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Wagdy v. Sullivan

United States District Court, District of Columbia

May 18, 2018

MARIAM WAGDY, Plaintiff,
v.
JOHN SULLIVAN et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY JUDGE

         Plaintiff 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.

         Before 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.”).[1] 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.[2]

         I. Analysis

         A. Wagdy's Motion to Amend

         Under 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 jurisdiction.

         “It 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 law.” Id.

         1. FTCA Claims

         a. Tortious Interference

         In her 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 futile.

         Interpreting 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. § 1346(b)(1).[3]

         b. Defamation

         Wagdy 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.

         In her 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) ...


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