Gesty v. United States

• Court: District Court, D. Arizona
• Decided: July 19, 2019
• Docket: 4:18-cv-00533
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Denise Gesty, No. CV-18-00533-TUC-RCC

10 Plaintiff, ORDER

11 v.

12 United States of America,

13 Defendant. 14 15 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint for 16 Lack of Subject Matter Jurisdiction. (Doc 18). Plaintiff filed a Response (Doc. 19) and 17 Defendant a Reply (Doc. 25). The Court will grant Defendant’s Motion to Dismiss with 18 leave to amend. 19 I. FTCA STANDARD FOR SUBJECT MATTER JURISDICTION 20 To survive a Motion to Dismiss, a complaint must plead enough facts to state a plausible 21 claim for which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 22 plausible complaint must include a “short and plain statement of the claim showing that 23 the pleader is entitled to relief,” otherwise the complaint will be dismissed. Fed. R. Civ. P. 24 8(a)(2). A court must interpret all facts in the complaint in favor of the nonmoving party, 25 but unreasonable facts and conclusory statements will still be dismissed for failure to state 26 a claim. Cevantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003); Western Mining 27 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 2005). 28 The Federal Tort Claims Act (FTCA) “is the exclusive remedy for tortious conduct by 1 the United States.” F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998). The FTCA grants 2 district courts jurisdiction over civil claims against the United States “under circumstances 3 where the United States, if a private person, would be liable to the claimant in accordance 4 with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). 5 However, district courts do not have jurisdiction over any claim arising out of intentional 6 torts unless the acts are committed by “investigative or law enforcement officers of the 7 United States Government.” 28 U.S.C.A. § 2680(h). Section 2680(h) of the FTCA further 8 clarifies that an “investigative or law enforcement officer” is “any officer of the United 9 States who is empowered by law to execute searches, to seize evidence, or to make arrests 10 for violations of Federal law.” Id. 11 A claim is presumed to be outside the limited Court’s jurisdiction and the burden falls 12 on the party claiming jurisdiction to establish it. Kokkonen v. Guardian Life Ins. Co. of 13 Am., 511 U.S. 375, 377 (1994). Additionally, “statutes which waive immunity of the United 14 States from suit are to be construed strictly in favor of the sovereign.” McMahon v. United 15 States, 342 U.S. 25, 27 (1951). If a court determines at any time in the proceedings “that it 16 lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 17 12(h)(3). 18 II. FACTUAL AND PROCEDURAL HISTORY 19 Plaintiff’s claim arises from an incident at the Transportation Security Administration 20 (TSA) checkpoint at Las Vegas International Airport (LAS) on August 30, 2017 while 21 traveling from LAS to Tucson. (Compl. at ¶ 4). An Advanced Imaging Technology 22 machine alarmed once Plaintiff passed through, causing a female Transportation Security 23 Officer (TSO) to physically search Plaintiff, pursuant to TSA standard operating 24 procedures (SOPs), without giving Plaintiff the option of going into a private room. (Id. at 25 ¶ 5). Plaintiff was ordered by the TSO to lower her pants and when she asked what was 26 going on, the TSO and the TSO’s supervisor responded by saying that “they could do 27 whatever they wanted to do.” (Id. at ¶ 6). Plaintiff states that the TSO “put her hand under 28 [Plaintiff]’s underpants and sexually assaulted her by digitally penetrating her vagina.” (Id. 1 at ¶ 7). Plaintiff was also threatened with arrest if she did not cooperate with the search. 2 (Id.). Plaintiff claims her “right to privacy was violated and that she was assaulted, 3 humiliated and emotionally abused” by the search and seeks damages caused by the event. 4 (Id. at ¶ 10). 5 Defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction under 6 Federal Rule of Civil Procedure 12(b)(1), stating that the Plaintiff’s claim should be barred 7 pursuant to 28 U.S.C. § 2680(h) of the FTCA because the district courts do not have 8 jurisdiction for claims of assault, or any claim arising out of the alleged assault, unless 9 committed by government law enforcement officers. (Doc. 18); United States v. Shearer, 10 473 U.S. 52, 55 (1985). This means the main argument in this case is whether TSOs qualify 11 as government officers under the FTCA. Defendant states in its Motion to Dismiss that 12 most cases have determined that TSOs are not “investigative or law enforcement officers” 13 under 28 U.S.C. § 2680(h). (Doc. 18 at 5). Defendant also argues that TSOs are not law 14 enforcement officers through the TSA statute, 49 U.S.C. § 44901(a), which states, 15 “screening shall take place before boarding and shall be carried out by a Federal 16 Government employee,” and not an officer. (Doc. 18 at 7). Defendant claims that Plaintiff’s 17 Complaint is a challenge to the SOP of the TSA’s security procedures, and under 49 U.S.C. 18 § 46110, the challenge for review of the SOP belongs “in an appropriate court of appeals.” 19 (Doc. 18 at 12) (citing Blitz v. Napolitano, 700 F.3d 733, 743 (4th Cir. 2012)). 20 Plaintiff argues in her Response that TSOs are in fact investigative or law enforcement 21 officers because TSOs are government agents, empowered to search passengers traveling 22 through the TSA checkpoints, seize prohibited items, and detain passengers for violations 23 of federal law. (Doc. 19 at 2). Plaintiff’s Response argues that the phrase “any officer” of 24 Section 2680(h) of the FTCA should encompass TSOs because the word “any” in statutes 25 should carry an expansive meaning. (Doc. 19 at 4); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 26 1354 (2018); see Millbrook v. United States, 569 U.S. 50, 57 (2013) (rejecting lower court’s 27 narrow interpretation in the text of a statute). Plaintiff cites the Supreme Court decision in 28 Ali v. Federal Bureau of Prisons, 552 U.S. 214, 221 (2008), in which the court ruled that 1 “any other law enforcement officer” in Section 2680(c) of the FTCA should include “law 2 enforcement officers of whatever kind,” and this meaning of law enforcement officers 3 should apply to Section 2680(h) of the FTCA as well. (Doc. 19 at 7). Defendant argues 4 TSOs are not officers because (1) TSOs search individuals in public; (2) TSOs are not 5 armed; (3) TSOs searches are consensual; (4) and there is no potential for significant 6 abuses. (Doc. 19 at 4). Plaintiff counters these claims by arguing (1) TSOs can perform 7 pat-downs in private locations; (2) being armed is not a necessary component of a law 8 enforcement officer under the FTCA; (3) the reasonableness of the search does not depend 9 on the passengers’ consent; (4) and the possibility of abuse in back room pat-downs are 10 significant and may even be considered sexual assault. (Id. at 5-6). Finally, Plaintiff argues 11 that airport screenings do constitute searches under the Fourth Amendment, and the TSA 12 even refers to screenings as searches. (Doc. 19 at 10); see United States v. Marquez, 410 13 F.3d 612, 616 (9th Cir. 2005) (“Airport screenings of passengers and their baggage 14 constitute administrative searches and are subject to the limitations of the Fourth 15 Amendment.”). 16 In Defendant’s Reply, Defendant argues that only one case, Armato v. Doe, No. CV- 17 11-02462-PHX-ROS, 2012 WL 13027047 (D. Ariz. May 15, 2012), supports the Plaintiff’s 18 argument that TSOs are law enforcement officers as defined by Section 2680(h) of the 19 FTCA. (Doc. 25 at 1). Defendant argues that this case is a lone outlier from the numerous 20 other cases that rule TSO agents are not covered under the FTCA. (Id.). Further, Defendant 21 claims that the statutory language is ambiguous, and when ambiguity in a statute exists, it 22 is necessary to look at the “structure, context, purpose, and history, as well as the relevant 23 case law” of the statute. (Doc. 25 at 3); Pellegrino v. United States Transp. Sec. Admin., 24 Div. of Dep’t of Homeland Sec., 896 F.3d 207 (3d Cir.), reh’g en banc granted sub nom., 25 Pellegrino, 904 F.3d 329 (3d Cir. 2018). Defendant’s Reply reiterates that TSOs should 26 not be considered “officers” because of the distinction made under 49 U.S.C. § 44901(a), 27 where “employees” is used to define TSOs; “screening shall take place before boarding 28 and shall be carried out by a Federal Government employee.” (Doc. 25 at 6). Additionally, 1 Defendant’s Reply argues that the phrase “for violations of Federal law” should apply to 2 searches and seizure of evidence in Section 2680(h) and not just for making arrests as the 3 Plaintiff claims. (Id. at 7). Defendant’s Reply states that Plaintiff uses this interpretation to 4 argue that any search would make TSOs investigative law enforcement officers. However, 5 Defendant claims that the modifying clause “for violations of Federal law” should apply to 6 all three elements of Section 2680(h) to define an investigative law enforcement officer. 7 (Id. at 10). From this interpretation Defendant argues that the TSA screenings are not “for 8 finding violations of Federal law,” but are rather for transportation security, arguing that 9 most prohibited items are not Federal law violations, such as liquids. (Id. at 10). Defendant 10 therefore claims that the term “search” in Section 2680(h) does not have the same meaning 11 as a “search” under the Fourth Amendment and that because TSOs are employees, they are 12 not “empowered by law to execute searches, seize evidence, or make arrests. (Id. at 12, 20- 13 21). 14 III. DISCUSSION 15 a. Supreme Court Caselaw 16 Neither the United States Supreme Court nor the Ninth Circuit have answered the 17 question of whether TSOs are “investigative or law enforcement officers” under the FTCA, 18 causing a needed detailed analysis into case law and statutory interpretation. Case law 19 advises against classifying TSOs as law enforcement officers because only one case 20 (Armato) held TSOs to be enforcement officers, contrary to the numerous other cases that 21 held TSOs to not be covered under Section 2680(h) of the FTCA. See e.g., Pellegrino 896 22 F.3d at 225 (holding TSOs are not criminal law enforcement officers covered by the 23 provision); Vanderklok v. United States, 142 F. Supp. 3d 356, 363 (E.D. Pa. 2015) (“TSA 24 screeners are not ‘officers’ within the meaning of the law enforcement proviso”); 25 Hernandez v. United States, 34 F. Supp. 3d 1168, 1182 (D. Colo. 2014) (same); Weinraub 26 v. United States, 927 F. Supp. 2d 258, 266 (E.D.N.C. 2012) (finding TSA does not consider 27 TSOs “to be a law enforcement position”). Plaintiff cannot cite another case in her favor, 28 but rather, claims all these other cases, aside from Armato, “got it wrong.” (Doc. 19 at 9). 1 As no other court has followed the ruling in Armato, neither shall this Court. 2 Plaintiff argues Section 2680(h) of the FTCA should be interpreted in her favor because 3 “any officer” should be broad enough to include TSOs by using the Supreme Court’s 4 interpretation of Section 2680(c). Plaintiff cites Millbrook, 569 U.S. at 57, and Ali, 552 5 U.S. at 221, in depth, but these cases can be distinguished. In Millbrook and Ali, the court 6 simply concluded that if an individual were a federal investigative law enforcement officer 7 under Section 2680(h), that individual would be covered under the FTCA regardless of 8 whether the conduct at issue arose from their investigate law duty functions. First, 9 Millbrook failed to clarify which individuals would be initially covered under Section 10 2680(h), including whether TSOs should be covered. Additionally, the Ali decision 11 Plaintiff cites deals with an entirely different provision of the FTCA altogether and does 12 not address the provision of the FTCA at issue, but rather deals with the collection of taxes. 13 These two cases do not address the main issue of how to determine which individuals are 14 investigative or law enforcement officers, and no court outside of Armato has ruled TSOs 15 to be covered under the FTCA. Not only does Plaintiff fail to cite a persuasive court ruling 16 holding that TSOs are covered under Section 2680(h), she fails to cite any cases in support 17 of this statutory interpretation as well. 18 b. Statutory Interpretation 19 The statutory definition of law enforcement officer includes “any officer of the United 20 States who is empowered by law to exercise searches, to seize evidence, or to make arrests 21 for violations of Federal law.” 28 U.S.C. § 2680(h). The modifying clause “for violations 22 of Federal law” applies to search, seizure, or arrest. Therefore, TSOs cannot be covered 23 under Section 2680(h) of the FTCA unless the employee can perform at least one of these 24 three actions, and to do so because of a violation of Federal law. 25 First, because TSOs do not search or seize materials that violate Federal laws, but rather 26 collect items that are prohibited in carry-on luggage, they cannot generally be considered 27 law enforcement officers. In contrast, law enforcement security functions, including arrest 28 for violations of Federal law, are carried out by the regulations stated in the Code of Federal 1 Regulations, which require the utilization of state, local, and private law enforcement 2 officers. 49 C.F.R. §§ 1542.215, 1542.217. 3 Second, the plain meaning of the statute demonstrates that TSOs are not statutorily 4 considered officers under 49 U.S.C. § 44901(a). Where a statute is unambiguous, the courts 5 must interpret the statute according to its ordinary meaning. Carcieri v. Salazar, 555 U.S. 6 379, 387 (2009). Section 44901(a) clearly and unambiguously states that TSOs are 7 designated “government employees,” not officers, and should not be covered under the 8 FTCA. 9 But, in some instances, a TSA employee may be considered a law enforcement officer. 10 While general TSA screeners cannot be considered law enforcement officers, a TSA 11 Administrator may designate a Law Enforcement Officer (LEO), who has the power to 12 carry firearms, seize evidence, or make arrests. 49 U.S.C. § 114(p). TSOs who receive a 13 LEO designation would qualify as law enforcement officers under Section 2680(h). See 14 Scruggs v. Nielsen, No. 18 CV 2109, 2019 WL 1382159, at *3 (N.D. Ill. Mar. 27, 2019) 15 (“It appears to be undisputed that the latter category of TSA agent is an ‘investigative or 16 law enforcement officer’ within the meaning of the proviso.”). 17 c. Facial v. Factual Attack on Determination of Law Enforcement Officer 18 There are two types of challenges to subject matter jurisdiction: factual and facial 19 attacks. A factual attack disputes the truth of the allegations that would give the court 20 subject-matter jurisdiction. Courthouse News Service v. Planet, 750 F.3d 776, 780 (9th Cir. 21 2014). In contrast, a facial attack challenges the sufficiency of the factual allegations in 22 the complaint, arguing that the facts as pled do not give rise to subject matter jurisdiction 23 in federal court. Id. In a facial attack the court may not look at evidence outside the 24 complaint and must take the non-moving parties’ allegations as true. Id. But, the court may 25 look at outside evidence beyond the complaint to establish to decide the motion to dismiss 26 for lack of jurisdiction if the moving party is stating a factual attack. Safe Air for Everyone 27 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 28 According to the Deputy Federal Security Director of the TSA, there are no LEOs 1 at LAS. (Doc. 18-2 at 2). This declaration falls outside of the pleadings. Under a factual 2 attack a court may look at this evidence to determine subject matter jurisdiction. But, 3 Defendant’s argument is more of a facial attack because Defendant is claiming that even if 4 taken as true, the factual allegations in the complaint are insufficient to give the court 5 subject matter jurisdiction. This is because TSA employees are not considered law 6 enforcement officers. Therefore, the Court will consider all factual allegations in Plaintiff’s 7 Complaint as true under a facial challenge. 8 Even taken as true, Plaintiff’s Complaint fails to state a claim. The Complaint does 9 not allege that the TSOs who violated her rights had LEO designation. Without this 10 designation, generic TSA screeners are not covered by the law enforcement proviso under 11 Section 2680(h) of the FTCA. Plaintiff refers to the TSOs in the Complaint as “government 12 agents,” making the Complaint ambiguous as to whether the TSOs who conducted the pat 13 down screening on Plaintiff are LEOs within the meaning of the proviso. (Doc. 19 at 2). 14 The Court will grant Defendant’s Motion to Dismiss because as plead, Plaintiff has not 15 alleged facts indicating she is entitled to relief. However, dismissal with prejudice is 16 inappropriate at this stage. The Court will grant Plaintiff leave to amend to remedy the 17 deficiencies in the Complaint: specifically, to provide the TSOs names and include whether 18 these individuals had a LEO designation. 19 d. Bivens Claim 20 Furthermore, although TSOs without the LEO title cannot be considered “investigative 21 or law enforcement officers” under Section 2680(h) of the FTCA, Plaintiff may have 22 another avenue for asserting jurisdiction in federal court by alleging a Bivens claim against 23 the individual TSO. 28 U.S.C.A. § 1331; Nixon v. Fitzgerald, 457 U.S. 731, 789 (1982). 24 Under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 25 392 (1971), a plaintiff may sue for damages caused by injury to a constitutional right by an 26 individual federal officer acting under federal authority. Nixon, 457 U.S. at 789. But, only 27 “persons” may be brought as defendants in suits under Bivens claims, which bars the United 28 States and other federal agencies from liability because these entities are not included as 1 “persons.” See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (declining to extend Bivens 2 claims against federal agencies.). Furthermore, qualified immunity protects government 3 officials from liability when exercising their discretion to protect public interests. Harlow 4 v. Fitzgerald, 457 U.S. 800, 807, (1982). If government officials are using their discretion, 5 they will have qualified immunity if “their conduct does not violate clearly established 6 statutory or constitutional rights of which a reasonable person would have known.” 7 Pearson v. Callahan, 555 U.S. 223, 231, (2009). Qualified immunity also protects officials 8 from liability for “mistaken beliefs.” Saucier v. Katz, 533 U.S. 194, 205 (2001). Therefore, 9 the burden falls on the plaintiff to assert (1) that defendant violated her constitutional rights 10 and that (2) the constitutional right was “clearly established at the time of the alleged 11 unlawful activity.” Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). 12 Previous cases have demonstrated that TSA officials should not be held liable under 13 Bivens for an alleged unconstitutional arrest and detention and qualified immunity should 14 be granted to the defendants in these circumstances. George v. Rehiel, 738 F.3d 562, 583 15 (3d Cir. 2013). However, qualified immunity was not granted to a TSA worker when the 16 worker “gratuitously and intentionally struck Plaintiff in the groin” during a pat down 17 search. Linlor, 263 F. Supp. 3d at 627. Linlor was not a typical Bivens Fourth Amendment 18 concern, but rather involved excessive force at a TSA checkpoint, thus creating a new 19 context for a Bivens analysis. Id. at 621. Still, the court concluded that the conduct of the 20 TSA worker was in violation of Bivens and was completely unnecessary for the protection 21 of national security. Id. at 627. As a result, the court denied the defendant’s Motion to 22 Dismiss. Id. 23 Therefore, Plaintiff may be able to raise a Bivens claim against the TSO. A court should 24 “freely give leave” to a party to amend its complaint “when justice so requires.” Fed. R. 25 Civ. P. 15(a)(2). The Court will grant leave to Plaintiff to amend her Complaint to 26 determine whether the TSA agents received a law enforcement designation. 27 IV. CONCLUSION 28 Plaintiff fails to allege facts that would lead to a conclusion that TSOs should be || covered under the provision of the FTCA. TSOs are not officers and (outside LEOs) are not “empowered by law to execute searches, to seize evidence, or to make arrests for || violations of Federal law.” See Pellegrino 896 F.3d at 225 (finding airport screenings by 4|| TSOs are not searches; therefore, TSOs are not covered by the law enforcement provision). 5 || The United States of America is immune from this suit under Section 2680(h) of the FTCA, 6|| if Plaintiff cannot plead facts to show that the TSA agents in question had a LEO title. 7 However, the Court will grant a leave to amend to allege facts demonstrating that TSA 8 || agents were designated law enforcement officers by the TSA Administrator. In addition, || jurisdiction in district court would still exist in this matter through federal question 10}} jurisdiction, 28 U.S.C.A. § 1331, for a suit arising from a Bivens claim. 1] IT IS ORDERED: 12 1. Plaintiff's Complaint (Doc. 1) is DISMISSED WITH LEAVE TO AMEND. 13 2. Plaintiff may file a First Amended Complaint within thirty (30) days of the date of 14 this Order. I5 3. If Plaintiff fails to file a First Amended Complaint within thirty (30) days of the date 16 of this Order, the Clerk of Court shall, without further notice, enter a judgment 17 dismissing this case with prejudice. 18 Dated this 18th day of July, 2019. 19 20 21 (/ p 9 R- 33 Honorable RanerC. Collins Senior United States District Judge 24 25 26 27 28

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