Jonathan Corbett v. Transportation Security Administration

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14053
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-20863-JAL
JONATHAN CORBETT,
Plaintiff-Appellant,
versus
TRANSPORTATION SECURITY ADMINISTRATION,
UNITED STATES OF AMERICA,
ALEJANDRO CHAMIZO,
BROWARD COUNTY,
BROWARD SHERIFF’S OFFICE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 4, 2014)
Before HULL, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:
Plaintiff-appellant Jonathan Corbett filed a pro se complaint asserting claims
against defendants-appellees: (1) the Transportation Security Administration (the
“TSA”); (2) the United States; (3) a TSA employee, Alejandro Chamizo; (4)
Broward County, Florida; and (5) the Broward County Sheriff’s Office (the
“Sheriff’s Office”). The district court dismissed nineteen of Corbett’s claims and
subsequently granted the defendants summary judgment on the remaining two
claims. Corbett, pro se, appeals the district court’s dismissal and summary
judgment orders. After careful review of the briefs and the record, we affirm.
I. 2011 AIRPORT SCREENING
This case involves the TSA’s airport security screening of Corbett.
A. The Screening of Corbett
On August 27, 2011, Corbett went to the Fort Lauderdale-Hollywood
International Airport (the “airport”) operated by defendant Broward County.
Before boarding commercial flights at U.S. airports, all passengers must submit to
screening of their persons and luggage at a security checkpoint. See 49 U.S.C.
§ 44901.
To board his commercial flight, Corbett proceeded to a security checkpoint
operated by defendant TSA. Corbett had two pieces of carry-on baggage—“an
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average-sized backpack” and “a small plastic bag of books.” 1 Corbett placed his
carry-on bags on the x-ray conveyor belt for screening. Corbett was asked to go
through the full-body scanner, and he declined.
A TSA employee (a “screener”) then informed Corbett that he would instead
be screened through the use of a manual “pat-down.” The TSA screener explained
how the pat-down worked. The screener would run the back of his hand along
Corbett’s buttocks. The screener would place one hand on Corbett’s inner-thigh,
the other hand on Corbett’s hip, and slide the hand on the inner-thigh up until
meeting resistance.
Corbett refused to permit the TSA screener to conduct the standard pat-down
and further stated the TSA screener could “not touch his genitals or buttocks”
during the pat-down. The TSA screener told Corbett that his refusal to consent to
the standard pat-down screening was “a problem” and summoned a supervisor.
To the supervisor, Corbett reiterated his demand that he not be touched on
his buttocks or genitals, and the supervisor called the non-uniformed TSA
manager, defendant Alejandro Chamizo, who came to the security checkpoint.
Corbett alleged that defendant Chamizo warned Corbett “that if he did not consent
[to having his genitals and buttocks touched], he would be forcibly searched” and
“would be arrested.”
1
Corbett had not checked any luggage at the ticket counter.
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B. The Screening of Corbett’s Carry-on Bags
As Corbett was speaking with the TSA supervisor and defendant Chamizo,
TSA screeners manually screened the two carry-on bags that Corbett had placed on
the x-ray conveyor belt. The screeners did so pursuant to TSA Management
Directive 100.4, which authorizes screening of “all contents of accessible property,
including, but not limited to, containers, compartments, and envelopes” and notes
that screening “may be conducted for the purpose of finding threat items or
identification media, as appropriate.” The TSA screeners removed two items from
the bags and examined them more closely. The two items were: (1) “a small stack
of credit cards, IDs, and other plastic cards”; and (2) a book.
The screener examined the credit and identification cards because TSA
Management Directive 100.4 notes that, once screening at a security checkpoint
begins, a TSA screener “may screen an individual’s accessible property for
identification media” to “re-verify that the individual’s identity has been matched
against government watch lists.” In a sworn declaration, the TSA official who
oversaw screening at the airport noted that “where identification media are found
in a passenger’s carry-on baggage, they are inspected to ensure that the passenger
does not use a different name than the name that was submitted for vetting . . . . A
passenger with identification media in more than one name may be attempting to
circumvent the . . . watch-list matching program.”
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Corbett “verbally objected to the screener’s review of his credit cards,” and
the TSA screener informed Corbett that he “was just making sure the names
matched,” as required by the TSA Management Directive.
Corbett also complained that the TSA screener “began to look through the
pages of” one of Corbett’s books. The TSA security director stated that inspection
of a book’s pages is necessary because “books may be used to conceal prohibited
or other potentially dangerous items.” Corbett verbally objected to the review of
his book, and the TSA screener told him that the screening of the book was
permissible.
In his complaint, Corbett did not allege that defendant Chamizo: (1)
personally participated in the inspections of Corbett’s carry-on bags or the items
therein; or (2) gave any verbal instructions to the screeners on how to conduct their
inspections of Corbett’s bags. Rather, Corbett’s only allegation linking Chamizo
to the screening of Corbett’s bags and items therein was the following:
“CHAMIZO was the ‘officer’-in-charge on the scene and approved of the
searches.”
C. The Sheriff’s Background Check of Corbett
During these events, a TSA manager summoned an officer from the
defendant Sheriff’s Office. The manager did so pursuant to the TSA’s standard
operating procedures, which provide that “if the screening of a passenger or his or
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her property cannot be completed, law enforcement must be summoned to resolve
the issue.”
After the Sheriff’s officer arrived, defendant Chamizo gave the officer a
copy of Corbett’s driver’s license. 2 Chamizo gave the driver’s license copy to the
officer because “TSA screening procedures require that law enforcement personnel
be notified when a passenger declines to complete screening, and that certain
checks be run using the passenger’s information.” Accordingly, the Sheriff’s
officer conducted a check for outstanding warrants and other background
information. The check of Corbett’s background “came back clear.” Corbett
alleged that the entire checkpoint process lasted approximately an hour from start
to finish.
Because Corbett would not consent to the manual pat-down to complete the
screening, Corbett was denied access to his gate and the Sheriff’s officer escorted
Corbett out of the security checkpoint area. The TSA security director noted in a
sworn declaration that a pat-down is “the last available form of screening” and an
individual who refuses to consent to a pat-down, like Corbett, “cannot be cleared”
to proceed to his gate.
Corbett took his two carry-on bags and driver’s license, and does not allege
that the TSA employees withheld any items.
2
At some point, Corbett’s driver’s license and boarding pass were copied.
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As discussed later, Corbett claimed that these acts violated his federal and
state rights: (1) the detention of Corbett for approximately an hour while the TSA
employees attempted to conduct a pat-down screening, screened his two carry-on
bags, called a law enforcement officer, and awaited the results of a background
check; (2) the inspection of his carry-on bags and two items therein; and (3) the
copying of Corbett’s driver’s license and boarding pass, and the transfer of the
driver’s license copy to the Sheriff’s officer.
II. CORBETT’S RECORD REQUESTS
A. Corbett’s FOIA Request
In September 2011, Corbett sent to the TSA a request for documents and
videos of the August 27, 2011 airport screening, under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552.
Corbett requested these documents: (1) “[a]ny notes taken by any employees
of [the TSA] relating to [the 2011 airport] incident”; (2) “[a]ny incident reports, e-
mails, or other documentation created as a result of this incident”; (3) “[a]ny
correspondence between [the TSA] and any other party as a result of this incident”;
and (4) “[a]ny audio, video, and[/]or photographic records taken on August 27th
between 3:45 AM and 5:15 AM at or around the TSA checkpoint in front of the . . .
‘E gates’ (US Airways).” Corbett specified: “[t]his must include all camera views
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that contain any part of this checkpoint, as well as the camera that monitors the
sterile area’s exit (adjacent to the checkpoint).”
The TSA referred Corbett’s FOIA request to airport officials who
“performed a manual search for records.” The TSA produced 29 pages of
documents, including: (1) incident reports; (2) statements from TSA employees
participating in or witnessing the screening; (3) a copy of Corbett’s boarding pass;
(4) handwritten notes; and (5) a TSA inspector’s statement.
The TSA also sent Corbett videos of the screening, but, before doing so,
obscured the faces of the TSA employees, the Sheriff’s officer, and other
passengers in the airport security checkpoint area. The TSA also redacted the
printed names of TSA employees and the Sheriff’s officer. The TSA made these
redactions pursuant to FOIA Exemption 6, 5 U.S.C. § 552(b)(6), and, as to the
name of the Sheriff’s officer, also pursuant to Exemption 7(C), id. § 552(b)(7)(C).3
Corbett filed an administrative appeal challenging all redactions. The TSA
denied Corbett’s appeal.4
3
The TSA also redacted material regarding TSA operations considered by the TSA to be
“sensitive security information” and exempted under FOIA Exemption 3. 5 U.S.C. 552(b)(3). In
this appeal, Corbett does not challenge these redactions.
4
Corbett also requested records from defendants Broward County and the Sheriff’s Office
under the Florida Public Records Act, Fla. Stat. § 119.07. In the district court, Corbett
challenged the adequacy of defendant Broward County’s response to his Public Records Act
request, and the district court rejected that claim. Corbett’s opening brief on appeal does not
challenge the district court’s ruling, and therefore Corbett abandons the issue on appeal. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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III. PROCEDURAL HISTORY
A. Corbett’s Amended Complaint
In March 2012, plaintiff Corbett filed a pro se complaint against defendants
the TSA, the United States, Chamizo, and Broward County. In May 2012, Corbett
filed an amended complaint (the “amended complaint”), adding the Sheriff’s
Office as a defendant.
Corbett’s amended complaint asserted twenty-one claims, including, inter
alia: (1) claims against TSA manager Chamizo, in his individual capacity, under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
91 S. Ct. 1999 (1971), alleging that Chamizo violated Corbett’s Fourth
Amendment rights; (2) tort claims against the United States, based on its waiver of
sovereign immunity in the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b); (3) claims against the TSA under the Privacy Act, 5 U.S.C. § 552a; and
(4) a claim against the TSA for unredacted records under FOIA.
B. Rule 12(b) Dismissal and Summary Judgment
Each of the defendants filed a motion to dismiss pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b). On November 16,
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2012, the district court granted the motions as to all claims other than the claims
for unredacted records under FOIA. 5
After discovery on the FOIA claim, the TSA filed a motion for summary
judgment. The district court granted the motion in favor of the TSA, thus
disposing of all of Corbett’s claims.
Corbett timely filed a notice of appeal. We construe Corbett’s pro se notice
of appeal as covering the district court’s orders on the motions to dismiss and the
summary judgment motion.
IV. THE BIVENS CLAIMS AGAINST DEFENDANT CHAMIZO
We first address the Rule 12(b)(6) dismissal of Corbett’s Bivens claims
against defendant Chamizo based on the 2011 airport screening. 6
A. Qualified Immunity Principles
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person
5
On December 18, 2012, the district court denied Corbett’s motion to file a second
amended complaint. In this appeal, Corbett has not shown that the district court abused its
discretion in denying this motion. See Lowe’s Home Ctrs., Inc. v. Olin Corp., 313 F.3d 1307,
1314–15 (11th Cir. 2002) (“[A] district court has great discretion when deciding whether to grant
a motion for leave to amend a complaint following the filing of responsive pleadings.”).
6
We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6)
for failure to state a claim, “accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp.
Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).
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would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)
(quotation marks omitted).
Here, undisputedly, defendant Chamizo was engaged in discretionary
functions during the 2011 airport screening. Therefore, we examine: (1) whether
the facts alleged, accepted as true and viewed in the light most favorable to
Corbett, show that Chamizo’s conduct violated one of Corbett’s federal
constitutional rights; and if so, (2) whether that right was “clearly established” at
the time of the 2011 airport screening. See Scott v. Harris, 550 U.S. 372, 377, 127
S. Ct. 1769, 1774 (2007) (quotation marks omitted).
To analyze these questions, we review the law regarding airport screening.
B. Screening at Airport Security Checkpoints
The Fourth Amendment protects individuals “against unreasonable searches
and seizures,” U.S. Const. amend. IV, and a search conducted without a warrant is
“per se unreasonable subject only to a few specifically established and well-
delineated exceptions,” United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989)
(quotation marks and alteration omitted). One exception to the warrant
requirement is for suspicionless searches conducted pursuant to administrative
programs, such as security screenings of airport passengers.
Congress explicitly requires “the screening of all passengers and property . .
. that will be carried aboard a passenger aircraft.” 49 U.S.C. § 44901(a). The
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Supreme Court has instructed that the suspicionless screenings conducted at airport
security checkpoints pursuant to this statute fall under the administrative search
exception to the Fourth Amendment’s warrant requirement. See Chandler v.
Miller, 520 U.S. 305, 323, 117 S. Ct. 1295, 1305 (1997) (“[W]here the risk to
public safety is substantial and real, blanket suspicionless searches calibrated to the
risk may rank as ‘reasonable’—for example, searches now routine at airports . . .
.”); see also Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674–75 &
n.3, 109 S. Ct. 1384, 1395 & n.3 (1989) (providing as an example of a
suspicionless search that may qualify as reasonable “the Federal Government’s
practice of requiring the search of all passengers seeking to board commercial
airliners, as well as the search of their carry-on luggage, without any basis for
suspecting any particular passenger of an untoward motive”).
In short, airport security screenings are generally “permissible administrative
search[es] under the Fourth Amendment, even though [they are] initiated without
individualized suspicion and [are] conducted without a warrant.” See George v.
Rehiel, 738 F.3d 562, 577 (3d Cir. 2013). “[S]creening passengers at an airport is
an ‘administrative search’ because the primary goal is not to determine whether
any passenger has committed a crime but rather to protect the public from a
terrorist attack.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d
1, 10 (D.C. Cir. 2011). “[T]hose presenting themselves at a[n] [airport] security
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checkpoint thereby consent to a search, and may not revoke that consent if the
authorities elect to conduct a search.” United States v. Herzbrun, 723 F.2d 773,
776 (11th Cir. 1984).
With these legal principles in mind, we turn to Corbett’s claims against
defendant Chamizo.
C. The Screening of Corbett’s Bags, Cards, and Book
It is well established in this Circuit that supervisory officials, such as
defendant Chamizo, are “not liable under Bivens for the unconstitutional acts of
their subordinates on the basis of respondeat superior or vicarious liability.”
Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (quotation marks and
alteration omitted). Thus, to state a Bivens claim based on supervisory liability
against defendant Chamizo, Corbett must allege that supervisor Chamizo
“personally participated in the alleged unconstitutional conduct or that there is a
causal connection between the actions of a supervising official and the alleged
constitutional deprivation.” Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir.
2013) (quotation marks omitted).
Corbett, however, did not allege that defendant Chamizo personally opened
any bags, inspected the bags’ contents, or verbally directed the TSA employees to
do any specific conduct. Corbett alleged only that Chamizo “was the ‘officer’-in-
charge on the scene and approved of the searches.” Such “vague and conclusory
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allegations” do not establish a causal connection between a supervisor and
unlawful activity. See Gonzalez, 325 F.3d at 1235.
Alternatively, even if this allegation was arguably sufficient, the search of
Corbett’s bags and contents did not violate the Fourth Amendment. Here, the TSA
screeners were authorized, and indeed required, to inspect Corbett’s carry-on bags
and the items contained therein. See 49 U.S.C. § 44901. Further, by the time the
TSA employees inspected Corbett’s bags, Corbett had refused to allow the TSA
employees to fully screen his person—either through use of a full-body scanner or
the standard pat-down procedure. A reasonable TSA employee, at that point, could
have suspected that Corbett’s refusals resulted from his desire to conceal unlawful
activity. See Herzbrun, 723 F.2d at 777 (stating that, “in deciding the lawfulness
of a[n] [airport security] search, a court should focus on the reasonableness of the
investigating officer’s actions . . . . on the basis of the articulable facts at hand” to
determine whether the officer “had reason to suspect that the defendant was
carrying materials that could endanger the safety of a flight”). Thus, a thorough
screening of Corbett’s bags was reasonable, even beyond the point of determining
whether those belongings contained weapons.
As the TSA security director pointed out, when TSA screeners find
identification cards in a passenger’s carry-on luggage, they must inspect those
cards “to ensure that the passenger does not use a different name than the name
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that was submitted for vetting.” A passenger’s use of multiple names could
indicate that the passenger is trying to circumvent the TSA’s security measures.
We recognize that Corbett’s amended complaint alleged that a TSA screener
looked through the pages of one of Corbett’s books “in a manner that was not to
determine if [weapons, explosives, or other incendiary devices] were somehow
hidden within the book, but rather to inspect the text of the book.” It was not
unreasonable for a TSA screener to closely inspect Corbett’s book, though,
because “thin, flat explosives called ‘sheet explosives’ may be disguised as a
simple piece of paper or cardboard, and may be hidden in just about anything,
including a laptop, book, magazine, deck of cards, or packet of photographs.”
United States v. McCarty, 648 F.3d 820, 825 (9th Cir. 2011). Furthermore, a TSA
screener could have reasonably factored the contents of a book possessed by a
passenger into the totality of the circumstances relevant in determining whether the
passenger presented a security threat. See George, 738 F.3d at 585–86 (noting that
the facts that an individual carried a book critical of American foreign policy in the
Middle East and Arabic flashcards were circumstances which “raised the
possibility that [the individual] might pose a threat to airline security”).
For all of these reasons, Corbett’s allegations about the search of his bags
and the items therein failed to state a Fourth Amendment claim against defendant
Chamizo individually.
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D. Detention of Corbett
We also affirm the dismissal of Corbett’s detention claim against defendant
Chamizo. Corbett consented to a screening of his person by presenting himself at
the security checkpoint. Corbett could not revoke this consent by merely leaving
the checkpoint. See Herzbrun, 723 F.2d at 776 (observing that a rule allowing an
individual to revoke his consent to an airport security screening by leaving the
airport security checkpoint “constitute a one-way street for the benefit of a party
planning airport mischief, since there is no guarantee that if he were allowed to
leave he might not return and be more successful” (quotation marks omitted)).
We recognize that the entire security checkpoint screening lasted
approximately one hour. Yet, accepting the alleged facts as true, Corbett was
primarily to blame for that screening lasting as long as it did. If Corbett had
permitted the TSA screeners to conduct a full pat-down screening, he would have
swiftly proceeded to his gate. Although a seizure may become “unlawful if it is
prolonged beyond the time reasonably required to complete [its lawful] mission,”
see Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005), we cannot
say that the time here, given all the factual circumstances, was unreasonable for the
TSA employees to satisfy themselves that Corbett did not pose a security threat.
V. THE TORT CLAIMS AGAINST THE UNITED STATES
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We turn to Corbett’s tort claims for assault, false arrest, invasion of privacy,
and intentional infliction of emotional distress (“emotional distress”), against the
United States. The district court dismissed these claims under Rule 12(b)(1) as
barred by sovereign immunity, but Corbett contends the FTCA’s limited waiver of
sovereign immunity applies to these claims. 7
A. The FTCA’s Limited Waiver of Sovereign Immunity
Sovereign immunity protects the federal government and its agencies from
civil liability. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996,
1000 (1994). The FTCA in 28 U.S.C. § 1346(b) provides a limited waiver of
sovereign immunity for tort claims. Motta ex rel. A.M. v. United States, 717 F.3d
840, 843 (11th Cir. 2013). That statute confers on federal district courts exclusive
jurisdiction to hear claims against the United States for money damages “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) (emphasis added). 8
7
We review de novo a district court’s dismissal of a claim for lack of subject matter
jurisdiction. Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997).
Absent a waiver of sovereign immunity, a district court lacks subject matter jurisdiction to hear
claims against the United States. Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir.
1996).
8
The statute further provides that the United States is liable only if, under like
circumstances, a private person “would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
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The first problem for Corbett is that this limited waiver of sovereign
immunity in § 1346(b)(1) does not apply to claims based on intentional torts of
federal employees. 28 U.S.C. § 2680(h). Specifically, § 2680(h), also an FTCA
provision, states that the United States does not waive sovereign immunity as to
“[a]ny claim arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” Id. § 2680(h). This part of the FTCA is known
as the “intentional torts exception” to the waiver in § 1346(b)(1).
Importantly, this intentional torts exception in § 2680(h) is “not limited to
the torts specifically named therein, but rather encompasses situations where the
underlying governmental conduct which constitutes an excepted cause of action is
essential to the plaintiff’s claim.” O’Ferrell v. United States, 253 F.3d 1257, 1266
(11th Cir. 2001) (quotation marks omitted).
Two of Corbett’s intentional tort claims—assault and false arrest—are
specifically named in § 2680(h), and thus sovereign immunity is not waived as to
those claims. His other intentional tort claims—invasion of privacy and emotional
distress—are based on the same underlying governmental conduct as Corbett’s
excepted claims for assault and false arrest. For example, the amended complaint
alleged that the TSA screeners invaded Corbett’s privacy by “surround[ing]
CORBETT with uniforms,” “dump[ing] CORBETT’s belongings out on a table,”
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and examining those items. Similarly, Corbett’s amended complaint stated that the
TSA screeners detained him at the airport security checkpoint and subjected him to
“unlawful seizure,” which caused him to experience “serious emotional distress.”
Because Corbett’s invasion of privacy and emotional distress claims are
based on the same underlying conduct as his assault and false arrest claims, they
are likewise subject to the intentional torts exception to the sovereign immunity
waiver. See id. at 1265 (noting that claims of intentional infliction of emotional
distress and intrusion upon privacy were barred when they were “derivative from
plaintiff’s underlying contention that he had been the victim of a false arrest” and
“‘false arrest’ is one of the tort claims barred by 28 U.S.C. § 2680(h)”).
B. The Law Enforcement Officer Proviso
We do not stop there, though, because there is also a statutory exception—
termed the “law enforcement proviso”—to the statutory intentional torts exception
to the sovereign immunity waiver. Immediately after stating that sovereign
immunity is not waived with regard to certain intentional tort claims, § 2680(h)
states: “Provided, That, with regard to acts or omissions of investigative or law
enforcement officers of the United States Government, the provisions of this
chapter and section 1346(b) of this title shall apply to any claim arising . . . out of
assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution.” 28 U.S.C. § 2680(h) (second emphasis added).
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Thus, the sovereign immunity waiver applies to the intentional tort claims
here if the TSA employees involved were “investigative or law enforcement
officers of the United States Government.” Id. Section 2680(h) defines
“investigative or law enforcement officer” to mean “any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make
arrests for violations of Federal law.” Id. (emphases added).
Several courts have concluded that TSA screeners perform consensual, pre-
boarding administrative searches for certain prohibited items (i.e., knives, firearms,
liquids, gels, etc.), not traditional law enforcement functions such as making arrests
and executing searches for violations of federal law, although their reasoning has
varied. See Pellegrino v. U.S. Transp. Sec. Admin., No. 09-5505, 2014 WL
1489939, at *5–8 (E.D. Pa. Apr. 16, 2014) (concluding that the phrase “searches . .
. for violations of Federal law” is ambiguous and determining that an analysis of
the FTCA’s legislative history “strongly suggests that the law enforcement proviso
was enacted as a response to specific egregious behavior during raids conducted by
federal law enforcement officers, and was not intended to be expansive enough to
cover airport security screeners” (omission in original)); Walcott v. United States,
No. 13-CV-3303, 2013 WL 5708044, at *3 (E.D.N.Y. Oct. 18, 2013) (concluding
that “the meaning of ‘empowered by law to execute searches . . . for violations of
Federal law’ under § 2680(h) is narrower than the meaning of a ‘search’ under the
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Fourth Amendment—that is, just because something is an administrative search
under the Fourth Amendment, it doesn’t mean the person doing the search is a law
enforcement officer under § 2680(h)” (omission added)); Weinraub v. United
States, 927 F. Supp. 2d 258, 263 (E.D.N.C. 2012) (observing that TSA screeners’
power “is limited to pre-boarding searches for certain prohibited items,” and
concluding that “it would be unreasonable to interpret ‘to execute searches’ to
include the TSA screener’s performance of narrowly focused, consensual searches
that are administrative in nature, when considered in light of the other traditional
law enforcement functions (i.e., seizure of evidence and arrest) that Congress
chose to define ‘investigative or law enforcement officers’”); Coulter v. U.S. Dep’t
of Homeland Sec., No. 07-4894 (JAG), 2008 WL 4416454, at *7–9 (D.N.J. Sept.
24, 2008) (TSA screeners are not law enforcement officers because, inter alia, the
statute authorizing airport security screening “does not include language
referencing the power of an airport security screener to perform searches”).9
9
See also Hernandez v. United States, No. 12-cv-03165-LTB, 2014 WL 803774, at *6–7
(D. Colo. Feb. 28, 2014) (TSA screeners are not law enforcement officers because the functions
named in the law enforcement proviso are “commonly understood to be traditional law
enforcement functions . . . commonly performed by FBI agents, Bureau of Prison Officers, postal
inspectors, and INS agents, all of which have broad investigative and law enforcement powers,
and . . . fall within the law enforcement proviso,” whereas TSA screeners only screen passengers
for items “which are prohibited on airplanes, but not illegal to possess”); Welch v. Huntleigh
USA Corp., No. 04-663 KI, 2005 WL 1864296, at *5 (D. Or. Aug. 4, 2005) (independent
contractors performing screening for TSA were not law enforcement officers because
“[s]creeners do not have the authority to detain individuals and must call law enforcement
officers to search, seize, and arrest individuals if illegal items are found”).
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We need not resolve this thorny “search” issue. The TSA screeners are not
subject to the law enforcement proviso for a simpler reason—they are not “officers
of the United States Government,” as required by § 2680(h)’s statutory language.
The FTCA draws a distinction between a “federal employee” and an “officer of the
United States.” Specifically, the FTCA waives the government’s sovereign
immunity for tort claims based on the acts or omissions of “any employee of the
Government while acting within the scope of his office or employment.” 28
U.S.C. § 1346(b)(1) (emphasis added). Likewise, § 2680, the statute providing
exceptions to the FTCA’s sovereign immunity waiver, refers to “an act or omission
of an employee of the Government.” Id. § 2680(a) (emphasis added). The law
enforcement proviso in § 2680(h), however, uses the term “officer of the United
States,” rather than “employee,” as is used elsewhere in the FTCA. Id. § 2680(h).
This variation in language is not insignificant and shows that the law enforcement
proviso applies only when the person, whose conduct is at issue, is an “officer of
the United States.”
Further, the federal statutes governing airport security screening differentiate
between federal employees of TSA and law enforcement officers. Significantly,
49 U.S.C. § 44901 states that “screening . . . shall be carried out by a Federal
Government employee.” 49 U.S.C. § 44901(a). Congress, however, explicitly
authorized the TSA Administrator to “designate an employee of the [TSA] or other
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Federal agency to serve as a law enforcement officer.” Id. § 114(p)(1). Only after
being so designated may the TSA employee: (1) “carry a firearm”; (2) “make an
arrest . . . for any offense against the United States”; or (3) “seek and execute
warrants for arrest or seizure of evidence.” Id. § 114(p)(2)(A)–(C). The TSA
Administrator thus must affirmatively act to make a TSA employee an “officer.”
Merely being a TSA employee does not make one an “officer of the United States
Government.”
These provisions show that, within TSA, there are: (1) federal employees,
who conduct airport security screening; and (2) law enforcement officers, who
perform various law enforcement functions. The TSA screeners here are the first
type—federal employees conducting airport security screening. Nothing in the
record in this particular case shows that the TSA employees who screened Corbett
had been specially designated as officers under § 114(p). In fact, in Corbett’s
discussion of the separate FOIA issue in this appeal, Corbett’s brief actually admits
that “the TSA is not a law enforcement agency.” Because the TSA screeners here
are federal employees, the law enforcement proviso regarding “officers of the
United States” is inapplicable.
Therefore, the intentional torts exception does apply, and sovereign
immunity bars Corbett’s intentional tort claims against the United States, which
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included claims for assault, false arrest, invasion of privacy, and emotional
distress. We affirm the district court’s dismissal of those tort claims.
VI. THE PRIVACY ACT CLAIMS AGAINST THE TSA
The district court also did not err in dismissing Corbett’s Privacy Act claims.
The TSA is subject to the Privacy Act’s requirements for federal agency
recordkeeping. See 5 U.S.C. § 552a(e)(1)–(12). The basis for Corbett’s claims is
that TSA’s Chamizo, at the security checkpoint, photocopied Corbett’s driver’s
license and boarding pass without first complying with the Privacy Act’s
requirements.
To prevail on a Privacy Act claim under § 552a(g)(4), an individual must
show, inter alia, that he suffered actual damages. Speaker v. U.S. Dep’t of Health
& Human Servs., 623 F.3d 1371, 1381 (11th Cir. 2010). The Privacy Act does not
allow for recovery of non-pecuniary damages stemming from “loss of reputation,
shame, mortification, injury to the feelings and the like.” Fed. Aviation Admin. v.
Cooper, 566 U.S. ___, 132 S. Ct. 1441, 1449, 1451 (2012) (quotation marks
omitted) (construing § 552a(g)(4)). We need not evaluate whether Corbett stated a
Privacy Act violation because he alleged no pecuniary loss or actual damages as a
result of a Privacy Act violation.
Alternatively, Corbett contends that the district court should have liberally
construed his Privacy Act claims as requests for an injunction ordering the TSA “to
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amend” its records by destroying the copies of Corbett’s driver’s license and
boarding pass. The Privacy Act does provide for injunctive relief in the form of
ordering an agency to: (1) “amend the individual’s record in accordance with his
request or in such other way as the court may direct”; or (2) produce to the
individual “any agency records improperly withheld from him.” 5 U.S.C.
§ 552a(g)(2)–(3). Corbett’s injunction claim, however, fails because an individual
must file with an agency a formal request for an amendment or disclosure of
records before seeking an injunction. See id. § 552a(d)(1), (d)(2). Corbett did not
allege that he made such a request. Thus, he is not entitled to injunctive relief.
VII. THE FOIA CLAIM AGAINST TSA
The next issue is whether the district court properly granted the TSA’s
motion for summary judgment on Corbett’s FOIA claim. 10
A. FOIA Principles
Under FOIA, a government agency must disclose to the public requested
documents unless they fall within one of the nine statutory exemptions. Moye,
O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d
1270, 1276 (11th Cir. 2004); see 5 U.S.C. § 552(a). An agency may redact
portions of material from requested records. See U.S. Dep’t of State v. Ray, 502
10
We review a grant of summary judgment de novo, and the district court’s factual
findings for clear error. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010).
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U.S. 164, 173, 112 S. Ct. 541, 547 (1991). The agency has the burden of showing
that a FOIA exemption supports its withholding a document or making redactions.
Id.
Here, the TSA produced documents and videos, but redacted: (1) the names
of the TSA employees and Sheriff’s officer; and (2) the faces of all individuals in
the videos. The TSA relied on Exemption 6.
B. FOIA Exemption 6
Exemption 6 provides that an agency need not disclose “personnel and
medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To determine
whether Exemption 6 applies, we ask: (1) whether the withheld material was
within “personnel, medical, or similar files”; and, if so, (2) whether “a balancing of
individual privacy interests against the public interest in disclosure reveals that
disclosure of the information would constitute a clearly unwarranted invasion of
personal privacy.” News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173,
1196–97 (11th Cir. 2007) (quotation marks omitted).
FOIA does not provide a definition of the term “similar files.” In U.S.
Department of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957
(1982), the Supreme Court instructed that “the phrase ‘similar files’ was to have a
broad, rather than a narrow, meaning.” Id. at 600, 102 S. Ct. at 1961. Exemption 6
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is not limited to “a narrow class of files containing only a discrete kind of personal
information.” Id. at 602, 102 S. Ct. at 1961. Instead, the exemption applies to
“detailed Government records on an individual which can be identified as applying
to that individual.” Id. (quotation marks omitted). Congress’s “primary purpose in
enacting Exemption 6 was to protect individuals from the injury and
embarrassment that can result from the unnecessary disclosure of personal
information.” Id. at 599, 102 S. Ct. at 1960. In light of this purpose, the Supreme
Court determined that Congress intended that “the balancing of private against
public interests, not the nature of the files in which the information was contained,
should limit the scope of the exemption.” Id.
Further, an agency’s investigative reports constitute “similar files” for
purposes of Exemption 6. See Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest
Serv., 524 F.3d 1021, 1023–24 (9th Cir. 2008) (based on the Supreme Court’s
Washington Post opinion, the court had “little difficulty in concluding that the
names and identifying information contained in [an agency report of an
investigation into a fatal forest fire] me[t] the ‘similar file’ requirement of
Exemption 6”); Wood v. Fed. Bureau of Investigation, 432 F.3d 78, 86 (2d Cir.
2005) (“Exemption 6 applies to any personal information contained in files similar
to personnel or medical files, such as administrative investigative records.”); see
also Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 152–53 (D.C. Cir.
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2006) (an agency’s redactions of names from records of the approval process for a
drug was permissible under Exemption 6 because the statute exempts “not just
files, but also bits of personal information, such as names and addresses, the
release of which would create a palpable threat to privacy” (quotation marks and
alterations omitted)).
Our circuit has applied Exemption 6 in several cases. In Federal Labor
Relations Authority (F.L.R.A.) v. U.S. Department of Defense, 977 F.2d 545 (11th
Cir. 1992), this Court held that the Defense Department’s disclosure of a list of
names and addresses of non-union federal employees within a relevant bargaining
unit would result in an unwarranted invasion of personal privacy and withholding
was allowed under Exemption 6. Id. at 547–50. We noted that “employee
addresses say nothing about a federal agency’s character or function” and therefore
“the public interest side of the balance” carried little weight. Id. at 548. We
rejected as overly tenuous any suggestion that the public had an interest in being
able to contact “federal employees to learn something about the government” when
there was no allegation that the government was operating irregularly. Id. On the
other hand, we recognized strong privacy interests in one’s address, as “an address
. . . . is an indicator of one’s choice of neighborhoods and one’s affluence.” Id. at
548–49. Therefore, we held that the privacy interests clearly outweighed the
public interests in disclosure. Id. at 549–50.
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Next, in Office of the Capital Collateral Counsel v. U.S. Department of
Justice, 331 F.3d 799 (11th Cir. 2003), this Court concluded that, under Exemption
6, the Department of Justice (“DOJ”) could withhold certain documents pertaining
to internal disciplinary proceedings against a former Assistant U.S. Attorney
(“AUSA”). Id. at 801–02, 804. We noted that “[t]he fact that [the AUSA] was a
public official . . . [did] not render her interest in preserving her personal privacy
without weight.” Id. at 803. The AUSA’s privacy interest was significant, as the
documents reflected “her private thoughts and feelings concerning her misconduct
. . . and its effect on her, her family, and her career.” Id. And there was “already
substantial information available to the public about [the AUSA’s] misconduct and
her subsequent sanctions.” Id. at 804. This already-public information satisfied
the public interest in knowing about how the DOJ responded to the misconduct,
and the AUSA’s personal reflections about her misconduct were “not relevant to
the public interest in knowing what the government is doing.” Id.
In News-Press v. U.S. Department of Homeland Security, this Court
permitted the Department of Homeland Security (“DHS”) to redact from
documents the names of individuals who applied for federal disaster relief funds
after four hurricanes struck Florida. 489 F.3d at 1177–79, 1205. However, we
required the DHS to disclose the applicants’ addresses. Id. at 1205. This Court
observed that the three news organizations did not articulate a “terribly strong”
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public interest in disclosure of the names. Id. at 1185, 1205. Further,
withholding the names would “substantially reduce the potential for negative
secondary effects of disclosing the addresses.” Id. (quotation marks and alteration
omitted).
C. Applying Exemption 6 Here
Under the particular facts here, we conclude Exemption 6 permitted the
limited redactions the TSA made. The TSA produced its full investigative files,
including incident reports, witness statements, and videos. The TSA protected
only names in the documents and faces on the videos.
The TSA’s documents and videos describe in full detail every aspect of the
events at issue and the TSA’s response to those events. Disclosure of the names of
the individuals in those documents, or faces of the individuals, would not add to a
reader’s or viewer’s understanding of those documents and images. See F.L.R.A.,
977 F.2d at 548. Additionally, the TSA employees named and depicted are low-
level screeners and security-checkpoint supervisors, and disclosure of their
personal identities would not shed any light on the TSA’s operations. See Wood,
432 F.3d at 88–89; see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland
Sec., 384 F. Supp. 2d 100, 116–17 (D.D.C. 2005) (concluding Exemption 6
allowed the TSA to redact names of its employees in documents because: (1)
“federal employees have an identifiable privacy interest in avoiding disclosures of
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information that could lead to annoyance or harassment”; (2) “the public interest in
learning the names of . . . lower-echelon employees is small”; and (3) there was no
showing how the employees’ names would help the public “understand how the
agency performs its statutory duties”).
Here, the individuals, named or depicted, have privacy interests in avoiding
disclosure of their personal identifying information. See U.S. Dep’t of Defense v.
F.L.R.A., 510 U.S. 487, 500, 114 S. Ct. 1006, 1015 (1994). And, Corbett has not
shown the public has a compelling interest in disclosure of these personal
identities. Corbett has not offered a reasonable, much less a compelling,
explanation for a public interest, or even his own personal need, for the names and
faces in the records here. For example, Corbett does not contend that knowing the
personal identities would assist him in this or other litigation.
In short, based on the record before us, we conclude the individuals’ privacy
interests outweigh any public interest in disclosure of the names and faces here.
We thus affirm the district court’s summary judgment to the TSA on
Corbett’s FOIA claim. 11
VIII. CONCLUSION
In light of the foregoing, we affirm.
11
Because Exemption 6 supports all of the TSA’s redactions, we need not consider
whether Exemption 7(C) provides a separate basis for the redactions of the Sheriff’s officer’s
name. Additionally, we affirm the district court’s dismissal of the civil conspiracy claim, as well
as the claim under the Florida Constitution. We agree with the district court’s cogent analysis of
these claims.
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AFFIRMED.
32