Jonathan Corbett v. Transportation Security Administration

Case: 13-14053 Date Filed: 06/04/2014 Page: 1 of 32

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-14053
Non-Argument Calendar
________________________

D.C. Docket No. 1:12-cv-20863-JAL

JONATHAN CORBETT,

Plaintiff-Appellant,

versus

TRANSPORTATION SECURITY ADMINISTRATION,
UNITED STATES OF AMERICA,
ALEJANDRO CHAMIZO,
BROWARD COUNTY,
BROWARD SHERIFF’S OFFICE,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(June 4, 2014)

Before HULL, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:

Plaintiff-appellant Jonathan Corbett filed a pro se complaint asserting claims

against defendants-appellees: (1) the Transportation Security Administration (the

“TSA”); (2) the United States; (3) a TSA employee, Alejandro Chamizo; (4)

Broward County, Florida; and (5) the Broward County Sheriff’s Office (the

“Sheriff’s Office”). The district court dismissed nineteen of Corbett’s claims and

subsequently granted the defendants summary judgment on the remaining two

claims. Corbett, pro se, appeals the district court’s dismissal and summary

judgment orders. After careful review of the briefs and the record, we affirm.

I. 2011 AIRPORT SCREENING

This case involves the TSA’s airport security screening of Corbett.

A. The Screening of Corbett

On August 27, 2011, Corbett went to the Fort Lauderdale-Hollywood

International Airport (the “airport”) operated by defendant Broward County.

Before boarding commercial flights at U.S. airports, all passengers must submit to

screening of their persons and luggage at a security checkpoint. See 49 U.S.C.

§ 44901.

To board his commercial flight, Corbett proceeded to a security checkpoint

operated by defendant TSA. Corbett had two pieces of carry-on baggage—“an

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average-sized backpack” and “a small plastic bag of books.” 1 Corbett placed his

carry-on bags on the x-ray conveyor belt for screening. Corbett was asked to go

through the full-body scanner, and he declined.

A TSA employee (a “screener”) then informed Corbett that he would instead

be screened through the use of a manual “pat-down.” The TSA screener explained

how the pat-down worked. The screener would run the back of his hand along

Corbett’s buttocks. The screener would place one hand on Corbett’s inner-thigh,

the other hand on Corbett’s hip, and slide the hand on the inner-thigh up until

meeting resistance.

Corbett refused to permit the TSA screener to conduct the standard pat-down

and further stated the TSA screener could “not touch his genitals or buttocks”

during the pat-down. The TSA screener told Corbett that his refusal to consent to

the standard pat-down screening was “a problem” and summoned a supervisor.

To the supervisor, Corbett reiterated his demand that he not be touched on

his buttocks or genitals, and the supervisor called the non-uniformed TSA

manager, defendant Alejandro Chamizo, who came to the security checkpoint.

Corbett alleged that defendant Chamizo warned Corbett “that if he did not consent

[to having his genitals and buttocks touched], he would be forcibly searched” and

“would be arrested.”

1
Corbett had not checked any luggage at the ticket counter.
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B. The Screening of Corbett’s Carry-on Bags

As Corbett was speaking with the TSA supervisor and defendant Chamizo,

TSA screeners manually screened the two carry-on bags that Corbett had placed on

the x-ray conveyor belt. The screeners did so pursuant to TSA Management

Directive 100.4, which authorizes screening of “all contents of accessible property,

including, but not limited to, containers, compartments, and envelopes” and notes

that screening “may be conducted for the purpose of finding threat items or

identification media, as appropriate.” The TSA screeners removed two items from

the bags and examined them more closely. The two items were: (1) “a small stack

of credit cards, IDs, and other plastic cards”; and (2) a book.

The screener examined the credit and identification cards because TSA

Management Directive 100.4 notes that, once screening at a security checkpoint

begins, a TSA screener “may screen an individual’s accessible property for

identification media” to “re-verify that the individual’s identity has been matched

against government watch lists.” In a sworn declaration, the TSA official who

oversaw screening at the airport noted that “where identification media are found

in a passenger’s carry-on baggage, they are inspected to ensure that the passenger

does not use a different name than the name that was submitted for vetting . . . . A

passenger with identification media in more than one name may be attempting to

circumvent the . . . watch-list matching program.”

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Corbett “verbally objected to the screener’s review of his credit cards,” and

the TSA screener informed Corbett that he “was just making sure the names

matched,” as required by the TSA Management Directive.

Corbett also complained that the TSA screener “began to look through the

pages of” one of Corbett’s books. The TSA security director stated that inspection

of a book’s pages is necessary because “books may be used to conceal prohibited

or other potentially dangerous items.” Corbett verbally objected to the review of

his book, and the TSA screener told him that the screening of the book was

permissible.

In his complaint, Corbett did not allege that defendant Chamizo: (1)

personally participated in the inspections of Corbett’s carry-on bags or the items

therein; or (2) gave any verbal instructions to the screeners on how to conduct their

inspections of Corbett’s bags. Rather, Corbett’s only allegation linking Chamizo

to the screening of Corbett’s bags and items therein was the following:

“CHAMIZO was the ‘officer’-in-charge on the scene and approved of the

searches.”

C. The Sheriff’s Background Check of Corbett

During these events, a TSA manager summoned an officer from the

defendant Sheriff’s Office. The manager did so pursuant to the TSA’s standard

operating procedures, which provide that “if the screening of a passenger or his or

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her property cannot be completed, law enforcement must be summoned to resolve

the issue.”

After the Sheriff’s officer arrived, defendant Chamizo gave the officer a

copy of Corbett’s driver’s license. 2 Chamizo gave the driver’s license copy to the

officer because “TSA screening procedures require that law enforcement personnel

be notified when a passenger declines to complete screening, and that certain

checks be run using the passenger’s information.” Accordingly, the Sheriff’s

officer conducted a check for outstanding warrants and other background

information. The check of Corbett’s background “came back clear.” Corbett

alleged that the entire checkpoint process lasted approximately an hour from start

to finish.

Because Corbett would not consent to the manual pat-down to complete the

screening, Corbett was denied access to his gate and the Sheriff’s officer escorted

Corbett out of the security checkpoint area. The TSA security director noted in a

sworn declaration that a pat-down is “the last available form of screening” and an

individual who refuses to consent to a pat-down, like Corbett, “cannot be cleared”

to proceed to his gate.

Corbett took his two carry-on bags and driver’s license, and does not allege

that the TSA employees withheld any items.

2
At some point, Corbett’s driver’s license and boarding pass were copied.
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As discussed later, Corbett claimed that these acts violated his federal and

state rights: (1) the detention of Corbett for approximately an hour while the TSA

employees attempted to conduct a pat-down screening, screened his two carry-on

bags, called a law enforcement officer, and awaited the results of a background

check; (2) the inspection of his carry-on bags and two items therein; and (3) the

copying of Corbett’s driver’s license and boarding pass, and the transfer of the

driver’s license copy to the Sheriff’s officer.

II. CORBETT’S RECORD REQUESTS

A. Corbett’s FOIA Request

In September 2011, Corbett sent to the TSA a request for documents and

videos of the August 27, 2011 airport screening, under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552.

Corbett requested these documents: (1) “[a]ny notes taken by any employees

of [the TSA] relating to [the 2011 airport] incident”; (2) “[a]ny incident reports, e-

mails, or other documentation created as a result of this incident”; (3) “[a]ny

correspondence between [the TSA] and any other party as a result of this incident”;

and (4) “[a]ny audio, video, and[/]or photographic records taken on August 27th

between 3:45 AM and 5:15 AM at or around the TSA checkpoint in front of the . . .

‘E gates’ (US Airways).” Corbett specified: “[t]his must include all camera views

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that contain any part of this checkpoint, as well as the camera that monitors the

sterile area’s exit (adjacent to the checkpoint).”

The TSA referred Corbett’s FOIA request to airport officials who

“performed a manual search for records.” The TSA produced 29 pages of

documents, including: (1) incident reports; (2) statements from TSA employees

participating in or witnessing the screening; (3) a copy of Corbett’s boarding pass;

(4) handwritten notes; and (5) a TSA inspector’s statement.

The TSA also sent Corbett videos of the screening, but, before doing so,

obscured the faces of the TSA employees, the Sheriff’s officer, and other

passengers in the airport security checkpoint area. The TSA also redacted the

printed names of TSA employees and the Sheriff’s officer. The TSA made these

redactions pursuant to FOIA Exemption 6, 5 U.S.C. § 552(b)(6), and, as to the

name of the Sheriff’s officer, also pursuant to Exemption 7(C), id. § 552(b)(7)(C).3

Corbett filed an administrative appeal challenging all redactions. The TSA

denied Corbett’s appeal.4

3
The TSA also redacted material regarding TSA operations considered by the TSA to be
“sensitive security information” and exempted under FOIA Exemption 3. 5 U.S.C. 552(b)(3). In
this appeal, Corbett does not challenge these redactions.
4
Corbett also requested records from defendants Broward County and the Sheriff’s Office
under the Florida Public Records Act, Fla. Stat. § 119.07. In the district court, Corbett
challenged the adequacy of defendant Broward County’s response to his Public Records Act
request, and the district court rejected that claim. Corbett’s opening brief on appeal does not
challenge the district court’s ruling, and therefore Corbett abandons the issue on appeal. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

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III. PROCEDURAL HISTORY

A. Corbett’s Amended Complaint

In March 2012, plaintiff Corbett filed a pro se complaint against defendants

the TSA, the United States, Chamizo, and Broward County. In May 2012, Corbett

filed an amended complaint (the “amended complaint”), adding the Sheriff’s

Office as a defendant.

Corbett’s amended complaint asserted twenty-one claims, including, inter

alia: (1) claims against TSA manager Chamizo, in his individual capacity, under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,

91 S. Ct. 1999 (1971), alleging that Chamizo violated Corbett’s Fourth

Amendment rights; (2) tort claims against the United States, based on its waiver of

sovereign immunity in the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 1346(b); (3) claims against the TSA under the Privacy Act, 5 U.S.C. § 552a; and

(4) a claim against the TSA for unredacted records under FOIA.

B. Rule 12(b) Dismissal and Summary Judgment

Each of the defendants filed a motion to dismiss pursuant to Rule 12(b) of

the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b). On November 16,

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2012, the district court granted the motions as to all claims other than the claims

for unredacted records under FOIA. 5

After discovery on the FOIA claim, the TSA filed a motion for summary

judgment. The district court granted the motion in favor of the TSA, thus

disposing of all of Corbett’s claims.

Corbett timely filed a notice of appeal. We construe Corbett’s pro se notice

of appeal as covering the district court’s orders on the motions to dismiss and the

summary judgment motion.

IV. THE BIVENS CLAIMS AGAINST DEFENDANT CHAMIZO

We first address the Rule 12(b)(6) dismissal of Corbett’s Bivens claims

against defendant Chamizo based on the 2011 airport screening. 6

A. Qualified Immunity Principles

“Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

clearly established statutory or constitutional rights of which a reasonable person

5
On December 18, 2012, the district court denied Corbett’s motion to file a second
amended complaint. In this appeal, Corbett has not shown that the district court abused its
discretion in denying this motion. See Lowe’s Home Ctrs., Inc. v. Olin Corp., 313 F.3d 1307,
1314–15 (11th Cir. 2002) (“[A] district court has great discretion when deciding whether to grant
a motion for leave to amend a complaint following the filing of responsive pleadings.”).
6
We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6)
for failure to state a claim, “accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp.
Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).
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would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)

(quotation marks omitted).

Here, undisputedly, defendant Chamizo was engaged in discretionary

functions during the 2011 airport screening. Therefore, we examine: (1) whether

the facts alleged, accepted as true and viewed in the light most favorable to

Corbett, show that Chamizo’s conduct violated one of Corbett’s federal

constitutional rights; and if so, (2) whether that right was “clearly established” at

the time of the 2011 airport screening. See Scott v. Harris, 550 U.S. 372, 377, 127

S. Ct. 1769, 1774 (2007) (quotation marks omitted).

To analyze these questions, we review the law regarding airport screening.

B. Screening at Airport Security Checkpoints

The Fourth Amendment protects individuals “against unreasonable searches

and seizures,” U.S. Const. amend. IV, and a search conducted without a warrant is

“per se unreasonable subject only to a few specifically established and well-

delineated exceptions,” United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989)

(quotation marks and alteration omitted). One exception to the warrant

requirement is for suspicionless searches conducted pursuant to administrative

programs, such as security screenings of airport passengers.

Congress explicitly requires “the screening of all passengers and property . .

. that will be carried aboard a passenger aircraft.” 49 U.S.C. § 44901(a). The

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Supreme Court has instructed that the suspicionless screenings conducted at airport

security checkpoints pursuant to this statute fall under the administrative search

exception to the Fourth Amendment’s warrant requirement. See Chandler v.

Miller, 520 U.S. 305, 323, 117 S. Ct. 1295, 1305 (1997) (“[W]here the risk to

public safety is substantial and real, blanket suspicionless searches calibrated to the

risk may rank as ‘reasonable’—for example, searches now routine at airports . . .

.”); see also Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674–75 &

n.3, 109 S. Ct. 1384, 1395 & n.3 (1989) (providing as an example of a

suspicionless search that may qualify as reasonable “the Federal Government’s

practice of requiring the search of all passengers seeking to board commercial

airliners, as well as the search of their carry-on luggage, without any basis for

suspecting any particular passenger of an untoward motive”).

In short, airport security screenings are generally “permissible administrative

search[es] under the Fourth Amendment, even though [they are] initiated without

individualized suspicion and [are] conducted without a warrant.” See George v.

Rehiel, 738 F.3d 562, 577 (3d Cir. 2013). “[S]creening passengers at an airport is

an ‘administrative search’ because the primary goal is not to determine whether

any passenger has committed a crime but rather to protect the public from a

terrorist attack.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d

1, 10 (D.C. Cir. 2011). “[T]hose presenting themselves at a[n] [airport] security

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checkpoint thereby consent to a search, and may not revoke that consent if the

authorities elect to conduct a search.” United States v. Herzbrun, 723 F.2d 773,

776 (11th Cir. 1984).

With these legal principles in mind, we turn to Corbett’s claims against

defendant Chamizo.

C. The Screening of Corbett’s Bags, Cards, and Book

It is well established in this Circuit that supervisory officials, such as

defendant Chamizo, are “not liable under Bivens for the unconstitutional acts of

their subordinates on the basis of respondeat superior or vicarious liability.”

Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (quotation marks and

alteration omitted). Thus, to state a Bivens claim based on supervisory liability

against defendant Chamizo, Corbett must allege that supervisor Chamizo

“personally participated in the alleged unconstitutional conduct or that there is a

causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir.

2013) (quotation marks omitted).

Corbett, however, did not allege that defendant Chamizo personally opened

any bags, inspected the bags’ contents, or verbally directed the TSA employees to

do any specific conduct. Corbett alleged only that Chamizo “was the ‘officer’-in-

charge on the scene and approved of the searches.” Such “vague and conclusory

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allegations” do not establish a causal connection between a supervisor and

unlawful activity. See Gonzalez, 325 F.3d at 1235.

Alternatively, even if this allegation was arguably sufficient, the search of

Corbett’s bags and contents did not violate the Fourth Amendment. Here, the TSA

screeners were authorized, and indeed required, to inspect Corbett’s carry-on bags

and the items contained therein. See 49 U.S.C. § 44901. Further, by the time the

TSA employees inspected Corbett’s bags, Corbett had refused to allow the TSA

employees to fully screen his person—either through use of a full-body scanner or

the standard pat-down procedure. A reasonable TSA employee, at that point, could

have suspected that Corbett’s refusals resulted from his desire to conceal unlawful

activity. See Herzbrun, 723 F.2d at 777 (stating that, “in deciding the lawfulness

of a[n] [airport security] search, a court should focus on the reasonableness of the

investigating officer’s actions . . . . on the basis of the articulable facts at hand” to

determine whether the officer “had reason to suspect that the defendant was

carrying materials that could endanger the safety of a flight”). Thus, a thorough

screening of Corbett’s bags was reasonable, even beyond the point of determining

whether those belongings contained weapons.

As the TSA security director pointed out, when TSA screeners find

identification cards in a passenger’s carry-on luggage, they must inspect those

cards “to ensure that the passenger does not use a different name than the name

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that was submitted for vetting.” A passenger’s use of multiple names could

indicate that the passenger is trying to circumvent the TSA’s security measures.

We recognize that Corbett’s amended complaint alleged that a TSA screener

looked through the pages of one of Corbett’s books “in a manner that was not to

determine if [weapons, explosives, or other incendiary devices] were somehow

hidden within the book, but rather to inspect the text of the book.” It was not

unreasonable for a TSA screener to closely inspect Corbett’s book, though,

because “thin, flat explosives called ‘sheet explosives’ may be disguised as a

simple piece of paper or cardboard, and may be hidden in just about anything,

including a laptop, book, magazine, deck of cards, or packet of photographs.”

United States v. McCarty, 648 F.3d 820, 825 (9th Cir. 2011). Furthermore, a TSA

screener could have reasonably factored the contents of a book possessed by a

passenger into the totality of the circumstances relevant in determining whether the

passenger presented a security threat. See George, 738 F.3d at 585–86 (noting that

the facts that an individual carried a book critical of American foreign policy in the

Middle East and Arabic flashcards were circumstances which “raised the

possibility that [the individual] might pose a threat to airline security”).

For all of these reasons, Corbett’s allegations about the search of his bags

and the items therein failed to state a Fourth Amendment claim against defendant

Chamizo individually.

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D. Detention of Corbett

We also affirm the dismissal of Corbett’s detention claim against defendant

Chamizo. Corbett consented to a screening of his person by presenting himself at

the security checkpoint. Corbett could not revoke this consent by merely leaving

the checkpoint. See Herzbrun, 723 F.2d at 776 (observing that a rule allowing an

individual to revoke his consent to an airport security screening by leaving the

airport security checkpoint “constitute a one-way street for the benefit of a party

planning airport mischief, since there is no guarantee that if he were allowed to

leave he might not return and be more successful” (quotation marks omitted)).

We recognize that the entire security checkpoint screening lasted

approximately one hour. Yet, accepting the alleged facts as true, Corbett was

primarily to blame for that screening lasting as long as it did. If Corbett had

permitted the TSA screeners to conduct a full pat-down screening, he would have

swiftly proceeded to his gate. Although a seizure may become “unlawful if it is

prolonged beyond the time reasonably required to complete [its lawful] mission,”

see Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005), we cannot

say that the time here, given all the factual circumstances, was unreasonable for the

TSA employees to satisfy themselves that Corbett did not pose a security threat.

V. THE TORT CLAIMS AGAINST THE UNITED STATES

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We turn to Corbett’s tort claims for assault, false arrest, invasion of privacy,

and intentional infliction of emotional distress (“emotional distress”), against the

United States. The district court dismissed these claims under Rule 12(b)(1) as

barred by sovereign immunity, but Corbett contends the FTCA’s limited waiver of

sovereign immunity applies to these claims. 7

A. The FTCA’s Limited Waiver of Sovereign Immunity

Sovereign immunity protects the federal government and its agencies from

civil liability. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996,

1000 (1994). The FTCA in 28 U.S.C. § 1346(b) provides a limited waiver of

sovereign immunity for tort claims. Motta ex rel. A.M. v. United States, 717 F.3d

840, 843 (11th Cir. 2013). That statute confers on federal district courts exclusive

jurisdiction to hear claims against the United States for money damages “caused by

the negligent or wrongful act or omission of any employee of the Government

while acting within the scope of his office or employment.” 28 U.S.C.

§ 1346(b)(1) (emphasis added). 8

7
We review de novo a district court’s dismissal of a claim for lack of subject matter
jurisdiction. Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997).
Absent a waiver of sovereign immunity, a district court lacks subject matter jurisdiction to hear
claims against the United States. Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir.
1996).
8
The statute further provides that the United States is liable only if, under like
circumstances, a private person “would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
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The first problem for Corbett is that this limited waiver of sovereign

immunity in § 1346(b)(1) does not apply to claims based on intentional torts of

federal employees. 28 U.S.C. § 2680(h). Specifically, § 2680(h), also an FTCA

provision, states that the United States does not waive sovereign immunity as to

“[a]ny claim arising out of assault, battery, false imprisonment, false arrest,

malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or

interference with contract rights.” Id. § 2680(h). This part of the FTCA is known

as the “intentional torts exception” to the waiver in § 1346(b)(1).

Importantly, this intentional torts exception in § 2680(h) is “not limited to

the torts specifically named therein, but rather encompasses situations where the

underlying governmental conduct which constitutes an excepted cause of action is

essential to the plaintiff’s claim.” O’Ferrell v. United States, 253 F.3d 1257, 1266

(11th Cir. 2001) (quotation marks omitted).

Two of Corbett’s intentional tort claims—assault and false arrest—are

specifically named in § 2680(h), and thus sovereign immunity is not waived as to

those claims. His other intentional tort claims—invasion of privacy and emotional

distress—are based on the same underlying governmental conduct as Corbett’s

excepted claims for assault and false arrest. For example, the amended complaint

alleged that the TSA screeners invaded Corbett’s privacy by “surround[ing]

CORBETT with uniforms,” “dump[ing] CORBETT’s belongings out on a table,”

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and examining those items. Similarly, Corbett’s amended complaint stated that the

TSA screeners detained him at the airport security checkpoint and subjected him to

“unlawful seizure,” which caused him to experience “serious emotional distress.”

Because Corbett’s invasion of privacy and emotional distress claims are

based on the same underlying conduct as his assault and false arrest claims, they

are likewise subject to the intentional torts exception to the sovereign immunity

waiver. See id. at 1265 (noting that claims of intentional infliction of emotional

distress and intrusion upon privacy were barred when they were “derivative from

plaintiff’s underlying contention that he had been the victim of a false arrest” and

“‘false arrest’ is one of the tort claims barred by 28 U.S.C. § 2680(h)”).

B. The Law Enforcement Officer Proviso

We do not stop there, though, because there is also a statutory exception—

termed the “law enforcement proviso”—to the statutory intentional torts exception

to the sovereign immunity waiver. Immediately after stating that sovereign

immunity is not waived with regard to certain intentional tort claims, § 2680(h)

states: “Provided, That, with regard to acts or omissions of investigative or law

enforcement officers of the United States Government, the provisions of this

chapter and section 1346(b) of this title shall apply to any claim arising . . . out of

assault, battery, false imprisonment, false arrest, abuse of process, or malicious

prosecution.” 28 U.S.C. § 2680(h) (second emphasis added).

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Thus, the sovereign immunity waiver applies to the intentional tort claims

here if the TSA employees involved were “investigative or law enforcement

officers of the United States Government.” Id. Section 2680(h) defines

“investigative or law enforcement officer” to mean “any officer of the United

States who is empowered by law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.” Id. (emphases added).

Several courts have concluded that TSA screeners perform consensual, pre-

boarding administrative searches for certain prohibited items (i.e., knives, firearms,

liquids, gels, etc.), not traditional law enforcement functions such as making arrests

and executing searches for violations of federal law, although their reasoning has

varied. See Pellegrino v. U.S. Transp. Sec. Admin., No. 09-5505, 2014 WL

1489939, at *5–8 (E.D. Pa. Apr. 16, 2014) (concluding that the phrase “searches . .

. for violations of Federal law” is ambiguous and determining that an analysis of

the FTCA’s legislative history “strongly suggests that the law enforcement proviso

was enacted as a response to specific egregious behavior during raids conducted by

federal law enforcement officers, and was not intended to be expansive enough to

cover airport security screeners” (omission in original)); Walcott v. United States,

No. 13-CV-3303, 2013 WL 5708044, at *3 (E.D.N.Y. Oct. 18, 2013) (concluding

that “the meaning of ‘empowered by law to execute searches . . . for violations of

Federal law’ under § 2680(h) is narrower than the meaning of a ‘search’ under the

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Fourth Amendment—that is, just because something is an administrative search

under the Fourth Amendment, it doesn’t mean the person doing the search is a law

enforcement officer under § 2680(h)” (omission added)); Weinraub v. United

States, 927 F. Supp. 2d 258, 263 (E.D.N.C. 2012) (observing that TSA screeners’

power “is limited to pre-boarding searches for certain prohibited items,” and

concluding that “it would be unreasonable to interpret ‘to execute searches’ to

include the TSA screener’s performance of narrowly focused, consensual searches

that are administrative in nature, when considered in light of the other traditional

law enforcement functions (i.e., seizure of evidence and arrest) that Congress

chose to define ‘investigative or law enforcement officers’”); Coulter v. U.S. Dep’t

of Homeland Sec., No. 07-4894 (JAG), 2008 WL 4416454, at *7–9 (D.N.J. Sept.

24, 2008) (TSA screeners are not law enforcement officers because, inter alia, the

statute authorizing airport security screening “does not include language

referencing the power of an airport security screener to perform searches”).9

9
See also Hernandez v. United States, No. 12-cv-03165-LTB, 2014 WL 803774, at *6–7
(D. Colo. Feb. 28, 2014) (TSA screeners are not law enforcement officers because the functions
named in the law enforcement proviso are “commonly understood to be traditional law
enforcement functions . . . commonly performed by FBI agents, Bureau of Prison Officers, postal
inspectors, and INS agents, all of which have broad investigative and law enforcement powers,
and . . . fall within the law enforcement proviso,” whereas TSA screeners only screen passengers
for items “which are prohibited on airplanes, but not illegal to possess”); Welch v. Huntleigh
USA Corp., No. 04-663 KI, 2005 WL 1864296, at *5 (D. Or. Aug. 4, 2005) (independent
contractors performing screening for TSA were not law enforcement officers because
“[s]creeners do not have the authority to detain individuals and must call law enforcement
officers to search, seize, and arrest individuals if illegal items are found”).
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We need not resolve this thorny “search” issue. The TSA screeners are not

subject to the law enforcement proviso for a simpler reason—they are not “officers

of the United States Government,” as required by § 2680(h)’s statutory language.

The FTCA draws a distinction between a “federal employee” and an “officer of the

United States.” Specifically, the FTCA waives the government’s sovereign

immunity for tort claims based on the acts or omissions of “any employee of the

Government while acting within the scope of his office or employment.” 28

U.S.C. § 1346(b)(1) (emphasis added). Likewise, § 2680, the statute providing

exceptions to the FTCA’s sovereign immunity waiver, refers to “an act or omission

of an employee of the Government.” Id. § 2680(a) (emphasis added). The law

enforcement proviso in § 2680(h), however, uses the term “officer of the United

States,” rather than “employee,” as is used elsewhere in the FTCA. Id. § 2680(h).

This variation in language is not insignificant and shows that the law enforcement

proviso applies only when the person, whose conduct is at issue, is an “officer of

the United States.”

Further, the federal statutes governing airport security screening differentiate

between federal employees of TSA and law enforcement officers. Significantly,

49 U.S.C. § 44901 states that “screening . . . shall be carried out by a Federal

Government employee.” 49 U.S.C. § 44901(a). Congress, however, explicitly

authorized the TSA Administrator to “designate an employee of the [TSA] or other

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Federal agency to serve as a law enforcement officer.” Id. § 114(p)(1). Only after

being so designated may the TSA employee: (1) “carry a firearm”; (2) “make an

arrest . . . for any offense against the United States”; or (3) “seek and execute

warrants for arrest or seizure of evidence.” Id. § 114(p)(2)(A)–(C). The TSA

Administrator thus must affirmatively act to make a TSA employee an “officer.”

Merely being a TSA employee does not make one an “officer of the United States

Government.”

These provisions show that, within TSA, there are: (1) federal employees,

who conduct airport security screening; and (2) law enforcement officers, who

perform various law enforcement functions. The TSA screeners here are the first

type—federal employees conducting airport security screening. Nothing in the

record in this particular case shows that the TSA employees who screened Corbett

had been specially designated as officers under § 114(p). In fact, in Corbett’s

discussion of the separate FOIA issue in this appeal, Corbett’s brief actually admits

that “the TSA is not a law enforcement agency.” Because the TSA screeners here

are federal employees, the law enforcement proviso regarding “officers of the

United States” is inapplicable.

Therefore, the intentional torts exception does apply, and sovereign

immunity bars Corbett’s intentional tort claims against the United States, which

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included claims for assault, false arrest, invasion of privacy, and emotional

distress. We affirm the district court’s dismissal of those tort claims.

VI. THE PRIVACY ACT CLAIMS AGAINST THE TSA

The district court also did not err in dismissing Corbett’s Privacy Act claims.

The TSA is subject to the Privacy Act’s requirements for federal agency

recordkeeping. See 5 U.S.C. § 552a(e)(1)–(12). The basis for Corbett’s claims is

that TSA’s Chamizo, at the security checkpoint, photocopied Corbett’s driver’s

license and boarding pass without first complying with the Privacy Act’s

requirements.

To prevail on a Privacy Act claim under § 552a(g)(4), an individual must

show, inter alia, that he suffered actual damages. Speaker v. U.S. Dep’t of Health

& Human Servs., 623 F.3d 1371, 1381 (11th Cir. 2010). The Privacy Act does not

allow for recovery of non-pecuniary damages stemming from “loss of reputation,

shame, mortification, injury to the feelings and the like.” Fed. Aviation Admin. v.

Cooper, 566 U.S. ___, 132 S. Ct. 1441, 1449, 1451 (2012) (quotation marks

omitted) (construing § 552a(g)(4)). We need not evaluate whether Corbett stated a

Privacy Act violation because he alleged no pecuniary loss or actual damages as a

result of a Privacy Act violation.

Alternatively, Corbett contends that the district court should have liberally

construed his Privacy Act claims as requests for an injunction ordering the TSA “to

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amend” its records by destroying the copies of Corbett’s driver’s license and

boarding pass. The Privacy Act does provide for injunctive relief in the form of

ordering an agency to: (1) “amend the individual’s record in accordance with his

request or in such other way as the court may direct”; or (2) produce to the

individual “any agency records improperly withheld from him.” 5 U.S.C.

§ 552a(g)(2)–(3). Corbett’s injunction claim, however, fails because an individual

must file with an agency a formal request for an amendment or disclosure of

records before seeking an injunction. See id. § 552a(d)(1), (d)(2). Corbett did not

allege that he made such a request. Thus, he is not entitled to injunctive relief.

VII. THE FOIA CLAIM AGAINST TSA

The next issue is whether the district court properly granted the TSA’s

motion for summary judgment on Corbett’s FOIA claim. 10

A. FOIA Principles

Under FOIA, a government agency must disclose to the public requested

documents unless they fall within one of the nine statutory exemptions. Moye,

O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d

1270, 1276 (11th Cir. 2004); see 5 U.S.C. § 552(a). An agency may redact

portions of material from requested records. See U.S. Dep’t of State v. Ray, 502

10
We review a grant of summary judgment de novo, and the district court’s factual
findings for clear error. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010).

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U.S. 164, 173, 112 S. Ct. 541, 547 (1991). The agency has the burden of showing

that a FOIA exemption supports its withholding a document or making redactions.

Id.

Here, the TSA produced documents and videos, but redacted: (1) the names

of the TSA employees and Sheriff’s officer; and (2) the faces of all individuals in

the videos. The TSA relied on Exemption 6.

B. FOIA Exemption 6

Exemption 6 provides that an agency need not disclose “personnel and

medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To determine

whether Exemption 6 applies, we ask: (1) whether the withheld material was

within “personnel, medical, or similar files”; and, if so, (2) whether “a balancing of

individual privacy interests against the public interest in disclosure reveals that

disclosure of the information would constitute a clearly unwarranted invasion of

personal privacy.” News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173,

1196–97 (11th Cir. 2007) (quotation marks omitted).

FOIA does not provide a definition of the term “similar files.” In U.S.

Department of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957

(1982), the Supreme Court instructed that “the phrase ‘similar files’ was to have a

broad, rather than a narrow, meaning.” Id. at 600, 102 S. Ct. at 1961. Exemption 6

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is not limited to “a narrow class of files containing only a discrete kind of personal

information.” Id. at 602, 102 S. Ct. at 1961. Instead, the exemption applies to

“detailed Government records on an individual which can be identified as applying

to that individual.” Id. (quotation marks omitted). Congress’s “primary purpose in

enacting Exemption 6 was to protect individuals from the injury and

embarrassment that can result from the unnecessary disclosure of personal

information.” Id. at 599, 102 S. Ct. at 1960. In light of this purpose, the Supreme

Court determined that Congress intended that “the balancing of private against

public interests, not the nature of the files in which the information was contained,

should limit the scope of the exemption.” Id.

Further, an agency’s investigative reports constitute “similar files” for

purposes of Exemption 6. See Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest

Serv., 524 F.3d 1021, 1023–24 (9th Cir. 2008) (based on the Supreme Court’s

Washington Post opinion, the court had “little difficulty in concluding that the

names and identifying information contained in [an agency report of an

investigation into a fatal forest fire] me[t] the ‘similar file’ requirement of

Exemption 6”); Wood v. Fed. Bureau of Investigation, 432 F.3d 78, 86 (2d Cir.

2005) (“Exemption 6 applies to any personal information contained in files similar

to personnel or medical files, such as administrative investigative records.”); see

also Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 152–53 (D.C. Cir.

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2006) (an agency’s redactions of names from records of the approval process for a

drug was permissible under Exemption 6 because the statute exempts “not just

files, but also bits of personal information, such as names and addresses, the

release of which would create a palpable threat to privacy” (quotation marks and

alterations omitted)).

Our circuit has applied Exemption 6 in several cases. In Federal Labor

Relations Authority (F.L.R.A.) v. U.S. Department of Defense, 977 F.2d 545 (11th

Cir. 1992), this Court held that the Defense Department’s disclosure of a list of

names and addresses of non-union federal employees within a relevant bargaining

unit would result in an unwarranted invasion of personal privacy and withholding

was allowed under Exemption 6. Id. at 547–50. We noted that “employee

addresses say nothing about a federal agency’s character or function” and therefore

“the public interest side of the balance” carried little weight. Id. at 548. We

rejected as overly tenuous any suggestion that the public had an interest in being

able to contact “federal employees to learn something about the government” when

there was no allegation that the government was operating irregularly. Id. On the

other hand, we recognized strong privacy interests in one’s address, as “an address

. . . . is an indicator of one’s choice of neighborhoods and one’s affluence.” Id. at

548–49. Therefore, we held that the privacy interests clearly outweighed the

public interests in disclosure. Id. at 549–50.

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Next, in Office of the Capital Collateral Counsel v. U.S. Department of

Justice, 331 F.3d 799 (11th Cir. 2003), this Court concluded that, under Exemption

6, the Department of Justice (“DOJ”) could withhold certain documents pertaining

to internal disciplinary proceedings against a former Assistant U.S. Attorney

(“AUSA”). Id. at 801–02, 804. We noted that “[t]he fact that [the AUSA] was a

public official . . . [did] not render her interest in preserving her personal privacy

without weight.” Id. at 803. The AUSA’s privacy interest was significant, as the

documents reflected “her private thoughts and feelings concerning her misconduct

. . . and its effect on her, her family, and her career.” Id. And there was “already

substantial information available to the public about [the AUSA’s] misconduct and

her subsequent sanctions.” Id. at 804. This already-public information satisfied

the public interest in knowing about how the DOJ responded to the misconduct,

and the AUSA’s personal reflections about her misconduct were “not relevant to

the public interest in knowing what the government is doing.” Id.

In News-Press v. U.S. Department of Homeland Security, this Court

permitted the Department of Homeland Security (“DHS”) to redact from

documents the names of individuals who applied for federal disaster relief funds

after four hurricanes struck Florida. 489 F.3d at 1177–79, 1205. However, we

required the DHS to disclose the applicants’ addresses. Id. at 1205. This Court

observed that the three news organizations did not articulate a “terribly strong”

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public interest in disclosure of the names. Id. at 1185, 1205. Further,

withholding the names would “substantially reduce the potential for negative

secondary effects of disclosing the addresses.” Id. (quotation marks and alteration

omitted).

C. Applying Exemption 6 Here

Under the particular facts here, we conclude Exemption 6 permitted the

limited redactions the TSA made. The TSA produced its full investigative files,

including incident reports, witness statements, and videos. The TSA protected

only names in the documents and faces on the videos.

The TSA’s documents and videos describe in full detail every aspect of the

events at issue and the TSA’s response to those events. Disclosure of the names of

the individuals in those documents, or faces of the individuals, would not add to a

reader’s or viewer’s understanding of those documents and images. See F.L.R.A.,

977 F.2d at 548. Additionally, the TSA employees named and depicted are low-

level screeners and security-checkpoint supervisors, and disclosure of their

personal identities would not shed any light on the TSA’s operations. See Wood,

432 F.3d at 88–89; see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland

Sec., 384 F. Supp. 2d 100, 116–17 (D.D.C. 2005) (concluding Exemption 6

allowed the TSA to redact names of its employees in documents because: (1)

“federal employees have an identifiable privacy interest in avoiding disclosures of

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information that could lead to annoyance or harassment”; (2) “the public interest in

learning the names of . . . lower-echelon employees is small”; and (3) there was no

showing how the employees’ names would help the public “understand how the

agency performs its statutory duties”).

Here, the individuals, named or depicted, have privacy interests in avoiding

disclosure of their personal identifying information. See U.S. Dep’t of Defense v.

F.L.R.A., 510 U.S. 487, 500, 114 S. Ct. 1006, 1015 (1994). And, Corbett has not

shown the public has a compelling interest in disclosure of these personal

identities. Corbett has not offered a reasonable, much less a compelling,

explanation for a public interest, or even his own personal need, for the names and

faces in the records here. For example, Corbett does not contend that knowing the

personal identities would assist him in this or other litigation.

In short, based on the record before us, we conclude the individuals’ privacy

interests outweigh any public interest in disclosure of the names and faces here.

We thus affirm the district court’s summary judgment to the TSA on

Corbett’s FOIA claim. 11

VIII. CONCLUSION

In light of the foregoing, we affirm.
11
Because Exemption 6 supports all of the TSA’s redactions, we need not consider
whether Exemption 7(C) provides a separate basis for the redactions of the Sheriff’s officer’s
name. Additionally, we affirm the district court’s dismissal of the civil conspiracy claim, as well
as the claim under the Florida Constitution. We agree with the district court’s cogent analysis of
these claims.
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AFFIRMED.

32