Case Information
*1 Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
____________
SMITH, Chief Judge.
The Federal Tort Claims Act (FTCA) waives sovereign immunity, allowing individuals to sue the United States for certain harms caused by its agents. For some torts, the FTCA specifies that an individual may only sue if the tort is committed by a specific class of government officer. This case involves a battery claim. Pursuant to the FTCA, a battery claim can proceed if an investigative or law enforcement *2 officer committed it. 28 U.S.C. § 2680(h). The central question here is whether Transportation Security Administration (TSA) screening personnel, known as Transportation Security Officers (TSOs), satisfy the FTCA’s definition of an investigative or law enforcement officer . Holding that they do, we reverse and remand.
I. Background
Generally, sovereign immunity prevents “the United States [from being] sued
without its consent.”
Hinsely v. Standing Rock Child Protective Servs.
,
Specifically, Congress excepted certain intentional torts from the statutory waiver of sovereign immunity. This exception bars “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Thus, claims for these acts remain barred by sovereign immunity. To complicate matters, however, the statute also contains an exception to the exception. The “law-enforcement proviso” allows plaintiffs to file claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, [and] malicious prosecution.” Id. The proviso only applies, however, to claims that are the result of “acts or omissions of investigative or law enforcement officers of the United States Government.” Id. (emphasis added) . The proviso defines investigative or law enforcement officer as “any officer of the United States who is empowered by law to *3 execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id. In sum, a plaintiff may sue the United States for injuries resulting from assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution, if committed by an investigative or law enforcement officer.
In this case, Brian Iverson went through security at the Minneapolis-St. Paul airport. Because of a prior injury, Iverson walked with the aid of crutches. At the security checkpoint, TSOs performed a pat-down search. During that search, Iverson was allowed to place his hands on his crutches but had to stand on his own power. Iverson alleges that a TSO pulled him forward and then abruptly let go, causing Iverson to fall. The fall injured Iverson.
Iverson filed an administrative claim, which the TSA denied. He then filed this suit, asserting battery and negligence claims. The government moved to dismiss, arguing that the FTCA’s waiver of sovereign immunity does not cover intentional torts, such as battery. It also asserted that the FTCA bars claims that arise out of an intentional tort, such as Iverson’s negligence claim. Iverson argued that TSOs are investigative or law enforcement officers under the proviso, and thus they are not immune from suit. In the alternative, he argued that his negligence claim did not arise out of his battery claim. After finding for the government, the district court dismissed Iverson’s complaint. This appeal followed.
II. Discussion
Iverson contends that TSOs are
investigative or law enforcement officers
under
the proviso.
See
28 U.S.C. § 2680(h). Therefore, he claims, the district court erred in
finding that they are immune from suit. We review the district court’s grant of a
motion to dismiss de novo.
Miller v. Redwood Toxicology Lab., Inc.
,
Are TSOs investigative or law enforcement officers under the law-enforcement proviso of the FTCA? See 28 U.S.C. § 2680(h). We begin with the statute’s text. The statute defines those officers as “ any officer of the United States who is empowered by law to execute searches , to seize evidence, or to make arrests for violations of Federal law.” Id. (emphasis added).
The parties disagree about the meaning of the emphasized terms. Iverson contends a plain reading of the statute shows that TSOs are officers who are empowered by law to execute searches . The government disagrees and avers that the proviso refers only to “traditional” law enforcement activities, not to the work of the uniformed employees screening passengers at airports. Appellee’s Br. at 17, 21–22. Thus, it claims, TSOs are not legally empowered to do those acts excepted from sovereign immunity’s bar under any reading of the statue.
“When a statute includes an explicit definition, we must follow that definition,
even if it varies from that term’s ordinary meaning.”
Stenberg v. Carhart
, 530 U.S.
914, 942 (2000). But “[w]hen a word is not defined by statute, we normally construe
it in accord with its ordinary or natural meaning.”
United States v. Jungers
, 702 F.3d
1066, 1071 (8th Cir. 2013) (quoting
Smith v. United States
, 508 U.S. 223, 228
(1993)). We have stated that “[o]rdinarily, a word’s usage accords with its dictionary
definition.”
Thompson Truck & Trailer, Inc. v. United States
,
While interpreting another provision of § 2680, the Supreme Court has
instructed that “[t]he definition[s] of words in insolation . . . [are] not necessarily
controlling in statutory construction.”
Dolan v. U.S. Postal Serv.
,
Whether TSOs satisfy the law-enforcement proviso is a new issue for this
court. Two of our sister circuits have addressed it but are divided on the answer.
See
generally Pellegrino v. U.S. Trans. Sec. Admin.
,
We first address each term and the parties’ relevant arguments separately, but
will bear in mind that when interpreting the statute, we consider “the whole statutory
text.”
Dolan
,
A. Officers
To qualify as an
investigative or law enforcement officer
under the proviso, a
TSO must be “any
officer
of the United States.” 28 U.S.C. § 2680(h) (emphasis
added). The parties disagree about the definition of
officer
. Because the term is not
statutorily defined, we consider its ordinary dictionary definition.
See Thompson
Truck & Trailer
,
Congress enacted the proviso in 1974. One dictionary from the time defines officer as “one charged with a duty” and “one who is appointed or elected to serve in a position of trust, authority, or command esp. as specif. provided for by law.” Officer , Webster’s Third New Int’l Dictionary (1971). Another defines officer as “[o]ne who is charged by a superior power (and particularly by government) with the *6 power and duty of exercising certain functions” or “[o]ne who is invested with some portion of the functions of the government to be exercised for the public benefit.” Officer , Black’s Law Dictionary (4th ed., rev. 1968).
Applying those definitions, the Pellegrino majority found that TSOs are officers. See 937 F.3d at 170–72. These individuals are tasked with government functions, specifically, carrying out safety screenings at airports. Id. at 170. And, they perform those functions for the public’s benefit. Id. It also noted that the TSA itself calls TSOs officers , and that “TSOs wear uniforms with badges that prominently display the title.” Id.
We also conclude that TSOs are officers. They are “charged with a duty,” Officer , Webster’s Third New Int’l Dictionary (1971), and “charged by a superior power . . . with the power and duty of exercising certain functions.” Officer , Black’s Law Dictionary (4th ed., rev. 1968). Congress, by statute, charged TSOs with the power to conduct airport screenings. See 49 U.S.C. § 44901.
Those screenings are a “ function[] of the government . . . exercised for the public benefit.” Officer , Black’s Law Dictionary (4th ed., rev. 1968). Specifically, the screenings ensure that no passenger enters a plane with a prohibited item, including “weapons, explosives, and incendiaries.” 49 C.F.R. § 1540.5 (defining “Screening function”). This function protects passenger safety and national security.
Further, TSOs “serve in a position of . . . authority.” Officer , Webster’s Third New Int’l Dictionary (1971). The TSA holds them out to the public as officers through their title and uniforms. It does so to ensure the public respects them. [2] *7 Agreeing with the Pellegrino dissent, see 937 F.3d at 189–94 (Krause, J., dissenting), the government argues that more specific definitions should apply. For example, the government argues that we should adopt a recent dictionary definition of United States Officer , which is defined as “an officer appointed under the authority of the federal government.” Appellee’s Br. at 12 (quoting United States officer , Black’s Law Dictionary (10th ed. 2014)). Even applying that definition, the analysis would be unchanged.
Additionally, Iverson’s definitions better reflect the ordinary meaning of
officers
in the proviso. First, the use of the term
any
before
officers
does not favor a
narrow definition to those who are classified as appointed.
See United States v.
Gonzales
,
the traveling public safe.” Press Release, Transportation Security Officers Have Renewed Focus and New Look on Seventh Anniversary of 9/11 , Transp. Sec. Admin. (Sept. 11, 2008),
https://www.tsa.gov/news/releases/2008/09/11/transportation-security-officers-ha ve-renewed-focus-and-new-look-seventh. “The attire aims to convey an image of authority to passengers, who have harassed, pushed and in a few instances punched screeners. ‘Some of our officers aren’t respected,’ TSA spokeswoman Ellen Howe said.” Thomas Frank, TSA’s New Policelike Badges a Sore Point with Real Cops , ABC News (June 23, 2008),
https://abcnews.go.com/Travel/story?id=5173231&page=1.
As a consequence, we find that TSOs fall within the ordinary meaning of the
proviso. But the government also argues that statutory contexts, both within and
outside of the FTCA, counsel that we should depart from the plain meaning. We
address those arguments, aware of the Court’s directive that “[t]he case must be a
strong one indeed, which would justify a Court in departing from the plain meaning
of words . . . in search of an intention which the words themselves did not suggest.”
Bouie v. City of Columbia
,
The government first argues that TSOs are not officers under the FTCA because Congress identified them in a different Act as employees . The Airport Transportation Security Act (ATSA) directs that “screening . . . shall be carried out by a Federal Government employee .” 49 U.S.C. § 44901(a) (emphasis added). The ATSA indicates, via cross reference, that an employee is “an officer and an individual.” 5 U.S.C. § 2105(a).
Put another way, the government argues that Congress would have described TSOs as officers in the ATSA if it wanted courts to consider TSOs officers in the FTCA. We decline the invitation to disregard the FTCA’s ordinary meaning and instead import Congress’s classification of TSOs as employees from the ATSA. To be sure, Congress described TSOs as employees in the ATSA, but it also defined employees in ATSA to include officers . See 49 U.S.C. § 44901(a) (cross-referencing 5 U.S.C. § 2105 (defining employee as “an officer and an individual”)). Consequently, it appears that Congress did not intend to exclude officers when using the term employee to describe screening personnel. Its choice to not cross-reference Title V’s definition of officer does not alter that analysis; Congress simply chose a more inclusive term.
Second, the government’s argument has an unacceptable statutory effect: It
uses a later enactment—the ATSA—to limit the scope of an earlier enactment—the
FTCA proviso. As it stands, the proviso, passed in 1974, covers TSOs because they
satisfy the ordinary meaning of
officers
. If we were to import Congress’s
classification of TSOs from the ATSA, which was passed in 2001, with the
interpretation the government prefers, TSOs would not be
officers
but mere
employees. That would limit the earlier enactment’s scope and alter its definition of
officers
. In short, this would require us to hold that Congress silently altered a term’s
meaning in one statute by passing an unrelated statute almost 30 years later. Such a
holding would be contrary to principles of statutory interpretation.
See Bilski v.
Kappos
,
Admittedly, courts “do[] not lightly assume that Congress silently attaches
different meanings to the same term
in the same or related statutes
.”
Azar v. Allina
Health Servs.
, 139 S. Ct. 1804, 1812 (2019) (emphasis added). Relying on this
language, the dissent in
Pellegrino
argued that the ATSA “mapped” itself into the
FTCA.
The FTCA and ATSA are certainly not the same statute. Nor does the
government argue that they are materially related. Indeed, a relevant statutory canon
requires that the statutes be
in pari materia
(“on the same subject”) before courts can
*10
construe them “as if they were one law.”
Wachovia Bank v. Schmidt
,
The government argues that interpreting
officers
to cover TSOs renders the
FTCA’s use of
employee
redundant. Even if TSOs satisfied the definition of
employee
and
officer
in the FTCA, it does not mean that the terms are redundant. Similar to the
ATSA, the FTCA’s definition of
employee
includes
officers
. 28 U.S.C. § 2671. Thus
the statute itself contemplates that an
officer
might also be an
employee
. In that
instance, “[w]e are hesitant to put too much stock into a distinction between two
terms that are not themselves mutually exclusive.”
Pellegrino
,
In summary, the phrase “any officer of the United States,” as written in 28 U.S.C. § 2680(h), includes TSOs.
B. Empowered by Law
The government next argues that, even if TSOs are officers , they are not empowered by law . It asks this court, when evaluating if an actor is empowered by law , to “look to whether there is a specific statutory grant of authority to search, seize, *11 or arrest.” Appellee’s Br. at 18. That standard appears consistent with the ordinary meaning of empowered . Dictionaries from the time of the proviso’s enactment defined empower as “to give official authority to” or to “delegate legal power to.” Empower , Webster’s Third New Int’l Dictionary (1971).
Under that definition, TSOs are empowered by law to execute searches. Through the ATSA, Congress requires the Administrator of the TSA (the “Administrator”) to “provide for the screening of all passengers and property . . . that will be carried aboard a passenger aircraft.” 49 U.S.C. § 44901(a). Congress also required that those screenings “be carried out by a Federal Government employee”—the TSOs. Id. The ATSA indicates that those screenings can include various electronic means, canine detection teams, and “a physical search . . . with manifest verification.” Id. § 44901(g)(4). Congress thus mandated that TSOs carry out screenings and authorized physical searches as one means to complete that duty. The statute specifically authorizes federal employees, TSOs, to screen passengers and property. We consider this sufficient to conclude that they are empowered by law to conduct searches.
The government argues that delegation does not constitute empowerment for two reasons. First, it argues that the ATSA delegates the authority to search to the Administrator—not to the TSOs. That argument is contrary to the statutory language. Section 44901(a) indicates that the Administrator “shall provide for the screening of all passengers.” 49 U.S.C. § 44901(a) (emphasis added). Yet it specifies that “the screening . . . shall be carried out by [TSOs].” Id. (emphasis added). Congress requires that the Administrator provide the screening, and that TSOs carry out the screening. The party providing for the screening “make[s] provision” to ensure that it is conducted. Provide , Oxford English Dictionary (3d ed. 2007). But the party carrying out the screening must have the authority to put the screening “into practice” and bring it “to completion.” Carry Out , Oxford English Dictionary (3d ed. 2007). *12 Because it is during the execution of the screening that the power to search is exercised, Congress necessarily empowered TSOs to effectuate searches.
Second, the government urges that the statutory authorization is limited and non-discretionary. We disagree. Congress gave TSOs discretion. The ATSA did not direct TSOs to “physically search” all passengers or cargo. Instead, it indicated that they could also use “x-ray systems, explosives detection systems, explosives trace detection, explosives detection canine teams . . . . [and] additional methods.” 49 U.S.C. § 44901(g)(4). Therefore, TSOs have discretion in exercising their authority to search passengers and property.
Thus, we conclude TSOs are “ empowered by law to execute searches.” 28 U.S.C. § 2680(h) (emphasis added).
C. To Execute Searches for Violations of Federal Law The government also maintains that TSOs do not “execute searches . . . for violations of Federal law.” 28 U.S.C. § 2680(h) (emphasis added). This belies the ordinary meaning of search . Webster’s defines search as “to look into or over carefully or thoroughly in an effort to find or discover.” Search , Webster’s Third New Int’l Dictionary (1971). Black’s indicates that it means “[a]n examination of a man’s . . . person, with a view to the discovery of contraband or illicit or stolen property.” Search , Black’s Law Dictionary (4th ed., rev. 1968).
By statute and practice, TSOs satisfy these definitions. TSOs are tasked with executing screenings “of all passengers and property.” 49 U.S.C. § 44901(a). Those screenings include “a physical examination or non-intrusive methods of assessing whether cargo poses a threat to transportation security.” Id. § 44901(g)(4). TSOs are empowered to use “x-ray systems, explosives detection systems, explosives trace detection, explosives detection canine teams certified by the Transportation Security *13 Administration, or a physical search.” Id. Accordingly, while screening, TSOs “look into or over” passengers and their property “carefully . . . in an effort to find or discover” “contraband or illicit . . . property.” Search , Webster’s Third New Int’l Dictionary (1971); Search , Black’s Law Dictionary (4th ed., rev. 1968). Therefore, the screenings satisfy search ’s ordinary meaning.
The same is true for TSOs’ practices. TSOs use “[m]illimeter wave advanced imaging technology,” which “safely screens passengers . . . for metallic and non-metallic threats, including weapons and explosives, which may be concealed u n d e r c l o t h i n g . ” S e c u r i t y S c r e e n i n g , T r a n s . S e c . A d mi n . , https://www.tsa.gov/travel/security-screening (select “Screening Technology” tab) (last visited March 25, 2020). They may also conduct “[p]at-down procedures,” which include “inspection[s] of the head, neck, arms, torso, legs, and feet.” Id. (select “Pat- Down Screening” tab). Those “are used to determine whether prohibited items or other threats to transportation security are concealed on the person.” Id. These methods allow TSOs to look over passengers “carefully . . . in an effort to find or discover” “contraband or illicit . . . property.” Search , Webster’s Third New Int’l Dictionary (1971); Search , Black’s Law Dictionary (4th ed., rev. 1968). We hold that TSOs conduct searches .
The government argues that (1) the proviso’s use of execute searches refers to traditional law enforcement searches, and therefore, (2) TSOs’ administrative searches do not satisfy the proviso.
The textual indicium that supports the government’s first argument is that
execute searches
is followed by “seize evidence, or . . . make arrest.” 28 U.S.C.
§ 2680(h). The powers referred to, it argues, are
traditional law enforcement
activities, so the
searches
referred to are only
traditional law enforcement searches
.
The interpretative canon of
noscitur a sociis
undergirds that argument. That canon
*14
“counsels lawyers reading statutes that a word may be known by the company it
keeps.”
Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson
, 559 U.S.
280, 287 (2010) (internal quotations omitted). Put another way, a word’s meaning is
ascertained “from the words around it.”
Babbitt v. Sweet Home Chapter of Cmtys. for
a Great Or.
,
The
Pellegrino
majority rejected the same argument.
See
We agree with that analysis.
Noscitur a sociis
may only be used “where words
are of obscure or doubtful meaning.”
Russell Motor Car Co.
, 261 U.S. at 520.
Searches
is neither an obscure word nor is its meaning doubtful. In addition, the
canon is not “particularly illuminating” where there is “[a] list of three items, each
quite distinct from the other.”
Graham Cty.
,
Even if the terms do limit each other and execute searches in the proviso has a law enforcement connotation, TSOs satisfy that definition. The ordinary meaning *15 of search remains broad, even if limited to a criminal investigation context. Under a heading indicating that it is discussing “Criminal Law,” Black’s defines a search as “[a]n examination of a man’s . . . person, with a view to the discovery of contraband or illicit or stolen property.” Search , Black’s Law Dictionary (4th ed., rev. 1968). As discussed above, TSOs are given the power to execute physical searches, such as pat downs, with the intent of finding weapons, explosives, or other prohibited items. So even in the criminal context, TSOs’ screenings constitute searches.
For those reasons, TSOs execute searches , as required by the proviso. Therefore, we conclude they are contemplated within the meaning of the phrase “any officer . . . empowered by law to execute searches . ” [3] 28 U.S.C. § 2680(h). In consequence, TSOs satisfy the proviso’s definition of an investigative or law enforcement officer .
D. Proviso as a Whole
Reading the proviso as a whole does not alter our analysis. Its full text provides the following:
[W]ith regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
28 U.S.C. § 2680(h).
*16 The proviso does not use the phrase traditional law enforcement to modify officers of the United States Government. Instead, it uses the phrase “ investigative or law enforcement officers.” Id. (emphasis added). Certainly, the language used contemplates traditional law enforcement officers in various federal law enforcement agencies. But there is nothing in the language of the proviso to prevent TSOs from also being included as they perform their specialized searches to ensure public safety and national security. The proviso itself expressly defines the officers whose acts can cause injuries that are actionable irrespective of sovereign immunity. That definition is not narrow but broad as it includes “ any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id. (emphasis added). TSOs search persons and baggage for weapons and explosives which might be transported by plane in violation of federal law. See, e.g. , 49 U.S.C. § 46505 (providing criminal penalties for “[c]arrying a weapon or explosive on an aircraft”). Whether traditional or not, these officers fall into the class of “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).
The government also argues that legislative history
[4]
indicates that Congress
intended the proviso to refer to traditional law enforcement personnel. “In the usual
case, if the statute’s language is plain, the sole function of the courts is to enforce it
according to its terms, without reference to its legislative history.”
Owner-Operator
Indep. Drivers Ass’n v. Supervalu, Inc.
,
*17
The dissent views our reading as inconsistent with the “general rule that
ambiguity in waivers of sovereign immunity are construed in favor of the
government.”
See infra.
But as the
Pellegrino
majority indicated, the Supreme Court
has held that conflicts “in the FTCA context” “do[] not implicate the general rule that
a waiver of the Government’s sovereign immunity will be strictly construed . . . in
favor of the sovereign.”
Dolan
,
The dissent also believes that we should construe the proviso in the
government’s favor because it is an exception to the exception.
See Foster v. United
States
,
*18 Thus, given the powers delegated to TSOs and the highly intrusive search techniques they are authorized to use, we find that they fall within the ordinary public meaning of the proviso’s definition of investigative or law enforcement officers. 28 U.S.C. § 2680(h). In enacting the proviso, Congress waived sovereign immunity for actions arising out of battery claims committed by such officers. Therefore, we hold that sovereign immunity does not bar Iverson’s battery claim. In addition, because the battery claim is not barred, Iverson’s negligence claim is not barred, regardless of whether it “aris[es] out of” his battery claim. See id. (stating that the proviso applies to “any claim arising . . . out of . . . battery”).
III. Conclusion
For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.
GRUENDER, Circuit Judge, dissenting.
Today, the court decides that Transportation Security Administration (“TSA”) screening employees are “investigative or law enforcement officers of the United States Government” as defined in the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. § 2680(h). In so doing, the court expands federal tort liability, relinquishing the sovereign immunity of the United States without a clear statement from Congress authorizing such a waiver. Because I do not believe this interpretation is consistent with the text, history, or structure of the FTCA, I respectfully dissent.
I.
The FTCA waives the United States’ immunity for certain torts committed by its employees. 28 U.S.C. § 1346(b)(1). This waiver of sovereign immunity is limited by a number of exceptions, including the “intentional tort exception,” *19 which preserves the United States’ immunity from suit for—as the nickname implies—intentional torts committed by government employees. See id. § 2860(h). “In 1974, Congress carved out an exception to § 2680(h)’s preservation of the United States’ sovereign immunity,” adding what is known as the “law enforcement proviso.” Millbrook v. United States , 569 U.S. 50, 52 (2013) (citing Act of Mar. 16, 1974, Pub. L. No. 93-253, § 2, 88 Stat. 50)). This rewaiver of sovereign immunity provides federal district courts with exclusive jurisdiction over claims arising from a limited list of intentional torts committed by “investigative or law enforcement officers,” § 2680(h), which Congress, in turn, defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,” id.
We are tasked in this case with determining whether the law enforcement
proviso extends to include TSA security screening employees. “[W]e normally
construe [a statute] in accord with [the] ordinary and natural meaning” of its terms.
United States v. Jungers
,
The ordinary use of the English language makes the good sense of this rule
apparent. If I said, “I saw her
duck
,” the meaning of my words would vary greatly
based on whether I finished the sentence by describing an object that had just been
hurled across the room or if instead I explained that I had recently visited a
friend’s aviary. For this reason, “[t]he plainness or ambiguity of statutory
language is determined by reference to the language itself, the specific context in
which that language is used, and the broader context of the statute as a whole.”
Robinson v. Shell Oil Co.
,
Yet while the court and I agree on these settled principles, we disagree on
how to apply them to the text at hand. In my view, the court errs in choosing the
broadest possible definition of statutory terms while analyzing them without
context—both that which exists within the four corners of the statutory text and
the public meaning of the terms at the time the statute was enacted.
See Smith v.
United States
,
The court thus commits the same error Judge Krause recognized in her well-
reasoned dissent from the Third Circuit’s
en banc
decision in
Pellegrino v. U.S.
Trans. Sec. Admin.
,
II. A. TSA screeners are not “officer[s] of the United States.” Start with the phrase “officer of the United States.” The court adopts the broadest reading of the relevant statutory terms, relying solely on its chosen dictionary definitions of “officer” to conclude that the law enforcement proviso covers TSA screeners. This approach is particularly problematic in this instance because Congress specifically distinguished between employees and officers in the FTCA and because it identified TSA screeners not as officers but as employees in the relevant authorizing statute.
The FTCA draws a clear distinction between employees on the one hand
and officers on the other. For instance, the FTCA waives sovereign immunity for
torts “caused by the negligent or wrongful act or omission of any
employee
.” 28
U.S.C. § 1346(b)(1) (emphasis added). It does the same for “[a]ny claim based
upon . . . a discretionary function or duty on the part of . . .
an employee
of the
Government.
Id.
§ 2680(a) (emphasis added). But Congress made a different
choice when writing the law enforcement proviso: it did not waive sovereign
immunity for the intentional torts of federal
employees
but instead granted federal
district courts jurisdiction over certain intentional torts committed by an “
officer
of
the United States.”
Id.
§ 2680(h) (emphasis added). The distinction signals a
*22
clear difference—one which courts are tasked to define.
See Ctr. for Special
Needs Tr. Admin., Inc. v. Olson
,
Because § 2680(h) does not further define what it means by “officer of the United States,” we have previously consulted an agency’s authorizing statute to determine whether the person holding the position is an “officer.” Celestine v. United States , 841 F.2d 851, 852-53 (8th Cir. 1988) (per curiam) (holding that Veterans’ Administration hospital security guards are covered by the proviso because they were statutorily defined by 38 U.S.C. § 218 (1987) as “VA police officers” who were “empowered to make arrests for violation of federal law”). As the Pellegrino dissent noted, the FTCA specifically points to the particular “law” that “empower[s]” employees of that agency. 937 F.3d at 192 (Krause, J., dissenting) (quoting 28 U.S.C. § 2680(h)); see also 28 U.S.C. § 2671 (defining “[e]mployee of the government” for purposes of the FTCA as “officers or employees of any federal agency ” (emphasis added)).
The relevant empowering law—here, the Airport Transportation Security Act (“ATSA”)—directs that security “screening . . . shall be carried out by a Federal Government employee .” 49 U.S.C. § 44901(a) (emphasis added). And, like the FTCA, the ATSA draws a clear distinction between types of TSA personnel: it creates both TSA employees and TSA officers. Compare id. (screening employees), with id. § 114(p)(1) (law enforcement officers). The ATSA then assigns the screening duties to the TSA employees . Id. § 44901(a). But the TSA Administrator may assign particular employees to serve as law enforcement officers , and they may carry firearms, make arrests, and seek and execute warrants for arrest or seizure of evidence. Id. §114(p)(1)-(2). Therefore, the very statutory scheme creating the TSA screening position classifies them as “employees” while excluding them from its classification of “officers.”
The court “decline[s] the invitation” to follow Congress’s clear directive.
Supra
at 8. It concedes that Congress described TSA screeners as employees in
the ATSA, but it counters that Congress also defined employees in the ATSA to
include
officers.
See
49 U.S.C. § 44901(a) (defining “employee” by reference to 5
U.S.C. § 2105). But the court should not be troubled by a sensible point: all
officers are employees, but not all employees are officers. Helpfully, in this
instance, Congress has told us which is which. For example, the ATSA tasks the
TSA Administrator with “develop[ing] standards for the hiring and retention” of
security screening employees, 49 U.S.C. § 114(e)(2), but grants the Administrator
the power to “designate an employee . . . to serve as a law enforcement officer,”
id.
§ 114(p). Further, the TSA Administrator is required to “order the deployment of
at least 1 law enforcement officer at each airport security screening location.”
Id.
§ 44901(h)(2). Thus, screening employees not “designate[d]” as officers are not
officers, even though some personnel stationed at an airport screening location are
officers. As a result, conflating “officer” with “employee” risks running afoul of
the “usual rule that when the legislature uses certain language in one part of the
statute and different language in another, the court assumes different meanings
were intended.”
Sosa v. Alvarez-Machain
,
The court rejects the ATSA’s clear distinction for two other reasons. First,
in its view, adopting the ATSA’s definition of TSA screeners as employees would
impermissibly rewrite the FTCA.
Supra
at 9. And second, the court concludes
that Congress’s decision to label screeners as “employees” and other TSA officials
as “officers” should not affect our reading of the FTCA because the statutes are
not
in pari materia
and thus we are under no obligation to construe them “as if
they were one law.”
Wachovia Bank v. Schmidt
,
Neither of these assertions is correct, and for the same reason. The Supreme
Court has held that the law enforcement proviso “focuses on the
status
of persons
whose conduct may be actionable.”
Millbrook
,
In this instance, Congress did more than use the same labels in different
statutes. It specifically defined the authority of the relevant positions, determining
that
employees
could do no more than conduct routine, consensual administrative
screenings, while
officers
were empowered by law to conduct traditional law
enforcement functions: execute searches, seize evidence, and make arrests.
See
Corbett
,
*25
Instead of relying on the statutory distinction drawn in the ATSA, the court
relies on dictionary definitions of “officer” that it selected. For example, it notes
that
Black’s Law Dictionary
defines “officer” as “[o]ne who is invested with some
portion of the functions of the government to be exercised for the public benefit.”
Supra
at 6. It also directs us to
Webster’s
definition that an officer is one “charged
with a duty” or one who “serve[s] in a position of trust, authority or command esp.
as specif. provided for by law.”
Id.
at 5. But it is not clear why one should choose
any of the definitions offered by the court, especially when others—more
approximate to the ordinary meaning of “officer” when situated in context—exist.
For instance, the same version of
Webster’s
cited by the court also defines
determining whether the TSA screeners are
statutorily
authorized as “officer[s] of the
United States.” The uniforms prescribed by TSA regulations cannot change the law
Congress has written.
See Metz
,
Appearances aside, there are real differences between TSA screeners and officers, in terms of not only their statutory authorization but also their training. TSA screeners are required to “possess a high school diploma” or experience “sufficient” to satisfy the Administrator they can “perform the duties of the position.” 49 C.F.R. § 44935(f). They must also have “basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills,” as well as “sufficient dexterity and capability” to “manipulate and handle such baggage, containers, and other objects subject to security processing.” Id. On the other hand, TSA law enforcement officers are required to undergo the standard law enforcement training required by the state in which they work, a program that must include training in firearms and “treatment of persons subject to inspection, detention, search, arrest, and other aviation security activities.” Id. § 1542.217(c). For this reason, in the very job description for screeners, it explains that while they carry out an important duty in service of the nation, “[t]his position is not a law enforcement position.” Transportation Security Officer (TSO) , USAJOBS, https://www.usajobs.gov/GetJob/ViewDetails/466395100.
“officer” as “one charged with administering and maintaining the law (as a constable, bailiff, [or] sheriff).” Webster’s Third New Int’l Dictionary 1567 (1971). Webster’s New Collegiate Dictionary defines “officer” as simply “one charged with police duties.” Webster’s New Collegiate Dictionary 791 (1979).
In the face of a clear textual distinction drawn by Congress, and without any
guidance to what definition is preferred, a judge’s choice of dictionary should not
be dispositive.
Ardestani v. INS
,
Ironically, the court’s chosen definitions of “officer” suggest the court should look to the terms used in the ATSA. In the exact same definition, Black’s explains that “[a]n ‘officer’ is distinguished from an ‘employee’ in the greater importance, dignity, and independence of his position,” Officer , Black’s Law Dictionary 1235 (4th ed. 1968), and that “[i]n determining whether one is an ‘officer’ or ‘employee,’” we should look to how the position is “defined by the statute or ordinance creating it” or “whether it is created by an appointment or election, or merely by a contract of employment,” id. (emphasis added). Webster’s Third New International Dictionary , cited by the court, clarifies at the end of its definition not only that an officer is one “as specif. provided for by law” but also that officer is “distinguished from employee .” Webster’s Third New Int’l Dictionary 1567 (1971) (emphasis in original). Yet the court dismisses the statutory distinctions drawn between the same terms both in the FTCA and in the TSA’s authorizing statute.
As Justice Scalia once explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation: Federal Courts and the Law 24 (1997). Because TSA screeners are specifically deemed “employees” and not “officers” in the relevant authorizing statute, they are not “officer[s] of the United States” as defined in the FTCA.
B. TSA screeners are not “empowered by law to execute searches . . . for violations of Federal law.” Even if I were to agree that TSA screeners are “officer[s] of the United States,” I still would not find that they are “investigative or law enforcement officers” as defined in the law enforcement proviso because TSA screeners are not “empowered by law to execute searches . . . for violations of Federal law.” [7] 28 U.S.C. § 2680(h).
The court concludes that TSA screening personnel are “empowered by law” to conduct searches for violations of federal law because they are authorized to conduct “the screening of all passengers and property,” 49 U.S.C. § 44901(a), and screening, in turn, is defined in part as a “physical examination,” including a “physical search,” id. § 44901(g)(4). The court thus finds that TSA screenings satisfy the “plain meaning” of the word “search,” supra at 12, drawing from Black’s Law Dictionary and defining “search” as “[a]n examination of a man’s . . . person, with a view to the discovery of contraband or illicit or stolen property.” *28 But the court omits a key clause from its chosen definition. The same edition of Black’s continues beyond the court’s excerpted section, defining “search” as “[a]n examination of a man’s . . . person, with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense. ” Black’s Law Dictionary 1518 (4th ed. 1968) (emphasis added). The court’s omission is telling. It neglects the investigative context of its chosen definition of search just as it neglects a key distinction between two types of searches: investigative and administrative.
As other courts have acknowledged, search is “a legal term of art,”
Widgren
v. Maple Grove Twp.
,
Supporting the Government’s contention, the Pellegrino dissent emphasized that at least four textual cues in the law enforcement proviso suggest that Congress only referred to criminal or investigative searches: the word preceding searches (“execute”); the terms to be defined (“investigative or law enforcement officer”); the other responsibilities listed (“seize evidence” and “make arrests”); and the series qualifier (“for violations of Federal law”). See 937 F.3d at 185. I agree. Taken together, the surrounding context for the term “searches” makes clear that the statute refers solely to traditional criminal or investigative searches. See Gutierrez v. Ada , 528 U.S. 250, 254-55 (2000) (interpreting words in a statute consistently with their neighbors to avoid giving unintended breadth to an Act of Congress).
First, Congress did not simply use the term “search” alone but instead
defined the relevant officials as those with the power to “execute searches.” When
Congress uses the phrase “execute searches,” it “invariably refers to traditional
investigatory searches.”
Pellegrino
, 937 F.3d at 185 (Krause, J., dissenting)
(citing 18 U.S.C. § 2231(a);
id.
§ 2234;
id.
§ 3109; 22 U.S.C. § 2709(a)(2)). And
prior to the enactment of the proviso in 1974, neither the Supreme Court nor any
circuit court had ever used the phrase outside of the investigative search context.
See, e.g.
,
Chimel v. California
, 395 U.S. 752, 756 (1969);
Wong Sun v. United
States
,
“[I]t is a cardinal rule of statutory construction that, when Congress employs a [legal] term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” FAA v. Cooper , 566 U.S. 284, 292 (2012) (internal quotation marks omitted). Put another way, “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Hall v. Hall , 584 U.S. ---, 138 S. Ct. 1118, 1128 (2018) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes , 47 Colum. L. Rev. 527, 537 (1947)).
Here, Congress chose to use the term “execute searches,” a phrasing it has employed repeatedly and consistently to the same effect. We are thus bound to give it the same meaning. Finley v. United States , 490 U.S. 545, 556 (1989), abrogated on other grounds by 28 U.S.C. § 1367 (noting that it “is of paramount importance . . . that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts”).
Second, the term “execute searches” logically draws meaning from the
terms it defines:
investigative or law enforcement officer
. “[T]he meaning of [a]
definition is almost always closely related to the ordinary meaning of the word
being defined.” Scalia & Garner,
Reading Law
228;
id
at 232 (“[T]he word being
defined is the most significant element of the definition’s context.”). Put a bit
more bluntly: “It should take the strongest evidence to make us believe that
Congress has defined a term in a manner repugnant to its ordinary and traditional
sense.”
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.
,
Here, it is beyond contention that the phrase “investigative or law
enforcement officer” evokes criminal law enforcement.
See Law Enforcement
,
Black’s Law Dictionary (11 ed. 2019) (“The detection and punishment of
violations of the law.”);
Investigative Search
, Black’s Law Dictionary (11 ed.
2019) (“A search, esp. a police search, . . . for the purpose of cataloguing the items
*31
. . . .”);
see also
Henry Campbell Black,
Handbook on the Construction and
Interpretation of the Laws
171 (2d ed. 1911) (“The words of a statute are to be
construed with reference to its subject-matter.”). As Judge Krause explained when
discussing the same issue, “the only other statutes found in the United States Code
that employ analogous terminology are the Wiretap Act, 18 U.S.C. §§ 2510-2522,
3121-3127, which Congress enacted six years before the law enforcement proviso,
and the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1809, 1827,
which was enacted four years afterward.”
Pellegrino
,
Third, § 2680(h) pairs “execute searches” with other traditional law
enforcement functions, “seiz[ing] evidence” and “mak[ing] arrests.” The rule of
noscitur a sociis
—that a word is known by the company it keeps—is intended to
prevent courts from heedlessly assigning one word an expansive meaning such
that it gives “unintended breadth to the Acts of Congress.”
Gustafson v. Alloyd
Co.
,
The court dismisses the invocation of the canon of noscitur a sociis in this case, reasoning (1) that the term “searches” is clear and (2) that the three duties in the proviso are listed in the disjunctive and thus application of the canon is inappropriate. Supra at 14. I respectfully disagree with the court’s view of when the canon is appropriate.
In Dolan , a case the court repeatedly cites, the Supreme Court invoked noscitur to hold that another provision in the FTCA that bars claims arising out of the “loss, miscarriage, or negligent transmission of letters or postal matter” did not include slip-and-fall hazards created by mail carriers because the words “negligent transmission” were necessarily limited by the words “loss” and “miscarriage.” Dolan , 546 U.S. at 486 (emphasis added). As in Dolan , so too here. The term “execute searches” is necessarily limited by the words “seize evidence” and “make arrests.” The use of the disjunctive or does not change this fact. See Scalia & Garner, Reading Law 196-97 (discussing approvingly the invocation of noscitur a sociis to define the term “case” in the phrase “fastened case, gunbox, or securely tied package” (emphasis added)). [8]
At any rate, there is another reason why one should not adopt the court’s reading of the law enforcement proviso. Each function in the law enforcement proviso is connected at the end of the sentence by the phrase “for violations of Federal law,” a postpositive modifier (sometimes called a series qualifier) that *33 affects the meaning of each term. See Scalia & Garner, Reading Law 147. Reading the phrase “execute searches” to exclude the terms “for violations of Federal law” would result in one meaning when modifying “make arrests” (criminal only) and another when modifying “execute searches” (criminal and noncriminal). That is not how we traditionally read statutes. See Gutierrez , 528 U.S. at 255 (noting that it would be “odd” to think Congress “suddenly” changed the meaning of a phrase “midway through a statute”); United States v. Bass , 404 U.S. 336, 339-40 (1971) (applying the series-qualifier canon).
The court sidesteps this problem by stating that the United States did not argue TSA screeners do not execute searches for violations of federal law. Supra at 15 n.3. It thus assumes the screenings TSA personnel conduct must be for violations of federal law. But the Government argues that TSA screeners do not “execute searches” at all, which means, a fortiori , that they are not executing searches for violations of federal law. Moreover, the Government repeatedly asserts that, even if the screening actions taken by TSA employees constitute “searches” in the literal sense of the word, TSA screeners do not “execute searches” in the manner described by the FTCA because they serve a different programmatic purpose. That is, again, they are not searches for violations of law, because as “[s]everal courts have concluded,” “TSA screeners perform consensual, pre-boarding administrative searches for certain prohibited items (i.e., knives, firearms, liquids, gels, etc.), not traditional law enforcement functions such as making arrests and executing searches for violations of federal law.” Corbett , 568 F. App’x at 700 (collecting cases); see also United States v. Marquez , 410 F.3d 612, 616 (9th Cir. 2005) (“Airport screenings of passengers and their baggage constitute administrative searches . . . .”). Even Iverson admits that such “searches would seemingly not satisfy § 2680(h)’s requirement that an official be ‘empowered by law to execute searches.’” Cf. Wilson v. United States , 959 F.2d 12, 15 (2d Cir. 1992) (determining that parole officers with the power to “seize evidence” are not “investigative or law enforcement officers” because the seizure “depends on the consent of the person from whom the evidence is to be taken”).
Indeed, to suggest otherwise is to put the entire TSA screening program in
constitutional doubt,
see Ferguson v. City of Charleston
,
Because of this constitutional requirement, the TSA’s authorizing statute makes clear that TSA screeners are to screen only for “cargo [that] poses a threat to transportation security.” 49 U.S.C. § 44901(a)(4). While TSA seeks to uncover firearms, explosive devices, and other items prohibited on aircraft under threat of criminal penalty, id. § 46505, they search “for the programmatic purpose of removing prohibited items, which is designed to prevent ‘violations of Federal law’ from occurring,” Pellegrino , 937 F.3d . at 187 (Krause, J., dissenting).
Accordingly, “[s]creeners do not have the authority to detain individuals and must call law enforcement officers to search, seize, and arrest individuals if illegal items are found.” Welch v. Huntleigh USA Corp. , No. 04-663 KI, 2005 WL 1864296 at *5 (D. Or. Aug. 4, 2005) (emphasis added); see also Pellegrino , 937 F.3d at 184 (Krause, J., dissenting) (citing the TSA’s own regulations and explaining that if a screener discovers evidence of a crime, he must “refer it to a supervisor or law enforcement official for appropriate action”); Walcott v. United States , No. 13-CV-3303, 2013 WL 5708044 at *2 (E.D.N.Y. Oct. 18, 2013) (making similar point and holding that TSA screeners do not “execute searches” under § 2680(h)). Contrary to the court’s suggestion today, the administrative nature of such inspections does not change simply because TSA screeners “discover evidence of crimes.” See New York v. Burger , 482 U.S. 691, 716 (1987). Therefore, TSA agents “do not search, and may not constitutionally search, ‘for violations of Federal law.’” Pellegrino , 937 F.3d at 187 (Krause, J., dissenting) .
For similar reasons, the ATSA does not vest TSA screeners with the same
discretion to execute searches as it vests in officers.
See supra
at 12. TSA
screeners cannot choose whom to screen or what to look for. Instead, at the
direction of the TSA Administrator, they must “screen[]
all
passengers and
property,” they must do so “before boarding,” and they must follow the “methods”
specified by statute or the TSA Administrator.
See
49 U.S.C. § 44901(a), (g)(4)
(emphasis added). By contrast, TSA officers may “make an arrest . . . for
any
offense against the United States . . . or for
any
felony cognizable under the laws
of the United States,” and they are empowered with discretion to “seek and
execute warrants” whenever they have “probable cause that a violation has been
committed.”
Id.
§ 114(p)(2)(B)-(C) (emphasis added). In fact, it is in part
precisely because screeners lack this discretion that the first courts to consider the
constitutionality of airport screenings determined that they were constitutional.
See, e.g.
,
United States v. Davis
,
In context, then, it is clear that the FTCA waives sovereign immunity only for intentional torts committed by officers who execute searches for violations of federal criminal law. As a result, TSA screeners are not investigative or law enforcement officers.
C. Ambiguity in waivers of sovereign immunity are to be narrowly
construed in favor of the United States
There is yet another reason why, respectfully, I cannot adopt the court’s
reading of the law enforcement proviso: we generally require a “clear statement”
to find a waiver of sovereign immunity, and we apply a general rule that ambiguity
in waivers of sovereign immunity are construed in favor of the Government.
See
United States v. White Mountain Apache Tribe
,
In light of this well-established principle, the breadth of its chosen
definitions of “officer,” particularly when coupled with its definition of “search,”
should give the court pause. First, the court defines the term “officer” as “one
charged with a duty” who “serve[s] in a position of trust, authority, or command.”
Supra
at 5. On its face, that broad definition is elastic enough to cover almost all
federal employees, suggesting it likely is not what the term “officer” means in the
statutory context of a limited waiver of sovereign immunity concerning intentional
torts of “investigative or law enforcement officers.” And second, because its
definition of “search” is equally broad, the court significantly expands federal tort
liability, seemingly covering all intentional torts of all federal employees who
conduct administrative searches,
investigations, or
inspections, without
distinction.
See Millbrook
,
With the court’s broad construction in hand, future litigants will be hard- pressed to distinguish between TSA screeners and other federal employees that perform screenings at the entrances of government buildings or any other administrative search for that matter. See City of Indianapolis v. Edmond , 531 U.S. 32, 39 (2000); 41 C.F.R. § 102-74.370 (authorizing all federal agencies to, “at their discretion, inspect packages, briefcases and other containers in the immediate possession of . . . persons arriving on, working at, visiting, or departing from Federal property”); see also Pellegrino , 937 F.3d at 196-97 (Krause, J., dissenting) (describing the numerous government employees that conduct *37 administrative, programmatic, or security screenings). Justice Scalia once vividly counselled that “[Congress] does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001). Disregarding this rule of construction, the court’s reading of the FTCA smuggles a very large pachyderm into the statute. [9]
I am mindful that the Supreme Court has counseled that courts must be
cautious when interpreting
exceptions
to the FTCA’s waiver of sovereign
immunity so as not to defeat the purpose of the statute,
Dolan
,
The court points out,
supra
at 17, that the
Pellegrino en banc
majority read
Dolan
to mean that “disputes over the breadth of the Tort Claims Act ‘do[] not
implicate the general rule that a waiver of the Government’s sovereign immunity
will be strictly construed . . . in favor of the sovereign,’”
Pellegrino
,
Millbrook
is not to the contrary; it is entirely inapposite.
Millbrook
did not
discuss—let alone reject—the applicability of the strict-construction rule to the
FTCA generally.
See
Finally, regardless of whether the general rule that waivers of sovereign immunity are to be strictly construed applies in the FTCA context, I do not believe *40 the court is empowered to give the FTCA’s terms “an expansive meaning.” Supra at 7. Indeed, I am aware of no case that suggests waivers of sovereign immunity should be construed broadly against the Government. Instead, Dolan , to the extent it applies, directs courts to identify “those circumstances which are within the words and reason of the exception—no less and no more.” 546 U.S. at 492 (internal quotation marks omitted).
Here, because TSA screeners are not “investigative or law enforcement officers” as defined by the FTCA—that is, they are not “within the words and reason” of any waiver of immunity—I respectfully dissent.
______________________________
Notes
[1] When it considered this question, the district court relied on the earlier panel
decision, which the Third Circuit reversed en banc.
See Pellegrino v. U.S. Transp.
Sec. Admin.
,
[2] TSA stated that it altered TSOs’ uniforms, including adding badges, to “address[] officers’ concerns of utility, respect, and confidence, and will stand as a readily identifiable symbol of TSA’s security mission and officers’ role of keeping
[3] In its brief, the government does not challenge that TSOs’
searches
are for
violations of federal law
. Therefore, we assume that argument is waived.
See United
States v. Frausto
,
[4] The government points out that the proviso was enacted in response to certain abusive police actions. See Appellee’s Br. at 15 (citing S. Rep. No. 93-588, at 8 (Nov. 29, 1973), as reprinted in 1974 U.S.C.C.A.N. 2789, 2791). That may be true, but the language Congress ultimately enacted suggests a broader context. And per that language, the need to compensate citizens for injuries caused by certain acts of the government’s officers would obtain in airports as well as other locales.
[5] In
LaFromboise v. Leavitt
, a panel of this court noted, even in light of
Dolan
,
that “the scope of waivers of sovereign immunity must be strictly construed.” 439
F.3d 792, 795 (8th Cir. 2006). However, that panel was not interpreting the proviso
and said that its statement was “not necessary to our conclusion.”
Id.
The language
is dicta and thus nonbinding.
See Boaz v. United States
,
[6] In a footnote, the court appears to suggest that it is relevant that TSA screeners wear uniforms and have badges. Supra at 6 & n.2. But we are tasked with
[7] Iverson does not argue that TSA screeners are empowered to seize evidence or make arrests, and for obvious reasons. The relevant provisions of the ATSA specify that screeners do not have the power to perform these functions. The section of the Act that establishes the powers and responsibilities of the TSA has separate provisions for “screening operations” and “law enforcement powers.” See 49 U.S.C. § 114(e), (p). The TSA Administrator has the power to designate a “law enforcement officer” with ability to “make an arrest without a warrant” and “seek and execute warrants for arrest or seizure of evidence . . . upon probable cause that a violation has been committed.” Id. § 114(p)(1)-(2). TSA screeners lack the powers given to TSA law enforcement officers. See id. § 44901(g)(4).
[8] Indeed, there may just as well be times where the conjunctive and is a misleading signal for when the canon is applicable. See Scalia & Garner, Reading Law 196 (noting that words must be “conjoined in such a way as to indicate that they have some quality in common” and that, as a result, the “walrus’s allusion to ‘shoes and ships and sealing-wax, . . . cabbages and kings’ provides no occasion for noscitur a sociis ” (quoting Lewis Carroll, Through the Looking Glass 64 (1871; repr. 1917))).
[9] On their own, the approximately 50,000 TSA screeners screen approximately two million passengers each day. Factsheet, TSA by the Numbers , Trans. Sec. Admin 1 (Feb. 4, 2020), https://www.tsa.gov/sites/default/files/resources/tsabythenumbers _factsheet.pdf.
[10] Even if LaFromboise ’s discussion of this issue is “dicta and thus nonbinding,” supra at 17 n.5, as discussed below, it is correct.
[11] If one needed additional evidence that
Millbrook
did not abrogate the strict-
construction rule as applied to waivers in the FTCA, one only needs to consider who
authored the opinion. Justice Thomas dissented in
Dolan
, arguing among other
things that the Court should strictly construe the FTCA’s exceptions in favor of the
Government.
See