Iverson v. United States of America et al

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss 13 is GRANTED and this matter is DISMISSED for lack of jurisdiction. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 7/31/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Brian Iverson,

Civ. No. 18-323 (PAM/DTS)
Plaintiff,

v.

MEMORANDUM AND ORDER

United States of America, and
Transportation Security
Administration,
Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss.

For the

following reasons, that Motion is granted.
BACKGROUND
Plaintiff Brian Iverson contends that he was injured by Transportation Security
Administration agents while going through security screening at the Minneapolis-St. Paul
Airport in September 2011. (Compl. (Docket No. 1) ¶ 8.) According to Iverson, he was
using crutches due to an unrelated incident, and a TSA agent made Iverson stand up without
the crutches and then pulled him forward, causing him to lose his balance and fall. (Id.
¶ 12.) Iverson contends that he suffered from a separated shoulder and a bruised nerve,
and that the fall exacerbated his preexisting injuries. (Id. ¶ 14.)
Iverson filed an administrative claim about the incident with TSA in 2013. (Id. ¶ 2.)
That claim was denied in early 2018, and Iverson brought this lawsuit under the Federal
Tort Claims Act (“FTCA”) against the United States and the TSA. Iverson’s Complaint
alleges that the actions of the TSA agents constituted a battery under Minnesota law and,

in the alternative, that the TSA agents were negligent. (Id. ¶¶ 20, 26.) In response to the
Government’s Motion, Iverson concedes that the TSA is not a proper party to the lawsuit,
and he does not oppose the dismissal of the TSA from the case. (Pl.’s Opp’n Mem. (Docket
No. 16) at 1 n.1.)
The Government’s Motion to Dismiss argues that the FTCA’s reach does not extend
to intentional torts such as battery, that the law-enforcement exception to the FTCA’s
battery exception does not apply to TSA agents, and that Iverson’s negligence claim is also
barred by the FTCA. In the alternative, the Government contends that Iverson has failed
to plausibly plead his negligence claim.
Iverson does not dispute that the FTCA exempts from its reach intentional torts, like
his battery claim. He argues that the FTCA’s law-enforcement exception applies and that
he has plausibly pled a negligence claim that is outside the reach of the FTCA’s intentionaltort exception.
DISCUSSION
A.

Law-Enforcement Exception
The FTCA provides a limited waiver of the Government’s sovereign immunity from

suit for certain negligence claims. See 28 U.S.C. § 2674. But the FTCA specifically
excludes from its reach claims arising out of intentional torts. Id. § 2680(h). As relevant
here, however, the FTCA also contains an exception to that intentional-tort exclusion,
providing that the Government may be liable for certain intentional torts committed by
“investigative or law enforcement officers of the United States Government.” Id. An
“investigative or law enforcement officer” is one “who is empowered by law to execute
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searches, to seize evidence, or to make arrests for violations of Federal law.” Id. Whether
the TSA agents involved here are “investigative or law enforcement officers” is dispositive
of Iverson’s battery claim.
Iverson argues that the Court must accept as true his allegation that the TSA agents
were law-enforcement officers, but this allegation is irrelevant. When there is a challenge
to the Court’s subject-matter jurisdiction, the Court may look beyond a complaint’s
allegations to resolve disputes. Johnson v. United States, 534 F.3d 958, 962 (8th Cir.
2008). Moreover, whether TSA agents are law-enforcement officers under § 2680(h) is a
question of law, not fact.
Iverson also relies on a decision finding that TSA agents “may” be investigative or
law-enforcement officers within the meaning of § 2680(h). Pellegrino v. U.S. Transp. Sec.
Admin., 855 F. Supp. 2d 343, 357 (E.D. Pa. 2012). A week before the hearing on the
instant Motion, however, the Third Circuit Court of Appeals issued an opinion in the same
case, determining that the FTCA’s law-enforcement exception does not apply to TSA
agents such as those here. Pellegrino v. U.S. Transp. Sec. Admin., No. 15-3047, 2018 WL
3371699, at *17 (3rd Cir. July 11, 2018).
The plaintiff in Pellegrino challenged the conduct of TSA agents during an airport
screening, contending that they damaged her property and falsely arrested her. Id. at *3.
The district court ultimately ruled against Pellegrino on summary judgment, concluding
that the TSA agents were not law-enforcement officers under the law-enforcement
exception. Pellegrino v. U.S. Transp. Sec. Admin., No. 09cv5505, 2014 WL 1489939, at
*7 (E.D. Pa. Apr. 16, 2014). After exhaustively discussing the text, history, and purpose
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of both the FTCA and the statute giving rise to the TSA, the Aviation and Transportation
Security Act (“ATSA”), Pub. L. No. 107-71, 115 Stat. 597 (2001), the court of appeals
agreed. The court of appeals reasoned that because the law-enforcement exception was
intended to give a remedy to persons injured by overzealous police searches, the exception
applies only to “officers with criminal law enforcement powers.” Pellegrino, 2018 WL
3371699, at *7, 11-12.
The court also noted that the ATSA created two different airport-security
positions—TSA screening agents, and TSA law-enforcement officers—and only TSA lawenforcement officers were empowered to search for criminal contraband, make arrests, and
carry firearms. See 49 U.S.C. §§ 114(p), 44903(a). Screeners, on the other hand, carry out
essentially administrative searches, looking not for items that are otherwise illegal but
rather for items that are prohibited aboard aircraft. Id. § 44901(g)(5). Because TSA
screeners do not have the power to conduct the extensive searches that police officers do,
the court of appeals found that the FTCA’s law-enforcement exception does not apply to
TSA screeners. Pellegrino, 2018 WL 3371699, at *15.
At the hearing, Iverson urged the Court to deny the Motion despite the Pellegrino
decision, claiming that there is a question of fact as to whether the TSA agents here were
screeners or TSA law-enforcement officers. But there is no allegation in the Complaint
that Iverson’s encounter involved TSA law-enforcement officers, who become involved in
screening when a screener finds illegal materials or an arrest is necessary. Id. Rather,
Iverson’s alleges that he was injured during his initial screening, which under the TSA’s
policies is carried out only by TSA screeners.
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See id. at *14 (discussing ATSA’s

distinction between “employees” who conduct screenings, and “law enforcement officers,”
who have other duties); id. at *15 (discussing TSA Management Directive regarding
separate duties of screeners and law enforcement officers).
The Court agrees with the reasoning in Pellegrino that TSA screeners are not
“investigative or law enforcement officers” within the meaning of the FTCA’s lawenforcement exception, and thus that sovereign immunity requires the dismissal of
Iverson’s battery claim.
B.

Negligence
Iverson argues that dismissal of his negligence claim is not warranted because

Minnesota law allows him to plead claims in the alternative. But application of the FTCA’s
waiver of immunity is a question of federal, not state, law. To determine whether the
intentional-torts exception in the FTCA applies, “a court must look, not to the theory upon
which the plaintiff elects to proceed, but rather to the substance of the claim which he
asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2d Cir. 1976).
[A] claim will be deemed to have arisen from a § 2680 excepted tort if the
governmental conduct that is essential to the plaintiff’s cause of action is
encompassed by that tort. And this is so even if the plaintiff has
denominated, as the basis for the cause of action, a tort not found within
§ 2680(h)’s list of excepted torts.
Zelaya v. United States, 781 F.3d 1315, 1333 (11th Cir. 2015). Thus, “negligence claims
related to a government employee’s assault or battery are barred by § 2680(h) unless the
claimed ‘negligence arose out of an independent, antecedent duty unrelated to the
employment relationship between the tortfeasor and the United States.’” Olson v. U.S.
Postal Serv., No. 14cv3213, 2015 WL 4488438, at *4 (D. Minn. July 23, 2015) (Ericksen,
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J., adopting R. & R. of Thorson, M.J.) (quoting Billingsley v. United States, 251 F.3d 696,
698 (8th Cir. 2001)).
Iverson’s negligence claim is undeniably intertwined with his battery claim: the
same facts he asserts in support of his battery claim underlie his negligence claim. He does
not claim a duty on the part of the TSA agents that is independent from or unrelated to their
employment. Iverson acknowledges as much, arguing that his negligence claim is that “the
TSA agents conducted a search in a negligent manner, causing him to fall.” (Pl.’s Opp’n
Mem. at 8.) Because the duty he alleges is not independent of the agents’ status as agents,
his negligence claim is barred by § 2680(h) and must be dismissed.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss
(Docket No. 13) is GRANTED and this matter is DISMISSED for lack of jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 31, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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