Argued: October 3, 2017
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
Pellegrino and Harry Waldman Pro Se Appellants
J. Sherer, Esq. (Argued) Office of United States Attorney
Counsel for Appellees
M. Thompson, Esq. (Argued) Sarah P. Hogarth, Esq. McDermott
Will & Emery Matthew L. Knowles, Esq. Court Appointed
Before: AMBRO, KRAUSE and SCIRICA, Circuit Judges
OPINION OF THE COURT
KRAUSE, CIRCUIT JUDGE.
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).
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
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 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.
Facts and Procedural History
Airport Security and Screeners
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.
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., 109th Cong. 7 (2006)
[hereinafter Screening Hearing] (statement of Edmund
"Kip" Hawley, Assistant Secretary, Transportation
Security Administration). 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),
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.
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 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.
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.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 invasive-extending to her credit
cards, coins, cell phone, and lipstick.
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.
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.
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 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
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.
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.
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.
November 2009, Pellegrino and Waldmancommenced 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.
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.
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.
United States, 559 F.2d 309, 310 (5th Cir. 1977) (per
curiam)). As "the law enforcement proviso was enacted as
a response to specific egregious 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.
District Court also ruled in the Government's favor on
Pellegrino's remaining claims, and Pellegrino then filed
Jurisdiction and Standard of Review
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).
The Federal Tort Claims Act
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). 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" 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 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.
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."
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.
Vanderklok v. United States
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.
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 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.
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.
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 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
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
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, we agree with Amicus that
Vanderklok addressed a different category of claim
and is not dispositive of the question presented today.
Analysis of Intentional Tort FTCA Claims and the Law
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.
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."
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 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.
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.
Interpretation of the Law Enforcement
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); 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))). With these considerations in
mind, we conclude that the law enforcement proviso covers
only criminal law enforcement officers.
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 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
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 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
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 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.
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. Title III
provides standards for when "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).
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
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.
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
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). Drug tests also constitute searches
under 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
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.
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).
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. 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
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 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
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, "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
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 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). 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
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.
interpretation of the law enforcement proviso is also
consistent with our case law and that of other Courts of
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 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.
remains the law of this Circuit 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 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.
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, 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
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 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
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 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
* * *
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.
The Proviso's Application to TSA
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,
and district courts have reached different
conclusions. 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
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 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.
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). This is 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. Those law enforcement 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").
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 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." 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 the nature of the
position or the scope of the accompanying authority.
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.
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." 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.
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 criminal
prosecution. 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
we persuaded that airport screenings are so distinct from
other administrative searches that they should be treated
differently under the proviso. The dissenting opinion
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.
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 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
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 exception, and the District
Court correctly dismissed those claims based on the United
States' sovereign immunity.
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. 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 ...