United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
case arises out of unfortunate and undisputed circumstances
that for a period of time, a Special Agent of the FBI was
fueling his own heroin addiction with evidence seized in
federal criminal investigations. A group of individuals
convicted of conspiracies he helped investigate, Albert
Marcellus Briscoe, Merle Watson, and Donald Duren, have
brought an action against defendants United States of America
("United States"), the Federal Bureau of
Investigation ("FBI"), the United States Department
of Justice ("DOJ"), Andrew McCabe in his official
capacity as the Acting Director of the FBI,  and former FBI
Special Agent Matthew Lowry in both his official capacity
with the FBI and in his individual capacity. The complaint
includes claims of negligence (Count I), false imprisonment
(Count III), and negligent infliction of emotional distress
(Count IV) against all defendants, and a claim of negligent
supervision (Count II) against all defendants except
to Federal Rule of Civil Procedure 12(b)(1), the United
States has moved to dismiss plaintiffs' complaint against
the agencies and the individual defendants sued in their
official capacity for lack of subject matter jurisdiction,
stating that the United States is the only proper defendant
in a case brought under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346, 2671-80. Def
United States & Agency Defs.' Mot. to Dismiss [Dkt. #
16] ("United States Mot."); Mem. in Supp. of United
States Mot. [Dkt. # 16] ("United States Mem.") at
4. The United States has also moved to dismiss Count II,
negligent supervision, for lack of subject matter
jurisdiction on the grounds that the discretionary function
exception to the FTCA applies. United States Mem. at 4. In
addition, the United States has moved to dismiss the
remaining claims against it (Counts I, III, and IV) pursuant
to Federal Rule of Civil Procedure 12(b)(6) on the grounds
that plaintiffs have failed to plead plausible claims of
negligence, false imprisonment, and negligent infliction of
emotional distress. Id. at 4-5.
Lowry has moved to dismiss the three claims against him in
his official capacity pursuant to Rule 12(b)(1) since the
only proper defendant in an FTCA action is the United States.
Def. Lowry Mot. to Dismiss [Dkt. #25] ("Lowry
Mot"); Mem. in Supp. of Lowry Mot. [Dkt. # 25]
("Lowry Mem") at 4. Further, he has moved to
dismiss the claims against him in his individual capacity
pursuant to Rule 12(b)(6) on the grounds that plaintiffs have
failed to plead plausible claims of negligence, false
imprisonment, and negligent infliction of emotional distress.
Lowry Mem. at 4, 25.
Court finds that it lacks subject matter jurisdiction over
the claims against the FBI, DOJ, McCabe in his official
capacity, and Lowry in his official capacity, and that
plaintiffs have failed to state a claim upon which relief can
be granted for the remaining three alleged tort claims
against the United States (Counts I, III, and IV). Because
plaintiffs are entitled to jurisdictional discovery to
determine whether the discretionary function exception under
the FTCA applies, the Court cannot yet determine if it has
subject matter jurisdiction over plaintiffs' negligent
supervision claim against the United States (Count II). So,
it would be premature for the Court to rule on the merits of
that claim. It would also be premature for the Court to rule
on plaintiffs' claims against Lowry in his individual
capacity since the Court would only have supplemental
jurisdiction over those claims if plaintiffs' claim for
negligent supervision against the United States survives.
the Court will grant the motions to dismiss as to all counts
against the FBI, DOJ, McCabe in his official capacity, and
Lowry in his official capacity because the United States is
the only proper defendant in a suit under the FTC A, and the
Court will grant the government's motion to dismiss
Counts I, III, and IV against the United States for failure
to state a claim under Rule 12(b)(6). The Court will deny the
government's motion to dismiss Count II without prejudice
and will grant plaintiffs' request for limited
jurisdictional discovery concerning the existence of any
relevant internal FBI policies. The Court finds that it lacks
federal subject-matter jurisdiction over plaintiffs'
claims for negligence, false imprisonment, and negligent
infliction of emotional distress against Lowry in his
individual capacity, but it will defer making a determination
about whether it should exercise supplemental jurisdiction
over the state tort claims until it has ruled on the
challenges to the remaining claim (Count II) against the
December 2012, plaintiffs were indicted and arrested for
their alleged roles in conspiracies to distribute heroin. Am.
Compl. ¶¶ 18-19, 43-44, 80-82. Each plaintiff was
detained pending trial, id. ¶¶ 20, 45, 81,
and each pled guilty to conspiracy to distribute, and to
possess with intent to distribute, heroin. Id.
¶ 23 (Briscoe pled guilty on June 12, 2013);
id. ¶ 48 (Watson pled guilty on May 31, 2013);
id. ¶ 85 (Duren pled guilty on September 10,
2013). Plaintiff Briscoe was sentenced to twenty-seven months
in prison, plaintiff Watson was sentenced to sixty months in
prison, and plaintiff Duren was sentenced to forty-one months
in prison. Id.¶¶26, 51, 88. As part of his
guilty plea, each plaintiff affirmed that he had participated
in a drug distribution conspiracy and that he was
"pleading guilty because [he was] in fact guilty."
Ex. 1 to Lowry Mot. [Dkt. # 25-2] ("Briscoe Plea")
at 9; Ex. 2 to Lowry Mot. [Dkt. # 25-3] ("Duren
Plea") at 9; Ex. 3 to Lowry Mot. [Dkt. # 25-4]
("Watson Plea") at 9.
October 2014, the government informed the district court
"that one of the special agents who assisted in the
investigation of [plaintiffs' cases] may have engaged in
misconduct by tampering with evidence, including narcotics
evidence, seized during investigations in which that agent
participated." See Notice of Filing [No.
1:12-cr-270, Dkt. # 190] ("Duren Notice"); Notice
of Filing [No. 1:12-cr-271, Dkt. # 239] ("Watson
Notice"); Notice of Filing [No. 1:12-cr-271, Dkt. # 238]
("Briscoe Notice"). Specifically, Lowry took heroin -
either directly from purchases made in undercover operations
or from seized evidence stored in the Washington Field
Office's Evidence Control Center ("ECC") - and
appropriated it for his own use. Am. Compl.
¶¶ 105-20. He replaced the heroin with a
cutting substance and falsified chain of custody reports when
returning the remaining seized heroin to the ECC.
Id. Lowry kept the heroin in his possession for
weeks to months at a time and on at least one occasion,
ingested all of the heroin purchased in an undercover
narcotics operation instead of returning it to the ECC.
Id. ¶¶ 114, 120. As a result of this
wrongdoing, Lowry was charged with, and pled guilty to,
multiple counts of obstruction of justice, falsification of
records, conversion of property, and possession of heroin.
Id. ¶¶ 124-25. On July 9, 2015, Lowry was
sentenced to a thirty-six month term of imprisonment to be
served concurrently with a twelve-month term, followed by a
twenty-four month period of supervised release. Id.
November 5, 2014, the government moved to dismiss the
indictments against Watson, Briscoe, and Duren, and consented
to their oral motions to withdraw their guilty pleas and
vacate their sentences. Government's Notice of Consent to
Defs.' Oral Mots. & Mot. to Dismiss Indictment [No.
1:12-cr-270, Dkt. # 187] ("Gov't Notice");
Gov't Notice [No. 1:12-cr-271, Dkt. # 233]. The district
court vacated plaintiffs' convictions on November 6,
2014. Order [No. 1:12-cr-270, Dkt. # 193]; Order [No.
1:12-cr-271, Dkt. # 243].
April 2015, each plaintiff filed an administrative claim with
the FBI. Am. Compl. ¶ 3. The FBI denied the claims in
October 2015. Id. Plaintiffs initiated this action
on April 29, 2016, Compl. [Dkt. #1], and filed an amended
complaint on June 8, 2016. Am. Compl. Plaintiffs allege that
the evidence against them was "fraudulent, "
see, e.g., id. ¶ 22, that they were
"wrongfully incarcerated, " id.
¶¶ 34, 59, 96, and that as a result of their
incarceration, they experienced a number of physical,
emotional, and economic consequences, including
"significant deterioration]" in their physical
and mental health, an inability to care for ailing family
members, and lost employment. Id. ¶¶
34-42, 59-79, 96-102.
August 8, 2016, the United States moved to dismiss the
complaint against the agency defendants and individuals in
their official capacities pursuant to Rule 12(b)(1) and Rule
12(b)(6). United States Mot. Plaintiffs opposed the motion on
October 31, 2016, Pis.' Opp. to United States Mot. [Dkt.
# 18] ("Pis.' Opp. to United States Mot"), and
the United States filed its reply on December 1, 2016. Reply
Mem. in Supp. of United States Mot. [Dkt. #20] ("United
States Reply"). On February 9, 2017, Lowry moved
separately to dismiss the complaint pursuant to Rule 12(b)(1)
and Rule 12(b)(6). Lowiy Mot. Plaintiffs opposed the motion
on February 23, 2017, Pis.' Opp. to Lowry Mot. [Dkt. #
26] ("Pis.' Opp. to Lowry Mot."), and Lowry
filed his reply on March 2, 2017. Def Lowry Reply to PL's
Resp. to Mot. to Dismiss [Dkt. # 27] ("Lowry
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must "treat the complaint's
factual allegations as true . . . and must grant plaintiff
'the benefit of all inferences that can be derived from
the facts alleged.'" Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citations omitted), quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also
Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Nevertheless, the Court need not accept
inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the
Court accept plaintiffs legal conclusions. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Subject Matter Jurisdiction
Rule 12(b)(1), the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d
59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that "a cause lies
outside this limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004) ("As a court of limited jurisdiction,
we begin, and end, with an examination of our
jurisdiction."). "[B]ecause subject-matter
jurisdiction is 'an Art[icle] III as well as a statutory
requirement ... no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
considering a motion to dismiss for lack of jurisdiction,
unlike when deciding a motion to dismiss under Rule 12(b)(6),
the Court "is not limited to the allegations of the
complaint." Hohri v. United States, 782 F .2d
227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Rather, "a court may consider such
materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear
the case." Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992); see also Jerome Stevens Pharm.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Failure to State a Claim
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556U.S. 662, 678
(2009), quoting Bell Atl. Corp. v. Twombly, 550U.S.
544, 570 (2007). InIqbal, the Supreme Court
reiterated the two principles underlying its decision in
Twombly: "First, the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions, " and
"[s]econd, only a complaint that states a plausible
claim for relief survives a motion to dismiss."
Id. at 678-79.
is facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. at 678, citing Twombly, 550 U.S. at
556. "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id., quoting Twombly, 550
U.S. at 556. A pleading must offer more than "labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action, " id, quoting
Twombly, 550 U.S. at 555, and "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id., citing Twombly, 550 U.S. at 555.
considering a motion to dismiss under Rule 12(b)(6), the
Court is bound to construe a complaint liberally in the
plaintiffs favor, and it should grant the plaintiff "the
benefit of all inferences that can be derived from the facts
alleged." Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court
need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint,
nor must the Court accept plaintiff s legal conclusions.
See id.; see also Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for
failure to state a claim, a court may ordinarily consider
only "the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the
complaint, and matters about which the Court may take
judicial notice." Gustave-Schmidt v. Chao, 226
F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St.
Francis Xavier Parochial Sch., 117F.3d621,
624-25 (D.C. Cir. 1997).
The Court lacks subject matter jurisdiction over the claims
agaiust the agencies and individual agency
defendants in their official
"the doctrine of sovereign immunity shields the federal
government [and its agencies] from suit." Tri-State
Hosp. Supply Corp. v. United States341 F.3d 571, 575
(D.C. Cir. 2003), citing FDIC v. Meyer, 510 U.S.
471, 475 (1994). Under this doctrine, the Court's
jurisdiction is limited to those instances in which the
government has "unequivocally" waived sovereign
immunity. Id., citing Dep't of Army v. Blue
Fox, Inc.,525 U.S. 255, 261 (1999). "The FTCA
'grants federal district courts jurisdiction over claims
arising from certain torts committed by federal employees in
the scope of their employment, and waives the
government's sovereign immunity from such
claims.'" Jerome Stevens Pharms., 402 F.3d
at 1252, quoting Sloan v. ...