United States District Court, District of Columbia
MEMORANDUM OPINION (SEPTEMBER 29, 2016) [DKTS. #21
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE
Andrew Warren, who was employed by the Central Intelligence
Agency ("CIA") until 2009, brings this suit
alleging he was harmed on two different occasions: first when
CIA doctors failed to diagnose his post-traumatic stress
disorder ("PTSD") caused by situations he endured
in his work with the CIA and, second, when Leon Panetta
testified on a matter involving the plaintiff at one of his
hearings to be confirmed as the director of the CIA. Although
plaintiffs initial complaint named only former-Director
Panetta and the CIA as defendants, plaintiff amended his
complaint to add the United States as a defendant, and he now
brings all three of his claims against the United States
under the Federal Tort Claims Act. See First Am.
Compl. ("FAC") [Dkt. #19].
case is presently before the Court on two motions to dismiss:
one by former-Director Panetta [Dkt. #21] and one by the CIA
and the United States (collectively "the federal
defendants") [Dkt. #22]. In responding to defendant
Panetta's motion to dismiss, plaintiff conceded that he
is not pursuing any claims against the former director in his
individual capacity. Pl's Opp'n 1 n.1 [Dkt. #24].
Accordingly, I will analyze the grounds for dismissal
outlined in the federal defendants' motion only. As the
federal defendants point out, plaintiff did not properly
serve this suit on the United States. Accordingly, the Court
does not have personal jurisdiction over any of the
defendants. Nevertheless, defendants ask me to dispose of
this matter once and for all, arguing that even if they were
properly within my jurisdiction, plaintiff still could not
bring this suit because his causes of action are time-barred.
It is for these reasons, which I explain more fully below,
that the defendants' motions to dismiss are GRANTED and
the suit is DISMISSED WITH PREJUDICE.
claims that as a result of his work with the CIA, he suffered
from PTSD beginning as early as 2001. FAC ¶¶ 11-12.
He alleges that it was medical malpractice that CIA medical
personnel failed to diagnose his PTSD during several medical
exams conducted during his time at the agency. Id.
¶¶ 13, 36-38. According to plaintiff, the untreated
PTSD caused him to engage in behaviors that resulted in his
termination from the CIA in 2009 and, later, to criminal
charges. Id. ¶¶ 11, 18.
beginning of 2009, the news media reported that plaintiff
Warren had sexually assaulted two women while overseas as a
CIA agent. See Fed. Defs.' MTD 5-7 (citing
sources of which the Court takes judicial notice). The report
identified Warren by name. Id. Shortly thereafter,
on February 6, 2009, Leon Panetta testified at a confirmation
hearing before the Senate Intelligence Committee, where two
senators asked Panetta questions about the news report.
Id. They inquired as to the repercussions of the
story being reported in the press and asked how he would
handle sharing information about such allegations if they
were reported to him as the director of the CIA. Id.
was indicted on one count of sexual abuse in June 2009.
See Fed. Defs.' MTD 8, n.6 (citing United
States v. Warren, No. 09-cr-158 (D.D.C. filed June 18,
2009), ECF No. 1). After more than a year of criminal
proceedings, Warren ultimately pleaded guilty to a
superseding information charging him with abusive sexual
contact and possession of a firearm by an unlawful user of a
controlled substance in June 2010. Id. (citing ECF
No. 62, ECF No. 63). He was sentenced in March 2011.
Id. (citing Minute Order of Mar. 3, 2011); FAC
¶ 18. At some time prior to being sentenced, Warren
submitted a psychiatrist's report to that court
explaining that he had been suffering from untreated PTSD
since 2001. FAC ¶ 12. Plaintiff was released from
incarceration for those crimes in January 2015. Pl's
Warren notified the CIA of his claims in March 2015, FAC
¶ 21, about two months after being released from prison,
about four years after being sentenced in the criminal
proceeding, and more than six years after defendant
Panetta's confirmation hearing testimony. He filed this
lawsuit against the CIA and Panetta in September 2015, Compl.
[Dkt #1], but he eventually amended the complaint to join the
United States as a defendant and to specify that each count
is "against the United States, " FAC 5-7. Plaintiff
alleges in Count 1 that Panetta's remarks before the
Senate Intelligence Committee violate the national security
laws and therefore make the United States liable to him under
the Federal Torts Claim Act ("FTCA"). FAC 5-6. In
Count 2, he makes the same FTCA claim on the alternate theory
that Panetta's remarks violate the common law tort of
invasion of privacy. FAC 6. There is no Count 3 in plaintiffs
amended complaint. In Count 4, plaintiff claims the United
States is liable under the FTCA for the CIA failing to
diagnose and treat his PTSD. FAC 7.
Complaint Should Be Dismissed Because Plaintiff Failed to
Properly Serve Defendants.
to interpret plaintiffs intentions faithfully, it seems that
his amended complaint pursues claims against the United
States only. See FAC 5-7. But even if he intended to
pursue claims against the CIA and former-Director Panetta in
his official capacity, service on the United States would be
required. See Fed. R. Civ. P. 4(i)(2) (even to sue
an "agency" or "employee" of the United
States, the plaintiff must serve the United States in
addition to the named defendant). Either way, this Court is
required to dismiss the case for lack of personal
jurisdiction over the defendants if plaintiff did not
properly serve the United States. See Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987) (proper service is necessary to establish personal
requirements for serving the United States are given in
Federal Rule of Civil Procedure 4(i)(1): a plaintiff must
send the complaint and summons to both the U.S.
Attorney of the district where the action is maintained
and the Attorney General of the United States.
Plaintiff responds to defendants' argument that he has
not sent the complaint and summons to the Attorney General by
citing to an irrelevant provision of the federal rules-Rule
15(c)-that governs the timing of adding the federal
government as a party. See Pl's Opp'n 3.
Plaintiff therefore concedes that he never sent the
Complaint, the First Amended Complaint, or a summons to the
Attorney General of the United States. Id.
Accordingly, the suit must be dismissed for lack of
Complaint Is Dismissed with Prejudice Because Plaintiffs
Claims Have Expired.
where service is improper and the court does not have
personal jurisdiction over the defendants, the law of this
Circuit is that allowing a plaintiff to properly serve
another suit containing the same meritless claims would be
inconsistent with the district court's duties. See
Simpkins v. D.C. Gov't,108 F.3d 366, 369-70 (D.C.
Cir. 1997); seealso Anderson v. Gates, 20
F.Supp.3d 114, 123 (D.D.C. 2013), aff'd sub nom.
Anderson v. Carter,802 F.3d 4 (D.C. Cir. ...