Smeltz v. Mayorkas et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Julia K Munley on 9/25/24. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 3:23cv636

TRAVIS SMELTZ,
Plaintiff

(Judge Munley)
v.
ALEJANDRO N. MAYORKAS,
SECRETARY, DEPARTMENT OF
HOMELAND SECURITY; and
SECRETARY OF THE
TRANSPORTATION SECURITY
ADMINISTRATION,
Defendants

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MEMORANDUM

This is an employment discrimination and civil rights action filed by Plaintiff
Travis Smeltz against the Secretary of the United States Department Homeland
Security ("OHS") and the Secretary of the Transportation Security Administration 1
("TSA"). Before the court is a motion to dismiss filed by the defendants for lack
of subject matter jurisdiction and for failure to state a claim. (Doc. 35). Also
before the court is a request by the plaintiff to file a second amended complaint,

1

In an action filed pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII "), the only
proper defendant in a federal employee's Title VII action is the head of the appropriate agency.
Wadhwa v. Sec'y, Dep't of Veterans Affs., 505 F. App'x 209,213 (3d Cir. 2012)(citations
omitted). TSA is led by an administrator and a deputy administrator, not a secretary. See TSA
Organizational Chart, https://www.tsa.gov/sites/default/files/tsa org chart matrix.pdf (last
accessed 09/19/2024). These administrators report to the Secretary of the Department of
Homeland Security, which is presently Alejandro N. Mayorkas. See DHS Organizational Chart,
https://www.dhs.gov/sites/default/files/2023-11/23 1109_ mgmt dhs-public-org-chart-508 .pdf
(last accessed 09/19/2024).

as asserted through his brief in opposition to the motion to dismiss. These
matters are ripe for a decision.
Background 2

Plaintiff was formerly employed by the defendants as a Federal Air Marshal
for the Federal Air Marshal Service ("FAMS") at the Philadelphia Field Office.
(Doc. 16, Am. Campi.

,m 6-7 , 14, 16).

During his tenure, plaintiff served as a

delegate for the Air Marshal Association ("AMA"), which is a "recognized member
organization" that "seeks to improve the working conditions and pay status of its
membership[,]" i.e., a labor organization. (~ at ,I 12).
In June and October 2019 , in his role as AMA representative for the
Philadelphia Field Office, plaintiff coordinated communications between AMA
members who had Equal Employment Opportunity ("EEO") complaints against
field office management and particular Assistant Supervisory Air Marshalls in
Charge ("ASACs"). (~ ,I 16). Per plaintiff, he confronted field office
management to resolve AMA member concerns . (!gj
In November 2019, plaintiff raised concerns to management about a
measuring system being used in performance evaluations provided to the

2

These background facts derive from plaintiff's amended complaint. When considering the
defendants' motion as filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the court
accepts all factual allegations in the plaintiff's amended complaint as true . Phillips v. Cnty. of
Allegheny, 515 F.3d 224 , 233 (3d Cir. 2008)(citations omitted) . The court makes no
determination , however, as to the ultimate veracity of these assertions .

2

director of FAMS. (~ at

,m 17-18).

The measuring system at issue had been

implemented by ASAC Clay Robbins ("ASAC Robbins"). (~) Plaintiff's concerns
about the measurement system included: 1) improper reference to and incorrect
calculation of total flight days for employee yearly evaluations , 2) penalties for
using approved leave (including medical leave) during employee rating periods;
and 3) and issues with other subjective criteria being introduced into the
evaluation process. (~)
In July 2020, plaintiff made a "wide-spanning retaliatory harassment
complaint" against ASAC Robbins . (19..: ,I 18). Plaintiff alleged in his harassment
complaint that ASAC Robbins had unlawfully directed plaintiff's removal from an
international mission roster due to plaintiff's medical leave status. (~) Plaintiff
also alleged that ASAC Robbins withheld plaintiff's name from a list of volunteers
for a U.S. Secret Service detail opportunity and directed Jeffrey Kwam , plaintiff's
first-line supervisor, "to make inquiries of plaintiff's role and involvement with
the AMA as part of one of Plaintiff's performance appraisals. " (~ ,I,I 15, 18).
Plaintiff alleges that he made the complaint pursuant to TSA Management
Directive 1100-73.3 ("MD 1100-73.3"). (~) That directive expressly prohibits
harassment and retaliation. (~ ,I 19).

3

TSA performed internal factfinding relative to plaintiff's harassment
complaint against ASAC Robbins. (~ 1120). ASAC Robbins was interviewed
twice and provided two written statements during that factfinding. (1.9.: 1121 ).
At some point in 2020, while the factfinding was ongoing , plaintiff applied
for a vacancy on a local Joint Terrorism Task Force ("JTTF") based out of the
Philadelphia Field Office. (~ 1111 8, 20). Plaintiff interviewed before a panel. (~ 11
9). The panel was chaired by ASAC Robbins , the subject of plaintiff's
harassment complaint. (~ 11119, 18, 20). ASAC Robbins did not recuse himself
from the panel or from plaintiff's interview. (1.9.: 1137).
Then-acting Supervisory Air Marshal in Charge Robert Duerr ("SAC Duerr")
was the "deciding official" for the JTTF position. (~ 1131 ). Per plaintiff, SAC
Duerr and ASAC Robbins were aware of the harassment claims plaintiff
previously raised against ASAC Robbins. (~ 111120-21 , 23). ASAC Robbins
allegedly recommended to SAC Duerr that plaintiff not be selected and SAC
Duerr rubber-stamped ASAC Robbins's recommendations. (1.9.: 111118, 42).
On January 7, 2021 , plaintiff received notice that he did not get selected for
the JTTF position. (~ 1111 ). The agency investigation of plaintiff's harassment
complaint against ASAC Robbins was not closed until January 26-27, 2021 . (~

1122).

4

Plaintiff asserts that the interview process was conducted in an unfair and
inconsistent manner and that he was evaluated against other interviewees
applying for a different position using different scoring criteria . (~

,m 27-30).

Plaintiff also avers various discrepancies in the scoring and ranking of
candidates, which he alleges was meant to intentionally obscure proof that
plaintiff was the best candidate for the position. (~ ,I 34 ). Another panelist
"stated it was 'unknown ' how the person selected for the position was more
qualified than [p]laintiff. " (~ 1l 35) .
As a result of his non-selection for the JTTF position, plaintiff filed a
complaint for discrimination with the TSA EEO office in February 2021. (~ ,I 43).
The EEO division investigated and conducted a series of hearings and
administrative proceedings regarding the EEO complaint. (~ 1l 44 ). Plaintiff
subsequently filed a complaint with the Equal Employment Opportunity
Commission and plaintiff ultimately received a notice of the right to sue. (~).
Plaintiff also alleges that, as the result of events transpiring during his
employment at the Philadelphia Field Office, he "retired/resigned" on June 30,
2021 , following approximately twenty (20) years of service to FAMS. 3

3

(~

,I 47).

The amended complaint also raises other instances of harassment. (Doc. 16, Am . Campi. ,I
45-46) . It is unclear if these matters were included in the administrative proceedings as part of
the harassment complaint or whether plaintiff makes these allegations in support of a claim for
constructive discharge. (~ ,I 47) .

5

Based on the above facts , plaintiff's amended complaint asserts six (6)
claims. Count One asserts a claim for retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e , et seq. ("Title VII "). Count Two
alleges disparate treatment in violation of Title VII. Count Three avers that the
defendants violated 42 U.S.C. § 1983 ("Section 1983") by depriving him of his
rights to free speech and association protected by the First Amendment and his
due process rights protected by the Fourteenth Amendment. Count Four asserts
a claim for civil conspiracy in violation of 42 U.S .C. § 1985 ("Section 1985").
Counts Five and Six assert claims for intentional infliction of emotional distress
and negligent infliction of emotional distress.
Defendants responded by filing the instant motion to dismiss all claims.
(Doc. 17). In opposing the motion , plaintiff argues that he has stated a viable
claim for retaliation in violation of Title VII. (Doc. 22 , Pl. Br. in Opp. at 3-5). As for
the rema ining claims , plaintiff requests leave to file a second amended complaint.
(lfL. at 5-6). Defendants oppose and argue that plaintiff's request for amendment
is improperly asserted and factually unsupported . (See Doc. 23, Def. Rep. Br. at
4-6). Having been briefed by the parties , this matter is ripe for disposition .
Jurisdiction

Because this case is brought pursuant to Title VII , Section 1983, and
Section 1985, the court ostensibly has jurisdiction pursuant to 28 U.S.C. § 1331 .
6

("The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States. "). Plaintiff's tort claims are
brought against the federal government. Ostensibly , the court also has
jurisdiction pursuant to 28 U.S.C. § 1346(b )(1 ). ("the district courts ... shall have
exclusive jurisdiction of civil actions on claims against the United States, for
money damages ... for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under
circumstances 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. "). As discussed below, jurisdiction is disputed with regard to some of
plaintiff's claims.
Legal Standards
1. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss
a complaint for lack of subject matter jurisdiction. FED. R. CIv. P. 12(b)(1 ). A
motion to dismiss filed pursuant to Rule 12(b )(1) thus challenges the power of a
federal court to hear a claim or case. See Petruska v. Gannon Univ. , 462 F.3d
294 , 302 (3d Cir. 2006). In the face of a 12(b )(1) motion, the plaintiff has the
burden to "convince the court it has jurisdiction. " Gould Elecs. Inc. v. United
7

States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003); see also Kehr Packages v. Fidelcor, Inc.,
926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is
challenged under Rule 12(b )(1 ), the plaintiff must bear the burden of
persuasion .").
2. Failure to State a Claim

The government also moves to dismiss pu rsuant to Federal Rule of Civil
Procedure 12(b )(6) for failure to state a claim upon which relief can be granted .
The court tests the sufficiency of the complaint's allegations when considering a
Rule 12(b )(6) motion .
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.
Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim has facial plausibility when factual content is pied
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged .

~

(citing Twombly, 550 U.S. at 570). "Threadbare

recitals of the elements of a cause of action , supported by mere conclusory
statements , do not suffice. " ~ (citing Twombly, 550 U.S. at 555) .
On a motion to dismiss for failure to state a claim, district courts accept all
factual allegations as true, construe the complaint in the light most favorable to
8

the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief. See Phillips, 515 F.3d at 233
(citations omitted).
Analysis

As noted above, the defendants move to dismiss all six (6) claims asserted
in the amended complaint. Plaintiff opposes the dismissal of his Title VII
retaliation claim and requests leave to file a second amended complaint
regarding the other claims. The court will address these issues in turn.
1. Title VII Retaliation Claim

Plaintiff asserts a retaliation claim pursuant to Title VII . Title VII includes a
specific provision applicable to federal employees , including employees of the
Federal Air Marshal Service ("FAMS"), 42 U.S.C . § 2000e-16. See Stone v.
Sec'y United States Dep't of Homeland Sec. , 705 F. App'x 76, 78 , n. 2 (3d Cir.
2017)(indicating that a district court had jurisdiction to hear a Federal Air
Marshal's retaliation claim pursuant to this statute). Title Vll 's federal -sector
provision provides that, "[a]II personnel actions affecting employees .. . shall be
made free from any discrimination based on race , color, religion, sex, or national
origin. " 42 U.S.C. § 2000e-16(a).
Title Vll 's private-sector provisions explicitly prohibit retaliation by
employers. Komis v. Sec'y of United States Dep't of Lab. , 918 F.3d 289 , 294 (3d
9

Cir. 2019)(citing 42 U.S.C. § 2000e-3(a)). As drafted , Title Vll 's federal-sector
provision does not.

~

Nonetheless, in order achieve parity between the private

sector and the federal sector in employment discrimination matters, the Third
Circuit Court of Appeals recognizes that federal employees may bring retaliation
claims pursuant to Title VII. See id. at 295.
"Title VII makes it unlawful for an employer to retaliate against an employee
'because he has opposed any practice made an unlawful employment practice
by this subchapter .. .. '" Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir.
2021 )(quoting 42 U.S.C. § 2000e-3(a)). 4 It is also unlawful to retaliate against an
employee "because he has made a charge, testified , assisted , or participated in
any manner in an investigation, proceeding , or hearing under this subchapter. "
42 U.S.C . § 2000e-3(a).

4

Unlawful employment practices also include the following :
(1) to fail or refuse to hire or to discharge any ind ividual , or otherwise
to discriminate against any individual with respect to his
compensation, terms , conditions , or privileges of employment,
because of such individual's race , color, religion, sex , or national
origin ; or
(2) to limit, segregate , or classify his employees or applicants for
employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise
adversely affect his status as an employee , because of such
individual's race , color, religion , sex, or national origin.

42 U.S.C. § 2000e-2(a)(1 )-(2).

10

To prevail on a claim for retaliation under Title VII, a federal employee must
prove that (1) they engaged in activity protected by Title VII, (2) their employer
took an adverse employment action after or contemporaneous with the protected
activity, and (3) a causal link exists between the adverse action and the protected
activity. Wadhwa, 505 F. App'x at 213 (citing Moore v. City of Philadelphia, 461
F.3d 331 , 340-41 (3d Cir. 2006) , as amended (Sept. 13, 2006)); Andreoli v.
Gates, 482 F.3d 641 , 649 (3d Cir. 2007).
Proceeding under Rule 12(b )(6) , the government argues the plaintiff fails to
allege that he engaged in protected activity. After careful review of the amended
complaint, the court agrees .
"With respect to 'protected activity, ' the anti-retaliation provision of Title VII
protects those who participate in certain Title VI I proceedings (the 'participation
clause') and those who oppose discrimination made unlawful by Title VI I (the
'opposition clause')." Moore, 461 F. 3d at 341 (citing Slagle v. Cnty of Clarion ,
435 F.3d 262 , 266 (3d Cir. 2006)). General complaints about unfair treatment
are insufficient to establish protected activity under Title VII. Curay-Cramer v.
Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)(citing
Barber v. CSX Distrib. Servs., 68 F.3d 694 , 702 (3d Cir. 1995)).
Plaintiff's amended complaint alleges that, as a delegate for the AMA labor
organization , he opposed a particular measuring system being used in
11

performance evaluations . (Doc. 16, Am. Campi , ,I 17). He does not allege,
however, how this measuring system discriminated based upon race , color,
religion , sex, and/or national orig in. Plaintiff also avers that he "coordinated
communications between AMA members who had EEO complaints against field
office management and particular ASACs, and confronted field office
management in an effort to resolve member concerns." (kl ,I 17). He does not
allege , however, that the EEO complaints pursued by other AMA members were
Title VII proceedings , i.e., challenging practices that discriminated against those
AMA members based on race , color, religion , sex, and/or national origin .
Additionally, in considering plaintiff's claim for retaliation based on his own
reports of harassment and discrimination , he does not indicate how he fits into
the categories protected by Title VII. Plaintiff avers that he is male and
Caucasian , but he does not aver that he was discriminated against based on sex
or race . (See

& ,I 6).

Instead , he alleges that he made a harassment and

discrimination complaint against ASAC Robbins pursuant to TSA's own internal
anti-harassment program . (kl ,I 18). He alleges that TSA Management Directive
1100.73 was violated. (kl) Quoting that directive, he avers that the prohibited
harassment in his case was "unwelcome conduct. .. that has the purpose or effect
of ... creating an intimidating , offensive or hostile environment as a result of an
individual 's .. . political affiliation , participation in protected activity, or any other
12

basis protected by law. " (~) Political affiliation is not a category protected by
Title VII.

Moreover, as stated above, the complaint does not reference whether

plaintiff engaged in protected activity relative to participating in Title VII
proceedings or opposing practices made unlawful by Title VII.
As explained by the Supreme Court of the United States, "[t]he
antidiscrimination provision" of Title VII "seeks a workplace where individuals are
not discriminated against because of their racial , ethnic, religious, or genderbased status. " Burlington N. & Santa Fe Ry . Co. v. White, 548 U.S. 53 , 63
(2006)(citing McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 800-801 (1973)).
"The antiretaliation provision seeks to secure that primary objective by preventing
an employer from interfering (through retaliation) with an employee's efforts to
secure or advance enforcement of the Act's basic guarantees. " ~

In other

words , to avail themselves of Title Vll 's anti-retaliation provision , employees must
demonstrate that they made efforts to secure or advance enforcement of
provisions guaranteeing that workers will not be harassed or discriminated
against in the workplace based on their racial, ethnic, religious , or gender-based
status. See Moore, 461 F.3d at 341 ("Whether the employee opposes , or
participates in a proceeding against, the employer's activity , the employee must
hold an objectively reasonable belief, in good faith , that the activity they oppose

13

is unlawful under Title Vll.")(citation omitted). Plaintiff's amended complaint does
not draw those connections and thus fails to state a Title VII retaliation claim.
As discussed in more detail below, however, plaintiff has requested leave
to file a second amended complaint. In civil rights cases, "district courts must
offer amendment-irrespective of whether it is requested-when dismissing a
case for failure to state a claim unless doing so would be inequitable or futile ."
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc. , 482 F.3d 247 , 251 (3d
Cir. 2007). As for futility of amendment, in reviewing the amended complaint,
which is not a model of clarity, the court cannot rule out whether plaintiff
participated in Title VII-related EEO proceedings or opposed discrimination made
unlawful by Title VII. As for the equities, the amended complaint was plaintiff's
first attempt to state a Title VII retaliation claim .5 Accordingly , the plaintiff will be
granted leave to file a second amended complaint with additional facts to support
his Title VII retaliation claim . If plaintiff fails to fi le a second amended complaint
within twenty-one (21) days, this claim will be dismissed with prejudice .
2. Leave to Amend the Remaining Claims

Regarding the other claims in the amended complaint, plaintiff's Title VII
discrimination claim and his Section 1983, Section 1985, and state law causes of

5

In Count I of the original complaint, plaintiff asserted claims for violation of the federal sector
provision of the Age Discrimination in Employment Act, 29 U.S.C. § 633a(a) . (Doc. 1, Campi.
(sealed)).

14

action , plaintiff seeks leave to file a second amended complaint. Plaintiff,
however, offers nothing to support his request for amendment. By not attaching
a proposed second amended complaint or referencing additional matters in his
brief in opposition to the motion to dismiss, there are no other alleged facts for
the court to consider. Plaintiff also does not offer whether he will stand on the
causes of action in the amended complaint or pursue his case with different
theories of liability.
Pursuant to the Federal Rules of Civil Procedure , however, courts are
instructed to "freely give leave when justice so requires ." FED . R. CIv. P. 15(a)(2).
Leave to amend should be given absent any "undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed , undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of amendment[.]" Farnan v. Davis ,
371 U.S. 178, 182 (1962).
The government argues that amendment would be futile for the reasons
asserted in its brief supporting the motion to dismiss. (Doc. 23 , Def. Reply Br. at
4-6). "In assessing futility [of amendment] , the district court applies the same
standard of legal sufficiency as applies under Rule 12(b)(6)." In re Burlington
Coat Factory Sec. Litig ., 114 F.3d 1410, 1434 (3d Cir. 1997)(citation and internal
quotation marks omitted). In a circular way, the court must reach the merits of
15

whether plaintiff states a claim or could state a claim . Nonetheless, by not
countering the motion to dismiss with substantive arguments in opposition (other
than the Title VII retaliation claim) or with a draft second amended complaint, the
government's arguments about futility are considered in a vacuum.
The court will thus consider defendants' arguments against the merits or
potential merits of plaintiff's remaining claims, which he pursues pursuant to Title
VII , Section 1983, Section 1985 and state tort law. Where a claim is subject to
dismissal, the court will then consider whether amendment would be futile .
a. Title VII Disparate Treatment Claim

Count

11

of the amended complaint asserts a claim for disparate treatment

in violation of Title VI I. The government moves to dismiss for failure to state a
claim . To make a prima facie case of discrimination , a plaintiff must establish
that: 1) he is a member of a protected class ; 2) he was qualified for the position
he sought to attain or retain ; 3) he suffered adverse employment action ; and 4)
the action occurred under circumstances that could give rise to an inference of
intentional discrimination. Makky v. Chertoff, 541 F.3d 205 , 214 (3d Cir.
2008)( citations omitted ).
Plaintiff's amended complaint avers his sex and race , which are protected
classes. (Doc. 16, ,I 6). But, as discussed above, plaintiff does not connect the

16

allegations of intentional discrimination to his sex or his race. 6 Rather, the core
of plaintiff's allegations focuses on retaliation by ASAC Robbins for plaintiff's
participation in the AMA, a labor organization , and his efforts on behalf of AMA
members in their EEO proceedings. Accordingly, plaintiff's Title VII disparate
treatment claim is subject to dismissal.
The question remains whether amendment would be futile . Although this is
an employment discrimination and civil rights case, by not filing a draft second
amended complaint, the court has "nothing upon which to exercise its discretion"
in granting or denying the amendment. Ramsgate Ct. Townhome Ass'n v. W.
Chester Borough , 313 F.3d 157, 161 (3d Cir. 2002)(citing Lake v. Arnold , 232
F.3d 360, 374 (3d Cir. 2000)).
Even so, plaintiff has already offered approximately eight (8) pages of
factual averments to support his claims in the amended complaint. (Doc. 16, Am.
Campi. at 1-9). If the plaintiff had possession of facts , such as that ASAC
Robbins discriminated against the plaintiff because the plaintiff is male and
Caucasian, plaintiff would have made those averments in the first instance or
offered them in a brief in opposition, a motion to amend, or a proposed second
amended complaint. See Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 206

6

Count Two includes an averment that he was a member of a protected class as an adult over
the age of 40 . (Doc. 16, ,i 58) . But age is not a protected class under Title VII and plaintiff
abandoned his ADEA claim earlier in this litigation.

17

(3d Cir. 2006). Under the circumstances , the court has no reason to believe that
amendment would cure the identified defects in plaintiff's Title VII disparate
treatment claim . Plaintiff's Title VII disparate treatment claim in Count II of the
amended complaint will thus be dismissed with prejudice without leave to amend.

b. Section 1983 Claim
As for plaintiff's remaining claims brought pursuant to Section 1983,
Section 1985, and state tort law, the government argues that the court lacks
subject matter jurisdiction , and that plaintiff has failed to state viable claims .
Based on the unorthodox posture of this case where the plaintiff has not offered
opposition to the government's arguments , but has asked for leave to amend , the
court will take a practical approach . As discussed below, plaintiff's Section 1983
claim can be disposed of without consideration of subject matter jurisdiction .
In this matter, plaintiff specifically avers that his Section 1983 claims are
grounded in the rights secured by the First and Fourteenth Amendments ,
specifically freedom of speech and association and his rights to due process .
(Doc. 16, Am . Com pl.

,m 64 , 66-67).

The Fourteenth Amendment applies to

actions of the states and not the federal government, so that portion of plaintiff's
Section 1983 claims will be dismissed without additional discussion . See Brown
v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001 ).

18

As for plaintiff's claim based upon the First Amendment, Section 1983 does
not, by its own terms , create substantive rights. Rather, it provides remedies for
deprivations of rights established elsewhere in the Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under
Section 1983 , two criteria must be met. First, the conduct complained of must
have been committed by a person acting under color of state law. Sameric Corp.
of Del., Inc. v. City of Phila. , 142 F.3d 582 , 590 (3d Cir.1998). Second , the
conduct must deprive the plaintiff of rights secured under the Constitution or
federal law. Id .
"Because section 1983 provides a remedy for violations of federal law by
persons acting pursuant to state law, federal agencies and officers are facially
exempt from section 1983 liability inasmuch as in the normal course of events
they act pursuant to federal law." Hindes v. F.D.I.C ., 137 F.3d 148, 158 (3d Cir.
1998)(citations omitted ). On the other hand , it is well-established "that federal
officials are subject to section 1983 liability when sued in their official capacity
where they have acted under color of state law, for example in conspiracy with
state officials. " kl (citations omitted).
Th is is not a case alleging that federal officials conspired with state actors.
Rather, all of plaintiff's allegations concern the conduct of Federal Air Marshals
and administrators within the FAMS Philadelphia Field Office. All of these facts
19

implicate actions taken under color of federal law by federal actors in FAMS.
Section 1983 liability "will not attach for actions taken under color of federal law. "
Brown , 250 F.3d at 800 (citing Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir.
1971 ). Consequently, plaintiff's Section 1983 cause of action will be dismissed
without leave to amend .7

c. Section 1985 Claim
Count Four of plaintiff's amended complaint asserts a claim pursuant to 42
U.S.C. § 1985(3). "Section 1985(3) permits an action to be brought by one
injured by a conspiracy formed for the purpose of depriving , either directly or
indirectly, any person ... of the equal protection of the laws, or of equal privileges
and immunities under the laws." Farber v. City of Paterson , 440 F.3d 131 , 134
(3d Cir. 2006) (internal quotation marks and citation omitted). Section 1985(3)
claims "can reach private as well as public conspiracies that seek to deprive a
class of equal protection of the laws or equal privileges under the laws. " kl at
135 (citing Griffin v. Breckenridge, 403 U.S. 88 , 101 (1971 )).

7

The government also argues that any Section 1983 claim construed as a constitutional tort
pursuant to Bivens v. Six Unknown Federal Narcotics Agents , 403 U.S. 388 (1971) would also
fail. Plaintiff has not sought remedies pursuant to Bivens or otherwise signaled that he would
attempt to proceed with such claims , so the court need not address this argument other than in
passing. The scope of Bivens is narrow. See Egbert v. Boule , 596 U.S. 482 , 490-91
(2022)(detailing three types of cases for which the remedy is available) . Expanding Bivens
remedies is a disfavored judicial activity. Ziglar v. Abbasi , 582 U.S. 120, 135 (2017) (citation
omitted). More than forty years ago , the United States Supreme Court rejected the expansion
of Bivens remedies to First Amendment speech claims involving federal employment. Bush v.
Lucas , 462 U.S. 367 (1983) .

20

Defendants raise two arguments against plaintiff's Section 1985(3) claim :
1) Congress has not waived sovereign immunity; and 2) the law prevents plaintiff
from invoking Section 1985(3) to redress violations of Title VII. The first
argument challenges the court's subject matter jurisdiction and the second
argues that plaintiff has failed to state a claim . Each of these arguments goes
unrebutted by plaintiff.
As for the merits of the government's jurisdiction argument, "[w]ithout a
waiver of sovereign immunity, a court is without subject matter jurisdiction over
claims against federal agencies or officials in their official capacities. " Treasurer
of New Jersey v. U.S. Dep't of Treasury , 684 F.3d 382 , 395 (3d Cir. 2012); see
also Biase v. Kaplan , 852 F. Supp. 268 , 280 (D .N.J. 1994)(summarizing
sovereign immunity jurisprudence and concluding that a Section 1985(3) claim
cannot be brought against a federal agency). Plaintiff's Section 1985(3) is thus
subject to dismissal to the extent that it is raised against the United States of
America , OHS , TSA, and federal officials acting in their official capacities.
Nonetheless, "[i]f the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits." Farnan , 371 U.S. at 182. In considering whether
plaintiff should be given a chance to amend , it is possible that plaintiff may make
a Section 1985(3) claim under the facts presented in the amended complaint, just
21

not against the defendants as named. "A significant consensus" of Courts of
Appeals, including the Third Circuit, has recognized that Section 1985(3) claims
can be brought against federal actors. Davis v. Samuels, 962 F.3d 105, 114-15
(3d Cir. 2020). Thus , there is precedent to support Section 1985(3) being used
to "redress conspiracies to violate constitutional rights involving those acting
under color of federal law." kl at 115. Upon review of plaintiff's amended
complaint, it appears that plaintiff can perhaps state a claim against individuals
within FAMS for conspiracy to deprive him of his constitutional rights with
additional allegations.
Plaintiff's claims against these individuals may ultimately be futile . See
Ziglar v. Abbasi, 582 U.S. 120, 155 (2017)(determining that federal officials were
entitled to qualified immunity from Section 1985(3) claims under the facts of that
case) . But the court cannot appreciate the contours and nuances of plaintiff's
potential claim at this time. See Davis, 962 F.3d 114 (vacating dismissal of a
Section 1985(3) claim asserted against federal defendants from two different
agencies without opining on the merits of the claim); see also Novotny v. Great
Am . Fed . Sav. & Loan Ass'n , 584 F.2d 1235, 1259 (3d Cir. 1978) (holding that an
intracorporate conspiracy can exist among officers and employees of the same
corporation), vacated on other grounds, 442 U.S. 366 (1979); cf. Robison v.
Canterbury Viii., Inc. , 848 F.2d 424 , 431 (3d Cir. 1988)(holding that a plaintiff
22

may not maintain a Section 1985(3) claim alleging a conspiracy between a
corporation and one of its officers acting in an official capacity)(citations omitted).
The court will thus permit plaintiff to amend his Section 1985(3) claim in a
second amended complaint. 8 If plaintiff fails to file a second amended complaint
withi.n twenty-one (21) days, this claim will be dismissed with prejudice.
d. State Law Claims

Finally, the government moves to dismiss plaintiff's state law tort claims for
intentional infliction of emotional distress ("IIED") and negligent infliction of
emotional distress ("NIED"), arguing that plaintiff failed to exhaust his
administrative remedies pursuant to the Federal Tort Claims Act, ("FTCA"). "The
FTCA offers a limited waiver of the federal government's sovereign immunity
from civil liability for negligent acts of government employees acting within the
scope of their employment. " Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir.
2018)(citing Berkovitz v. United States, 486 U.S. 531 , 536 (1988); 28 U.S.C. §§
2671-2680). The FTCA requires claimants to exhaust administrative remedies

8

The government argues that the Section 1985(3) claim is invoked improperly to redress
violations of Title VII. It is well-settled that the deprivation of a right created by Title VII cannot
be the basis for a cause of action under Section 1985(3). Great Am . Fed . Sav. & Loan Ass'n v.
Novotny, 442 U.S. 366 , 378 (1979) . As discussed in this memorandum , however, plaintiff's
Title VII retaliation claim is suspect and subject to dismissal if plaintiff cannot plead facts
plausibly making out that claim in a second amended complaint. Furthermore , the Federal
Rules of Civil Procedure permit alternative claims . FED. R. CIv. P. 8(d)(2) . Accordingly, the
court need not address the government's argument to preclude parallel Title VII and Section
1985(3) claims at this time.

23

before filing suit against the United States. See McNeil v. United States, 508 U.S .
106, 113 (1993).
In arguing noncompliance with the administrative prerequisites of the
FTCA, the government challenges the court's subject matter jurisdiction pursuant
to Rule 12(b)(1 ). "A Rule 12(b)(1) motion may be treated as either a facial or
factual challenge to the court's subject matter jurisdiction ." Gould Elecs. Inc., 220
F.3d at 176. "In reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced therein and attached
thereto , in the light most favorable to the plaintiff," but "[i]n reviewing a factual
attack, the court may consider evidence outside the pleadings." ~ (citations
omitted) .
By submitting a declaration from Sherry Johnson, Chief of the Claims,
Outreach & Debt Branch of TSA regarding the issue of administrative exhaustion ,
(Doc. 19-2), the government proceeds with a factual challenge . But the
government's factual attack is premature. A factual attack to subject matter
jurisdiction can only occur in the proceedings "from the time the answer has been
served until after the trial has been completed ." Mortensen v. First Fed. Sav. &
Loan Ass'n, 549 F.2d 884 , 892 (3d Cir. 1977); see also Const. Party of Pa. v.
Aichele, 757 F.3d 347 , 358 (3d Cir. 2014)(determining that it was error for a
district court to construe a motion to dismiss as a facial attack where the
24

defendants attacked the facts supporting jurisdiction before they answered the
complaint).
The government has not filed an answer to the plaintiff's complaint. Thus ,
the court can thus only consider the motion to dismiss as a facial attack to
subject matter jurisdiction . See Nigro v. Pa. Higher Educ. Assistance Agency,
No. 1:19-CV-02000, 2020 WL 5369980, at *5 (M .D. Pa. Sept. 8, 2020)(Wilson ,
J.)(citing Long v. Se. Pa . Transp . Auth ., 903 F.3d 312 , 320 (3d Cir. 2018); Const.
Party of Pa ., 757 F.3d at 358)).
"In reviewing a facial attack, the court must only consider the allegations of
the complaint and documents referenced therein and attached thereto , in the
light most favorable to the plaintiff. " Const. Party of Pa., 757 F .3d at 358 (internal
quotation marks and citations omitted). The court applies the same standard of
review it would when considering a motion to dismiss pursuant to Rule 12(b )(6).

kl

Accordingly, because it exists outside the pleadings , the court disregards

Johnson 's statement about administrative exhaustion.
Upon review of the amended complaint, however, plaintiff does not aver
whether he presented his emotional distress claims to TSA as the appropriate
federal agency. See 28 U.S.C . § 2675(a). Plaintiff also does not aver whether
he received a denial of such claims in writing or whether TSA failed to make final
disposition of his claims within six (6) months.
25

kl

Thus, the amended complaint

does not indicate that plaintiff exhausted his administrative remedies in
accordance with the FTCA. Consequently , plaintiff has not demonstrated that
the court has jurisdiction over his tort claims against the federal government. See
28 U.S.C. § 1346(b )(1 ). Based on this insufficiency, plaintiff's emotional distress
claims are subject to dismissal.
Nonetheless, plaintiff has requested leave to file a second amended
complaint. Under the circumstances, the court will permit plaintiff to amend his
emotional distress claims in a second amended complaint to cure any
deficiencies with his jurisdictional averments. If plaintiff fails to file a second
amended complaint within twenty-one (21) days, these claims will be dismissed
without prejudice. See New Jersey Physicians, Inc. v. President of U.S. , 653 F.3d
234 , 241 , n 8. (3d Cir. 2011 )(noting that a "dismissal for lack of subject matter
jurisdiction was by definition without prejudice.")(citation omitted).
Conclusion

For the reasons set forth above, defendants' motion to dismiss plaintiff's
amended complaint will be granted. Plaintiff's Title VII disparate treatment claim
(Count Two) and Section 1983 claim (Count Three) will be dismissed with
prejudice. Regarding the other causes of action raised in the amended
complaint, that is, plaintiff's Title VII retaliation claim , Section 1985(3) claim, and
emotional distress claims, plaintiff is granted leave to file a second amended
26

complaint within twenty-one (21) days. If plaintiff fails to file a second amended
complaint, the court will dismiss plaintiff's remaining claims in accordance with
this memorandum and direct the Clerk of Court to close this case. An
appropriate order follows .

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