officer of the united states who is empowered by law to execute searches to seize evidence or to make arrests are violated federal law the question today is rather transportation security officers the men and women who search you and pat you now when you go through the airport are quote any office in the united states who's part by law to execute searches for several reasons we think they are st the officers they were reclassified as officers in two thousand and five by the transportation security administration and they were badges that so united states officer could you describe what that reclassification entailed would be just was it just a name change or was there actual change in the description of function i don't think there was a significant change in the description of the function your honor we can tell us there's a hearing that took place that describes the reclassification and kip hawley who's the transportation security administration talking about how this title reflected  the stature in the importance of the job a few years after that the badges came in the uniform that's a united states officer and then in the last three or four years i don't have the exact date they started training one from being a college to a university it could it i don't know if they function changed that much but they started going to the federal law enforcement training center now in georgia to get trained on things like explosives and things that they weren't apparently trained on that way before so there's there's an incre there's an increase in training you say that there is you can find on the web site the federal law enforcement training center something called tier they academy that they go to now and have been going to for the last several years so there's a recognition by the agency of the stature doesn't the aviation and transportation security act draw a distinction referring to screeners is employee i guess the administrator can designate officers who carry guns to other law enforcement things correct so isn't that where we should start but i think it's part of what you can look at but it's not only dispositive for this reason this statute the federal tort claims act has its own definition it says for the purposes of this subsection and uses the term investigative or a law enforcement officer the profession that you're referring to in the a t s a dozen originally called them screeners they were reclassified later to be referred to as officers but not in a statute and not in the not designated under section one hundred and fourteen seen as law enforcement officers but we don't contend they are we contend their investigative well cers and the statute provides for investigative are law enforcement officers and in fact there's an interesting analogue to that in law enforcement officer and there has been case law and what those terms mean a couple things have come out of the case law one thing means something different or the destructive matters nd that an investigative officer need not be a criminal investigating the allegation of criminal activity they're simply performing an administrative screening as a prelude to boarding an aircraft they are performing an administrative search harber their standard operating procedure whereby that what they're looking for a in a race so they are looking for that they're not just looking for water bottles they are looking for things that would violate the criminal laws of the united states if they take them onto an airplane so that so that is definitely what they're scheme was set up to combat air piracy and so our piracy is also a crime and so they are looking for people who are trying to evade detective detection and bring harm to the united states is this consensual screening really an investigation  consensual because someone should not be made to trade their right to travel for their protections under the th amendment in determined that was actually not consensual the rd circuit in series of cases that are cited in pelligrino so it's that these searches at the airports are not national security sort of to in order to identify threats i understand the purpose what basis that allows it to happen if it's not consensual the basis for the legal basis for the screenings at the airport where congress determined that there is in those concerts important national interests that are at stake in order to identify either threats to the united states or in the case of checkpoints search people who might become you know legally and so at that those situations the courts have determined that that that criminal law is a part of this and still rule in our favor because of the statutory provisions that issue and because these teenagers are often out to ourselves are looking for criminal violations however you need not do that the government's should not read limits into the statute that are there and th the phrase investigative officer which is the thing that starts it up it which is different we think than a traditional law enforcement officer and it's something that the case law has provided need not be the same as a criminal law enforcement officer so for those reasons we think that the statute is clear and unambiguous and attempts to read limitations into it that aren't there we're just being very problematic and we can i come back to my absolute question because like we got sidetracked with whether it was consensual i guess my real question is is a screening an investigation i would take a screening as a search which is how the statute here e or law enforcement officers and investigative officer or an officer who conduct an investigation is not the normal way we might understand someone who provides for farms administrative search the checkpoint nd in a way to administrative searches normal understanding of executing a search for violation of the federal law which at the time the proviso was an act it had been used by congress in the courts treif you're only to traditional law enforcement searches and the other terms because i think we read statutes with terms read in context it would be quite contrary to what the supreme court did in the dolan case where interpreted in subsection being the postal exception to the beat of unction ing of to i agree that it is just trying to have your honor for example there are certainly our officers who may execute searches perhaps an f b i agent who is not himself empowered to have the full range of authority but participates only in the search execution function we agree you don't need to have a three but i do think that the nd and rd clauses should inform the meaning of execute searches and i would point out that the phrase is also best understood that the last antecedent for violations of federal law can naturally be understood to apply to all three of the similar items in the list and obviously to execute a search for violation of federal law is not what you look for example to what the pelligrino majority did it use that term officer as if it was coextensive with employee which makes no independent significance of congress's decision and subsection a for example training your honor i would say that that change in title and it's not a change in legal status it did not denote a change in their functions was intended to be an outward focused scene change obviously we want to encourage th traveling public to treat them with respect and listen to the things that they are asking people to do but that did not involve any change in functioning and of course we can look to the statute to understand sort of of the intentional torts covered by the f t c i intentional tort exception but a subset of those that are the typical kinds of torts that would be committed by a traditional law enforcement official abusing his power i think the intuition that  screener is not an investigative or law enforcement officer of the united states not only gained support from those textural up clues in the proviso itself but also from of course t s a zone organic statute and of course  are instructed by congress to look to the powers held by an individual under the law to understand whether they fall within this proviso under the aviation transportation security act congress made a clear distinction between passenger screeners and forty nine dollars u s c forty four thousand nine hundred and one dollars the administrator of the t s a is directed to provide for the screening of passengers and property and also told that that screening should be carried out by a federal government employee and then in a separate section of that very same statute subsection age the administration administrator is ordered to deploy law enforcement personnel authorized to carry firearms at each screening location to airports greetings so i'm a little puzzled by my opposing counsel's reliance on that case in that case and brought up the search carried out by a u s marshal who believed that the passenger posed a criminal threat was a potential hijacker and it was conducted for the purpose based on that individualized suspicion of trying to ascertain whether there was a potential violation of federal criminal law what t s a screeners to is fundamentally different they carry out a prophylactic search to ensure that passenger wear that screening is in the very st section of the screening statute and later as manual search screening includes means not included means a physical examination gosh it sounds like a search so it's a physical examination of property carried by you know baggage carried by a passenger into a secure area and a search that can be very different depending on screeners carry out some manual if you know you know where the word manual comes from means by manual search but i am in search so the screeners carry out a search under the standard operating procedures stablished by the administrator and unless there is a recent to conduct a pat down search one it's not done but that is never done on the basis of individualized suspicion of criminal activity and i would point out the whole sort of baseline is only a reasonable suspicion required no your honor because t s a screeners are not empowered to search for violations of federal law and if they inadvertently discover evidence of violations of federal law they don't have any authority  or to do anything to prosecute or arrest the officer the individual they would call local law enforcement officials or t s a lawn for officials who are on site to follow up on that just a fundamental misconception that they somehow have a power of detention or arrest that's not within their authority search right so they do search so what about this argument that searching it that it is illegal to bring a firearm onto a plane therefore when you're searching for a firearm amongst other illegal things that that is searching for a violation of federal law so i could say a couple things about that miss that are potentially dangerous on court many of which are entirely legal to own and possess about which are entirely illegal can't be taken onto a plane for any of those items if they discover them that give people an option they can throw them away they can g to somebody who's not going to board the plane they can decide not to board and take the item back in those cases the stuff where they don't give you that option some people inadvertently have a gun they really do any back up those spouses bag and there's a gun and that's not inadvertently well some people have a license to carry a gun and i found out all of these are people going in and out of circumstances they would again ask the person to wait and they would summon local law enforcement officials or cultural law enforcement officials but the t s a screeners themselves have no authority to take action to what they executed the search though well they certainly they do conduct administrative searches and i want to be very clear if we thought that was for the purpose of carrying out or searching for violations of criminal law i think that would cast a real shadow on the absoluteness of what they do under the th amendment because of course we know from terry and the criminal law context that you need individualized suspicion to search people outside of the administrative search content you're back to the call case and that is very and exactly and that was the kind of search that was at issue there but certainly this court has never suggested nor has any other court that routine practice of aviation security screening without individualized suspicion is somehow constitutionally suspect and the supreme court has without reaching are deciding the question you know i diverted a number of times to the salvatore practice of carrying out such searches in its cases involving border searches and the li so we would point out that the that revocation of the argument would be quite broad if i might just turn briefly obviously in our view and i didn't quite get to forty nine us he won fourteen but i think that statute like forty four ny no one really makes clear the very fundamentally different powers that screeners have and that t s a law enforcement officials have here too  administrator is responsible for hiring screeners and they're called security screening personnel for developing standards for training them and testing them and to make sure that they carry out their screening functions in a very different provisions subsection p the administrator designated employees of the t s a to serve as a law enforcement officers and both law enforcement officers are authorized to carry a firearm to make an arrest without a warrant if they have probable cause see can execute warrants for arrest and seizure of evidence those are the kinds of functions that congress was thinking about when it enacted the law enforcement proviso and i think you can look at that not just in the text but of course the legislative history of the law enforcement proviso shows that it was animated by extremely controversial no not parades carried out in the middle of the night against innocent people that congress had before it and i think the  to a very nice job of comprehensively discussing the legislative history at the time the congress and nat to the law enforcement proviso it had several proposals before it one of it would have waived the federal government sovereign immunity for intentional torts by the federal government employees that was actually a proposal by the department of justice but congress rejected that the members of congress discussed that the narrower st an up the law enforcement provi o that was alternately enacted would not cover intentional torts carried out by federal employee these who are carrying out administrate of searches of the sort at issue here but congress chose intentionally to an act the narrower this one way and then the other and back and forth and then the appellate courts and ultimately the supreme court i don't disagree your honor but i think the answer is the same answer that this court had and the rd circuit had an fandor clock which is that it is ultimately up to congress to create remedies and here in waiving merrily the federal government's sovereign immunity including immunity for certain enumerated intentional torts congress created a remedy but that remedy should be limited to its plain terms and understood in light of the purposes that it was intended to serve i think the place the pelligrino majority went wrong is that it read words very that creates an exception to the federal tort claims act for a claim arising out of the miscarriage or negligent transmission of letters or postal matter and the supreme court was quite clear that it was possible to read negligent transmission of mail to encompass something like a postal carriers putting mail on someone's front steps in a way that was dangerous and caused them to slip or fall or that it might theoretically be read out of context to buy its plain terms if you read that just in isolation to apply to a postal carrier who hit somebody while he was driving on his way to deliver the mail but the court and not applying any particular narrowing or bro narrower category of negligent transmission that encompassed for example you know d m a chain or destroying the mail on the way to getting it delivered here to i think it would really read the proviso out of context to extend it to any administrative thank you your honor i just like to clarify a point on the legislative history obviously we argue in our brief and we think it's correct that it's clear and unambiguous and the court need not resort to legislative history and this room for decision and now brooke takes that approach however there was not a debate in the congress about whether it should be employee or officer at the time this bill passed the legislative history cited in the dissent of pelligrino hearing that took place eleven days s half and that law said please take it away unless you do one of two things it's right in the strip act either give them federal law enforcement officer benefits or training them like federal law enforcement steps are went nowhere and went nowhere in order until either local or other law enforcement to come into place finally last point negligence which is a claim but mr roberson brought in this case as well and that case but you also plead but the negligence claim the fagor take precautions and let mr iverson lean on the table because he was on crutches that goes back no matter what and because it's part of the alternative in this court in billingsley actually said when it's got to claims out there and one automatically could go back it remembered for discovery for that nd issue on the policy issue congress did make a policy decision here it made a policy decision to write in broad terms about what is really a limited exception there are only six intentional torts four of them are directly related to interactions with the person assault battery false arrest person present the kinds of things  engaged in they have to touch people in order to do their jobs but it has not resulted in will not result in some kind of flood gate of litigation to say actually keeps records on these things and in two thousand and seventeen out of almost eight hundred million people that went through security