LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendant's motion to dismiss (DE #8). Plaintiff has filed a response in opposition to the motion (DE #19), and defendant has filed a reply (DE #20). In this posture, the matter is ripe for ruling. For the following reasons, defendant's motion to dismiss is granted.
Plaintiff, Charles J. Weinraub, filed this action on November 15, 2011, alleging claims against defendant, the United States of America, for assault and battery, false imprisonment, false arrest, and negligence under the Federal Torts Claims Act ("FTCA"). Defendant has moved to dismiss the action, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds of lack of jurisdiction based on sovereign immunity and for failure to state a claim upon which relief may be granted. On March 3, 2012, the court stayed discovery, except as agreed to by the parties as necessary to resolve jurisdictional issues, pending resolution of defendant's motion to dismiss.
The relevant facts as alleged in plaintiff's complaint are as follows. Raleigh Durham Airport ("RDU") is an international airport in Wake County, North Carolina. Plaintiff lives in North Carolina, has a manufacturing business in Indiana,
Plaintiff gathered his belongings without further incident and continued through the terminal. While plaintiff was seated in the terminal, he was approached by Dixon, who was accompanied by three RDU International Airport Police Department officers ("officers"). The officers detained and arrested plaintiff based on the accusations made by Dixon. Plaintiff was handcuffed, escorted through the terminal, and taken to a holding room in the security screening area where the officers read him his Miranda rights. The officers did not inform plaintiff of any charges against him at that time. Plaintiff was later taken to the RDU police facility, where he requested that the officers review the surveillance video to confirm that he had not committed any crime. After review of the video surveillance recording, the officers dropped the charges and released plaintiff from custody.
Plaintiff had to make new travel arrangements, and lost a day of productivity as a result of the incident. Plaintiff has a history of health problems that caused him to limp and to have difficulty moving quickly. Due to his limited mobility, the officers used some force to lift him off the ground by his arms, walk him through the terminal, and place him into a police car. This aggravated plaintiff's health problems, and he later had to seek medical treatment. Plaintiff also claims that he suffered embarrassment and humiliation by being escorted through the airport and that he suffered mental anguish and emotional distress over his treatment by the TSA screeners. Plaintiff submitted a written administrative claim to the TSA seeking relief and damages in excess of $10,000.00, which was denied. Thereafter, plaintiff filed the instant action.
A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). When the Rule 12(b)(1) motion attacks the complaint as failing to state facts upon which subject matter jurisdiction may be based, the facts in the complaint are assumed to be true and the plaintiff is afforded the same protections he or she would receive under a Rule 12(b)(6) motion. Adams, 697 F.2d at 1219. The Rule 12(b)(1) motion may alternatively attack the existence of subject matter jurisdiction in fact, apart from the complaint. Id. This type of attack is used when a court's limited jurisdiction precludes hearing the case brought. Id. Since the court's power to hear the case is at issue in a Rule 12(b)(1) motion, the court is
The purpose of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted is to eliminate claims that are factually or legally insufficient. Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "A court need not accept a complaint's legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Alfaro v. United States, No. 5:09-CT-3073-D, 2011 WL 561320, at *1 (E.D.N.C. Feb. 8, 2011) (citing Iqbal, 129 S.Ct. at 1949-50; Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009)).
Defendant contends that this court lacks subject matter jurisdiction over plaintiff's FTCA claims for false arrest, false imprisonment, and assault and battery. The FTCA is a waiver of the United States' sovereign immunity, which permits a claimant to sue the United States for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment...." 28 U.S.C. § 2675(a); United States v. Kubrick, 444 U.S. Ill, 116 n. 4, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Courts should not extend the waiver of the United States' sovereign immunity beyond that which Congress intended. Id. at 118, 100 S.Ct. 352. When invoking a waiver, the plaintiff bears the burden to show "that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular claim." Welch v. United States, 409 F.3d 646, 651 (4th Cir.2005). If the plaintiff fails to meet this burden, the claims must be dismissed. Id.
At issue in the present case are two provisions of the FTCA commonly referred to as the "intentional torts exception" and the "law enforcement proviso," both of which are found in 28 U.S.C. § 2680(h).
Plaintiff contends that a TSA screener is an "investigative or law enforcement officer" as described in § 2680(h), while defendant contends that a TSA screener does not fall within the scope of the law enforcement proviso and that, therefore, the United States has not waived its sovereign immunity with respect to the intentional torts alleged in the complaint. The parties have cited no controlling authority, and there are few reported cases on this issue.
The court begins its analysis with the statute. Ignacio, 674 F.3d at 254 ("The starting point for any issue of statutory interpretation ... is the language of the statute itself.") (quoting United States v. Bly, 510 F.3d 453, 460 (4th Cir.2007)). If the statutory language "has a plain and unambiguous meaning with regard to the particular dispute," then the court's inquiry ends. Id. (citation omitted). Here, the phrase at issue, "investigative or law enforcement officer," is defined within the statute 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). Plaintiff has not argued that TSA screeners are empowered to seize evidence or to make arrests, but contends that because TSA screeners conduct searches of people and their property as a function of the airport screening process, they necessarily fall within the law enforcement proviso under the plain meaning of the statute. The court disagrees.
TSA screeners perform limited, consensual searches that are administrative in nature. See 49 U.S.C. § 44901 (requiring the screening of all passengers and property); § 44902 (requiring passengers to consent to a search to establish whether a passenger is carrying, or the property of a passenger contains, a dangerous weapon, explosive, or other destructive substance); 49 C.F.R. § 1540.107 (requiring submission to screening and inspection of persons and property). See also Welch v. Huntleigh USA Corp., No. 04-663 KI, 2005 WL 1864296, at *5 (D.Or. Aug. 4, 2005) ("[TSA] screeners are able to conduct consensual administrative searches for items which are prohibited entry into the airport's sterile areas. Screeners do not have the authority to detain individuals and must call law enforcement officers to search, seize, and arrest individuals if illegal items are found."). However, the phrase "to execute searches," when considered within the broader context of the law enforcement proviso, does not contemplate the types of searches performed by TSA screeners.
Congress chose to define "investigative or law enforcement officer," for purposes of the law enforcement proviso, to include officers that perform any one of three functions: the execution of searches, the seizure of evidence, or the making of arrests. 28 U.S.C. § 2680(h). Each of these are commonly understood to be traditional law enforcement functions performed by the likes of FBI agents, Bureau of Prisons officers, postal inspectors, and INS agents,
Furthermore, it appears that the majority of courts to have considered the issue have concluded that TSA screeners are not within the law enforcement proviso of § 2680(h). See Coulter v. United States Dep't of Homeland Sec., No. 07-4894(JAG), 2008 WL 4416454, at *9 (D.N.J. Sept. 24, 2008) (concluding that a TSA screener was not an "investigative or law enforcement officer" under § 2680(h)); Hartwell v. United States, No. 06-CV-121-SJO (PLAx), at 6 (C.D.Cal. Aug. 16, 2006) (slip op.) (same); Welch, 2005 WL 1864296, at *5 (same). Plaintiff contends that these courts "failed to give proper weight to the statutory language of the FTCA." Mem. in Opp'n to Mot. to Dismiss ("Pl.'s Mem.") at 9. Again, the court disagrees.
The court in Coulter examined the statutory authority cited by the plaintiff in that
Coulter, 2008 WL 4416454, at *8 (quoting Solomon v. United States, 559 F.2d 309, 310 (5th Cir.1977) (concluding that security employees of a military exchange were not "investigative or law enforcement officers" within the meaning of § 2680(h)). The Coulter court concluded that neither statutory provision cited by plaintiff "empowers airport security screeners to execute searches ... as contemplated by congress when drafting § 2680(h)," 2008 WL 4416454, at *8, and the court finds its reasoning persuasive.
Plaintiff also contends that the court in Welch was "clearly wrong" in excluding screeners from the scope of the law enforcement proviso because screeners do not both perform searches and have the authority to arrest, Pl.'s Mem. at 5-6. Plaintiff misapprehends the Welch court's ruling. The court in Welch first stated that the screeners "did not have the authority to execute searches, seize evidence, or make arrests for violations of Federal law." 2005 WL 1864296, at *5 (emphasis added). The court then went on to discuss the limited and consensual nature of the screener's authority to search and the fact that screeners must engage law enforcement to search, seize, and arrest an individual if illegal items are found during a screening. Id. The court's conclusion that screeners cannot be considered law enforcement officers for purposes of the FTCA because they only "perform consensual searches, and had no power to arrest," id., is entirely consistent with the statutory language in that if screeners had the power to arrest (or to seize evidence), they would be considered law enforcement officers despite the fact that they only perform consensual searches. Accordingly,
The court acknowledges that the recent decision of Pellegrino v. United States, 855 F.Supp.2d 343 (E.D.Pa.2012), which is not binding on this court, is at odds with the decision reached herein. The Pellegrino court concluded that the law enforcement proviso may encompass TSA screeners because they are empowered to conduct warrantless searches, but that discovery was required to determine whether TSA screeners "were authorized to execute searches, seize evidence, or make arrests" so as to bring them within § 2680(h)'s definition of "investigative or law enforcement officer." 855 F.Supp.2d at 356. However, the court declines to follow Pellegrino, because, among other things, it fails to distinguish between the broad power to execute warrantless searches possessed by other officers found to fall within the law enforcement proviso, as the court discussed supra, and the narrowly focused, administrative searches conducted by TSA screeners.
Finally, support for the court's decision can be found in Congress's delegation of power to the Administrator of TSA
The Under Secretary shall —
49 U.S.C. § 114(e). Congress separately provided that "[t]he Under Secretary may designate an employee of the Transportation Security Administration or other Federal agency to serve as a law enforcement officer," id. § 114(p)(1), and that such an officer may —
49 U.S.C. § 114(p)(2). See id. § 44901(h)(2) ("[T]he Under Secretary
In sum, the court concludes that the limited, consensual searches conducted by TSA screeners do not bring them within the definition of "investigative or law enforcement officers" and, therefore, do not implicate the law enforcement proviso of § 2680(h). Accordingly, plaintiff's claims for assault and battery, false imprisonment, and false arrest are barred by sovereign immunity.
Defendant also contends that plaintiff has failed to state a negligence claim independent of the conduct underlying his claims for assault and battery, false imprisonment, and false arrest, which the court has determined are barred by the intentional torts exception of § 2680(h). The court agrees.
The FTCA's intentional tort exception is broad and bars "[a]ny claim arising out of an intentional tort. 28 U.S.C. § 2680(h). A plaintiff may not simply recast an intentional tort claim as one for negligence to circumvent the bar of § 2680(h), United States v. Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 3041-42, 87 L.Ed.2d 38 (1985) ("Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee.")
Plaintiff specifically alleges the following in support of his negligence claim:
Compl. ¶ 38. Here, while plaintiff has attempted to set forth the elements of a negligence claim, there are no factual allegations in the complaint with regards to that claim that are in any way distinct from those that support plaintiff's claims for assault and battery, false imprisonment, and false arrest. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'").
Furthermore, a plaintiff can only recover under the FTCA "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Under North Carolina law, when an injury is intentional, the concept of negligence no longer applies. Pleasant v. Johnson, 312 N.C. 710, 715, 325 S.E.2d 244, 248 (1985); Lynn v. Burnette, 138 N.C. App. 435, 441, 531 S.E.2d 275, 279-80 (2000) (recognizing that intentional torts
Accordingly, the court must conclude that plaintiff has failed to state a claim for negligence, or alternatively, that any claim for negligence "arises out of his intentional tort claims and, thus, is barred by the plain language of § 2680(h).
Defendant's motion to dismiss (DE #8) is
28 U.S.C. § 2680(h).
49 U.S.C. § 44901(a) & (b).
