66 F.4th 144
4th Cir.2023Background
- Erin Osmon alleged a TSA screener at Asheville Regional Airport told her to submit to a "groin search," forced her to spread her legs excessively, and fondled her genitals twice; she sued the United States under the Federal Tort Claims Act (FTCA) for battery.
- A magistrate judge recommended dismissal for lack of subject-matter jurisdiction on the ground the FTCA’s assault/battery exception barred the claim; the district court adopted that recommendation, finding Osmon’s objections insufficiently specific.
- The government did not dispute the screener was acting within the scope of employment but argued TSA screeners are not covered by the FTCA’s law-enforcement proviso (28 U.S.C. § 2680(h)).
- The Fourth Circuit reviewed de novo whether Osmon preserved her objection and whether TSA screeners qualify as "investigative or law enforcement officers" empowered to "execute searches, to seize evidence, or to make arrests for violations of Federal law."
- The court joined the Third and Eighth Circuits, held TSA screeners are covered by the law-enforcement proviso (because they are empowered to execute searches), reversed the dismissal, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation for de novo review of magistrate judge recommendation | Osmon filed a focused, specific objection identifying legal question and competing authorities | Objection was too brief and merely summarized prior arguments, so de novo review was forfeited | Preserved — Osmon’s objection was sufficiently specific; district court erred |
| Whether TSA screeners are "investigative or law enforcement officers" under § 2680(h) | TSA screeners are federal officers empowered by law to execute searches (statutory TSA authority to screen) | TSA screeners are not the sort of law-enforcement officers covered by the proviso | Yes — TSA screeners fall within the statutory definition; FTCA waiver applies |
| Whether "execute searches" is limited to criminal investigatory searches | "Execute searches" is plain language and covers administrative/airport searches that can detect federal offenses | The proviso should be read to cover only criminal investigative searches, not administrative screening | Rejected — no textual basis to add a "criminal" limitation; provision speaks in the disjunctive and plain language controls |
| Role of modifier "for violations of Federal law" and construction rule favoring immunity | Plain text shows TSA searches can target federal violations (e.g., weapons/explosives); Millbrook’s plain-text approach governs | Ambiguities should be resolved in favor of sovereign immunity; exceptions to waiver should be narrowly construed | Court relied on plain language (Millbrook) and found no need to apply a strict-presumption-of-immunity rule |
Key Cases Cited
- Millbrook v. United States, 569 U.S. 50 (2013) (FTCA law-enforcement proviso interpretation: focus on officer's legal authority)
- Pellegrino v. Transportation Sec. Admin., 937 F.3d 164 (3d Cir. 2019) (en banc) (holding TSA screeners covered by law-enforcement proviso)
- Iverson v. United States, 973 F.3d 843 (8th Cir. 2020) (holding TSA screener assaults fall within FTCA waiver)
- Dolan v. United States Postal Serv., 546 U.S. 481 (2006) (discussing limits on construing FTCA exceptions)
- Federal Deposit Ins. Co. v. Meyer, 510 U.S. 471 (1994) (statutory waiver defines jurisdiction)
- Clendening v. United States, 19 F.4th 421 (4th Cir. 2021) (reviewability of FTCA coverage questions)