NADINE PELLEGRINO; HARRY WALDMAN, Aрpellants v. UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION, Div. of Dept. of Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK, Sued in her individual capacity; TSA STSO LAURA LABBEE, Sued in her individual capacity; TSA TSO DENICE KISSINGER, Sued in her individual capacity; JOHN/JANE DOE TSA Aviations Security Inspector defendants sued in their individual capacities; JOHN/JANE DOE TSA, Official Defendants, sued in their individual capacities
No. 15-3047
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Opinion filed: July 11, 2018
PRECEDENTIAL. Argued: October 3, 2017. District Judge: Honorable J. Curtis Joyner. On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civ. No. 2-09-cv-05505).
Argued: October 3, 2017
Before: AMBRO, KRAUSE and SCIRICA, Circuit Judges
(Opinion filed: July 11, 2018)
Nadine Pellegrino and Harry Waldman
Unit 1205 South
550 South Ocean Boulevard
Boca Raton, FL 33432
Pro Se Appellants
Mark J. Sherer, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellees
Paul M. Thompson, Esq. (Argued)
Sarah P. Hogarth, Esq.
McDermott Will & Emery
500 North Capitol Street, N.W.
Washington, DC 20001
Matthew L. Knowles, Esq.
McDermott Will & Emery
28 State Street
33rd Floor
Boston, MA 02109
Court Appointed Amicus Curiae
KRAUSE, Circuit Judge.
In Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), we declined to imply a Bivens cause of action against airport screeners employed by the Transportation Security Administration (TSA) in part because they “typically are not law enforcement officers and do not act as such.” Id. at 208. We now must decide a related question that we anticipated, but did not resolve, in Vanderklok: whether TSA screeners are “investigative or law enforcement officers” under the Federal Tort Claims Act (FTCA).
This question, one of first impression among the Courts of Appeals, arises because Appellant Nadine Pellegrino has asserted intentional tort claims against TSA screeners. Although under the FTCA the United States generally enjoys sovereign immunity for intentional torts committed by federal employees, this rule is subject to an exception known as the “law enforcement proviso,” which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers.”
Based on our review of the statute‘s text, purpose, and legislative history, as well as precedent from this Court and other Courts of Appeals, we now reach the conclusion that we foreshadowed in Vanderklok and hold that TSA screeners are not “investigative or law enforcement officers” under the law 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.
A. Airport Security and Screeners
To place what follows in proper context, we briefly describe the structure of the TSA and the screeners’ place within that structure. Congress created the TSA in the aftermath of the terrorist attacks of September 11, 2001, with the enactment of the Aviation and Transportation Security Act (ATSA),
Pertinent here is the Under Secretary‘s responsibility to “provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation.”
TSOs form just one part of the airport-security apparatus. The Under Secretary may also designate employees to serve as “law enforcement officer[s].”
B. Factual Background2
In 2006, Pellegrino and her husband, Harry Waldman, arrived at the Philadelphia International Airport, where they planned to catch a flight home to Florida. Pellegrino brought 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
As Abdul-Malik prepared to search Pellegrino‘s bags, Pellegrino “had the distinct feeling” that Abdul-Malik‘s gloves were not clean and asked her to put on new ones. Pellegrino Dep. 90:18-22, D.Ct. Dkt. No. 156. Abdul-Malik did as Pellegrino asked, but Pellegrino asserts that this request engendered hostility from Abdul-Malik. Abdul-Malik and Pellegrino then proceeded to a private screening room, where they were joined by TSA employees Laura Labbee, a supervisory TSO, and Denise Kissinger, another TSO.3 Kissinger swabbed Pellegrino‘s shirt and left the room to test the sample (for the presence of explosives), while Abdul-Malik inspected Pellegrino‘s luggage. Pellegrino contends that Abdul-Malik‘s screening was unnecessarily rough and invasive—extending to her credit cards, coins, cell phone, and lipstick.
At some point, Pellegrino asked Labbee why she was being subjected to this screening, and Labbee responded that it was an “airline-designated search.” Pellegrino Dep. 104:12, D.Ct. Dkt. No. 156. Pellegrino took this to mean that her airline ticket had been marked in a way that prompted the search, and because she and Waldman had accidentally switched tickets, she sought to stop the search by explaining that she believed that Waldman should have been searched instead. Nevertheless, the search continued, and Pellegrino told Labbee that she was going to report her to TSA authorities.
Once Abdul-Malik finished searching the rolling tote, Pellegrino, who believed that Abdul-Malik had damaged her eyeglasses and jewelry, asked Abdul-Malik to leave her items outside the tote sо that Pellegrino could re-pack it herself. Abdul-Malik refused and the interaction continued to deteriorate. First, Abdul-Malik had trouble zipping the tote closed and had to press her knee into it to force it shut. Next, when Pellegrino asked Labbee for permission to examine the tote, which she believed Abdul-Malik had damaged, that request was also denied. Pellegrino then told Labbee and Abdul-Malik they were “behaving like bitches.” Pellegrino Dep. 114:13-14, D.Ct. Dkt. No. 156. Finally, after Abdul-Malik had searched Pellegrino‘s largest bag, which contained clothes and shoes, and Kissinger finished swabbing and testing, Pellegrino was told that she could leave.
But simple closure was not to be. Instead, Pellegrino saw that Abdul-Malik had not re-packed her shoes, asked if she intended to do so, and was told “no.” Pellegrino Dep. 122:2, D.Ct. Dkt. No. 156. At that point, intending to re-pack her bags 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
Philadelphia police officers arrived at the scene a short time later, arrested Pellegrino, and took her to the police station, where she was held for about 18 hours before being released on bond. Eventually, the Philadelphia District Attorney‘s Office filed ten charges against Pellegrino: two counts each of felony aggravated assault, see
By the time the matter proceeded to trial in Philadelphia Municipal Court, however, Abdul-Malik was no longer employed by the TSA and did not appear. And because the trial judge had ruled that no witnesses could testify about events that took place outside of the private screening room in the absence of footage from video surveillance, Labbee—who was positioned partially outside the door of the screening room during the alleged assault—was precluded from testifying to those events. Without that testimony, the trial judge entered a verdict of not guilty.
In July 2008, Pellegrino submitted a claim to the TSA concerning the TSOs’ alleged misconduct and requesting damages of $951,200. The TSA denied the claim by letter almost a year later.
C. Procedural Background
In November 2009, Pellegrino and Waldman4 commenced this civil rights action in the Eastern District of Pennsylvania, naming as defendants the United States, the TSA, Abdul-Malik, Labbee, and Kissinger, and raising FTCA claims as to all defendants for (a) property damage, (b) false arrest/false imprisonment, (c) malicious prosecution, (d) civil conspiracy, (e) defamation, and (f) intentional and negligent infliction of emotional distress. In addition, as to the individual defendants, they raised Bivens claims for malicious and retaliatory prosecution, “aiding and abetting” malicious prosecution, and conspiracy to deprive civil rights, as well as a conspiracy claim under
In a series of orders, the District Court denied relief to Pellegrino on all claims with the exception of one FTCA property damage claim that the parties settled. In this appeal, we focus primarily on Pellegrino‘s FTCA claims for the intentional torts of false arrest, false imprisonment, and malicious prosecution.5
The District Court granted summary judgment on those claims on the ground that TSA screeners are not covered by the FTCA‘s law enforcement proviso because they are not “empowered by law to execute searches . . . for violations of Federal law.” Pellegrino v. U.S. Transp. Sec. Admin., No. 09-5505, 2014 WL 1489939, at *5, *8 (E.D. Pa. Apr. 16, 2014). While the Court recognized that TSA screeners are permitted to perform something that qualifies as a “search” under the Fourth Amendment, it concluded that it was unclear whether “Congress intended ‘search’ in § 2680(h) to be synonymous with ‘search’ within the meaning of the Fourth Amendment.” Id. at *5. Because it found the language of the proviso ambiguous, the Court turned to legislative history. The Court observed that “[a] review of the legislative history reveals that Congress, in response to ‘no-knock’ raids conducted by federal narcotic agents on the wrong dwellings, passed the 1974 amendment to the Federal Tort Claims Act to provide compensation for such victims.” Id. at *6 (quoting Solomon v. United States, 559 F.2d 309, 310 (5th Cir. 1977) (per curiam)). As “the law enforcement proviso was enacted as a response to specific eg[]regious behavior during raids conducted by federal law enforcement officers,” the Court concluded it “was not intended to be expansive enough to cover airport security screeners.” Id. at *7.
The District Court also ruled in the Government‘s favor on Pellegrino‘s remaining claims, and Pellegrino then filed this appeal.6
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over this action pursuant to
III. Legal Background
A. The Federal Tort Claims Act
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA creates a layered scheme waiving and then reasserting immunity. At the first level, the FTCA waives sovereign immunity for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”
Read together, these subsections provide that while private citizens are barred from bringing suit against federal employees for many intentional torts, they may nonetheless bring suit for a subset of these torts—“assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution“—if the alleged act was committed by an “investigative or law enforcement officer.”
Because Pellegrino asserts intentional tort claims arising out of the actions of TSOs, we must determine as a matter of statutory interpretation whether TSOs qualify as “investigative or law enforcement officers” such that the claims fall within the proviso.
B. Vanderklok v. United States
Contrary to the Government‘s assertion, we did not resolve this issue in its favor in our recent decision in Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017). But that case does provide some important touchpoints for assessing the question now squarely before us.
In Vanderklok, the plaintiff brought various claims against a TSO, including claims under the FTCA and a claim under Bivens for retaliatory prosecution in violation of the First Amendment. Id. at 195. The District Court denied the TSO‘s qualified immunity defense to the Bivens claim, and the TSO appealed. Id. at 196. We reversed the District Court‘s order in part, concluding that a Bivens cause of action for First Amendment retaliatory prosecution was not available to the plaintiff in those circumstances. Id. at 209.
In evaluating whether it was permissible to imply this Bivens claim, we considered two questions: (1) whether an alternative process—namely, an FTCA claim—was available to protect the constitutional interests at stake; and (2) whether there were special factors counseling against implying a Bivens cause of action in this context. See id. at 200. In addressing the first of these issues, we noted both the District Court‘s conclusion “that [the TSO] was not an investigative or law enforcement agent because he was not an ‘officer’ of the United States under [the FTCA‘s] definition” and its reasoning that the FTCA distinguished between “employee[s]” and “officer[s],” with only the latter being used in the law enforcement proviso. Id. at 203. The District Court also observed that the ATSA, “which created the TSA[,] designates as ‘law enforcement personnel’ only those TSA agents who are ‘(1) authorized to carry and use firearms; (2) vested with the degree of the police power; and (3) identifiable by appropriate indicia of authority.‘” Id. (alteration omitted) (quoting
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. See49 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 omitted).9
This ruling was one of the “portions of the opinion necessary to th[e] result,” and thus not dictum. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also In re Friedman‘s Inc., 738 F.3d 547, 552 (3d Cir. 2013) (explaining that a statement is not dictum if it is “necessary to our ultimate holding“). However, we ruled in Vanderklok only that TSOs are not law enforcement officers for purposes of a Bivens claim. Thus, while there may be good reasons to interpret the law enforcement proviso consistently with our Bivens case law, we agree with Amicus that Vanderklok addressed a different category of claim and is not dispositive of the question presented today.
IV. Analysis of Intentional Tort FTCA Claims and the Law Enforcement Proviso
In support of their respective positions on whether TSOs qualify as “investigative
Amicus contends that because the screenings performed by TSOs qualify as “searches” under the Fourth Amendment, see George v. Rehiel, 738 F.3d 562, 577 (3d Cir. 2013), TSOs “execute searches” for purposes of the proviso. Moreover, Amicus argues, the definition‘s reference to “any” officer shows that Congress intended for the term to be construed broadly and that “officer” itself has a broad, elastic definition. See Amicus Br. at 22 (stating that “officer” is defined as “[o]ne who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions” (alteration in original) (quoting Black‘s Law Dictionary (4th ed. 1968))). Amicus relies, at bottom, on the following syllogism: (a) federal workers who are authorized to perform any type of search are “investigative or law enforcement officers“; (b) TSA screeners perform searches; ergo (c) TSA screeners are “investigative or law enforcement officers.”
The Government, meanwhile, argues that the law enforcement proviso is designed to cover only traditional investigative or law enforcement officers, i.e., those who possess criminal justice powers. The Government contends that TSA screeners have much more circumscribed powers—as opposed to, for instance, FBI or DEA agents—and therefore are not covered by the prоviso. The Government also argues that TSOs are “employees,” not “officers,” and that the limited administrative searches that they perform do not constitute “searches” under the proviso.
We agree with the Government. Based on the proviso‘s text, structure, context, purpose, and history, as well as the relevant case law, we are persuaded that the phrase “investigative or law enforcement officers” is limited in scope and refers only to officers with criminal law enforcement powers. Because TSOs only conduct administrative searches and do not have such powers, they are not subject to the law enforcement proviso, and the Government‘s sovereign immunity bars this action.
A. Interpretation of the Law Enforcement Proviso
1. Text
As in all cases in which we interpret a statute, to determine the scope of the phrase “investigative or law enforcement officer“—meaning “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law“—under
To start, we find it important that the FTCA repeatedly distinguishes between officers and employees. The FTCA waives sovereign immunity for certain acts and omissions of an “employee.”
We find additional support in the canon noscitur a sociis, which “implements the idea that the meaning of a word should be determined by considering the words with which it is associated in context.” Flores v. Att‘y Gen., 856 F.3d 280, 295 n.80 (3d Cir. 2017). Each of the powers listed in the law enforcement proviso—“to execute searches, to seize evidence, or to make arrests for violations of Federal law“—has criminal law connotations. See, e.g., Hernandez v. United States, 34 F. Supp. 3d 1168, 1179 (D. Colo. 2014) (“Each of these functions are commonly understood to be traditional law enforcement functions.“). For instance, “execute a search” is a phrase
typically used when a warrant is involved, see, e.g.,
It is also significant that the law enforcement proviso covers just a subset of the torts listed in the intentional tort exception. While the intentional tort exception preserves immunity for the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with 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
Our textual analysis is further buttressed by the fact that the words to be defined here—“investigative or law enforcement officer“—typically refer to criminal law enforcement. See generally United States v. Stevens, 559 U.S. 460, 474 (2010) (“[A]n unclear definitional phrase may take meaning from the term to be defined.“). We have identified only one other context in which Congress has used the phrase “investigative or law enforcement officer.” That is the context of criminal wiretapping
Likewise, while Congress has used the phrase “law enforcement officer” much more frequently, the term invariably refers to individuals who are involved in criminal law enforcement. See, e.g.,
While none of these various textual arguments is, standing alone, dispositive,
2. Purpose
Our reading is also supported by our understanding of Congress‘s purpose in enacting the law enforcement proviso. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute . . . .“); see also King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (adopting the interpretation of a statute that “can fairly be read consistent with what we see as Congress‘s plan“).
Critically, interpreting “officer” to have a criminal law component avoids an unprincipled expansion of the Government‘s waiver of sovereign immunity. Countless federal employees are empowered to perform “searches.” The Secretary of Commerce, for instance, may “make such inspection of the books, records, and other writings and premises and property of any person” whose activities relate to weather modification,
3. Legislative History
Legislative history cannot overcome the clear language of a statute, but it can “play a confirmatory role in resolving ambiguity when statutory language and structure support a given interpretation.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 621–22 (3d Cir. 2015); see also Catwell v. Att‘y Gen., 623 F.3d 199, 208 (3d Cir. 2010). Here, the legislative history of the law enforcement proviso confirms our interpretation of the text.
Three other aspects of the legislative history also reflect Congress‘s intention to limit the proviso to criminal law enforcement officers. First, Congress was spurred to action by two ill-conceived raids conducted by federal narcotics agents in Collinsville, Illinois. In these raids, the agents, acting without warrants, kicked in doors without warning, drew weapons, and terrorized the residents, only to determine later that they had entered the wrong houses. As one committee report stressed, “[t]here is no effective legal remedy against the Federal Government for the actual physical damage, mu[ch] less the pain, suffering and humiliation to which the Collinsville families have been subjected.” S. Rep. No. 93-588, at 2 (1973), as reprinted in 1974 U.S.C.C.A.N. 2789, 2790. Members of Congress returned again and again to the problem of these “no knock” raids and the need to create a meaningful remedy for the victims. See, e.g., 120 Cong. Rec. 5287 (1974) (statement of Rep. Wiggins) (“I believe the Members ought to realize that this Senate amendment was an emotional response to the unfortunate Collinsville case . . . .“). Thus, the driving concern behind the enactment of H.R. 8245 was the potential for abuse of the devastating powers wielded by criminal law enforcement.
Second, Members of Congress explicitly discussed the fact that H.R. 8245, unlike the other bills, would not cover federal employees who perform administrative searches. Some observed that H.R. 8245 “only applies to law enforcement officers. It does not apply to any other Federal employees that might violate the rights of an individual.” 120 Cong. Rec. 5287 (statements of Reps. Donohue and Wiggins). Others, urging passage of the bills that waived immunity for all federal employees, lamented that H.R. 8245, by limiting the waiver to “investigative or law enforcement officers,” would provide no remedy for assaults committеd 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.
Third, when the drafters selected for the proviso what they characterized as “the types of tort[s] most frequently arising out of activities of Federal law enforcement officers,”17 they selected those torts (assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution) typically claimed against traditional law enforcement officers performing criminal law functions.
The criminal law boundaries of the law enforcement proviso are also reinforced by the legislative history of a related statutory provision that incorporates the proviso:
In sum, the legislative history of the proviso, as well as § 3724, fortifies our conclusion that Congress was focused on violations caused during criminal law enforcement activities and intentionally designed a remedy for those violations.
4. Case Law
Our interpretation of the law enforcement proviso is also consistent with our
In Matsko v. United States, 372 F.3d 556, 560 (3d Cir. 2004), for example, we categorically еxcluded 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.
Matsko remains the law of this Circuit20 and reflects the line we have drawn, in construing the law enforcement proviso, between administrative personnel performing solely administrative functions and those—whether employed by an administrative agency or a law enforcement agency—expressly designated law enforcement officers or assigned law enforcement duties. Indeed, the MSHA inspector in Matsko had “authority to inspect mines and investigate possible violations,” id., just as the EEOC agent in First National Bank of Jackson had “access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices,” 614 F.2d at 1007–08 (citation omitted). Those employees were authorized to conduct administrative searches, but because their jobs did not include criminal law enforcement responsibilities, they were considered to fall outside the law enforcement proviso.21
That approach is also consistent with decisions of other Courts of Appeals, which
Likewise, in Bunch v. United States, 880 F.3d 938, 943, 945 (7th Cir. 2018), 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
On the other hand, the Courts of Appeals have held that the proviso does not cover positions that lack a criminal law component. In First National Bank of Jackson, for example, the Fifth Circuit refused to apply the proviso to EEOC agents, explicitly distinguishing between federal employees who “have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices,” and “investigative or law enforcement officers” who have the power to “execute searches.” 614 F.2d at 1007–08 (citation omitted). Similarly, in Wilson v. United States, 959 F.2d 12, 15 (2d Cir. 1992) (per curiam), the Second Circuit held that parole
* * *
Based on these various indicia of meaning—the law enforcement proviso‘s text, structure, context, purpose, and history, as well as relevant case law—we are persuaded that the phrase “investigative or law enforcement officers” refers only to criminal law enforcement officers, not to federal employees who conduct only administrative searches.
B. The Proviso‘s Application to TSA Screeners
Given our holding as to the scope of the proviso, we have little difficulty concluding it does not cover TSA screeners. No Court of Appeals has yet decided the question precedentially,24 and district courts have reached different conclusions.25 However, as indicated in Vanderklok, confirmed in the ATSA (the TSA‘s founding statute), and demonstrated in practice, TSA screeners conduct only administrative searches, are not criminal law enforcement officers, and thus do not qualify as “investigative or law enforcement officers” under the FTCA.
As a starting point, we draw valuable guidance from Vanderklok. As we explained there, “TSA employees typically are not law enforcement officers and do not act as such.” Vanderklok, 868 F.3d at 208. Underpinning that rationale was our prior case law upholding TSA screenings as permissible suspicionless checkpoint searches under the administrative search doctrine. See United States v. George, 738 F.3d 569, 577 (3d Cir. 2013); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006). Against that backdrop, we explained that TSA screеners have limited authority: “[T]hey are instructed to carry out administrative searches and contact local law enforcement if they encounter situations requiring action beyond their limited though important responsibilities.” Vanderklok, 868 F.3d at 209.
Reinforcing the distinction we recognized in Vanderklok, the ATSA frequently distinguishes between “employees” who conduct administrative searches and “law enforcement officers.” For example, it specifies that the “screening[s]” conducted by TSOs “shall be carried out by a Federal Government employee (as defined in section 2105 of title 5, United States Code).”
Other analogous statutes, such as that governing Postal Inspectors, likewise preserve the text-based distinction between regular employees and officers by separately denominating the law enforcement arm of the agency. See, e.g.,
Despite this clear statutory distinction, Amicus argues that TSOs must qualify as “law enforcement officers” because of their title—they are “transportation security officers“—and because they wear a badge that labels them as “officers.” We are not persuaded that the word “officer” has this talismanic property, and it would be surprising indeed if such a superficial Interior and the Secretary of Commerce to enforce federal laws relating to fish and wildlife, who qualify as “investigative or law enforcement officers” for FTCA purposes under the express terms of their authorizing statute. See
The statutory distinction between TSOs and law enforcement officers is also meaningful as a matter of practice, as demonstrated by TSA Management Directive No. 100.4 (Sept. 1, 2009), filed by Pellegrino, entitled “Transportation Security Searches.” That directive separately defines “law enforcement officer,” “TSA law enforcement officer,” and “transportation security officer,” and it stresses the limits of the authority of a “transportation security officer“: TSOs may not perform screenings for the purpose of “detect[ing] evidence of crimes unrelated to transportation security.”
Recognizing that TSA screeners conduct administrative, not criminal searches thus not only respects the distinction Congress has made between “employees” and “law enforcement officers” in the FTCA, it also reflects the different job responsibilities and training of TSA “screeners” and “law enforcement officers” prescribed by the ATSA and agency policy. As we explained in Vanderklok, unlike criminal law enforcement officers, “line TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers.” 868 F.3d at 208. Put differently, TSOs, like most administrative employees, do not receive training on the specific constitutional doctrines and legal standards relevant to assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution—the torts covered by the law enforcement proviso. And that follows logically from the fact that doctrines like probable cause, as we described in Vanderklok, while of central importance to criminal law enforcement officers, are largely irrelevant to a TSO‘s job. Acknowledging that TSOs are not law enforcement officers under the proviso has the added value of maintaining this practical coherence.
Although all of these indicators—our case law, the TSA‘s governing statute, and agency policy and practice—confirm that TSOs conduct only routine administrative searches, the dissent argues that TSA screenings constitute “searches for violations of federal law because they are directed to illegal and prohibited items on passenger aircraft.” Dissent at 13. But the fact that screenings are searches for prohibited items only points up why they are not searches “for violations of federal law“: Screenings are aimed at items that must be removed before boarding—not at particular individuals—and their purpose is “an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings,” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973))—not to gather evidence of a crime with an eye toward criminal prosecution.29 Although a screening might prompt a TSO to refer an individual to criminal authorities for such investigation and prosecution where that administrative search happens to turn up evidence of a crime, screenings themselves are not conducted for that purpose and we could not have upheld them in Hartwell under the administrative search doctrine as suspicionless checkpoint searches if they were. See City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000) (“We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.“); see also Florida v. Harris, 568 U.S. 237, 243 (2013) (explaining that a police officer must have probable cause to conduct
Nor are we persuaded that airport screenings are so distinct from other administrative searches that they should be treated differently under the proviso. The dissenting opinion contends that because TSA screeners are uniquely empowered by
The problem with this approach is that it mistakes the subject matter of
In sum, as the delineated duties of TSOs make clear, and as is the case with many federal agencies, there is a clear division between the criminal law enforcement and non-criminal law enforcement arms of the TSA. TSOs—like meat inspectors, OSHA workers, and other personnel who are permitted to perform only administrative searches—fall into the latter category and thus do not qualify as “investigative or law enforcement officers” under the law enforcement proviso of the FTCA. Because the proviso does not apply, Pellegrino‘s intentional tort claims are barred by
*
*
We recognize that our holding here, combined with our decision in Vanderklok, means that individuals harmed by the intentional torts of TSOs will have very limited legal redress.32 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,
V. Analysis of Other Claims
We will also affirm the District Court‘s judgment as to Pellegrino‘s remaining claims. As for her other FTCA claims, “[t]he Federal Tort Claims Act [] bars actions against the United States for . . . defamation,” Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000), and Pennsylvania law forecloses the rest, see Molzof v. United States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United States’ liability under the FTCA is generally determined by reference to state law.“). That is because, under Pennsylvania law, “recovery for the tort of intentional infliction of emotional distress [has been] reserved by the courts for only the most clearly desperate and ultra extreme conduct,” Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998), and a claim for negligent infliction of emotional distress is restricted to four scenarios, see Toney v. Chester Cty. Hosp., 961 A.2d 192, 197–98 (Pa. Super. Ct. 2008), none of which is present here.33
Nor did the District Court err in rejecting Pellegrino‘s Bivens claims of retaliatory prosecution under the First Amendment and malicious prosecution under the Fourth Amendment.34 Vanderklok itself forecloses the retaliatory prosecution claim, see 868 F.3d at 209, and the same “special factors” that we observed there counseled against implying a Bivens claim—that TSA screeners are part of the national-security system and protect the public safety, Congress should be the body to recognize new causes of action, and TSA screeners are not trained on the issues of probable cause that serve as the foundation of a retaliatory prosecution claim,
Pellegrino‘s FOIA claims also fail. In response to Pellegrino‘s FOIA request,36 the TSA identified 375 pages of responsive documents, and withheld 90 of them, primarily on the ground that they were privileged and thus subject to Exemption 5 of FOIA. See
We are also unpersuaded that the District Court abused its discretion with respect to any of the case management orders challenged by Pellegrino. It was under no obligation to give Pellegrino an additional extension of time to file still more material when it had already granted her an extension of time to file her motion for reconsideration and response to the Government‘s motion for reconsideration, and Pellegrino had then filed a motion spanning hundreds of pages. Nor did it err
As for the sealing orders, the documents subject to the first sealing order were filed under seal as Pellegrino requested, and the Court reasonably refused to issue a second sealing order to permit Pellegrino to file previously available evidence in support of her motion for reconsideration. See, e.g., Max‘s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). And while Pellegrino argues that she needed to depose additiоnal witnesses who were not made available to her, she has not established that this limitation prejudiced her in any way. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010) (explaining that a discovery order will not be disturbed “absent a showing of actual and substantial prejudice“).37
In sum, the District Court dedicated an enormous amount of time and care to this case and its rulings were well within the broad scope of its discretion.
VI. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
Nadine Pellegrino, et al. v. TSA, et al.
No. 15-3047
AMBRO, Circuit Judge, dissenting
The Federal Government is typically immune from suit. The Federal Tort Claims Act,
Nadine Pellegrino relies on
Although there is scant textual basis for denying Pellegrino‘s claims, my colleagues hold that TSOs are immune from suit because they deem
While I agree with my colleagues’ reasoning on other points, I do not agree that
Even if we assume the definition is ambiguous, the result is the same. TSOs are liable under
I. Background Matters
A. Factual Background
For ease of reference, I restate the facts as I understand them. On July 29, 2006, Pellegrino and her husband Harry Waldman arrived at the Philadelphia International Airport to board a flight home to Florida. After she passed through the security checkpoint, Pellegrino was randomly selected for additional screening. TSO Thomas Clemmons began examining her bags, but she stopped him, demanding a private screening.
TSA employees subsequently led her to a private screening room, where TSOs Nuyriah Abdul-Malik, Laura Labbee, and Denise Kissinger conducted the screening. Kissinger swabbed the front and back of Pellegrino‘s shirt, and Abdul-Malik screened her luggage. According to Pellegrino, Abdul-Malik‘s inspection was unduly rough because she allegedly counted Pellegrino‘s coins and currency, rifled through her papers, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. She claims Abdul-Malik did not close the lids to various containers the latter opened, causing the previously enclosed items to spill inside her bags and damage her property. Pellegrino further contends Abdul-Malik punched, jammed, and forced her belongings back into her luggage, damaging it, her jewelry, and her eyeglasses in the process.
At that point in the search, Pellegrino informed Labbee, the supervisor at the checkpoint, that she intended to report the TSOs’ conduct to TSA superiors. After Abdul-Malik had forcibly closed her luggage, Pellegrino also demanded to know “what is going on here[;] both of you are behaving like bitches.” In response to Pellegrino‘s comments, Abdul-Malik asked Labbee to call the police, but the TSOs did not summon law enforcement to arrest Pellegrino at that time. Instead, they continued searching her luggage. Kissinger swabbed various shoes and clothing in Pellegrino‘s bag, and Abdul-Malik searched the contents of the bag. After they finished, Kissinger and Abdul-Malik told Pellegrino that the search was over and that she could leave the private screening room. She proceeded to move her belongings to a search table outside of the private screening room. She first tossed her shoes from the doorway of the screening room onto the floor of the security checkpoint
After Pellegrino had retrieved her luggage, Labbee and Abdul-Malik wаlked to the supervisor‘s station to press charges against her and to summon local police. Labbee directed Pellegrino to stay at the security checkpoint until the police arrived. Although Pellegrino requested that the TSA official in charge of the airport be called to the checkpoint, her request went unheeded.1
When the police arrived, Pellegrino was frisked, handcuffed, and arrested. Labbee confiscated her driver‘s license and, along with Abdul-Malik, swore out criminal complaints against her. Kissinger offered a witness statement corroborating the allegation that Pellegrino struck Labbee in the leg with her bag. The police escorted Pellegrino out of the airport in plain view of other passengers. She was held for roughly 18 hours and released after her husband posted approximately $400 in bail.
The police incident report stated Pellegrino struck both Labbee and Abdul-Malik with her bags and shoes that she tossed out of the private screening room. It also noted both TSOs suffered from leg pain and a stomach bruise as a result of Pellegrino‘s actions.
Did things calm down? Hardly. The Philadelphia District Attorney‘s Office charged Pellegrino with ten criminal violations: two counts of felony aggravated assault, see
On October 25, 2006, Pellegrino attended a preliminary hearing in her criminal case. The presiding judge dismissed several charges, and the District Attorney abandoned other charges, with the exception of two counts of simple assault and two counts of possession of an instrument of a crime (the suitcases allegedly used to hit the TSOs). Those remaining charges proceeded to trial on March 28, 2008, in Philadelphia Municipal Court. The judge entered not guilty verdicts as to each charge based on insufficiency of the evidence put in by the TSA: it failed to produce video surveillance recordings of the incident;2
B. Procedural Background
After criminal proceedings concluded, Pellegrino submitted a claim to the TSA describing the TSOs’ conduct during and following the July 29th incident at the airport. The TSA denied the claim, and Pellegrino turned to federal court for relief. She alleged numerous constitutional and statutory violations against the TSA, Abdul-Malik, Labbee, Kissinger, and other unnamed TSOs. The District Court dismissed most of her claims except for property damage,
false arrest, false imprisonment, and malicious prosecution under the Federal Tort Claims Act and her Bivens claims for malicious prosecution under the First and Fourth Amendments. During summary judgment, the Court ruled in favor of the TSA on all of her remaining claims except for the property damage claim, which the parties later settled.
Although Pellegrino appeals the District Court‘s rulings on all of her claims, I focus on those for false arrest, false imprisonment, and malicious prosecution under the Federal Tort Claims Act. The Court held it lacked jurisdiction over those claims because they do not fall within
Because “[t]he relevant statutory scheme shed[] little light on how broadly ‘search’ is to be defined,” the Court turned to legislative history. Id. at *6. In its view,
C. Statutory Background
As noted, the Federal Tort Claims Act waives sovereign immunity for certain torts committed by federal employees. “[Its] provisions are contained in two areas of the United States Code.” Simmons v. Himmelreich, 136 S. Ct. 1843, 1846 (2016). The first, ”
The provisions of . . .
section 1346(b) [that is, the waiver of immunity] of this title shall not apply to —(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and
section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse 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.
The second part of
II. TSOs are investigative or law enforcement officers under § 2680(h).
Relying on
Neither side disputes that TSOs conduct administrative searches. See United States v. Hartwell, 436 F.3d 174, 178 (3d Cir. 2006) (“[The appellant‘s] search at the airport checkpoint was justified by the administrative search doctrine.“). Indeed, Pellegrino uses this point to argue that TSA screenings are “searches . . . for violations of Federal law” under
But Pellegrino‘s position is not that far-reaching. See Corrected Tr. of Oral Arg. at 9:1–2 (amicus counsel on behalf of Pellegrino stating we need not address whether certain regulatory searches fall within
I agree that TSA screenings are searches under
A. TSOs execute searches for violations of federal law.
As noted, TSOs may qualify as investigative or law enforcement officers if they “execute searches . . . for violations of Federal law.”
TSA screenings no doubt are “permissible under the administrative search doctrine.” Hartwell, 436 F.3d at 181; see also George v. Rehiel, 738 F.3d 562, 577 (3d Cir. 2013) (“It is not disputed that the initial airport screening to which [the Appellant] was subjected by the TSA Officials was a constitutionally permissible administrative search under the Fourth Amendment, even though it was initiated without individualized suspicion and was conducted without a warrant.“). Thus, if the term “search” in
The Government does not dispute this point. Instead, it contends TSA screenings are not searches under
Although we have not squarely decided this issue, the Ninth Circuit has held that airport screenings do not depend on a passenger‘s consent. See United States v. Aukai, 497 F.3d 955, 961 (9th Cir. 2007) (en banc). We approvingly quoted the
Similarly, the limited nature of TSA screenings does not put them outside the ambit of the proviso. To start, its plain language does not require searches to be limited or broad in nature. Its words also do not require searches to be directed to all violations of federal law or to traditional law enforcement functions. They simply require investigative or law enforcement officers to “execute searches . . . for violations of federal law.” TSO screenings are searches for violations of federal law because they are directed to illegal and prohibited items on passenger aircraft. See, e.g.,
screenings is not sufficient to exclude them from the scope of
Finally, whilе the proviso provides no definition for the term “search,” the lack of statutory guidance does not weigh in the Government‘s favor. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court stated that a search includes “a careful exploration of the outer surfaces of a person‘s clothing all over his or her body in an attempt to find weapons.” Id. at 16. Congress likely knew and adopted this definition of search in enacting
The majority also claims we previously concluded that “screenings that escalate to a pat-down may be properly categorized . . . as a ‘single search under the administrative search doctrine.‘” Majority Op. at 47 (quoting Hartwell, 436 F.3d at 178). Our precedent, however, did not reach that holding. See Hartwell, 436 F.3d at 178 (“We will employ [the Fifth Circuit‘s] method of analyzing Hartwell‘s entire experience as a single search under the administrative search doctrine, and — finding this approach sufficient to resolve the case — do not pass judgment on the [Second Circuit‘s] approach.“).
https://www.tsa.gov/travel/security-screening (last visited July 9, 2018). Thus “search” in
B. TSOs are empowered to conduct searches for violations of federal law.
To repeat,
That contention is incorrect because the Transportation Security Act empowers TSOs to conduct screenings for “flights and flight segments originating in the United States.” See
C. TSOs are officers of the United States.
Finally,
The Transportation Security Act also distinguishes between officers and employees. Although it classifies TSOs as “Federal Government employee[s],”
For the purpose of this title, “employee[,]” . . . means an officer and an individual who is —
(1) appointed in the civil service by one of the following acting in an official capacity —
(A) the President;
(B) a Member or Members of Congress, or the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee under this section;
(E) the head of a Government controlled corporation; or
(F) an adjutant general designated by the Secretary. . . ;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.
For the purpose of this title, “officer[,]” except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is —
(1) required by law to be appointed in the civil service by one of the following acting in an official capacity —
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.
of an independent establishment; and (2) the Government Accountability Office.”
At oral argument, both sides agreed that
Our sister Circuits have taken a similar approach, holding that both Veterans Administration security guards and INS agents are covered by
My colleagues do not agree. They contend that interpreting the proviso to “cover[] only criminal law enforcement officers” maintains the distinction between “officers” and “employees” in other provisions of the Federal Tort Claims Act. Majority Op. at 19; see also
We encounter the same problem if we read “investigative or law enforcement officer” as “a[ny] person who is designated an ‘officer’ and who performs traditional criminal law enforcement functions.” Majority Op. at 20 n.11 (suggesting this interpretation in light of the anti-redundancy canon). This is because Congress listed “investigative or law enforcement officer” in the disjunctive, giving both terms “separate meanings.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise. . . .“). The majority‘s approach, however, blurs the distinction between each term, effectively deleting “investigative officer” from the proviso‘s text and “rob[bing]” it “of [any] independent and ordinary significance.”7 Id. at 338-39.
It is worth noting that the Seventh Circuit refused to adopt the same reading in a recent case. See Bunch, 880 F.3d at 943-45. Instead of limiting the proviso‘s reach to law enforcement officers, see Gov‘t Br. at 22, Bunch v. United States, No. 16-3775 (7th Cir. May 3, 2017) (advancing this argument), the Court noted
While the Supreme Court has not decided this issue, it has also been reluctant to constrict the proviso‘s scope. See Millbrook v. United States, 569 U.S. 50, 54, 57 (2013) (declining to read additional language into
The same principle is apt here: if Congress intended
My colleagues do not discuss much of this case law. Instead, they rely on non-text authorities to advance their reading of “officer.” See infra Part III.A-B (addressing the majority‘s arguments). I do not follow their approach because it is our job to construe Congress‘s language “in accordance with its ordinary meaning.” United States v. Husmann, 765 F.3d 169, 173 (3d Cir. 2014) (internal quotation marks omitted) (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014)). Here, if we look to dictionary definitions to determine Congress‘s intent, they do not contain any reference to law enforcement personnel. See Officer, Webster‘s Third New International Dictionary (1971) (stating an officer is “one charged with administering and maintaining the law (as a constable, bailiff, sheriff)” or “one who holds an office; one who is appointed or elected to serve in a position of trust, authority, or command esp[ecially] as specif[ically] provided for by law“); Officer, Black‘s Law Dictionary (4th ed. rev. 1968) (noting an officer is “[o]ne who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions. One who is invested with some portion of the functions of the government to be exercised for the public benefit. . . .“). This cuts against my colleagues’ interpretation, as it tells us the proviso‘s reach is more expansive than their take.
I am mindful that “a word must not be read in isolation but instead [is] defined by reference to its statutory context.” Husmann, 765 F.3d at 173 (quoting Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 234 (2008)). But this too does not favor a restrictive reading of the proviso. Instead, it marshals against the majority‘s approach, as the term “any officer of the United States” must be read to “ha[ve] a wide reach.” Boyle v. United States, 556 U.S. 938, 944 (2009) (“The term ‘any’ ensures that the definition has a wide reach. . . .“); see also Ali, 552 U.S. at 220 (“Congress‘[s] use of ‘any’ to modify ‘other law enforcement officer’ [in
If we apply these definitions in this context, TSOs qualify as officers. They are charged with administering and maintaining the law, and their searches are directed to illegal and prohibited items on passenger aircraft. See
Moreover, my reading of the provision would not expand its reach. I do not add extra text to it or assert that it should apply to officers who have no power to search, seize evidence, or make arrests. Rather, I give effect to Congress‘s language in its entirety without adding, as my colleagues do, limitations from outside sources. See id. at 20-25 (relying on other statutes and inapplicable canons of construction to construe the proviso).
Secretary of Transportation for Security, see
Accordingly, TSOs are unambiguously “officers of the United States” and thus fall within
D. Even were the text of the proviso ambiguous, we must resolve that ambiguity against the Government and in Pellegrino‘s favor.
My colleagues assert that
But the language of the proviso is neither ambiguous nor vague. Instead, it sets out two terms, “investigative or law enforcement officer,” and gives them a precise definition. My colleagues do not point to a single word in the definition that is unclear. Rather, they seem troubled by the “unintended breadth” of the proviso and
However, even if we assume the text is ambiguous, it would not authorize us to construe the proviso narrowly in favor of sovereign immunity and against Pellegrino‘s claims. Instead, the Supreme Court has instructed us to construe the Federal Tort Claims Act broadly and has stated that it “does not implicate the general rule that ‘a waiver of the
Government‘s sovereign immunity will be strictly construed . . . in favor of the sovereign.” Dolan, 546 U.S. at 491 (emphasis added) (quoting Lane v. Peña, 518 U.S. 187, 192 (1996)); see also Kosak v. United States, 465 U.S. 848, 853 n.9 (1984) (“[U]nduly generous interpretations of the [Federal Tort Claims Act‘s] exceptions run the risk of defeating the central purpose of the statute.”); United States v. Yellow Cab Co., 340 U.S. 543, 554 (1951) (declining to construe the Federal Tort Claims Act in favor of sovereign immunity). As the proviso reasserts the Federal Tort Claims Act‘s waiver of sovereign immunity, we must resolve any ambiguity against the Government—that is, in favor of allowing Pellegrino‘s claims to proceed to trial.
Nonetheless, my colleagues note that Dolan tells us to construe the proviso in favor of the Government. See Majority Op. at 48 n.31 (“To the extent Dolan does apply to an exception to an exception, it directs us ‘to identify those circumstances which are within the words and reason of the exception—no less and no more.‘” (emphases added) (internal quotation marks omitted) (quoting Dolan, 546 U.S. at 492)). But that approach misconstrues Dolan, which discussed this rule in the context of
Moreover, we cannot apply Dolan‘s language here, as the Supreme Court in Millbrook took a markedly different approach in our context, casting the proviso in a broad light. See 569 U.S. at 57 (“Had Congress intended to further narrow the scope of the proviso, Congress could have limited it. . . .”); see also Campos, 888 F.3d at 737 (discussing “Millbrook‘s refusal to allow limitations to be placed on the . . . proviso”); Bunch, 880 F.3d at 945 (“We are also influenced by the broad reading of the law[]enforcement proviso that the Court adopted in Millbrook.”).
My colleagues also claim our case is governed by Foster v. United States, 522 F.3d 1071 (9th Cir. 2008). Though Foster discusses an exception to an exception (i.e., those portions of
Accordingly, even if the text were ambiguous, we are bound to resolve that ambiguity against sovereign immunity. See Millbrook, 569 U.S. at 57; Campos, 888 F.3d at 737; Bunch, 880 F.3d at 945. As such,
III. The majority‘s arguments do not counsel a different result.
My colleagues arrive at a different outcome after consulting various canons of construction, similar statutes across the Code, and the text of the Transportation Security Act. They examine the legislative history surrounding
While some of their reasoning may be supportive in isolation, it cannot prevail over the clear text of
A. Per Supreme Court precedent, we cannot employ the canons of construction to constrict the proviso‘s clear and unambiguous text.
To recap my colleagues’ reasoning, they claim
Although this canon is a “‘useful rule of construction . . . where words are of obscure or doubtful meaning,‘” Russell Motor Car Co. v. United States, 261 U.S. 514, 520 (1923), it is not used when the text is unambiguous, see Bilski v. Kappos, 561 U.S. 593, 604 (2010) (noting the canon was inapplicable because the pertinent provision already contained a statutory definition); United States v. Stevens, 559 U.S. 460, 474 (2010) (declining to apply noscitur a sociis when the text “contain[ed] little ambiguity”). “[W]hen words have a clear definition, and all other contextual clues support that meaning, the canons cannot properly defeat Congress‘s decision to draft broad legislation.” Yates v. United States, 135 S. Ct. 1074, 1097 (2015) (plurality opinion) (Kagan, J., dissenting).
Here, because
In any event, we have observed that noscitur a sociis “is of little help where other evidence reveals that Congress intended to treat the disputed term differently from its neighbors.” In re Cont‘l Airlines, Inc., 932 F.2d 282, 288 (3d Cir. 1991). “When Congress has separated terms with the conjunction ‘or,‘” we concluded “that [it] intended to give the terms ‘their separate, normal meanings.‘” Id. (quoting Garcia v. United States, 469 U.S. 70, 73 (1984)); see also In re Gi Nam, 273 F.3d 281, 288 (3d Cir. 2001) (stating noscitur a sociis has “no application” when Congress separates distinct terms with disjunctive phrasing). The Supreme Court has articulated the same view, declining to apply the canon to a list of three “disparate” items—“congressional, administrative, or [Government Accountability Office] sources”—because it would “rob” each term “of its independent and ordinary significance.”10 Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 288-89 (2010) (
Thus, as the majority notes, the Court has relied on the canon to interpret the phrase “exploration, discovery, or prospecting.” Before doing so, however, it noted that the words in that phrase had a common “core of meaning” and similar “connotation,” that was not a critical factor in its analysis. Id. at 289 n.7 (declining to apply the canon to the phrase “congressional, administrative, or GAO sources” even though each term had a “governmental connotation”). Instead, it emphasized each word‘s distinct meaning and declined to restrict that meaning by way of the canon. See id. at 288-89.
The Supreme Court‘s reasoning is apt here, as
With this in mind, the majority suggests the meaning of “execute searches” still sounds in criminal law, as the phrase “execute a search” is typically used when a warrant is involved. The Seventh Circuit recently rejected a similar argument. See Bunch, 880 F.3d at 945 (“[W]e note that [§] 2680(h) does not require [a federal agent] to have had authority to seek and execute search warrants; it speaks only of executing searches, and many searches do not require warrants.” (emphasis in original)). Congress also drafted
My view is that, given the broad reach of the proviso, “execute searches” does not take its meaning from the term “execute a warrant,” and its clear-cut meaning governs our analysis. See id. at 943, 945 (suggesting “search” in
B. Other statutes are not effective guideposts for interpreting § 2680(h)‘s language because none of them contain the same definition.
My colleagues examine other provisions in the U.S. Code that use the term “investigative or law enforcement officer.” They find that the term is used in only one other statute: Title III of the Omnibus Crime Control and Safe Streets Act of 1968, see
Title III, however, is not helpful to our inquiry because it provides its own definition of “investigative or law enforcement officer.” It considerably departs from that of
In a similar vein, I am not persuaded that other statutory definitions of “law enforcement officer” limit
Accordingly, other provisions and statutory definitions do not illuminate the meaning of
C. The Transportation Security Act does not clarify whether the proviso extends to TSOs.
The majority states
The Transportation Security Act (like the other statutes discussed above) has its own definition of “law enforcement officer.” In full it defines “law enforcement officer” as an “employee” who may . . .
(A) carry a firearm;
(B) make an arrest without a warrant for any offense against the United States committed in the presence of the officer, or for any felony cognizable under the laws of the United States if the officer has probable cause to believe that the person to be arrested has committed or is committing the felony; and
(C) seek and execute warrants for arrest or seizure of evidence issued under the authority of the United States upon probable cause that a violation has been committed.
There is also no indication that Congress drafted
My colleagues do not address these points. Instead, they maintain that “
I cannot join the majority in adopting this approach because it is an invitation to dilute
Instead of narrowing
is considered as a whole, TSOs are investigative or law enforcement officers that are subject to the proviso. See Bunch, 880 F.3d at 943-45 (engaging in the same analysis for a forensic chemist employed by the ATF); Sami v. United States, 617 F.2d 755, 764 (D.C. Cir. 1979) (concluding U.S. National Central Bureau officers were within
Lastly, I note the consequences of my colleagues’ approach. No other Court of Appeals has gone as far as they do by categorically barring certain classes of individuals (i.e., those who are not criminal law enforcement officers) from the reach of the proviso. Nor has any other Court of Appeals relied on another statute‘s and an agency‘s classifications to determine whether a federal agent is an “investigative or law enforcement officer” under
The conclusion for me is simple. I am not inclined to read the proviso in
D. Legislative history cannot overcome the clear text of § 2680(h) and does not preclude administrative searches from its purview.
My colleagues next turn to the legislative history of
My colleagues also discuss the legislative history of a related provision,
But these references cannot limit the proviso to сriminal law enforcement personnel because both the Antitrust Division and Civil Rights Division perform criminal law enforcement functions. See Sections and Offices, U.S. Dep‘t of Justice, https://www.justice.gov/atr/sections-and-offices (last visited July 9, 2018) (indicating the Division has five “[c]riminal [s]ections and [o]ffices”); About the Division, U.S. Dep‘t of Justice, https://www.justice.gov/crt/about-division (last visited July 9, 2018) (stating the Division has a criminal section). Nor does the legislative history differentiate between administrative searches and criminal law enforcement functions, as it indicates
(1989) (noting
However, even if
E. Our sister Circuits’ case law does not restrict § 2680(h)‘s reach.
The majority also examines other Circuits’ case law, stating “other Courts of Appeals . . . have treated only those performing criminal law enforcement duties as ‘investigative or law enforcement officers’ under the proviso.” Majority Op. at 34. In my colleagues’ view, their holding aligns with those Circuits.
I disagree. None of our sister Circuits have stated that criminal law enforcement duties are a prerequisite in the context before us. Cf. Bunch, 880 F.3d at 943-45 (rejecting the Government‘s argument that only law enforcement officers are covered by the
In addition to the Seventh Circuit, see Bunch, 880 F.3d at 943-45, other Circuits also have construed
Critically, at least two Circuits have not adopted the majority‘s specific framework. In Sami v. United States, 617 F.2d 762, 765 (D.C. Cir. 1980), the D.C. Circuit held that a defendant was an “investigative or law enforcement officer” even though he lacked several attributes my colleagues deem conclusive in their analysis. Id. at 765. The Court noted that the defendant‘s status or training as a law enforcement officer did not control its inquiry. See id. at 764. It also assigned no importance to the fact that the defendant did not “initiate or conduct investigations of [his] own but act[ed] primarily as [a] conduit[] and screener[] of information between foreign police departments and federal and state counterparts.” Id. Rather, it cast
As noted, Bunch also declined to limit the proviso to law enforcement officers, 880 F.3d at 944-45, and did not limit the term “execute searches” to the criminal context, id. at 945.17 It did not draw any significance from the types of investigations the chemist-defendant performed.18 See id. at 943. Nor did it give conclusive weight to the chemist‘s employment status. See id. Although he was an “ATF officer,” the Court noted that term referred to both “[ATF] officer[s] or employee[s].” Id. (internal quotation marks omitted) (quoting
The approach of my colleagues sharply differs from our sister Circuits’ reasoning in three main ways. First, they give determinative weight to an agent‘s status as a law enforcement officer even though the other Circuits did not do so. See id. at 944-45; Sami, 617 F.2d at 764. Second, they highlight TSOs’ limited roles and their dependence on law enforcement officers, and yet this feature had no effect on the Seventh or D.C. Circuit‘s analysis. See Bunch, 880 F.3d at 944-45; Sami, 617 F.2d at 764. Lastly, they read additional language into the proviso to restrain its reach while Sami and Bunch expressly refused to do the same. See Bunch, 880 F.3d at 944-45; Sami, 617 F.2d at 765.
F. Our case law cannot be read as limiting § 2680(h) ‘s scope.
My colleagues claim their holding is consistent with Matsko v. United States, 372 F.3d 556 (3d Cir. 2004). In their view, Matsko effectively narrowed
Before discussing Matsko, it is important to note that the Supreme Court rejected most of its reasoning in a recent case. See Millbrook, 569 U.S. at 54-56 (overruling Pooler v. United States, 787 F.2d 868 (3d Cir. 1986), and its progeny, including Matsko). As such, it is questionable the effect Matsko has in our case. Even if we assume its influence is significant, we cannot read it as categorically excluding all employees from the proviso‘s reach. As noted already, VA police officers and INS agents would not qualify as “investigative or law enforcement officers” even though we know they are.
The majority acknowledges this, but asserts Matsko draws a line “between administrative personnel performing solely administrative functions and those . . . expressly designated law enforcement officers or assigned law enforcement duties.” Majority Op. at 33. But the problem with this argument is that Matsko made no such distinction. It never mentioned the term “criminal law enforcement officer,” nor did it refer to “criminal law enforcement duties.” While it explained what types of agents are purportedly outside the realm of the proviso, Matsko never told us who would fit within it. Hence it does not stand for the broad holding the majority now attributes to it.
More tellingly, Matsko‘s principle does not receive universal support from our sister Circuits. Bunch, for example, held a chemist who was primarily responsible for “investigative conduct“—“inspect[ing] the site of any accident or fire in which there is reason to believe that explosive materials were involved“—could be an investigative or law enforcement officer under
Bunch‘s reasoning necessarily conflicts with Matsko because it did not give controlling weight to an agent‘s employment status, see id., and emphasized the same investigatory powers that Matsko downplayed, compare id. (discussing the chemist‘s authority to inspect sites of certain accidents or fires), with Matsko, 372 F.3d at 560 (noting the defendant had the “authority to inspect mines and investigate possible violations“). This suggests we cannot understand Matsko as limiting the types of personnel or activities that fall within
We encounter a similar problem if we look to Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), for guidance. As my colleagues correctly observe, it did not address whether TSOs fall within
This approach misconstrues Vanderklok, which discussed TSOs’ law enforcement powers in the context of a Bivens claim for retaliatory prosecution under the First Amendment (a Bivens action refers to “a private right of action for damages brought directly under the Constitution against federal officials,” Vanderklok, 868 F.3d at 198). See id. at 208-09 (explaining “there is a practical concern with establishing a court-crafted remedy in the [airport screening context]” because “a First Amendment retaliatory prosecution claim hinges, in part, on whether the allegedly offending government employee had probable cause to take some enforcement action“). It is also inconsistent with the proviso‘s text, which includes investigative and law enforcement officers separately. In light of Vanderklok‘s limited scope and
IV. By analogizing TSA searches to routine administrative inspections, my colleagues preclude victims of TSA abuses from obtaining any meaningful remedy for a variety of intentional tort claims.
Finally, my colleagues state that Pellegrino asks for a wholesale expansion of the Government‘s tort liability for administrative searches. They analogize TSA searches to routine administrative inspections and claim that a ruling in her favor would lead to a “significant . . . waiver of sovereign immunity” for all administrative screenings. Majority Op. at 27.
As a preliminary matter, we need not worry that Pellegrino‘s position would imperil the public fisc because amicus counsel allayed our concerns at oral argument: Individuals must file administrative complaints with the TSA before bringing any intentional-tort claims in federal court. In 2015, fewer than 200 individuals (out of 700 million individuals screened) filed complaints alleging the types of harms that fall within
Similarly, and to repeat for context, Pellegrino‘s position is not as expansive as the
Moreover, TSA searches are markedly different from routine administrative inspections. Unlike the screenings the majority cites (e.g., inspections of books, records, food products, establishments, warehouses, factories, and emission sources), see Majority Op. at 26-27 & n.16, TSA searches extend to an individual‘s physical person and are directed to the general public. TSOs have the authority to conduct “pat-down searches,” which include “inspection[s] of the head, neck, arms, torso, legs, and feet [,] includ[ing] head coverings and sensitive areas such as breasts, groin, and the buttocks.” Security Screening, Transp. Sec. Admin., https://www.tsa.gov/travel/security-screening (last visited July 9, 2018). Given the wide scope of such screenings, they are not comparable to inspections of highly regulated items or facilities. Indeed, the potential for abuse and widespread harm may be greater with TSA searches than with almost any other type of administrative search.
Amicus counsel acknowledges this point, highlighting several examples where TSOs abused their powers, injuring passengers. See Suppl. Reply Br. at 13-14. For example, TSOs at Denver International Airport “manipulated the security system . . . so that one of them, a man, could grope ‘attractive’ male passengers coming through the checkpoint. . . .” Lindsey Bever, TSA Employees Accused in Scanner Scam to ‘Grope’ Male Passengers, Wash. Post (Apr. 15, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/04/15/tsa-employees-accused-in-scanner-scam-to-grope-male-passengers. Although the TSA retained video footage, it could not identify any victims, which influenced the prosecutors’ initial decision not to file charges. See id. Similarly, a male TSO at New York‘s LaGuardia Airport told a 21-year-old woman he needed to screen “[her] body and [her] luggage,” led her into a bathroom, and sexually assaulted her. Ray Sanchez, New York TSA Worker Accused of Sexually Abusing Passenger, CNN (Aug. 29, 2015, 7:29 AM), https://www.cnn.com/2015/08/28/us/new-york-tsa-screener-charged/index.html (internal quotation marks omitted). These types of abuses are more likely to occur in the context of TSA screenings, making them vastly dissimilar to regulatory searches confined to discrete items or facilities.
While Pellegrino did not bring any assault or battery claims, the majority‘s holding would bar other plaintiffs from bringing those claims, leaving them without a remedy.20
Their holding would also
Accordingly, TSA searches are not the same as administrative inspections, and, by equating these concepts, today‘s holding denies recourse to those who are harmed by TSO abuses.
V. Conclusion
Pellegrino brings us an issue of first impression. She asks if she can recover against the TSOs who detained her and ordered her arrest at Philadelphia International Airport. Her specific claims—false arrest, false imprisonment, and malicious prosecution—fall within the Federal Tort Claims Act. While it ordinarily bars intentional tort claims against Government officials, it contains a proviso that would allow her claims to go forward if TSOs are “investigative or law enforcement officers.” They are so if they are “officer[s] of the United States . . . empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”
Yet my colleagues hold that they are not covered. They look to other statutes for clarification, consult various canons of construction, and also examine legislative history. Ultimately they conclude
This is not what Congress intended, as it enacted
In viеw of these principles, I disagree with my colleagues’ reasoning. Instead of relying on non-textual sources, we must apply