TSOs Are “Investigative or Law Enforcement Officers” Under the FTCA’s Law-Enforcement Proviso: Eleventh Circuit Aligns with National Consensus

Introduction

This published decision from the U.S. Court of Appeals for the Eleventh Circuit resolves a recurring question at the intersection of sovereign immunity and airport security: whether Transportation Security Officers (TSOs) fall within the Federal Tort Claims Act (FTCA) law-enforcement proviso, 28 U.S.C. § 2680(h). That proviso enables suits against the United States for certain intentional torts—assault, battery, false imprisonment, false arrest, abuse of process, malicious prosecution—when committed by an “investigative or law enforcement officer” defined 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.”

The plaintiff, Elisabeth Koletas, alleged that during airport screening at Southwest Florida International Airport, TSOs conducted an invasive search amounting to a strip search while she was four months pregnant, causing psychological and physical harm. She sued the United States under the FTCA for battery, false imprisonment, intentional infliction of emotional distress, and negligence. The district court dismissed for lack of subject-matter jurisdiction, relying on an unpublished Eleventh Circuit decision, concluding TSOs are not “officers” under § 2680(h). On appeal, the Eleventh Circuit reversed, holding that TSOs are indeed “officers” empowered by law to “execute searches,” and therefore the law-enforcement proviso applies.

The ruling squarely aligns the Eleventh Circuit with the Third, Fourth, Eighth, Ninth, and Tenth Circuits and clarifies key statutory-interpretation principles applicable to the FTCA, including the plain-text meaning of “execute searches,” the rule of the last antecedent, and the proper role of the sovereign-immunity canon in FTCA cases.

Summary of the Opinion

The Eleventh Circuit holds that TSOs are “officers of the United States” within the meaning of the FTCA’s law-enforcement proviso.
TSOs are “empowered by law to execute searches” because federal statutes and regulations authorize TSOs to conduct physical and non-physical searches of passengers and property to prevent prohibited items from entering aircraft.
“Execute searches” is read according to its ordinary meaning and encompasses TSA screenings; it is not limited to “executing search warrants” or criminal searches.
Applying the rule of the last antecedent, the phrase “for violations of Federal law” modifies only “to make arrests,” not “to execute searches” or “to seize evidence.” Even if it modified “to execute searches,” TSO searches are indeed for violations of federal law, both civil and criminal.
The sovereign-immunity canon does not narrow the unambiguous text, and in the FTCA context courts employ a neutral methodological approach (Dolan v. USPS). Millbrook v. United States further counsels against adding extra-textual limitations to the proviso.
The district court’s reliance on an unpublished Eleventh Circuit decision (Corbett I) was misplaced; the panel emphasizes that unpublished decisions are non-precedential and that Corbett I’s reasoning is unpersuasive in light of the FTCA’s text and the weight of circuit authority.
Result: Reversed and remanded for adjudication on the merits of Koletas’s intentional tort claims.

Analysis

Precedents Cited and Their Influence

Pellegrino v. TSA (3d Cir. en banc): Held TSOs are “officers” empowered to execute searches under § 2680(h). The Eleventh Circuit embraces Pellegrino’s plain-text approach and its understanding of TSO duties and TSA’s own regulatory framework.
Iverson v. United States (8th Cir.); Osmon v. United States (4th Cir.); Leuthauser v. United States (9th Cir.); Mengert v. United States (10th Cir.): Each circuit concluded that TSOs are covered by the proviso. The Eleventh Circuit expressly “joins” these decisions, underscoring a now-stable national consensus.
Dolan v. U.S. Postal Service, 546 U.S. 481 (2006): Instructs courts to adopt a neutral interpretive approach to FTCA exceptions, rejecting a reflexive presumption in favor of sovereign immunity that would defeat the FTCA’s broad waiver. The Eleventh Circuit reads Dolan as a general direction applicable across § 2680.
Millbrook v. United States, 569 U.S. 50 (2013): The Supreme Court rejected attempts to narrow the law-enforcement proviso by adding judge-made limitations, emphasizing the statutory focus on the officer’s status rather than the specific activity at the time. The Eleventh Circuit applies Millbrook to reject the government’s efforts to import “criminal” or “warrant” constraints into the proviso.
Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014) (“Corbett II”): Held that TSA screenings are administrative searches under the Fourth Amendment. The panel leverages Corbett II to reinforce that “screenings” are indeed “searches.”
Terry v. Ohio, 392 U.S. 1 (1968): Described pat-downs as “searches” in ordinary and constitutional parlance. The panel uses Terry’s language to emphasize that the hands-on TSA pat-downs are classic searches.
EPIC v. DHS (D.C. Cir. 2011); United States v. Aukai (9th Cir. 2007); United States v. Hartwell (3d Cir. 2006); United States v. Edwards (2d Cir. 1974): These cases confirm TSA screening as a reasonable administrative search under the Fourth Amendment, supporting the ordinary-meaning reading of “execute searches.”
Bunch v. United States (7th Cir. 2018): Clarified that § 2680(h) speaks of “executing searches,” not executing search warrants. The Eleventh Circuit deploys Bunch to rebut the government’s “term of art” theory.
Lockhart v. United States, 577 U.S. 347 (2016); Facebook v. Duguid, 592 U.S. 395 (2021): Provide grammar canons (rule of the last antecedent, effect of commas) guiding the reading of “for violations of Federal law.”
Government-cited cases distinguished: EEOC v. First Nat’l Bank of Jackson (former 5th Cir. 1980) and Solomon v. United States (former 5th Cir. 1977) are not controlling and involved agents or security staff without authority to conduct person searches in the way TSOs are authorized to do. The panel finds them inapposite.

Legal Reasoning

1) TSOs are “Officers of the United States”

The FTCA does not define “officer,” so the court uses ordinary meaning, reinforced by historical dictionary definitions. TSOs fit because:

They are charged by law (ATSA, 49 U.S.C. § 44901; implementing regulations) with public-facing security functions that promote passenger safety and national security.
They serve in positions of trust and authority, explicitly presented as “officers” by title and uniform, and perform core governmental functions at the checkpoint.
The court rejects any reliance on the ATSA’s internal distinctions (e.g., TSA “law enforcement officers” with arrest authority) to narrow the FTCA’s “officer” term, noting that the FTCA’s text controls and allows overlap: one can be an “employee” and also an “officer.”

2) TSOs are “empowered by law to execute searches”

Ordinary meaning: TSA’s primary function is to “search” people and property to detect prohibited items, as confirmed by statutes (49 U.S.C. §§ 44901, 44935) and regulations (49 C.F.R. parts 1540, 1544) and TSA’s own public guidance.
Fourth Amendment doctrine: TSA screenings are administrative “searches.” Prior Eleventh Circuit precedent (Corbett II) and multiple circuits support that status.
Terry confirms pat-downs are “searches,” and TSA pat-down protocols mirror Terry’s “careful exploration” language, often including sensitive areas with sufficient pressure to detect items.

3) Rejection of the Government’s Narrowing Arguments

“Execute searches” as a warrant term of art: The statute does not say “execute search warrants.” Other statutes use that term explicitly; Congress chose broader phrasing.
Noscitur a sociis: The phrase is not ambiguous and thus the canon does not apply. The list is disjunctive and each verb-object pairing carries independent meaning.
Series-qualifier vs. last-antecedent: Applying the rule of the last antecedent, “for violations of Federal law” modifies only “to make arrests,” not “to execute searches” or “to seize evidence.” The structure (separate infinitives, no comma offset) supports this reading. Even if the qualifier applied to “execute searches,” TSA searches still target violations of federal law—both civil (hazardous materials regulations) and criminal (e.g., 49 U.S.C. § 46505 prohibiting weapons/explosives on aircraft).

4) Sovereign-Immunity Canon and the FTCA

The panel finds the proviso unambiguous, obviating resort to pro-immunity interpretive canons.
In any event, Dolan teaches that in the FTCA context, “strict construction” in favor of the sovereign is unhelpful; courts should adopt a neutral, text-driven approach to § 2680.
Millbrook underscores that courts should not add extra-textual limitations to the law-enforcement proviso. The government’s efforts to confine the proviso to criminal, warrant-based searches run afoul of Millbrook’s directive.
The panel notes Eleventh Circuit precedents that speak in terms of “strict construction,” but finds no conflict here because the proviso’s text is clear; it also signals that those FTCA-construction precedents may warrant en banc reexamination in a suitable case.

5) Guidance on Precedential Weight of Unpublished Decisions

The panel cautions district courts against placing undue weight on unpublished Eleventh Circuit opinions. Corbett I is not binding and, on independent analysis, unpersuasive. The court emphasizes the duty to evaluate the persuasive force of unpublished decisions, especially when multiple published sister-circuit opinions provide thorough and contrary analysis.

Impact

Uniform national rule on TSOs: The Eleventh Circuit now joins five sister circuits in holding that TSOs fall within the FTCA’s law-enforcement proviso, making six circuits in alignment. Plaintiffs alleging intentional torts by TSOs can proceed under the FTCA in the Eleventh Circuit.
Practical accountability at TSA checkpoints: Claims for battery and false imprisonment arising from checkpoint encounters are cognizable against the United States, subject to FTCA requirements and defenses. This promotes accountability for invasive searches while leaving intact TSA’s security mission.
Limits on defense narrowing strategies: Government arguments that the proviso is confined to criminal or warrant-based searches will carry reduced traction in FTCA litigation. District courts are guided to rely on plain text and avoid reading in extra limitations.
Statutory-interpretation clarifications: The decision clarifies use of the rule of the last antecedent (and when the series qualifier is inapplicable), the limited role of noscitur a sociis where text is clear, and the FTCA-specific approach to sovereign immunity under Dolan and Millbrook.
Anticipated litigation posture: More plaintiffs may file intentional-tort FTCA suits stemming from checkpoint searches. However, exposure remains bounded by FTCA features: no punitive damages, bench trials, state substantive tort law elements, and the United States substituted as defendant under the Westfall Act. The ruling does not address or disturb other FTCA exceptions or defenses that may be raised on remand in particular cases.
TSA policy and training: TSA may revisit training and documentation practices concerning pat-downs, private screening rooms, and handling of sensitive medical conditions or pregnancy-related issues, anticipating closer judicial scrutiny.
Supreme Court review less likely: With sustained multi-circuit consistency and alignment with Millbrook’s interpretive approach, this issue appears settled in the federal courts of appeals.

Complex Concepts Simplified

FTCA (Federal Tort Claims Act): A statute that allows people to sue the United States for certain torts committed by federal employees acting within the scope of employment. It waives sovereign immunity in broad terms but includes exceptions.
§ 2680(h) “Law-Enforcement Proviso”: An exception to an exception: although the FTCA generally bars suits for intentional torts (like battery and false imprisonment), it re-waives immunity for those torts when committed by “investigative or law enforcement officers” as defined in the statute.
“Officer of the United States”: Not a technical term here. It denotes a person entrusted by the government with official duties and authority; TSOs fit because federal law authorizes them to perform governmental screening searches for public safety.
“Execute searches”: In ordinary usage (and under the Fourth Amendment), to conduct a search of a person or property, not limited to executing a search warrant. TSA screenings are classic searches.
Rule of the Last Antecedent: A grammatical canon: a trailing modifier generally applies only to the nearest phrase it follows. Here, “for violations of Federal law” modifies “to make arrests,” not “to execute searches.”
Series-Qualifier Canon: A competing canon that applies when a modifier clearly applies to an entire parallel series. The court found it inapplicable given the statute’s punctuation and structure.
Noscitur a Sociis: A canon that interprets a word by the company it keeps, used only if the term is ambiguous. The court found “execute searches” unambiguous.
Sovereign-Immunity Canon vs. FTCA: Typically, waivers are construed in favor of the sovereign. But in the FTCA context, the Supreme Court instructs a neutral, text-driven approach to § 2680 that avoids shrinking the FTCA’s core waiver by overreading exceptions.
Administrative Searches: Fourth Amendment-recognized searches conducted for regulatory or safety purposes (e.g., airport security) rather than criminal investigation; still “searches,” even if suspicionless and warrantless.

What This Decision Does—and Does Not—Do

Does: Hold TSOs are covered “investigative or law enforcement officers” under § 2680(h) because they are officers empowered by law to execute searches.
Does: Permit FTCA suits for intentional torts arising from TSO searches to proceed against the United States, subject to FTCA requirements and state-law tort elements.
Does Not: Decide the merits of Koletas’s tort claims. The case is remanded for the district court to adjudicate battery and false imprisonment (and any derivative claims) under applicable state law.
Does Not: Address other FTCA exceptions or defenses that might be raised case-by-case (e.g., discretionary function, detention-of-goods exception for property claims—though that typically concerns property, not person searches).
Does Not: Confer arrest or firearms authority on TSOs; it simply recognizes that they are officers empowered to execute searches.
Does Not: Create a Bivens remedy or constitutional damages claim; the ruling concerns FTCA statutory claims against the United States.

Practical Takeaways and Practice Pointers

For plaintiffs:
- Exhaust FTCA administrative remedies timely (presentment, sum certain) before filing suit.
- Plead intentional torts (battery, false imprisonment) with state-law elements; identify specific TSO actions constituting unreasonable touching, restraint, or lack of consent.
- Document medical conditions or pregnancy-related issues communicated to TSOs; request private screening when appropriate; preserve witness names and TSA documentation.
For the United States/TSA:
- Expect challenges focused on the manner, duration, and intrusiveness of pat-downs, private-room procedures, and refusals to accommodate reasonable alternatives.
- Review training and supervision protocols and ensure documentation of consent, private screening offers, and adherence to TSA SOPs.
- Consider early merits defenses (e.g., scope of employment is typically uncontested for checkpoint duties; evaluate state-law privilege or justification defenses and credibility evidence).
For district courts:
- Apply the published holding that TSOs fall within § 2680(h)’s proviso; resist reliance on earlier unpublished contrary dicta.
- Treat “execute searches” according to its ordinary meaning; avoid importing “warrant” or “criminal” qualifiers.
- Use the last-antecedent rule to read “for violations of Federal law,” while noting the alternative holding that TSA searches also satisfy the phrase even if applied.

Conclusion

Koletas v. United States is a significant and clarifying FTCA decision. It unequivocally holds that TSOs are “investigative or law enforcement officers” because they are officers of the United States empowered by law to execute searches. By embracing the ordinary meaning of “execute searches,” applying the rule of the last antecedent to “for violations of Federal law,” and heeding Supreme Court guidance in Dolan and Millbrook, the Eleventh Circuit rejects efforts to narrow the proviso by importing unwritten limitations. The decision harmonizes Eleventh Circuit law with a robust, multi-circuit consensus and restores the FTCA’s intended accountability for invasive government searches at airport checkpoints.

On remand, Koletas may pursue her intentional tort claims against the United States. More broadly, this opinion will shape FTCA litigation arising from TSA screenings in the Eleventh Circuit, guiding district courts to rely on the FTCA’s text and structure, and reminding practitioners that unpublished decisions cannot override clear statutory language or the growing body of persuasive, published authority.