FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELE LEUTHAUSER, No. 22-15402
Plaintiff-Appellant, D.C. No.
2:20-cv-00479-
v. JCM-VCF
UNITED STATES OF AMERICA;
ANITA SERRANO, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 6, 2022
San Francisco, California
Filed June 26, 2023
Before: Jacqueline H. Nguyen and Lucy H. Koh, Circuit
Judges, and Joseph F. Bataillon,* District Judge.
Opinion by Judge Nguyen
*
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, sitting by designation.
2 LEUTHAUSER V. UNITED STATES
SUMMARY**
Federal Tort Claims Act
The panel reversed the district court’s summary
judgment in favor of the United States in a Federal Tort
Claims Act (“FTCA”) action brought by Michele
Leuthauser, alleging that a Transportation Security Officer
(“TSO”) sexually assaulted her during an airport security
screening.
Plaintiff alleged claims for battery and intentional
infliction of emotional distress.
The panel held that TSOs fall under the FTCA’s “law
enforcement proviso,” which waives sovereign immunity for
torts such as assault and battery committed by “investigative
or law enforcement officers of the United States
Government.” 28 U.S.C. § 2680(h). The panel joined the
Third, Fourth, and Eighth Circuits in holding that the
FTCA’s limited waiver of sovereign immunity applies to
certain intentional torts committed by TSOs. The district
court therefore had subject matter jurisdiction over
plaintiff’s FTCA claims.
First, the panel addressed whether a TSO fits the
statutory definition of “any officer of the United States.” 28
U.S.C. § 2680(h). The panel held that a TSO easily satisfies
dictionary definitions of officer at the time of the proviso’s
enactment in 1974. That TSOs are titled, uniformed, and
badged as “officers” reinforces the conclusion that they are
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEUTHAUSER V. UNITED STATES 3
“officers of the United States” as understood in ordinary
parlance. The panel rejected the government’s contention
that the proviso is limited to officers with traditional police
powers. While the TSA Administrator did not designate
TSO Anita Serrano as a “law enforcement officer” under the
Aviation Security Act, this did not preclude her from
qualifying as an “officer of the United States” under the
FTCA. The panel also rejected the government’s contention
that TSOs are not officers partly because the Airport
Transportation Security Act refers to them as “employees,”
where the Act defines employees to include officers.
Next, the panel considered whether, as officers of the
United States, TSOs are “empowered by law to execute
searches, to seize evidence, or to make arrests for violations
of Federal law.” 28 U.S.C. § 2680(h). The government
argued that TSOs do not “execute searches” by conducting
screenings. The panel held that the screenings fit the
ordinary, contemporary, and common meaning of
searches. Further, given the intrusion involved in TSA
screenings, caselaw explicitly recognizes them as searches
under the Fourth Amendment. Having established that
TSOs execute searches, the panel turned to whether they do
so for violations of Federal law. The panel held that TSOs
are empowered by law to execute searches for violations of
Federal law based on the statutory test’s plain meaning, as
supported by caselaw and the TSA’s statutory and regulatory
framework. The panel rejected the government’s contention
that the proviso applies only to searches executed for
criminal investigations.
4 LEUTHAUSER V. UNITED STATES
COUNSEL
Jonathan Corbett (argued), Corbett Rights PC, Los Angeles,
California, for Plaintiff-Appellant.
Patrick M. Jaicomo (argued), Anna Bidwell, and Jaba
Tsitsuashvili, Institute for Justice, Arlington, Virginia, for
Amicus Curiae Institute for Justice.
Daniel Aguilar (argued) and Sharon Swingle, Appellate
Staff Attorneys; Jason M. Frierson, United States Attorney;
Brian M. Boynton, Principal Deputy Assistant Attorney
General; United States Department of Justice; Washington,
D.C.; Brianna Smith, Pisanelli Bice PLLC, Las Vegas; for
Defendants-Appellees.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis,
Minnesota, for Amici Curiae Freedom to Travel USA and
Restore the Fourth Inc.
LEUTHAUSER V. UNITED STATES 5
OPINION
NGUYEN, Circuit Judge:
Michele Leuthauser alleges that a Transportation
Security Officer (“TSO”) sexually assaulted her during an
airport security screening. We must decide whether
Leuthauser may bring claims for battery and intentional
infliction of emotional distress against the United States
under the Federal Tort Claims Act (“FTCA”). She may do
so only if TSOs fall under the FTCA’s “law enforcement
proviso,” which waives sovereign immunity for torts such as
assault and battery committed by “investigative or law
enforcement officers of the United States Government.” 28
U.S.C. § 2680(h).
Every circuit that has addressed this issue in a published
decision has held that TSOs are investigative or law
enforcement officers under the FTCA’s plain language. See
Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164, 180
(3d Cir. 2019) (en banc); Iverson v. United States, 973 F.3d
843, 854–55 (8th Cir. 2020); Osmon v. United States, 66
F.4th 144, 150 (4th Cir. 2023). These rulings rest on the
statute’s definition of investigative or law enforcement
officer as “any officer of the United States who is
empowered by law to execute searches . . . for violations of
Federal law.” 28 U.S.C. § 2680(h); Pellegrino, 937 F.3d at
180; Iverson, 973 F.3d at 853; Osmon, 66 F.4th at 148–50.
The only circuit to reach the opposite conclusion, the
Eleventh Circuit, did so in an unpublished, per
curiam opinion that is not binding in that circuit, see 11th
Cir. R. 36-2. See Corbett v. Transp. Sec. Admin., 568 F.
App’x 690, 701 (11th Cir. 2014) (per curiam).
6 LEUTHAUSER V. UNITED STATES
Today we join the Third, Fourth, and Eighth Circuits in
holding that the FTCA’s limited waiver of sovereign
immunity applies to certain intentional torts committed by
TSOs. The district court therefore had subject matter
jurisdiction over Leuthauser’s FTCA claims. We reverse its
grant of summary judgment in favor of the government and
remand for further proceedings.
I
On June 30, 2019, Leuthauser was a ticketed passenger
at the Harry Reid International Airport (formerly, Las
Vegas-McCarran International Airport) passing through a
security checkpoint run by the Transportation Security
Administration (“TSA”). After stepping into a body
scanner, Leuthauser was told that she had to submit to a
“groin search.” Leuthauser then entered a private room with
two TSOs, including Defendant Anita Serrano. Leuthauser
was directed to stand on a floor mat with footprints painted
on it to show where to place her feet. Leuthauser alleges that
TSO Serrano directed her to spread her legs far more widely
than the footprints indicated. TSO Serrano then conducted
a pat-down during which TSO Serrano slid her hands along
the inside of Leuthauser’s thighs, touched her vulva and
clitoris with the front of her fingers, and digitally penetrated
her vagina. She asserts that she suffered symptoms of
emotional distress, including shortness of breath,
uncontrollable shaking, and nausea.
A TSA supervisor dismissed TSO Serrano and
completed the pat-down search. Leuthauser maintains that
no prohibited items were found in her possession. She
contacted the airport police before she left the checkpoint
area, but the airport police told her it could not take her report
because the TSA was outside of its jurisdiction.
LEUTHAUSER V. UNITED STATES 7
Leuthauser alleges that, under TSA policy, a pat-down
resulting from a body scanner alarm must occur in the public
area unless the passenger requests otherwise. It is
undisputed that TSA policy prohibits body cavity searches.
Leuthauser filed suit against TSO Serrano, in her
individual capacity, and the United States. As to TSO
Serrano, Leuthauser raised a Fourth Amendment claim
under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). The district court granted TSO Serrano’s motion to
dismiss the claim on the ground that a Bivens damages action
is not available in this context. Leuthauser v. United States,
576 F. Supp. 3d 806, 815 (D. Nev. 2021). Whether
Leuthauser can state a claim against TSO Serrano under
Bivens is not at issue in this appeal.
As to the United States, Leuthauser brought claims for
battery and intentional infliction of emotional distress under
the FTCA and Nevada state law. Leuthauser v. United
States, No. 2:20-CV-479, 2020 WL 4677296, at *2 (D. Nev.
Aug. 12, 2020). The government moved to dismiss. The
district court found that TSOs who are not formally
designated as “law enforcement officer[s]” by the TSA
Administrator, see 49 U.S.C. § 114(p)(1), do not fall within
the law enforcement proviso because they conduct
administrative screenings rather than criminal investigative
searches, are not permitted to seize evidence, and do not
have the authority to make arrests. The district court denied
the government’s motion to dismiss, holding that discovery
was necessary to determine whether TSO Serrano was
designated as a law enforcement officer under 49 U.S.C.
§ 114(p)(1). Id. at *4. The district court denied Leuthauser’s
motion for reconsideration.
8 LEUTHAUSER V. UNITED STATES
Leuthauser conceded that the TSA Administrator had not
designated TSO Serrano as a law enforcement officer. The
government then moved for summary judgment, which the
district court granted on the ground that TSOs are not
“investigative or law enforcement officers” under the FTCA.
Leuthauser timely appealed.
II
The district court had jurisdiction under 28 U.S.C.
§§ 1346(b) and 1331, and we have jurisdiction per 28
U.S.C. § 1291. We review de novo an order dismissing an
FTCA suit for lack of subject matter jurisdiction. Foster v.
United States, 522 F.3d 1071, 1074 (9th Cir. 2008).
III
The FTCA waives sovereign immunity and grants
federal district courts exclusive jurisdiction over claims
against the United States for “personal injury or death caused
by the negligent or wrongful act or omission of a federal
employee ‘acting within the scope of his office or
employment.’” Millbrook v. United States, 569 U.S. 50, 52
(2013) (internal quotation marks omitted) (quoting 28
U.S.C. § 1346(b)(1)). The statute’s waiver of sovereign
immunity, however, is subject to an exception for certain
intentional torts over which the government reclaims
immunity. 28 U.S.C. § 2680(h).
The FTCA then contains an exception to this
exception—a re-waiver of sovereign immunity. See Foster,
522 F.3d at 1079. This so-called “law enforcement proviso”
allows suits against the United States for “any claim arising
. . . out of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution” by
“investigative or law enforcement officers of the United
LEUTHAUSER V. UNITED STATES 9
States Government.” 28 U.S.C. § 2680(h). The statute
defines an investigative or law enforcement officer as “any
officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for
violations of Federal law.” Id. The question that we must
decide is whether TSOs qualify under this definition.
A
We first address whether a TSO fits the statutory
definition of “any officer of the United States.” 28 U.S.C.
§ 2680(h).
1
We begin with the plain text of the statute. City of Los
Angeles v. Barr, 941 F.3d 931, 940 (9th Cir. 2019). Because
the proviso does not specifically define “officer,” we
interpret this term “consistent with [its] ordinary meaning
. . . at the time Congress enacted the statute.” Wis. Cent. Ltd.
v. United States, 138 S. Ct. 2067, 2070 (2018) (cleaned up).
At the same time, we are mindful that “[t]he definition[s] of
words in isolation . . . [are] not necessarily controlling in
statutory construction.” Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006) (interpreting another provision of 28 U.S.C.
§ 2680). We note that the use of the term any before officer
counsels toward defining the latter broadly. See United
States v. Gonzales, 520 U.S. 1, 5 (1997).
A TSO easily satisfies dictionary definitions of officer at
the time of the proviso’s enactment in 1974. See, e.g.,
Officer, Webster’s Third New International Dictionary
(1971) (defining officer as “one charged with a duty” and
“one who is appointed or elected to serve in a position of
trust, authority, or command esp. as specif. provided for by
law”); Officer, Black’s Law Dictionary (4th ed. rev. 1968)
10 LEUTHAUSER V. UNITED STATES
(defining officer as “[o]ne who is charged by a superior
power (and particularly by government) with the power and
duty of exercising certain functions” or “[o]ne who is
invested with some portion of the functions of the
government to be exercised for the public benefit”); accord
Pellegrino, 937 F.3d at 170; Iverson, 973 F.3d at 848.
And while not dispositive, the government represents
TSOs to the public as officers by their title and uniforms,
which include badges displaying the title “US Officer.”1
That screeners are titled, uniformed, and badged as
“officers” reinforces our conclusion that they are “officers of
the United States” as understood in ordinary parlance.
Therefore, based on its ordinary meaning, the proviso’s
reference to any officer of the United States includes TSOs.
2
Resisting the ordinary meaning of any officer, the
government contends that the proviso is limited to officers
with traditional police powers. As support, it highlights the
difference in language between subsections (a) and (e) of 28
1
The TSA adopted the “officer” title in 2005 and added the uniforms
and “officer” badges in 2008. 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/transportation-security-
officers-have-renewed-focus-and-new-look-seventh
[https://perma.cc/YB5A-4XCH]. In 2011, Congress rejected a bill that
would have stripped TSOs of their officer title and badge. See Stop
TSA’s Reach in Policy Act, H.R. 3608, 112th Cong. (2011),
https://www.congress.gov/bill/112th-congress/house-bill/3608/text.
LEUTHAUSER V. UNITED STATES 11
U.S.C. § 2680,2 which address sovereign immunity for
conduct by an “employee,” and the proviso, which is limited
to an “officer,” 28 U.S.C. § 2680(h). The government
argues that, if Congress intended the proviso to sweep
broadly, it would have defined investigative or law
enforcement officer as “any employee,” rather than “any
officer,” empowered to execute searches. But there is a
straightforward textual explanation for this difference:
subsections (a) and (e) simply cover more federal
employees, including those who are not officers.
Additionally, the government points to unrelated statutes
to suggest that Congress’s use of the term “investigative or
law enforcement officer” generally describes officers
authorized to perform traditional criminal law enforcement
functions. See Electronic Communications Privacy Act
(“ECPA”), 18 U.S.C. § 2510(7) (defining “[i]nvestigative or
law enforcement officer” as an officer “empowered by law
to conduct investigations of or to make arrests for [certain]
offenses . . . and any attorney authorized by law to prosecute
or participate in the prosecution of such offenses”); Foreign
Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1809(b)
(prohibiting electronic surveillance under color of law, but
providing a defense to “a law enforcement or investigative
officer engaged in the course of his official duties”
2
Under subsection (a), the government reclaims immunity for “[a]ny
claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation . . . or
based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency
or an employee of the Government.” 28 U.S.C. § 2680(a). Subsection
(e) similarly reclaims immunity for “any employee of the Government”
administering various provisions of Title 50, which relates to war and
national defense. 28 U.S.C. § 2680(e).
12 LEUTHAUSER V. UNITED STATES
conducting electronic surveillance per a search warrant or
court order). But those statutory definitions apply to factual
contexts not relevant here. As the Third Circuit explained,
“it is unnecessary to explore the entire U.S. Code . . .
because Congress provided an expressly local definition in
the proviso” that “overrides any other usages of ‘law
enforcement officer.’” Pellegrino, 937 F.3d at 178; see Van
Buren v. United States, 141 S. Ct. 1648, 1657 (2021).
Congress could have limited investigative or law
enforcement officer to the criminal context, as it did
explicitly in the ECPA and FISA, but it excluded such
limiting language from the proviso.3 Thus, the government
has not met the high bar to “justify . . . departing from the
plain meaning” of the proviso. Bouie v. City of Columbia,
378 U.S. 347, 362–63 (1964) (quoting United States v.
Wiltberger, 18 U.S. (5 Wheat.) 76, 96 (1820) (Marshall,
C.J.)).
Moreover, while it is uncontested that the TSA
Administrator did not designate TSO Serrano as a “law
enforcement officer” under the Aviation Security Act, see 49
U.S.C. § 114(p)(1), this does not preclude her from
qualifying as an “officer of the United States” under the
FTCA. A designee under 49 U.S.C. § 114(p), like a Federal
3
The government also appears to suggest that TSOs cannot be
“investigative or law enforcement officers” because they are not trained
on the constitutional underpinnings of the torts listed in the proviso. To
the extent the government makes this argument, we reject it. 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 . . . .”). It did not do so here, where the proviso
defines “investigative or law enforcement officer” by the legal authority
to “execute searches.” See Sec. III.B.1.
LEUTHAUSER V. UNITED STATES 13
Air Marshal or a TSA criminal investigator, has statutory
authority to “carry a firearm,” “make an arrest” for federal
criminal offenses, and “seek and execute warrants for arrest
or seizure of evidence . . . upon probable cause that a
violation has been committed.” 49 U.S.C. § 114(p)(2).
However, “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 [FTCA].”
Pellegrino, 937 F.3d at 171. The defined term is
“investigative or law enforcement officer,” indicating that
there are some “investigative . . . officers,” including TSOs,
who are not traditional “law enforcement officers.” 28
U.S.C. § 2680(h) (emphasis added). Disregarding the
proviso’s reference to “investigative” officers would
“violate[ ] the settled rule that a statute must, if possible, be
construed in such fashion that every word has some
operative effect.” United States v. Nordic Vill. Inc., 503 U.S.
30, 36 (1992).
Finally, the government cites to the Pellegrino dissent,
which argues that TSOs are not officers partly because the
Airport Transportation Security Act (“ATSA”) refers to
them as “employees.” See Pellegrino, 937 F.3d at 191–92
(Krause, J., dissenting). Assuming the government has not
forfeited this argument, we are unpersuaded. While the
ATSA directs that “screening . . . be carried out by a Federal
Government employee,” 49 U.S.C. § 44901(a), it also
defines employees in the ATSA to include officers. See 49
U.S.C. § 44901(a) (cross referencing 5 U.S.C. § 2105
(defining employee as “an officer and an individual”)); 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
14 LEUTHAUSER V. UNITED STATES
‘employee of the Government’” for purposes of the proviso
(emphases added)). Further, the passage of the ATSA in
2001 cannot “silently alter” the ordinary meaning of
“officers” in the FTCA, passed nearly three decades earlier.
See Bilski v. Kappos, 561 U.S. 593, 607 (2010) (“[The
statute’s] definition . . . cannot change the meaning of a
prior-enacted statute.”); see also Iverson, 973 F.3d at 850
(concluding that “there is no reason to assume that Congress
attached the same meanings to employee and officer” in the
ATSA and FTCA because they concern different subjects).
We therefore hold that the law enforcement proviso’s use
of the phrase any officer of the United States unambiguously
includes TSOs.
B
Next, we consider whether, as officers of the United
States, TSOs are “empowered by law to execute searches, to
seize evidence, or to make arrests for violations of Federal
law.” 28 U.S.C. § 2680(h).
1
“As a general rule, the use of a disjunctive in a statute
indicates alternatives and requires that they be treated
separately.” Azure v. Morton, 514 F.2d 897, 900 (9th Cir.
1975). Because the context does not “dictate[ ] otherwise,”
United States v. Nishiie, 996 F.3d 1013, 1023 (9th Cir.
2021), cert. denied, 142 S. Ct. 2653 (2022), TSOs need only
be empowered by law to perform one of the three listed
functions. Here, Leuthauser argues that they execute
searches . . . for violations of Federal law.
Congress has granted TSA the authority to “screen[ ] . . .
all passengers and property . . . that will be carried aboard a
passenger aircraft.” 49 U.S.C. § 44901(a). The government
LEUTHAUSER V. UNITED STATES 15
does not contest that TSOs are empowered by law to conduct
screenings. Instead, it argues only that TSOs do not execute
searches by conducting such screenings.
We first consider the “ordinary, contemporary, common
meaning” of searches. Transwestern Pipeline Co. v. 17.19
Acres of Prop. Located in Maricopa Cnty., 627 F.3d 1268,
1270 (9th Cir. 2010) (quoting Perrin v. United States, 444
U.S. 37, 42 (1979)). Any ordinary airport passenger would
attest that her person and property are subject to search. As
the TSA’s Assistant Federal Security Director for Screening
attests in his declaration filed below, TSOs conduct “pat
down search[es]” of passengers intended “to ensure that
there are no prohibited items concealed on the passenger in
the area being searched.” As our sister circuits observe,
dictionary definitions of “search” at the time of the FTCA’s
enactment reflect this common meaning. See Pellegrino,
937 F.3d at 172–73 (citing Search, Webster’s Third New
International Dictionary (1971) (“to examine (a person)
thoroughly to check on whatever articles are carried or
concealed.”); Search, Black’s Law Dictionary (4th ed. rev.
1968) (“an examination or inspection . . . with [a] view to
discovery of stolen, contraband, or illicit property”));
Iverson, 973 at 851.
The Aviation Security Act’s statutory and regulatory
regime also comports with this ordinary usage. At least in
the context of cargo, “screening” is defined in part as a
“physical examination,” including a “physical search.” 49
U.S.C. § 44901(g)(4). Additionally, federal regulations
require an “aircraft operator” to “refuse to transport” any
person “who does not consent to a search or inspection of his
or her person” by TSOs. 49 C.F.R. § 1544.201(c)(1); see
also id. § 1540.107(a) (“No individual may enter a sterile
area or board an aircraft without submitting to the screening
16 LEUTHAUSER V. UNITED STATES
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.”).
Further, given the intrusion involved in TSA screenings,
our caselaw explicitly recognizes them as searches under the
Fourth Amendment. See United States v. Aukai, 497 F.3d
955, 960 (9th Cir. 2007) (en banc) (“[A]irport screening
searches . . . are constitutionally reasonable administrative
searches because they are conducted as part of a general
regulatory scheme . . . to prevent the carrying of weapons or
explosives aboard aircraft, and thereby to prevent
hijackings.” (cleaned up)); see also Terry v. Ohio, 392 U.S.
1, 16 (1968) (describing it as “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’”). TSA
screenings need not be consensual to be constitutionally
valid. Aukai, 497 F.3d at 961; cf. Wilson v. United States,
959 F.2d 12, 15 (2d Cir. 1992) (holding that parole officers
“lack the seizure power contemplated by” the proviso
because they can only seize contraband in plain view with
parolees’ consent).
Having established that TSOs execute searches, we then
turn to whether they do so for violations of Federal law. This
modifier follows the third, disjunctive alternative in the
definition’s list— “to execute searches, to seize evidence, or
to make arrests for violations of Federal law.” 28 U.S.C.
§ 2680(h) (emphasis added). We are skeptical that for
violations of Federal law also modifies to execute searches,
which would appear to violate “the basic intuition that when
a modifier appears at the end of a list, it is easier to apply
that modifier only to the item directly before it.” Lockhart
v. United States, 577 U.S. 347, 351 (2016);
LEUTHAUSER V. UNITED STATES 17
accord Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170
(2021) (“[A] limiting clause or phrase . . . should ordinarily
be read as modifying only the noun or phrase that it
immediately follows.” (citation omitted)); see Nishiie, 996
F.3d at 1023 (explaining that use of the disjunctive form
limits the “backward reach” of a subsequent phrase).
Nevertheless, we need not decide whether the phrase
modifies only the last item in the list or all of them.
Even if TSOs were required to execute searches for
violations of Federal law, they indisputably do so. In Aukai,
we recognized that TSA screening searches are
constitutionally reasonable under the Fourth Amendment
“because they are ‘conducted as part of a general regulatory
scheme in furtherance of an administrative purpose, namely,
to prevent the carrying of weapons or explosives aboard
aircraft, and thereby to prevent hijackings.’” 497 F.3d at 960
(quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir.
1973)). It would “violat[e] . . . Federal law” to carry such
weapons or explosives on board an aircraft, see 49 U.S.C.
§ 46505, just as it would to bring on board other “hazardous
materials” for which TSOs execute searches, see, e.g., 49
C.F.R. §§ 172.101, 175.10(a). That some airport contraband
may be legal in some non-flight contexts—such as aerosol
insecticides in campgrounds or legal firearms in Nevada—
does not change the fact that federal law prohibits passengers
from carrying them onto aircraft.
Accordingly, we hold that TSOs are empowered by law
to execute searches . . . for violations of Federal law based
on the statutory text’s plain meaning, as supported by our
caselaw and the TSA’s statutory and regulatory framework.
18 LEUTHAUSER V. UNITED STATES
2
Rather than apply the ordinary meaning of execute
searches, the government would have us limit the proviso to
“criminal, investigatory search,” as distinct from an
administrative search like the screenings conducted by
TSOs. But nowhere within the proviso does the word
“criminal” appear, let alone to modify “searches.” See 28
U.S.C. § 2680(h). The Supreme Court instructs us not to
“read into the text additional limitations designed to narrow
the scope of the law enforcement proviso.” Millbrook, 569
U.S. at 55; see also Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1725 (2020) (“Th[e] Court may not narrow a
provision’s reach by inserting words Congress chose to
omit.”).
The government cites cases in which execute is used in
the context of “executing . . . warrant[s]” for purposes of
criminal law enforcement. See, e.g., United States v.
Ramirez, 523 U.S. 65, 69 (1998); Los Angeles County v.
Rettele, 550 U.S. 609, 614 (2007). But the FTCA—unlike
the statutes referenced in the Pellegrino dissent cited by the
government—does not contain the word “warrant.” See 937
F.3d at 185 (Krause, J., dissenting) (citing 18 U.S.C.
§ 2231(a); id. § 2234; id. § 3109; 22 U.S.C. § 2709(a)(2)).
This distinction is meaningful because authority to execute
a search does not necessarily imply authority to execute a
search warrant. See, e.g., New Jersey v. T.L.O., 469 U.S.
325, 340–42 (1985) (allowing school officials to search
students under certain circumstances with no warrant
requirement, which would be “unsuited to the school
environment”). Thus, we again decline to “insert[ ] words
Congress chose to omit.” Lomax, 140 S. Ct. at 1725.
LEUTHAUSER V. UNITED STATES 19
Next, the government relies on the canon of noscitur a
sociis—that “[w]hen a word appears in a list of similar
terms, each term should be read in light of characteristics
shared by the entire list.” Maner v. Dignity Health, 9 F.4th
1114, 1123 (9th Cir. 2021). According to the government,
the placement of execute searches in a list with seize
evidence and make arrests cabins the meaning of execute
searches to the criminal law context. But “[t]he
government’s premise . . . does not hold.” Osmon, 66 F.4th
at 149. While “mak[ing] arrests” only occurs in the criminal
context, “government officials investigate plenty of
violations of law that are civil, not criminal, in nature, and
there is nothing linguistically strange about using the words
‘seize evidence’ in that context.” Id.
Besides, even if we accepted the government’s premise,
noscitur a sociis would not apply here. The canon is only
useful “where words are of obscure or doubtful meaning.”
Russell Motor Car Co. v. United States, 261 U.S. 514, 520
(1923); see Ali v. Fed. Bureau of Prisons, 552 U.S. 214,
226–27 (2008) (rejecting the invocation of this canon,
among others, as an “attempt to create ambiguity where the
statute’s text and structure suggest none”). Moreover, “[a]
list of three items, each quite distinct from the other no
matter how construed, is too short to be particularly
illuminating.” Graham Cnty. Soil & Water Conservation
Dist. v. United States ex rel. Wilson, 559 U.S. 280, 288
(2010). Here, the meaning of execute searches is plain, and
the “substantive connection” among the terms execute
searches, seize evidence, and make arrests “is not so tight or
so self-evident as to demand that we rob any one of them of
its independent and ordinary significance.” Id. (cleaned up).
Because we cannot “read into the text additional
limitations,” Millbrook, 569 U.S. at 55, we reject the
20 LEUTHAUSER V. UNITED STATES
government’s contention that the proviso applies only to
searches executed for criminal investigations. The statute
plainly provides that TSOs are officers of the United States
empowered by law to execute searches for violations of
Federal law.4
IV
We hold that TSOs fall within the ordinary meaning of
the proviso’s definition of investigative or law enforcement
officers. 28 U.S.C. § 2680(h). Therefore, sovereign
immunity does not bar Leuthauser’s claims for battery and
intentional infliction of emotional distress. We REVERSE
and REMAND for further proceedings consistent with this
opinion.
4
The government’s reliance on Foster, which held that any ambiguity
must be interpreted in favor of the United States, is misplaced. 522 F.3d
at 1079. Because the statutory text is unambiguous, we do not apply a
rule of construction in favor of (or against) immunity. See Millbrook,
569 U.S. at 57 (“[W]e . . . decline to read . . . a limitation into
unambiguous text.”); Osmon, 66 F.4th at 150 (declining to apply any
presumption or rule of construction to the question whether the proviso
applies to TSOs). Nor do we need to address legislative history or the
parties’ dueling arguments on policy considerations. See Haro v. City of
Los Angeles, 745 F.3d 1249, 1257 (9th Cir. 2014) (“Courts can only look
to legislative intent when a statute is ambiguous.” (cleaned up)).