18-3859 Leytman v. U.S. Dep’t of Homeland Sec. Transp. Sec. Admin.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of March, two thousand twenty.
PRESENT: RALPH K. WINTER, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
Eduard Leytman, Plaintiff-Appellant, v. 18-3859
United States Department of Homeland Security Transportation Security Administration, Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: EDUARD LEYTMAN, pro se, Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Dara A. Olds, Assistant United States Attorney for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and the case is REMANDED to the district court for further
proceedings consistent with this summary order.
Appellant Eduard Leytman, proceeding pro se, appeals the district court’s
judgment dismissing his Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674,
complaint for lack of jurisdiction. Leytman alleged that a Transportation Security
Administration (“TSA”) agent injured him during a screening at John F. Kennedy
International Airport. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
2 We review de novo the dismissal of a complaint for lack of jurisdiction.
Lefkowitz v. Bank of New York, 528 F.3d 102, 107 (2d Cir. 2007). Dismissal of a
complaint for lack of subject matter jurisdiction is proper “when the district court
lacks the statutory or constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
Generally, “the United States, its agencies, and its employees (when
functioning in their official capacities) are immune from suit based on the principle
of sovereign immunity.” Cty. of Suffolk, N.Y. v. Sebelius, 605 F.3d 135, 140 (2d Cir.
2010). The FTCA, however, waives that immunity with respect to certain tort
claims. 28 U.S.C. § 1346(b); see also FDIC v. Meyer, 510 U.S. 471, 477 (1994). Any
FTCA claim must be alleged against the United States, not a specific United States
agency. Meyer, 540 U.S. at 477; see also Rivera v. United States, 928 F.2d 592, 608–09
(2d Cir. 1991) (holding that FTCA claims against a federal agency were properly
dismissed for lack of jurisdiction, but remanding FTCA claims brought against the
United States).
Here, the district court concluded correctly that the TSA was not the proper
defendant on the FTCA claim and that the complaint should have been brought
3 against the United States. Rivera, 928 F.2d at 609. Nevertheless, rather than
grant Leytman leave to amend his complaint for the purpose of correcting this
pleading error, the district court proceeded to consider whether, even assuming
the United States was properly named as a party, the court would have jurisdiction
under the FTCA. The district court answered this question in the negative,
concluding that the intentional tort exception to the FTCA applied to Leytman’s
claim and that TSA agents do not satisfy the FTCA’s so-called law enforcement
proviso. Although we agree with the district court that Leytman’s claim falls
within the intentional tort exception, it is unclear, on the sparse record before us,
whether jurisdiction lies under the FTCA’s law enforcement proviso. We
therefore vacate the district court’s order and remand for further proceedings,
which may include an opportunity for Leytman to amend his complaint. See, e.g.,
Brennan v. Nassau Cty., 352 F.3d 60, 65 (2d Cir. 2003).
The FTCA explicitly avoids waiving sovereign immunity for “any claim
arising out of assault, battery,” and several other intentional torts. 28 U.S.C.
§ 2680(h); see also Millbrook v. United States, 569 U.S. 50, 52 (2013). Because the
alleged incident occurred in New York, the substantive tort law of New York
4 applies to Leytman’s claims. See Hernandez v. United States, 939 F.3d 191, 198 (2d
Cir. 2019) (“The source of substantive liability under the FTCA is the law of the
State.” (internal quotation marks and alterations omitted)). The district court
correctly determined that Leytman’s claims arose out of either assault or battery
under New York law because those claims were based on the TSA agent’s having
allegedly hit and touched him without consent. See Bastein v. Sotto, 749 N.Y.S.2d
538, 539 (2d Dep’t 2002) (“To sustain a cause of action to recover damages for
assault, there must be proof of physical conduct placing the plaintiff in imminent
apprehension of harmful contact. To recover damages for battery, a plaintiff
must prove that there was bodily contact, that the contact was offensive, and that
the defendant intended to make the contact without the plaintiff's consent.”).
Although Leytman argues on appeal that the agent’s conduct may not have been
“intentional” and therefore does not fall within the intentional tort exception, we
have clearly held that a plaintiff cannot “cloth[e] assault and battery actions in the
garb of negligence” to avoid the FTCA intentional tort exception. See Johnson by
Johnson v. United States, 788 F.2d 845, 850 (2d Cir. 1986); but see Sheridan v. United
States, 487 U.S. 392, 401–02 (1988) (holding that the Government may be held liable
5 under the FTCA where it negligently allowed a foreseeable assault and battery to
be committed by a federal employee).
The district court held that this conclusion was fatal to Leytman’s case
because the law enforcement proviso—an exception to the intentional tort
exception—does not apply to Leytman’s claims. The FTCA expressly allows for
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18-3859 Leytman v. U.S. Dep’t of Homeland Sec. Transp. Sec. Admin.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of March, two thousand twenty.
PRESENT: RALPH K. WINTER, PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
Eduard Leytman, Plaintiff-Appellant, v. 18-3859
United States Department of Homeland Security Transportation Security Administration, Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: EDUARD LEYTMAN, pro se, Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Dara A. Olds, Assistant United States Attorney for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and the case is REMANDED to the district court for further
proceedings consistent with this summary order.
Appellant Eduard Leytman, proceeding pro se, appeals the district court’s
judgment dismissing his Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674,
complaint for lack of jurisdiction. Leytman alleged that a Transportation Security
Administration (“TSA”) agent injured him during a screening at John F. Kennedy
International Airport. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
2 We review de novo the dismissal of a complaint for lack of jurisdiction.
Lefkowitz v. Bank of New York, 528 F.3d 102, 107 (2d Cir. 2007). Dismissal of a
complaint for lack of subject matter jurisdiction is proper “when the district court
lacks the statutory or constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
Generally, “the United States, its agencies, and its employees (when
functioning in their official capacities) are immune from suit based on the principle
of sovereign immunity.” Cty. of Suffolk, N.Y. v. Sebelius, 605 F.3d 135, 140 (2d Cir.
2010). The FTCA, however, waives that immunity with respect to certain tort
claims. 28 U.S.C. § 1346(b); see also FDIC v. Meyer, 510 U.S. 471, 477 (1994). Any
FTCA claim must be alleged against the United States, not a specific United States
agency. Meyer, 540 U.S. at 477; see also Rivera v. United States, 928 F.2d 592, 608–09
(2d Cir. 1991) (holding that FTCA claims against a federal agency were properly
dismissed for lack of jurisdiction, but remanding FTCA claims brought against the
United States).
Here, the district court concluded correctly that the TSA was not the proper
defendant on the FTCA claim and that the complaint should have been brought
3 against the United States. Rivera, 928 F.2d at 609. Nevertheless, rather than
grant Leytman leave to amend his complaint for the purpose of correcting this
pleading error, the district court proceeded to consider whether, even assuming
the United States was properly named as a party, the court would have jurisdiction
under the FTCA. The district court answered this question in the negative,
concluding that the intentional tort exception to the FTCA applied to Leytman’s
claim and that TSA agents do not satisfy the FTCA’s so-called law enforcement
proviso. Although we agree with the district court that Leytman’s claim falls
within the intentional tort exception, it is unclear, on the sparse record before us,
whether jurisdiction lies under the FTCA’s law enforcement proviso. We
therefore vacate the district court’s order and remand for further proceedings,
which may include an opportunity for Leytman to amend his complaint. See, e.g.,
Brennan v. Nassau Cty., 352 F.3d 60, 65 (2d Cir. 2003).
The FTCA explicitly avoids waiving sovereign immunity for “any claim
arising out of assault, battery,” and several other intentional torts. 28 U.S.C.
§ 2680(h); see also Millbrook v. United States, 569 U.S. 50, 52 (2013). Because the
alleged incident occurred in New York, the substantive tort law of New York
4 applies to Leytman’s claims. See Hernandez v. United States, 939 F.3d 191, 198 (2d
Cir. 2019) (“The source of substantive liability under the FTCA is the law of the
State.” (internal quotation marks and alterations omitted)). The district court
correctly determined that Leytman’s claims arose out of either assault or battery
under New York law because those claims were based on the TSA agent’s having
allegedly hit and touched him without consent. See Bastein v. Sotto, 749 N.Y.S.2d
538, 539 (2d Dep’t 2002) (“To sustain a cause of action to recover damages for
assault, there must be proof of physical conduct placing the plaintiff in imminent
apprehension of harmful contact. To recover damages for battery, a plaintiff
must prove that there was bodily contact, that the contact was offensive, and that
the defendant intended to make the contact without the plaintiff's consent.”).
Although Leytman argues on appeal that the agent’s conduct may not have been
“intentional” and therefore does not fall within the intentional tort exception, we
have clearly held that a plaintiff cannot “cloth[e] assault and battery actions in the
garb of negligence” to avoid the FTCA intentional tort exception. See Johnson by
Johnson v. United States, 788 F.2d 845, 850 (2d Cir. 1986); but see Sheridan v. United
States, 487 U.S. 392, 401–02 (1988) (holding that the Government may be held liable
5 under the FTCA where it negligently allowed a foreseeable assault and battery to
be committed by a federal employee).
The district court held that this conclusion was fatal to Leytman’s case
because the law enforcement proviso—an exception to the intentional tort
exception—does not apply to Leytman’s claims. The FTCA expressly allows for
intentional tort claims, including assault and battery, that are based on the conduct
of “investigative or law enforcement officers” (the “law enforcement proviso”).
28 U.S.C. § 2680(h); see also Millbrook, 569 U.S. at 52–53. The FTCA defines
investigative or law enforcement officers 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.” 28 U.S.C. § 2680(h). There are two types of TSA
agents: (1) “security screening personnel,” who conduct searches of “all
passengers and property,” see 49 U.S.C. § 114(e) (stating that the Administrator
shall hire security screening personnel), 49 U.S.C. §§ 44901, 44935(f) (describing
screening process and screener qualifications); and (2) “law enforcement
personnel,” who are additionally authorized to carry firearms, seize evidence, and
make arrests, see 49 U.S.C. § 114(p) (stating that the Administrator may designate
6 TSA employees to serve as “law enforcement officer[s]” with such powers), 49
U.S.C. §§ 44901(h), 44903 (the Administrator shall deploy and authorize certain
officers to have such powers).
As other circuit courts have noted, whether the TSA agent in question was
a screener or a law enforcement officer may have an impact on the law
enforcement proviso analysis. Compare Pellegrino v. U.S. Transp. Sec. Admin., Div.
of Dep’t of Homeland Sec., 937 F.3d 164, 170–72 (3d Cir. 2019) (en banc) (holding that
both TSA screeners and law enforcement officers fall within the proviso), with id.
at 190–93 (Krause, J., dissenting) (arguing that only TSA law enforcement officers
fall within the proviso), and Corbett v. Transp. Sec. Admin., 568 F. App’x 690, 700–01
(11th Cir. 2014) (per curiam) (holding that TSA screeners are not “officers” subject
to the proviso).
The present record is insufficient to establish whether the TSA agent in
question was a screener or a law enforcement officer within the meaning of federal
airport security laws. Rather than address in the first instance how the differing
definitions and duties of TSA screeners and TSA law enforcement officers may
affect the resolution of this dispute, if at all, we think it best to vacate the district
7 court’s judgment and remand for further proceedings which may also include,
inter alia, discovery focused on the roles of the TSA employees alleged to have been
involved. See, e.g., Brennan, 352 F.3d at 65 (remanding for further development of
the factual record); Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851, 858 (2d Cir.
1986) (declining to “render an advisory opinion on a hypothetical question” and
noting that the court “could simply remand” for further proceedings).
Finally, although we express no opinion on the merits of Leytman’s claim,
we note that “a claim of this sort is best made with the assistance of counsel,” and
we therefore urge that the district court consider appointing counsel for Leytman
on remand. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006)
(per curiam); see also Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986) (listing
factors to be considered by district courts in deciding whether to exercise their
discretion to appoint counsel pursuant to 28 U.S.C. § 1915).
The judgment of the district court is VACATED, and the case is
REMANDED for further proceedings.
FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court