Frey v. David

Background

Mark Frey, Lauren Canno, and their minor daughters, J.C-F. and I.C-F., alleged that Transportation Security Administration (TSA) officers subjected Frey to improper and rough pat-downs at Palm Beach International Airport on August 25, 2016. They alleged that one officer repeatedly touched Frey’s genital area during a screening in view of his family, and that a second officer later conducted an even rougher search. The plaintiffs sued David Pekoske, Alejandro Mayorkas, and the United States. Their claims sought tort damages under the Federal Tort Claims Act (FTCA) and a declaration that TSA screening procedures violated the Fourth and Fifth Amendments.

The defendants moved to dismiss the Third Amended Complaint under Federal Rule of Civil Procedure 12(b)(1), which challenges subject-matter jurisdiction, and Rule 12(b)(6), which challenges whether the complaint adequately states a legal claim.

FTCA Claims

The defendants argued that sovereign immunity barred the plaintiffs’ battery and negligence claims. Sovereign immunity generally prevents the United States from being sued without its consent. The FTCA provides a limited waiver of that immunity, but ordinarily excludes claims arising from intentional torts such as battery. The statute contains an exception, commonly called the law-enforcement proviso, for certain intentional torts committed by federal investigative or law-enforcement officers.

Judge Seibel held that TSA transportation security officers fall within that proviso. She concluded that they are “officers of the United States” because they hold positions involving public authority and perform passenger and property screening for the public’s benefit. She also concluded that TSA officers are empowered by law to conduct searches. In her view, the statutory reference to officers empowered to “execute searches” was not limited to criminal searches or searches based on warrants; TSA’s passenger screening and pat-downs qualify as searches.

The court therefore denied the motion to dismiss the FTCA claims on sovereign-immunity grounds. The defendants also argued that the plaintiffs had not properly exhausted their administrative remedies before filing suit. Judge Seibel rejected that argument, holding that Frey’s notice of claim gave the government enough information about the alleged groping, date, location, conduct, and injuries to permit a reasonable investigation. The later allegation of a second search did not directly contradict the earlier allegations and did not make the notice legally insufficient.

The court did not decide the defendants’ separate argument that the negligence claim was merely an attempt to avoid the intentional-tort exception, because it found that the law-enforcement proviso applied. The opinion therefore left the FTCA claims pending rather than dismissing them.

Constitutional Claims

The court dismissed the constitutional claims. To the extent the plaintiffs sought damages for constitutional violations by the federal officials in their official capacities, sovereign immunity barred those claims.

The plaintiffs also sought a declaration that TSA’s screening procedures violated the Fourth and Fifth Amendments. Judge Seibel held that the complaint did not contain enough factual allegations to plausibly show that Frey’s alleged treatment resulted from an unconstitutional TSA policy or practice. The complaint referred to enhanced pat-down procedures and alleged that the conduct followed a policy, but it did not provide facts showing that the policy authorized the alleged groping or that similar conduct was part of a broader pattern.

The court also held that the plaintiffs lacked standing to seek declaratory relief. Their past experience, without more, did not establish an immediate or certainly impending future injury. The complaint did not provide a basis to infer that they would again face intrusive pat-downs. The court therefore granted the motion to dismiss the constitutional claims.

Leave to Amend and Disposition

The plaintiffs had already amended their complaint three times and did not request another amendment or identify additional facts that would cure the constitutional pleading defects. Judge Seibel declined to grant leave to amend.

The order states that the defendants’ motion to dismiss was granted as to the plaintiffs’ constitutional claims and denied as to the plaintiffs’ FTCA claims. The court also directed the Clerk to terminate the official-capacity defendants under Rule 21, leaving the United States of America as the only remaining defendant for the FTCA action. The parties were directed to attend a case-management conference.