Pellegrino v. U.S. Transp. SEC. Admin.Pellegrino v. U.S. Transp. SEC. Admin.
Lead Opinion
In
Vanderklok v. United States
,
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.
I. Facts and Procedural History
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), Pub. L. No. 107-71,
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 Background
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 arrogant, negative, hostile attitude," Pellegrino Dep. 85:24-86:2, D.Ct. Dkt. No. 156, and TSO Nuyriah Abdul-Malik came to perform the screening in Clemmons's stead.
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.
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 so that Pellegrino could re-pack it herself. Abdul-Malik refused and the interaction continued to deteriorate. First, Abdul-Malik had trouble zipping the tote closed and had to press her knee into it to force it shut. Next, when Pellegrino asked Labbee for permission to examine the tote, whiсh 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 and Abdul-Malik immediately went to the supervisor's station to press charges against Pellegrino.
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 Waldman
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.
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,
The District Court also ruled in the Government's favor on Pellegrino's remaining claims, and Pellegrino then filed this appeal.
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
,
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
,
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.
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
Although we recounted this reasoning, we were careful to emphasize that "[t]he District Court's decision about the applicability of the law enforcement proviso is not on appeal at this time" and that our focus was on the availability of a
Bivens
action.
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 with49 U.S.C. § 44903 (a) , operate like police officers. As a result, line TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers. See(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. § 1542.213 (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. 49 C.F.R. § 1542.215
Vanderklok
,
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
,
IV. Analysis of Intentional Tort FTCA Claims and the Law Enforcement Proviso
In support of their respective positions on whether TSOs qualify as "investigative
or law enforcement officers," the parties offer very different interpretations of
Amicus contends that because the screenings performed by TSOs qualify as "searches" under the Fourth Amendment,
see
George v. Rehiel
,
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 proviso. The Government also argues that TSOs are "employees," not "offiсers," 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
With these considerations in mind, we conclude that the law enforcement proviso covers only criminal law enforcement officers.
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.
,
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
,
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, each points toward the same conclusion: The law enforcement proviso covers only officers who are engaged in criminal law enforcement.
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.
,
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.
,
Of particular note, Congress contemporaneously considered three bills to amend the broad immunity preserved by the intentional tort exception-S. 2558, 93d Cong. (1973); H.R. 8245, 93d Cong. (1973); and H.R. 10439, 93d Cong. (1973)-with Members referring regularly to the other bills as each was debated. Two of the bills (S. 2558 and H.R. 10439) waived sovereign immunity for the specified intentional torts for
all
federal employees. Only one-H.R. 8245-limited the waiver of immunity to "investigative or law enforcement officers." H.R. 8245 was the bill eventually signed into law, codifying the law enforcement proviso in its present form.
See
Act of March 16, 1974, Pub. L. No. 93-253,
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 committed by those who perform only administrative seаrches:
I can give you an illustration. We have Department of Agriculture investigators who go into look at books and records. We have Defense Department auditors to look at books and records. I can see where we can get in a dispute where records should be shown or not shown and a report shown by mistake and the contractor takes it away and says you shouldn't have seen that and some sort of assault occurs. The assault may not be intentionally inflicted to create any more damage than to keep him away. He may trip over backward and hit his head and fracture his skull and even die. They are not law enforcement officers even under this definition. They don't qualify.
Federal Tort Claims Amendments: Hearings on H.R. 10439 Before the Subcomm. on Claims and Governmental Relations of the H. Comm. on the Judiciary , 93d Cong.
18 (1974) [hereinafter H.R. 10439 Hearings ] (statement of Irving Jaffe, Acting Assistant Att'y Gen.); see also id. at 15 (statement of Jaffe) ("It should be noted that ... H.R. 8245 is confined in its applicability to Federal investigative or law enforcement officers, while ... H.R. 10439 would waive the sovereign immunity of the United States as to the same acts or omissions on the part of all Government employees.").
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,"
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
4. Case Law
Our interpretation of the law enforcement proviso is also consistent with our case law and that of other Courts of Appeals.
In
Matsko v. United States
,
Matsko
remains the law of this Circuit
That approach is also consistent with decisions of other Courts of Appeals, which
have treated only those performing criminal law enforcement duties as "investigative or law enforcement officers" under the proviso. For example, the D.C. Circuit has concluded that postal inspectors, who are empowered to investigate criminal matters,
see
Likewise, in
Bunch v. United States
, the Seventh Circuit recently held that there were genuine disputes of material fact as to whether a Bureau of Alcohol, Tobacco, and Firearms (ATF) forensic chemist fell within the proviso precisely because the forensic chemist may have been an "ATF officer" authorized to participate in criminal investigations under
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."
* * *
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,
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
,
United States v. Hartwell
,
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 )."
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 gloss were sufficient to trigger a waiver of federal sovereign immunity. There are many jobs that have the word "officer" in the title, such as "chief executive officer" or "title officer," but they unquestionably are not "investigative or law enforcement officer" positions. On the other hand, other jobs, like "special agent" or "postal inspector," do not have the word "officer" in the title, but they nonetheless qualify as "investigative or law enforcement officer" positions. Indeed, Amicus's argument, if anything, cuts the other way, for as we noted previously, TSOs were originally called "screeners," and their title was changed in 2005 merely as part of an effort to improve employee incentives and "upward mobility opportunities within [the] profession."
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." Id. ¶¶ 4, 6.A(4). If a TSO does discover such evidence, he or she is required to alert a supervisor or a law enforcement official. The TSO can "request[ ]" the individual to wait for law enforcement to arrive, but the individual is nevertheless "free to leave the checkpoint once applicable screening requirements have been completed successfully." Id. ¶ 6.A(4). By contrast, "TSA law enforcement officers," and only "TSA law enforcement officers," may engage in law enforcement activities, including investigations, detentions, and searches that "are not limited to administrative or special needs searches." Id. ¶ 6.D.
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."
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 238. 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
,
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.
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
,
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.
Pellegrino's FOIA claims also fail. In response to Pellegrino's FOIA request,
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
in denying Pellegrino leave to amend her complaint yet again when the case had been ongoing for two years and Pellegrino had already amended three times.
See generally
Airborne Beepers & Video, Inc. v. AT&T Mobility LLC
,
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
,
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.
Throughout this opinion, we will use the terms "TSO" and "TSA screener" without distinction.
Because the District Court granted summary judgment in the defendants' favor, we view the facts in the light most favorable to Pellegrino.
See, e.g.
,
Moody v. Atl. City Bd. of Educ.
,
Labbee was a supervisor, but because no party has claimed that her duties were materially different from those of Abdul-Malik or Kissinger, we will not distinguish among their positions.
The District Court dismissed Waldman's claims, primarily for lack of standing. While both Pellegrino's and Waldman's names appear on Appellants' briefs, they have not challenged the District Court's dismissal of Waldman from this action. We therefore will treat Pellegrino as the sole aрpellant.
At the motion-to-dismiss stage, the District Court first found that the individual defendants and the TSA were not proper defendants and dismissed all claims against them, substituting the United States as the sole defendant.
See
After the parties submitted their initial briefs, the Court appointed Paul M. Thompson of McDermott Will & Emery to serve as amicus curiae on behalf of Pellegrino, and Amicus and the Government have filed supplemental briefs addressing the issues presented in this case. We express our gratitude to Mr. Thompson for accepting this matter pro bono and for the quality of his briefing and argument in this case. Lawyers who act pro bono fulfill the highest service that members of the bar can offer to the legal profession.
Prior to the 1946 passage of the FTCA, individuals could obtain compensation for negligent acts committed by federal employees through only a private bill in Congress. The FTCA was designed to replace that "notoriously clumsy" system.
Dalehite v. United States
,
This label is somewhat imprecise because
"Administrative searches" are an exception to the general rule that a search or seizure is unreasonable in the absence of individualized suspicion.
See
United States v. Hartwell
,
See also
United States v. Thornhill
,
The dissent suggests that we render the remainder of the law enforcement proviso a nullity by interpreting "investigative or law enforcement officer" to refer to criminal law enforcement officers. To the contrary, our reading is the one that gives meaning to both components of Congress's definition of "investigative or law enforcement officer": a person who is designated an "officer" and who performs traditional criminal law enforcement functions. In any event, it is not unusual for Congress to define "law enforcement officer" by reference to the officer's duties, even if those duties all sound in criminal law.
See, e.g.
,
Our dissenting colleague contends there is no need to resort to canons of statutory construction because the text of the proviso is plain and unambiguous. Would it were so. Instead, our respective reasonable but divergent interpretations, as well as the split among the district courts that have considered the matter,
see
infra
note 25, attest to its ambiguity. The dissent аlso posits specifically that the
noscitur a sociis
canon is inapplicable because the statute is phrased in the disjunctive, but even in that context, as the Supreme Court observed in
Jarecki v. G.D. Searle & Co.
, this canon is "often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress."
In addition,
In the Title III context, the Office of Legal Counsel (OLC) has determined that the powers of an "investigative ... officer" are not coextensive with those of a "law enforcement officer" but that both terms carry criminal law connotations. To determine whether DOJ agents are "investigative or law enforcement officers" per
While we acknowledge, of course, that these words do not necessarily hold the same meaning across statutes, the regularity with which these words are used in the criminal law context does bear on their meaning here.
See also
H.R. 10439 Hearings at 14 (statement of Jaffe); see also 119 Cong. Rec. 33,496 (1973) (giving verbatim exрlanation in reference to S. 2558).
An almost identical, subsequently enacted provision permits the Treasury Secretary to settle claims for damage or loss caused by "an investigative or law enforcement officer ... who is employed by the Customs Service and acting within the scope of his or her employment."
The dissent discounts the corroborative value of
In
Millbrook v. United States
,
As discussed in more detail below, in
Vanderklok
, we reiterated this distinction, relying on the ATSA's separate designation of "employees" and "law enforcement officers" to conclude that "TSA employees typically are not law enforcement officers and do not act as such."
While INS agents have some civil responsibilities, they are also empowered "to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens."
Sami v. United States
,
See
Corbett v. Transp. Sec. Admin.
,
Compare, e.g.
,
Hernandez
,
We recognize that
Although
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.
,
Screening Hearing at 7 (statement of Edmund "Kip" Hawley, Assistant Secretary, Transportation Security Administration); see Press Release, Transp. Sec. Admin., Transportation Security Officers Have Renewed Focus and New Look on Seventh Anniversary of 9/11 (Sept. 11, 2008), https://www.tsa.gov/news/releases/2008/09/11/transportationsecurity-officers-have-renewed-focus-and-new-look-seventh.
Moreover, most of the prohibited items for which TSOs search are perfectly legal to possess in other contexts.
See What Can I Bring?
, Transp. Sec. Admin., https://www.tsa.gov/travel/security-screening/whatcanibring/all (last visited July 6, 2018). Thus, if an individual is found with a prohibited item, the TSA can impose only civil penalties: "Criminal penalties and fines are different and wholly separate from the civil penalties assessed by TSA," and "[r]eferral for criminal investigation and enforcement is appropriate where there appears to be a violation of criminal laws."
Enforcement Sanction Guidance Policy
, Transp. Sec. Admin., https://www.tsa.gov/sites/default/files/enforcement_sanction_guidance_policy.pdf (last visited July 6, 2018);
see also
Even the dissent seems to acknowledge as much when it posits that " 'search' in
Typically, we construe a waiver of sovereign immunity strictly and "in favor of the sovereign."
Lightfoot v. United States
,
Counsel for the Government asserted at oral argument that the United States could, in appropriate cases, refuse to insulate a TSO from liability by declining to certify under the Westfall Act that the TSO was acting within the scope of her employment.
See
Corrected Tr. of Oral Arg. at 30:6-12;
see also
These factual scenarios are as follows: "(1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative."
Toney
,
We do not address the second issue that we asked Amicus to brief-whether the FTCA's judgment bar precludes these
Bivens
claims-because the parties agree that it has since been resolved by the Supreme Court, which has ruled that the bar does not apply in these circumstances.
See
Simmons v. Himmelreich
, --- U.S. ----,
This also disposes of Pellegrino's
Bivens
conspiracy and aiding-and-abetting claims.
See
Black v. Montgomery County
,
Pellegrino requested copies of "all records, reports, follow-up requests, etc., from any TSA office containing her name, Nadine Pellegrino Waldman[,] that was initiated by any TSA officer, official, investigator, or personnel." Gary Decl. ¶ 4, D.Ct. Dkt. No. 232;
see
To the extent that Pellegrino challenges the District Court's disposition of her claims under
Dissenting Opinion
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 additiоnal 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 area after checking that no one else was in her surroundings. She also made multiple trips from the private screening room to the search table because she had three pieces of luggage. On her first trip, she carried her largest bag out of the private screening room. Labbee contends Pellegrino struck her in the stomach with the bottom of the bag as she was moving the bag to the search table. When Pellegrino returned to retrieve a smaller bag, Abdul-Malik allegedly blocked her access to it, forcing her to crawl under a table to retrieve the bag. When Pellegrino did so, it tipped over, striking the ground with a loud noise. Abdul-Malik claims Pellegrino struck her in the leg while she was collecting the bag. She denies striking either Abdul-Malik or Labbee with her luggage and alleges she heard both TSOs say to each other, "You saw her hit me, didn't you?"
After Pellegrino had retrieved her luggage, Labbee and Abdul-Malik walked 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.
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;
Abdul-Malik failed to appear in court; and Labbee's testimony was internally inconsistent and contradictory on key points.
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
, --- U.S. ----,
Of all the exceptions listed in
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 andsection 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
Relying on
Neither side disputes that TSOs conduct administrative searches.
See
United States v. Hartwell
,
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
,
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
,
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.
,
Finally, while 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
, the Supreme Court stated that a search includеs "a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons."
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.
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 217;
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 217 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.
,
It is worth noting that the Seventh Circuit refused to adopt the same reading in a recent case.
See
Bunch
,
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
,
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
,
I am mindful that "a 'word must not be read in isolation but instead [is] defined by reference to its statutory context.' "
Husmann
,
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
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
consider that perception a license to construe it narrowly.
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
,
Nonetheless, my colleagues note that
Dolan
tells us to construe the proviso in favor of the Government.
See
Majority Op. at 230 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
,
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
My colleagues also claim our case is governed by
Foster v. United States
,
Accordingly, even if the text were ambiguous, we are bound to resolve that ambiguity against sovereign immunity.
See
Millbrook
,
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
,
United States v. Stevens
,
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.
,
Although the Court acknowledged that the terms had a similar "connotation," that was not a critical factor in its analysis.
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
,
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
B. Other statutes are not effective guideposts for interpreting
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
between ordinary meaning and the unambiguous words of a definition ... in favor of [the term's] ordinary meaning. If that were the case, there would hardly be any use in providing a definition."
Bond v. United States
, --- U.S. ----,
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
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
My colleagues next turn to the legislative history of
When we look to
My colleagues also discuss the legislative history of a related provision,
But these references cannot limit the proviso to criminal 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
However, even if
E. Our sister Circuits' case law does not restrict
The majority also examines other Circuits' case law, stating "other Courts of Appeals ... have treated only those pеrforming criminal law enforcement duties as 'investigative or law enforcement officers' under the proviso." Majority Op. at 223-24. 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
,
In addition to the Seventh Circuit,
see
Bunch
,
Critically, at least two Circuits have not adopted the majority's specific framework. In
Sami v. United States
, 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.
As noted,
Bunch
also declined to limit the proviso to law enforcement officers,
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
In conclusion, my colleagues' interpretive framework finds little support in analogous decisions from our sister Circuits, and at least two Circuits have disregarded the key factors they consider decisive in their analysis.
F. Our case law cannot be read as limiting
My colleagues claim their holding is consistent with
Matsko v. United States
,
Before discussing
Matsko
, it is important to note that the Supreme Court rejected most of its reasoning in a recent case.
See
Millbrook
,
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 223. 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
We encounter a similar problem if we look to
Vanderklok v. United States
,
See
Majority Op. at 225 ("As we explained [in
Vanderklok
,] 'TSA employees typically are not law enforcement officers and do not act as such.' " (quoting
Vanderklok
,
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
,
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 220.
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
majority portrays it. Instead of asking us to waive immunity in all contexts, she requests that we determine whether TSOs are investigative or law enforcement officers under
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 220 & 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/morningmix/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
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.
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 sо 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 view of these principles, I disagree with my colleagues' reasoning. Instead of relying on non-textual sources, we must apply
While the relevant TSA official was notified that Pellegrino wished to speak with him, neither he nor his representative arrived at the checkpoint to speak with Pellegrino or her husband.
On August 14, 2006, Pellegrino received a letter from the TSA indicating it was considering imposing a civil penalty for her actions during the July 29th incident at the airport. The TSA's letter also stated it had begun a Civil Action Enforcement investigation of the incident. Pellegrino's attorney wrote to and spoke with the TSA to defer the investigation and to preserve any relevant surveillance footage. It, however, maintained that no video cameras had captured the incident and thus no recordings existed for evidentiary purposes.
My colleagues claim that "most of the prohibited items for which TSOs search are perfectly legal to possess in other contexts" and assert that TSOs may only assess civil penalties for screening violations. Majority Op. at 228 & n.29. In my view, these distinctions are not enough to exclude TSOs from the proviso's reach, as many other law enforcement officers search for items that are "perfectly legal to possess in other contexts" and also impose civil penalties for screening violations. See, e.g. , Bringing Agricultural Products into the United States , U.S. Customs & Border Prot., https://www.cbp.gov/travel/clearing-cbp/bringing-agricultural-products-united-states (last visited July 9, 2018) (stating Customs and Border Protection agricultural specialists may assess civil penalties if a traveler brings certain agricultural products without appropriate "permits"); see also CBP Careers in Focus: Agricultural Specialists-Protecting American Agriculture , U.S. Customs & Border Prot., https://www.cbp.gov/careers/join-cbp/which-cbp-career/agriculture-specialist-focus (last visited July 9, 2018) (noting agricultural specialists "work[ ] in a ... law[-]enforcement environment").
The Supreme Court decided
Terry
six years before Congress enacted
Even though pat-down searches are conducted analogously to
Terry
stops, the majority states they are not comparable because the latter "require reasonable, articulable suspicion." Majority Op. at 229. This misapprehends the TSA's screening procedures, which (in some instances) allow for pat-down searches if "a lower level of screening disclose[s] a reason to conduct a more probing search."
Hartwell
,
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 229 (quoting
Hartwell
,
TSOs are not officers under
My colleagues state "it is not unusual for Congress to define 'law enforcement officer' by reference to the officer's duties, even if those duties all sound in criminal law." Majority Op. at 217 n.11. But Congress did not solely define "law enforcement officer" in
The majority criticizes my use of "general dictionary definitions" and claims they unnecessarily expand the proviso's scope. Majority Op. at 229 n.30. Those definitions, however, are consistent across multiple dictionaries and fit the broader context of
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
Contrary to the majority's assertions, the touchstone of my inquiry is not whether "the statute is phrased in the disjunctive." Majority Op. at 218 n.12. Instead, I examine whether a statutory list contains a set of terms that have "a[ ] comparable ... meaning."
Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson
,
Although my colleagues state
noscitur a sociis
"is 'often wisely applied where a word is capable of many meanings,' " Majority Op. at 218 n.12 (quoting
Jarecki v. G.D. Searle & Co.
,
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 that the canon would not "rob" any term "of its independent and ordinary significance."
Noscitur a sociis
thus is "not an invariable rule" that we must resort to in every instance.
Russell Motor Car
,
These definitions also do not shed light on
Even if the Transportation Security Act were less straightforward in this context, it does not control the interpretation of
Although the Eleventh Circuit relied on statutory distinctions in
Corbett v. Transportation Security Administration
, it did not reference the agency's own distinctions or non-binding directives in support of its position.
See
My colleagues claim "the fact that traditional criminal law enforcement officers may also have occasion to perform administrative searches ... in no way casts doubt on the textual and historical reasons to believe that
Other provisions support my conclusion. Like Title 31, Title 19 contains a section that allows the Treasury Secretary to settle intentional tort claims brought against "an investigative or law enforcement officer (as defined in
The majority nonetheless portrays
Bunch
as corroborating its holding because "it offered, as examples of the types of searches covered by the proviso, searches incident to arrest, protective sweeps, and searches conducted pursuant to the automobile exception ...-
i.e.
, searches conducted by criminal law enforcement officers." Majority Op. at 224 (internal citation omitted). This account of
Bunch
hyperfocuses on an isolated string cite in the Court's opinion,
see
Bunch
,
Contrary to the majority's assertions, the Seventh Circuit did not emphasize the chemist's criminal law enforcement duties. Indeed, the word "criminal" never shows up in this portion of its discussion.
See
Bunch
,
The Government argued in Bunch that the chemist-defendant was not a law enforcement officer because he "work[ed] primarily in a laboratory analyzing physical evidence gathered by law enforcement agents ... and provide[d] technical assistance to law enforcement agents...." Gov't Br. at 24, Bunch v. United States , No. 16-3775 (7th Cir. May 3, 2017). As noted, the Seventh Circuit did not adopt this reading of the proviso. Nor did it accept that the chemist's job responsibilities barred him from being an officer included within the proviso.
Under the Westfall Act,