, see id. § 907;
reckless endangerment, see id. § 2705; simple assault, see id.
§ 2701; and making terroristic threats, see id. § 2706.
By the time the matter proceeded to trial in Philadelphia
Municipal Court, however, Abdul-Malik was no longer
employed by the TSA and did not appear. And because the
trial judge had ruled that no witnesses could testify about
events that took place outside of the private screening room in
the absence of footage from video surveillance, Labbee—who
was positioned partially outside the door of the screening room
during the alleged assault—was precluded from testifying to
those events. Without that testimony, the trial judge entered a
verdict of not guilty.
8
In July 2008, Pellegrino submitted a claim to the TSA
concerning the TSOs’ alleged misconduct and requesting
damages of $951,200. The TSA denied the claim by letter
almost a year later.
C. Procedural Background
In November 2009, Pellegrino and Waldman4
commenced this civil rights action in the Eastern District of
Pennsylvania, naming as defendants the United States, the
TSA, Abdul-Malik, Labbee, and Kissinger, and raising FTCA
claims as to all defendants for (a) property damage, (b) false
arrest/false imprisonment, (c) malicious prosecution, (d) civil
conspiracy, (e) defamation, and (f) intentional and negligent
infliction of emotional distress. In addition, as to the individual
defendants, they raised Bivens claims for malicious and
retaliatory prosecution, “aiding and abetting” malicious
prosecution, and conspiracy to deprive civil rights, as well as a
conspiracy claim under 42 U.S.C. § 1985(3). As to the TSA
alone, they raised claims for failing to investigate their civil
rights complaint in violation of the Administrative Procedure
Act (APA) and failing to comply with requests for information
under the Freedom of Information Act (FOIA) and the Privacy
Act.
4
The District Court dismissed Waldman’s claims,
primarily for lack of standing. While both Pellegrino’s and
Waldman’s names appear on Appellants’ briefs, they have not
challenged the District Court’s dismissal of Waldman from this
action. We therefore will treat Pellegrino as the sole appellant.
9
In a series of orders, the District Court denied relief to
Pellegrino on all claims with the exception of one FTCA
property damage claim that the parties settled. In this appeal,
we focus primarily on Pellegrino’s FTCA claims for the
intentional torts of false arrest, false imprisonment, and
malicious prosecution.5
The District Court granted summary judgment on those
claims on the ground that TSA screeners are not covered by the
FTCA’s law enforcement proviso because they are not
“empowered by law to execute searches . . . for violations of
Federal law.” Pellegrino v. U.S. Transp. Sec. Admin., No. 09-
5505, 2014 WL 1489939, at *5, *8 (E.D. Pa. Apr. 16, 2014).
While the Court recognized that TSA screeners are permitted
to perform something that qualifies as a “search” under the
Fourth Amendment, it concluded that it was unclear whether
“Congress intended ‘search’ in § 2680(h) to be synonymous
with ‘search’ within the meaning of the Fourth Amendment.”
Id. at *5. Because it found the language of the proviso
ambiguous, the Court turned to legislative history. The Court
observed that “[a] review of the legislative history reveals that
Congress, in response to ‘no-knock’ raids conducted by federal
narcotic agents on the wrong dwellings, passed the 1974
amendment to the Federal Tort Claims Act to provide
compensation for such victims.” Id. at *6 (quoting Solomon v.
5
At the motion-to-dismiss stage, the District Court first
found that the individual defendants and the TSA were not
proper defendants and dismissed all claims against them,
substituting the United States as the sole defendant. See 28
U.S.C. § 2679. The Court then permitted the false arrest, false
imprisonment, and malicious prosecution claims to proceed
against the United States.
10
United States, 559 F.2d 309, 310 (5th Cir. 1977) (per curiam)).
As “the law enforcement proviso was enacted as a response to
specific eg[]regious behavior during raids conducted by federal
law enforcement officers,” the Court concluded it “was not
intended to be expansive enough to cover airport security
screeners.” Id. at *7.
The District Court also ruled in the Government’s favor
on Pellegrino’s remaining claims, and Pellegrino then filed this
appeal.6
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over this action
pursuant to 28 U.S.C. §§ 1346(b) and 1331. See S.R.P. ex rel.
Abunabba v. United States, 676 F.3d 329, 331–32 (3d Cir.
2012); Egervary v. Young, 366 F.3d 238, 245 (3d Cir. 2004).
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
exercise plenary review over the District Court’s interpretation
of the FTCA. See Baer v. United States, 722 F.3d 168, 172 (3d
Cir. 2013).
6
After the parties submitted their initial briefs, the Court
appointed Paul M. Thompson of McDermott Will & Emery to
serve as amicus curiae on behalf of Pellegrino, and Amicus and
the Government have filed supplemental briefs addressing the
issues presented in this case. We express our gratitude to Mr.
Thompson for accepting this matter pro bono and for the
quality of his briefing and argument in this case. Lawyers who
act pro bono fulfill the highest service that members of the bar
can offer to the legal profession.
11
III. Legal Background
A. The Federal Tort Claims Act
“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” FDIC v.
Meyer, 510 U.S. 471, 475 (1994). The FTCA creates a layered
scheme waiving and then reasserting immunity. At the first
level, the FTCA waives sovereign immunity for “injury or loss
of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1).7 However, that broad
waiver is limited by a number of exceptions, which we have
construed as akin to affirmative defenses. See Abunabba, 676
F.3d at 333 n.2. As relevant here, the “intentional tort
exception”8 preserves the Government’s immunity for “[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). Finally, the FTCA includes an exception
7
Prior to the 1946 passage of the FTCA, individuals
could obtain compensation for negligent acts committed by
federal employees through only a private bill in Congress. The
FTCA was designed to replace that “notoriously clumsy”
system. Dalehite v. United States, 346 U.S. 15, 25 (1953).
8
This label is somewhat imprecise because § 2680(h)
“does not remove from the FTCA’s waiver all intentional torts,
e.g., conversion and trespass, and it encompasses certain torts,
e.g., misrepresentation, that may arise out of negligent
conduct.” Levin v. United States, 568 U.S. 503, 507 n.1 (2013).
12
to that exception—the “law enforcement proviso”—which
waives immunity for certain intentional torts committed by
“investigative or law enforcement officers.” Id. That proviso
is at issue in this case.
Read together, these subsections provide that while
private citizens are barred from bringing suit against federal
employees for many intentional torts, they may nonetheless
bring suit for a subset of these torts—“assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution”—if the alleged act was committed by an
“investigative or law enforcement officer.” Id. The law
enforcement proviso defines “investigative or law enforcement
officer” to “mean[] 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.Because Pellegrino asserts intentional tort claims
arising out of the actions of TSOs, we must determine as a
matter of statutory interpretation whether TSOs qualify as
“investigative or law enforcement officers” such that the
claims fall within the proviso.
B. Vanderklok v. United States
Contrary to the Government’s assertion, we did not
resolve this issue in its favor in our recent decision in
Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017). But
that case does provide some important touchpoints for
assessing the question now squarely before us.
In Vanderklok, the plaintiff brought various claims
against a TSO, including claims under the FTCA and a claim
under Bivens for retaliatory prosecution in violation of the First
13
Amendment. Id. at 195. The District Court denied the TSO’s
qualified immunity defense to the Bivens claim, and the TSO
appealed. Id. at 196. We reversed the District Court’s order in
part, concluding that a Bivens cause of action for First
Amendment retaliatory prosecution was not available to the
plaintiff in those circumstances. Id. at 209.
In evaluating whether it was permissible to imply this
Bivens claim, we considered two questions: (1) whether an
alternative process—namely, an FTCA claim—was available
to protect the constitutional interests at stake; and (2) whether
there were special factors counseling against implying a Bivens
cause of action in this context. See id. at 200. In addressing
the first of these issues, we noted both the District Court’s
conclusion “that [the TSO] was not an investigative or law
enforcement agent because he was not an ‘officer’ of the
United States under [the FTCA’s] definition” and its reasoning
that the FTCA distinguished between “employee[s]” and
“officer[s],” with only the latter being used in the law
enforcement proviso. Id. at 203. The District Court also
observed that the ATSA, “which created the TSA[,] designates
as ‘law enforcement personnel’ only those TSA agents who are
‘(1) authorized to carry and use firearms; (2) vested with the
degree of the police power; and (3) identifiable by appropriate
indicia of authority.’” Id. (alteration omitted) (quoting 49
U.S.C. § 44903(a)(1)–(3)). Because the TSO was not “law
enforcement personnel” under that definition, the District
Court determined he was an employee, not an officer, and
therefore was not subject to the law enforcement proviso. See
id.Although we recounted this reasoning, we were careful
to emphasize that “[t]he District Court’s decision about the
applicability of the law enforcement proviso is not on appeal at
14
this time” and that our focus was on the availability of a Bivens
action. Id. We then concluded that, even without an alternative
process (an FTCA claim) available to the plaintiff, we would
not imply a Bivens claim because special factors unique to the
airport-security context counseled heavily against doing so.
We identified several such factors: (a) TSA agents are part of
the country’s national-security apparatus; (b) Congress is in a
better position than the Court to recognize a new species of
liability; and (c) TSA agents are not typically law enforcement
officers. Id. at 206–08. In discussing point (c), we referred
back to our discussion of the FTCA claim and emphasized the
highly circumscribed and administrative nature of the TSO
role:
TSA employees typically are not law
enforcement officers and do not act as such. As
previously discussed, only those TSA employees
specifically designated by the Under Secretary
with the responsibilities of an officer, in
accordance with 49 U.S.C. § 44903(a), operate
like police officers. As a result, line TSA
employees are not trained on issues of probable
cause, reasonable suspicion, and other
constitutional doctrines that govern law
enforcement officers. See 49 C.F.R. § 1542.213(delineating mandatory training). Instead, they
are instructed to carry out administrative
searches and contact local law enforcement if
they encounter situations requiring action
beyond their limited though important
responsibilities. Cf. 49 C.F.R. § 1542.215(providing for “[u]niformed law enforcement
personnel in the number and manner adequate to
15
support” passenger screenings). Since a First
Amendment retaliatory prosecution claim
hinges, in part, on whether the allegedly
offending government employee had probable
cause to take some enforcement action, a Bivens
claim is poorly suited to address wrongs by line
TSA employees.
Vanderklok, 868 F.3d at 208–09 (citation omitted).9
This ruling was one of the “portions of the opinion
necessary to th[e] result,” and thus not dictum. Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also In re
Friedman’s Inc., 738 F.3d 547, 552 (3d Cir. 2013) (explaining
that a statement is not dictum if it is “necessary to our ultimate
holding”). However, we ruled in Vanderklok only that TSOs
are not law enforcement officers for purposes of a Bivens
claim. Thus, while there may be good reasons to interpret the
law enforcement proviso consistently with our Bivens case law,
9
“Administrative searches” are an exception to the
general rule that a search or seizure is unreasonable in the
absence of individualized suspicion. See United States v.
Hartwell, 436 F.3d 174, 178 (3d Cir. 2006). “Suspicionless
checkpoint searches” are one such example, and “are
permissible under the Fourth Amendment when a court finds a
favorable balance between ‘the gravity of the public concerns
served by the seizure, the degree to which the seizure advances
the public interest, and the severity of the interference with
individual liberty.’” Id. at 178–79 (quoting Illinois v. Lidster,
540 U.S. 419, 427 (2004)). In Hartwell, we concluded that
TSA screenings fall into this category and constitute
permissible administrative searches. See id. at 181.
16
we agree with Amicus that Vanderklok addressed a different
category of claim and is not dispositive of the question
presented today.
IV. Analysis of Intentional Tort FTCA Claims and the
Law Enforcement Proviso
In support of their respective positions on whether
TSOs qualify as “investigative or law enforcement officers,”
the parties offer very different interpretations of § 2680(h)’s
law enforcement proviso.
Amicus contends that because the screenings performed
by TSOs qualify as “searches” under the Fourth Amendment,
see George v. Rehiel, 738 F.3d 562, 577 (3d Cir. 2013), TSOs
“execute searches” for purposes of the proviso. Moreover,
Amicus argues, the definition’s reference to “any” officer
shows that Congress intended for the term to be construed
broadly and that “officer” itself has a broad, elastic definition.
See Amicus Br. at 22 (stating that “officer” is defined as “[o]ne
who is charged by a superior power (and particularly by
government) with the power and duty of exercising certain
functions” (alteration in original) (quoting Black’s Law
Dictionary (4th ed. 1968))). Amicus relies, at bottom, on the
following syllogism: (a) federal workers who are authorized to
perform any type of search are “investigative or law
enforcement officers”; (b) TSA screeners perform searches;
ergo (c) TSA screeners are “investigative or law enforcement
officers.”
The Government, meanwhile, argues that the law
enforcement proviso is designed to cover only traditional
investigative or law enforcement officers, i.e., those who
possess criminal justice powers. The Government contends
17
that TSA screeners have much more circumscribed powers—
as opposed to, for instance, FBI or DEA agents—and therefore
are not covered by the proviso. The Government also argues
that TSOs are “employees,” not “officers,” and that the limited
administrative searches that they perform do not constitute
“searches” under the proviso.
We agree with the Government. Based on the proviso’s
text, structure, context, purpose, and history, as well as the
relevant case law, we are persuaded that the phrase
“investigative or law enforcement officers” is limited in scope
and refers only to officers with criminal law enforcement
powers. Because TSOs only conduct administrative searches
and do not have such powers, they are not subject to the law
enforcement proviso, and the Government’s sovereign
immunity bars this action.
A. Interpretation of the Law Enforcement
Proviso
1. Text
As in all cases in which we interpret a statute, to
determine the scope of the phrase “investigative or law
enforcement officer”—meaning “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”—
under § 2680(h), “we look first to its language, giving the
words used their ordinary meaning,” Levin v. United States,
568 U.S. 503, 513 (2013) (quoting Moskal v. United States,
498 U.S. 103, 108 (1990)). In addition to the statutory
language at issue, we consider “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);
18
see also Abramski v. United States, 134 S. Ct. 2259, 2267
(2014) (explaining that courts must “interpret the relevant
words not in a vacuum, but with reference to the statutory
context, ‘structure, history, and purpose’” (quoting Maracich
v. Spears, 133 S. Ct. 2191, 2209 (2013))).10 With these
considerations in mind, we conclude that the law enforcement
proviso covers only criminal law enforcement officers.
To start, we find it important that the FTCA repeatedly
distinguishes between officers and employees. The FTCA
waives sovereign immunity for certain acts and omissions of
an “employee.” 28 U.S.C. § 1346(b)(1); see also id. § 2671
(“‘Employee of the government’ includes (1) officers or
employees of any federal agency . . . .”); id. § 2680(a)
(discretionary-function exception referring to “an employee”).
However, the law enforcement proviso refers not to
“employees,” but to “investigative or law enforcement
officers.” Id. § 2680(h) (emphasis added). The proviso again
uses that term in defining “investigative or law enforcement
officers” to mean any “officer” with the powers specified. Id.
Given that Congress used the word “officer” rather than
“employee” in the proviso, we are reluctant to interpret
“officer” in a way that would conflate those terms. See
10
See also United States v. Thornhill, 759 F.3d 299, 308
(3d Cir. 2014) (“In matters of statutory interpretation, the plain
meaning of statutory language is often illuminated by
considering not only the particular statutory language at issue,
but also the structure of the section in which the key language
is found, and the design of the statute as a whole and its object.”
(alterations omitted) (quoting United States v. Tupone, 442
F.3d 145, 151 (3d Cir. 2006))).
19
generally Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9
(2004) (referring to “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” (citation omitted)). This militates against
Amicus’s interpretation of this term, which is materially
indistinguishable from the word “employee.”11
We find additional support in the canon noscitur a
sociis, which “implements the idea that the meaning of a word
should be determined by considering the words with which it
is associated in context.” Flores v. Att’y Gen., 856 F.3d 280,
295 n.80 (3d Cir. 2017). Each of the powers listed in the law
enforcement proviso—“to execute searches, to seize evidence,
or to make arrests for violations of Federal law”—has criminal
law connotations. See, e.g., Hernandez v. United States, 34 F.
Supp. 3d 1168, 1179 (D. Colo. 2014) (“Each of these functions
are commonly understood to be traditional law enforcement
functions.”). For instance, “execute a search” is a phrase
11
The dissent suggests that we render the remainder of
the law enforcement proviso a nullity by interpreting
“investigative or law enforcement officer” to refer to criminal
law enforcement officers. To the contrary, our reading is the
one that gives meaning to both components of Congress’s
definition of “investigative or law enforcement officer”: a
person who is designated an “officer” and who performs
traditional criminal law enforcement functions. In any event,
it is not 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); 18 U.S.C.
§ 1515(a)(4).
20
typically used when a warrant is involved, see, e.g., 18 U.S.C.
§ 3109 (explaining when an officer may break a door or
window in order “to execute a search warrant”), and Congress
generally does not use this phrase when granting employees
the power to perform administrative searches, see, e.g., 29
U.S.C. § 657(a)(2) (providing that Occupational Safety and
Health Administration (OSHA) inspectors may “inspect and
investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a
reasonable manner, any such place of employment and all
pertinent conditions, structures, machines, apparatus, devices,
equipment, and materials therein”). The other powers—“to
seize evidence” and, especially, “to make arrests for violations
of Federal law”—also sound in criminal law. See, e.g., Arizona
v. Hicks, 480 U.S. 321, 326 (1987) (“It is well established that
under certain circumstances the police may seize evidence in
plain view without a warrant[.]” (emphasis added) (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971))). Each
of these phrases helps give meaning to the others, reinforcing
that the phrase “to execute searches” refers to the power to
search based on individualized suspicion, not merely to
conduct an administrative search, and that the term
“investigative or law enforcement officer” therefore means
those officers who perform criminal law enforcement
functions.12
12
Our dissenting colleague contends there is no need to
resort to canons of statutory construction because the text of
the proviso is plain and unambiguous. Would it were so.
Instead, our respective reasonable but divergent
interpretations, as well as the split among the district courts that
21
It is also significant that the law enforcement proviso
covers just a subset of the torts listed in the intentional tort
exception. While the intentional tort exception preserves
immunity for the torts of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, and interference with
have considered the matter, see infra note 25, attest to its
ambiguity. The dissent also posits specifically that the noscitur
a sociis canon is inapplicable because the statute is phrased in
the disjunctive, but even in that context, as the Supreme Court
observed in Jarecki v. G.D. Searle & Co., this canon is “often
wisely applied where a word is capable of many meanings in
order to avoid the giving of unintended breadth to the Acts of
Congress.” 367 U.S. 303, 307 (1961). There, considering the
phrase “exploration, discovery, or prospecting,” the Court
concluded that because “[t]he three words in conjunction . . .
all describe income-producing activity in the oil and gas and
mining industries,” “‘discovery’ . . . means only the discovery
of mineral resources.” Id. at 305, 307. And because those
terms shared a “core of meaning,” providing “a clue that it was
those industries Congress had in mind when it drafted the
provision,” the Court found noscitur a sociis “illuminating.”
Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel.
Wilson, 559 U.S. 280, 289 n.7 (2010) (discussing Jarecki).
Such is also the case here, where there is ambiguity as to
whether those who conduct TSA screenings are “officer[s] . . .
empowered by law to execute searches,” 28 U.S.C. § 2680(h),
and where interpreting that phrase to include such
administrative searches risks giving “unintended breadth” to
the law enforcement proviso, Jarecki, 367 U.S. at 307.
22
contract rights, the law enforcement proviso waives immunity
for only half of these—assault, battery, false imprisonment,
false arrest, abuse of process, and malicious prosecution. See
28 U.S.C. § 2680(h). In other words, the law enforcement
proviso waives immunity for the types of tort claims typically
asserted against criminal law enforcement officers, while
preserving immunity for other tort claims that are asserted
more broadly against federal employees. This further supports
our conclusion that the law enforcement proviso is designed to
cover only criminal law enforcement officers.
Our textual analysis is further buttressed by the fact that
the words to be defined here—“investigative or law
enforcement officer”—typically refer to 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.”). We have identified
only one other context in which Congress has used the phrase
“investigative or law enforcement officer.” That is the context
of criminal wiretapping and electronic tracking: The phrase is
repeated throughout Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, see 18 U.S.C. §§ 2510–2522, and
the Electronic Communications Privacy Act of 1986 (ECPA),
which amended Title III and added new provisions governing
“pen registers and trap and trace devices,” see 18 U.S.C.
§§ 3121–3127.13 Title III provides standards for when
13
In addition, 50 U.S.C. §§ 1809 and 1827 criminalize
unauthorized engagement in or disclosure of information from
electronic surveillance or physical searches under color of law,
but carve out an affirmative defense where the defendant is “a
law enforcement or investigative officer” who engaged in the
23
“investigative or law enforcement officers” may intercept and
use private communications, see generally Gelbard v. United
States, 408 U.S. 41, 46 (1972), and the ECPA does the same
for the use of pen registers and trap and trace devices. These
statutes concern the acquisition of evidence for purposes of
criminal law investigations, as Title III’s definition of
“investigative or law enforcement officer” makes clear:
“‘Investigative or law enforcement officer’ means any officer
of the United States or of a State or political subdivision
thereof, who is empowered by law to conduct investigations of
or to make arrests for offenses enumerated in this chapter, and
any attorney authorized by law to prosecute or participate in
the prosecution of such offenses.” 18 U.S.C. § 2510(7).14
surveillance in the course of his official duties and pursuant to
a warrant or court order. 50 U.S.C. §§ 1809(b), 1827(b).
14
In the Title III context, the Office of Legal Counsel
(OLC) has determined that the powers of an “investigative . . .
officer” are not coextensive with those of a “law enforcement
officer” but that both terms carry criminal law connotations.
To determine whether DOJ agents are “investigative or law
enforcement officers” per 18 U.S.C. § 2510(7), as required for
them to access communications intercepted under the statute,
the OLC noted that “the definition is phrased throughout in the
disjunctive—investigative or law enforcement officer,
empowered to conduct investigations or to make arrests.” 14
Op. O.L.C. 107, 108 (1990). Based on this disjunctive, the
OLC reasoned that “it seems plain that Congress intended the
term ‘investigative officers’ to be broad enough to include
officials who participate in investigations but do not have arrest
authority.” Id. In the same breath, however, the OLC
24
Likewise, while Congress has used the phrase “law
enforcement officer” much more frequently, the term
invariably refers to individuals who are involved in criminal
law enforcement. See, e.g., 12 U.S.C. § 248(q)(4) (defining
“law enforcement officers” for purposes of section authorizing
the Board of Governors of the Federal Reserve System to
designate personnel to protect bank premises, carry firearms,
and make arrests); 18 U.S.C. § 115(c)(1) (defining “[f]ederal
law enforcement officer” for purposes of statute criminalizing
efforts to impede, intimidate, or interfere with officials, judges,
and law enforcement officers); 18 U.S.C. § 1515(a)(4)
(defining “law enforcement officer” for purposes of witness-
tampering statute). We have not found any instance in which
this term covers an individual who performs only
administrative duties.15
While none of these various textual arguments is,
standing alone, dispositive, each points toward the same
conclusion: The law enforcement proviso covers only officers
who are engaged in criminal law enforcement.
emphasized the criminal law enforcement functions of the
investigative officers in question, stating that “the only
discussion in the legislative history of the term ‘investigative
officers’ indicates that the term encompasses all officers who
carry out any law enforcement duties relating to offenses
enumerated in [18 U.S.C. §] 2516.” Id. (emphasis added).
15
While we acknowledge, of course, that these words
do not necessarily hold the same meaning across statutes, the
regularity with which these words are used in the criminal law
context does bear on their meaning here.
25
2. Purpose
Our reading is also supported by our understanding of
Congress’s purpose in enacting the law enforcement proviso.
See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)
(“Interpretation of a word or phrase depends upon reading the
whole statutory text, considering the purpose and context of the
statute . . . .”); see also King v. Burwell, 135 S. Ct. 2480, 2496
(2015) (adopting the interpretation of a statute that “can fairly
be read consistent with what we see as Congress’s plan”).
Critically, interpreting “officer” to have a criminal law
component avoids an unprincipled expansion of the
Government’s waiver of sovereign immunity. Countless
federal employees are empowered to perform “searches.” The
Secretary of Commerce, for instance, may “make such
inspection of the books, records, and other writings and
premises and property of any person” whose activities relate to
weather modification, 15 U.S.C. § 330c(a); FDA inspectors
may make “examination and inspection of all meat food
products prepared for commerce in any slaughtering, meat-
canning, salting, packing, rendering, or similar establishment”
and “shall have access at all times, by day or night, whether the
establishment be operated or not, to every part of said
establishment,” 21 U.S.C. § 606(a); and EPA employees may
enter establishments where hazardous wastes “have been
generated, stored, treated, disposed of, or transported from”
and “inspect and obtain samples” of any such wastes, 42
U.S.C. § 6927(a).16 Drug tests also constitute searches under
16
See also 21 U.S.C. § 880 (authorizing entry of
premises and inspection of finished and unfinished drugs,
chemicals, and other substances and materials); 42 U.S.C.
26
the Fourth Amendment. See, e.g., Nat’l Treasury Emps. Union
v. Von Raab, 489 U.S. 656, 665 (1989); Skinner v. Ry. Labor
Execs.’ Ass’n, 489 U.S. 602, 616–17 (1989). In short, reading
the proviso to include administrative searches would sweep
into its ambit large swaths of the federal workforce, producing
an unprecedented expansion of the United States’ tort liability.
While Amicus expressly argued that these types of employees
should be covered by the law enforcement proviso, see
Corrected Tr. of Oral Arg. at 8:3–9:10, we will not impute to
Congress so significant a waiver of sovereign immunity
without far more explicit evidence of its intent, see King, 135
S. Ct. at 2494 (rejecting a proposed interpretation of a statutory
scheme because “[i]t is implausible that Congress meant the
Act to operate in this manner”).
3. Legislative History
Legislative history cannot overcome the clear language
of a statute, but it can “play a confirmatory role in resolving
ambiguity when statutory language and structure support a
given interpretation.” G.L. v. Ligonier Valley Sch. Dist. Auth.,
802 F.3d 601, 621–22 (3d Cir. 2015); see also Catwell v. Att’y
Gen., 623 F.3d 199, 208 (3d Cir. 2010). Here, the legislative
history of the law enforcement proviso confirms our
interpretation of the text.
§ 263b(g) (authorizing entry and inspection of mammography
facilities); 42 U.S.C. § 5413 (authorizing entry and inspection
of factories and warehouses where manufactured homes are
manufactured, stored, or held for sale); 42 U.S.C. § 7414(a)(2)
(authorizing entry and inspection of premises of any person
who owns or operates an emission source).
27
Of particular note, Congress contemporaneously
considered three bills to amend the broad immunity preserved
by the intentional tort exception—S. 2558, 93d Cong. (1973);
H.R. 8245, 93d Cong. (1973); and H.R. 10439, 93d Cong.
(1973)—with Members referring regularly to the other bills as
each was debated. Two of the bills (S. 2558 and H.R. 10439)
waived sovereign immunity for the specified intentional torts
for all federal employees. Only one—H.R. 8245—limited the
waiver of immunity to “investigative or law enforcement
officers.” H.R. 8245 was the bill eventually signed into law,
codifying the law enforcement proviso in its present form. See
Act of March 16, 1974, Pub. L. No. 93-253, 88 Stat. 50(codified at 28 U.S.C. § 2680(h)). See generally John C. Boger
et al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497,
510–17 (1976).
Three other aspects of the legislative history also reflect
Congress’s intention to limit the proviso to criminal law
enforcement officers. First, Congress was spurred to action by
two ill-conceived raids conducted by federal narcotics agents
in Collinsville, Illinois. In these raids, the agents, acting
without warrants, kicked in doors without warning, drew
weapons, and terrorized the residents, only to determine later
that they had entered the wrong houses. As one committee
report stressed, “[t]here is no effective legal remedy against the
Federal Government for the actual physical damage, mu[ch]
less the pain, suffering and humiliation to which the
Collinsville families have been subjected.” S. Rep. No. 93-
588, at 2 (1973), as reprinted in 1974 U.S.C.C.A.N. 2789,
2790. Members of Congress returned again and again to the
problem of these “no knock” raids and the need to create a
meaningful remedy for the victims. See, e.g., 120 Cong. Rec.
28
5287 (1974) (statement of Rep. Wiggins) (“I believe the
Members ought to realize that this Senate amendment was an
emotional response to the unfortunate Collinsville case . . . .”).
Thus, the driving concern behind the enactment of H.R. 8245
was the potential for abuse of the devastating powers wielded
by criminal law enforcement.
Second, Members of Congress explicitly discussed the
fact that H.R. 8245, unlike the other bills, would not cover
federal employees who perform administrative searches.
Some observed that H.R. 8245 “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 bills that waived immunity for all
federal employees, lamented that H.R. 8245, by limiting the
waiver to “investigative or law enforcement officers,” would
provide no remedy for assaults committed by those who
perform only administrative searches:
I can give you an illustration. We have
Department of Agriculture investigators who go
into look at books and records. We have Defense
Department auditors to look at books and
records. I can see where we can get in a dispute
where records should be shown or not shown and
a report shown by mistake and the contractor
takes it away and says you shouldn’t have seen
that and some sort of assault occurs. The assault
may not be intentionally inflicted to create any
more damage than to keep him away. He may
trip over backward and hit his head and fracture
his skull and even die. They are not law
29
enforcement officers even under this definition.
They don’t qualify.
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] (statement of Irving Jaffe,
Acting Assistant Att’y Gen.); see also id. at 15 (statement of
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.”).
Third, when the drafters selected for the proviso what
they characterized as “the types of tort[s] most frequently
arising out of activities of Federal law enforcement officers,”17
they selected those torts (assault, battery, false imprisonment,
false arrest, abuse of process, and malicious prosecution)
typically claimed against traditional law enforcement officers
performing criminal law functions.
The criminal law boundaries of the law enforcement
proviso are also reinforced by the legislative history of a related
statutory provision that incorporates the proviso: 31 U.S.C.
§ 3724. That section authorizes the Attorney General to settle,
for up to $50,000, claims brought specifically against an
“investigative or law enforcement officer as defined in [the law
17
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).
30
enforcement proviso of] section 2680(h) . . . who is employed
by the Department of Justice acting within the scope of
employment.” 31 U.S.C. § 3724(a).18 As originally drafted,
§ 3724 was written to cover the settlement of claims arising
from the actions of “any officer or employee of the Federal
Bureau of Investigation or other law enforcement component
of the Department of Justice.” H.R. Rep. No. 101-46, at 7–8
(1989) (emphasis added). But Brent Hatch, Deputy Assistant
Attorney General of the DOJ Civil Division, testified that this
language was “too vague,” as it might then apply to “the
litigating arms of the Antitrust Division or of the Civil Rights
Division, for example,” whose functions “are aimed at the
enforcement of the law.” Id. at 8. According to Hatch, “the
intent of the bill is narrower” and thus would be better captured
by the FTCA language allowing compensation for certain
injuries caused by “investigative or law enforcement officers.”
Id. Congress proceeded to adopt this construction.19
18
An almost identical, subsequently enacted provision
permits the Treasury Secretary to settle claims for damage or
loss caused by “an investigative or law enforcement officer
. . . who is employed by the Customs Service and acting within
the scope of his or her employment.” 19 U.S.C. § 1630.
19
The dissent discounts the corroborative value of
§ 3724’s legislative history because it reflects that personnel
such as “a DEA Agent, . . . a Border Patrolman, or a Deputy
Marshal” who also perform administrative searches are not
insulated from the proviso’s scope. Dissent at 45 (quoting H.R.
Rep. No. 101-46, at 7). However, the fact that traditional
criminal law enforcement officers may also have occasion to
perform administrative searches does not alter the fact that they
31
In sum, the legislative history of the proviso, as well as
§ 3724, fortifies our conclusion that Congress was focused on
violations caused during criminal law enforcement activities
and intentionally designed a remedy for those violations.
4. Case Law
Our interpretation of the law enforcement proviso is
also consistent with our case law and that of other Courts of
Appeals.
In Matsko v. United States, 372 F.3d 556 (3d Cir. 2004),
for example, we categorically excluded classes of employees
from the law enforcement proviso. There, the plaintiff filed an
FTCA action concerning injuries he sustained when a Mine
Safety and Health Administration (MSHA) inspector slammed
his face into a briefcase lying on a desk and asserted that “his
claim fit[] within the FTCA’s special treatment of assaults by
investigative or law enforcement officers.” Id. at 560. We first
observed that the law enforcement proviso did not apply
because the mine inspector did not commit the torts in the
course of executing a search, seizure, or arrest, as we
previously required under Pooler v. United States, 787 F.2d
868, 872 (3d Cir. 1986). But we went on to explain that, even
if Pooler was incorrectly decided, the mine inspector was not
an “investigative or law enforcement officer” for the
independent reason that “employees of administrative
agencies, no matter what investigative conduct they are
are empowered to conduct criminal law enforcement functions
and in no way casts doubt on the textual and historical reasons
to believe that § 2680(h) and § 3724 exclude from their reach
those who perform only administrative searches.
32
involved in, do not come within the § 2680(h) exception.”
Matsko, 372 F.3d at 560. In support of this conclusion, we
cited EEOC v. First National Bank of Jackson, 614 F.2d 1004,
1007–08 (5th Cir. 1980), in which, we explained, the Fifth
Circuit had refused “to apply the exception to an Equal
Employment Opportunity Commission agent,” Matsko, 372
F.3d at 560.
Matsko remains the law of this Circuit20 and reflects the
line we have drawn, in construing the law enforcement proviso,
between administrative personnel performing solely
administrative functions and those—whether employed by an
administrative agency or a law enforcement agency—
expressly designated law enforcement officers or assigned law
enforcement duties. Indeed, the MSHA inspector in Matsko
had “authority to inspect mines and investigate possible
violations,” id., just as the EEOC agent in First National Bank
of Jackson had “access to, for the purpose of examination, and
20
In Millbrook v. United States, 569 U.S. 50 (2013), the
Supreme Court abrogated Pooler, holding that the torts
covered by the proviso were not restricted to those committed
during the course of a search, seizure, or arrest. Id. at 57. The
Government there conceded that the named federal officers
constituted “investigative or law enforcement officers,” id. at
55 n.3, so the question before the Court was when a tort
committed by such an officer would fall within the proviso and
the Court did not have occasion to address who meets the
definition of an “investigative or law enforcement officer,” see
id. Millbrook thus does nothing to disturb our conclusion in
Matsko that employees of administrative agencies do not meet
that definition.
33
the right to copy any evidence of any person being investigated
or proceeded against that relates to unlawful employment
practices,” 614 F.2d at 1007–08 (citation omitted). Those
employees were authorized to conduct administrative searches,
but because their jobs did not include criminal law enforcement
responsibilities, they were considered to fall outside the law
enforcement proviso.21
That approach is also consistent with decisions of other
Courts of Appeals, which have treated only those performing
criminal 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 (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,
21
As discussed in more detail below, in Vanderklok, we
reiterated this distinction, relying on the ATSA’s separate
designation of “employees” and “law enforcement officers” to
conclude that “TSA employees typically are not law
enforcement officers and do not act as such.” 868 F.3d at 208.
Although we were assessing there only whether TSOs were
law enforcement officers for purposes of Bivens claims, we
expressly recognized the cabined authority of TSOs, in contrast
with the more expansive powers of law enforcement officers.
See id. at 208–09.
34
879 (D.C. Cir. 1982) (per curiam), Immigration and
Naturalization Service (INS) agents, see Caban v. United
States, 671 F.2d 1230, 1234 (2d Cir. 1982), FBI agents, see
Brown v. United States, 653 F.2d 196, 198 (5th Cir. 1981), and
federal correctional officers, see Hernandez v. Lattimore, 612
F.2d 61, 64 n.7 (2d Cir. 1979). Each of those individuals
participates in criminal law enforcement.22
Likewise, in Bunch v. United States, the Seventh Circuit
recently held that there were genuine disputes of material fact
as to whether a Bureau of Alcohol, Tobacco, and Firearms
(ATF) forensic chemist fell within the proviso precisely
because the forensic chemist may have been an “ATF officer”
authorized to participate in criminal investigations under 18
U.S.C. § 846 and its implementing regulations, and his job
duties appeared to “include[] the identification of relevant
evidence for colleagues during crime-scene investigations.”
880 F.3d 938, 943, 945 (7th Cir. 2018). To be sure, that court
rejected the notion that “executing searches” is limited to
executing search warrants, id. at 945, and highlighted that the
22
While INS 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); cf.
Sessions v. Dimaya, 138 S. Ct. 1204, 1212–13 (2018) (plurality
opinion) (explaining that removal proceedings in some ways
resemble criminal actions); Mateo v. Att’y Gen., 870 F.3d 228,
232 (3d Cir. 2017) (same). 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.
35
proviso applies to both “investigative and law-enforcement
officers” who execute searches, id. at 944. But it relied on the
fact that ATF officers are authorized 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 it offered, as 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—i.e., searches conducted by criminal law enforcement
officers.
On the other hand, the Courts of Appeals have held that
the proviso does not cover positions that lack a criminal law
component. In First National Bank of Jackson, for example,
the Fifth Circuit refused to apply the proviso to EEOC agents,
explicitly 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 at 1007–
08 (citation omitted). Similarly, in Wilson v. United States, the
Second Circuit held that parole officers do not qualify. 959
F.2d 12, 15 (2d Cir. 1992) (per curiam). While acknowledging
that parole officers have limited authority to seize evidence, the
court determined that because that power “depends on the
consent of the person from whom the evidence is to be taken,
however, parole officers lack the seizure power contemplated
by section 2680(h), and thus cannot be considered law
enforcement personnel.” Id. The Courts of Appeals have also
concluded that the law enforcement proviso does not cover
federal prosecutors, see Moore, 213 F.3d at 710, security
36
guards, see Solomon, 559 F.2d at 310, or doctors at a VA
hospital, see Johnson v. United States, 547 F.2d 688, 691 (D.C.
Cir. 1976) (per curiam). In short, consistent with Matsko, our
Sister Circuits have consistently interpreted the proviso to
include federal officers who are involved in criminal law
enforcement and to exclude federal employees who are not.23
* * *
Based on these various indicia of meaning—the law
enforcement proviso’s text, structure, context, purpose, and
history, as well as relevant case law—we are persuaded that
the phrase “investigative or law enforcement officers” refers
only to criminal law enforcement officers, not to federal
employees who conduct only administrative searches.
23
Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979),
abrogated on other grounds by Sosa, 542 U.S. 692, is not to
the contrary. In that case, the D.C. Circuit was asked to
determine whether the Chief of the United States National
Central Bureau was covered by the law enforcement proviso
notwithstanding the fact that his “present duties d[id] not
involve frontline law enforcement work.” Id. at 764. He was,
the court concluded, because his position was unquestionably
that of a criminal law enforcement officer: He was classified
as a “criminal investigator[]” and the Government had
stipulated that he served in a position that could be staffed by
only “trained law enforcement personnel.” Id.37
B. The Proviso’s Application to TSA Screeners
Given our holding as to the scope of the proviso, we
have little difficulty concluding it does not cover TSA
screeners. No Court of Appeals has yet decided the question
precedentially,24 and district courts have reached different
conclusions.25 However, as indicated in Vanderklok,
confirmed in the ATSA (the TSA’s founding statute), and
demonstrated in practice, TSA screeners conduct only
administrative searches, are not criminal law enforcement
officers, and thus do not qualify as “investigative or law
enforcement officers” under the FTCA.
As a starting point, we draw valuable guidance from
Vanderklok. As we explained there, “TSA employees typically
are not law enforcement officers and do not act as such.”
Vanderklok, 868 F.3d at 208. Underpinning that rationale was
24
See Corbett v. Transp. Sec. Admin., 568 F. App’x 690,
701 (11th Cir. 2014) (per curiam) (holding that the law
enforcement proviso does not cover TSA screeners). Pursuant
to 11th Cir. R. 36-2, unpublished opinions of the Eleventh
Circuit “may be cited as persuasive authority.”
25
Compare, e.g., Hernandez, 34 F. Supp. 3d at 1182
(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).
38
our prior case law upholding TSA screenings as permissible
suspicionless checkpoint searches under the administrative
search doctrine. See George, 738 F.3d at 577; United States v.
Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006). Against that
backdrop, we explained that TSA screeners have limited
authority: “[T]hey are instructed to carry out administrative
searches and contact local law enforcement if they encounter
situations requiring action beyond their limited though
important responsibilities.” Vanderklok, 868 F.3d at 209.
Reinforcing the distinction we recognized in
Vanderklok, the ATSA frequently distinguishes between
“employees” who conduct administrative searches and “law
enforcement officers.” For example, it specifies that the
“screening[s]” conducted by TSOs “shall be carried out by a
Federal Government employee (as defined in section 2105 of
title 5, United States Code).” 49 U.S.C. § 44901(a).26 This is
26
We recognize that 5 U.S.C. § 2105 defines
“employee” to cover both an “officer” and an individual who
has been appointed to civil service in a certain specified
manner. However, to be an “officer,” the individual must be
“required by law to be appointed in the civil service by . . . the
head of an Executive agency.” Id. § 2104(a)(1). As the parties
agreed at oral argument, TSA screeners are not appointed by
the head of an executive agency and are therefore not “officers”
under Title 5’s definition. See Corrected Tr. of Oral Arg. at
23:3–4. While the dissent correctly points out that § 2104 is
underinclusive in that a few categories of “investigative or law
enforcement officers” traditionally covered by the proviso are
not appointed by the head of an executive agency, we cannot
agree that we should therefore disregard the statutory
39
in contrast to 49 U.S.C. § 114(p), which permits the TSA
administrator to designate particular TSA employees as “law
enforcement officer[s]” empowered to “carry a firearm,”
“make an arrest,” and “seek and execute warrants for arrest or
seizure of evidence,” functions that squarely place them within
the law enforcement proviso.27 Those law enforcement
definition of “officer” or the distinction Congress has drawn
between “officers” and “employees.” We hew more closely to
Congress’s intention by acknowledging its definition and
including a small number of additional traditional criminal law
enforcement officers within the proviso than by setting that
definition aside entirely.
27
Although § 114(p) is phrased in the conjunctive while
the proviso is phrased in the disjunctive, § 114(p) remains
instructive in determining who constitutes a “law enforcement
officer” under the proviso because it reflects Congress’s own
distinction between TSA screeners and “law enforcement
officer[s]” in Title 49, which tracks its distinction between
“employees” and “officers” in the FTCA.
Other analogous statutes, such as that governing Postal
Inspectors, likewise preserve the text-based distinction
between regular employees and officers by separately
denominating the law enforcement arm of the agency. See,
e.g., 18 U.S.C. § 3061(a) (discussing “Postal Inspectors and
other agents of the United States Postal Service designated by
the Board of Governors to investigate criminal matters”). We
note too that Congress has expressly provided that certain
employees qualify as “investigative or law enforcement
officers” where their classification as such might otherwise be
uncertain, such as personnel designated by the Secretary of the
40
officers are required to be stationed throughout airports to
support TSOs and fulfill precisely those functions that TSOs
have neither the authority nor the expertise to fulfill. See id.§ 44901(h); 49 C.F.R. § 1542.215. Such distinctions between
TSOs and law enforcement officers recur throughout the
statute. Compare 49 U.S.C. § 114(e)(2) (providing that the
Under Secretary is responsible for “hiring and retention of
security screening personnel”), id. § 44901(a) (explaining that
screenings will be performed by an “employee”), id.
§ 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
Under Secretary to deputize “State and local law enforcement
officers”).
Despite this clear statutory distinction, Amicus argues
that TSOs must qualify as “law enforcement officers” because
of their title—they are “transportation security officers”—and
because they wear a badge that labels them as “officers.” We
are not persuaded that the word “officer” has this talismanic
property, and it would be surprising indeed if such a superficial
Interior and the Secretary of Commerce to enforce federal laws
relating to fish and wildlife, who qualify as “investigative or
law enforcement officers” for FTCA purposes under the
express terms of their authorizing statute. See 16 U.S.C.
§ 742l(b). Congress made no such provision in the ATSA for
TSA screeners.
41
gloss were sufficient to trigger a waiver of federal sovereign
immunity. There are many jobs that have the word “officer”
in the title, such as “chief executive officer” or “title officer,”
but they unquestionably are not “investigative or law
enforcement officer” positions. On the other hand, other jobs,
like “special agent” or “postal inspector,” do not have the word
“officer” in the title, but they nonetheless qualify as
“investigative or law enforcement officer” positions. Indeed,
Amicus’s argument, if anything, cuts the other way, for as we
noted previously, TSOs were originally called “screeners,” and
their title was changed in 2005 merely as part of an effort to
improve employee incentives and “upward mobility
opportunities within [the] profession.”28 Specifically, it
appears that the title change and related adjustments were
intended to “give TSOs an opportunity to . . . apply for DHS
law enforcement positions”—further undermining the notion
that TSOs already constitute a species of law enforcement
officer. U.S. Gov’t Accountability Office, GAO-07-299,
Aviation Security 56 (2007) (emphasis added). Thus, neither
the TSO title nor the badge (which TSOs apparently began
wearing two years after the conduct at issue in this case, see
Press Release, Transp. Sec. Admin., supra note 28) speaks to
28
Screening Hearing at 7 (statement of Edmund “Kip”
Hawley, Assistant Secretary, Transportation Security
Administration); 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.
42
the nature of the position or the scope of the accompanying
authority.
The statutory distinction between TSOs and law
enforcement officers is also meaningful as a matter of practice,
as demonstrated by TSA Management Directive No. 100.4
(Sept. 1, 2009), filed by Pellegrino, entitled “Transportation
Security Searches.” That directive separately defines “law
enforcement officer,” “TSA law enforcement officer,” and
“transportation security officer,” and it stresses the limits of the
authority of a “transportation security officer”: TSOs may not
perform screenings for the purpose of “detect[ing] evidence of
crimes unrelated to transportation security.” Id. ¶¶ 4, 6.A(4).
If a TSO does discover such evidence, he or she is required to
alert a supervisor or a law enforcement official. The TSO can
“request[]” the individual to wait for law enforcement to arrive,
but the individual is nevertheless “free to leave the checkpoint
once applicable screening requirements have been completed
successfully.” Id. ¶ 6.A(4). By contrast, “TSA law
enforcement officers,” and only “TSA law enforcement
officers,” may engage in law enforcement activities, including
investigations, detentions, and searches that “are not limited to
administrative or special needs searches.” Id. ¶ 6.D.
Recognizing that TSA screeners conduct
administrative, not criminal searches thus not only respects the
distinction Congress has made between “employees” and “law
enforcement officers” in the FTCA, it also reflects the different
job responsibilities and training of TSA “screeners” and “law
enforcement officers” prescribed by the ATSA and agency
policy. As we explained in Vanderklok, unlike criminal law
enforcement officers, “line TSA employees are not trained on
issues of probable cause, reasonable suspicion, and other
constitutional doctrines that govern law enforcement officers.”
43
868 F.3d at 208. Put differently, TSOs, like most
administrative employees, do not receive training on the
specific constitutional doctrines and legal standards relevant to
assault, battery, false imprisonment, false arrest, abuse of
process, and malicious prosecution—the torts covered by the
law enforcement proviso. And that follows logically from the
fact that doctrines like probable cause, as we described in
Vanderklok, while of central importance to criminal law
enforcement officers, are largely irrelevant to a TSO’s job.
Acknowledging that TSOs are not law enforcement officers
under the proviso has the added value of maintaining this
practical coherence.
Although all of these indicators—our case law, the
TSA’s governing statute, and agency policy and practice—
confirm that TSOs conduct only routine administrative
searches, the dissent argues that TSA screenings constitute
“searches for violations of federal law because they are
directed to illegal and prohibited items on passenger aircraft.”
Dissent at 13. But the fact that screenings are searches for
prohibited items only points up why they are not searches “for
violations of federal law”: Screenings are aimed at items that
must be removed before boarding—not at particular
individuals—and their purpose is “an administrative purpose,
namely, to prevent the carrying of weapons or explosives
aboard aircraft, and thereby to prevent hijackings,” United
States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc)
(quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir.
1973))—not to gather evidence of a crime with an eye toward
44
criminal prosecution.29 Although a screening might prompt a
TSO to refer an individual to criminal authorities for such
investigation and prosecution where that administrative search
happens to turn up evidence of a crime, screenings themselves
are not conducted for that purpose and we could not have
upheld them in Hartwell under the administrative search
doctrine as suspicionless checkpoint searches if they were. See
City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000) (“We
have never approved a checkpoint program whose primary
purpose was to detect evidence of ordinary criminal
wrongdoing.”); see also Florida v. Harris, 568 U.S. 237, 243
(2013) (explaining that a police officer must have probable
cause to conduct a search for “contraband or evidence of a
crime”).
Nor are we persuaded that airport screenings are so
distinct from other administrative searches that they should be
treated differently under the proviso. The dissenting opinion
29
Moreover, most of the prohibited items for which
TSOs search are perfectly legal to possess in other contexts.
See What Can I Bring?, Transp. Sec. Admin., https://
www.tsa.gov/travel/security-screening/whatcanibring/all (last
visited July 6, 2018). 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, Transp. Sec. Admin.,
https://www.tsa.gov/sites/default/files/enforcement_sanction_
guidance_policy.pdf (last visited July 6, 2018); see also 49
C.F.R. § 1503.401.
45
contends that because TSA screeners are uniquely empowered
by 49 U.S.C. § 44901(g)(5) to conduct “a physical search
together with manifest verification,” the searches they conduct,
unlike most administrative searches, are indistinguishable
from Terry stops conducted by traditional criminal law
enforcement officers. That offers a basis, according to the
dissent, to bring TSA screeners within the proviso without
sweeping in all other employees who conduct administrative
searches.
The problem with this approach is that it mistakes the
subject matter of § 44901(g)(5) and is inconsistent with our
precedent. For its part, § 44901(g)(5) does not authorize TSOs
to conduct physical searches of passengers. Instead, that
provision exclusively addresses searches of cargo. See 49
U.S.C. § 44901(g)(1). And while a TSO’s “[s]creening of
individuals and property” can include “the inspection of
individuals, accessible property, checked baggage, and cargo,”
49 C.F.R. § 1546.207(a), a pat-down conducted as part of a
screening is not analogous to a Terry stop. Terry stops require
reasonable, articulable suspicion, see Terry v. Ohio, 392 U.S.
1, 30 (1968), and are directed to specific individuals; TSA
screenings are not. As we observed in the analogous context
of border searches, “patdowns, frisks, [and] luggage searches”
in connection with screenings for entry are “routine” and
“involv[e] neither a high expectation of privacy nor a seriously
invasive search.” United States v. Whitted, 541 F.3d 480, 485–
86 (3d Cir. 2008). And as we explained in Hartwell—
specifically addressing TSA screenings—such screenings are
required of “every air passenger” and are “minimally
intrusive,” “public,” and “well-tailored to protect personal
privacy.” 436 F.3d at 180. These screenings, we emphasized,
“escalat[e] in invasiveness only after a lower level of screening
46
disclose[s] a reason to conduct a more probing search,” so that
even screenings that escalate to a pat-down may be properly
categorized by their character at the outset as a “single search
under the administrative search doctrine.” Id. at 178, 180. In
view of this precedent, categorizing passenger screenings up to
and including pat-downs as routine administrative searches,
the dissent’s logic could not be cabined to TSA screeners, but
instead would extend inexorably to all federal employees who
perform administrative searches.30
In sum, as the delineated duties of TSOs make clear, and
as is the case with many federal agencies, there is a clear
division between the criminal law enforcement and non-
criminal law enforcement arms of the TSA. TSOs—like meat
inspectors, OSHA workers, and other personnel who are
permitted to perform only administrative searches—fall into
the latter category and thus do not qualify as “investigative or
law enforcement officers” under the law enforcement proviso
of the FTCA. Because the proviso does not apply, Pellegrino’s
intentional tort claims are barred by § 2680(h)’s intentional tort
30
Even the dissent seems to acknowledge as much when
it posits that “‘search’ in § 2680(h) is synonymous with the
term ‘search’ as used in the Fourth Amendment,” Dissent at
16, and derives from general dictionary definitions that “any
officer of the United States” must mean anyone “charged with
administering and maintaining the law” or “appointed or
elected to serve in a position of trust, authority, or command,”
Dissent at 25–26 (quoting Officer, Webster’s Third New
International Dictionary (1971)).
47
exception, and the District Court correctly dismissed those
claims based on the United States’ sovereign immunity.31
* * *
We recognize that our holding here, combined with our
decision in Vanderklok, means that individuals harmed by the
intentional torts of TSOs will have very limited legal redress.32
31
Typically, we construe a waiver of sovereign
immunity strictly and “in favor of the sovereign.” Lightfoot v.
United States, 564 F.3d 625, 628 (3d Cir. 2009). We are
mindful that the Supreme Court has directed courts not to apply
this general rule in interpreting exceptions to the waiver of
immunity. See, e.g., Dolan, 546 U.S. at 492. Here, however,
we are dealing with an exception to an exception, which
arguably supports reverting to the general rule of strict
construction. See Foster v. United States, 522 F.3d 1071, 1079
(9th Cir. 2008) (applying this analysis). To the extent Dolan
does apply to an exception to an exception, it directs us “to
identify ‘those circumstances which are within the words and
reason of the exception’—no less and no more.” 546 U.S. at
492 (quoting Kosak v. United States, 465 U.S. 848, 853 n.9
(1984)). It does not, as the dissent asserts, suggest that the
language should be interpreted against the Government. In any
event, we need not and do not here decide whether to construe
the language in favor of the Government; we merely flag this
issue as a reminder of the significant interests involved when
the federal treasury is at stake.
32
Counsel for the Government asserted at oral argument
that the United States could, in appropriate cases, refuse to
insulate a TSO from liability by declining to certify under the
48
And we are sympathetic to the concerns this may raise as a
matter of policy, particularly given the nature and frequency of
TSOs’ contact with the flying public. For most people, TSA
screenings are an unavoidable feature of flying, 49 U.S.C.
§ 44901(a), and they may involve thorough searches of not
only the belongings of passengers but also their physical
persons—searches that are even more rigorous and intimate for
individuals who happen to be selected for physical pat-downs
after passing through a metal detector or imaging scanner. For
these reasons, Congress may well see fit to expand the proviso
or otherwise legislate recourse for passengers who seek to
assert intentional tort claims against TSOs. But such policy
judgments, particularly as they relate to sovereign immunity
and the public fisc, fall squarely in the realm of the legislative
branch. Because Congress to date has limited the proviso to
“investigative or law enforcement officers” and TSOs do not
meet that definition, we will affirm the dismissal of
Pellegrino’s FTCA claims.
V. Analysis of Other Claims
We will also affirm the District Court’s judgment as to
Pellegrino’s remaining claims. As for her other FTCA claims,
“[t]he Federal Tort Claims Act [] bars actions against the
United States for . . . defamation,” Brumfield v. Sanders, 232
F.3d 376, 382 (3d Cir. 2000), and Pennsylvania law forecloses
the rest, see Molzof v. United States, 502 U.S. 301, 305 (1992)
(“[T]he extent of the United States’ liability under the FTCA
Westfall Act that the TSO was acting within the scope of her
employment. See Corrected Tr. of Oral Arg. at 30:6–12; see
also 28 U.S.C. § 2679(d)(1), (2); Osborn v. Haley, 549 U.S.
225, 229–30 (2007).
49
is generally determined by reference to state law.”). That is
because, under Pennsylvania law, “recovery for the tort of
intentional infliction of emotional distress [has been] reserved
by the courts for only the most clearly desperate and ultra
extreme conduct,” Hoy v. Angelone, 720 A.2d 745, 754 (Pa.
1998), and a claim for negligent infliction of emotional distress
is restricted to four scenarios, see Toney v. Chester Cty. Hosp.,
961 A.2d 192, 197–98 (Pa. Super. Ct. 2008), none of which is
present here.33
Nor did the District Court err in rejecting Pellegrino’s
Bivens claims of retaliatory prosecution under the First
Amendment and malicious prosecution under the Fourth
Amendment.34 Vanderklok itself forecloses the retaliatory
prosecution claim, see 868 F.3d at 209, and the same “special
factors” that we observed there counseled against implying a
Bivens claim—that TSA screeners are part of the national-
33
These factual scenarios are as follows: “(1) situations
where the defendant had a contractual or fiduciary duty toward
the plaintiff; (2) the plaintiff was subjected to a physical
impact; (3) the plaintiff was in a zone of danger, thereby
reasonably experiencing a fear of impending physical injury;
or (4) the plaintiff observed a tortious injury to a close
relative.” Toney, 961 A.2d at 197–98.
34
We do not address the second issue that we asked
Amicus to brief—whether the FTCA’s judgment bar precludes
these Bivens claims—because the parties agree that it has since
been resolved by the Supreme Court, which has ruled that the
bar does not apply in these circumstances. See Simmons v.
Himmelreich, 136 S. Ct. 1843, 1847–48 (2016).
50
security system and protect the public safety, Congress should
be the body to recognize new causes of action, and TSA
screeners are not trained on the issues of probable cause that
serve as the foundation of a retaliatory prosecution claim, id. at
206–09—apply with equal force to Pellegrino’s claim of
malicious prosecution, see, e.g., McKenna v. City of
Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (explaining that
a malicious prosecution claim requires showing that
prosecution was initiated without probable cause).35
Pellegrino’s FOIA claims also fail. In response to
Pellegrino’s FOIA request,36 the TSA identified 375 pages of
responsive documents, and withheld 90 of them, primarily on
the ground that they were privileged and thus subject to
Exemption 5 of FOIA. See 5 U.S.C. § 552(b)(5); Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
8 (2001). We perceive no error in the District Court’s
conclusion that the TSA conducted an adequate search and that
35
This also disposes of Pellegrino’s Bivens conspiracy
and aiding-and-abetting claims. See Black v. Montgomery
County, 835 F.3d 358, 372 n.14 (3d Cir. 2016) (“Because the
District Court reasoned that [the appellant] could not succeed
on her underlying Fourth Amendment malicious prosecution
or Fourteenth Amendment due process claims, it correctly
determined that she could not succeed on her conspiracy
claims.”).
36
Pellegrino requested copies of “all records, reports,
follow-up requests, etc., from any TSA office containing her
name, Nadine Pellegrino Waldman[,] that was initiated by any
TSA officer, official, investigator, or personnel.” Gary Decl.
¶ 4, D.Ct. Dkt. No. 232; see 5 U.S.C. § 552(a)(3)(A).
51
the documents it withheld were indeed exempt from
production. The TSA’s declaration attested to extensive
searches, confirmed by the production of hundreds of
responsive documents. And the District Court conducted an in
camera review of the documents withheld and made its own
finding that they fell within FOIA’s exemption. Pellegrino has
identified no basis to disturb those rulings.
We are also unpersuaded that the District Court abused
its discretion with respect to any of the case management
orders challenged by Pellegrino. It was under no obligation to
give Pellegrino an additional extension of time to file still more
material when it had already granted her an extension of time
to file her motion for reconsideration and response to the
Government’s motion for reconsideration, and Pellegrino had
then filed a motion spanning hundreds of pages. Nor did it err
in denying Pellegrino leave to amend her complaint yet again
when the case had been ongoing for two years and Pellegrino
had already amended three times. See generally Airborne
Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663,
666–67 (7th Cir. 2007).
As for the sealing orders, the documents subject to the
first sealing order were filed under seal as Pellegrino requested,
and the Court reasonably refused to issue a second sealing
order to permit Pellegrino to file previously available evidence
in support of her motion for reconsideration. See, e.g., Max’s
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999). And while Pellegrino argues that she
needed to depose additional witnesses who were not made
available to her, she has not established that this limitation
prejudiced her in any way. See Anderson v. Wachovia Mortg.
Corp., 621 F.3d 261, 281 (3d Cir. 2010) (explaining that a
52
discovery order will not be disturbed “absent a showing of
actual and substantial prejudice”).37
In sum, the District Court dedicated an enormous
amount of time and care to this case and its rulings were well
within the broad scope of its discretion.
VI. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
37
To the extent that Pellegrino challenges the District
Court’s disposition of her claims under 42 U.S.C. § 1985(3),
the APA, or the Privacy Act, we have reviewed the District
Court’s analysis and discern no error.
53
Nadine Pellegrino, et al. v. TSA, et al.
No. 15-3047
_________________________________________________
AMBRO, Circuit Judge, dissenting
The Federal Government is typically immune from
suit. The Federal Tort Claims Act, 28 U.S.C. § 1346(b),
waives the Government’s immunity for certain torts
committed by Government 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.”
Nadine Pellegrino relies on § 2680(h) to recover
against Transportation Security Officers (“TSOs”) who, she
alleges, detained her, damaged her property, and fabricated
charges against her. Pellegrino contends TSOs fit fully
within its purview because they are legally empowered to
conduct searches of all passengers and property before
boarding commercial flights originating in the United States.
Consequently, she argues her intentional-tort claims should
proceed to trial.
Although there is scant textual basis for denying
Pellegrino’s claims, my colleagues hold that TSOs are
immune from suit because they deem § 2680(h)’s waiver of
immunity to include only criminal law enforcement officers.
They equate airport screenings with routine administrative
inspections, even though the former involve rigorous and
thorough searches that often extend to an individual’s
physical person. Their opinion leaves several plaintiffs
without a remedy, even if a TSO assaults them, wrongfully
detains them, or fabricates criminal charges against them. I
1
do not believe this is what Congress intended when it drafted
§ 2680(h) or pertinent Transportation Security Administration
(“TSA”) statutes.
While I agree with my colleagues’ reasoning on other
points, I do not agree that § 2680(h) solely refers to criminal
law enforcement officers. Instead, it applies to “any officer”
who has legal authority to “execute searches . . . for violations
of Federal law.” TSOs may by law execute searches, as they
must screen “all passengers and property, including United
States mail, cargo, carry-on and checked baggage, and other
articles, that will be carried aboard a passenger aircraft
operated by an air carrier or foreign air carrier in air
transportation or intrastate air transportation.” 49 U.S.C.
§ 44901(a). The statute and its implementing regulations
further define screening to include “a physical search
together with manifest verification,” id. § 44901(g)(5)
(emphasis added), and “the inspection of individuals,
accessible property, checked baggage, and cargo,” 49 C.F.R.
§ 1546.207(a). Hence TSOs are covered by § 2680(h)’s
definition of investigative or law enforcement officer based
on its explicit language.
Even if we assume the definition is ambiguous, the
result is the same. TSOs are liable under § 2680(h) because
the Supreme Court has instructed us to interpret the Federal
Tort Claims Act broadly in favor of waiving the
Government’s immunity against suit. See Dolan v. U.S.
Postal Serv., 546 U.S. 481, 491-92 (2006). Thus I would
reverse the District Court’s ruling as to § 2680(h) and allow
Pellegrino’s false arrest, false imprisonment, and malicious
prosecution claims to proceed to trial.
2
I. Background Matters
A. Factual Background
For ease of reference, I restate the facts as I understand
them. On July 29, 2006, Pellegrino and her husband Harry
Waldman arrived at the Philadelphia International Airport to
board a flight home to Florida. After she passed through the
security checkpoint, Pellegrino was randomly selected for
additional screening. TSO Thomas Clemmons began
examining her bags, but she stopped him, demanding a
private screening.
TSA employees subsequently led her to a private
screening room, where TSOs Nuyriah Abdul-Malik, Laura
Labbee, and Denise Kissinger conducted the screening.
Kissinger swabbed the front and back of Pellegrino’s shirt,
and Abdul-Malik screened her luggage. According to
Pellegrino, Abdul-Malik’s inspection was unduly rough
because she allegedly counted Pellegrino’s coins and
currency, rifled through her papers, 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. She claims Abdul-Malik did not close the lids to
various containers the latter opened, causing the previously
enclosed items to spill inside her bags and damage her
property. Pellegrino further contends Abdul-Malik punched,
jammed, and forced her belongings back into her luggage,
damaging it, her jewelry, and her eyeglasses in the process.
At that point in the search, Pellegrino informed
Labbee, the supervisor at the checkpoint, that she intended to
report the TSOs’ conduct to TSA superiors. After Abdul-
Malik had forcibly closed her luggage, Pellegrino also
demanded to know “what is going on here[;] both of you are
behaving like bitches.” In response to Pellegrino’s
3
comments, Abdul-Malik asked Labbee to call the police, but
the TSOs did not summon law enforcement to arrest
Pellegrino at that time. Instead, they continued searching her
luggage. Kissinger swabbed various shoes and clothing in
Pellegrino’s bag, and Abdul-Malik searched the contents of
the bag. After they finished, Kissinger and Abdul-Malik told
Pellegrino that the search was over and that she could leave
the private screening room. She proceeded to move her
belongings to a search table outside of the private screening
room. She first tossed her shoes from the doorway of the
screening room onto the floor of the security checkpoint area
after checking that no one else was in her surroundings. She
also made multiple trips from the private screening room to
the search table because she had three pieces of luggage. On
her first trip, she carried her largest bag out of the private
screening room. Labbee contends Pellegrino struck her in the
stomach with the bottom of the bag as she was moving the
bag to the search table. When Pellegrino returned to retrieve
a smaller bag, Abdul-Malik allegedly blocked her access to it,
forcing her to crawl under a table to retrieve the bag. When
Pellegrino did so, it tipped over, striking the ground with a
loud noise. Abdul-Malik claims Pellegrino struck her in the
leg while she was collecting the bag. She denies striking
either Abdul-Malik or Labbee with her luggage and alleges
she heard both TSOs say to each other, “You saw her hit me,
didn’t you?”
After Pellegrino had retrieved her luggage, Labbee and
Abdul-Malik walked to the supervisor’s station to press
charges against her and to summon local police. Labbee
directed Pellegrino to stay at the security checkpoint until the
police arrived. Although Pellegrino requested that the TSA
4
official in charge of the airport be called to the checkpoint,
her request went unheeded.1
When the police arrived, Pellegrino was frisked,
handcuffed, and arrested. Labbee confiscated her driver’s
license and, along with Abdul-Malik, swore out criminal
complaints against her. Kissinger offered a witness statement
corroborating the allegation that Pellegrino struck Labbee in
the leg with her bag. The police escorted Pellegrino out of
the airport in plain view of other passengers. She was held
for roughly 18 hours and released after her husband posted
approximately $400 in bail.
The police incident report stated Pellegrino struck both
Labbee and Abdul-Malik with her bags and shoes that she
tossed out of the private screening room. It also noted both
TSOs suffered from leg pain and a stomach bruise as a result
of Pellegrino’s actions.
Did things calm down? Hardly. The Philadelphia
District Attorney’s Office charged Pellegrino with ten
criminal violations: two counts of felony aggravated assault,
see 18 Pa. Cons. Stat. § 2702; two counts of possession of an
instrument of a crime (the suitcases allegedly used to hit the
TSOs), see id. § 907; two counts of making terroristic threats,
see id. § 2706; two counts of simple assault, see id. § 2701;
and two counts of recklessly endangering another person, see
id. § 2705. (Someone must have taken creative charging and
aced the test; either that or there was a lot of lawyer-lounge
temporizing.)
1
While the relevant TSA official was notified that
Pellegrino wished to speak with him, neither he nor his
representative arrived at the checkpoint to speak with
Pellegrino or her husband.
5
On October 25, 2006, Pellegrino attended a
preliminary hearing in her criminal case. The presiding judge
dismissed several charges, and the District Attorney
abandoned other charges, with the exception of two counts of
simple assault and two counts of possession of an instrument
of a crime (the suitcases allegedly used to hit the TSOs).
Those remaining charges proceeded to trial on March 28,
2008, in Philadelphia Municipal Court. The judge entered not
guilty verdicts as to each charge based on insufficiency of the
evidence put in by the TSA: it failed to produce video
surveillance recordings of the incident;2 Abdul-Malik failed
to appear in court; and Labbee’s testimony was internally
inconsistent and contradictory on key points.
B. Procedural Background
After criminal proceedings concluded, Pellegrino
submitted a claim to the TSA describing the TSOs’ conduct
during and following the July 29th incident at the airport.
The TSA denied the claim, and Pellegrino turned to federal
court for relief. She alleged numerous constitutional and
statutory violations against the TSA, Abdul-Malik, Labbee,
Kissinger, and other unnamed TSOs. The District Court
dismissed most of her claims except for property damage,
2
On August 14, 2006, Pellegrino received a letter from
the TSA indicating it was considering imposing a civil
penalty for her actions during the July 29th incident at the
airport. The TSA’s letter also stated it had begun a Civil
Action Enforcement investigation of the incident.
Pellegrino’s attorney wrote to and spoke with the TSA to
defer the investigation and to preserve any relevant
surveillance footage. It, however, maintained that no video
cameras had captured the incident and thus no recordings
existed for evidentiary purposes.
6
false arrest, false imprisonment, and malicious prosecution
under the Federal Tort Claims Act and her Bivens claims for
malicious prosecution under the First and Fourth
Amendments. During summary judgment, the Court ruled in
favor of the TSA on all of her remaining claims except for the
property damage claim, which the parties later settled.
Although Pellegrino appeals the District Court’s
rulings on all of her claims, I focus on those for false arrest,
false imprisonment, and malicious prosecution under the
Federal Tort Claims Act. The Court held it lacked
jurisdiction over those claims because they do not fall within
§ 2680(h)’s proviso, which waives sovereign immunity for
certain intentional torts committed by investigative or law
enforcement officers. Although the proviso defines
“investigative or law enforcement officer” 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,” 28 U.S.C. § 2680(h), the District Court stated
the phrase “searches . . . for violations of Federal law” was
“ambiguous,” Pellegrino v. Transp. Sec. Admin., No. 09-
5505, 2014 WL 1489939, at *5 (E.D. Pa. Apr. 16, 2014).
Because “[t]he relevant statutory scheme shed[] little
light on how broadly ‘search’ is to be defined,” the Court
turned to legislative history. Id. at *6. In its view,
§ 2680(h)’s legislative history “strongly suggests that the . . .
proviso was enacted as a response to specific eg[]regious
behavior during raids conducted by federal law enforcement
officers . . . and was not intended to be expansive enough to
cover airport security screeners.” Id. at *7. As such, it
denied relief to Pellegrino on her false arrest, false
imprisonment, and malicious prosecution claims. She
appeals, challenging, among other things, the District Court’s
determination that it lacked jurisdiction over her claims.
7
C. Statutory Background
As noted, the Federal Tort Claims Act waives
sovereign immunity for certain torts committed by federal
employees. “[Its] provisions are contained in two areas of the
United States Code.” Simmons v. Himmelreich, 136 S. Ct.
1843, 1846 (2016). The first, “28 U.S.C. § 1346(b), gives
federal district courts exclusive jurisdiction over tort claims
against the United States for the acts of its employees
‘[s]ubject to the provisions of chapter 171’ of Title 28.” Id.(footnote omitted) (quoting 28 U.S.C. § 1346(b)). “Chapter
171, in turn, . . . comprises the remaining provisions of the
[Act],” including § 2680, which contains exceptions to the
Act’s broad waiver of immunity. Id.
Of all the exceptions listed in § 2680, subsection h is
most pertinent to this appeal. In full it states:
The provisions of . . . section 1346(b) [that is,
the waiver of immunity] of this title shall not
apply to — . . .
(h) Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with
contract rights: Provided, That, with 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
8
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). The first part of § 2680(h) extends
sovereign immunity for any claim traced to “assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” Id. As noted, it is an
exception to the Federal Tort Claims Act, and the
Government has the burden of proving it applies. See S.R.P.
ex rel. Abunabba v. United States, 676 F.3d 329, 333 n.2 (3d
Cir. 2012) (stating exceptions to the Federal Tort Claims Act
are “analogous to . . . affirmative defense[s]”); see also Bunch
v. United States, 880 F.3d 938, 941 (7th Cir. 2018) (Wood,
C.J.) (“The burden . . . shift[s] to the [G]overnment to support
its affirmative defense that the exception . . . for intentional
torts applies and is not vitiated by the . . . proviso.”).
The second part of § 2680(h) is a “proviso” and an
exception to the exception, as it reasserts the Federal Tort
Claims Act’s waiver of sovereign immunity when certain
intentional torts are committed by “investigative or law
enforcement officers.” 28 U.S.C. § 2680(h). Importantly, it
also contains its own definition of “investigative or law
enforcement officer” that we “must follow . . . even if it
varies from that term’s ordinary meaning.” Stenberg v.
Carhart, 530 U.S. 914, 942 (2000).
9
II. TSOs are investigative or law enforcement officers
under § 2680(h).
Relying on § 2680(h)’s text, Pellegrino argues TSOs
are “investigative or law enforcement officers” because they
are legally empowered to execute searches for violations of
federal law. The Government responds that the proviso
encompasses only those who exercise traditional law
enforcement functions. Asserting that “Congress . . . did not
empower [TSOs] with law enforcement authority,” the
Government contends TSOs do not fall within its carve-out
from immunity. Gov’t Suppl. Br. at 11.
Neither side disputes that TSOs conduct administrative
searches. See United States v. Hartwell, 436 F.3d 174, 178
(3d Cir. 2006) (“[The appellant’s] search at the airport
checkpoint was justified by the administrative search
doctrine.”). Indeed, Pellegrino uses this point to argue that
TSA screenings are “searches . . . for violations of Federal
law” under § 2680(h). In view of this argument, my
colleagues characterize her position as extending to all
administrative searches. According to them, her reading
“would sweep into [§ 2680(h)’s] ambit large swaths of the
federal workforce, producing an unprecedented expansion of
the United States’ tort liability.” Majority Op. at 27.
But Pellegrino’s position is not that far-reaching. See
Corrected Tr. of Oral Arg. at 9:1–2 (amicus counsel on behalf
of Pellegrino stating we need not address whether certain
regulatory searches fall within § 2680(h)’s proviso because
those cases “are not before [us] today” (internal punctuation
altered)), 10:13–14 (amicus counsel stating the issue of other
regulatory searches is not “before [us] right now”). Instead of
directing her arguments to all administrative searches,
Pellegrino asks us to resolve whether TSOs are investigative
or law enforcement officers under § 2680(h). She notes that
10
TSA screenings are more expansive than traditional
administrative inspections, as they extend to the general
public and often involve searches of an individual’s physical
person. See Suppl. Reply Br. at 13-14. In light of these
differences, she claims TSA screenings fall within the ambit
of § 2680(h).
I agree that TSA screenings are searches under
§ 2680(h) and that TSOs are “investigative or law
enforcement officers” as defined by the proviso. The plain
text of the statutory scheme supports this outcome. And even
if there were ambiguity here, we must construe it in
Pellegrino’s favor. Thus her false arrest, false imprisonment,
and malicious prosecution claims should survive summary
judgment and proceed to trial.
A. TSOs execute searches for violations of
federal law.
As noted, TSOs may qualify as investigative or law
enforcement officers if they “execute searches . . . for
violations of Federal law.” 28 U.S.C. § 2680(h). To
determine whether TSOs execute searches, I begin with the
Aviation and Transportation Security Act (the
“Transportation Security Act”). In pertinent part, it requires
TSOs to screen “all passengers and property,
including United States mail, cargo, carry-on and checked
baggage, and other articles, that will be carried aboard a
passenger aircraft operated by an air carrier or foreign air
carrier in air transportation or intrastate air transportation.”
49 U.S.C. § 44901(a). It defines screening in one context as
“a physical search together with manifest verification,” id.§ 44901(g)(5) (emphasis added), and in other contexts as
“[an] inspection of individuals, accessible property, checked
baggage, and cargo,” 49 C.F.R. § 1546.207(a); see also
11
Bunch, 880 F.3d at 943 (stating inspections are searches
under the proviso).
TSA screenings no doubt are “permissible under the
administrative search doctrine.” Hartwell, 436 F.3d at 181;
see also George v. Rehiel, 738 F.3d 562, 577 (3d Cir. 2013)
(“It is not disputed that the initial airport screening to which
[the Appellant] was subjected by the TSA Officials was a
constitutionally permissible administrative search under the
Fourth Amendment, even though it was initiated without
individualized suspicion and was conducted without a
warrant.”). Thus, if the term “search” in § 2680(h) is
synonymous with the term “search” as used in interpreting the
Fourth Amendment, the inquiry likely ends here.
The Government does not dispute this point. Instead,
it contends TSA screenings are not searches under
§ 2680(h)’s proviso because they are consensual and limited
in nature. It also asserts the definition of “search” under
§ 2680(h) is narrower than the meaning of the word “search”
under the Fourth Amendment.
Although we have not squarely decided this issue, the
Ninth Circuit has held that airport screenings do not depend
on a passenger’s consent. See United States v. Aukai, 497
F.3d 955, 961 (9th Cir. 2007) (en banc). We approvingly
quoted the Ninth Circuit’s analysis in George v. Rehiel. See
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. Under current TSA regulations and procedures,
that election occurs when a prospective passenger walks
through the magnetometer or places items on the conveyor
belt of the x-ray machine.” (internal quotation marks omitted)
(quoting Aukai, 497 F.3d at 961)). Moreover, the TSA’s
regulations suggest TSO screenings are not consensual; any
12
individual who does not consent to a screening may not board
a flight. See 49 C.F.R. § 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.”); id. § 1544.201(c)(1) (“Each aircraft
operator . . . must refuse to transport - (1) [a]ny individual
who does not consent to a search or inspection of his or her
person. . . .”). Under a reasonable reading of our case law
and the pertinent regulations, TSA screenings are not
consensual searches. It follows that “consent” is not an
adequate basis for concluding TSA screenings fall outside the
proviso in § 2680(h).
Similarly, the limited nature of TSA screenings does
not put them outside the ambit of the proviso. To start, its
plain language does not require searches to be limited or
broad in nature. Its words also do not require searches to be
directed to all violations of federal law or to traditional law
enforcement functions. They simply require investigative or
law enforcement officers to “execute searches . . . for
violations of federal law.” TSO screenings are searches for
violations of federal law because they are directed to illegal
and prohibited items on passenger aircraft. 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).3 Hence the limited nature of TSA’s
3
My colleagues claim that “most of the prohibited
items for which TSOs search are perfectly legal to possess in
other contexts” and assert that TSOs may only assess civil
penalties for screening violations. Majority Op. at 45 & n.29.
In my view, these distinctions are not enough to exclude
13
screenings is not sufficient to exclude them from the scope of
§ 2680(h)’s carve-out from immunity.
Finally, while the proviso provides no definition for
the term “search,” the lack of statutory guidance does not
weigh in the Government’s favor. In Terry v. Ohio, the
Supreme Court stated that a search includes “a careful
exploration of the outer surfaces of a person’s clothing all
over his or her body in an attempt to find weapons.” 392 U.S.
1, 16 (1968). Congress likely knew and adopted this
definition of search in enacting § 2680(h) because “it is a
cardinal rule of statutory construction that, when Congress
employs a term of art, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed word in
TSOs from the proviso’s reach, as many other law
enforcement officers search for items that are “perfectly legal
to possess in other contexts” and also impose civil penalties
for screening violations. See, e.g., Bringing Agricultural
Products into the United States, U.S. Customs & Border
Prot., https://www.cbp.gov/travel/clearing-cbp/bringing-
agricultural-products-united-states (last visited July 9, 2018)
(stating Customs and Border Protection agricultural
specialists may assess civil penalties if a traveler brings
certain agricultural products without appropriate “permits”);
see also CBP Careers in Focus: Agricultural Specialists –
Protecting American Agriculture, U.S. Customs & Border
Prot., https://www.cbp.gov/careers/join-cbp/which-cbp-
career/agriculture-specialist-focus (last visited July 9, 2018)
(noting agricultural specialists “work[] in a . . . law[-
]enforcement environment”).
14
the body of learning from which it was taken. . . .”4 F.A.A. v.
Cooper, 566 U.S. 284, 292 (2012) (internal quotation marks
omitted); see also Molzof v. United States, 502 U.S. 301, 307
(1992) (stating “[t]his rule carries particular force in
interpreting the [Federal Tort Claims Act].”). Terry’s
definition of “search” is also consistent with the TSA’s own
description of pat-down searches: “inspection[s] of the head,
neck, arms, torso, legs, and feet . . . [,] includ[ing] head
coverings and sensitive areas such as breasts, groin, and the
buttocks.”5 Security Screening, Transp. Sec. Admin.,
4
The Supreme Court decided Terry six years before
Congress enacted § 2680(h). Compare Terry v. Ohio, 392
U.S. 1 (1968), with Act of March 16, 1974, Pub. L. No. 93-
253, 88 Stat. 50.
5
Even though pat-down searches are conducted
analogously to Terry stops, the majority states they are not
comparable because the latter “require reasonable, articulable
suspicion.” Majority Op. at 46. This misapprehends the
TSA’s screening procedures, which (in some instances) allow
for pat-down searches if “a lower level of screening
disclose[s] a reason to conduct a more probing search.”
Hartwell, 436 F.3d at 180; see also Bob Burns, TSA
Mythbuster: The Rest of the DFW Pat-Down Story, Transp.
Sec. Admin. (Mar. 28, 2017),
https://www.tsa.gov/blog/2017/03/28/tsa-mythbuster-rest-
dfw-pat-down-story (noting pat-down searches may be
conducted “if the screening technology alarms”).
The majority also claims we previously concluded that
“screenings that escalate to a pat-down may be properly
categorized . . . as a ‘single search under the administrative
search doctrine.’” Majority Op. at 47 (quoting Hartwell, 436
15
https://www.tsa.gov/travel/security-screening (last visited
July 9, 2018). Thus “search” in § 2680(h) is synonymous
with the term “search” as used in the Fourth Amendment, and
TSA screenings are searches under § 2680(h).
B. TSOs are empowered to conduct searches for
violations of federal law.
To repeat, § 2680(h) requires that an investigative or
law enforcement officer be “empowered by law to execute
searches, to seize evidence, or to make arrests for violations
of Federal law.” The Government argues that “Congress did
not grant [TSOs] . . . any independent authority to conduct a
search, seizure, or arrest.” Gov’t Suppl. Br. at 9. As such, it
contends TSOs lack any legal authority to conduct airport
screenings.
That contention is incorrect because the Transportation
Security Act empowers TSOs to conduct screenings for
“flights and flight segments originating in the United States.”
See 49 U.S.C. § 44901(a). It defines “screening” to include
both “a physical search together with manifest verification,”
id. § 44901(g)(5) (emphasis added), and “[an] inspection of
individuals, accessible property, checked baggage,
and cargo,” 49 C.F.R. § 1546.207(a). Thus, per the explicit
language of the statute, TSOs are empowered by law to
F.3d at 178). Our precedent, however, did not reach that
holding. See Hartwell, 436 F.3d at 178 (“We will
employ [the Fifth Circuit’s] method of analyzing Hartwell’s
entire experience as a single search under the administrative
search doctrine, and—finding this approach sufficient to
resolve the case—do not pass judgment on the [Second
Circuit’s] approach.”).
16
perform searches. See Bunch, 880 F.3d at 943 (stating
inspections may be searches under the proviso).
C. TSOs are officers of the United States.
Finally, § 2680(h) requires TSOs to be “officers of the
United States.” Although it does not define the term
“officer,” its neighboring provisions differentiate between
“officers” and “employees.” For instance, 28 U.S.C. § 2671defines “employee of the government” to include “officers or
employees of any federal agency,” indicating that officers and
non-officer employees are mutually exclusive. Similarly, 28
U.S.C. § 1346(b)(2) bars certain individuals from “bring[ing]
a civil action against the United States or an agency, officer,
or employee of the Government.”
The Transportation Security Act also distinguishes
between officers and employees. Although it classifies TSOs
as “Federal Government employee[s],” 49 U.S.C. § 44901(a),
it incorporates the definition of employee in 5 U.S.C. § 2105,
which states:
For the purpose of this title, “employee[,]” . . .
means an officer and an individual who is—
(1) appointed in the civil service by one
of the following acting in an official
capacity—
(A) the President;
(B) a Member or Members of
Congress, or the Congress;
(C) a member of a uniformed
service;
17
(D) an individual who is
an employee under this section;
(E) the head of a Government
controlled corporation; or
(F) an adjutant general designated
by the Secretary. . . ;
(2) engaged in the performance of a
Federal function under authority of law
or an Executive act; and
(3) subject to the supervision of an
individual named by paragraph (1) of
this subsection while engaged in the
performance of the duties of his position.
5 U.S.C. § 2105 (emphasis added). The term “officer” is
further defined in 5 U.S.C. § 2104, which provides:
For the purpose of this title, “officer[,]” . . .
except as otherwise provided by this section or
when specifically modified, means a justice or
judge of the United States and an individual
who is—
(1) required by law to be appointed in the
civil service by one of the following
acting in an official capacity—
(A) the President;
(B) a court of the United States;
(C) the head of an Executive
agency; or
18
(D) the Secretary of a military
department;
(2) engaged in the performance of a
Federal function under authority of law
or an Executive act; and
(3) subject to the supervision of an
authority named by paragraph (1) of this
section, or the Judicial Conference of the
United States, while engaged in the
performance of the duties of his office.
Id. § 2104 (emphasis added).6 “Executive agency,” defined
in 5 U.S.C. § 105, “means an Executive department,
a Government corporation, and an independent
establishment.” Finally, for purposes of Title 5, an
“independent establishment” is defined as “(1) an
establishment in the executive branch (other than the United
States Postal Service or the Postal Regulatory Commission)
which is not an Executive department, military
department, Government corporation, or part thereof, or part
6
TSOs are not officers under 5 U.S.C. § 2104’s
conjunctive test because they are not appointed by the head of
an Executive agency. See 5 U.S.C. § 105 (noting an
“Executive agency” includes “an Executive department,
a Government corporation, and an independent
establishment”); 49 U.S.C. § 44935 note (stating TSOs are
appointed by the Under Secretary of Transportation for
Security). More importantly, Title 5 is not an appropriate
guide in this context, as it excludes several federal agents who
are unquestionably “investigative or law enforcement
officers” under § 2680(h). See infra pp. 20-21.
19
of an independent establishment; and (2) the Government
Accountability Office.” Id. § 104.
At oral argument, both sides agreed that § 2104’s
definition of officer is underinclusive in this context, see
Corrected Tr. of Oral Arg. at 14:4–12, 38:3–4, and amicus
counsel cited postal inspectors as support for this point, see
id. at 14:4–12. Under a rigid reading of the text, postal
inspectors would not fall within § 2680(h)’s proviso, and yet
we know they are not excluded. See Banks v. Merit Sys. Prot.
Bd., 854 F.3d 1360, 1362 (Fed. Cir. 2017) (“5 U.S.C. § 104provides that the Postal Service is not an ‘independent
establishment’—and therefore not an ‘Executive agency’—
for the purpose of Title 5.” (emphasis in original)); Moore v.
United States, 213 F.3d 705, 708 (D.C. Cir. 2000) (stating
postal inspectors are “investigative or law enforcement
officers” under § 2680(h)). Similarly, Immigration and
Naturalization Service (“INS” and now known as
“Immigration and Customs Enforcement” or “ICE”) agents
are included in § 2680(h)’s proviso even though the INS is
not an executive agency under 5 U.S.C. § 105. See Amend v.
Merit Sys. Prot. Bd., 221 F. App’x 983, 983-84 (Fed. Cir.
2007) (per curiam) (noting the INS “was part of the
Department of Justice” before “INS was abolished . . . and its
functions transferred to the Department of Homeland
Security”); Caban v. United States, 671 F.2d 1230, 1234 (2d
Cir. 1982) (“By its terms, [§ 2680(h)] waives the
government’s immunity to liability arising out of certain
intentional torts committed by investigative and law
enforcement officers such as the INS agents.”). Thus 5
U.S.C. § 2104 cannot be a guidepost for interpreting
§ 2680(h), as it would lead to incongruous results.
Our sister Circuits have taken a similar approach,
holding that both Veterans Administration security guards
and INS agents are covered by § 2680(h)’s proviso even
20
though they are statutorily classified as employees. Compare
Celestine v. United States, 841 F.2d 851, 852 (8th Cir. 1988)
(per curiam) (holding “VA hospital security guards are VA
police officers” and thus fall within the scope of § 2680(h)),
with 38 U.S.C. § 902(a) (designating VA police officers as
employees); compare Caban, 671 F.2d at 1234 (“By its
terms, [§ 2680(h)] waives the government’s immunity to
liability arising out of certain intentional torts committed by
investigative and law enforcement officers such as the INS
agents.”), with 8 U.S.C. § 1357(a) (stating agents may be
“officer[s] or employee[s]”). This suggests that a federal
agent’s job responsibilities seem to be more outcome
determinative than the agent’s employment status. Indeed, if
employment status were decisive in this context, Congress
could easily insulate federal agents from intentional tort
claims by designating them as employees, frustrating the
reach of § 2680(h). See Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001) (“Congress . . . does not alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions. . . .”).
My colleagues do not agree. They contend that
interpreting the proviso to “cover[] only criminal law
enforcement officers” maintains the distinction between
“officers” and “employees” in other provisions of the Federal
Tort Claims Act. Majority Op. at 19; see also id. at 20 n.11.
But that approach “would render a significant part of
[§ 2680(h)] a nullity,” as there would be no need to define the
functions of an “investigative or law enforcement officer” if
the provision only referred to “criminal law enforcement
officers.” Prot. & Advocacy for Persons with Disabilities v.
Mental Health & Addiction Servs., 448 F.3d 119, 125 (2d Cir.
2006) (Sotomayor, J.). It would also “violate[] 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); see also United
21
States v. Palmeri, 630 F.2d 192, 199 (3d Cir. 1980) (“We
should not construe a statute to make it redundant of
itself. . . .”). Thus the majority’s reading does not “hew more
closely” to Congress’s definition of “investigative or law
enforcement officer.” Majority Op. at 40 n.26. Instead, it
“transform[s] [it] into surplusage,” reading it out of the
proviso. United States v. Kouevi, 698 F.3d 126, 133 (3d Cir.
2012).
We encounter the same problem if we read
“investigative or law enforcement officer” as “a[ny] person
who is designated an ‘officer’ and who performs traditional
criminal law enforcement functions.” Majority Op. at 20 n.11
(suggesting this interpretation in light of the anti-redundancy
canon). This is because Congress listed “investigative or law
enforcement officer” in the disjunctive, giving both terms
“separate meanings.” Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979) (“Canons of construction ordinarily suggest
that terms connected by a disjunctive be given separate
meanings, unless the context dictates otherwise. . . .”). The
majority’s approach, however, blurs the distinction between
each term, effectively deleting “investigative officer” from
the proviso’s text and “rob[bing]” it “of [any] independent
and ordinary significance.”7 Id. at 338-39.
7
My colleagues state “it is not unusual for Congress to
define ‘law enforcement officer’ by reference to the officer’s
duties, even if those duties all sound in criminal law.”
Majority Op. at 20 n.11. But Congress did not solely define
“law enforcement officer” in § 2680(h). It also included the
term “investigative officer.” We fail to give that term any
distinct meaning if we adopt the reading my colleagues
advance, as it would excise “investigative officer” entirely
from the proviso’s text.
22
It is worth noting that the Seventh Circuit refused to
adopt the same reading in a recent case. See Bunch, 880 F.3d
at 943-45. Instead of limiting the proviso’s reach to law
enforcement officers, see Gov’t Br. at 22, Bunch v. United
States, No. 16-3775 (7th Cir. May 3, 2017) (advancing this
argument), the Court noted § 2680(h) covers “both
investigative and law[]enforcement officers,” Bunch, 880
F.3d at 944 (emphasis in original). More importantly, it held
a chemist in the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) could fall within the proviso’s terms. See id. at 943
(“The materials presented . . . at the summary-judgment stage
do not foreclose the possibility that the law empowered
Kinard (and his fellow chemists) to execute searches or to
seize evidence.”). In reaching its holding, the Court assigned
no significance to the types of inspections (i.e., searches) the
chemist could perform. See id. (stating 27 C.F.R. § 55.31(1995) authorizes ATF officers to “inspect the site of any
accident or fire” (internal quotation marks omitted)). Nor did
it distinguish between officers and employees. See id.(acknowledging the regulations also defined an “ATF officer”
as “[a]n officer or employee of the Bureau of Alcohol,
Tobacco[,] and Firearms (ATF) authorized to perform any
function related to . . . administration or enforcement” (first
alteration in original) (emphases added) (internal quotation
marks omitted)). Rather, it looked to the chemist’s job
responsibilities, examining them vis-à-vis the proviso’s
language. See id. The majority, by contrast, limits the
proviso’s reach before undertaking this analysis. This is at
odds with the Seventh Circuit’s reasoning, and it leaves
plaintiffs across the country without a consistent set of
remedies.
While the Supreme Court has not decided this issue, it
has also been reluctant to constrict the proviso’s scope. See
Millbrook v. United States, 569 U.S. 50, 54, 57 (2013)
(declining to read additional language into § 2680(h)’s
23
“unambiguous text” and overruling Pooler v. United States,
787 F.2d 868 (3d Cir. 1986), and its progeny, including
Matsko v. United States, 372 F.3d 556 (3d Cir. 2004)).
Critically, it rejected an interpretation that would cabin the
definition of “investigative or law enforcement officer.” See
id. at 56. In the Court’s view, “[h]ad Congress intended
to . . . narrow the scope of the proviso,” it would have
included language to that effect. Id. at 57; see also Campos v.
United States, 888 F.3d 724, 737 (5th Cir. 2018) (noting
Millbrook “refus[es] to allow limitations to be placed on
the . . . proviso”).
The same principle is apt here: if Congress intended
§ 2680(h) to apply solely to criminal law enforcement
officers, it would have “limited it to claims arising from ‘acts
or omissions of [criminal] law enforcement officers’” and
would not have included any additional definitional language.
Millbrook, 569 U.S. at 57; see also Burgess v. United States,
553 U.S. 124, 129 (2008) (“Statutory definitions control the
meaning of statutory words . . . in the usual case.” (alteration
in original) (internal quotation marks omitted)); Stenberg, 530
U.S. at 942 (“When a statute includes an explicit definition,
we must follow that definition, even if it varies from that
term’s ordinary meaning.”). Thus, in light of its statutory
definition and Supreme Court precedent, § 2680(h)’s
references to “investigative officers” and “any officer of the
United States” cannot solely encompass criminal law
enforcement officers.
My colleagues do not discuss much of this case law.
Instead, they rely on non-text authorities to advance their
reading of “officer.” See infra Part III.A-B (addressing the
majority’s arguments). I do not follow their approach
because it is our job to construe Congress’s language “in
accordance with its ordinary meaning.” United States v.
Husmann, 765 F.3d 169, 173 (3d Cir. 2014) (internal
24
quotation marks omitted) (quoting Octane Fitness, LLC v.
ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014)).
Here, if we look to dictionary definitions to determine
Congress’s intent, they do not contain any reference to law
enforcement personnel. See Officer, Webster’s Third New
International Dictionary (1971) (stating an officer is “one
charged with administering and maintaining the law (as a
constable, bailiff, sheriff)” or “one who holds an office; one
who is appointed or elected to serve in a position of trust,
authority, or command esp[ecially] as specif[ically] provided
for by law”); Officer, Black’s Law Dictionary (4th ed. rev.
1968) (noting an officer is “[o]ne who is charged by a
superior power (and particularly by government) with the
power and duty of exercising certain functions. One who is
invested with some portion of the functions of the
government to be exercised for the public benefit. . . .”). This
cuts against my colleagues’ interpretation, as it tells us the
proviso’s reach is more expansive than their take.
I am mindful that “a ‘word must not be read in
isolation but instead [is] defined by reference to its statutory
context.’” Husmann, 765 F.3d at 173 (quoting Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 234 (2008)). But this too
does not favor a restrictive reading of the proviso. Instead, it
marshals against the majority’s approach, as the term “any
officer of the United States” must be read to “ha[ve] a wide
reach.” Boyle v. United States, 556 U.S. 938, 944 (2009)
(“The term ‘any’ ensures that the definition has a wide reach.
. . .”); see also Ali, 552 U.S. at 220 (“Congress’[s] use of
‘any’ to modify ‘other law enforcement officer’ [in § 2680(c)]
is most naturally read to mean law enforcement officers of
whatever kind.”). Thus “any officer of the United States”
includes (1) those “charged with administering and
maintaining the law” and (2) those “who [are] appointed or
elected to serve in a position of trust, authority, or command.”
Officer, Webster’s Third New International Dictionary
25
(1971). These definitions are consistent with the statutory
scheme and comport with my earlier observation that an
“agent’s job responsibilities seem to be . . . outcome
determinative” under § 2680(h). More importantly, they
suggest that my colleagues’ reading is not consistent with the
proviso’s plain meaning.8
If we apply these definitions in this context, TSOs
qualify as officers. They are charged with administering and
maintaining the law, and their searches are directed to illegal
and prohibited items on passenger aircraft. See 49 U.S.C.
§ 46505 (providing criminal penalties for carrying a weapon
or explosive on aircraft); see also 49 C.F.R.
§§ 172.101, 175.10(a) (listing “hazardous materials” that are
not permitted on flights). They also qualify as officers under
the second definition because they are appointed by the Under
8
The majority criticizes my use of “general dictionary
definitions” and claims they unnecessarily expand the
proviso’s scope. Majority Op. at 47 n.30. Those definitions,
however, are consistent across multiple dictionaries and fit
the broader context of § 2680(h). The majority, by contrast,
offers no definition of its own and instead relies on non-
textual sources to dilute its plain meaning.
Moreover, my reading of the provision would not
expand its reach. I do not add extra text to it or assert that it
should apply to officers who have no power to search, seize
evidence, or make arrests. Rather, I give effect to Congress’s
language in its entirety without adding, as my colleagues do,
limitations from outside sources. See id. at 20-25 (relying on
other statutes and inapplicable canons of construction to
construe the proviso).
26
Secretary of Transportation for Security, see 49 U.S.C.
§ 44935 note, and have the sole authority to conduct pre-
boarding screenings for “flights . . . originating in the United
States,” id. § 44901(a).
Accordingly, TSOs are unambiguously “officers of the
United States” and thus fall within § 2680(h)’s proviso.
D. Even were the text of the proviso ambiguous,
we must resolve that ambiguity against the
Government and in Pellegrino’s favor.
My colleagues assert that § 2680(h) is ambiguous.
See, e.g., Majority Op. at 21-22 n.12. They claim “an unclear
definitional phrase”—here, “investigative or law enforcement
officer”—“may take meaning from the term to be defined.”
Id. at 23 (alteration omitted) (internal quotation marks
omitted) (quoting United States v. Stevens, 559 U.S. 460, 474
(2010)).
But the language of the proviso is neither ambiguous
nor vague. Instead, it sets out two terms, “investigative or
law enforcement officer,” and gives them a precise definition.
My colleagues do not point to a single word in the definition
that is unclear. Rather, they seem troubled by the
“unintended breadth” of the proviso and consider that
perception a license to construe it narrowly. Id. at 22 n.12
(internal quotation marks omitted). This is not enough to
establish ambiguity.
However, even if we assume the text is ambiguous, it
would not authorize us to construe the proviso narrowly in
favor of sovereign immunity and against Pellegrino’s claims.
Instead, the Supreme Court has instructed us to construe the
Federal Tort Claims Act broadly and has stated that it “does
not implicate the general rule that ‘a waiver of the
27
Government’s sovereign immunity will be strictly
construed . . . in favor of the sovereign.’” Dolan, 546 U.S. at
491 (emphasis added) (quoting Lane v. Peña, 518 U.S. 187,
192 (1996)); see also Kosak v. United States, 465 U.S. 848,
853 n.9 (1984) (“[U]nduly generous interpretations of the
[Federal Tort Claims Act’s] exceptions run the risk of
defeating the central purpose of the statute.”); United States v.
Yellow Cab Co., 340 U.S. 543, 554 (1951) (declining to
construe the Federal Tort Claims Act in favor of sovereign
immunity). As the proviso reasserts the Federal Tort Claims
Act’s waiver of sovereign immunity, we must resolve any
ambiguity against the Government—that is, in favor of
allowing Pellegrino’s claims to proceed to trial.
Nonetheless, my colleagues note that Dolan tells us to
construe the proviso in favor of the Government. See
Majority Op. at 48 n.31 (“To the extent Dolan does apply to
an exception to an exception, it directs us ‘to identify those
circumstances which are within the words and reason of the
exception—no less and no more.’” (emphases added)
(internal quotation marks omitted) (quoting Dolan, 546 U.S.
at 492)). But that approach misconstrues Dolan, which
discussed this rule in the context of § 2680’s subsections,
almost all of which extend sovereign immunity. See 546 U.S.
at 492 (“Hence, the proper objective of a court attempting to
construe one of the subsections of 28 U.S.C. § 2680 is to
identify ‘those circumstances which are within the words and
reason of the exception [i.e., the parts of § 2680 that are
exceptions to the Federal Tort Claims Act’s waiver of
immunity]—no less and no more. Having made that inquiry
here, we conclude [the Petitioner’s] claims fall
28
outside § 2680(b).” (emphasis added) (internal quotation
marks omitted) (internal citation omitted)).9
Moreover, we cannot apply Dolan’s language here, as
the Supreme Court in Millbrook took a markedly different
approach in our context, casting the proviso in a broad light.
See 569 U.S. at 57 (“Had Congress intended to further narrow
the scope of the proviso, Congress could have limited
it. . . .”); see also Campos, 888 F.3d at 737 (discussing
“Millbrook’s refusal to allow limitations to be placed on
the . . . proviso”); Bunch, 880 F.3d at 945 (“We are also
influenced by the broad reading of the law[]enforcement
proviso that the Court adopted in Millbrook.”).
My colleagues also claim our case is governed by
Foster v. United States, 522 F.3d 1071 (9th Cir. 2008).
Though Foster discusses an exception to an exception (i.e.,
those portions of § 2680 that reassert waiver), its analysis is
circumscribed to § 2680(c)(1)-(4), a provision that has no
bearing on Pellegrino’s claims. See id. at 1079 (“[T]he text
of § 2680(c)(1)-(4), uncontradicted by its legislative history,
provides some support for a narrow reading of the re-waiver
[a waiver, followed by an exception to the waiver (thus no
waiver), followed by an exception to the exception (hence
back to a waiver) is called a re-waiver] of sovereign
immunity in forfeiture actions. . . .”). Its holding is similarly
9
28 U.S.C. § 2680(b) contains only an exception to the
Federal Tort Claims Act, as it states, “The provisions
of . . . [§] 1346(b) of this title shall not apply to— . . . (b)
[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.” It does not contain
an exception to the exception (i.e., a proviso) that reasserts
the waiver.
29
limited to § 2680(c)(1)-(4), and it provided no indication
whether the Court would reach the same result in the context
of § 2680(h). See id. (“Consequently, we hold that the re-
waiver of sovereign immunity in 28 U.S.C. § 2680(c)(1)-
(4) applies only to property seized solely for the purpose of
forfeiture, even if the government had in mind, and later
pursued, judicial forfeiture of property seized initially for a
legitimate criminal investigative purpose.”). Thus Foster
does not provide an adequate basis for narrowly reading
§ 2680(h)’s proviso.
Accordingly, even if the text were ambiguous, we are
bound to resolve that ambiguity against sovereign immunity.
See Millbrook, 569 U.S. at 57; Campos, 888 F.3d at 737;
Bunch, 880 F.3d at 945. As such, § 2680(h) does not bar
Pellegrino’s false arrest, false imprisonment, and malicious
prosecution claims.
III. The majority’s arguments do not counsel a
different result.
My colleagues arrive at a different outcome after
consulting various canons of construction, similar statutes
across the Code, and the text of the Transportation Security
Act. They examine the legislative history surrounding
§ 2680(h) and our sister Circuits’ case law for guidance. In
view of these sources, they hold that § 2680(h)’s proviso
extends only to criminal law enforcement officers and thus
does not apply to TSOs.
While some of their reasoning may be supportive in
isolation, it cannot prevail over the clear text of § 2680(h).
Nor can it overcome binding Supreme Court precedent that
directs us how to apply the canons of construction and
interpret statutory definitions. Consequently, I do not believe
the proviso can be read to exclude TSOs from its reach.
30
A. Per Supreme Court precedent, we cannot
employ the canons of construction to
constrict the proviso’s clear and
unambiguous text.
To recap my colleagues’ reasoning, they claim
§ 2680(h)’s proviso is directed to criminal law enforcement
officers because each of its powers—“‘to execute searches, to
seize evidence, or to make arrests for violations of Federal
law’—has criminal law connotations.” Majority Op. at 20
(quoting 28 U.S.C. § 2680(h)). They state that each of the
powers “helps give meaning to the others, reinforcing that . . .
the term ‘investigative or law enforcement officer’ . . . means
those officers who perform criminal law enforcement
functions.” Id. at 21. In support of their position, they rely
on the canon noscitur a sociis, which tells us that “a word is
known by the company it keeps.” Gustafson v. Alloyd Co.,
513 U.S. 561, 575 (1995).
Although this canon is a “useful rule of
construction . . . where words are of obscure or doubtful
meaning,” Russell Motor Car Co. v. United States, 261 U.S.
514, 520 (1923), it is not used when the text is unambiguous,
see Bilski v. Kappos, 561 U.S. 593, 604 (2010) (noting the
canon was inapplicable because the pertinent provision
already contained a statutory definition); United States v.
Stevens, 559 U.S. 460, 474 (2010) (declining to apply
noscitur a sociis when the text “contain[ed] little ambiguity”).
“[W]hen words have a clear definition, and all other
contextual clues support that meaning, the canons cannot
properly defeat Congress’s decision to draft broad
legislation.” Yates v. United States, 135 S. Ct. 1074, 1097
(2015) (plurality opinion) (Kagan, J., dissenting).
Here, because § 2680(h) was enacted six years after
the Supreme Court decided Terry v. Ohio, “execute searches”
31
has a clear meaning that derives from the Court’s definition
of a search: “a careful exploration of the outer surfaces of a
person’s clothing all over his or her body in an attempt to find
weapons. . . .” 392 U.S. at 16; see also Albernaz v. United
States, 450 U.S. 333, 341-42 (1981) (“[I]f anything is to be
assumed from the congressional silence on this point, it is that
Congress was aware of the [pertinent Supreme Court
holding] and legislated with it in mind. It is not a function of
this Court to presume that Congress was unaware of what it
accomplished. . . .” (third alteration in original) (internal
quotation marks omitted)). There is no indication that
Congress intended to depart from that meaning when it
enacted § 2680(h). Nor is there any indication that the
relevant portion of the proviso is ambiguous. In this context,
the canons are not in play here. Moreover, “canons of
construction are no more than rules of thumb that help courts
determine the meaning of legislation, and in interpreting a
statute a court should always turn first to one, cardinal canon
before all others,” Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253 (1992), “that courts must presume that a legislature
says in a statute what it means and means in a statute what it
says there,” id. at 253-54.
In any event, we have observed that noscitur a sociis
“is of little help where other evidence reveals that Congress
intended to treat the disputed term differently from its
neighbors.” In re Cont’l Airlines, Inc., 932 F.2d 282, 288 (3d
Cir. 1991). “When Congress has separated terms with the
conjunction ‘or,’” we concluded “that [it] intended to give the
terms ‘their separate, normal meanings.’” Id. (quoting Garcia
v. United States, 469 U.S. 70, 73 (1984)); see also In re Gi
Nam, 273 F.3d 281, 288 (3d Cir. 2001) (stating noscitur a
sociis has “no application” when Congress separates distinct
terms with disjunctive phrasing). The Supreme Court has
articulated the same view, declining to apply the canon to a
list of three “disparate” items—“congressional,
32
administrative, or [Government Accountability Office]
sources”—because it would “rob” each term “of its
independent and ordinary significance.”10 Graham Cty. Soil
& Water Conservation Dist. v. United States ex rel. Wilson,
559 U.S. 280, 288-89 (2010) (alteration omitted) (internal
quotation marks omitted) (quoting Reiter, 442 U.S. at 338-
39).11 Although the Court acknowledged that the terms had a
10
Contrary to the majority’s assertions, the touchstone
of my inquiry is not whether “the statute is phrased in the
disjunctive.” Majority Op. at 22 n.12. Instead, I examine
whether a statutory list contains a set of terms that have “a[]
comparable . . . meaning.” Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 559 U.S.
280, 289 n.7 (2010); see also infra note 11.
11
Although my colleagues state noscitur a sociis “is
‘often wisely applied where a word is capable of many
meanings,’” Majority Op. at 22 n.12 (quoting Jarecki v. G.D.
Searle & Co., 367 U.S. 303, 307 (1961)), the Supreme
Court’s analysis is more nuanced. While the Court has relied
on the canon when the terms share “a[] comparable core of
meaning,” Wilson, 559 U.S. at 289 n.7, it has cautioned
against it if to do so would “rob” any term “of its independent
and ordinary significance,” id. at 288 (internal quotation
marks omitted) (quoting Reiter, 442 U.S. at 338-39). Indeed,
the Court has rebuked lower courts—including our Circuit—
that apply the canon haphazardly without reference to its
precedents. See id.Thus, as the majority notes, the Court has relied on the
canon to interpret the phrase “exploration, discovery, or
prospecting.” Before doing so, however, it noted that the
words in that phrase had a common “core of meaning” and
33
similar “connotation,” that was not a critical factor in its
analysis. Id. at 289 n.7 (declining to apply the canon to the
phrase “congressional, administrative, or GAO sources” even
though each term had a “governmental connotation”).
Instead, it emphasized each word’s distinct meaning and
declined to restrict that meaning by way of the canon. See id.
at 288-89.
The Supreme Court’s reasoning is apt here, as
§ 2680(h)’s proviso lists three separate phrases that describe
different activities: “execute searches,” “seize evidence,” and
“make arrests.” 28 U.S.C. § 2680(h). All three terms have a
“character of [their] own” that cannot be “submerged” by
their common connotation. Russell Motor Car, 261 U.S. at
519. Thus “execute searches” cannot be read in the same
vein as “seize evidence” or “make arrests.” Instead, it must
be read consistently with its plain meaning, which is delinked
as a disjunctive (that is, separate) concept.
With this in mind, the majority suggests the meaning
of “execute searches” still sounds in criminal law, as the
that the canon would not “rob” any term “of its independent
and ordinary significance.” Id. at 288-89 & n.7 (quoting
Reiter, 442 U.S. at 338-39); see also Jarecki, 367 U.S. at 307(engaging in this analysis). By contrast, the Court has refused
to apply the canon to “congressional, administrative, or GAO
sources” because the terms in the list were not “completely
harmonious.” Wilson, 559 U.S. at 288 (alteration omitted).
Noscitur a sociis thus is “not an invariable rule” that
we must resort to in every instance. Russell Motor Car, 261
U.S. at 519. Nor is it in play here, as the terms in § 2680(h)
are not synonymous and share no core meaning. See Wilson,
559 U.S. at 289 n.7.
34
phrase “execute a search” is typically used when a warrant is
involved. The Seventh Circuit recently rejected a similar
argument. See Bunch, 880 F.3d at 945 (“[W]e note
that [§] 2680(h) does not require [a federal agent] to have had
authority to seek and execute search warrants; it speaks only
of executing searches, and many searches do not require
warrants.” (emphasis in original)). Congress also drafted
§ 2680(h) to provide a remedy against warrantless searches.
See S. Rep. No. 93-588, at 2790 (1973) (stating § 2680(h)
was enacted in the aftermath of raids in Collinsville, Illinois,
where federal agents “entered . . . two houses without
warrants . . . , kicked in the doors without warning, shout[ed]
obscenities, and threaten[ed] the occupants with drawn
weapons”). In line with these principles, plaintiffs have relied
on § 2680(h) to recover for abuses related to warrantless
searches and seizures. See, e.g., Bunch, 880 F.3d at 943-44
(holding a forensic chemist’s inspection could be a search
under § 2680(h)).
My view is that, given the broad reach of the proviso,
“execute searches” does not take its meaning from the term
“execute a warrant,” and its clear-cut meaning governs our
analysis. See id. at 943, 945 (suggesting “search” in
§ 2680(h) could refer to inspections performed by officers
and employees, a search incident to arrest, searches under the
automobile exception, searches performed with consent, and
protective sweeps); Execute, Webster’s Third New
International Dictionary (1971) (providing several
definitional options of “execute,” none of which include a
reference to “executing warrants”).
35
B. Other statutes are not effective guideposts
for interpreting § 2680(h)’s language because
none of them contain the same definition.
My colleagues examine other provisions in the U.S.
Code that use the term “investigative or law enforcement
officer.” They find that the term is used in only one other
statute: Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, see 18 U.S.C. §§ 2510-2522, and the
Electronic Communications Privacy Act of 1986, which
amended Title III (for simplicity, I refer to both statutes as
“Title III”), see id. §§ 3121-3127. In their view, Title III’s
context tells us that the term “investigative or law
enforcement officer” covers only criminal law enforcement
personnel. Thus they conclude § 2680(h) must also
encompass only criminal law enforcement officers.
Title III, however, is not helpful to our inquiry because
it provides its own definition of “investigative or law
enforcement officer.” It considerably departs from that of
§ 2680(h), as it includes attorneys. See id. § 2510 (stating an
investigative or law enforcement officer is “any officer . . .
who is empowered by law to conduct investigations of or to
make arrests for offenses enumerated in this chapter, and any
attorney authorized by law to prosecute or participate in the
prosecution of such offenses” (emphases added)). It also
includes the term “conduct investigations,” while § 2680(h)
includes the disjunctive phrases “to execute searches” and “to
seize evidence.” See id. With these obvious distinctions, I
am doubtful that Title III and § 2680(h) should be read
consistently or that the former constricts the latter. See
Tooahnippah v. Hickel, 397 U.S. 598, 606 (1970) (declining
to construe two provisions similarly because “the coverage of
these [two] sections is not identical”); In re Fed.-Mogul
Global Inc., 684 F.3d 355, 372-73 (3d Cir. 2012) (noting two
36
provisions of the Bankruptcy Code should not be read in the
same way in view of their distinct language).
In a similar vein, I am not persuaded that other
statutory definitions of “law enforcement officer” limit
§ 2680(h)’s text.12 See Majority Op. at 25 (listing definitions
of “law enforcement officer” in Titles 12 and 18 of the U.S.
Code). Congress gave us no sign that these definitions carry
any weight in the context of our case. Indeed, it could have
easily written § 2680(h) to incorporate any of them, but chose
not to do so. See Millbrook, 569 U.S. at 56-57 (rejecting an
argument that would narrow the definition of “investigative
or law enforcement officer” and stating Congress could have
restricted the scope of § 2680(h)’s proviso if it wished); see
also Burgess, 553 U.S. at 130-31 (illustrating that Congress
knows how to “incorporate the definition of a particular word
into the definition of a compound expression”). Instead (and
to repeat), it gave § 2680(h) its own definition of
“investigative or law enforcement officer,” which we must
apply “even if it varies from that term’s ordinary meaning.”
Stenberg, 530 U.S. at 942. We may not resolve any
“‘dissonance’ between ordinary meaning and the
unambiguous words of a definition . . . in favor of [the term’s]
ordinary meaning. If that were the case, there would hardly
be any use in providing a definition.” Bond v. United States,
134 S. Ct. 2077, 2096 (2014) (Scalia, J., concurring in the
judgment).
Accordingly, other provisions and statutory definitions
do not illuminate the meaning of § 2680(h)’s proviso and
cannot be used to cabin its reach.
12
These definitions also do not shed light on § 2680(h)
as a whole because the subsection refers to “investigative or
law enforcement officers.”
37
C. The Transportation Security Act does not
clarify whether the proviso extends to TSOs.
The majority states § 2680(h)’s proviso does not
include TSOs because the Transportation Security Act
“distinguishes between ‘employees’ . . . and ‘law enforcement
officers.’” Majority Op. at 39. They note it classifies
screeners as employees, but at the same time allows the
TSA’s Under Secretary to “designate an employee . . . to
serve as a law enforcement officer.” 49 U.S.C. § 114(p)(1).
The latter may “carry a firearm[,] make an arrest . . . [,]
and . . . seek and execute warrants.” Id. § 114(p)(2). Because
the Act consistently differentiates between screeners and TSA
law enforcement officers in this respect, the majority infers
the former are not “investigative or law enforcement officers”
under § 2680(h).
The Transportation Security Act (like the other statutes
discussed above) has its own definition of “law enforcement
officer.” In full it defines “law enforcement officer” as an
“employee” who may. . .
(A) carry a firearm;
(B) make an arrest without a warrant for any
offense against the United States committed in
the presence of the officer, or for any felony
cognizable under the laws of the United States
if the officer has probable cause to believe that
the person to be arrested has committed or is
committing the felony; and
(C) seek and execute warrants for arrest or
seizure of evidence issued under the authority
of the United States upon probable cause that a
violation has been committed.
38
Id. § 114(p)(1)-(2) (emphasis added). This definition
significantly varies from the expansive definition in
§ 2680(h), which uses disjunctive phrasing and 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.” 28 U.S.C. § 2680(h) (emphasis
added). The term “law enforcement officer” in § 114(p) is
also at odds with the broader term “investigative or law
enforcement officer” in § 2680(h). See Corrected Tr. of Oral
Arg. at 21:21–22:4 (noting this key distinction between
§ 114(p) and § 2680(h)). In view of these obvious
differences, § 114(p) is neither instructive nor helpful in
construing § 2680(h).
There is also no indication that Congress drafted
§ 114(p) with § 2680(h)’s proviso in mind. If Congress
intended to use the former to immunize TSOs from liability, it
would have “provide[d] a relatively clear indication of its
intent in the text of . . . [either] provision.” TC Heartland
LLC v. Kraft Food Grp. Brands LLC, 137 S. Ct. 1514, 1520
(2017). More importantly, had Congress wished to limit the
proviso to criminal law enforcement officers, it would have
specified as much in § 2680(h). See Whitman, 531 U.S. at
468 (“Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary
provisions. . . .”). It did not do so. My takeaway: there is no
basis for importing § 114(p) into the Federal Tort Claims Act
to bar Pellegrino’s claim. Nor is there any reason to use this
case to bar other plaintiffs’ claims against agents who are not
criminal law enforcement officers.
My colleagues do not address these points. Instead,
they maintain that “§ 114(p) remains instructive” in this
context “because it reflects Congress’s own distinction
between TSA screeners and ‘law enforcement officers’ in
Title 49, which tracks [the] distinction between ‘employees’
39
and ‘officers’ in the [Federal Tort Claims Act].” Majority
Op. at 40 n.27 (alteration omitted). They claim other statutes
similarly distinguish between employees and law
enforcement officers and suggest we should follow these
distinctions for the purposes of § 2680(h). See id. at 40-41
n.27.
I cannot join the majority in adopting this approach
because it is an invitation to dilute § 2680(h)’s text. As
noted, § 114(p) does not match the proviso’s language and
does not even define the same terms as the proviso. Compare
49 U.S.C. § 114(p) (defining “law enforcement officer” using
conjunctive language), with 28 U.S.C. § 2680(h) (defining
“investigative or law enforcement officer” using disjunctive
language). As such, it is not an appropriate guidepost for
determining whether TSOs fall within the proviso’s reach.
See Bunch, 880 F.3d at 944 (“[Section 2680(h)] defines
[‘investigative or law enforcement officer’] as a person with
legal authority to ‘execute searches, to seize evidence, or to
make arrests. . . .’ Any one of those three powers will do.”
(emphasis in original) (internal citation omitted) (quoting 28
U.S.C. § 2680(h))).
Instead of narrowing § 2680(h) and importing § 114(p)
into its framework, it is our job to enforce the proviso’s
explicit language. While TSOs do not fall within the terms of
§ 114(p), they are covered by § 2680(h). Neither § 114(p)
nor other sections of the Transportation Security Act
expressly preclude TSOs from the scope of the § 2680(h)
proviso. Rather, they suggest the opposite: TSOs execute
searches, see 49 U.S.C. § 44901(a), and have the legal
authority to do so, see id.13 Thus, when the statutory scheme
13
Even if the Transportation Security Act were less
straightforward in this context, it does not control the
interpretation of § 2680(h) because the former postdates the
40
is considered as a whole, TSOs are investigative or law
enforcement officers that are subject to the proviso. See
Bunch, 880 F.3d at 943-45 (engaging in the same analysis for
a forensic chemist employed by the ATF); Sami v. United
States, 617 F.2d 755, 764 (D.C. Cir. 1979) (concluding U.S.
National Central Bureau officers were within § 2680(h), and
thus unprotected by immunity, even though they “do not
initiate or conduct investigations of their own but act
primarily as conduits and screeners of information between
foreign police departments and federal and state counterparts”
(footnote omitted)), abrogated on other grounds by Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004).
Lastly, I note the consequences of my colleagues’
approach. No other Court of Appeals has gone as far as they
do by categorically barring certain classes of individuals (i.e.,
those who are not criminal law enforcement officers) from the
reach of the proviso. Nor has any other Court of Appeals
relied on another statute’s and an agency’s classifications to
determine whether a federal agent is an “investigative or law
enforcement officer” under § 2680(h).14 The majority’s
latter. See McQuiggin v. Perkins, 569 U.S. 383, 398 n.3
(2013) (“Congress legislates against the backdrop of existing
law.”).
14
Although the Eleventh Circuit relied on statutory
distinctions in Corbett v. Transportation Security
Administration, it did not reference the agency’s own
distinctions or non-binding directives in support of its
position. See 568 F. App’x 690, 701 (11th Cir. 2014) (per
curiam). Moreover, Corbett was an unpublished opinion,
making it non-precedential and non-binding. See 11th Cir. R.
36-2, I.O.P. 7 (“The court generally does not cite to its
‘unpublished’ opinions because they are not binding
41
reasoning would allow Congress—and perhaps even
agencies—to exempt individuals from the proviso’s reach
simply by categorizing them as employees who lack criminal
law enforcement powers. See Majority Op. at 43 (citing a
TSA directive that discusses the distinctions between TSOs
and law enforcement officers). It would also empower courts
to disregard § 2680(h)’s statutory definition of “investigative
or law enforcement officer” in favor of those terms’ meanings
as perceived by the particular judicial panel. Such a rule
would allow courts to expand or contract statutory definitions
as they see fit. See Bond, 134 S. Ct. at 2096 (Scalia, J.,
concurring in the judgment) (observing the “judge-
empowering consequences” of an “interpretive rule” that
would allow a term’s ordinary meaning to prevail over its
statutory definition). It would further allow Congress to
depart from § 2680(h)’s literal text “in vague terms or
ancillary provisions.” Whitman, 531 U.S. at 468. I do not
believe that this is the correct interpretive method to apply
here. See Sami, 617 F.2d at 765 (“We are not inclined to read
into [§ 2680(h)’s] language . . . a narrower limitation on
liability than that suggested by the plain meaning of the
words.”). Nor am I convinced this is what Congress intended
when it enacted § 2680(h), § 114(p), or other provisions of
the Transportation Security Act.
The conclusion for me is simple. I am not inclined to
read the proviso in § 2680(h) as narrowly as my colleagues,
as I do not see the Transportation Security Act as limiting the
scope set by the proviso’s simple and direct words.
precedent. The court may cite to them where they are
specifically relevant to determine whether the predicates for
res judicata, collateral estoppel, or double jeopardy exist in
the case, to ascertain the law of the case, or to establish the
procedural history or facts of the case.”).
42
D. Legislative history cannot overcome the clear
text of § 2680(h) and does not preclude
administrative searches from its purview.
My colleagues next turn to the legislative history of
§ 2680(h) and refer to statements made by two members of
Congress and comments made at a hearing by a Department
of Justice official. They contend these snippets confirm that
the proviso covers only criminal law enforcement officers.
Ultimately, however, “it is the statute, and not [its legislative
history], which is the authoritative expression of the law. . . .”
City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337
(1994). “[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its
terms.” Official Comm. of Unsecured Creditors of
Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330
F.3d 548, 556 (3d Cir. 2003) (en banc) (internal quotation
marks omitted) (quoting Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)). “[W]e
may only look to legislative history if [the] plain meaning
produces a result that is not just unwise but is clearly absurd.”
United States v. Terlingo, 327 F.3d 216, 221 n.1 (3d Cir.
2003) (Becker, C.J.) (second alteration in original) (internal
quotation marks omitted).
When we look to § 2680(h)’s text, it nowhere
makes any limiting reference to criminal law enforcement
officers. While the legislative history contains several
references to “law enforcement officers,” it is worth noting
that “statutory prohibitions often go beyond the principal evil
to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of
our legislators by which we are governed.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). It
43
follows that § 2680(h)’s legislative history does not give us
an adequate basis to circumscribe its plain text.
My colleagues also discuss the legislative history of a
related provision, 31 U.S.C. § 3724, which authorizes the
Attorney General to settle certain claims brought against “an
investigative or law enforcement officer as defined in section
2680(h) of [T]itle 28 who is employed by the Department of
Justice. . . .” In their view, that provision’s history before
Congress suggests by analogy § 2680(h) applies only to
criminal law enforcement officers, as it specifically excludes
from its reach “the litigating arms of the Antitrust Division or
. . . the Civil Rights Division.” H.R. Rep. No. 101-46, at 8
(1989).
But these references cannot limit the proviso to
criminal law enforcement personnel because both the
Antitrust Division and Civil Rights Division perform criminal
law enforcement functions. See Sections and Offices, U.S.
Dep’t of Justice, https://www.justice.gov/atr/sections-and-
offices (last visited July 9, 2018) (indicating the Division has
five “[c]riminal [s]ections and [o]ffices”); About the Division,
U.S. Dep’t of Justice, https://www.justice.gov/crt/about-
division (last visited July 9, 2018) (stating the Division has a
criminal section). Nor does the legislative history
differentiate between administrative searches and criminal
law enforcement functions, as it indicates § 3724 applies to
agents who conduct both.15 See H.R. Rep. No. 101-46, at 7
15
My colleagues claim “the fact that traditional
criminal law enforcement officers may also have occasion to
perform administrative searches . . . in no way casts doubt on
the textual and historical reasons to believe that § 2680(h) and
§ 3724 exclude from their reach those who perform only
administrative searches.” Majority Op. at 31-32 n.19
44
(1989) (noting § 3724 applies to “a DEA Agent, . . . a Border
Patrolman, or a Deputy Marshal”); see also 28 U.S.C.
§ 566(e)(C) (noting the U.S. Marshals Service is authorized to
issue certain types of administrative subpoenas); United
States v. Bulacan, 156 F.3d 963, 967 (9th Cir. 1998)
(“Limited administrative searches may be conducted at the
border. . . .”). Section 3724 thus gives us no reason to
exclude administrative searches from the purview of
§ 2680(h)’s proviso. At best, it tells us that administrative
searches may fall within the latter’s terms.
However, even if § 3724 lacked these references, we
should be mindful that “Congress . . . does not . . . hide
elephants in mouseholes.” Whitman, 531 U.S. at 468. Had it
intended the proviso to cover only criminal searches and
criminal law enforcement activities, “we would expect the
text of . . . [§ 2680(h)] to say so.” Puerto Rico v. Franklin
Cal. Tax-Free Tr., 136 S. Ct. 1938, 1947 (2016). Here, no
part of § 2680(h) includes the words “criminal,” “criminal
searches,” or “criminal law enforcement personnel.” In the
absence of those or similar terms, I cannot join my colleagues
in limiting its scope.16
(emphases omitted). But as noted earlier, § 2680(h) provides
no textual basis to exclude administrative searches from its
ambit, and § 3724 makes no distinction between
administrative searches and other law enforcement functions.
Because neither provision explicitly distinguishes the two, we
should disdain doing the same, as, among other things, we
lack the authority to do so.
16
Other provisions support my conclusion. Like Title
31, Title 19 contains a section that allows the Treasury
Secretary to settle intentional tort claims brought against “an
45
E. Our sister Circuits’ case law does not restrict
§ 2680(h)’s reach.
The majority also examines other Circuits’ case law,
stating “other Courts of Appeals . . . have treated only those
performing criminal law enforcement duties as ‘investigative
or law enforcement officers’ under the proviso.” Majority
Op. at 34. In my colleagues’ view, their holding aligns with
those Circuits.
I disagree. None of our sister Circuits have stated that
criminal law enforcement duties are a prerequisite in the
context before us. Cf. Bunch, 880 F.3d at 943-45 (rejecting
the Government’s argument that only law enforcement
officers are covered by the § 2680(h) proviso and concluding
a chemist who analyzed samples in a laboratory could
“execute searches” or “seize evidence” under it). Moreover,
“federal courts do not sit as councils of revision, empowered
investigative or law enforcement officer (as defined in section
2680(h) of [T]itle 28) who is employed by the Customs
Service. . . .” 19 U.S.C. § 1630. Elsewhere, though, the
statute allows Customs officers to “inspect[]” “[a]ll
merchandise and baggage imported or brought in from any
contiguous country,” essentially giving them the authority to
conduct searches that resemble TSA screenings. Id. § 1461;
see also 19 C.F.R. § 162.6 (“All persons, baggage, and
merchandise arriving in the Customs territory of the United
States from places outside thereof are liable to inspection and
search by a Customs officer. . . .”); United States v. Hill, 939
F.2d 934, 936 (11th Cir. 1991) (noting “[c]ustoms agents may
conduct suspicionless searches. . . .”). Nowhere does the
statute immunize such searches from liability. And it does
not distinguish between those searches and other traditional
criminal enforcement activities.
46
to rewrite legislation. . . .” United States v. Rutherford, 442
U.S. 544, 555 (1979). “We are not at liberty to rewrite the
statute to reflect a meaning we deem more desirable” or to
import a meaning derived from selected case law. Ali, 552
U.S. at 228 (footnote omitted). “Instead, we must give effect
to the text Congress enacted:” § 2680(h)’s proviso applies to
TSOs because it encompasses any officer who is empowered
by law to execute searches for violations of federal law. Id.
In addition to the Seventh Circuit, see Bunch, 880 F.3d
at 943-45, other Circuits also have construed § 2680(h)
differently from the majority, see Celestine, 841 F.2d at 852-
53 (omitting the terms “criminal” or “criminal law
enforcement officer” in its discussion of § 2680(h)); Hoston
v. Silbert, 681 F.2d 876, 878-79 (D.C. Cir. 1982) (per curiam)
(same); Caban, 671 F.2d at 1234-35 (same); EEOC v. First
Nat’l Bank of Jackson, 614 F.2d 1004, 1007-08 (5th Cir.
1980) (same); Hernandez v. Lattimore, 612 F.2d 61, 64 n.7
(2d Cir. 1979) (same); Solomon v. United States, 559 F.2d
309, 310 (5th Cir. 1977) (per curiam) (same); Johnson v.
United States, 547 F.2d 688, 691 (D.C. Cir. 1976) (per
curiam) (same). Instead of distinguishing between criminal
law enforcement officers and administrative personnel, see
Majority Op. at 34-37, these Courts have carefully examined
whether a defendant’s job duties fit the proviso on a case-by-
case basis, see, e.g., Celestine, 841 F.2d at 852-53(undertaking this analysis for Veterans Administration
hospital security guards); First Nat’l Bank of Jackson, 614
F.2d at 1007-08 (same for Equal Employment Opportunity
Commission agents); Johnson, 547 F.2d at 691 (same for
doctors at a Veterans Administration hospital). This indicates
the inquiry under § 2680(h) is more contextual than the
majority’s approach, taking into account an agent’s specific
powers rather than her status as a criminal law enforcement
officer.
47
Critically, at least two Circuits have not adopted the
majority’s specific framework. In Sami v. United States, the
D.C. Circuit held that a defendant was an “investigative or
law enforcement officer” even though he lacked several
attributes my colleagues deem conclusive in their analysis.
617 F.2d at 765. The Court noted that the defendant’s status
or training as a law enforcement officer did not control its
inquiry. See id. at 764. It also assigned no importance to the
fact that the defendant did not “initiate or conduct
investigations of [his] own but act[ed] primarily as [a]
conduit[] and screener[] of information between foreign
police departments and federal and state counterparts.” Id.Rather, it cast § 2680(h)’s legislative history in an expansive
light and viewed its text as “set[ting] finite boundaries around
the kind of law enforcement abuses for which [Congress]
wished to make the [G]overnment liable.” Id. at 764-65. In
doing so, the Court declined to “read . . . a narrower
limitation on liability than that suggested by the plain
meaning of the words.” Id. at 765.
As noted, Bunch also declined to limit the proviso to
law enforcement officers, 880 F.3d at 944-45, and did not
limit the term “execute searches” to the criminal context, id.
at 945.17 It did not draw any significance from the types of
17
The majority nonetheless portrays Bunch as
corroborating its holding because “it offered, as examples of
the types of searches covered by the proviso, searches
incident to arrest, protective sweeps, and searches conducted
pursuant to the automobile exception . . . —i.e., searches
conducted by criminal law enforcement officers.” Majority
Op. at 36 (internal citation omitted). This account of Bunch
hyperfocuses on an isolated string cite in the Court’s opinion,
see Bunch, 880 F.3d at 945, while ignoring its ultimate
conclusion, see id. at 943 (holding an inspection performed
48
investigations the chemist-defendant performed.18 See id. at
943. Nor did it give conclusive weight to the chemist’s
employment status. See id. Although he was an “ATF
officer,” the Court noted that term referred to both “[ATF]
officer[s] or employee[s].” Id. (internal quotation marks
omitted) (quoting 27 C.F.R. § 55.11 (1995)).
The approach of my colleagues sharply differs from
our sister Circuits’ reasoning in three main ways. First, they
give determinative weight to an agent’s status as a law
enforcement officer even though the other Circuits did not do
so. See id. at 944-45; Sami, 617 F.2d at 764. Second, they
highlight TSOs’ limited roles and their dependence on law
enforcement officers, and yet this feature had no effect on the
Seventh or D.C. Circuit’s analysis. See Bunch, 880 F.3d at
944-45; Sami, 617 F.2d at 764. Lastly, they read additional
by a chemist could be enough to trigger liability for malicious
prosecution under § 2680(h)).
18
Contrary to the majority’s assertions, the Seventh
Circuit did not emphasize the chemist’s criminal law
enforcement duties. Indeed, the word “criminal” never shows
up in this portion of its discussion. See Bunch, 880 F.3d at
943. Although the Court did mention Title 18 of the U.S.
Code, it observed the chemist’s duties stemmed from Title 27
of the Code of Federal Regulations. See id. (“The Secretary
had authority to promulgate regulations to carry out these
powers, . . . and he did so in 27 C.F.R. Part 55. . . . The
regulations authorized ‘[a]ny ATF officer’ to ‘inspect the site
of any accident or fire in which there is reason to believe that
explosive materials were involved.’” (third alteration in
original) (internal citations omitted) (quoting 27 C.F.R.
§ 55.31 (1995))).
49
language into the proviso to restrain its reach while Sami and
Bunch expressly refused to do the same. See Bunch, 880 F.3d
944-45; Sami, 617 F.2d at 765.
In conclusion, my colleagues’ interpretive framework
finds little support in analogous decisions from our sister
Circuits, and at least two Circuits have disregarded the key
factors they consider decisive in their analysis.
F. Our case law cannot be read as limiting
§ 2680(h)’s scope.
My colleagues claim their holding is consistent with
Matsko v. United States, 372 F.3d 556 (3d Cir. 2004). In their
view, Matsko effectively narrowed § 2680(h) to criminal law
enforcement personnel because it stated that “employees of
administrative agencies, no matter what investigative conduct
they are involved in, do not come within the . . . [proviso].”
Id. at 560.
Before discussing Matsko, it is important to note that
the Supreme Court rejected most of its reasoning in a recent
case. See Millbrook, 569 U.S. at 54-56 (overruling Pooler v.
United States, 787 F.2d 868 (3d Cir. 1986), and its progeny,
including Matsko). As such, it is questionable the effect
Matsko has in our case. Even if we assume its influence is
significant, we cannot read it as categorically excluding all
employees from the proviso’s reach. As noted already, VA
police officers and INS agents would not qualify as
“investigative or law enforcement officers” even though we
know they are.
The majority acknowledges this, but asserts Matsko
draws a line “between administrative personnel performing
solely administrative functions and those . . . expressly
designated law enforcement officers or assigned law
50
enforcement duties.” Majority Op. at 33. But the problem
with this argument is that Matsko made no such distinction.
It never mentioned the term “criminal law enforcement
officer,” nor did it refer to “criminal law enforcement duties.”
While it explained what types of agents are purportedly
outside the realm of the proviso, Matsko never told us who
would fit within it. Hence it does not stand for the broad
holding the majority now attributes to it.
More tellingly, Matsko’s principle does not receive
universal support from our sister Circuits. Bunch, for
example, held a chemist who was primarily responsible for
“investigative conduct”—“inspect[ing] the site of any
accident or fire in which there is reason to believe that
explosive materials were involved”—could be an
investigative or law enforcement officer under § 2680(h).
880 F.3d at 943 (internal quotation marks omitted) (quoting
27 C.F.R. § 55.31 (1995)). It reached this conclusion even
though the chemist was “[a]n officer or employee of
[ATF] . . . authorized to perform any function related to . . .
administration or enforcement.” Id. (emphases added)
(internal quotation marks omitted) (quoting 27 C.F.R. § 55.11(1995)).
Bunch’s reasoning necessarily conflicts with Matsko
because it did not give controlling weight to an agent’s
employment status, see id., and emphasized the same
investigatory powers that Matsko downplayed, compare id.(discussing the chemist’s authority to inspect sites of certain
accidents or fires), with Matsko, 372 F.3d at 560 (noting the
defendant had the “authority to inspect mines and investigate
possible violations”). This suggests we cannot understand
Matsko as limiting the types of personnel or activities that fall
within § 2680(h)’s terms. If we do, we run the risk of
advancing an inconsistent (and unduly narrow) reading of the
provision.
51
We encounter a similar problem if we look to
Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), for
guidance. As my colleagues correctly observe, it did not
address whether TSOs fall within § 2680(h)’s proviso. Yet
they rely on its language to exclude TSOs from its reach. See
Majority Op. at 38 (“As we explained [in Vanderklok,] ‘TSA
employees typically are not law enforcement officers and do
not act as such.’” (quoting Vanderklok, 868 F.3d at 208)); see
also id. at 43 (“As we explained in Vanderklok, unlike
criminal law enforcement officers, ‘line TSA employees are
not trained on issues of probable cause, reasonable suspicion,
and other constitutional doctrines that govern law
enforcement officers.’” (quoting Vanderklok, 868 F.3d at
208)). In their view, Vanderklok indicates “TSA screeners
conduct only administrative searches, are not criminal law
enforcement officers, and thus do not qualify as ‘investigative
or law enforcement officers’ under [§ 2680(h)].” Id. at 38.
This approach misconstrues Vanderklok, which
discussed TSOs’ law enforcement powers in the context of a
Bivens claim for retaliatory prosecution under the First
Amendment (a Bivens action refers to “a private right of
action for damages . . . brought directly under the
Constitution against federal officials,” Vanderklok, 868 F.3d
at 198). See id. at 208-09 (explaining “there is a practical
concern with establishing a court-crafted remedy in the
[airport screening context]” because “a First Amendment
retaliatory prosecution claim hinges, in part, on whether the
allegedly offending government employee had probable cause
to take some enforcement action”). It is also inconsistent
with the proviso’s text, which includes investigative and law
enforcement officers separately. In light of Vanderklok’s
limited scope and § 2680(h)’s expansive language, we cannot
presume the two are linked. Nor should we import the case’s
dicta on probable cause and other law enforcement powers to
our case, see Vanderklok, 868 F.3d at 208, as at least one
52
other Circuit has declined to do the same, see, e.g., Bunch,
880 F.3d at 943-44.19
IV. By analogizing TSA searches to routine
administrative inspections, my colleagues preclude
victims of TSA abuses from obtaining any
meaningful remedy for a variety of intentional tort
claims.
Finally, my colleagues state that Pellegrino asks for a
wholesale expansion of the Government’s tort liability for
administrative searches. They analogize TSA searches to
routine administrative inspections and claim that a ruling in
her favor would lead to a “significant . . . waiver of sovereign
immunity” for all administrative screenings. Majority Op. at
27.
As a preliminary matter, we need not worry that
Pellegrino’s position would imperil the public fisc because
amicus counsel allayed our concerns at oral argument:
Individuals must file administrative complaints with the TSA
before bringing any intentional-tort claims in federal court.
In 2015, fewer than 200 individuals (out of 700 million
individuals screened) filed complaints alleging the types of
19
The Government argued in Bunch that the chemist-
defendant was not a law enforcement officer because he
“work[ed] primarily in a laboratory analyzing physical
evidence gathered by law enforcement agents . . . and
provide[d] technical assistance to law enforcement
agents. . . .” Gov’t Br. at 24, Bunch v. United States, No. 16-
3775 (7th Cir. May 3, 2017). As noted, the Seventh Circuit
did not adopt this reading of the proviso. Nor did it accept
that the chemist’s job responsibilities barred him from being
an officer included within the proviso.
53
harms that fall within § 2680(h)’s terms. If 2015’s statistics
are representative, there will be no “flood of litigation”
against the Government for alleged TSO abuses. Corrected
Tr. of Oral Arg. at 26:20–21.
Similarly, and to repeat for context, Pellegrino’s
position is not as expansive as the majority portrays it.
Instead of asking us to waive immunity in all contexts, she
requests that we determine whether TSOs are investigative or
law enforcement officers under § 2680(h) and whether TSA
screenings fall within its reach. Amicus counsel made this
point at oral argument, noting the broad question of
regulatory searches is not before us at this time. See id. at
9:1–2, 10:13–14. Consequently, we should not extrapolate
Pellegrino’s claims to include all possible administrative
searches. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 799
(D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in the judgment) (“[T]he cardinal principle of
judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more—counsels us to go no
further.”).
Moreover, TSA searches are markedly different from
routine administrative inspections. Unlike the screenings the
majority cites (e.g., inspections of books, records, food
products, establishments, warehouses, factories, and emission
sources), see Majority Op. at 26-27 & n.16, TSA searches
extend to an individual’s physical person and are directed to
the general public. TSOs have the authority to conduct “pat-
down searches,” which include “inspection[s] of the head,
neck, arms, torso, legs, and feet . . . [,] includ[ing] head
coverings and sensitive areas such as breasts, groin, and the
buttocks.” Security Screening, Transp. Sec. Admin.,
https://www.tsa.gov/travel/security-screening (last visited
July 9, 2018). Given the wide scope of such screenings, they
are not comparable to inspections of highly regulated items or
54
facilities. Indeed, the potential for abuse and widespread
harm may be greater with TSA searches than with almost any
other type of administrative search.
Amicus counsel acknowledges this point, highlighting
several examples where TSOs abused their powers, injuring
passengers. See Suppl. Reply Br. at 13-14. For example,
TSOs at Denver International Airport “manipulated the
security system . . . so that one of them, a man, could grope
‘attractive’ male passengers coming through the
checkpoint. . . .” Lindsey Bever, TSA Employees Accused in
Scanner Scam to ‘Grope’ Male Passengers, Wash. Post (Apr.
15, 2015), https://www.washingtonpost.com/news/morning-
mix/wp/2015/04/15/tsa-employees-accused-in-scanner-scam-
to-grope-male-passengers. Although the TSA retained video
footage, it could not identify any victims, which influenced
the prosecutors’ initial decision not to file charges. See id.Similarly, a male TSO at New York’s LaGuardia Airport told
a 21-year-old woman he needed to screen “[her] body and
[her] luggage,” led her into a bathroom, and sexually
assaulted her. 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-tsa-
screener-charged/index.html (internal quotation marks
omitted). These types of abuses are more likely to occur in
the context of TSA screenings, making them vastly dissimilar
to regulatory searches confined to discrete items or facilities.
While Pellegrino did not bring any assault or battery
claims, the majority’s holding would bar other plaintiffs from
bringing those claims, leaving them without a remedy.20
20
Under the Westfall Act, 28 U.S.C. § 2679(d), the
Government may deny that an employee was acting within
the scope of her employment and thus allow a plaintiff to
55
Their holding would also immunize TSOs that retaliate
against passengers who demand better screening conditions or
voice concerns over screening procedures. This cannot be
what Congress intended in passing § 2680(h), which it
characterized as “a minimal first step in providing a remedy
against the Federal Government” for certain abuses. S. Rep.
No. 93-588, at 2792 (1973). Nor is it faithful to statutory text
that spells out a specific definition of “investigative or law
enforcement officer” and nowhere limits itself to criminal law
enforcement personnel.
Accordingly, TSA searches are not the same as
administrative inspections, and, by equating these concepts,
today’s holding denies recourse to those who are harmed by
TSO abuses.
V. Conclusion
Pellegrino brings us an issue of first impression. She
asks if she can recover against the TSOs who detained her
and ordered her arrest at Philadelphia International Airport.
Her specific claims—false arrest, false imprisonment, and
malicious prosecution—fall within the Federal Tort Claims
Act. While it ordinarily bars intentional tort claims against
Government officials, it contains a proviso that would allow
her claims to go forward if TSOs are “investigative or law
enforcement officers.” They are so if they are “officer[s] of
proceed against the employee in state court, see Armstrong v.
Thompson, 759 F. Supp. 2d 89, 96 (D.D.C. 2011) (calling this
a “denial of a Westfall certification”). The Government’s
decision to deny Westfall certification is largely within its
discretion. See Corrected Tr. of Oral Arg. at 30:16–22.
Neither the Government nor the District Court denied
Westfall certification to the TSOs in this appeal.
56
the United States . . . empowered by law to execute searches,
to seize evidence, or to make arrests for violations of Federal
law.” 28 U.S.C. § 2680(h). TSOs fit this definition because
they conduct searches, see 49 C.F.R. § 1546.207(a), and have
the legal authority to do so, see 49 U.S.C. § 44901(a). They
are also “officers of the United States,” as they are tasked
with administering and maintaining the law, see 49 C.F.R.
§§ 172.101, 175.10(a), and are given the exclusive authority
to conduct pre-boarding screenings for “flights . . . originating
in the United States,” 49 U.S.C. § 44901(a). Thus they fall
within the ambit of the proviso, and Pellegrino’s claims
should proceed to trial.
Yet my colleagues hold that they are not covered.
They look to other statutes for clarification, consult various
canons of construction, and also examine legislative history.
Ultimately they conclude § 2680(h) covers only criminal law
enforcement officers. In doing so, they depart from other
Circuits’ interpretation of the proviso. See Bunch, 880 F.3d at
943-45; Sami, 617 F.2d at 764-65. They also disregard
Supreme Court precedent that tells us how to interpret
§ 2680(h)’s language. See Millbrook, 569 U.S. at 56-57.
Their decision insulates TSOs from all intentional tort claims,
leaving plaintiffs without a civil remedy. Absent
congressional action, they cannot recover if a TSO assaults
them, unlawfully detains them, or unlawfully lodges a
criminal complaint against them. All of this is because my
colleagues look through a lens that legislates “criminal” into a
provision it nowhere appears.
This is not what Congress intended, as it enacted
§ 2680(h) to serve as a broad remedy against tortious conduct.
See S. Rep. No. 93-588, at 2791 (1973) (noting the provision
“would submit the Government to liability whenever its
agents act under color of law so as to injure the public
through search and seizures that are conducted without
57
warrants”). It also ignores Congress’s definition of
“investigative or law enforcement officer,” which we must
apply “even if it varies from that term’s ordinary meaning.”
Stenberg, 530 U.S. at 942.
In view of these principles, I disagree with my
colleagues’ reasoning. Instead of relying on non-textual
sources, we must apply § 2680(h)’s plain language; other
statutes, the canons, and legislative history (i.e., authorities
outside of the proviso) cannot defeat its words. Because the
text tells the tale, I part with today’s holding. I conclude that
TSOs are investigative or law enforcement officers under
§ 2680(h) and that TSA searches do not evade its reach. In
line with my conclusion, Pellegrino (and similarly situated
plaintiffs) are entitled to their day in court. I respectfully
dissent.
58