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