USCA4 Appeal: 22-2045 Doc: 32 Filed: 04/18/2023 Pg: 1 of 11
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-2045
ERIN OSMON,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:21-cv-00353-MR-WCM)
Argued: March 7, 2023 Decided: April 18, 2023
Before THACKER and HEYTENS, Circuit Judges, and Joseph DAWSON, III, United States District Judge for the District of South Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Thacker and Judge Dawson joined.
ARGUED: Jonathan W. Corbett, CORBETT RIGHTS, P.C., Los Angeles, California, for Appellant. Daniel Aguilar, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Sharon Swingle, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-2045 Doc: 32 Filed: 04/18/2023 Pg: 2 of 11
TOBY HEYTENS, Circuit Judge:
May people who claim they were assaulted by Transportation Security
Administration screeners sue the federal government under the Federal Tort Claims Act
(FTCA)? Joining the Third and Eighth Circuits, we hold the answer is yes.
I.
As all commercial air travelers must, plaintiff Erin Osmon passed through security
at Asheville Regional Airport before a scheduled flight. A TSA screener told Osmon “the
body scanner alarmed on her and that she would need to submit to a ‘groin search.’ ” JA 9.
During the resulting interaction, Osmon alleges the screener forced her to spread her legs
wider than necessary and fondled her genitals twice.
Osmon sued the federal government under the FTCA, alleging one count of battery.
A magistrate judge recommended dismissing Osmon’s suit for lack of subject matter
jurisdiction in a detailed memorandum devoted solely to whether the FTCA waives
sovereign immunity for the type of claim Osmon brought. The district court adopted the
magistrate judge’s recommendation. The court concluded it need not review the
recommendation de novo because Osmon failed to object with sufficient specificity and,
in any event, “the Magistrate Judge’s proposed conclusions of law are correct and are
consistent with current case law.” JA 155.
We review de novo “[w]hether a claim falls within the purview of the Federal Tort
Claims Act.” Clendening v. United States, 19 F.4th 421, 426 (4th Cir. 2021). We also
review de novo the legal question of whether Osmon forfeited her right to de novo review
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of the magistrate judge’s recommendation. See Solis v. Malkani, 638 F.3d 269, 273 (4th
Cir. 2011).
II.
The district court erred in concluding Osmon did not adequately preserve her claim
for its (and thus our) review. The Federal Magistrates Act only requires district courts to
“make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The
reason for this objection requirement is straightforward: Requiring district judges to
consider afresh everything magistrate judges do—even when no party objects—would
duplicate effort and “waste[ ]” considerable “judicial resources.” United States v. Midgette,
478 F.3d 616, 622 (4th Cir. 2007). For that reason, a party wishing to avail itself of its right
to de novo review must be “sufficiently specific to focus the district court’s attention on
the factual and legal issues that are truly in dispute.” Id. (quotation marks omitted).
Osmon easily cleared that modest bar. In response to the magistrate judge’s
recommendation, Osmon filed a two-and-a-half page “Objection to Memorandum and
Recommendation” framing a “pure question of law,” the resolution of which controlled the
outcome of a single dispositive motion. JA 138. That document identified areas where
Osmon and the government agreed and summarized the parties’ competing positions. It
also cited cases from other circuits that have considered the issue and pointed out the “only
circuit court to agree with the government’s view did so for different reasons than” the
magistrate judge recommended. JA 139. There was, in short, no doubt about “the true
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ground for [Osmon’s] objection” to the magistrate judge’s recommendation. Midgette,
478 F.3d at 622. Nothing more was required.
The district court faulted Osmon for not “mak[ing] any specific objections” to the
magistrate judge’s reasoning and “simply summariz[ing]” the arguments that “ha[d] been
presented before.” JA 155 (quotation marks omitted). But the statute requires an
“objection” rather than a freestanding brief or memorandum of law, and a party need not
frame its arguments anew when it objects. 28 U.S.C. § 636(b)(1). Such a requirement
would require litigants to walk a tightrope between refining their existing arguments just
enough to preserve them for de novo review but not so much to risk having them considered
forfeited because they were never presented to the magistrate judge in the first place. The
statute creates no such trap.
III.
We also conclude the district court erred in dismissing Osmon’s complaint for lack
of subject matter jurisdiction. In so doing, we join the Third and Eighth Circuits in holding
the FTCA permits people who allege they were assaulted by TSA screeners to sue the
federal government. See Iverson v. United States, 973 F.3d 843 (8th Cir. 2020); Pellegrino
v. Transportation Sec. Admin., 937 F.3d 164 (3d Cir. 2019) (en banc). Because the majority
and dissenting opinions in the Third and Eighth Circuit cases have thoroughly canvassed
the relevant issues, we focus on those that strike us as most persuasive and determinative.
The dispute before us is a narrow one. Everyone agrees the federal government is
normally immune from suit, that Congress may waive that immunity, and that “the terms
of the United States’ consent to be sued . . . define [a] court’s jurisdiction to entertain the
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suit.” Federal Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994) (alterations and
quotation marks omitted). Everyone agrees the FTCA contains a waiver and permits people
injured “by the . . . wrongful act or omission” of on-duty federal employees to sue the
government in situations where state law would make a private employer liable. 28 U.S.C.
§ 1346(b)(1). 1 Everyone agrees this waiver has various exceptions, including one that
generally precludes suits for “[a]ny claim arising out of assault [or] battery.” § 2680(h).
And finally, everyone agrees this exception has its own exception, which allows claims for
“assault” or “battery” arising out of “acts or omissions of investigative or law enforcement
officers of the United States Government.” Id. These last two provisions are contained in
a single statutory subsection that we, like the Supreme Court, will call “the law
enforcement proviso.” Millbrook v. United States, 569 U.S. 50, 54 (2013).
The statutory text, the parties’ concessions, and Supreme Court authority further
narrow the zone of disagreement. First, Congress has defined “investigative or law
enforcement officer” as “mean[ing] 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). As a result, the government misses the mark with its discussion about
whether TSA screeners are “law enforcement officers” in some general sense. “When,” as
here, “a statute includes an explicit definition of a term, we must follow that definition,
even if it varies from [the] term’s ordinary meaning.” Van Buren v. United States,
1 The government does not deny the TSA screener named in the complaint was acting within the scope of her employment.
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141 S. Ct. 1648, 1657 (2021) (quotation marks omitted). And, at any rate, the defined term
is “investigative or law enforcement officer,” so there must be some “investigative . . .
officers” who are not “law enforcement officers.” 28 U.S.C. § 2680(h) (emphasis added).
Second, the government has not challenged the magistrate judge’s conclusion that
TSA screeners are “officers of the United States” within the meaning of the law
enforcement proviso. This means the only appellate decision favoring the government’s
position—an unpublished and unsigned decision issued without oral argument—rested on
grounds the government no longer advances. See Corbett v. Transportation Sec. Admin.,
568 Fed. Appx. 690, 701 (11th Cir. 2014) (per curiam) (holding TSA screeners are not
“officers of the United States” and declining to reach whether they otherwise would be
“investigative or law enforcement officers”).
Third, the Supreme Court has emphasized that “[t]he plain text” of the law
enforcement proviso “confirms that Congress intended immunity determinations to depend
on a federal officer’s legal authority, not on a particular exercise of that authority.”
Millbrook, 569 U.S. at 56. For that reason, the question is not whether the harm Osmon
alleges “occur[red] in the course of executing a search, seizing evidence, or making an
arrest.” Id. Instead, it is what the TSA screener had the legal authority to do. 2
2 For similar reasons, we need not decide which airport activity is or is not a “search” within the meaning of the law enforcement proviso (or the Fourth Amendment). We need ask only whether TSA screeners are allowed to do at least one thing that qualifies under the statute.
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This appeal thus comes down to a single controlling question: Are TSA screeners
“empowered by law to execute searches, to seize evidence, or to make arrests for violations
of Federal law”? 28 U.S.C. § 2680(h). If yes, Osmon’s suit may proceed. If no, it may not.
We conclude the answer is yes. Because the law enforcement proviso “speaks in the
disjunctive,” TSA screeners need be empowered only to do one of the three listed things—
that is, execute searches, seize evidence, or make arrests. Carolina Youth Action Project v.
Wilson, 60 F.4th 770, 786 (4th Cir. 2023). 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), and it has defined such “screening” (at least in the context
of cargo) as including a “physical examination” or a “physical search.” § 44901(g)(4).
What is more, 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 TSA
screeners. 49 C.F.R. § 1544.201(c)(1). As a matter of “plain language,” that would seem
to be the end of the matter. Millbrook, 569 U.S. at 55; see 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.’ ”); Oral Arg. 16:45–17:10
(government counsel acknowledging “a TSA pat-down” is a search).
The government disagrees, insisting the relevant language covers only searches that
are part of “criminal law enforcement.” U.S. Br. 21 (quotation marks omitted). Per the
government, the law enforcement proviso permits suits for battery only when the officer
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could perform “a criminal, investigatory search” rather than “an administrative search,”
which takes the form of an “inspection” or “screening.” U.S. Br. 26.
The problem with the government’s argument is that it reprises a tactic the Supreme
Court has already rejected: “read[ing] into the text additional limitations designed to
narrow the scope of the law enforcement proviso.” Millbrook, 569 U.S. at 55. The word
“criminal” appears nowhere in the law enforcement proviso—let alone as a modifier of
“searches.” See 28 U.S.C. § 2680(h). Here, as elsewhere, we “may not narrow a provision’s
reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct.
1721, 1725 (2020).
Undeterred, the government asserts the limits it seeks are implicit in the overall
provision. Invoking the principle that “words grouped in a list should be given related
meanings,” the government says the law enforcement proviso’s references to “seiz[ing]
evidence, or . . . mak[ing] arrests for violations of Federal law clearly refer to police powers
in criminal investigations.” U.S. Br. 22 (quotation marks omitted). And so, it continues,
the statutory words “execute searches” also must be so limited. Id.
We are unpersuaded. True, the words “make arrests” are limited to the criminal
context, and “seiz[ing] evidence” is often—and likely most often—used in that context.
But 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. The government’s premise, in short, does not hold.
The government also seeks a toehold in the word “execute,” citing various statutes
and judicial decisions using that term in the context of “executing a search warrant” or
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“execut[ing] the warrant.” U.S. Br. 25 (quoting Los Angeles Cnty. v. Rettele, 550 U.S. 609,
614 (2007) (first quotation), and United States v. Ramirez, 523 U.S. 65, 69 (1998) (second
quotation)). But this statute—unlike all the others referenced in the opinion the government
relies on for this point—does not contain the word “warrant.” See Pellegrino, 937 F.3d at
185 (Krause, J., dissenting) (citing 18 U.S.C. §§ 2231(a), 2234, 3109, and 22 U.S.C.
§ 2709(a)(2)); see also U.S. Br. 5–6 (citing 49 U.S.C. § 114(p)(2)(C), which also references
“seek[ing] and execut[ing] warrants”). Nor is this a trivial distinction, because the ability
to execute a search does not necessarily imply power to execute a search warrant. See,
e.g., New Jersey v. T.L.O., 469 U.S. 325, 341– 43 (1985) (school official may search
student property under certain circumstances). Once again, we decline to “insert[] words
Congress chose to omit.” Lomax, 140 S. Ct. at 1725.
Nor are we swayed by the government’s reliance on the statutory phrase “for
violations of Federal law.” 28 U.S.C. § 2680(h). Those words do not follow “execute
searches” but come at the end of the third, disjunctive alternative. See 28 U.S.C. § 2680(h)
(“empowered by law to execute searches, to seize evidence, or to make arrests for
violations of Federal law”). For that reason, we are skeptical whether “for violations of
Federal law” modifies “to execute searches” because it would 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);
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” (quotation marks omitted)).
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But none of this skirmishing about whether “for violations of Federal law” modifies
“execute searches” really matters because TSA searches encompass looking for such
violations. To cite just one example, federal law makes it a crime to “attempt[]” to bring
onto an airplane “a concealed dangerous weapon” or “an explosive or incendiary device.”
49 U.S.C. § 46505(b)(1) & (3). And—to state the obvious—those sorts of items are well
within the heartland of what TSA screeners are looking for when they search people
seeking to board airplanes. See, e.g., 49 C.F.R. § 1540.5 (defining “[s]creening location”
as “each site at which individuals or property are inspected for the presence of weapons,
explosives, or incendiaries”).
The government also makes a more global argument. Reminding us that the FTCA
waives the immunity it would otherwise enjoy from suit, the government asks us to apply
the principle that “[a]ny ambiguities in the statutory language are to be construed in favor
of immunity.” Federal Aviation Admin. v. Cooper, 566 U.S. 284, 290 (2012). Osmon
disagrees, citing a Supreme Court decision stating this “general rule” is “unhelpful in the
FTCA context” because the statute “waives the Government’s immunity from suit in
sweeping language” and “unduly generous interpretations of the exceptions run the risk of
defeating the central purpose of the statute.” Dolan v. United States Postal Serv., 546 U.S.
481, 491–92 (2006) (quotation marks omitted). The government replies by a citing a post-
Dolan decision in which this Court—without referencing Dolan—repeated a pre-Dolan
statement that, even in the FTCA context, “waivers of sovereign immunity must be strictly
construed.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017) (citing Welch
v. United States, 409 F.3d 646, 651 (4th Cir. 2005)). The government also relies on a Ninth
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Circuit decision stating Dolan applies only where courts are interpreting “an exception to
the FTCA’s waiver of sovereign immunity” but not where a court is “interpret[ing] an
exception to [an] exception.” Foster v. United States, 522 F.3d 1071, 1079 (9th Cir. 2008).
In the end, we need not hack through this methodological underbrush to decide this
case. For the reasons already explained, we conclude the “plain language” of this statute
supplies a clear answer. Millbrook, 569 U.S. at 55. As in Millbrook—which also involved
the FTCA and referenced no presumptions or rules of strict construction—we need go no
further.
* * *
We recognize that when Congress added the law enforcement proviso to the FTCA
in 1974, it was not thinking about people who work for an agency that was not created until
more than a quarter of a century later. See Pub. L. No. 93–253, § 2, 88 Stat. 50 (Mar. 16,
1974) (adding law enforcement proviso); Aviation and Transportation Security Act, Pub.
L. No. 107–71, 115 Stat. 597 (Nov. 19, 2001) (creating TSA). “But . . . it is ultimately the
provisions of our laws rather than the principal concerns of our legislators by which we are
governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). And “the
fact that a statute can be applied in situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth.” Pennsylvania Dep’t of Corr. v.
Yeskey, 524 U.S. 206, 212 (1998) (quotation marks omitted). Because the words of this
statute cover the claim Osmon brought, we reverse the district court’s judgment and
remand for further proceedings.
SO ORDERED