Frey v. David

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MARK FREY, LAUREN CANNO, J.C-F., a minor

by and through her parents, Mark Frey and Lauren

Canno, and I.C-F., a minor by and through her

parents, Mark Frey and Lauren Canno,

Plaintiffs,

OPINION & ORDER

- against -

No. 18-CV-7088 (CS)

DAVID PEKOSKE, in his official capacity as

Administrator of the Transportation Security

Administration, ALEJANDRO MAYORKAS, in

his official capacity as Secretary of the United

States Department of Homeland Security, and the

UNITED STATES OF AMERICA,

Defendants.

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Appearances:

Michael V. Caruso

Michael V. Caruso, P.C.

Brewster, New York

Counsel for Plaintiffs

Danielle J. Levine

U.S. Attorney’s Office

Southern District of New York

New York, New York

Counsel for Defendants

Seibel, J.

Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Third Amended

Complaint. (Doc. 49.) For the following reasons, Defendants’ motion is GRANTED in part and

DENIED in part.

I. BACKGROUND

For the purposes of this motion, I accept as true the facts, but not the conclusions, set

forth in the Third Amended Complaint. (Doc. 40 (“TAC”).)

Facts

On August 25, 2016, Plaintiffs Mark Frey, Lauren Canno, and their minor daughters J.C-

F. and I.C-F., were scheduled to take a commercial flight from Palm Beach International Airport

to Westchester County Airport after visiting family in Florida. (TAC ¶ 22.) As with any

commercial flight, Plaintiffs were required to enter the airport’s Transportation Security

Administration (“TSA”) security checkpoint before proceeding to the gate to board their plane.

(Id.) Plaintiff Frey alleges that when he entered the whole-body scanner, he triggered alarms

requiring secondary screening. (Id. ¶ 24.) Frey indicated to the Transportation Security Officer

(“TSO”) on duty, later identified as Lito Marrero, that he had metal prosthetics in his neck that

likely caused a positive screening result in the whole-body scanner. (Id. ¶ 26; see id. ¶ 18 n.4.)

Plaintiffs allege next that Frey was subject to a “rough, and violative enhanced pat down

procedure,” (id. ¶ 34), that involved TSO Marrero placing “his hands beneath Mark Frey’s shorts

repeatedly and roughly touching and groping his genitalia with his open hand and fingers,” (id. ¶

30), in full view of his minor daughters, before being taken to a second screening location, (see

id. ¶¶ 30-41.) Frey alleges that after he was taken to a second location, he was “surrounded by

approximately two or three older uniformed male TSOs where other air travelers were also being

held.” (Id. ¶ 45.) The TSOs near Frey then asked a much younger male TSO whether he was

“ready to perform an enhanced pat-down procedure,” to which this younger TSO replied in the

affirmative. (Id. ¶ 46.) This TSO then conducted “a much rougher examination and search of

Mark Frey including running his hands up and down his legs and inner thighs, waistband and

groin area, and repeatedly touching Mark Frey’s genitals roughly,” (id. ¶ 47), again in full view

of Canno and his children, (id. ¶ 49).

The Original, First, and Second Amended Complaints – filed on August 7, December 3,

and December 17, 2018, respectively – made no mention of this second search. Pursuant to my

order of April 17, 2020, entered on consent, Defendants produced limited discovery to identify

the previously unnamed TSOs involved in the initial screening and to determine their positions

within the TSA, as relevant to this motion. (See Doc. 34.) This discovery included CCTV video

of the screening by a TSO who the Government identifies as TSO Marrero. (Doc. 52 Ex. 2; see

Doc. 52.) As explained below, the Court may consider this video in connection with

Defendants’ motion to dismiss for lack of subject matter jurisdiction. It shows that Plaintiff Frey

enters the whole-body scanner at approximately timestamp 00:41 and is waved out by Marrero

and directed to stand on the black and yellow mat in front of the scanner. Marrero gestures

towards the scanner monitor and Frey rifles through the pockets of his shorts. Marrero then

points at the monitor a second time, and Marrero and Plaintiff speak to a female TSO with

blonde hair, and they appear to be together discussing what appears on the scanner monitor. The

Government identifies the blonde TSO as Lead Transportation Security Officer (“LTSO”) Elaine

Blevins, and she is so named in the TAC. (See TAC ¶ 39; Doc. 51 ¶ 18-20; Doc. 52 ¶ 3.) Frey

then lifts his arms to his sides with his feet apart at approximately 01:15. After further

discussion between Marrero and LTSO Blevins, Frey turns around and Marrero begins frisking

the back and sides of his shirt. At 1:35 Plaintiff lifts his shirt above his head, and Marrero begins

frisking his buttocks, legs, and around his shorts, although the view of the TSO’s hands is

repeatedly momentarily obstructed by either the TSO or Frey standing with his back to the

camera. Marrero then examines the front of Frey’s shirt and shorts at approximately 02:07,

again not fully in view of the camera, although at several points Frey and Marrero gesture to

each other and appear to move the waistband of Frey’s shorts. The view is further momentarily

obstructed by one of Frey’s daughters, who stands approximately two feet away and at eye level

with Marrero’s hands. It appears, however, that Marrero uses the back of his hands when near

Frey’s private area and moves them quickly up and down. At approximately 02:27, Frey

becomes visibly upset, and although there is no sound in the video, he appears to be summoning

someone else. His daughter hugs him around the waist before another TSO approaches. The

Government identifies this individual as Supervisory Transportation Security Officer (“STSO”)

Kenneth Couto, and he is so named in the TAC. (See TAC ¶ 40; Doc. 51 ¶¶ 18, 21; Doc. 52 ¶¶

1,3.) Frey then speaks with STSO Couto and Marrero, again gesturing and appearing to be

upset. At 03:50, Plaintiff stretches his arms out again and Marrero again appears to frisk his legs

and around his shorts, although Couto obstructs the camera’s view. Frey’s hands are then

swabbed, and while Marrero goes to the computer, Frey again speaks to Couto. At 04:17, Couto

releases the stanchion barrier and allows the seemingly frustrated Frey through. Frey pats the

second officer’s arm as he is leaving, and after speaking to Canno and his daughters and

collecting his belongings, Frey walks off camera, and the video ends, at approximately 04:38.

Plaintiffs now bring this action for tort damages for battery and negligence, and for

constitutional declaratory relief as a result of “the lingering trauma associated with this incident.”

(TAC ¶ 59.) Specifically, Plaintiffs “seek legal damages and ask this Court to declare

Defendants’ actions, administered through the TSA, and all standard operating procedures, rules,

and regulations allowing unfettered and invasive searches without consent of air travelers within

TSA checkpoints exceed the scope permitted by the Fourth and Fifth Amendments to the United

States Constitution.” (Id. ¶ 4.)

Procedural History

As noted, Plaintiffs filed their original complaint on August 7, 2018. (Doc. 1.)

Defendants filed a pre-motion letter on November 12, 2018 in contemplation of a motion to

dismiss. (Doc. 7.) Plaintiffs did not reply to the pre-motion letter as they had been directed, (see

Doc. 8), but submitted an amended complaint on December 3, 2018, (Doc. 9). The Court held a

pre-motion conference on December 5, 2018, at which I granted Plaintiffs leave to file another

amended complaint. (Minute Entry dated December 5, 2018.) Plaintiffs filed their Second

Amended Complaint on December 17, 2018, (Doc. 12), and, after a delay caused by the 2018-

2019 federal government shutdown, as well as a series of extensions, Defendants filed a motion

to dismiss on June 7, 2019, (Doc. 21). On October 22, 2019, I denied the motion without

prejudice to renewal because the Second Circuit was considering a case presenting an issue

central to the pending motion here – whether TSOs are covered by the “law enforcement

proviso” of the Federal Tort Claims Act (“FTCA”) – and the parties agreed that I should await

that decision. (Doc. 32.) On March 25, 2020, the Second Circuit issued its decision in a

summary order, but it did not address the relevant issue on the merits. See Leytman v. U.S. Dep’t

of Homeland Sec. Transp. Sec. Admin., 804 F. App’x. 78 (2d Cir. 2020) (summary order).

Instead, the panel instructed the district court to conduct further proceedings to determine

whether the officer at issue was a TSA “screener” (or TSO) or a specially designated “law

enforcement officer,” and “address in the first instance how the differing definitions and duties

of TSA screeners and TSA law enforcement officers may affect the resolution of this dispute, if

at all.” Id. at 81.

In accordance with the Leytman decision and at the request of the parties, on April 17,

2020, I ordered the Government to provide limited discovery to identify the names and roles of

the TSOs in the instant case and allowed Plaintiffs the ability to amend their complaint again

after receiving this information. (Doc. 34.)1 Plaintiffs filed their Third Amended Complaint on

May 29, 2020, (Doc. 40), and the instant motion followed.

II. LEGAL STANDARD

Motion to Dismiss for Failure to State a Claim

“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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Twombly, 550 U.S. at 555 (cleaned up). While Federal Rule of Civil Procedure 8

“marks a notable and generous departure from the hypertechnical, code-pleading regime of a

prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a claim upon which relief can be granted, the

court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth,” and then determines whether the remaining well-pleaded

factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.

1 The Government identified the individuals depicted in the CCTV footage as TSA

screeners. (Doc. 51 ¶¶ 18-22.)

Deciding whether a complaint states a plausible claim for relief is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id. “Where

the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to

relief.’” Id. (cleaned up) (quoting Fed. R. Civ. P. 8(a)(2)).

On a motion to dismiss, a court may consider the complaint, documents incorporated in

or attached thereto, documents on which the plaintiff relied in bringing the suit, and matters of

which it is entitled to take judicial notice. See Kalyanaram v. Am. Ass’n of Univ. Professors at

N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014).

Motion to Dismiss for Lack of Subject Matter Jurisdiction

Under Rule 12(b)(1), a district court may properly dismiss an action for lack of subject

matter jurisdiction “if the if the court lacks the statutory or constitutional power to adjudicate it.”

Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir.

2015) (cleaned up). A claim of sovereign immunity is a challenge to a court’s subject matter

jurisdiction, see Peker v. Steglich, No. 06-CV-6910, 2007 WL 683796, at *1 (S.D.N.Y. Mar. 5,

2007), aff’d, 324 F. App’x 38 (2d Cir. 2009) (summary order), as is a challenge to a plaintiff’s

constitutional standing to sue, Am. Tissue Inc. v. Arthur Andersen, LLP, 275 F. Supp. 2d 398,

403 (S.D.N.Y. 2003). “A plaintiff asserting subject matter jurisdiction has the burden of proving

by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113

(2d Cir. 2000). In determining whether subject matter jurisdiction exists, a district court “must

take all facts alleged in the complaint as true and draw all reasonable inferences in favor of

plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing

from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank

Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (cleaned up), aff’d, 561 U.S. 247 (2010). A court may

also “rely on evidence outside the complaint” when deciding a Rule 12(b)(1) motion. Cortlandt

St. Recovery Corp., 790 F.3d at 417.

III. DISCUSSION

Defendants move to dismiss Plaintiffs’ FTCA claims, arguing these claims are precluded

by sovereign immunity and that Plaintiffs have otherwise failed to exhaust their administrative

remedies. Defendants further argue that Plaintiffs’ constitutional claims must be dismissed

because this Court does not have jurisdiction to review the TSA’s standard operating procedures,

rules, or regulations; Plaintiffs lack standing to sue; and they do not assert a plausible Fourth or

Fifth Amendment claim.

Federal Tort Claims Act Claims

1. Sovereign Immunity

Defendants first argue that Plaintiffs’ tort claims for battery are precluded by sovereign

immunity. “It is, of course, ‘axiomatic’ under the principle of sovereign immunity ‘that the

United States may not be sued without its consent and that the existence of consent is a

prerequisite for jurisdiction.’” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004)

(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). Accordingly, in a suit against the

United States, “a waiver of sovereign immunity with respect to the claim asserted is a

prerequisite to subject matter jurisdiction.” Up State Fed. Credit Union v. Walker, 198 F.3d 372,

374 (2d Cir. 1999) (per curiam).

The FTCA functions as an express waiver of sovereign immunity for claims arising out

of certain torts committed by federal employees. Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

217-18 (2008). Namely, the FTCA waives sovereign immunity for “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.” 28 U.S.C. § 1346(b)(1). This remedy is

“exclusive.” 28 U.S.C. § 2679(a). It is sometimes said that because the FTCA “creates a waiver

of sovereign immunity,” it is “strictly construed in favor of the government.” Haskin v. United

States, 569 F. App’x 12, 15 (2d Cir. 2014) (summary order) (cleaned up). But this principle is

“unhelpful in the FTCA context, where unduly generous interpretations of the exceptions run the

risk of defeating the central purpose of the statute, which waives the Government’s immunity

from suit in sweeping language.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 491-92 (2006)

(cleaned up).

The FTCA’s limited waiver of sovereign immunity is subject to several specifically

enumerated exceptions. Relevant here, the waiver does not apply 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,” 28 U.S.C. § 2680(h),

which is commonly known as the “intentional tort exception,” Wilson v. United States, 959 F.2d

12, 14 (2d Cir. 1992) (per curiam).

But Congress in 1974 enacted a statutory carve out to the intentional tort exception. See

Pub. L. No. 93-253, 88 Stat. 50 (1974) (codified at 28 U.S.C. § 2680(h)); Pellegrino v. U.S.

Transp. Sec. Admin., 937 F.3d 164, 194 (3d Cir. 2019) (Krause, J., dissenting) (discussing

legislative history). Commonly known as “the law enforcement proviso,” this exception

reinstates the FTCA’s waiver of sovereign immunity for claims arising out of “assault, battery,

false imprisonment, false arrest, abuse of process, or malicious prosecution” committed by

“investigative or law enforcement officers of the United States Government.” 28 U.S.C.

§ 2680(h). The FTCA defines an “investigative or law enforcement officer” as “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. The central question posed by Defendants’ motion to

dismiss Plaintiffs’ FTCA claims, then, is whether the TSOs who allegedly groped Plaintiff Frey

could plausibly be “investigative or law enforcement officers” within the meaning of the law

enforcement proviso. If TSOs fall within the law enforcement proviso, sovereign immunity has

been waived and the claims may proceed, and if they do not, sovereign immunity bars any

intentional tort claims. While the Second Circuit has not directly ruled on this issue, see

Leytman, 804 F. App’x. at 80-81, both Plaintiffs and Defendants point to authority from other

circuits, as well as other Second Circuit caselaw, to bolster their arguments.

Two circuits have found in precedential opinions that TSOs are within the law

enforcement proviso: Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164 (3d Cir. 2019), a 9-4

en banc decision, and Iverson v. United States, 973 F.3d 843 (8th Cir. 2020), a 2-1 decision.

Corbett v. Transp. Sec. Admin., 568 F. App’x 690 (11th Cir. 2014), a non-precedential per

curiam opinion, went the other way. District courts across the country have weighed in on both

sides of the issue. See, e.g., Webb-Beigel v. United States, No. 18-CV-352, 2019 WL 4750199,

at *4-5 (D. Ariz. Sept. 30, 2019) (agreeing with Pellegrino); Weinraub v. United States, 927 F.

Supp. 2d 258, 263 (E.D.N.C. 2012) (finding TSOs are not law enforcement or investigative

officers). The split within and among courts demonstrates that the issue presents a close call, and

I expect it ultimately will need to be resolved by the Supreme Court or Congress. In the

meantime, I must address the issue, and I come out in line with Pellegrino and Iverson, for the

following reasons.

In applying a statutory provision, courts must first “look to the particular statutory

language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988). Statutory terms should not be construed “in a vacuum,

but with reference to the statutory context, structure, history, and purpose.” Abramski v. United

States, 573 U.S. 169, 179 (2014) (cleaned up). “Interpretation of a word or phrase depends upon

reading the whole statutory text, considering the purpose and context of the statute, and

consulting any precedents or authorities that inform the analysis.” Dolan, 546 U.S. at 486.

An “investigative or law enforcement officer” is explicitly defined within the proviso as

“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.” 28 U.S.C. § 2680(h). Determining

whether the proviso applies, therefore, requires (1) determining whether a TSO can be

considered an “officer of the United States” and (2) examining whether TSOs are “empowered

by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

a. Is a TSO an “officer of the United States”?

The Supreme Court has noted that “when the statute’s language is plain, the sole function

of the courts – at least where the disposition required by the text is not absurd – is to enforce it

according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S.

1, 6 (2000) (cleaned up). The first step of this analysis then, is to determine whether a TSO can

be considered an “officer of the United States” according to the plain meaning of that term.

To determine the plain meaning of a statutory term, it is often helpful to begin by

consulting a dictionary contemporary to the statute, as “[o]rdinarily, a word’s usage accords with

its dictionary definition.” Yates v. United States, 574 U.S. 528, 537 (2015). A dictionary

contemporary with the proviso’s drafting defines “officer” as one who “‘serve[s] in a position of

trust’” or “‘authority,’” especially as “‘provided for by law.’” Pellegrino, 937 F.3d at 170

(alteration in original) (quoting Officer, Webster’s Third New International Dictionary (1971));

see id. (“‘[A]n officer is one holding a position of trust and authority . . . .’”) (alterations in

original) (quoting Officer, Black’s Law Dictionary (4th ed. rev. 1968)). But see Officer,

Webster’s Third New International Dictionary, supra (alternatively defining “officer” as “one

charged with administering and maintaining the law (as a constable, bailiff, sheriff)”). Officers

are those “‘charged’ by the Government ‘with the power and duty of exercising certain functions

. . . to be exercised for the public benefit.’” Pellegrino, 937 F.3d at 170 (alteration in original)

(quoting Officer, Black’s Law Dictionary, supra).

It seems apparent to me that TSOs qualify as “officers” under these definitions.

According to the governing statute, the Aviation and Transportation Security Act of 2001

(“ATSA”), TSOs perform “the screening of all passengers and property,” 49 U.S.C. § 44901(a),

to protect airline passengers and the broader public from terrorism, hijackings, and other public

threats. That gives them trust and authority, and their work is for the benefit of the public.

Of course, while these dictionary definitions can be helpful to understand Congress’s

intent at the time of drafting the statute, they should by no means end the analysis. See Yates,

574 U.S. at 537 (“In law as in life . . . the same words, placed in different contexts, sometimes

mean different things.”); James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme

Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483,

577 (2013) (“[T]he image of dictionaries as an objective source of authority or a pathway to

ordinary meaning is a mirage.”). Defendants argue that in context, the term is more limited than

these dictionary definitions suggest. The Government posits that because the ATSA created the

separate position of “law enforcement officer,” 49 U.S.C. § 114(p)(1), meaning one who carries

a firearm and can make arrests for criminal law violations, id. § 114(p)(2), while designating

TSOs who screen airline passengers as “employee[s],” id. § 44901(a), TSOs do not meet the

definition of “officer[s] of the United States” for purposes of the FTCA. I disagree.

There is no textual indication that Congress meant that only a specialized “law

enforcement officer,” as set forth in the ATSA, would satisfy the broad umbrella term of “any

officer of the United States” under the FTCA. 28 U.S.C. § 2680(h) (emphasis added); see

Pellegrino, 937 F.3d at 172 (noting that “the statutory reference to ‘any officer’ – as opposed to,

say, criminal officer – supports an expansive reading”) (emphasis in original); see also Ali, 552

U.S. at 219 (“Read naturally, the word ‘any’ has an expansive meaning, that is, one or some

indiscriminately of whatever kind.”) (cleaned up). I am unconvinced by Defendants’ argument

that the ATSA classifying TSOs as “employees” necessarily means that that term is mutually

exclusive with “officer[s] of the United States” under the FTCA. Indeed, the FTCA itself

provides an example of how “officers” in some statutory contexts may also be classified as

“employees” in others. See 28 U.S.C. § 2671 (providing that an “‘[e]mployee of the

Government’” includes “officers or employees of any federal agency”). And, of course, one

cannot fairly infer that Congress, in enacting the ATSA, intended to silently narrow what it

meant when it enacted the law enforcement proviso a quarter-century before. See Iverson, 973

F.3d at 849.

For these reasons, I am satisfied that TSOs qualify under first part of the proviso’s

definition of “investigative or law enforcement officer,” because they are “officer[s] of the

United States.”

b. Are TSOs “empowered by law to execute searches, to seize

evidence, or to make arrests for violations of Federal Law”?

Next, I must address the second part of the definition and determine whether TSOs are

“empowered by law to execute searches, to seize evidence, or to make arrests for violations of

Federal law.” Plaintiffs appear to concede that the only item in this list that could conceivably

apply to TSOs is “execute searches.”

Again, I begin with the text itself. Defendants urge that the phrase “for violations of

Federal law” modifies each item in the enumerated list, meaning that to qualify as an

investigative or law enforcement officer under the proviso, TSOs must be “empowered by law to

execute searches . . . for violations of Federal law.” When interpreting a statute that includes “a

list of terms or phrases followed by a limiting clause,” however, that clause “should ordinarily be

read as modifying only the noun or phrase that it immediately follows.” Lockhart v. United

States, 136 S. Ct. 958, 962, (2016) (cleaned up). This is known as the rule of the last antecedent.

Applying that rule here, the phrase “for violations of Federal law” modifies only the last

antecedent, “make arrests,” and not “execute searches,” which appears at the beginning of the

list. Defendants argue that Clark v. Martinez, 543 U.S. 371, 378 (2005), mandates that the

phrase must “appl[y] without differentiation to all three categories,” but that case is easily

distinguishable from this one.2 In Clark, the Court was interpreting the operative phrase of a

provision that was offset by a comma at the end of a sentence that listed three alternatives to

2 Clark addressed 8 U.S.C. § 1231(a)(6), which provides, in relevant part: “An alien

ordered removed who is inadmissible under section 1182 of this title, removable under section

1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the

[Secretary] to be a risk to the community or unlikely to comply with the order of removal, may

be detained beyond the removal period and, if released, shall be subject to the terms of

supervision in paragraph (3).” The Court held that all three categories of aliens “may be

detained beyond the removal period.” Clark, 543 U.S. at 378 (cleaned up).

which that phrase could apply. Here, however, “for violations of Federal law” is a limiting

construction at the end of a list of alternative categories by which one may qualify under the

statute, not an operative phrase. It is not set off by a comma, and the list of alternatives here is

far from a “cohesive preceding clause” that “hangs together as a unified whole.” Facebook, Inc.

v. Duguid, 141 S. Ct. 1163, 1169 (2021) (cleaned up). That the modifier applies only to the

“make arrests” alternative and not the other two is further supported by the fact that each

alternative – “to execute searches, to seize evidence, or to make arrests for violations of Federal

law” – starts with “to.” If Congress intended “for violations of federal law” to apply to all three,

it would not have crafted each as a separate infinitive and applied “for violations of Federal law”

only to the last one.3

Defendants next urge that the canon of noscitur a sociis mandates that I read “searches”

to apply only to criminal searches, which would give “execute searches” a similar connotation to

the other two enumerated categories, “seize evidence” and “make arrests for violations of federal

law.” “The maxim noscitur a sociis, that a word is known by the company it keeps, while not an

inescapable rule, is often wisely applied where a word is capable of many meanings in order to

avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G. D. Searle & Co.,

367 U.S. 303, 307 (1961). Not only are the words at issue here not capable of many meanings,

but noscitur a sociis is “not ‘particularly illuminating’ where there is ‘[a] list of three items, each

quite distinct from the other.’” Iverson, 973 F.3d at 853 (alteration in original) (quoting Graham

Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 288

(2010)). Because the three duties in the proviso are listed in the disjunctive, separated by “or,”

3 Nor does the Government present “a countervailing grammatical mandate” that the rule

of the last antecedent should give way here to the “series-qualifier principle.” Lockhart, 136 S.

Ct. at 965.

the canon of noscitur a sociis usually does not apply, as it is presumed that Congress intended to

give the terms their normal, separate meanings. See In re Gi Nam, 273 F.3d 281, 288 (3d Cir.

2001), as amended (Dec. 6, 2001).

As the Third Circuit described at length in its en banc Pellegrino decision, the powers

described in the proviso are disjunctive, and the proviso applies to federal officers who satisfy

even one category in the enumerated list, 937 F.3d at 174-75, and various circuits across the

country (including the Second Circuit) have found that the proviso applies to the conduct of

federal officers outside the criminal context. For example, some federal officers qualify because

they perform “searches.” Id. at 175 (collecting cases); see, e.g., Bunch v. United States, 880 F.3d

938, 943-44 (7th Cir. 2018) (ATF chemists); Caban v. United States, 671 F.2d 1230, 1234 n.4

(2d Cir. 1982) (immigration agents). Other officers make arrests, and therefore qualify even if

they do not play a traditional law enforcement role. Pellegrino, 937 F.3d at 175 (collecting

cases); see, e.g., Celestine v. United States, 841 F.2d 851, 853 (8th Cir. 1988) (per curiam)

(Veterans’ Administration hospital security guards); Hernandez v. Lattimore, 612 F.2d 61, 64 n.7

(2d Cir. 1979) (Bureau of Prisons officers). Only when officers lack all three of these prescribed

duties do they fall outside the scope of the law enforcement proviso. See, e.g., Wilson, 959 F.2d

at 15 (federal parole officers not subject to proviso); EEOC v. First Nat’l Bank of Jackson, 614

F.2d 1004, 1008 (5th Cir. 1980) (same for Equal Employment Opportunity Commission agent);

Solomon v. United States, 559 F.2d 309, 310 (5th Cir. 1977) (per curiam) (same for security

guard at military exchange). These cases do not distinguish between “criminal” or “non-

criminal” functions, but instead these courts have measured each officer’s statutory duties

against the three duties listed in the proviso. I will do the same here.

Under the ATSA, TSOs are empowered by law to conduct “the screening of all

passengers and property.” 49 U.S.C. § 44901(a). That such screening involves the conduct of

searches is confirmed by the provisions that “a passenger who does not consent to a search under

section 44901(a)” may not fly, id. § 44902(a)(1), and that a carrier will not transport the

“property of a passenger who does not consent to a search of the property,” id. § 44902(a)(2).

Indeed, the Job Analysis Tool for TSOs – essentially a job description – details the duties of

ordinary TSOs such as Marrero as involving “physical interaction with passengers,” including

“pat downs” and “search[es] of property” and “conducting bag searches.” (See Doc. 51-1 at

TSA_00024; Doc. 51-2 at TSA_00033.)

Aside from the statutory authority that authorizes them to do so, TSOs plainly perform

“searches” as understood in ordinary colloquial English. “[T]o ‘search’ is ‘to examine (a person)

thoroughly to check on whatever articles are carried or concealed.’” Pellegrino, 937 F.3d at 172

(quoting Search, Webster’s Third New International Dictionary, supra); see also id. (defining

“search” as “‘an examination or inspection . . . with [a] view to discovery of stolen, contraband,

or illicit property’”) (alterations in original) (quoting Search, Black’s Law Dictionary, supra).

Indeed, if one were to ask any passenger in a U.S. airport to describe the function of the TSA, the

answer would likely involve “searching” bags or people for weapons and contraband. The

TSA’s own website states that its procedures “are intended to prevent prohibited items and other

threats to transportation security from entering the sterile area of the airport and are developed in

response to information on threats to transportation security.” Security Screening, Transp. Sec.

Admin., https://www.tsa.gov/travel/security-screening (last visited April 17, 2021). It is difficult

to say how the TSA could accomplish this goal without “searching” for those prohibited items.

TSOs are specifically empowered to “thoroughly conduct” an exploration “over an

individual’s entire body,” 49 U.S.C. § 44935(f)(1)(B)(v), and the TSA’s website elaborates that

TSOs inspect “sensitive areas such as breasts, groin, and the buttocks” and must use “sufficient

pressure to ensure detection,” Transp. Sec. Admin., supra (click “Pat-Down Screening”). As the

Supreme Court noted in Terry v. Ohio, 392 U.S. 1 (1968), “it is nothing less than sheer torture of

the English language to suggest that a careful exploration of the outer surfaces of a person’s

clothing all over his or her body in an attempt to find weapons is not a ‘search.’” 392 U.S. at 16.

To deny that TSOs perform “searches” within the meaning of the law enforcement proviso is to

ignore Terry’s admonition against side-stepping the term’s obvious and ordinary meaning.

The Supreme Court has also explicitly held that airline security procedures constitute

“searches,” although they are administrative in nature and do not require individualized

suspicion of criminal wrongdoing as do the searches at issue in Terry. In National Treasury

Employees Union v. Von Raab, 489 U.S. 656 (1989), which of course predates the 9/11 attacks

and the creation of the TSA, the Supreme Court described (with approval) “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.” 489 U.S. at 675 n.3 (emphases added). That it is a

search that may permissibly be conducted without probable cause or reasonable suspicion does

not make it any less of search.

Finally, Defendants argue that Congress used the term “execute” to describe searches,

rather than more general language such as “conduct” or “carry out,” and point to contrasting

statutes where Congress described administrative searches of the type carried out by the TSA

using terms such as “screening” or “inspection.” See, e.g., 29 U.S.C. § 657(a)(2) (inspectors

from OSHA may “inspect and investigate”); 21 U.S.C. § 374(a)(1) (FDA inspectors may “enter”

and “inspect”); 42 U.S.C. § 6927(a) (authorizing EPA inspectors “to enter” and “to inspect”).

Defendants essentially argue that because Congress typically uses “execute” in the sense of “to

execute a search warrant,” which is based on probable cause to believe that criminal activity

exists, see, e.g., 18 U.S.C. § 3109 (authorizing breaking and entering where necessary “to

execute a search warrant”), the law enforcement proviso does not apply to administrative

searches such as those conducted by TSOs. Again, I disagree. Congress chose not to include the

terms “warrant” or “search warrant” in § 2680(h) but left it simply at “searches.” For this

reason, both the Third and Seventh Circuits rejected readings of the proviso that would have

limited “searches” to those based on warrants because “section 2680(h) does not require [the

officer] to have had authority to seek and execute search warrants; it speaks only of executing

searches, and many searches do not require warrants.” Bunch, 880 F.3d at 945 (emphasis in

original) (citations omitted); see Pellegrino 937 F.3d at 174 (noting that “this removes the

proviso from the ambit of exclusively criminal searches”). Congress’s mere use of “execute,”

without more, does not create a distinction between criminal searches and administrative

searches such as those conducted by TSOs.4

4 Defendants point to legislative history to suggest that Congress intended only criminal

law enforcement officers to be subject to the proviso. While legislative history is of course

helpful in interpreting an ambiguous statutory provision, the text of the statute here is clear.

“Legislative history . . . is meant to clear up ambiguity, not create it.” Milner v. Department of

Navy, 562 U.S. 562, 574 (2011). That a statute’s language may apply to situations beyond those

its drafters may have intended is not a limiting factor for the language’s applicability. See

Bostock v. Clayton County, 140 S. Ct. 1731, 1749 (2020) (“To be sure, the statute’s application

[here] reaches beyond the principal evil legislators may have intended or expected to address.

But the fact that a statute has been applied in situations not expressly anticipated by Congress

does not demonstrate ambiguity; instead, it simply demonstrates the breadth of a legislative

command.”) (cleaned up).

Accordingly, because TSOs are “officer[s] of the United States” who are “empowered by

law to execute searches,” I find that they fall within the law enforcement proviso, and

Defendants’ motion to dismiss Plaintiffs’ FTCA claims on sovereign immunity grounds is

denied.5

2. Exhaustion of Administrative Remedies

The FTCA requires that prior to filing a lawsuit, a claimant “shall . . . present[] the claim

to the appropriate Federal agency.” 28 U.S.C. § 2675(a). The purpose of this provision is “to

provide a procedure under which the government may investigate, evaluate and consider

settlement of a claim” while conserving judicial resources for those claims that do not settle.

Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983); see McNeil v. United States, 508

U.S. 106, 112 n.8 (1993); Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998). “Failure

to comply with this exhaustion requirement deprives Article III courts of subject matter

jurisdiction over FTCA claims.” Leytman v. United States, 832 F. App’x 720, 722 (2d Cir. 2020)

(summary order).

“[T]he mere act of filing a [claim form] does not necessarily fulfill the presentment

requirement,” and “a Notice of Claim filed pursuant to the FTCA must provide enough

information to permit the agency to conduct an investigation and to estimate the claim’s worth.”

Romulus, 160 F.3d at 132. Although the administrative claim “need not meet formal pleading

requirements,” the claim must “contain information specific enough so that a reasonably

thorough investigation of the incident should have uncovered any pertinent information in the

5 Defendants also argue that Plaintiffs’ negligence claim must be dismissed because it

“arises out of” the alleged battery and is an attempt to evade the intentional tort exception.

Because I find that exception inapplicable on the ground that the allegations fall within the law

enforcement carve-out to that exception, I need not address Defendants’ argument regarding the

negligence claim.

government’s possession.” Lassic v. United States, No. 14-CV-9959, 2015 WL 5472946, at *4

(S.D.N.Y. Sept. 16, 2015) (cleaned up), aff’d, 668 F. App’x 395 (2d Cir. 2016) (summary order);

see MBE Capital Partners LLC v. AVPOL Int’l LLC, No. 17-CV-5992, 2019 WL 568587, at *6

(S.D.N.Y. Feb. 11, 2019). While there is no exact bar, the claimant must certainly provide

“more than conclusory statements which afford the agency involved no reasonable opportunity to

investigate.” Romulus, 160 F.3d at 132.

Defendants argue that Plaintiffs’ notice of claim form is deficient under 28 U.S.C.

§ 2675(a) because the TAC alleges that Plaintiff Frey underwent two pat-downs on August 25,

2016: the first pat-down – visible on the CCTV video footage – shows the TSOs involved and

how it unfolded, whereas an alleged second pat-down – not visible in the video – was “much

rougher” and conducted by another unidentified TSO. (TAC ¶ 47.) In the claim form, Frey

alleges that he “was physically and sexually assaulted when TSO Marrino [sic] administered pat-

down procedures and/or enhanced pat-down(s) resulting in repeated harmful and offensive

touching and groping of Mark Frey’s genitalia using fingers and open palm(s).” (Doc. 50-1.)

Defendants argue, essentially, that this new allegation of a “second search” by an unnamed TSO

makes the notice of claim deficient, and Plaintiffs have therefore not exhausted their

administrative remedies. I disagree.

While Defendants characterize the TAC as containing a “wholly novel set of allegations

regarding a second pat-down,” Plaintiffs’ claim form plainly lays out his allegations of

inappropriate conduct, the date, and the injuries alleged, even if the named TSO is incorrect or

the allegations are incomplete. A complaint that one was inappropriately groped on a certain

date at a certain time at a certain TSA checkpoint “contain[s] information specific enough so that

a reasonably thorough investigation of the incident should have uncovered any pertinent

information in the government’s possession.” Lassic, 2015 WL 5472946, at *4 (cleaned up).

Defendants urge me to hold Plaintiffs to their Second Amended Complaint and ignore the

second-search allegations altogether, because they run afoul of the rule that “where a plaintiff

blatantly changes his statement of the facts in order to respond to the defendant’s motion to

dismiss and directly contradicts the facts set forth in his original complaint, a court is authorized

to accept the facts described in the original complaint as true.” Colliton v. Cravath, Swaine &

Moore LLP, No. 08-CV-400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008) (cleaned up),

aff’d, 356 F. App’x 535 (2d Cir. 2009) (summary order). .

It is well established that an amended complaint ordinarily supersedes the original

and renders it of no legal effect. More recently, district courts in this Circuit have

considered prior inconsistent pleadings relevant, but held that they served only as

controvertible, not conclusive admissions. But some courts have disagreed, holding that

a district court has no obligation to accept as true an amended complaint’s allegations, if

they directly contradict the facts set forth in the original complaint.

Although there may be a rare occasion to disregard the contradictory and

manipulated allegations of an amended pleading, the more usual and benevolent option is

to accept the superseded pleadings but allow the factfinder to consider the earlier

pleadings as admissions in due course. Then a court may distinguish between blatant or

directly contradictory allegations, and allegations that can be described as clarifying but

inconsistent.

Perdomo v. 113-117 Realty, LLC, No. 18-CV-9860, 2019 WL 6998621, at *2-3 (S.D.N.Y. Dec.

20, 2019) (cleaned up).

Here, Plaintiffs’ new allegation of a second off-camera search does not directly contradict

the earlier complaints. It is an additional allegation, but to say that one was searched in location

A and then location B does not directly contradict an earlier allegation that one was searched in

location A. That said, the additional allegation of the second search is, to say the least,

convenient. This incident occurred on August 25, 2016, and Plaintiffs’ notice of claim, filed

only seven months later on March 29, 2017, makes no mention of a second search and refers to

the Marrero search only. The first three complaints, filed in August and December 2018,

likewise mention only the one search. Thereafter, Defendants turned over the video of the search

by Marrero, and I am sure Plaintiffs saw what the Court saw, which is that – while not every

moment of the search is visible – Marrero appears to be acting appropriately and does not appear

to be groping Plaintiff Frey. Only then did Plaintiffs apparently remember that there was

improper groping in another place off camera. Frey suggests that the video jogged his memory,

(Doc. 54 ¶ 50),6 and that may be so; that is the stuff of fact-finding, not a motion to dismiss. If

we get to fact-finding, the notice of claim and prior complaints will be admissible as

controvertible, not conclusive, admissions. For now, I find only that the omission of the second-

search allegation from the notice of claim did not deprive the government of a reasonable

opportunity to investigate.

I note that Plaintiffs claim that both searches were improper. The video does not show

anything improper on Marrero’s part. But I cannot say that the video footage dispositively

shows that what Plaintiffs allege did not occur. There are portions of the video where either the

Marrero or Frey is standing with his back to the camera while the examination is taking place or

where Frey’s daughter obstructs the TSO’s hands from view. I am doubtful that those portions

are long enough to disguise what Plaintiffs allege: “repeated[] and rough[] touching and groping

[of Frey’s] genitalia with [Marrero’s] open hand and fingers,” (TAC ¶ 30), and a continued

administration of a “rough, and violative enhanced pat down procedure causing further harmful and

offensive touching to Mark Frey’s genitals and groin,” (id. ¶ 34). But I cannot rule out, at least at

6 Frey does not say that the video jogged his memory, but rather asserts that “[i]t is

reasonable to expect that my recollection of the facts might sharpen upon reviewing discovery

materials and video footage.” (Doc. 54 ¶ 50.)

this stage, that those portions are long enough to disguise a quick grope. These issues, too, are for a

later stage.

Constitutional Claims

It is well settled that the “shield of sovereign immunity protects not only the United

States but also its agencies and officers when the latter act in their official capacities.” Dotson v.

Griesa, 398 F.3d 156, 177 (2d Cir. 2005). Because “the United States has not waived its

sovereign immunity with respect to claims that its employees have committed constitutional

torts,” Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994), I dismiss Plaintiffs’

constitutional claims to the extent they seek damages for constitutional violations against the

individual official capacity defendants.

The heart of Plaintiffs’ constitutional claims is that they seek a declaratory judgment that

the TSA’s Screening Checkpoint Standard Operating Procedures (“SOPs”), under which they

allege Frey was subjected to enhanced pat-downs where he was inappropriately groped, violate

the Fourth and Fifth Amendments.

Both parties devote a substantial portion of their briefs to the issue of whether the Court

has jurisdiction to issue a declaratory judgment on the constitutionality of the SOPs in the first

place, and while I think Defendants have the better of the argument, I do not need to rule on this

jurisdictional issue for a number of reasons. First, the TAC does not contain sufficient facts to

plausibly show that the challenged actions were the result of an unconstitutional policy. Second,

even if the TAC did contain sufficient facts, Plaintiffs lack standing to bring these claims.

Plaintiffs mention or allude to the SOPs and other TSA regulations only a handful of

times in the TAC. First, Plaintiffs allege that “[o]n or about March 2, 2017, TSA allegedly

promulgated and implemented policies, rules, and [SOPs] allowing the use of enhanced security

screening as described, in part, above. These SOPs are not publicly available.” (TAC ¶ 62.)

Plaintiffs also state that “standard operating procedures, rules, and regulations allowing

unfettered and invasive searches without consent of air travelers within TSA checkpoints exceed

the scope permitted by the Fourth and Fifth Amendments.” (Id. ¶ 4.) Finally, the TAC alleges

that the groping of Plaintiff Frey “was conducted pursuant to a policy, practice, or custom that

violates the Fourth Amendment to the United States Constitution.” (Id. ¶ 83; see id. ¶¶ 88-89

(same)). These statements are wholly conclusory, and Plaintiffs allege no facts plausibly

showing that Frey was subjected to an unconstitutional policy or practice. The TAC does allege

that “male TSOs nearby Mark Frey then asked a much younger male TSO whether he was ready

to perform an enhanced pat-down procedure, to which the younger TSO replied, in sum and

substance, ‘yes.’” (Id. ¶ 46.) While this allegation allows the Court to draw an inference that

there is something in TSA policies called an “enhanced pat-down procedure,” this is not enough

for the Court to reasonably infer that that procedure involves being groped in the way that Frey

alleges here. Frey himself acknowledges that he has “traveled on airlines in excess of fifty (50)

years” and this was the first time he had experienced this type of pat-down. (Id. ¶ 57.) Absent

allegations of a pattern of behavior or other facts by which I could reasonably infer that he was

groped pursuant to an official policy, the constitutional claims must be dismissed.

Even if the TAC contained sufficient facts, Plaintiffs would not have standing, because

they have not demonstrated an immediate “injury or threat of injury” that the relief sought would

remedy. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). A past injury, without more,

cannot form the basis for declaratory relief. Id. at 564. The TAC offers, at best, speculative

“allegations of possible future injury” – not a “threatened injury” that is “certainly impending” –

and thus, they “do not satisfy the requirements of Article III.” Whitmore v. Arkansas, 495 U.S.

149, 158 (1990) (cleaned up); see Clapper v. Amnesty, Int’l USA, 568 U.S. 398, 410-11 (2013)

(speculation of future government conduct that “relies on a highly attenuated chain of

possibilities, does not satisfy the requirement that [a] threatened injury must be certainly

impending”); Corbett, 930 F.3d at 1236 (passenger lacked standing to challenge screening

experience that “vast majority” of passengers would not encounter). The TAC lacks any basis to

infer that Plaintiffs would be subject to intrusive pat-downs in the future, and the mere possibility

that they might is insufficient to support a finding of the “actual or imminent injury” that Article

III requires. Lujan, 504 U.S. at 564.

In sum, Plaintiffs offer nothing more than conclusory allegations that they were subject to

an unconstitutional policy, and at the same time their allegations of future injury are too

speculative to establish standing. As such, their claim for declaratory relief is dismissed.7

Leave to Amend

Finally, I consider whether Plaintiffs should be granted leave to amend, which should be

freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “It is within the sound

discretion of the district court to grant or deny leave to amend.” Kim v. Kimm, 884 F.3d 98, 105

(2d Cir. 2018) (cleaned up). “Leave to amend, though liberally granted, may properly be

denied” for “‘repeated failure to cure deficiencies by amendments previously allowed’” or

7 As an aside, the Fifth Amendment claims here border on frivolous. The law is

abundantly clear that “travelers do not have a constitutional right to the most convenient form of

travel, and minor restrictions on travel simply do not amount to the denial of a fundamental

right.” Town of Southold v. Town of East Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (cleaned up);

see Gilmore v. Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006) (“[T]he Constitution does not

guarantee the right to travel by any particular form of transportation.”). If Plaintiffs did not want

to be subjected to security screenings, they could have used a different mode of transportation to

reach their destination. While traveling from Palm Beach to Westchester County, New York via

car or train certainly takes longer than making the trip by air, burdening “one mode of travel, and

not that drastically” amounts to no more than a “minor restriction.” Joseph v. Hyman, 659 F.3d

215, 219 (2d Cir. 2011) (cleaned up).

“‘futility of amendment,’” among other reasons. Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d

Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Plaintiffs have already amended their complaint three times, including after having the

benefit of a pre-motion letter from Defendants outlining the proposed grounds for dismissal,

(Doc. 7), the discussion at the December 5, 2018 pre-motion conference, and the briefing on

Defendants’ original motion. In general, a plaintiff’s failure to fix deficiencies in the previous

pleading, after being provided notice of them, is alone sufficient ground to deny leave to amend.

See Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243, 257-58 (2d Cir.

2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first amended,

he clearly has no right to a second amendment even if the proposed second amended complaint

in fact cures the defects of the first. Simply put, a busy district court need not allow itself to be

imposed upon by the presentation of theories seriatim.”) (cleaned up); In re Eaton Vance Mut.

Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because

“the plaintiffs have had two opportunities to cure the defects in their complaints, including a

procedure through which the plaintiffs were provided notice of defects in the Consolidated

Amended Complaint by the defendants and given a chance to amend their Consolidated

Amended Complaint,” and “plaintiffs have not submitted a proposed amended complaint that

would cure these pleading defects”), aff’d sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d

110, 118 (2d Cir. 2007) (per curiam) (“Plaintiffs were not entitled to an advisory opinion from

the Court informing them of the deficiencies in the complaint and then an opportunity to cure

those deficiencies.”) (cleaned up).

Further, Plaintiffs have not asked to amend again or suggested they are in possession of

facts that would cure the defects in their constitutional claims. See TechnoMarine SA v.

Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if

plaintiff fails to specify how amendment would cure the pleading deficiencies in the

complaint); Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (district court did not err in

dismissing claim with prejudice in absence of any indication plaintiff could or would provide

additional allegations leading to different result); Horoshko v. Citibank, N.A., 373 F.3d 248, 249-

50 (2d Cir. 2004) (per curiam) (district court did not abuse its discretion by not granting leave to

amend where there was no indication as to what might have been added to make the complaint

viable and plaintiffs did not request leave to amend).

For these reasons, I decline to grant leave to amend sua sponte.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’

constitutional claims and DENIED as to Plaintiffs’ FTCA claims.’ The Clerk of Court is

respectfully directed to terminate the pending motion. (Doc. 49.) The parties shall attend a case

management conference on June 8, 2021 at 2:30 p.m.

SO ORDERED.

Dated: April 21, 2021

White Plains, New York

CATHY fy US.D.J.

8 As a matter of housekeeping, Plaintiffs bring this case against the TSA Administrator

and Secretary of Homeland Security in their official capacities. The only proper defendant under

the FTCA is the United States. 28 U.S.C. § 2679(a), (b)(1); see Spinale v. U.S. Dep’t of Agric.,

621 F. Supp. 2d 112, 117 (S.D.N.Y.) ¢[T]he only proper defendant in an FTCA action is the

United States, and not a federal agency or individual employees of a federal agency ....”), aff'd,

356 F. App’x 465 (2d Cir. 2009) (summary order). Accordingly, I respectfully direct the Clerk

of Court to terminate the official capacity defendants under Fed. R. Civ. P. 21, leaving the

United States of America as the only remaining defendant.

28