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Albani v. United States

October 25, 2010

FRANCIS ALBANI, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Defendants Leo Jackson ("Jackson")*fn1 and Victoria Jones' ("Jones")*fn2 Motion to Dismiss Plaintiff Francis Albani's ("Albani") Amended Complaint. For the reasons set forth below, the Defendants' Motion will be granted.

I. BACKGROUND

On October 19, 2009, Albani filed his Complaint in this Court against Jackson and Jones, in addition to the United States of America (the "United States"), the DHS, Michael Chertoff ("Chertoff"), Edward S. "Kip" Hawley ("Hawley"), George E. Clisby ("Clisby"), Christine Pritchett-Griggs ("Pritchett-Griggs"), and Detective M. Wojciechowski ("Wojciechowski") of the Philadelphia Police Department. In his Complaint, Albani stated that on November 9, 2003, he was hired as a Transportation Security Officer ("TSO") for the TSA.*fn3 He further asserted that in February of 2005 he was promoted to Lead Transportation Security Officer ("LTSO").*fn4 The Complaint alleged 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) Pritchett-Griggs 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 alleged that during the relevant time period, Jackson and Jones, as well as the other above-named federal Defendants, acted within the course and scope of their employment and under color of federal law. (Pl.'s Compl. ¶¶ 3-8.) Further, Albani sued all the Defendants individually as well as in their official capacities. (Id.) The Complaint also alleged 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 asserted that on or about October 20, 2007, a passenger claimed to have lost her wallet in or about the passenger screening security checkpoint at the Philadelphia International Airport where Albani was working. (Id. ¶ 20.) Albani further alleged that on November 5, 2007, Jones and Jackson "required him to accompany them" from his checkpoint work station to the Philadelphia Police Department ("PPD") office at the Airport where Wojciechowski was present. (Id. ¶ 21.) Albani claimed that he was then "interrogated for two and half hours and gave a three page written statement." (Id.) Albani further claimed 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 stated that on November 22, 2007, he reported to work and "after signing in, he was taken into custody and arrested by 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 alleged 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. B at 43.)

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 considered 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 contained 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)*fn5 ("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 the individual Federal Defendants, Albani alleged 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 asserted violations of his rights under 42 U.S.C. § 1983, as well as the First, Fourth, Fifth, ...


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