Smeltz v. Mayorkas

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRAVIS SMELTZ, : No. 3:23cv636

Plaintiff :

: (Judge Munley)

V. :

ALEJANDRO N. MAYORKAS, :

SECRETARY, DEPARTMENT OF :

HOMELAND SECURITY; and :

SECRETARY OF THE :

TRANSPORTATION SECURITY :

ADMINISTRATION, :

Defendants :

MEMORANDUM

This is an employment discrimination and civil rights action filed by Plaintiff

Travis Smeltz against the Secretary of the United States Department Homeland

Security (“DHS”) and the Secretary of the Transportation Security Administration’

(‘TSA’). Before the court is a motion to dismiss filed by the defendants for lack

of subject matter jurisdiction and for failure to state a claim. (Doc. 35). Also

before the court is a request by the plaintiff to file a second amended complaint,

1 In an action filed pursuant to Title VII of the Civil Rights Act of 1964 (‘Title VII”), the only

proper defendant in a federal employee's Title VIl action is the head of the appropriate agency.

Wadhwa v. Sec'y, Dep't of Veterans Affs., 505 F. App'x 209, 213 (3d Cir. 2012)(citations

omitted). TSA is led by an administrator and a deputy administrator, not a secretary. See TSA

Organizational Chart, https:/Awww.tsa.gov/sites/default/files/tsa_org chart matrix.pdf (last

accessed 09/19/2024). These administrators report to the Secretary of the Department of

Homeland Security, which is presently Alejandro N. Mayorkas. See DHS Organizational Chart,

httos://www.dhs.gov/sites/default/files/2023-11/23_ 1109 mgmt_dhs-public-org-chart-508.pdf

(last accessed 09/19/2024).

as asserted through his brief in opposition to the motion to dismiss. These

matters are ripe for a decision.

Background?

Plaintiff was formerly employed by the defendants as a Federal Air Marshal

for the Federal Air Marshal Service (“FAMS’) at the Philadelphia Field Office.

(Doc. 16, Am. Compl. J] 6-7, 14, 16). During his tenure, plaintiff served as a

delegate for the Air Marshal Association (“AMA”), which is a “recognized member

organization” that “seeks to improve the working conditions and pay status of its

membership[,]” i.e., a labor organization. (Id. at J 12).

In June and October 2019, in his role as AMA representative for the

Philadelphia Field Office, plaintiff coordinated communications between AMA

members who had Equal Employment Opportunity (“EEO”) complaints against

field office management and particular Assistant Supervisory Air Marshalls in

Charge (“ASACs’). (Id. ] 16). Per plaintiff, he confronted field office

management to resolve AMA member concerns. (Id.)

In November 2019, plaintiff raised concerns to management about a

measuring system being used in performance evaluations provided to the

2 These background facts derive from plaintiff's amended complaint. When considering the

defendants’ motion as filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the court

accepts all factual allegations in the plaintiff's amended complaint as true. Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)(citations omitted). The court makes no

determination, however, as to the ultimate veracity of these assertions.

director of FAMS. (Id. at I] 17-18). The measuring system at issue had been

implemented by ASAC Clay Robbins (“ASAC Robbins”). (Id.) Plaintiff's concerns

about the measurement system included: 1) improper reference to and incorrect

calculation of total flight days for employee yearly evaluations, 2) penalties for

using approved leave (including medical leave) during employee rating periods;

and 3) and issues with other subjective criteria being introduced into the

evaluation process. (Id.)

In July 2020, plaintiff made a “wide-spanning retaliatory harassment

complaint” against ASAC Robbins. (Id. J 18). Plaintiff alleged in his harassment

complaint that ASAC Robbins had unlawfully directed plaintiff's removal from an

international mission roster due to plaintiff's medical leave status. (Id.) Plaintiff

also alleged that ASAC Robbins withheld plaintiffs name from a list of volunteers

for a U.S. Secret Service detail opportunity and directed Jeffrey Kwam, plaintiff's

first-line supervisor, “to make inquiries of plaintiff's role and involvement with

the AMA as part of one of Plaintiff's performance appraisals.” (Id. Jf] 15, 18).

Plaintiff alleges that he made the complaint pursuant to TSA Management

Directive 1100-73.3 (“MD 1100-73.3”). (Id.) That directive expressly prohibits

harassment and retaliation. (Id. J] 19).

TSA performed internal factfinding relative to plaintiff's harassment

complaint against ASAC Robbins. (Id. §] 20). ASAC Robbins was interviewed

twice and provided two written statements during that factfinding. (Id. {J 21).

At some point in 2020, while the factfinding was ongoing, plaintiff applied

for a vacancy on a local Joint Terrorism Task Force (“JTTF”) based out of the

Philadelphia Field Office. (Id. J] 8, 20). Plaintiff interviewed before a panel. □□□□

9). The panel was chaired by ASAC Robbins, the subject of plaintiff's

harassment complaint. (Id. Jf] 9, 18, 20). ASAC Robbins did not recuse himself

from the panel or from plaintiff's interview. (Id. J 37).

Then-acting Supervisory Air Marshal in Charge Robert Duerr (“SAC □□□□□□□

was the “deciding official” for the JTTF position. (Id. 31). Per plaintiff, SAC

Duerr and ASAC Robbins were aware of the harassment claims plaintiff

previously raised against ASAC Robbins. (Id. J] 20-21, 23). ASAC Robbins

allegedly recommended to SAC Duerr that plaintiff not be selected and SAC

Duerr rubber-stamped ASAC Robbins’s recommendations. (id. J] 18, 42).

On January 7, 2021, plaintiff received notice that he did not get selected for

the JTTF position. (Id. 911). The agency investigation of plaintiff's harassment

complaint against ASAC Robbins was not closed until January 26-27, 2021. (Id.

q 22).

Plaintiff asserts that the interview process was conducted in an unfair and

inconsistent manner and that he was evaluated against other interviewees

applying for a different position using different scoring criteria. (Id. If] 27-30).

Plaintiff also avers various discrepancies in the scoring and ranking of

candidates, which he alleges was meant to intentionally obscure proof that

plaintiff was the best candidate for the position. (Id. J] 34). Another panelist

“stated it was ‘unknown’ how the person selected for the position was more

qualified than [p]laintiff.” (Id. J 35).

As a result of his non-selection for the JTTF position, plaintiff filed a

complaint for discrimination with the TSA EEO office in February 2021. (Id. □□ 43).

The EEO division investigated and conducted a series of hearings and

administrative proceedings regarding the EEO complaint. (Id. 44). Plaintiff

subsequently filed a complaint with the Equal Employment Opportunity

Commission and plaintiff ultimately received a notice of the right to sue. (Id.).

Plaintiff also alleges that, as the result of events transpiring during his

employment at the Philadelphia Field Office, he “retired/resigned” on June 30,

2021, following approximately twenty (20) years of service to FAMS.° (Id. J] 47).

3 The amended complaint also raises other instances of harassment. (Doc. 16, Am. Compl.

45-46). It is unclear if these matters were included in the administrative proceedings as part of

the harassment complaint or whether plaintiff makes these allegations in support of a claim for

constructive discharge. (Id. □ 47).

Based on the above facts, plaintiff's amended complaint asserts six (6)

claims. Count One asserts a claim for retaliation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, ef seq. (‘Title VII"). Count Two

alleges disparate treatment in violation of Title VII. Count Three avers that the

defendants violated 42 U.S.C. § 1983 (“Section 1983”) by depriving him of his

rights to free speech and association protected by the First Amendment and his

due process rights protected by the Fourteenth Amendment. Count Four asserts

a claim for civil conspiracy in violation of 42 U.S.C. § 1985 (“Section 1985”).

Counts Five and Six assert claims for intentional infliction of emotional distress

and negligent infliction of emotional distress.

Defendants responded by filing the instant motion to dismiss all claims.

(Doc. 17). In opposing the motion, plaintiff argues that he has stated a viable

claim for retaliation in violation of Title VII. (Doc. 22, PI. Br. in Opp. at 3-5). As for

the remaining claims, plaintiff requests leave to file a second amended complaint

(Id. at 5-6). Defendants oppose and argue that plaintiff's request for amendment

is improperly asserted and factually unsupported. (See Doc. 23, Def. Rep. Br. at

4-6). Having been briefed by the parties, this matter is ripe for disposition.

Jurisdiction

Because this case is brought pursuant to Title VII, Section 1983, and

Section 1985, the court ostensibly has jurisdiction pursuant to 28 U.S.C. § 1331.

(‘The district courts shall have original jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the United States.”). Plaintiff's tort claims are

brought against the federal government. Ostensibly, the court also has

jurisdiction pursuant to 28 U.S.C. § 1346(b)(1). (“the district courts...shall have

exclusive jurisdiction of civil actions on claims against the United States, for

money damages...for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission

occurred.”). As discussed below, jurisdiction is disputed with regard to some of

plaintiff's claims.

Legal Standards

1. Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss

a complaint for lack of subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). A

motion to dismiss filed pursuant to Rule 12(b)(1) thus challenges the power of a

federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d

294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the

burden to “convince the court it has jurisdiction.” Gould Elecs. Inc. v. United

States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified by Simon v. United

States, 341 F.3d 193 (3d Cir. 2003); see also Kehr Packages v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991) (“When subject matter jurisdiction is

challenged under Rule 12(b)(1), the plaintiff must bear the burden of

persuasion.”).

2. Failure to State a Claim

The government also moves to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

The court tests the sufficiency of the complaint’s allegations when considering a

Rule 12(b)(6) motion.

To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. vy. Twombly, 550

U.S. 544, 570 (2007)). A claim has facial plausibility when factual content is pled

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged. Id. (citing Twornbly, 550 U.S. at 570). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

On a motion to dismiss for failure to state a claim, district courts accept all

factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief. See Phillips, 515 F.3d at 233

(citations omitted).

Analysis

As noted above, the defendants move to dismiss all six (6) claims asserted

in the amended complaint. Plaintiff opposes the dismissal of his Title VII

retaliation claim and requests leave to file a second amended complaint

regarding the other claims. The court will address these issues in turn.

1. Title VIl Retaliation Claim

Plaintiff asserts a retaliation claim pursuant to Title VII. Title VII includes a

specific provision applicable to federal employees, including employees of the

Federal Air Marshal Service (“FAMS”), 42 U.S.C. § 2000e—16. See Stone v.

Sec'y United States Dep't of Homeland Sec., 705 F. App’x 76, 78, n. 2 (3d Cir.

2017)(indicating that a district court had jurisdiction to hear a Federal Air

Marshal's retaliation claim pursuant to this statute). Title VII's federal-sector

provision provides that, “[ajll personnel actions affecting employees. . . shall be

made free from any discrimination based on race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-16(a).

Title VII's private-sector provisions explicitly prohibit retaliation by

employers. Komis v. Sec'y of United States Dep't of Lab., 918 F.3d 289, 294 (3d

Cir. 2019)(citing 42 U.S.C. § 2000e-3(a)). As drafted, Titie VII's federal-sector

provision does not. Id. Nonetheless, in order achieve parity between the private

sector and the federal sector in employment discrimination matters, the Third

Circuit Court of Appeals recognizes that federal employees may bring retaliation

claims pursuant to Title VII. See id. at 295.

“Title VI] makes it unlawful for an employer to retaliate against an employee

‘because he has opposed any practice made an unlawful employment practice

by this subchapter ....’” Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir.

2021)(quoting 42 U.S.C. § 2000e-3(a)).* It is also unlawful to retaliate against an

employee “because he has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this subchapter.”

42 U.S.C. § 2000e-3(a).

4 Unlawful employment practices also include the following:

(1) to fail or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employess or applicants for

employment in any way which would deprive or tend to deprive

any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such

individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1)-(2).

10

To prevail on a claim for retaliation under Title VII, a federal employee mus

prove that (1) they engaged in activity protected by Title VII, (2) their employer

took an adverse employment action after or contemporaneous with the protected

activity, and (3) a causal link exists between the adverse action and the protectec

activity. Wadhwa, 505 F. App'x at 213 (citing Moore v. City of Philadelphia, 461

F.3d 331, 340-41 (3d Cir. 2006), as amended (Sept. 13, 2006)); Andreoli v.

Gates, 482 F.3d 641, 649 (3d Cir. 2007).

Proceeding under Rule 12(b)(6), the government argues the plaintiff fails tc

allege that he engaged in protected activity. After careful review of the amended

complaint, the court agrees.

“With respect to ‘protected activity,’ the anti-retaliation provision of Title VII

protects those who participate in certain Title VII proceedings (the ‘participation

clause’) and those who oppose discrimination made unlawful by Title Vil (the

‘opposition clause’).” Moore, 461 F. 3d at 341 (citing Slagle v. Cnty of Clarion,

435 F.3d 262, 266 (3d Cir. 2006)). General complaints about unfair treatment

are insufficient to establish protected activity under Title VII. Curay-Cramer v.

Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)(citing

Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995)).

Plaintiffs amended complaint alleges that, as a delegate for the AMA labor

organization, he opposed a particular measuring system being used in

11

performance evaluations. (Doc. 16, Am. Compl, {| 17). He does not allege,

however, how this measuring system discriminated based upon race, color,

religion, sex, and/or national origin. Plaintiff also avers that he “coordinated

communications between AMA members who had EEO complaints against field

office management and particular ASACs, and confronted field office

management in an effort to resolve member concerns.” (Id. {| 17). He does not

allege, however, that the EEO complaints pursued by other AMA members were

Title VII proceedings, i.e., challenging practices that discriminated against those

AMA members based on race, color, religion, sex, and/or national origin.

Additionally, in considering plaintiff's claim for retaliation based on his own

reports of harassment and discrimination, he does not indicate how he fits into

the categories protected by Title VII. Plaintiff avers that he is male and

Caucasian, but he does not aver that he was discriminated against based on sex

or race. (See id. Instead, he alleges that he made a harassment and

discrimination complaint against ASAC Robbins pursuant to TSA’s own internal

anti-harassment program. (Id. 18). He alleges that TSA Management Directive

1100.73 was violated. (Id.) Quoting that directive, he avers that the prohibited

harassment in his case was “unwelcome conduct...that has the purpose or effect

of...creating an intimidating, offensive or hostile environment as a result of an

individual’s... political affiliation, participation in protected activity, or any other

12

basis protected by law.” (Id.) Political affiliation is not a category protected by

Title VIl. Moreover, as stated above, the complaint does not reference whether

plaintiff engaged in protected activity relative to participating in Title VII

proceedings or opposing practices made unlawful by Title VII.

As explained by the Supreme Court of the United States, “[t]he

antidiscrimination provision” of Title VII “seeks a workplace where individuals are

not discriminated against because of their racial, ethnic, religious, or gender-

based status.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63

(2006 )(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801 (1973))

“The antiretaliation provision seeks to secure that primary objective by preventinc

an employer from interfering (through retaliation) with an employee's efforts to

secure or advance enforcement of the Act's basic guarantees.” Id. In other

words, to avail themselves of Title VIl’s anti-retaliation provision, employees must

demonstrate that they made efforts to secure or advance enforcement of

provisions guaranteeing that workers will not be harassed or discriminated

against in the workplace based on their racial, ethnic, religious, or gender-based

status. See Moore, 461 F.3d at 341 (“Whether the employee opposes, or

participates in a proceeding against, the employer's activity, the employee must

hold an objectively reasonable belief, in good faith, that the activity they oppose

13

is unlawful under Title VII.”)(citation omitted). Plaintiffs amended complaint does

not draw those connections and thus fails to state a Title VII retaliation claim.

As discussed in more detail below, however, plaintiff has requested leave

to file a second amended complaint. In civil rights cases, “district courts must

offer amendment—irrespective of whether it is requested—when dismissing a

case for failure to state a claim unless doing so would be inequitable or futile.”

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d

Cir. 2007). As for futility of amendment, in reviewing the amended complaint,

which is not a model of clarity, the court cannot rule out whether plaintiff

participated in Title Vll-related EEO proceedings or opposed discrimination made

unlawful by Title VII. As for the equities, the amended complaint was plaintiff's

first attempt to state a Title VII retaliation claim.° Accordingly, the plaintiff will be

granted leave to file a second amended complaint with additional facts to suppor

his Title VII retaliation claim. If plaintiff fails to file a second amended complaint

within twenty-one (21) days, this claim will be dismissed with prejudice.

2. Leave to Amend the Remaining Claims

Regarding the other claims in the amended complaint, plaintiff's Title VII

discrimination claim and his Section 1983, Section 1985, and state law causes o

5 In Count | of the original complaint, plaintiff asserted claims for violation of the federal sector

provision of the Age Discrimination in Employment Act, 29 U.S.C. § 633a(a). (Doc. 1, Compl.

(sealed)).

14

action, plaintiff seeks leave to file a second amended compiaint. Plaintiff,

however, offers nothing to support his request for amendment. By not attaching

a proposed second amended complaint or referencing additional matters in his

brief in opposition to the motion to dismiss, there are no other alleged facts for

the court to consider. Plaintiff also does not offer whether he will stand on the

causes of action in the amended complaint or pursue his case with different

theories of liability.

Pursuant to the Federal Rules of Civil Procedure, however, courts are

instructed to “freely give leave when justice so requires.” FED. R. Civ. P. 15(a)(2)

Leave to amend should be given absent any “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, [or] futility of amendment[.]’ Foman v. Davis,

371 U.S. 178, 182 (1962).

The government argues that amendment would be futile for the reasons

asserted in its brief supporting the motion to dismiss. (Doc. 23, Def. Reply Br. at

4-6). “In assessing futility [of amendment], the district court applies the same

standard of legal sufficiency as applies under Rule 12(b)(6).” In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)(citation and internal

quotation marks omitted). In a circular way, the court must reach the merits of

15

whether plaintiff states a claim or could state a claim. Nonetheless, by not

countering the motion to dismiss with substantive arguments in opposition (other

than the Title VII retaliation claim) or with a draft second amended complaint, the

government’s arguments about futility are considered in a vacuum.

The court will thus consider defendants’ arguments against the merits or

potential merits of plaintiff's remaining claims, which he pursues pursuant to Title

Vil, Section 1983, Section 1985 and state tort law. Where a claim is subject to

dismissal, the court will then consider whether amendment would be futile.

a. Title VIl Disparate Treatment Claim

Count II of the amended complaint asserts a claim for disparate treatment

in violation of Title VII. The government moves to dismiss for failure to state a

claim. To make a prima facie case of discrimination, a plaintiff must establish

that: 1) he is a member of a protected class; 2) he was qualified for the position

he sought to attain or retain; 3) he suffered adverse employment action; and 4)

the action occurred under circumstances that could give rise to an inference of

intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.

2008)(citations omitted).

Plaintiffs amended complaint avers his sex and race, which are protected

classes. (Doc. 16, 6). But, as discussed above, plaintiff does not connect the

16

allegations of intentional discrimination to his sex or his race.® Rather, the core

of plaintiff's allegations focuses on retaliation by ASAC Robbins for plaintiff's

participation in the AMA, a labor organization, and his efforts on behalf of AMA

members in their EEO proceedings. Accordingly, plaintiff's Title VII disparate

treatment claim is subject to dismissal.

The question remains whether amendment would be futile. Although this ts

an employment discrimination and civil rights case, by not filing a draft second

amended complaint, the court has “nothing upon which to exercise its discretion”

in granting or denying the amendment. Ramsgate Ct. Townhome Ass'n v. W.

Chester Borough, 313 F.3d 157, 161 (3d Cir. 2002)(citing Lake v. Arnold, 232

F.3d 360, 374 (3d Cir. 2000)).

Even so, plaintiff has already offered approximately eight (8) pages of

factual averments to support his claims in the amended complaint. (Doc. 16, Am.

Compl. at 1-9). If the plaintiff had possession of facts, such as that ASAC

Robbins discriminated against the plaintiff because the plaintiff is male and

Caucasian, plaintiff would have made those averments in the first instance or

offered them in a brief in opposition, a motion to amend, or a proposed second

amended complaint. See Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 206

® Count Two includes an averment that he was a member of a protected class as an adult over

the age of 40. (Doc. 16, 58). But age is not a protected class under Title VI! and plaintiff

abandoned his ADEA claim earlier in this litigation.

17

(3d Cir. 2006). Under the circumstances, the court has no reason to believe that

amendment would cure the identified defects in plaintiff's Title VII disparate

treatment claim. Plaintiff's Title VII disparate treatment claim in Count II of the

amended complaint will thus be dismissed with prejudice without leave to amend

b. Section 1983 Claim

As for plaintiffs remaining claims brought pursuant to Section 1983,

Section 1985, and state tort law, the government argues that the court lacks

subject matter jurisdiction, and that plaintiff has failed to state viable claims.

Based on the unorthodox posture of this case where the plaintiff has not offered

opposition to the government’s arguments, but has asked for leave to amend, the

court will take a practical approach. As discussed below, plaintiff's Section 1983

claim can be disposed of without consideration of subject matter jurisdiction.

In this matter, plaintiff specifically avers that his Section 1983 claims are

grounded in the rights secured by the First and Fourteenth Amendments,

specifically freedom of speech and association and his rights to due process.

(Doc. 16, Am. Compl. fff 64, 66-67). The Fourteenth Amendment applies to

actions of the states and not the federal government, so that portion of plaintiff's

Section 1983 claims will be dismissed without additional discussion. See Brown

v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001).

18

As for plaintiff's claim based upon the First Amendment, Section 1983 doe;

not, by its own terms, create substantive rights. Rather, it provides remedies for

deprivations of rights established elsewhere in the Constitution or federal law.

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under

Section 1983, two criteria must be met. First, the conduct complained of must

have been committed by a person acting under color of state law. Sameric Corp.

of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.1998). Second, the

conduct must deprive the plaintiff of rights secured under the Constitution or

federal law. Id.

“Because section 1983 provides a remedy for violations of federal law by

persons acting pursuant to state law, federal agencies and officers are facially

exempt from section 1983 liability inasmuch as in the normal course of events

they act pursuant to federal law.” Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir.

1998)(citations omitted). On the other hand, it is well-established “that federal

officials are subject to section 1983 liability when sued in their official capacity

where they have acted under color of state law, for example in conspiracy with

state officials.” Id. (citations omitted).

This is not a case alleging that federal officials conspired with state actors.

Rather, all of plaintiff's allegations concern the conduct of Federal Air Marshals

and administrators within the FAMS Philadelphia Field Office. All of these facts

19

implicate actions taken under color of federal law by federal actors in FAMS.

Section 1983 liability “will not attach for actions taken under color of federal law.”

Brown, 250 F.3d at 800 (citing Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir.

1971). Consequently, plaintiff's Section 1983 cause of action will be dismissed

without leave to amend.’

c. Section 1985 Claim

Count Four of plaintiffs amended complaint asserts a claim pursuant to 42

U.S.C. § 1985(3). “Section 1985(3) permits an action to be brought by one

injured by a conspiracy formed for the purpose of depriving, either directly or

indirectly, any person ... of the equal protection of the laws, or of equal privileges

and immunities under the laws.” Farber v. City of Paterson, 440 F.3d 131, 134

(3d Cir. 2006) (internal quotation marks and citation omitted). Section 1985(3)

claims “can reach private as well as public conspiracies that seek to deprive a

class of equal protection of the laws or equal privileges under the laws.” Id. at

135 (citing Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)).

? The government also argues that any Section 1983 claim construed as a constitutional tort

pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) would alsc

fail. Plaintiff has not sought rernedies pursuant to Bivens or otherwise signaled that he would

attempt to proceed with such claims, so the court need not address this argument other than i

passing. The scope of Biveris is narrow. See Ecwert v. Boule, 596 U.S. 482, 490-91

(2022)(detailing three types of cases for wnicn tne remedy is available). Expanding Bivens

remedies is a disfavored judicial activity. Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)(citation

omitted). More than forty years ago, the United States Supreme Court rejected the expansion

of Bivens remedies to First Amendment speech claims involving federal employment. Bush v.

Lucas, 462 U.S. 367 (1983).

20

Defendants raise two arguments against plaintiff's Section 1985(3) claim:

1) Congress has not waived sovereign immunity; and 2) the law prevents plaintiff

from invoking Section 1985(3) to redress violations of Title VII. The first

argument challenges the court’s subject matter jurisdiction and the second

argues that plaintiff has failed to state a claim. Each of these arguments goes

unrebutted by plaintiff.

As for the merits of the government’s jurisdiction argument, “[w]ithout a

waiver of sovereign immunity, a court is without subject matter jurisdiction over

claims against federal agencies or officials in their official capacities.” Treasurer

of New Jersey v. U.S. Dep't of Treasury, 684 F.3d 382, 395 (3d Cir. 2012); see

also Biase v. Kaplan, 852 F. Supp. 268, 280 (D.N.J. 1994)(summarizing

sovereign immunity jurisprudence and concluding that a Section 1985(3) claim

cannot be brought against a federal agency). Plaintiffs Section 1985(3) is thus

subject to dismissal to the extent that it is raised against the United States of

America, DHS, TSA, and federal officials acting in their official capacities.

Nonetheless, “[i]f the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity

to test his claim on the merits.” Foman, 371 U.S. at 182. In considering whether

plaintiff should be given a chance to amend, it is possible that plaintiff may make

a Section 1985(3) claim under the facts presented in the amended complaint, jus

21

not against the defendants as named. “A significant consensus” of Courts of

Appeals, including the Third Circuit, has recognized that Section 1985(3) claims

can be brought against federal actors. Davis y. Samuels, 962 F.3d 105, 114-15

(3d Cir. 2020). Thus, there is precedent to support Section 1985(3) being used

to “redress conspiracies to violate constitutional rights involving those acting

under color of federal law.” Id. at 115. Upon review of plaintiff's amended

complaint, it appears that plaintiff can perhaps state a claim against individuals

within FAMS for conspiracy to deprive him of his constitutional rights with

additional allegations.

Plaintiff's claims against these individuals may ultimately be futile. See

Ziglar v. Abbasi, 582 U.S. 120, 155 (2017)(determining that federal officials were

entitled to qualified immunity from Section 1985(3) claims under the facts of that

case). But the court cannot appreciate the contours and nuances of plaintiff's

potential claim at this time. See Davis, 962 F.3d 114 (vacating dismissal of a

Section 1985(3) claim asserted against federal defendants from two different

agencies without opining on the merits of the claim); see also Novotny v. Great

Am. Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1259 (3d Cir. 1978) (holding that an

intracorporate conspiracy can exist among officers and employees of the same

corporation), vacated on other grounds, 442 U.S. 366 (1979); cf. Robison v.

Canterbury Vill, Inc., 848 F.2d 424, 431 (3d Cir. 1988)(holding that a plaintiff

22

may not maintain a Section 1985(3) claim alleging a conspiracy between a

corporation and one of its officers acting in an official capacity)(citations omitted).

The court will thus permit plaintiff to amend his Section 1985(3) claim in a

second amended complaint.® If plaintiff fails to file a second amended complaint

within twenty-one (21) days, this claim will be dismissed with prejudice.

d. State Law Claims

Finally, the government moves to dismiss plaintiff's state law tort claims for

intentional infliction of emotional distress (“IIED”) and negligent infliction of

emotional distress (“NIED”), arguing that plaintiff failed to exhaust his

administrative remedies pursuant to the Federal Tort Claims Act, (“FTCA”). “The

FTCA offers a limited waiver of the federal government's sovereign immunity

from civil liability for negligent acts of government employees acting within the

scope of their employment.” Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir.

2018)(citing Berkovitz v. United States, 486 U.S. 531, 536 (1988); 28 U.S.C. §§

2671-2680). The FTCA requires claimants to exhaust administrative remedies

8 The government argues that the Section 1985(3) claim is invoked improperly to redress

violations of Title VII. It is well-settled that the deprivation of a right created by Title □□□ cannot

be the basis for a cause of action under Section 1985(3). Great Am. Fed. Sav. & Loan Ass'n v.

Novotny, 442 U.S. 366, 378 (1979). As discussed in this memorandum, however, plaintiff's

Title Vil retaliation claim is suspect and subject to dismissal if plaintiff cannot plead facts

plausibly making out that claim in a second amended complaint. Furthermore, the Federal

Rules of Civil Procedure permit alternative claims. FED. R. Civ. P. 8(d)(2). Accordingly, the

court need not address the government’s argument to preclude parallel Title VIl and Section

1985(3) claims at this time.

23

before filing suit against the United States. See McNeil v. United States, 508 U.S

106, 113 (1993).

In arguing noncompliance with the administrative prerequisites of the

FTCA, the government challenges the court’s subject matter jurisdiction pursuan

to Rule 12(b)(1). “A Rule 12(b)(1) motion may be treated as either a facial or

factual challenge to the court's subject matter jurisdiction.” Gould Elecs. Inc., 22

F.3d at 176. “In reviewing a facial attack, the court must only consider the

allegations of the complaint and documents referenced therein and attached

thereto, in the light most favorable to the plaintiff,” but “[i]n reviewing a factual

attack, the court may consider evidence outside the pleadings.” Id. (citations

omitted).

By submitting a declaration from Sherry Johnson, Chief of the Claims,

Outreach & Debt Branch of TSA regarding the issue of administrative exhaustior

(Doc. 19-2), the government proceeds with a factual challenge. But the

government’s factual attack is premature. A factual attack to subject matter

jurisdiction can only occur in the proceedings “from the time the answer has beer

served until after the trial has been completed.” Mortensen v. First Fed. Sav. &

Loan Ass'n, 549 F.2d 884, 892 (3d Cir. 1977); see also Const. Party of Pa. v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014)(determining that it was error for a

district court to construe a motion to dismiss as a facial attack where the

24

defendants attacked the facts supporting jurisdiction before they answered the

complaint).

The government has not filed an answer to the plaintiffs complaint. Thus,

the court can thus only consider the motion to dismiss as a facial attack to

subject matter jurisdiction. See Nigro v. Pa. Higher Educ. Assistance Agency,

No. 1:19-CV-02000, 2020 WL 5369980, at *5 (M.D. Pa. Sept. 8, 2020)(Wilson,

J.)(citing Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 320 (3d Cir. 2018); Const.

Party of Pa., 757 F.3d at 358)).

“In reviewing a facial attack, the court must only consider the allegations of

the complaint and documents referenced therein and attached thereto, in the

light most favorable to the plaintiff.” Const. Party of Pa., 757 F.3d at 358 (internal

quotation marks and citations omitted). The court applies the same standard of

review it would when considering a motion to dismiss pursuant to Rule 12(b)(6).

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

Johnson’s statement about administrative exhaustion.

Upon review of the amended complaint, however, plaintiff does not aver

whether he presented his emotional distress claims to TSA as the appropriate

federal agency. See 28 U.S.C. § 2675(a). Plaintiff also does not aver whether

he received a denial of such claims in writing or whether TSA failed to make final

disposition of his claims within six (6) months. Id. Thus, the amended complaint

25

does not indicate that plaintiff exhausted his administrative remedies in

accordance with the FTCA. Consequently, plaintiff has not demonstrated that

the court has jurisdiction over his tort claims against the federal government. See

28 U.S.C. § 1346(b)(1). Based on this insufficiency, plaintiff's emotional distress

claims are subject to dismissal.

Nonetheless, plaintiff has requested leave to file a second amended

complaint. Under the circumstances, the court will permit plaintiff to amend his

emotional distress claims in a second amended complaint to cure any

deficiencies with his jurisdictional averments. If plaintiff fails to file a second

amended complaint within twenty-one (21) days, these claims will be dismissed

without prejudice. See New Jersey Physicians, Inc. v. President of U.S., 653 F.3

234, 241, n 8. (3d Cir. 2011)(noting that a “dismissal for lack of subject matter

jurisdiction was by definition without prejudice.”)(citation omitted).

Conclusion

For the reasons set forth above, defendants’ motion to dismiss plaintiff's

amended complaint will be granted. Plaintiff's Title VII disparate treatment claim

(Count Two) and Section 1983 claim (Count Three) will be dismissed with

prejudice. Regarding the other causes of action raised in the amended

complaint, that is, plaintiff's Title VII retaliation claim, Section 1985(3) claim, and

emotional distress claims, plaintiff is granted leave to file a second amended

26

complaint within twenty-one (21) days. If plaintiff fails to file a second amended

complaint, the court will dismiss plaintiffs remaining claims in accordance with

this memorandum and direct the Clerk of Court to close this case. An

appropriate order follows.

Date: 5 A ;

JUD ULIA K. MU

United States Distrigt Court

\

27