before original panel on October 3, 2017
Petition for Rehearing En Banc granted on October 3, 2018
En Banc on February 20, 2019
from the United States District Court for the Eastern
District of Pennsylvania (D.C. Civil Action No.
2-09-cv-05505) District Judge: Honorable J. Curtis Joyner
M. Thompson (Argued) Sarah Hogarth McDermott Will & Emery
Matthew L. Knowles McDermott Will & Emery Counsel for
J. Sherer (Argued) Office of the United States Attorney
Counsel for Appellees
Jonathan H. Feinberg David Rudovsky Kairys Rudovsky Messing
& Feinberg Hugh Handeyside Hina Shamsi Counsel for Amicus
American Civil Liberties Union; American Civil Liberties
Union of Pennsylvania; Cato Institute; Rutherford Institute.
Mahesha P. Subbaraman Counsel for Amicus Appellants Freedom
to Travel USA; Restore the Fourth Inc.
Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,
HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS,
PORTER and SCIRICA, Circuit Judges
Federal Government is typically immune from suit. The Federal
Tort Claims Act waives the Government's immunity for
certain torts committed by its employees. 28 U.S.C. §
2680(h) does so for specific intentional torts committed by
"investigative or law enforcement officers," which
it defines as "any officer of the United States who is
empowered by law to execute searches, to seize evidence, or
to make arrests for violations of Federal law." If a
federal official fits this definition, plaintiffs may sue for
certain intentional torts.
Pellegrino relies on § 2680(h), which we also refer to
as the "proviso," to recover against Transportation
Security Officers (TSOs) at the Philadelphia International
Airport who allegedly detained her, damaged her property, and
fabricated charges against her. The District Court dismissed
her case on the ground that TSOs are not "officer[s] of
the United States" who "execute searches . . . for
violations of Federal law." The underlying theme was
that the subsection's waiver of immunity covers only
criminal law enforcement officers, and TSOs, though nominally
officers, are nothing more than screeners who perform
routine, administrative inspections of passengers and
property on commercial aircraft.
disagree. The words of the proviso dictate the result here.
Because TSOs are "officer[s] of the United States"
empowered to "execute searches" for
"violations of Federal law," Pellegrino's
lawsuit may proceed.
and her husband arrived at the Philadelphia International
Airport to board a flight home to Florida. This meant passing
through the security checkpoint maintained by the
Transportation Security Administration (TSA) with TSOs.
Congress created the TSA after the terrorist attacks of
September 11, 2001, with the enactment of the Aviation and
Transportation Security Act, Pub. L. No. 107-71, 115 Stat.
597 (2001). Under that Act, TSOs perform screenings at TSA
checkpoints in airports in the United States. See 49
U.S.C. § 44901(a).
Pellegrino passed through the security checkpoint, she was
randomly selected for additional screening. A TSO began
examining her bags, but she stopped him and requested a more
discreet screening. In a private room, several TSOs combed
through Pellegrino's luggage, papers, and other effects.
One allegedly counted her coins and currency, 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. Per Pellegrino, the TSO also
spilled the contents of several containers and was so rough
with her belongings that her jewelry and eyeglasses were
damaged. Frustrated, she told the TSOs that she would report
their conduct to a supervisor.
screening ended, but the TSOs' alleged torment did not.
Pellegrino was left to clean up the mess created by the
search, a task that took several trips to and from the
screening room. As she was repacking her first bag, one of
the TSOs claimed that Pellegrino struck her with it. On a
trip to retrieve another bag, another TSO allegedly blocked
Pellegrino's access to it, forcing her to crawl under a
table to reach it. When she did so, the table tipped over,
and the TSO claimed Pellegrino struck her in the leg while
she was collecting the bag. Pellegrino denies striking either
TSO and alleges she heard both say to one another,
"[Y]ou saw her hit me, didn't you?"
result of the TSOs' allegations, the Philadelphia
District Attorney's Office charged Pellegrino with ten
crimes, including aggravated assault, possession of an
instrument of a crime (her luggage), and making terroristic
threats. At a preliminary hearing, the presiding judge
dismissed many of the charges and the District Attorney
abandoned others. The remaining charges came to naught when
the TSA failed to produce surveillance video from the
incident, one TSO failed to appear in court, and another
TSO's testimony was self-contradictory on key points.
her ordeal at the airport and victory in the courtroom,
Pellegrino and her husband brought numerous constitutional
and statutory claims (including under the Administrative
Procedure Act and the Freedom of Information Act) against the
TSA and several TSOs. The District Court winnowed them down
to claims for property damage, false arrest, false
imprisonment, and malicious prosecution under the Tort Claims
Act and implied rights of action under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), for malicious
prosecution in violation of the First and Fourth Amendments.
The claim for property damage settled, and the Court granted
summary judgment on the Bivens claims.
the claims under the Tort Claims Act for false arrest, false
imprisonment, and malicious prosecution, the Court granted
summary judgment for the defendants on the ground that TSOs
are not "investigative or law enforcement
officer[s]" whose intentional torts expose the United
States to liability. See Pellegrino v. U.S. Transp. Sec.
Admin., No. 09-cv-5505, 2014 WL 1489939, at *7 (E.D. Pa.
Apr. 16, 2014). In particular, the Court stated that it was
"ambiguous" whether TSOs perform the requisite
"searches . . . for violations of Federal law,"
id. at *5, and turned to the legislative history of
the proviso at 28 U.S.C. § 2680(h) to rule in favor of
the Government, id. at *6-7.
appeal we appointed amicus counsel to argue
Pellegrino's side on, inter alia, the Tort
Claims Act issue. A divided panel of our Court affirmed the
District Court in full (including as to summary judgment on
the non-Tort Claims Act claims). See Pellegrino v. U.S.
Transp. Sec. Admin., 896 F.3d 207, 209 (3d Cir. 2018).
We then granted rehearing en banc to consider
whether TSOs are "investigative or law enforcement
officer[s]" as defined in the Tort Claims Act.
and Standard of Review
District Court had jurisdiction under 28 U.S.C. §§
1346(b) and 1331. We have jurisdiction per 28 U.S.C. §
1291, and we review anew the District Court's
interpretation of the Tort Claims Act. See Baer v. United
States, 722 F.3d 168, 172 (3d Cir. 2013).
noted, the United States enjoys baseline immunity from suit.
See Millbrook v. United States, 569 U.S. 50, 51-52
(2013). Congress has overridden this rule with the Tort
Claims Act's general waiver of immunity for injuries
"caused by . . . any employee of the Government."
See 28 U.S.C. § 1346(b)(1). The waiver of
immunity does not extend to several circumstances noted in 28
U.S.C. § 2680, including the subsection pertinent here;
hence the Government's immunity is reclaimed as to eleven
intentional torts laid out in the so-called intentional-tort
exception at § 2680(h). Those eleven are "assault,
battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, [and] interference with contract
rights." Id. § 2680(h).
even the intentional-tort exception has its limits. Under the
proviso, the exception does not apply to (and thus the United
States may still be sued for) six of the eleven torts -
"assault, battery, false imprisonment, false arrest,
abuse of process, [and] malicious prosecution" -
committed by "investigative or law enforcement
officers." Id. "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."
Id. The question for us is whether TSOs fit this
Text of the Proviso, 28 U.S.C. § 2680(h)
TSOs (1) "officer[s] of the United States" who are
(2) "empowered by law" to (3) "execute
searches" for (4) "violations of Federal law"?
To begin, we track the text.
"Any Officer of the United States . . ."
a word's usage accords with its dictionary
definition." Yates v. United States, 135 S.Ct.
1074, 1082 (2015). Under one prominent dictionary definition
shortly before 1974, the year of the proviso's enactment,
an officer "serve[s] in a position of trust" or
"authority," especially as "provided for by
law." Officer, Webster's Third New
International Dictionary (1971); see also Officer,
Black's Law Dictionary (4th ed. rev. 1968) ("[A]n
officer is one holding a position of trust and authority . .
. ."). TSOs satisfy this definition, as they are
"tasked with assisting in a critical aspect of national
security - securing our nation's airports and air
traffic." Vanderklok v. United States, 868 F.3d
189, 207 (3d Cir. 2017). To take another definition from the
time, officers are "charged" by the Government
"with the power and duty of exercising certain functions
. . . to be exercised for the public benefit."
Officer, Black's Law Dictionary, supra.
TSOs qualify under this definition as well, as they perform
"the screening of all passengers and property," 49
U.S.C. § 44901(a), to protect travelers from hijackings,
acts of terror, and other threats to public safety. For good
reason, the role is Transportation Security Officer,
and TSOs wear uniforms with badges that prominently display
the title "Officer." Hence they are
"officer[s]" under the proviso.
are officers by name, wear uniforms with badges noting that
title, and serve in positions of trust and authority, what is
the textual argument to rebut the straightforward conclusion
that they are "officer[s] of the United States"
under the proviso? It would be that the Aviation Security Act
creates the position of "law enforcement officer,"
49 U.S.C. § 114(p)(1), one who carries a firearm and can
make arrests for criminal law violations, id. §
114(p)(2), while designating TSOs as "employee[s],"
id. § 44901(a). This latter provision of the
Aviation Security Act borrows from the general civil-service
statute for who is an "employee." That general
provision is 5 U.S.C. § 2105, which in turn defines
"employee" to include "officer[s]" in
§ 2105(a). "Officer" is further defined as an
individual "appointed in the civil service by,"
among others, "the head of an Executive agency."
Id. § 2104(a)(1). But TSOs are not appointed by
the head of an Executive agency. Rather, they are appointed
by the TSA Administrator, formerly known as the Under
Secretary of Transportation for Security. See 49
U.S.C. § 44935 (1994), amended by FAA
Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat.
3186 (2018). This official leads the TSA, see 49
U.S.C. § 114(b), but is not the head of an Executive
agency. Thus TSOs technically are not "officers"
under the Aviation Security Act.
they "officer[s]" under the Tort Claims Act? A
distinction between "employee[s]" and
"officer[s]" appears in that Act, which (as noted)
waives sovereign immunity for the torts of an
"employee," see 28 U.S.C. § 1346(b),
but applies § 2680(h)'s waiver only to
"officer[s]," id. § 2680(h). Because
TSOs fall on the "employee" side of the line in the
Aviation Security Act, do they as well in the Tort Claims
think not. Aside from the single shared word
"officer," there is no textual indication that only
a specialized "law enforcement officer" in the
Aviation Security Act, 49 U.S.C. § 114(p), qualifies as
an "officer of the United States" under the proviso
in the Tort Claims Act.
neither Act's statutory distinction between
"officer[s]" and "employee[s]" is
airtight. Instead, both statutes include "officers"
within the meaning of the term "employee."
See 28 U.S.C. § 2671 (providing in the Tort
Claims Act that "[e]mployee of the Government"
includes "officers or employees of any federal
agency"); 49 U.S.C. § 44901(a) (providing in the
Aviation Security Act that "employee" is defined by
5 U.S.C. § 2105, which in turn defines
"employee" to include "officer"). We are
hesitant to put too much stock into a distinction between two
terms that are not themselves mutually exclusive. See
also 49 U.S.C. § 44922(e) (providing that "[a]
State or local law enforcement officer who is
deputized" into federal service by the TSA Administrator
"shall be treated as an 'employee of the
Government'" for purposes of the proviso) (emphases
grafting the Aviation Security Act's definitions of
"employee" and "officer" onto the Tort
Claims Act yields a result inconsistent with case law, which
includes non-officers in the general civil-service laws as
"investigative or law enforcement officers" under
the Tort Claims Act's proviso. See, e.g.,
Caban v. United States, 671 F.2d 1230, 1234 (2d Cir.
1982) (immigration agents); Moore v. United States,
213 F.3d 705, 708 (D.C. Cir. 2000) (postal inspectors).
Because the definitions of "officer" and
"employee" in 5 U.S.C. §§ 2104 and 2105
are underinclusive as applied to the proviso, we are
reluctant to depend on them for our reading of "officer
of the United States." See also Jack Boger et
al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretative Analysis, 54 N.C. L. Rev.
497, 519 & n.103 (1976) (arguing that the limitation to
"any officer of the United States" in the newly
enacted proviso was "apparently" not meant to
import the "[w]ell-established . . . statutory . . .
distinction" between "officers" and
"employees" from 5 U.S.C. § 2104).
there were uncertainty about the reach of the term
"officer of the United States," it would be
resolved in favor of a broad scope. To begin, disputes over
the breadth of the Tort Claims Act "do not implicate
the general rule that 'a waiver of the Government's
sovereign immunity will be strictly construed . . . in favor
of the sovereign.'" Dolan v. U.S. Postal
Serv., 546 U.S. 481, 491 (2006) (quoting Lane v.
Peña, 518 U.S. 187, 192 (1996)). And here the
statutory reference to "any officer" - as
opposed to, say, criminal officer - supports an
expansive reading. See Boyle v. United States, 556
U.S. 938, 944 (2009) ("The term 'any' ensures
that the definition has a wide reach[.]" (citation
omitted)). Furthermore, as recently as 2013 the Supreme Court
clamped down on a cramped reading of the proviso. See
Millbrook, 569 U.S. at 56-57. As the Fifth Circuit
recently put it, "[t]he [Millbrook] Court held
there to be no implicit limits on the statutory
language." Campos v. United States, 888 F.3d
724, 737 (5th Cir. 2018). If we follow suit, then no limiting
words - like "criminal" or "traditional"
before "officer" - should be added to the proviso.
Supreme Court's expansive reading also set the tone for
the Seventh Circuit's sweeping view of the proviso last
year. See Bunch v. United States, 880 F.3d 938, 945
(7th Cir. 2018) (Wood, C.J.) (concluding that an ATF chemist
could qualify under the proviso, and explaining that
"[w]e are also influenced by the broad reading of the
law-enforcement proviso that the Court adopted in
Millbrook"). Our decision today that TSOs are
"officer[s] of the United States" is consistent
with the broad constructions announced in Millbrook
. . . Empowered by Law . . ."
repeat, the complete proviso definition for an
"investigative or law enforcement officer" is
"any officer of the United States who is empowered by
law to execute searches, to seize evidence, or to make
arrests for violations of Federal law." 28 U.S.C. §
2680(h). By its plain terms, the phrase "empowered by
law" narrows the scope of "officer[s]" covered
from the set of all "officer[s] of the United
States" to the subset of those with the authority to,
among other things, "execute searches."
then, to the statutory authority of TSOs, they are empowered
by law to conduct "the screening of all passengers and
property." 49 U.S.C. § 44901(a). Screening, in
turn, is defined in part as a "physical
examination," including a "physical search."
Id. § 44901(g)(4) (regarding screening of
luggage). Hence TSOs are "empowered by law" within
the meaning of the proviso.
3." . . . To Execute Searches . . ."
screenings are "searches" (i) as a matter of
ordinary meaning, (ii) under the Fourth Amendment, and (iii)
under the definition provided in Terry v. Ohio, 392
U.S. 1 (1968). Attempts to distinguish (iv) between
administrative and criminal "searches" are divorced
from the plain text, and any distinction, if one must be
made, should account for (v) the fact that TSA searches
extend to the general public and involve examinations of an
individual's physical person and her property.
Ordinary Meaning. - TSOs perform "searches" as
understood in ordinary parlance. Of the many dictionary
definitions that bear this out, to search is "to examine
(a person) thoroughly to check on whatever articles are
carried or concealed." Search, Webster's
Third New International Dictionary (1971); see also
Search, Black's Law Dictionary (4th ed. rev. 1968)
("an examination or inspection . . . with [a] view to
discovery of stolen, contraband, or illicit property").
Dictionaries aside, one could simply ask any passenger at any
airport. Indeed, the very TSOs who screened Pellegrino called
their procedure a search: "While [a TSO] was doing the
searches, [Pellegrino] continued to be verbally abusive. When
the search was complete, the passenger asked that she repack
her own bags . . . ." J.A. 215 (incident report).
Aviation Security Act's statutory and regulatory regime
reflects this ordinary usage. TSOs perform "screening[s]
of all passengers and property," 49 U.S.C. §
44901(a), which include "physical search[es],"
id. § 44901(g)(4) (screening of luggage).
Likewise, TSA regulations provide that airlines "must
refuse to transport . . . [a]ny individual who does not
consent to a search or inspection of his or her
person" and "[a]ny property of any individual or
other person who does not consent to a search or
inspection of that property." 49 C.F.R. §
1544.201(c) (emphases added); see also id. §
1540.107(a) ("No individual may enter a sterile area or
board an aircraft without submitting to the screening and
inspection of his or her person and accessible property in
accordance with the procedures being applied to control
access to that area or aircraft under this
Fourth Amendment. - Setting aside the ordinary meaning
of "search," airport screenings are searches as
well under the Fourth Amendment. George v. Rehiel,
738 F.3d 562, 577 (3d Cir. 2013). No warrant is required, and
no individualized suspicion need exist. Id.; see
also Nat'l Treasury Emps. Union v. Von Raab, 489
U.S. 656, 675 n.3 (1989) (noting "the Federal
Government's practice of requiring the search of
all passengers seeking to board commercial airliners, as well
as the search of their carry-on luggage, without any
basis for suspecting any particular passenger of an untoward
motive") (emphases added).
Government does not dispute that holding. Instead, it
contends that consent by passengers cancels the Fourth
Amendment's effect. But the presence or absence of
consent does not determine whether a search has occurred for
purposes of the Fourth Amendment. See George, 738
F.3d at 575 ("The constitutionality of an airport
screening search . . . does not depend on consent . . . .
[A]ll that is required is the passenger's election to
attempt entry into the secured area." (internal
quotation marks omitted) (quoting United States v.
Aukai, 497 F.3d 955, 961 (9th Cir. 2007) (en
banc))). In any event, TSO screenings are not
consensual. As noted, per TSA regulations any individual who
does not consent to a "search or inspection" may
not board a flight. 49 C.F.R. § 1544.201(c); see
also id. § 1540.107(a).
Meaning under Terry. - TSA screenings even meet
the definition of the particular subset of Fourth Amendment
searches announced in Terry just six years before
the enactment of the proviso. "[W]hen Congress employs a
term of art, it . . . knows and adopts the cluster of ideas
that were attached to each borrowed word in the body of
learning from which it was taken . . . ." FAA v.
Cooper, 566 U.S. 284, 292 (2012) (internal quotation
provided a vivid definition of "search": "[I]t
is nothing less than sheer torture of the English language to
suggest that a careful exploration of the outer surfaces
of a person's clothing all over his or her body in
an attempt to find weapons is not a 'search.'"
Terry, 392 U.S. at 16 (emphasis added). This is an
apt description of the duties of a TSO, who by statute may
"thoroughly conduct" an exploration "over an
individual's entire body." 49 U.S.C. §
44935(f)(1)(B)(v). The TSA's website elaborates that TSOs
inspect "sensitive areas such as breasts, groin, and the
buttocks" and must use "sufficient pressure to
ensure detection." Transp. Sec. Admin., Security
(last visited Aug. 14, 2019). To deny that TSOs perform
"searches" is to ignore Terry's
admonition against side-stepping the term's obvious
sure, Terry typically requires reasonable suspicion
for a search. But that is not the point here. Under
Terry, the existence of reasonable suspicion
determines whether a search was justified, not whether it
occurred in the first place. An inspection may meet the
definition of "search" under Terry yet
involve no reasonable suspicion. In that situation, the
incident is still a search; it is simply an unlawful search.
Refuting a Distinction Between Criminal and Administrative
Searches. - Some courts have perceived a distinction
between two types of "searches": those based on
individualized suspicion performed by criminal law
enforcement (no doubt covered by the proviso), and those,
like health inspections, that further an administrative
purpose (not covered). See, e.g., Hernandez v.
United States, 34 F.Supp.3d 1168, 1180-81 (D. Colo.
only textual support for this distinction comes from the
interpretive canon noscitur a sociis (to know
something by its accompanying words). At three points in the
proviso - "execute searches," "seize
evidence," and "make arrests" - neighboring
words arguably carry criminal connotations that possibly
color the meaning of "searches." In reverse order,
"mak[ing] arrests" to curb federal law violations
no doubt has a criminal color, and TSOs (unless specially
designated, see 49 U.S.C. § 114(p)) do not make
arrests. They arguably seize evidence, but for our purposes
they typically confiscate contraband in the pre-boarding
process; thus we assume for the sake of argument that
"seize evidence" also has a criminal connotation.
If both making arrests and seizing evidence have criminal
functions, why doesn't "execute searches"?
After all, Congress typically uses "execute" in the
sense of "to execute a search warrant,"
which is based on probable cause to believe that criminal
activity exists. E.g., 18 U.S.C. § 3109
Congress chose not to include the terms "warrant"
or "search warrant" in § 2680(h). For this
reason, the Seventh Circuit recently rejected a reading of
the proviso that would have limited "searches" to
those based on warrants: "[S]ection 2680(h) does not
require [the officer] to have had authority to seek and
execute search warrants; it speaks only of executing
searches, and many searches do not require warrants."
Bunch, 880 F.3d at 945 (emphasis in original)
(citations omitted). This removes the proviso from the ambit
of exclusively criminal searches. Nor does the verb
"execute" automatically transform
"searches" into specifically criminal searches;
Congress uses milder verbs than "execute" even in
the criminal context. E.g., 42 U.S.C. §
2000aa-11(a)(4) (discussing requirements "for a warrant
to conduct a search"). As a result, mere use of
"execute" does not create a distinction between
criminal searches and administrative searches.
we are doubly slow to apply the noscitur canon here.
Not only is the term "searches" clear, see
Russell Motor Car Co. v. United States, 261 U.S. 514,
520 (1923), but the three duties in the proviso are listed in
the disjunctive ("to execute searches, to seize
evidence, or to make arrests"). "When
Congress has separated terms with the conjunction 'or,
'" the canon often "is of little help."
In re Continental Airlines, Inc., 932 F.2d 282, 288
(3d Cir. 1991) (Scirica, J.) (citations omitted). Each of the
three duties independently suffices to define
"investigative or law enforcement officer." See
Bunch, 880 F.3d at 943. As even the counsel for the
Government stated at oral argument, satisfying the proviso
"would depend . . . on the individual statutory
authority" measured against the three listed duties. Tr.
of En Banc Oral Arg. at 35:10-11. We agree; the three
statutory duties in the proviso begin and end the inquiry. No
resort to amorphous criminal connotations is warranted.
surprise, then, that every decision on the scope of the
proviso tests whether any single duty is statutorily present.
Some federal officers qualify because they perform
"searches." See Bunch, 880 F.3d at 943
(ATF chemists); cf. Caban, 671 F.2d at 1234 n.4
(immigration agents). Others make arrests, and therefore
qualify even if they don't play a traditional law
enforcement role. See Campos, 888 F.3d at 737
(Customs and Border Protection officers); Nurse v. United
States, 226 F.3d 996, 1002 (9th Cir. 2000) (same);
Celestine v. United States, 841 F.2d 851, 853 (8th
Cir. 1988) (per curiam) (Veterans'
Administration hospital security guards); Hernandez v.
Lattimore, 612 F.2d 61, 64 n.7 (2d Cir. 1979) (Bureau of
Prisons officers); cf. Moore, 213 F.3d at 708
(postal inspectors). Only when officers lack all three duties
are they outside the scope of the proviso. See Wilson v.
United States, 959 F.2d 12, 15 (2d Cir. 1992) (per
curiam) (parole officers); EEOC v. First National
Bank of Jackson, 614 F.2d 1004, 1008 (5th Cir. 1980)
(Equal Employment Opportunity Commission agent); Solomon
v. United States, 559 F.2d 309, 310 (5th Cir. 1977)
(per curiam) (security guard at military exchange).
These cases do not speak in terms of "criminal" or
"non-criminal" functions. Instead, they measure
each job's statutory duties against the three duties
listed in the proviso. Our reading does the same.
we could apply the same analysis to both TSOs and TSA
"law enforcement officers" per 49 U.S.C. §
114(p)(1). Between the two groups, all three of the
proviso's listed duties are accounted for. TSA law
enforcement officers are authorized to (i) make arrests and
(ii) seize evidence, see id. § 114(p)(2), while
TSOs (iii) execute searches, see id. §
44901(a). Taken together, the roles of both groups map onto
the three-part, and disjunctive, definition set out in the
conceivable way the noscitur canon might arrive at a
distinction between criminal and administrative searches is
by parsing the particular intentional torts against which the
proviso waives immunity: assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution. To be sure, these torts are commonly claimed
against criminal law enforcement officers performing criminal
law functions. But as our case demonstrates, that these torts
are typically brought against criminal law
enforcement officers does not mean that they are
exclusively brought against them.
does a lack of training on the constitutional doctrines
underpinning these torts absolve TSOs of liability. Congress
knows how to define "law enforcement officers" by
reference to training. See, e.g., 12 U.S.C. §
248(q)(4) ("[T]he term 'law enforcement
officers' means personnel who have successfully completed
law enforcement training . . . ."). Here, by contrast,
the proviso defines "investigative or law enforcement
officer" not by reference to constitutional training,
but by the legal authority to "execute searches."
Training has no bearing on whether TSOs are
"investigative or law enforcement officers." For
good reason, no court has ever relied on an officer's
lack of training to conclude that she was not an
"investigative or law enforcement officer" under 28
U.S.C. § 2680(h).
bottom, Congress chose to re-waive sovereign immunity only
for certain torts to cabin the Government's liability,
not to provide an indirect textual clue about the meaning of
"investigative or law enforcement officer." See
Sami v. United States, 617 F.2d 755, 764-65 (D.C. Cir.
1979) ("[B]y limiting the wrongs covered in the §
2680(h) exception . . ., Congress set finite boundaries
around the kind of law enforcement abuses for which it wished
to make the government liable.").
Distinctions From Typical Administrative Searches. - If
we must draw distinctions between "searches" in the
proviso, the possible distinction between criminal and
administrative searches is incomplete. A further distinction
within administrative searches may be needed - one that