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Pellegrino v. United States of America Transportation Security Administration

United States Court of Appeals, Third Circuit

August 30, 2019

UNITED STATES OF AMERICA TRANSPORTATION SECURITY ADMINISTRATION, Div. of Dept. of Homeland Security; TSA TSO NUYRIAH ABDUL-MALIK, Sued in her individual capacity; TSA TSO DENICE KISSINGER, Sued in her individual capacity; JOHN/JANE DOE TSA Aviations Security Inspector Defendants sued in their individual capacities; JOHN/JANE DOE TSA, Official Defendants, sued in their individual capacities

          Argued before original panel on October 3, 2017

          Petition for Rehearing En Banc granted on October 3, 2018

          Argued En Banc on February 20, 2019

          Appeal 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

          Paul M. Thompson (Argued) Sarah Hogarth McDermott Will & Emery Matthew L. Knowles McDermott Will & Emery Counsel for Appellants

          Mark 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 Appellants

          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.




         The 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.

         Nadine 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.

         We 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.


         A. Factual Background

         Pellegrino 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).

         As 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.

         The 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?"

         As a 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.

         B. Procedural History

         After 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.

         As for 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.

         On 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.

         Jurisdiction and Standard of Review

         The 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).


         As 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).

         But 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 definition.

         A. Text of the Proviso, 28 U.S.C. § 2680(h)

         Are 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.

          1. "Any Officer of the United States . . ."

         "Ordinarily, 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."[1] Hence they are "officer[s]" under the proviso.

         If TSOs 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.

         But are 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 Act?

         We think not.[2] 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.

         And 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 added).

         Moreover, 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).

         Even if 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.

         The 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 and Bunch.

         2." . . . Empowered by Law . . ."

         To 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."

         Turning, 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 . . ."

         TSO 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.

         (i) 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).

         The 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 subchapter.").

         (ii) 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).

         The 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).

         (iii) 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 marks omitted).

         Terry 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 Screening, (last visited Aug. 14, 2019). To deny that TSOs perform "searches" is to ignore Terry's admonition against side-stepping the term's obvious meaning.

         To be 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.

         (iv) 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. 2014).

         The 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 (emphasis added).

         But 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.

         Moreover, 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.

         No 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.

         Indeed, 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 proviso.

         Another 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.

         Nor 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).

         At 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.").

         (v) 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 ...

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