United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY JUDGE
Mariam Wagdy, a citizen of Egypt and resident of the United
Arab Emirates, has filed claims under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 551 et
seq., and the Federal Records Act (“FRA”),
44 U.S.C. § 2101 et seq., against the following
defendants: (1) the U.S. Department of State; (2) the U.S.
Coast Guard; (3) U.S. Customs and Border Protection; (4) the
U.S. Department of Homeland Security; and (5) the heads of
the aforementioned agencies in their official capacities. ECF
No. 1. Her claims arise out of her contention that Defendants
“created and promulgated false information” about
her-namely that she was tampering with evidence and
obstructing justice-in order to revoke her visa and deny her
entry into the United States, where she was expected to be a
defense witness in the court martial of Zane Josi, a member
of the U.S. Coast Guard. See Id. ¶¶ 16-20.
the Court are Wagdy's motion to amend her complaint, ECF
No. 30 (“Mot. to Am.”), and Josi's motion to
intervene, ECF No. 29 (“Mot. to
Int.”). In their motions, Wagdy and Josi seek to
bring claims under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq.,
against the United States, ECF No. 29-1 (“PSAC”)
at 1, 13-15 (proposed Counts V and VI), and Josi seeks to
bring claims under the Fifth and Sixth Amendments to the U.S.
Constitution against all Defendants, id. at 15-16
(proposed Count VII). For the reasons stated below, the Court
will deny both motions.
Wagdy's Motion to Amend
Federal Rule of Civil Procedure 15(a)(2), if a party may no
longer amend her pleading as of right, then she “may
amend [her] pleading only with the opposing party's
written consent or the court's leave, ” and
“[t]he court should freely give leave when justice so
requires.” However, “[c]ourts may deny a motion
to amend a complaint as futile . . . if the proposed claim
would not survive a motion to dismiss.” Williams v.
Lew, 819 F.3d 466, 471 (D.C. Cir. 2016) (second
alteration in original) (quoting James Madison Ltd. ex
rel Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996)). The Court will deny Wagdy's motion to amend her
complaint as futile because her proposed FTCA claims are
either barred by the FTCA's intentional tort exception or
fail to state a claim under the common law of any relevant
is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.” Webman v. Fed.
Bureau of Prisons, 441 F.3d 1022, 1025 (D.C. Cir. 2006)
(quoting United States v. Mitchell, 463 U.S. 206,
212 (1983)). “The federal government may waive its
sovereign immunity by statute, but that waiver ‘must be
unequivocally expressed in statutory text.'”
Id. (quoting Lane v. Peña, 518 U.S.
187, 192 (1996)). The FTCA “was designed primarily to
remove the sovereign immunity of the United States from suits
in tort.” Levin v. United States, 568 U.S.
503, 506 (2013) (quoting Richards v. United States,
369 U.S. 1, 6 (1962)). The statute explicitly “makes
the United States liable to the same extent as a private
individual under like circumstances, under the law of the
place where the tort occurred, subject to enumerated
exceptions to the immunity waiver.” Id. at
506-07 (internal citations and quotation marks omitted). The
intentional tort exception bars “[a]ny claim arising
out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights.” 28 U.S.C. § 2680(h). However, the
exception itself also has an exception: it does not apply to
claims arising “out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution” with regard to “acts or omissions of
investigative or law enforcement officers.”
Id. The FTCA defines an “investigative or law
enforcement officer” as “any officer of the
United States who is empowered by law to execute searches, to
seize evidence, or to make arrests for violations of federal
motion to amend, Wagdy seeks to bring an FTCA claim against
the United States for “tortiously interfer[ing]”
with her business and business relationships by rendering her
unable to travel to the United States. PSAC ¶ 68.
However, this claim is barred by the intentional tort
exception because tortious interference with business or
economic relations is a claim “arising out of . . .
interference with contract rights, ” 28 U.S.C. §
2680(h). See Art Metal-U.S.A., Inc. v. United
States, 753 F.2d 1151, 1154-55 (D.C. Cir. 1985) (claims
of interference with “economic relationship with third
parties” are “barred as claims arising out of
interference with contract rights”); Husain v.
Smith, No. 15-cv-708, 2016 WL 4435177, at *5 (D.D.C.
Aug. 19, 2016) (same); Bannum, Inc. v. Samuels, 221
F.Supp.3d 74, 85 (D.D.C. 2016) (claim that defendants
“damage[d]” plaintiff's “ability to
obtain new business” barred by the exception
(alteration in original)); Castellanos v. Pfizer,
Inc., 555 F.Supp.2d 1343, 1348 (S.D. Fla. 2008)
(“tortious interference with business relations”
claim barred by the exception). Because Wagdy's tortious
interference claim is barred by the intentional tort
exception, the Court finds that adding such a claim would be
her court filings liberally, Wagdy also apparently seeks to
bring claims for (1) tortious interference with personal
relationships, PSAC ¶ 68; and (2) “negligent
interfere[nce] with business relationships, ” ECF No.
28 at 3. However, Wagdy does not demonstrate, and the Court
has not found, any indication that either tort is recognized
by the District of Columbia or Florida, the jurisdictions
where the tort may have plausibly occurred based on the
allegations in the proposed amended complaint, see
PSAC ¶¶ 28-32. To the contrary, with respect to the
claim for negligent interference with business relationships,
courts have expressly found that no such tort exists in the
District of Columbia and Florida. See Furash & Co. v.
McClave, 130 F.Supp.2d 48, 56-57 (D.D.C. 2001);
Heritage Schooner Cruises, Inc. v. Cansler, No.
13-cv-22494, 2013 WL 5636689, at *1 (S.D. Fla. Oct. 16,
2013). Thus, Wagdy could not bring either tort claim under
the FTCA. See Hornbeck Offshore Transp., LLC v. United
States, 569 F.3d 506, 509 (D.C. Cir. 2009) (“[The
FTCA] does not create a cause of action against the United
States; it allows the United States to be liable if a private
party would be liable under similar circumstances in the
relevant jurisdiction.”); see also 28 U.S.C.
also describes her FTCA claim against the United States as
one for “disseminat[ing]  false information and
contain[ing] it in [the government's] own
databases.” PSAC ¶ 70. This claim appears to be a
“defamation claim against the United States, ”
which “is barred, because suits for libel and slander
are prohibited under the [FTCA's intentional tort
exception].” Gardner v. United States, 213
F.3d 735, 737 n.1 (D.C. Cir. 2000). Thus, allowing Wagdy to
bring such a claim would be futile, as well.
reply, Wagdy instead characterizes this claim as one for
negligence, ECF No. 32 (“Reply”) at 3-4, despite
the fact that negligence is not explicitly mentioned in her
proposed amended complaint, see PSAC. But even
assuming Wagdy has asserted a negligence claim, the Court
still must assess whether it “arises out of”
defamation because “[s]ection 2680(h) does not merely
bar claims for [intentional torts]; in sweeping
language it excludes any claim arising out of
[intentional torts].” Shearer, 473 U.S. at 55.
In making this determination, “[t]he label which a
plaintiff applies to a pleading does not determine the nature
of the cause of action which he states.” Edmonds v.
United States, 436 F.Supp.2d 28, 35 (D.D.C. 2006)