The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendants' motion to dismiss and on plaintiff's motion to amend his complaint. After careful consideration of the parties' papers, the attached exhibits, and the relevant statutes and case law, the Court will grant defendants' motion and will deny plaintiff's motion as futile.*fn1
Plaintiff Michael Tabman is a former Special Agent In Charge of the Minneapolis Field Office of the Federal Bureau of Investigation. See Complaint ("Compl.") ¶ 2. In August 2006, Special Agent Harry Samit, whose work plaintiff oversaw, informed the FBI Office of Professional Responsibility ("OPR") that plaintiff had retaliated against Mr. Samit in response to certain protected disclosures that Mr. Samit had made. See Compl. ¶ 12; Mot., Statement of Facts ("Def. Facts") ¶ 4. In response to this allegation, FBI OPR opened an investigation. See Compl. ¶ 12; Def. Facts ¶ 4. On January 2, 2007, the investigation concluded with a recommendation that plaintiff be dismissed from FBI service. See Compl. ¶ 19; Def. Facts ¶ 5. Plaintiff retired from the FBI in March 2007. See Def. Facts ¶ 7.
Plaintiff filed suit on December 19, 2008, naming as defendants the FBI and FBI Deputy Director John Pistole in his individual capacity.*fn2 In this lawsuit he asserts three causes of action. The first is for intentional infliction of emotional distress against the FBI, which plaintiff asserts under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The second cause of action is against Mr. Pistole and seeks money damages for alleged violations of plaintiff's constitutional rights under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The third cause of action is against the FBI and asserts that the FBI deprived plaintiff of procedural due process in violation of the Fifth Amendment to the United States Constitution. Defendants have moved to dismiss all three claims on multiple grounds, including for failure to state a claim and for lack of subject matter jurisdiction.
A. Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, with the ability to hear only cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Hunter v. District of Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). In determining whether to grant a motion to dismiss for lack of subject matter jurisdiction, the Court must construe the complaint in the plaintiff's favor and treat all well-pled allegations of fact as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). The Court need not accept unsupported inferences or legal conclusions cast as factual allegations. See Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003). Under Rule 12(b)(1), the Court may dispose of the motion on the basis of the complaint alone or it may consider materials beyond the pleadings, "as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000).
B. Motion for Summary Judgment Pursuant to Rule 56*fn3
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. See also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); Washington Post Co. v. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in her favor. See Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
A. Plaintiff's Due Process Claim
Plaintiff alleges that the FBI violated a liberty interest protected by the Fifth Amendment guarantee of procedural due process in the way that it investigated him and decided to remove him from the FBI. See Compl. ¶¶ 41-46. He asserts that he "was deprived of a liberty interest without a fair opportunity to affect the judgment or result affecting his employment and benefits at the FBI." See id. ¶ 42. Plaintiff asserts that the FBI's actions have "deprived and will continue to deprive Plaintiff of opportunities of continued activity in his chosen profession of federal employment." Plaintiff continues, "the FBI has stigmatized Plaintiff and will continue to ...