COLEMAN v. JOHNSON

Filing 12

MEMORANDUM AND ORDER THAT JOHNSON MOTION TO DISMISS IS GRANTED; ETC.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 8/4/15. 8/5/15 ENTERED AND E-MAILED, MAILED TO PRO SE.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Christopher Coleman

v.
Jeh Johnson,
Secretary, U.S. Department of
Homeland Security Agency

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CIVIL ACTION

NO. 15-857

MEMORANDUM OPINION
Savage, J.

August 4, 2015

The defendant Jeh Johnson, who has been sued in his official capacity as
Secretary of the Department of Homeland Security (“DHS”), has moved to dismiss this
disability discrimination action under the Americans with Disabilities Act of 1990
(“ADA”) 1 brought by Christopher Coleman (“Coleman”) arising from the termination of
his employment as a Transportation Security Officer (“TSO”) with the Transportation
Security Administration (“TSA”). 2 Johnson argues that the court lacks subject matter
jurisdiction because federal agencies are not subject to suit under the ADA 3 and
because the Aviation and Transportation Security Act (“ATSA”) 4 precludes claims under
the Rehabilitation Act. 5

1

42 U.S.C. § 12112 et seq.

2

This is the second action filed by Coleman. The first, filed by counsel, was voluntarily dismissed
after Johnson filed his motion to dismiss arguing that Coleman’s Rehabilitation Act claim was precluded
by the Aviation and Transportation Security Act (“ATSA”) and that the court lacked subject matter
jurisdiction over his Family and Medical Leave Act claim. Coleman has filed this action pro se.
3

See 42 U.S.C. § 12111(5)(b) (excluding the United States from the ADA’s definition of
“employer.”). The TSA is a component agency of the Department of Homeland Security. 6 U.S.C.
§ 203(2).
4

49 U.S.C. § 44935.

5

29 U.S.C. §§ 701-797b.

We conclude that Johnson, as the official head of the TSA, cannot be sued under
the ADA. Therefore, we shall grant his motion to dismiss the complaint. 6
Background 7
Coleman was employed as a TSO by the TSA. 8 He alleges that the TSA’s
management harassed him because he missed work as a result of ulcerative colitis. 9
On July 2, 2013, Coleman filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”). 10 In his EEOC complaint, he averred that the TSA
harassed him by “not responding to request (sic), giving false information, with holding
(sic) important materials, imposing undo (sic) requirements, ignoring and violating
procedures and illegally forcing [him] to do actions that were unwarranted and
detrimental.” 11 He did not refer to the ADA. 12
Sometime later, Coleman’s employment was terminated. 13 The TSA’s stated
reason for his discharge was that he is psychologically unfit to be a TSO because he
suffers from major depressive disorder. 14 After his termination, Coleman filed a second

6

Because Coleman is pursuing his claims pro se, we consider the merits of his complaint rather
than grant the motion to dismiss as uncontested. See Credico v. Pennsylvania State Police, No. 09-691,
2010 WL 331700, at *1, n.1 (E.D. Pa. Jan. 27, 2010); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Cir. 1991).
7

The facts recited are taken from the complaint.

8

Compl. at 4.

9

Compl. at 4.

10

Compl. at 4.

11

Compl. at 4.

12

Compl. at 4.

13

Compl. at 4.

14

Compl. at 4.
2

EEOC complaint. 15 In the second complaint, Coleman claimed that the TSA removed
him because he refused to submit a form allowing it to obtain his mental health
information. 16 He claims that the TSA falsely stated he has a major depressive disorder
as the reason for his termination. 17 According to Coleman, the real reason was for
missing work due to his ulcerative colitis. 18
On July 7, 2014, Coleman received a right to sue letter from the EEOC. On
September 24, 2014, he filed his first lawsuit, Coleman v. Dept. of Homeland Sec., et
al., No. 14-5505 (E.D. Pa. Sept. 25, 2014). 19 In it, Coleman named as defendants the
TSA, DHS and Janet Napolitano, then Secretary of Homeland Security. He alleged that
they discriminated and retaliated against him based on his requests for an
accommodation because of his health conditions, which ultimately led to his termination,
in violation of the Rehabilitation Act and the Family and Medical Leave Act (“FMLA”). 20
On December 1, 2014, after the defendants had filed a motion to dismiss arguing that
Coleman’s Rehabilitation Act claim was precluded by the ATSA and that the court
lacked subject matter jurisdiction over his FMLA claim, 21 Coleman’s counsel voluntarily

15

Compl. at 4.

16

Compl. at 4.

17

Compl. at 4.

18

Compl. at 4.

19

Coleman was represented by Karpf, Karpf & Cerutti, P.C.

20

29 U.S.C. § 2601 et seq.

21

See Def.’s Prior Mot. to Dismiss at 4, 8. Coleman v. Dep’t of Homeland Sec., No. 14-5505
(E.D. Pa. Sept. 25,2014) (Doc. No. 10) (“Prior Mot. to Dismiss”).
3

dismissed the complaint without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1). 22
On January 25, 2015, Coleman filed his pro se complaint. Coleman reiterated
the same conduct that he alleged in his first complaint. He added that the TSA defamed
him and jeopardized his future employment by claiming that he is unfit to work as a TSO
because he has a major depressive disorder. On June 4, 2015, Johnson moved to
dismiss Coleman’s complaint based on sovereign immunity and preemption.
Standard of Review
The standard of review of a motion to dismiss made pursuant to Rule 12(b)(1)
depends on whether the motion is a facial attack or a factual attack. See Petruska v.
Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006); Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 357 (3d Cir. 2014). Consequently, we must distinguish between
facial attacks and factual attacks. A facial attack “is an argument that considers a claim
on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of
the court” because of some jurisdictional defect. Aichele, 757 F.3d at 358. In reviewing
a facial attack, as we do in considering a Rule 12(b)(6) motion, we accept the wellpleaded allegations in the complaint as true and draw all reasonable inferences arising
from them in favor of the plaintiff. Gould Elecs. v. United States, 220 F.3d 169, 176 (3d
Cir. 2000) (internal quotation marks omitted).
A factual attack is “an argument that there is no subject matter jurisdiction
because the facts of the case . . . do not support the asserted jurisdiction.” Aichele, 757
F.3d at 358. In other words, in a factual challenge to jurisdiction, the defendant disputes

22

See Pl.’s Notice of Dismissal, Coleman v. Dep’t of Homeland Sec., No. 14-5505 (E.D. Pa. Sept.
25,2014) (Doc. No. 11).
4

the allegations on which jurisdiction depends. In that instance, we need not accept
plaintiff’s allegations as true and we may consider materials outside the complaint to
determine whether the exercise of federal jurisdiction is proper. CAN v. United States,
535 F.3d 132, 139, 145 (3d Cir. 2008).
Here, Johnson brings a facial challenge to our subject matter jurisdiction. He
does not dispute the allegations in the complaint. Rather, he argues that even when
Coleman’s allegations are accepted as true, they are insufficient to invoke the court’s
subject matter jurisdiction because he has immunity from ADA claims. Therefore, we
shall accept the well-pleaded allegations as true and draw all reasonable inferences
arising from them in Coleman’s favor.
ADA
Johnson asserts that he is immune from suit under the ADA in his official
capacity as head of the TSA, a federal agency operating within the DHS. He also
contends that even if Coleman’s ADA claims were construed as brought under the
Rehabilitation Act, 23 they are precluded by the ATSA.
The ADA does not apply to federal agencies. Section 12111(5)(B)(i) provides
that “the term ‘employer’ does not include the United States [or] a corporation wholly
owned by the government of the United States.” 42 U.S.C. § 12111(5)(B)(i). Thus, as a
federal agency, the TSA is not subject to the ADA. Smith v. Pallman, 420 F. App’x 208,
214 (3d Cir. 2011).

23

Johnson makes this alternative argument because the Rehabilitation Act provides the exclusive
remedy for federal employees to bring disability discrimination claims. Jackson v. Napolitano, No. 091822, 2010 WL 94110, at *4 (D. Ariz. Jan. 5, 2010); Mole-Donchez v. Johnson, No. 2:13-847, 2015 WL
3452058, at *2 (D. Nev. May 29, 2015).
5

Here, Coleman filed his ADA claims against Johnson in his official capacity as
Secretary of the DHS. As the head of the DHS and the TSA, Johnson cannot be sued
for violating the ADA. 24 See Jackson v. Napolitano, No. 09-1822, 2010 WL 94110, at *5
(D. Ariz. Jan. 5, 2010) (stating that the TSA is a federal agency); Ibrahim v. Dep’t of
Homeland Sec., No. 06-545, 2009 WL 2246194, at *1 (N.D. Cal. July 27, 2009) (stating
that the TSA is an agency under the DHS); Mole-Donchez v. Johnson, No. 2:13-847,
2015 WL 3452058, at *2 (D. Nev. May 29, 2015) (granting Secretary Johnson’s motion
to dismiss plaintiff’s ADA claims because the ADA expressly excludes the United States
from its coverage). Therefore, there is no subject matter jurisdiction.
Rehabilitation Act
Even if the complaint were construed as having been brought under the
Rehabilitation Act, it could not survive.

The ATSA precludes TSOs from bringing

Rehabilitation Act claims against the TSA. See Field v. Napolitano, 663 F.3d 505, 512
(1st Cir. 2011) (“Every circuit to address the issue has agreed that” the ATSA precludes
TSOs from bringing suit under federal employment statutes, including the Rehabilitation
Act); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011); Castro v. Sec’y of
Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006); Smith v. U.S. Dep’t of Homeland
Sec., No.8:12-1087, 2015 WL 1924211, at *3 (N.D.N.Y. Apr. 28, 2015) (granting
defendants’ motion to dismiss because the ATSA precludes security screeners from
bringing suit under the Rehabilitation Act). 25
24

To the extent Coleman attempts to bring a claim against Johnson for violating 18 U.S.C. § 1001
by requesting that we “discipline those who violated [the statute],” Compl. at 5, the claim must be
dismissed. The criminal false statements statute, 18 U.S.C. § 1001, does not provide a private cause of
action. Davis v. Jordan, 573 F. App’x 135, 137 (3d Cir. 2014).
25

TSOs are commonly referred to as “airport screeners.” See George v. Rehiel, 738 F.3d 562,
580 (3d Cir. 2013).
6

Conclusion
Coleman cannot bring an action under either the ADA or the Rehabilitation Act
against Johnson.

Therefore, we shall grant Johnson’s motion to dismiss the

complaint. 26

26

Coleman also alleges that the TSA defamed him by stating that he has a major depressive
disorder. Given that we have dismissed Coleman’s federal claims, we decline to exercise jurisdiction over
his state law claim for defamation. See Kocher v. Larksville Borough, 926 F. Supp. 2d 579, 587 (M.D. Pa.
2013) (declining to exercise jurisdiction over plaintiff’s state law claim for defamation after dismissing his
federal claims).
7