71 F.4th 1189
9th Cir.2023Background
- Plaintiff Michele Leuthauser alleges a Transportation Security Officer (TSO) digitally penetrated her during a pat-down at a TSA checkpoint and caused emotional distress.
- Leuthauser sued the TSO in her individual capacity (Bivens claim) and the United States under the FTCA (battery and IIED). The district court dismissed the Bivens claim and later granted summary judgment for the government on the FTCA claims, holding TSOs are not "investigative or law enforcement officers" under 28 U.S.C. § 2680(h).
- The key legal question on appeal was whether TSOs fall within the FTCA's "law enforcement proviso," which waives sovereign immunity for assault/battery by "investigative or law enforcement officers of the United States."
- The Ninth Circuit analyzed whether TSOs are (1) "officers of the United States" and (2) "empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law."
- The court concluded TSOs meet the proviso: TSOs fit the ordinary meaning of "officer," TSA screening and pat-downs qualify as "searches," and those searches are conducted in furtherance of federal aviation-security law. The Ninth Circuit reversed and remanded.
Issues
| Issue | Leuthauser's Argument | United States' Argument | Held |
|---|---|---|---|
| Whether TSOs are "officers of the United States" under § 2680(h) | TSOs are officers in ordinary meaning (title, uniform, badge) and therefore "officers of the United States." | "Officer" should be limited to personnel with traditional police powers; TSOs are merely employees/administrative screeners. | Held: "Officer" in proviso includes TSOs; ordinary meaning and statutory text control. |
| Whether TSOs are "empowered by law to execute searches... for violations of Federal law" | TSA statutory/regulatory scheme authorizes TSOs to screen/search passengers; screenings are searches and target conduct (weapons, explosives) prohibited by federal law. | Provision should be limited to criminal investigative searches; administrative airport screening is not a qualifying "search" under the proviso. | Held: TSOs execute searches within ordinary meaning and those searches are for violations of federal law; proviso covers them. |
| Whether the proviso should be narrowly read (criminal context only) | Proviso's text lacks a criminal limitation; courts must not add words Congress omitted. | The list terms (seize evidence, make arrests) imply a criminal-law context; noscitur a sociis and related canons narrow scope. | Held: Court rejects adding a criminal-only limitation; statutory text is unambiguous and covers TSOs. |
Key Cases Cited
- Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164 (3d Cir. 2019) (held TSOs fall within FTCA law-enforcement proviso)
- Iverson v. United States, 973 F.3d 843 (8th Cir. 2020) (same)
- Osmon v. United States, 66 F.4th 144 (4th Cir. 2023) (same)
- Millbrook v. United States, 569 U.S. 50 (2013) (statutory interpretation caution—courts not to narrow FTCA proviso beyond text)
- United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (airport screening searches are searches under the Fourth Amendment)
- Terry v. Ohio, 392 U.S. 1 (1968) (definition and recognition of searches during stops and frisks)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (establishes Bivens damages action context)