Mengert v. United StatesMengert v. United States
Jonathan Corbett, Corbett Rights, P.C., Los Angeles, California, for Plaintiff-Appellant Rhonda Mengert.
Daniel Aguilar, U.S. Department of Justice, Washington, D.C. (Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sharon Swingle, with him on the brief), for Defendant-Appellee United States of America.
Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges.
EBEL, Circuit Judge.
This case stems from Transportation Security Officers (TSOs) subjecting plaintiff Rhonda Mengert to an inspection in a private room at Tulsa International Airport. After Mengert’s initial security screening and a subsequent pat-down left TSOs unsure as to the nature of an object in her groin area—which turned out to be an ordinary feminine hygiene product—TSOs led her to a private screening room and directed her to lower her pants and remove the object for examination. Mengert has alleged that the incident caused her to experience symptoms of a panic attack, and that her symptoms have recurred on a regular basis when she travels by plane. Mengert brought claims against the United States under the Federal Tort Claims Act (FTCA) alleging intentional infliction of emotional distress (IIED) and false imprisonment. Relevant here, the district court denied the government’s motion to dismiss the complaint under
We first conclude that the district court properly found that it had jurisdiction over Mengert’s claims. This decision turns on whether TSOs are “investigative or law enforcement officer[s]” as defined by
We also conclude that Mengert failed to allege sufficiently severe emotional distress in her complaint, as required to maintain an IIED claim under Oklahoma law. Additionally, Mengert’s false imprisonment claim—which the district court properly treated as a false arrest claim because it challenges her detention by a public defendant—fails because Mengert does not challenge the lawfulness of her detention itself, but instead challenges the lawfulness of the TSOs’ conduct during the
Having jurisdiction under
I. BACKGROUND1
Plaintiff-Appellant Rhonda Mengert went to Tulsa International Airport on May 12, 2019, for a flight to Las Vegas, Nevada. Mengert, who held Transportation Security Administration (TSA) PreCheck clearance, presented a valid ID and boarding pass in the TSA line. She was then directed to the PreCheck screening area. After Mengert was screened via body scanner, she was informed that she would need additional screening via pat-down. During the pat-down, Transportation Security Officer Amy Morroney detected an object in Mengert’s groin area—the object turned out to be an ordinary feminine hygiene product, but Morroney could not determine the nature of the object at that time. Morroney then conducted a test for explosives trace, and that test was negative.
Morroney then told Mengert that she would need to go to a private screening room to be cleared. Morroney and another TSO, Whitney Brown—both women—led Mengert to the private screening room and closed the door behind them. Morroney gave Mengert a paper privacy drape and told Mengert to lower her shorts and remove the object. Mengert told the TSOs that the object was simply a feminine hygiene product and said something like, “you’ve got to be kidding me.” (Aplt. App. at 230-31). Mengert asked for clarification of what the TSOs were asking of her, and they responded that they needed to “clear the area.” (Id.) The TSOs then directed Mengert to lower her pants and underwear and remove the feminine hygiene product for inspection. Mengert followed their direction, lowering her shorts and underwear and removing the feminine hygiene product. She did not attempt to use the privacy drape. Morroney confirmed that the object was a feminine hygiene product and was therefore not prohibited. Mengert then said, “are you satisfied,” replaced the pad, and pulled up her shorts. (Id.) The TSOs did not immediately respond to Mengert, and Mengert requested to leave three more times before one of the TSOs opened the door and Mengert left the room. Mengert’s entire encounter with the TSOs lasted about seven minutes including three minutes in the private screening room.
During the incident, Mengert experienced symptoms of a panic attack. She experiences similar symptoms when reminded of the incident, as well as additional physical symptoms, such as uncontrollable shaking. Mengert has flown on about a monthly basis for both work and other reasons since the incident, which has caused her to be regularly reminded of the incident and experience the above symptoms.
II. PROCEDURE
In a prior case, Mengert filed a complaint seeking injunctive relief against the TSA and asserting constitutional and tort
Mengert filed a new complaint, at issue here, in October 2021, asserting claims against the United States for false imprisonment and intentional infliction of emotional distress under the Federal Tort Claims Act. The district court denied the government’s motion to dismiss for lack of jurisdiction under
However, the district court granted the government’s motion to dismiss Mengert’s IIED claim under
III. DISCUSSION
1. The United States waived its sovereign immunity for Mengert’s intentional tort claims against TSOs, and therefore there is federal jurisdiction over this suit.
The Federal Tort Claims Act waives sovereign immunity for tort claims against the United States based on damages caused by government employees acting within the scope of their employment. Seе
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, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means 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.
Here, Mengert’s claims “aris[e] out of” her alleged false arrest by TSOs, and therefore the government has sovereign immunity under
a. Legal Standard
This court reviews de novo whether the United States has waived sovereign immunity. Fent v. Okla. Water Res. Bd., 235 F.3d 553, 556 (10th Cir. 2000). “The United States and its officers enjoy immunity from suit except in instances where the United States has expressly waived that protection.” Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015). This court “will find the government has waived sovereign immunity only when its consent to be sued is ‘unequivocally expressed.’” Id. (quoting United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992)). Ordinarily, “statutory text purporting to waive governmental immunity is strictly construed ‘in favor of the sovereign.’” Id. (quoting Nordic Vill., 503 U.S. at 34).
However, the Supreme Court has explained that, when interpreting exceptions to the FTCA’s waiver of sovereign immunity, the general rule requiring strict construction in favor of immunity does not apply:
[I]t should be noted that this case [involving claims under the FTCA against the U.S. Postal Service] does not implicate the general rule that “a waiver of the Government‘s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign,” Lane v. Peña, 518 U.S. 187, 192 (1996). As Kosak[ v. United States] explains, 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,” 465 U.S. [848,] 853 n.9 [(1984)], . . . which “waives the Government‘s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U.S. 543, 547 (1951); see also United States v. Nordic Vill[.], Inc., 503 U.S. 30, 34 (1992) (observing “[w]e have on occasion narrowly construed exceptions to waivers of sovеreign immunity where that was consistent with Congress’ clear intent, as in the context of the ‘sweeping language’ of the [FTCA]” (quoting Yellow Cab Co., supra, at 547)).
Dolan v. U.S. Postal Serv., 546 U.S. 481, 491-92 (2006). “[T]he proper objective of a court attempting to construe one of the subsections of
As explained above, this case involves
The government argues that, since the law enforcement proviso is a further waiver of sovereign immunity (i.e., an exception to an exception), rather than an exception to the FTCA’s waiver of sovereign immunity, Dolan does not apply here. Instead, the government argues, the general rule for interpreting waivers of sovereign
Ultimately, then, our task in this appeal is simply to “identify ‘those circumstances which are within the words and reason of
b. Analysis
We are not the first court to address the question at issue in this appeal—whether TSOs are “investigative or law enforcement officers” as defined by
i. TSOs are “officer[s] of the United States”
The law enforcement proviso applies to “any officer of the United States.”
The term “officer” is not defined by the statute, and therefore we must give the term its “ordinary meaning.” Rocky Mountain Wild v. Dallas, 98 F.4th 1263, 1291 (10th Cir. 2024). “Dictionary definitions are useful touchstones to determine the ‘ordinary meaning’ of an undefined statutory term.” Id. (quoting In re Mallo, 774 F.3d 1313, 1321 (10th Cir. 2014)). The proviso was enacted in 1974. Dictionaries from that time defined “officer” as: “one charged with a duty” or “one who is appointed or elected to serve in a position of trust, authority, or command esp. as specif. provided for by law,” (Officer, Webster’s Third New International Dictionary (1971)); and “[o]ne who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions” or “[o]ne who is invested with some portion of the functions of the government to be exercised for the public benefit,” (Officer, Black’s Law Dictionary (4th ed. rev. 1968)).
Applying these definitions to TSOs in Pellegrino, Iverson, and Leuthauser, the Third, Eighth, and Ninth Circuits, respectively, concluded that TSOs are “officer[s] of the United States” under
The government notes that Congress chose to use the word “officer” in the law enforcement proviso, rather than “employee,” which is used in other subsections of
The government cites provisions of the Aviation and Transportation Security Act (ATSA), which creates within the TSA the position of “law enforcement officer” and authorizes such officers to carry firearms, make warrantless arrests, and seek and execute warrants.
in 1974. Altering that definition based on the ATSA “would require us to hold that Congress silently altered a term’s meaning in one statute by passing an unrelated statute almost 30 years later“); Leuthauser, 71 F.4th at 1196 (9th Cir.) (conducting similar analysis and reaching same conclusion).5
ii. TSOs are “empowered by law to execute searches . . . for violations of Federal law”
Having concluded that TSOs are “officer[s] of the United States,” we must next consider whether they are “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”
As a starting point, because “execute searches,” “seize evidence,” and “makе arrests” are listed in the disjunctive, an officer need only be empowered by law to do one of those acts for the law enforcement proviso to apply. See Pellegrino, 937 F.3d at 175 (3d Cir.) (“Each of the three duties independently suffices to define ‘investigative or law enforcement officer.’“); Osmon, 66 F.4th at 148 (4th Cir.). Therefore, the government’s argument that TSOs are not authorized to carry weapons, seize evidence, or make arrests does not affect our analysis so long as they are empowered by law to “execute searches.” See (Aplee. Br. 36).
First, TSOs are “empowered by law” to conduct “the screening of all passengers and property.”
Second, when TSOs conduct screenings, they “execute searches.” The very reason for the screening is to search for dangerous and prohibited items and to prevent such items from being brought onto an airplane. Congress defined “screening” in the ATSA as “a physical examination or non-intrusive methods of assessing whether cargo poses a threat to transportation security. Methods of screening include x-ray
We also agree with the Third Circuit that dictionary definitions and Supreme Court case law support the proposition that TSOs “execute searches” when they conduct screenings—whether “search” is considered by its ordinary meaning or as a term of art in the Fourth Amendment context. Pellegrino, 937 F.3d at 172-73 (3d Cir.). See Search, Webster’s Third New International Dictionary (1971) (“to examine (a person) thoroughly to check on whatever articles are carried or concealed“); Search, Black’s Law Dictionary (4th ed. rev. 1968) (“[a]n examination of a man’s house . . . or of his person, with a view to the discovery of contraband or illicit or stolen property“); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (referring to “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,” and explaining that “the lower courts that have considered the question have consistently [applied precedents dealing with administrative searches and] concluded that such searches are reasonable under the Fourth Amendment“); Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[I]t 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.’“).
Resisting this conclusion, the government argues that when Congress referred to “investigative or law enforcement officers” who “execute searches” in the law enforcement proviso, it meant only “officers who ‘conduct investigations relevant to criminal law enforcement.’” (Aplee. Br. 28) (quoting Iverson, 973 F.3d at 862 (8th Cir.) (Gruender, J., dissenting)). Before addressing each of the government’s arguments in support of its proposed interpretation, we first note that the government’s interpretation is fatally flawed, as succinctly explained by the Fourth Circuit:
The problem with the government’s argument is that it reprises a tactic the Supreme Court has already rejected: “read[ing] into the text additional limitations designed to narrow the scope of the law enforcement proviso.” Millbrook v. United States, 569 U.S. 50, 55 (2013). The word “criminal” appears nowhere in the law enforcement proviso—let alone as a modifier of “searches.” See
28 U.S.C. § 2680(h) . Here, as elsewhere, we “may not narrow a provision’s reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).
Osmon, 66 F.4th at 148-49 (4th Cir.).
Many of the government’s arguments in support of its interpretation can be rejected for this reason. For example, the government
The government also argues that the torts covered by the proviso—assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution—are “‘the types of tort claims typically asserted against’ officers with” criminal enforcement powers. (Aplee. Br. 31) (quoting Pellegrino, 937 F.3d at 188 (3d Cir.) (Krause, J., dissenting)). However, if Congress intended to limit the law enforcement proviso to criminal law enforcement, it could have added one word—“criminal“—rather than relying on implications from less direct language, context specific definitions from unrelated statutes, and the law enforcement proviso’s inclusion of certain torts and exclusion of others.7
The government argues that under the canon of noscitur a sociis, which generally instructs that words in a list should be given a related meaning, the meaning of “execute searches” in the law enforcement proviso must be informed by the other terms in the list—“seize evidence” and “make arrests.” See In re McDaniel, 973 F.3d 1083, 1097 (10th Cir. 2020) (defining noscitur a sociis). And, the government argues, since “seiz[ing] evidence” and “mak[ing] arrests” are traditional law enforcement functions, the phrase “execute sеarches” refers only to traditional law enforcement searches—not the type of search conducted by TSOs. Like the other circuits to address this argument, we reject it for two reasons: 1. The term “searches” is clear, and therefore resort to the canon is unwarranted, see Russell Motor Car Co. v. United States, 261 U.S. 514, 520 (1923) (“‘Noscitur a sociis’ is a well-established and useful rule of construction, where words are of obscure or doubtful meaning, and then, but only then, its aid may be sought to remove the obscurity or doubt by reference to the associated words.” (emphasis added)); and 2. “Execute searches” is listed in the disjunctive with “seize evidence” and “make arrests,” and therefore this canon is less helpful, see Pellegrino, 937 F.3d at 174-75 (3d Cir.).
The government next argues that the use of the word “execute” before “searches” indicates that the law enforcement proviso applies only to officers who conduct searches in the criminal context. The government cites the Pellegrino dissent for the proposition that “‘every other
The government’s remaining arguments are premised on the fact that TSOs’ screenings are administrative searches, rather than traditional law enforcement searches for violations of criminal law based on individualized suspicion. See Von Raab, 489 U.S. at 675 n.3 (explaining that TSOs search passengers and their cargo “without any basis for suspecting any particular passenger of an untoward motive” and that lower courts have considered such searches under the Supreme Court’s “precedents dealing with administrative searches“); United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (TSOs’ searches serve “‘an administrative purpose, namely, to prevent carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings’” (citation omitted)). The government argues that if the law enforcement proviso is construed to apply to TSOs, then there is “no textual basis for distinguishing the many other federal employees who perform only administrative searches.” (Aplee. Br. 40). And, the government argues, this indicates that our interpretation is flawed, as both legislative history and out-of-circuit case law demonstrate that the law enforcement proviso does not apply to officers who are empowered to conduct only administrative searches. See Federal Tort Claims Amendments: Hearings Before the Subcomm. on Claims and Governmental Rels. of the H. Comm. on the Judiciary, 93d Cong. 18 (1974) (statement of Irving Jaffe, Acting Assistant Attorney General) (“We have Department of Agriculture investigators who go into [sic] look at books and records. We have Defense Department auditors to look at books and records. . . . They are not law enforcement officers even under this definition. They don’t qualify.“). See also Wilson v. United States, 959 F.2d 12, 15-16 (2d Cir. 1992) (per curiam) (holding federal parole officers are not “investigative or law enforcement officer[s]” under
We are unpersuaded. We first note that we are only addressing the application of the law enforcement proviso to TSOs—this appeal does not require us to address the law enforcement proviso as applied to other categories of federal officers and employees, and we decline to do so. Also, the brief excerpts of legislative history citеd by the government do not affect our
We also find that some of the out-of-circuit cases cited by the government are distinguishable. In Wilson, the Second Circuit only addressed whether parole officers were empowered by law to “make arrests” or “seize evidence“—the court at no point addressed whether parole officers could “execute searches,” which is the act at issue here. Wilson, 959 F.2d at 15-16 (2d Cir.). And in Bunch, the Seventh Circuit explained that the ATF forensic chemist at issue was an “investigative or law enforcement officer” because he was empowered to “identif[y] . . . relevant evidence for colleagues during crime-scene investigations,” whereas “there are many employees of ATF for whom the same cannot be said.” Bunch, 880 F.3d at 945-46 (7th Cir.). But the court did not indicate, as the government suggests here, that an officer must be empowered to conduct searches in the criminal context for the law enforcement proviso to apply. In fact, the court construed “searches” broadly, explaining that the proviso “does not require [the officer] to have had authority to seek and execute search wаrrants; it speaks only of executing searches, and many searches do not require warrants.” Id. at 945 (emphasis in original).8 Ultimately,
Finally, in EEOC v. First National Bank of Jackson, the Fifth Circuit held that EEOC agents are not “investigative or law enforcement officers” under
Finally, TSOs search “for violations of federal law.” As an initial matter, other circuits that have interpreted the law enforcement proviso have expressed skepticism regarding whether “for violations of federal law” modifies each term in the list—including “execute searches“—and have instead suggested that it modifies only the last term—“make arrests.” See Pellegrino, 937 F.3d at 177 (3d Cir.) (describing the “rule of the last antecedent,” which provides, “[w]hen interpreting a statute that includes ‘a list of terms or
We need not address the tension between the government’s argument and the decisions of other circuits because even if we assume that the law enforcement proviso applies only if TSOs are empowered to “execute searches . . . for violations of federal law,” TSOs satisfy that requirement. For example, federal law lists various “hazardous materials” that are “forbidden in transportation,” and it is the role of TSOs to search passengers and their cargo for such materials.
c. Conclusion
In sum, TSOs are “investigative or law enforcement officers” as that term is defined in
Finally, we are less persuaded by that single, out-of-circuit decision addressing EEOC agents than the four out-of-circuit decisions discussed above addressing the exact question at issue in this case and holding that TSOs are “investigative or law enforcement officers.”
2. The district court did not err in granting the government’s motion to dismiss Mengert’s intentional infliction of emotional distress claim.
a. Legal Standard
The district court granted the government’s motion to dismiss Mengert’s intentional infliction of emotional distress (IIED) claim under
“Dismissal under
Under Oklahoma law, the elements of an IIED claim are:
(1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.
Comput. Publ’ns, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002). The district court concluded that Mengert failed to state a claim based on the fourth element.10
“It is for the court to determine, in the first instance, whether . . . severe emotional distress can be found.” Durham v. McDonald’s Rests. of Okla., Inc., 256 P.3d 64, 68 (Okla. 2011). The Supreme Court of Oklahoma has explained that IIED “is governed by the narrow standards of the Restatement (Second) of Torts § 46.” Comput. Publ’ns, 49 P.3d at 735; see also Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th Cir. 1991) (“In large measure, the Oklahoma courts have adopted the approach of the Restatement (Second) on Torts § 46(1) (1965).“). Comment (j) to that section provides an explanation of when alleged emotional distress may be sufficiently severe to support an IIED claim:
Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.
Restatement (Second) of Torts § 46 cmt. j; see also Durham, 256 P.3d at 68 (emotional distress must “go beyond mere hurt feelings, insult, indignity, and annoyance” to the point where it “could be reasonably regarded to constitute emotional distress so severe that no reasonable person could be expected to endure it.“). Also, comment (k) explains that “[n]ormally, severe emotional distress is accompanied” by some form of illness or bodily harm, but recovery for IIED is not “limited to cases where there has been bodily harm; . . . if the conduct is sufficiently extreme and outrageous there may be liability for the emotional distress alone, without such harm.” Id. § 46 cmt. k.
We briefly describe, as illustrative examples, three cases applying Oklahoma law to determine whether the plaintiffs’ emotional distress was sufficiently severe. First, in Durham, the Oklahoma Supreme Court
This court affirmed the district court’s finding after a bench trial that the plaintiff failed to establish sufficiently severe emotional distress when the plaintiff presented evidence that the employer’s conduct caused him stomach sickness—to the point that he visited a doctor seeking treatment for his stomach—and caused him to be “insecure, very nervous, and unrestful.” Id. (cleaned up). Finally, in Zeran v. Diamond Broad., Inc., 203 F.3d 714, 721 (10th Cir. 2000).11 The plaintiff in Zeran put on evidence that the defendant’s conduct caused him anxiety which led him to visit his family physician, who prescribed anxiety medication. Id. at 718. This court concluded that the plaintiff’s emotional distress “was not sufficiently severe” and affirmed summary judgment for the defendant, explaining:
[W]e are not influenced by the fact that Plaintiff did not seek professional treatment and did not discuss his distress with those closest to him.[12] This Court recognizes that there are differences in the manner in which individuals cope. This Court is more influenced by the lack of evidence showing that the distress interfered with Plaintiff’s ability to conduct his daily life affairs.
Based on the above passages from the Restatement and this case law, we find that factors for determining whether emotional distress is suffiсiently severe include: whether the plaintiff experienced physical symptoms as a result of the distress; whether the plaintiff sought medical attention for either physical symptoms or the emotional distress itself; and whether the distress caused a disruption to the plaintiff’s daily affairs.
b. Analysis
The district court concluded that Mengert failed to make factual allegations establishing sufficiently severe emotional distress because, based on the allegations in the complaint, her “levels of emotional distress are not so severe as to cause her to discontinue traveling by plane several
In her complaint, Mengert alleged that, during her interaction with the TSOs, she experienced “symptoms of a panic attack, including racing heart, shortness of breath, uncontrollable shaking, and nausea.” (Aplt. App. 12 ¶ 40). Mengert also alleged that, after the incident, she experienced: reсurrent, distressing memories of the incident; symptoms of a panic attack when thinking about the incident, including the symptoms listed above and “fear of loss of control of her body, sweating, tightness in throat, headache, and hot flashes, followed by emotional numbness“; and severe shaking when reminded of the incident, “such that she cannot control the movement of her arms and that the trembling of her legs requires her to sit to avoid falling.” (Id. at 12 ¶¶ 42-44). She alleged that these symptoms are so unpleasant that she avoids thinking about the incident or discussing it with others.
While the allegations make clear that Mengert has experienced emotional distress as a result of her experience at Tulsa International Airport, our review of the case law above leads us to conclude that her distress, as alleged, is not sufficiently severe to sustain an IIED claim under Oklahoma law. For example, while Mengert alleged that her distress has caused physical symptoms, such as headaches, hot flashes, and uncontrollable shaking when thinking about the incident, there is no indication that she sought any form of treatment for these symptoms or the distress itself. In contrast, in Daemi, the plaintiff’s distress led him to seek medical treatment for stomach sickness, and this court still found the plaintiff’s distress insufficiently severe. Daemi, 931 F.2d at 1388. And while we made it clear in Zeran that a plaintiff need not seek professional treatment to sustain an IIED claim, we emphasized a different factor that is also not present in Mengert’s case—disruption of the plaintiff’s daily affairs. Zeran, 203 F.3d at 721. The Oklahoma Supreme Court’s decision in Durham—finding sufficiently severe distress when the plaintiff stopped going outside, slept all day, and needed to be homeschooled—confirms the significance of this factor. Durham, 256 P.3d at 68. While not dispositive, we find it significant that Mengert has continued to travel by plane on a regular basis, despite the symptoms she experiences when reminded of the incident.
In sum, guided by this case law, we conclude that Mengert has failed to allege “emotional distress so severe that no reasonable person could be expected to endure it.” Id. For this reason, the district court did not err in granting the government’s motion to dismiss Mengert’s IIED claim under
3. The district court did not err in granting summary judgment on Mengert’s false arrest claim.
a. Legal Standard
The district court granted the government’s motion for summary judgment on Mengert’s false arrest claim.13
showing that no genuine issue of material fact exists is borne by the moving party.” Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (citation omitted). “In considering a motion for summary judgment, this court draws all reasonable inferences in favor of the nonmoving party.” Id. (citation omitted). “If no genuine issue of material fact is in dispute, this court then determines whether the substantive law was correctly applied by the district court.” Id. (citing Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996)).
Under Oklahoma law, аn actor has committed a false arrest when he or she commits an “unlawful restraint of an individual’s personal liberty or freedom of locomotion.” Roberts v. Goodner’s Wholesale Foods, Inc., 50 P.3d 1149, 1151 (Okla. Civ. App. 2002) (quoting Black’s Law Dictionary (5th ed. 1979)). Here, the district court concluded that, “[v]iewing the facts in a light most favorable to [Mengert], there is no way to view the actual detention or confinement of plaintiff as unlawful.” (Aplt. App. at 238). The district court reasoned that the TSA has broad authority to conduct suspicionless searches at airports, so long as those searches are not prolonged beyond the time-period necessary to complete their lawful mission, and the search of Mengert was not unreasonably long—the encounter lasted about seven minutes.
This was an accurate statement of the law—even suspicionless searches at airports by TSOs are generally lawful. Congress has instructed the TSA by statute to “provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft.”
TSA’s authority to search passengers includes the authority tо seize passengers to conduct such searches. See United States v. Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (“[T]hose presenting themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if the authorities elect to conduct a search.“); Corbett, 568 F. App’x at 698 (11th Cir.) (affirming dismissal of claim challenging plaintiff’s detention by TSA because once plaintiff entered security checkpoint, he consented to screening process and could be prevented from leaving the checkpoint). However, “a seizure may become ‘unlawful if it is prolonged beyond the time reasonably required to complete [its lawful] mission.‘” Corbett, 568 F. App’x at 698 (11th Cir.)
b. Analysis
Mengert argues that, while the TSOs did have the lawful authority to detain her initially and to continue the search for the suspicious object that showed up in her initial screening, they exceeded the scope of that authority when they told her to lower her pants in front of them so that they could inspect her feminine hygiene product. The district court’s conclusion that the stop remained lawful was based on the fact that the mission of the stop was the inspection of the object that showed up in the scan and time spent to obtain that object from Mengert was indispensable to accomplish that legitimate objection. Mengert concedes the lawfulness of this mission. (Aplt. Br. 14) (explaining that the TSOs’ “direction” to Mengert to accompany them to a private room for further inspeсtion of the feminine hygiene product is “not challenged here“); (id. at 14-15) (“[T]here is no challenge here to TSA’s policy that if its screeners cannot determine that a feminine hygiene product is only that via pat-down, they may direct the traveler to remove the item for inspection.“). However, Mengert argues that, while the TSOs could lawfully pursue an inspection of the feminine hygiene product, it was unlawful to do so by conducting a “strip search.”14 Therefore, Mengert argues, the “strip search” converted the lawful detention into an unlawful one by prolonging the search. (Aplt. Br. 16) (arguing that when the TSOs told Mengert to lower her pants, they “completely stopped all progress on their lawful mission so that they could unlawfully search Mengert“).
We reject Mengert’s argument. As explained above, false arrest under Oklahoma law turns on whether the plaintiff was subjected to an unlawful restraint—not whether conduct during a legally justified restraint was unlawful. And Mengert
concedes that inspection of the feminine hygiene product was a lawful mission. The district court’s factual findings indicate that the “entire encounter“—meaning from the time TSO Morroney conducted a pat-down until the time Mengert was cleared and allowed to leave the private screening room—lasted seven minutes. Mengert was in the private screening room for less than three minutes. Given these facts, we agree with the district court that TSOs Morroney and Brown did not prolong the stop “‘beyond the time rеasonably required to complete [its lawful] mission‘“—here, identifying the product identified near Mengert’s groin. Corbett, 568 F. App’x at 698 (11th Cir.) (citation omitted). Therefore, the TSOs’ brief detention of Mengert was lawful.15
(“The common-law tort of false arrest has a single element in Oklahoma: that the defendant-officer arrested the plaintiff without probable cause.“); id. at 970, 974 (the plaintiff brought both a false arrest and excessive force claim, and a finding of probable cause would defeat the false arrest claim, but would not preclude the excessive force claim). We therefore conclude that the district court did not err in granting summary judgment for the government on Mengert’s false arrest claim.
4. The district court did not abuse its discretion in denying Mengert’s motion for leave to amend.
a. Legal Standard and the District Court’s Decision
The district court denied Mengert’s motion under
“Fedеral Rule of Civil Procedure 15(a) provides that, after a responsive pleading has been served, a party may amend its pleading ‘only by leave of court or by written consent of the adverse party.’ The Rule specifies that ‘leave shall be freely given when justice so requires.‘” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). However, we have held that “parties seeking to amend their complaints after a scheduling order deadline must establish good cause for doing so.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014). The “denial of leave to amend is appropriate ‘when the party filing the motion has no adequate explanation for the delay.‘” Minter, 451 F.3d at 1206 (citations omitted); Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (“Courts have denied leave to amend in situations where the moving party cannot demonstrate excusable neglect. For example, courts have denied leave to amend where the moving party was aware of the facts on which the amendment was based for some time prior to the filing of the motion to amend.“). In contrast, the “good cause requirement may be satisfied . . . if a plaintiff learns new information through discovery or if the underlying law has changed.” Gorsuch, Ltd., 771 F.3d at 1240.
b. Analysis
Mengert argues that the district court abused its discretion by denying her
Mengert argues that she established “good cause” for the delay in filing her motion for leave to amend because “the government advanced a novel legal theory late in the case.” (Aplt. Reply. Br. 24) (“The government could have argued that [Mengert’s] allegations do not satisfy the elements of false imprisonment in a motion to dismiss in response to the complaint. They instead first raised the issue in a motion for summary judgment.“). It is unclear why the government’s argument that Mengert failed to establish the elements of false imprisonment (or false arrest) was an unexpected defense. Additionally, the government was not required to assert that defense in a motion to dismiss, rather than wait, as it did, to raise the argument at summary judgment. See
claim upon which relief can be granted” is not waived by fаiling to raise it in an answer or motion to dismiss and can be raised through trial).
Therefore, we agree with the district court that Mengert has failed to establish “good cause” for the delay in filing her motion for leave amend until after the December 2022 filing deadline had passed, as required by our precedent. Gorsuch, Ltd., 771 F.3d at 1241. The district court’s denial of that motion was not an abuse of discretion. See Minter, 451 F.3d at 1206 (“Courts will properly deny a motion to amend when it appears that the plaintiff is using
IV. CONCLUSION
We conclude that TSOs are “investigative or law enforcement officers” under
TYMKOVICH, Circuit Judge, dissenting in part.
Ms. Mengert went through a body scanner at a TSA PreCheck security checkpoint and then submitted to a pat-down. The screener felt a feminine hygiene product, and, after completing a test for explosive trace residue, informed Ms. Mengert she must go to a private room to be cleared. Two female screeners escorted her to the room and told her to lower her pants and underwear down to her knees. She objected, and the screeners told her compliance was required. Ms. Mengert complied and removed the product for their inspection.
Ms. Mengert subsequently sued the United States pursuant to the Federal Tort Claims Act (FTCA) for false imprisonment and intentional infliction of emotional distress. Although the United States has baseline sovereign immunity from suit, Congress has waived immunity for certain torts through the FTCA. But there are exceptions to this waiver of immunity. Congress retained sovereign immunity for claims arising “out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]”
But as the Majority explains, an exception exists to this exception—or a “re waive[er]“—for certain intentional torts. Pellegrino v. United States of Am. Transportation Sec. Admin., Div. of Dep’t of Homeland Sec., 937 F.3d 164, 176 (3d Cir. 2019) (“Congress chose to re-waive sovereign immunity only for certain torts.“) (emphasis added). “Known as the ‘law enforcement provisо,’ this provision extends the waiver of sovereign immunity to claims for [] intentional torts . . . based on the acts or omissions of investigative or law enforcement officers.” Millbrook, 569 U.S. at 52–53 (citations omitted). An “investigative or law enforcement officer[]” is defined 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.”
The question presented for our interpretive purposes is whether TSA screeners are investigative or law enforcement officers. I disagree with the majority’s conclusion that they are. The phrase “execute searches,” as limited by the whole of the statutory text, refers to traditional police powers. And because the more plausible reading of the statute limits the scope of the law enforcement proviso, controlling case law instructs us to read it narrowly.
There is a “general rule that a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 491–92 (2006). In Dolan, the Supreme Court found the general rule did not apply: “[T]his 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
But in FAA v. Cooper, 566 U.S. 284, 290–91 (2012), the Supreme Court doubled down on the rule that any ambiguities in a waiver of sovereign immunity are construed in favor of the government:
We have said on many occasions that a waiver of sovereign immunity must be unequivocally expressed in statutory text. . . . Any ambiguities in the statutory language are to be construed in favor of immunity . . . so that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text requires . . . . Ambiguity exists if there is a plausible interpretation of the statute that would not authorize money damages against the Government. . . . What we thus require is that the scope of Congress’ waiver be clearly discernable from the statutory text in light of traditional interpretive tools. If it is not, then we take the interpretation most favorable to the Government.
Id. (emphasis added).
Because the law enforcement proviso is a waiver of sovereign immunity, the waiver must be “unequivocally expressed in statutory text” and “any ambiguities in the statutory language are to be construed in favor of immunity.” Cooper, 566 U.S. at 290-91. See also United States v. Sherwood, 312 U.S. 584, 590 (1941) (“The section must be interpreted in the light of its function in giving consent of the Government to be sued, which consent, since it is a relinquishment of a sovereign immunity, must be strictly interpreted.“); Flute v. United States, 808 F.3d 1234, 1239 (10th Cir. 2015) (“[W]e will find the government has waived sovereign immunity only when its consent to be sued is unequivocally expressed.“); F.T.C. v. Kuykendall, 466 F.3d 1149, 1154 (10th Cir. 2006) (“[W]aivers of sovereign immunity cannot be implied but must be unequivocally expressed . . . and that any such waiver must be strictly construed in favor of the United States.“) (citations omitted). Thus, if the textual basis for the exception is equivocal, we should defer to sovereign immunity.
The Eighth Circuit in Iverson rejected this narrow view on waivers and exceptions: “the Court’s language in Dolan is broad; it does direct application of strict construction in the FTCA context. . . . Whether analyzing an exception or an exception to the exception, we are within the FTCA context, and therefore the [general] rule does not apply.” 973 F.3d 843, 854 (8th Cir. 2020). But Iverson and the Majority overread Dolan—the language is not so broad. The Supreme Court instructs us to resolve any ambiguity in a waiver of sovereign immunity in favor of the government, and to ignore this general rule when interpreting exceptions to a waiver in the FTCA context. And the law enforcement proviso is certainly a waiver of sovereign immunity. Pellegrino, 937 F.3d at 176 (“Congress chose to re-waive sovereign immunity only for certain torts.“). “Known as the ‘law enforcement proviso,’ this provision extends the waiver of sovereign immunity to claims for [] intentional torts . . . based on the acts or omissions of investigative or law enforcement officers.” Millbrook, 569 U.S. at 52–53 (citations omitted) (emphasis added).
We now turn to the government’s interpretation. The government asks us to limit the meaning of “execute searches” by the meanings of “seize evidence” and “make arrests.” In FTCA cases, like most cases, the Supreme Court explains that “[t]he definition of words in isolation . . . is not necessarily controlling in statutory construction.” Dolan, 546 U.S. at 486 (interpreting the FTCA’s retention of sovereign immunity for claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.“) (citing
Other circuits have declined to apply this canon in TSA cases. For instance, the Third and Eighth Circuits declined to apply the canon because the phrase “execute searches” was clear and the three duties were listed in the disjunctive. See Iverson, 973 F.3d at 852; Pellegrino 937 F.3d at 174–75. The Ninth Circuit agreed that the term “searches” was not “of obscure or doubtful meaning” and did not apply the canon. Leuthauser v. United States, 71 F.4th 1189, 1199 (9th Cir. 2023) (quoting Russell Motor Car Co. v. United States, 261 U.S. 514, 520 (1923)).
Even if the canon did not apply, the plain meaning of “execute searches” has a traditional law enforcement connotation without relying on the surrounding statutory language. See Black’s Law Dictionary 1518 (4th ed. 1968) (defining “search” as “[a]n examination of a man’s . . . person, with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense.“).
Nonetheless, in Dolan, the Supreme Court applied the canon to a nearby provision in the FTCA barring claims arising out of the “loss, miscarriage, or negligent transmission of letters or postal matter.” 546 U.S. at 485 (quoting
We must therefore ask how “seize evidence,” and “make arrests” color the meaning of “execute searches.” To seize evidence and make arrests are traditional police powers. “Mak[ing] arrests . . . no doubt has a criminal color.” Pellegrino, 937 F.3d at 174. But TSA screeners are not authorized to make arrests or seize evidence. There are two types of TSA employees. First, we have the “law enforcement officer” pursuant to
The meaning of “execute searches” in the law enforcement proviso is therefore limited to investigatory searches for a similar purpose and does not include the administrative searches conducted by TSA screeners. See City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 420 (2015) (distinguishing an administrative search—conducted to ensure compliance and deter criminals—from searches conducted for the purpose of conducting a criminal investigation). “Administrative searches are ubiquitous and include regulatory searches, . . . administrative subpoenas, . . . inventory searches, , , , workplace drug testing, . . . and border checkpoints.” Pellegrino, 937 F.3d at 184 (Krause, J., dissenting) (citations and quotations omitted).
To conclude otherwise presents a possible constitutional issue. If TSA screeners are executing searches for “violations of federal law,” then the screeners’ searches must be based on some individualized suspicion. But TSA screeners conduct searches without grounds for suspicion of particular individuals. The Supreme Court has referred to TSA screenings as “blanket suspicionless searches calibrated to the risk,” Chandler, 520 U.S. at 323, and the TSA’s authorizing statute makes clear that TSA screeners are to screen only for “cargo [that] poses a threat to transportation security,”
I would reverse the district court’s conclusion that Congress waived sovereign immunity for intentional torts committed by TSA screeners. I otherwise agree with the Majority’s analysis of the other issues raised on appeal.