United States District Court, D. Arizona
Honorable Jennifer G. Zipps United States District Judge.
brings this action under the Federal Tort Claims Act (FTCA),
28 U.S.C. § 1346(b)(1), asserting various tort and
constitutional claims against the United States arising out
of her security screening by Transportation Security
Administration (TSA) agents at an airport checkpoint.
Plaintiff alleges that the manner in which she was screened
caused her physical pain and emotional distress and resulted
in a muscle spasm that rendered her unable to walk from the
checkpoint to the gate for her flight. (Doc. 1.) She seeks
$500, 000 in damages.
before the Court is the United States' Motion to Dismiss
the Complaint for lack of subject matter jurisdiction. (Doc.
9.) For the following reasons, the Court will deny the Motion
to Dismiss Plaintiff's intentional tort and negligent
infliction of emotional distress claims, but will grant the
Motion to Dismiss the remaining constitutional claims.
alleges the following. On April 26, 2017, after having
undergone neck surgery a few months prior, Plaintiff arrived
at New York's John F. Kennedy Airport for her flight home
to Tucson. She was 59 years old and was accompanied by her
72-year-old husband, who had recently undergone hip surgery.
Due to Plaintiff's surgery and other injuries to her
rotator cuff, doctors informed her she could not raise her
arms and that she should limit her walking. Upon arriving at
the airport, Plaintiff and her husband each requested a
wheelchair, but there was only one available, so
Plaintiff's husband used it while Plaintiff walked.
Plaintiff and her husband arrived at the security checkpoint,
TSA agents directed Plaintiff's husband through the
standard scanner. Agent 1 directed Plaintiff to the full-body
scanner, however, despite the fact that Plaintiff had
informed Agent 1 that she could not raise her arms above her
head, as required for the full-body scanner. A second agent
nonetheless instructed Plaintiff to raise her arms, ignoring
her earlier request to be exempt. Plaintiff attempted to
follow Agent 2's orders, but experienced pain and was
unable to complete the request. Agent 2 then escorted
Plaintiff to an area near the security conveyor belt, where
she was told a pat-down search would occur. Due to
Plaintiff's increasing pain, she requested her purse,
which had successfully gone through the x-ray machine, so
that she could retrieve her pain medication. Agent 3, now
participating in the pat-down, ignored Plaintiff's
requests and ordered her to remove her boots, which Plaintiff
explained she was unable to do without the assistance of a
chair. Plaintiff once again asked for her purse and for the
agents to assist her in taking off her shoes. Agent 3 refused
to help Plaintiff and threatened to contact another TSA agent
if Plaintiff did not comply. Plaintiff once again requested
her pain medication, as well as her anti-anxiety medication.
that she may miss her flight, Plaintiff attempted to remove
her shoes and almost fell in the process. Her husband told
the agents she was not allowed to perform such actions, and,
shortly thereafter, TSA supervisor John Lamb approached
Plaintiff. She asked Lamb for her medication, but he also
refused. Plaintiff voiced her frustration with Lamb, who
responded by telling Plaintiff that she must “talk
nice” to him. Plaintiff asked Lamb to proceed with the
pat-down search as well as for her medication, but Lamb
refused. Lamb instead called the airport police, who arrived
but refused to arrest Plaintiff.
was then escorted to a private room for a pat-down search.
She requested her husband's presence, but the agents
refused and three female agents “proceeded to conduct a
prolonged pat-down search . . . and treated [Plaintiff] in a
mocking fashion.” During the search, which lasted over
15 minutes, the agents rubbed Plaintiff's hip, despite
knowing of its sensitivity due to a bone graft used for her
neck surgery. As a result of the incident, Plaintiff's
muscles spasmed, and she was unable to walk to her
flight's gate, requiring her to use the wheelchair while
her husband walked.
25, 2017, Plaintiff submitted a claim to TSA. The claim was
denied by letter dated January 24, 2018, and Plaintiff filed
this suit. Plaintiff asserts claims for assault, battery,
false imprisonment, negligent infliction of emotional
distress,  and constitutional violations arising out
of the TSA agents' alleged conduct during Plaintiff's
screening and pat-down search.
Rule of Civil Procedure 12(b)(1) allows litigants to seek the
dismissal of an action from federal court for lack of subject
matter jurisdiction. Tosco Corp. v. Communities for a
Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (per
curiam), overruled on other grounds by Hertz Corp. v.
Friend, 559 U.S. 77 (2010). Federal courts are courts of
limited jurisdiction, and can only hear those cases
authorized by the Constitution and by statute-namely, cases
involving diversity of citizenship, a federal question, or
cases to which the United States is a party. See Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). “It is to be presumed that a cause lies outside
this limited jurisdiction . . . and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
omitted). Accordingly, on a motion to dismiss for lack of
subject- matter jurisdiction, the plaintiff generally must
demonstrate that subject-matter jurisdiction exists to defeat
dismissal. See A-Z Int'l v. Phillips, 323 F.3d
1141, 1145 (9th Cir. 2003) (citing Stock W., Inc. v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.
may bring a facial or factual attack on subject matter
jurisdiction under Rule 12(b)(1). See Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A “facial attack” accepts the truth of the
complaint's allegations, but asserts that they are
“insufficient on their face to invoke federal
jurisdiction.” Id. A “factual
attack” challenges the truth of the complaint's
allegations, and asserts that federal jurisdiction does not
exist in fact by introducing evidence outside the pleadings.
Id. Because the United States does not substantially
challenge the truth of the underlying facts in the complaint
for purposes of this Motion, the United States' Motion to
Dismiss is a facial attack, and the Court will therefore
accept the facts asserted in the Complaint as true.
the doctrine of sovereign immunity, “the United States
may not be sued without its consent.” United States
v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA provides
a limited waiver of the government's sovereign immunity
for certain tort claims “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.” 28 U.S.C. § 1346(b)(1). The
“United States bears the burden of proving the