The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is: (1) a Motion to Dismiss filed by the United States of America (the "United States"), the Department of Homeland Security (the "DHS"), Michael Chertoff ("Chertoff"), Edward S. "Kip" Hawley ("Hawley"), George E. Clisby ("Clisby"), Christine Pritchett-Griggs ("Pritchett-Griggs"), Leo Jackson ("Jackson") and Victoria Jones*fn1 ("Jones") (collectively, "Federal Defendants"); and (2) a Motion to Dismiss filed by Detective M. Wojciechowski ("Wojciechowski"). For the reasons set forth below, Federal Defendants' Motion will be granted in part and denied in part, and Wojciechowski's Motion will be granted.
On October 19, 2009, Albani filed his Complaint in this Court. In his Complaint, Albani states that on November 9, 2003, he was hired as a Transportation Security Officer ("TSO") for the Transportation Security Administration (the "TSA").*fn2 He further asserts that in February of 2005, he was promoted to Lead Transportation Security Officer ("LTSO").*fn3 The Complaint alleges that at all times material hereto: (1) the United States operated the agency of the DHS and its sub-agency, the TSA (Compl. ¶ 2); (2) Chertoff was the Secretary of the DHS (id. ¶ 3); (3) Hawley was the Administrator of the TSA (id. ¶ 4); (4) Clisby was the Assistant Federal Security Director for Screening of the TSA in Philadelphia, Pennsylvania (id. ¶ 5); (5) PritchettGriggs was the Deputy Federal Security Director for Screening of the TSA (id. ¶ 6); (6) Jackson was a Federal Law Enforcement Agent (id. ¶ 7); and (7) Jones was a Federal Law Enforcement Agent (id. ¶ 8).
In his Complaint, Albani alleges that during the relevant time period, the individual Federal Defendants acted within the course and scope of their employment and under color of federal law. (Pl.'s Compl. ¶¶ 3-8.) Further, Albani has sued the individual Federal Defendants individually as well as in their official capacities. (Id.) The Complaint also alleges that at all times material hereto, Wojciechowski was a Police Officer and Detective for the City of Philadelphia Police Department and was acting "under color of State law, to wit, under color of the statutes, ordinances, regulations, customs and usages of the United States, and of the Commonwealth of Pennsylvania pursuant to his respective authority as a police officer and detective of the City of Philadelphia." (Id. ¶ 9.)
Albani asserts that on or about October 20, 2007, a passenger claimed to have lost her wallet in or about the passenger screening security checkpoint at Philadelphia International Airport where Albani was working. (Id. ¶ 20.) Albani further alleges that on November 5, 2007, Jackson and Jones "required him to accompany them" from his checkpoint work station to the Philadelphia Police Department where Wojciechowski was present. (Id. ¶ 21.) Albani claims that he was then "interrogated for two and half hours and gave a three page written statement." (Id.) Albani further claims that he was then "instructed to leave work even though his shift was not yet done and to return in two days which he did." (Id.)
Albani states that on November 22, 2007, he reported to work and "after signing in, he was taken into custody and arrested by Defendant Detective Wojciechowski and charged with theft by unlawful taking, theft loss property and theft RSP arising out of the October 20, 2007 incident." (Id. ¶ 22.) Albani alleges that he remained in custody for twenty-one hours. (Id.)
On December 12, 2008, following a bench trial in the Philadelphia Municipal Court, Albani was found not guilty of all charges related to the October 20, 2007 incident. (Id. ¶ 23.) Specifically, regarding the charges brought against Albani, the trial judge stated: "It's suspicion. I don't think you have beyond suspicion and conjecture on a good day. I understand the suspicion, but I'm at beyond a reasonable [doubt]. And I'm not there." (Pl.'s Mem. of Law in Opp. to Mot. to Dismiss, Ex. D at 44.)
On February 24, 2008, Albani's American Federation of Government Employees representative received a Notice of Proposed Removal prepared by Clisby, dated February 20, 2008. (Id., Ex. B at 1.) In the Notice of Proposed Removal, Clisby stated that "[t]he security videotapes.... show you departing from the checkpoint with your arm close to your body in a manner that is consistent with holding the passenger's wallet under your vest." (Id., Ex. B at 13- 14.) Clisby further stated that "[y]ou have the right to reply to this proposal orally and/or in writing and furnish evidence in support of your reply...." (Id., Ex. B at 14.) In a letter dated March 6, 2009, counsel for Albani responded to the Notice of Proposed Removal, arguing that because the "TSA has not proved by a preponderance of the evidence that Mr. Albani has committed the crime of theft, this proposed removal is invalid as a matter of law and must be rescinded immediately." (Id., Ex. B at 93.)
In a letter dated March 9, 2009, counsel for Albani informed the TSA that "[d]emand is made for lost wages, future lost wages, pain and suffering and impairment of the quality of life." (Id., Ex. E at 1.) Albani alleges that by September 6, 2009, neither the TSA nor the DHS had either accepted or objected to his demand. (Pl.'s Compl. ¶ 13.) Therefore, pursuant to 28 U.S.C. § 2675(a), Albani considers the failure to act as a final denial of his claim. (Id.)
On March 30, 2009, Pritchett-Griggs issued a Notice of Decision on Proposed Removal, effective April 3, 2009. (Pl.'s Mem. of Law in Opp. to Mot. to Dismiss, Ex. B at 43.) In the Notice of Decision on Proposed Removal, Pritchett-Griggs stated that she considered Albani's arguments in his March 6, 2009 letter, as well as various mitigating factors, but nonetheless decided to remove Albani from his position with the TSA. (Id., Ex. B at 44-45.) In the Notice, Pritchett-Griggs also informed Albani that he had the right to appeal the decision in writing to the TSA's Disciplinary Review Board and explained the relevant procedures. (Id., Ex. B at 45.)
In a letter dated May 4, 2009, counsel for Albani submitted a Disciplinary Review Board Appeal of the Notice of Decision on Proposed Removal. Albani's counsel stated in the appeal brief that:
Albani asks that TSA rescind this removal, restore him to his former rank of LTSO, and grant him back pay, annual leave, sick leave and seniority privileges dating back to his last day of work, December 14, 2007, or at the very least to December 12, 2008, the date of his acquittal. (Id., Ex. B at 2.) In a letter dated July 9, 2009, Ernest Carrozza, Director of the Disciplinary Review Board, informed Albani that the Disciplinary Review Board met on July 8, 2009 and denied his appeal. (Id., Ex. C at 1.)
Albani's Complaint contains eight Counts: (1) a negligence claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), against the United States; (2) a claim pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens claim") against Chertoff; (3) a Bivens claim against Hawley; (4) a Bivens claim against Clisby; (5) a Bivens claim against Pritchett-Griggs; (6) a Bivens claim against Jackson; (7) a Bivens claim against Jones; and (8) a claim pursuant to 42 U.S.C. § 1983 against Wojciechowski. Against Federal Defendants, Albani alleges violations of his rights under the First, Fourth, Fifth and Eighth Amendments of the United States Constitution. (Id., Ex. A at 13-23.) Against Wojciechowski, Albani asserts violations of his rights under 42 U.S.C. § 1983, as well as the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. (Id., Ex. A at 25-26.) Albani also alleges, inter alia, that "Wojciechowski unlawfully and negligently arrested and prosecuted" him. (Id., Ex. A at 25.)
On December 16, 2009, Wojciechowski filed a Motion to Dismiss. In his Motion, Wojciechowski argues that Albani's claims under the First, Fifth, Sixth, Eighth and Fourteenth Amendments are meritless. Wojciechowski, however, does not argue against the merits of Albani's Fourth Amendment claim, but only contends that Albani's claims against him for negligence are barred by the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et seq. (the "Tort Claims Act").
On December 22, 2009, Federal Defendants filed their Motion to Dismiss. Regarding the FTCA claim, Federal Defendants argue that: (1) Albani failed to exhaust administrative remedies; (2) the claim is precluded by Civil Service Reform Act, Pub. L. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C. (1982 ed. and Supp. IV)) ("CSRA"); and (3) the claim is barred by the Aviation Transportation and Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001), as codified in 49 U.S.C. § 114 et seq. ("ATSA"). Regarding the Bivens claims, Federal Defendants argue that: (1) the claims are not applicable in the employment context; (2) Albani failed to establish a cause of action under Bivens; and (3) the claims are barred by the doctrine of qualified immunity.
On February 16, 2010, Albani filed his Response to the Motions filed by Federal Defendants and Wojciechowski (collectively, "Defendants"). In his Response, Albani does not address the merits of his claims under the First, Sixth, Eighth and Fourteenth Amendments. Albani, however, requests that the Court grant him leave to amend rather than dismiss his claims with prejudice if we find that his pleadings are insufficient under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Albani also attaches as an Exhibit to his Response a Standard Form 95 dated February 16, 2010 (stating that it was "refiled from 3/9/09") wherein Albani asserted that the total amount of his claim is $2,000,000.00. (Pl.'s Mem. of Law in Opp. to Mot. to Dismiss, Ex. F at 1.)
On March 2, 2010, Federal Defendants filed their Reply to Albani's Response, reiterating the various arguments set forth in their Motion. Federal Defendants also argue that Albani's conditional request for leave to amend should be denied because Albani did not attach a copy of his proposed amended complaint and because amendment would be futile. On March 11, 2010, Albani filed his Reply, restating the arguments from his Response.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure 12(b)(1), when "considering a motion to dismiss for lack of subject matter jurisdiction, the person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Fed. Realty Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D. Pa. 2000) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)). The district court, when reviewing a motion to dismiss for lack of subject matter jurisdiction, "must accept as true the allegations contained in the plaintiff's complaint, except to the extent federal jurisdiction is dependent on certain facts." Id. (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir. 1987)). The district court is not confined to the face of the pleadings when deciding whether subject matter jurisdiction exists. Id. (citing Armstrong World Indus. v. Adams, 961 F.2d 405, 410, n.10 (3d Cir. 1992)). "In assessing a Rule 12(b)(1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside of the pleadings." Id. (citing Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990)). In the case where the defendant attacks ...