NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 18-3566 ____________

YVONNE GOODE, Appellant

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TRANSPORTATION SECURITY ADMINISTRATION; JOHN DOES 1-20; JANE DOES 1-20; JOHN ROES 1-20; JANE ROES 1-20; ABC CORPORATIONS A TO Z

____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-17-cv-12064) District Judge: Honorable Madeline C. Arleo ____________

Submitted under Third Circuit LAR 34.1(a) May 28, 2020

Before: AMBRO, HARDIMAN, and RESTREPO, Circuit Judges.

(Filed: May 28, 2020) ____________

OPINION * ____________

HARDIMAN, Circuit Judge.

Yvonne Goode appeals an order of the District Court dismissing her claims against

the Transportation Security Administration (TSA) and the Department of Homeland

Security (DHS) arising from an airport security screening. Goode alleged racial

discrimination in violation of the United States Constitution, the Civil Rights Act of

1964, and the New Jersey Law Against Discrimination (NJLAD). She also alleged sexual

assault under the Federal Tort Claims Act (FTCA).

The District Court dismissed the case for lack of subject matter jurisdiction. It

reasoned the United States had not waived sovereign immunity for the discrimination

claims. It also determined that Goode failed to name a proper defendant for her FTCA

sexual assault claim. Finally, it found any amendment to her complaint would be futile

because our precedent at the time held that TSA screeners were not amenable to suit

because they were not covered by the law enforcement proviso to the FTCA’s intentional

tort exception. Pellegrino v. TSA,

(3d Cir. 2018), vacated,

(3d Cir. 2018). We will affirm in part, vacate in part, and remand for further

proceedings.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 I1

Goode, an African-American woman, entered the security line at Newark Liberty

International Airport on March 25, 2016. After passing through the metal detector, a

female TSA officer told Goode the alarm went off, gave her a pat down, and swabbed her

hands for chemicals. Goode alleged the officer used the front of her hands when patting

down Goode’s crotch area in violation of protocol, causing her to feel violated. Goode

also alleged that she saw TSA officers search another African-American woman yet fail

to search two Caucasian women and one Latina.

Goode filed an administrative claim and demanded $100,000 in damages from

TSA. TSA denied the claim, advising Goode she could “file suit in an appropriate U.S.

District Court not later than 6 months after the date this letter was mailed.” App. 6.

Goode filed a two-count complaint in the District Court. Count I included her three racial

discrimination claims and Count II alleged sexual assault under the FTCA.

The District Court granted DHS and TSA’s motion to dismiss for lack of subject

matter jurisdiction and Goode timely appealed.

II

Goode argues the District Court erred in ruling that it lacked subject matter

jurisdiction over her claims arising under the United States Constitution, Title II of the

1 The District Court had jurisdiction under

. We have jurisdiction under

.

3 Civil Rights Act of 1964, and the New Jersey Law Against Discrimination. But these

three claims suffer from the same flaw: the United States has not “unequivocally

expressed” its waiver of sovereign immunity. Dep’t. of the Army v. Blue Fox, Inc.,

(1999).

Goode contends the FTCA waives sovereign immunity for her constitutional

claims. This is incorrect. As we have held, “the United States is not liable under the

FTCA for money damages for suits arising out of constitutional violations.” Couden v.

Duffy,

(3d Cir. 2006) (citing F.D.I.C. v. Meyer,

, 477–78

(1994)). The same is true for suits under state anti-discrimination laws, such as the New

Jersey Law Against Discrimination. Holt v. Shinseki,

, at *3 (W.D. Pa.

Oct. 28, 2013); Leitch v. MVM, Inc.,

, at *7 (E.D. Pa. Jul. 22, 2004).

And Title II of the Civil Rights Act of 1964 allows only claims for injunctive relief, not

those seeking damages, as Goode seeks here. Newman v. Piggie Park Enters. Inc.,

(1968); 42 U.S.C. § 2000a-3(a).

Goode argues DHS and TSA waived their sovereign immunity when, in denying

her administrative claim, they advised that she could sue if she was unhappy with the

decision. This argument is unpersuasive because “[a] waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in [the] statutory text and will not

be implied.” Lane v. Pena,

(1996) (internal citations omitted and

4 emphasis added). Congress did not provide such a waiver here, so we will affirm the

District Court’s dismissal of her racial discrimination claims.

III

Goode also argues the District Court erred when it dismissed her sexual assault

claim in reliance on our then-controlling precedent in Pellegrino,

. Under

(h), certain enumerated intentional torts, including assault, are generally

not cognizable under the FTCA. CNA v. United States,

(3d Cir. 2008).

But the statute contains a proviso allowing claims for intentional torts committed by an

“investigative or law enforcement officer of the United States.”

(h). In

Pellegrino, a panel of this Court held TSA agents were not law enforcement officers

under the FTCA.

. The District Court applied this rule, dismissing

Goode’s complaint for lack of subject matter jurisdiction, and explaining that amendment

would be futile. As Goode points out, however, the en banc Court reversed, holding that

TSA officers are law enforcement officers under the FTCA. Pellegrino v. TSA,

(3d Cir. 2019) (en banc). So that rationale no longer supports the District

Court’s decision.

The District Court dismissed Goode’s FTCA claim for the alternative reason that

she failed to sue the United States, which is the only proper defendant in a case brought

under the FTCA. CNA,

n. 2; see also Hughes v. United States,

(7th Cir. 1982) (“Under the Federal Tort Claims Act, a governmental agency

cannot be sued in its own name; the action must be brought against the United States.”).

Goode argues the United States automatically substitutes in for TSA and DHS under

(d)(1). But that section provides for the substitution of the United States

only for individual federal employees acting within the scope of their employment. See

Osborn v. Haley,

, 240–41 (2007). It does not provide authority for the

substitution of the United States for federal agencies.

The District Court’s alternative rationale for dismissing Goode’s FTCA claim was

correct. But the Court did not perform a futility analysis, so it is unclear whether Goode

should be permitted to amend her complaint. We leave that decision to the District Court

on remand consistent with Rule 15 of the Federal Rules of Civil Procedure.

* * *

For the reasons stated, we will affirm in part, vacate in part, and remand the matter

to the District Court for further proceedings consistent with this opinion.

6