United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
November 5, 2009, an act of domestic terrorism killed or
injured numerous military servicemembers and civilians at
Fort Hood. Many of those harmed by the attack, including
family members, now attempt to recover damages from Major
Nidal Hasan,  the convicted shooter, as well as from the
estate of Anwar al-Aulaqi, the alleged co-conspirator.
Plaintiffs also attempt to hold certain government officials
liable in either their official or personal
Secretary of the Army, the Secretary of Defense, and the
Director of the Federal Bureau of Investigation
(“FBI”), collectively “Federal Defendants,
” move to dismiss Plaintiffs' claims
against them in their official capacities pursuant to Federal
Rules of Civil Procedure 12(b)(1), (3), and (6). As Federal
Defendants explain in their “Statement of Interest,
” they also take the opportunity to respond to claims
solely against certain unnamed federal officials, John Does
#1 through #6, who were sued only in their personal
capacities. See Fed. Defs.' Mot. to Dismiss, ECF
No. 77 (“Fed. Defs.' Mot.”), at 2 n.3
(citing, e.g., 28 U.S.C. § 517; Falkowski v.
EEOC, 783 F.2d 252, 253 (D.C. Cir. 1986) (per curiam)).
The Court shall refer to the Federal Defendants and the Doe
Defendants collectively as the “Government
Defendants.” Federal Defendants' motion does not
respond to claims against the other two Defendants, Major
Hasan and Nasser al-Aulaqi, who allegedly represents Anwar
al-Aulaqi's estate. Accordingly, this Memorandum Opinion
shall address only the claims against the Government
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court
GRANTS Federal Defendants'  Motion
to Dismiss. All of the claims against Government
Defendants shall be dismissed; some of those dismissals shall
be without prejudice, as specified below. With this decision,
the Court is not ruling on the merits of any of
Court shall dismiss all claims against Federal Defendants for
lack of subject-matter jurisdiction. Each Plaintiff's
claims against Federal Defendants shall be dismissed without
prejudice for failure to name the United States as a
defendant. Alternatively, certain Plaintiffs' claims
against Federal Defendants shall be dismissed without
prejudice for failure to exhaust remedies or because of the
exclusive-remedy bar under the Federal Employees'
Compensation Act (“FECA”). Prejudice shall attach
to the dismissal of other Plaintiffs' claims against
Federal Defendants under the Feres doctrine.
Plaintiff's claims against Doe Defendants shall be
dismissed without prejudice for failure to serve them.
reiterate, with this decision, the Court is not ruling on the
merits of any of Plaintiffs' claims.
the allegations in the Amended Complaint as true for purposes
of this motion, the Court shall summarize the sad and
horrific facts of some relevance here. On November 5, 2009,
Major Nidal Hasan, a then-practicing psychiatrist in the U.S.
Army, opened fire at Fort Hood in Texas. 1st Am. Compl., ECF
No. 22 (“Am. Compl.”), ¶¶ 2, 29-30, 58,
170. Motivated by “radical Islamist” ideology,
Major Hasan's shout of “Allah Akbar”
expressly invoked the same “rallying cry” used on
9/11 and in other jihadist attacks. Id. ¶¶
30, 170. This carefully planned shooting spree
claimed the lives of fourteen people, inflicted gunshot
wounds on thirty-two more, and visited physical and
nonphysical injuries on a host of others, including family
members of those harmed at the scene. Id.
¶¶ 29-30, 127-68.
Hasan had communicated about jihad with Anwar al-Aulaqi, a
leading al-Qaeda operative whose activities included
recruiting Americans to carry out domestic attacks.
Id. ¶¶ 5- 6, 22, 74, 85, 171. Through
Major Hasan's comments during his military medical
training, and through the FBI's review of his emails, the
Army and FBI were aware of his extremist views.
E.g., id. ¶¶ 56, 67. Rather than
taking precautions based on these views, however, or
disciplining Major Hasan for his substandard medical
performance, the Army continued to advance his military and
medical careers, and the FBI minimized its investigation of
him. E.g., Id. ¶¶ 56, 61, 69. Each
agency's actions were motivated by “political
correctness and . . . ethnic and religious preferences”
that overrode their responsibility for safety and security.
Id. ¶ 65 (Army); see also, e.g.,
id. ¶¶ 69, 83 (FBI).
suit was filed on November 5, 2012, by certain individuals
injured, and on behalf of other individuals killed in the
attack, as well as their family members. Compl., ECF No. 1.
The First Amended Complaint, dated April 30, 2013, contains
nine tort and related claims against Major Hasan, in his
personal capacity, and/or Nasser al-Aulaqi, as personal
representative of the estate of Anwar al-Aulaqi. Am. Compl.
¶¶ 171, 181-239 (including, e.g., claim for
conspiracy to deprive civil rights pursuant to 42 U.S.C.
§ 1985(3)). Anwar al-Aulaqi was evidently killed by an
American drone strike in 2011. Id. ¶ 5.
also plead eleven tort, constitutional, and Administrative
Procedure Act (“APA”) claims against a
combination of Federal Defendants, named only in their
official capacities, and six unnamed John Doe Defendants,
sued exclusively in their personal capacities. Id.
¶¶ 172-80; 240-331. Each Doe Defendant was
allegedly an employee of the U.S. Army, the U.S. Department
of Defense, and/or the FBI. Id. ¶ 2.
have experienced difficulties effectuating, or perfecting,
service of process on at least some of the defendants. For
their part, Federal Defendants do not dispute proper service
upon themselves. And the Court shall reserve for another day
the issue of service on Major Hasan and Nasser al-Aulaqi, who
are not presently moving for dismissal.
Court is currently concerned with Doe Defendants. On February
11, 2013, this Court prompted Plaintiffs to comply with
Federal Rule of Civil Procedure 4(m) by filing proof of
service upon Doe Defendants, or explaining why they had not
done so, by March 5, 2013. Order, ECF No. 15. At
Plaintiffs' request, the Court extended that deadline
until June 5, 2013. Min. Order of Feb. 13, 2013. That
deadline came and went amidst briefing of Federal
Defendants' motion to stay proceedings during Major
Hasan's court martial, which stay the Court ultimately
granted on January 30, 2014. See Order, Manning
v. McHugh, Civil Action No. 12-1802 (CKK), 2014 WL
12789614 (D.D.C. Jan. 30, 2014), ECF No. 50. In the meantime,
the parties vigorously litigated not only that motion but
also Plaintiffs' request for leave to conduct expedited
discovery of the identities of Doe Defendants, in order to
facilitate service upon them. See, e.g., Pls.'
Opp'n to Mot. to Stay and Cross-Mot. for Leave to Conduct
Expedited Disc., ECF No. 30, at 17-18. In light of the
concerns with unlawful command influence that warranted the
stay, the Court also denied without prejudice Plaintiffs'
motion for expedited discovery. Manning, Civil
Action No. 12-1802 (CKK), 2014 WL 12789614, at *5. The Court
expressly permitted Plaintiffs to renew their request
“once the stay in this matter is lifted, ” at
which time “the Court will consider the parties'
arguments for expedited discovery on the merits.”
August 23, 2013, Major Hasan was convicted in a military
court of thirty-two specifications of attempted murder and
thirteen specifications of premeditated murder.
Manning, Civil Action No. 12-1802 (CKK), 2014 WL
12789614, at *2. Post-conviction proceedings lasted much
longer than the Court, or the parties, envisioned. Still, at
Federal Defendants' request and over Plaintiffs'
repeated objections, the Court maintained the stay to avoid
any risk of unlawful command influence and to spare the
inefficiencies of piecemeal proceedings. See, e.g.,
Order, ECF No. 69; Manning, Civil Action No. 12-1802
(CKK), 2014 WL 12789614.
March 29, 2017, when Federal Defendants at last indicated
that “the Commanding General, III Corps and Fort Hood
took final action on the military court-martial of United
States v. Hasan, ” the Court lifted the stay with
Federal Defendants' consent. Status Report, ECF No. 73;
Min. Order of Mar. 31, 2017. The parties agreed to brief
Federal Defendants' forthcoming dispositive motion. Joint
Status Report and Proposed Briefing Schedule, ECF No. 74. As
of the Court's November 2018 inquiry, Major Hasan's
appellate post-conviction proceedings were still in progress,
but the Court understands that the risk of unlawful command
influence is past. See Joint Notice of Factual,
Procedural or Case Law Developments, ECF No. 85; Min. Order
of Mar. 31, 2017 (construing  Status Report as indication
of “final action by the convening authority”).
Defendants' pending  Motion to Dismiss includes a
Statement of Interest regarding the claims against Doe
Defendants, who still have not yet been identified.
See Fed. Defs.' Mot. at 2 n.3. Federal
Defendants make clear that they do not mean to enter an
appearance on behalf of those Doe Defendants. Id.
The Court shall take this statement as a guide to certain
arguments that Doe Defendants might raise if they were to
appear. Although Federal Defendants do not expressly object
to the lack of service on Doe Defendants, they reserve
certain arguments along those lines. See Id.
(offering, for example, “insufficiency of service of
process” and “failure to complete service of
process in a timely manner”). Despite the lifting of
the stay, and the identification of these potential defenses
in the briefing, Plaintiffs have not renewed their motion for
expedited discovery of Doe Defendants' identities.
order to facilitate this decision, the Court solicited
further information from the parties several times.
See Min. Orders of Nov. 15, 2018, Nov. 30, 2018, and
Dec. 11, 2018. At the Court's inquiry, Plaintiffs
recently notified the Court that they no longer want to
pursue their Eleventh Claim, which had sought a declaratory
judgment that certain Plaintiffs were entitled to Purple
Heart awards. See Min. Order of Nov. 30, 2018; Joint
Notice Regarding Pls.' Eleventh Claim, ECF No. 86.
Accordingly, only Plaintiffs' first ten claims remain at
issue in the pending motion, which is now ripe for decision.
Federal Rule of Civil Procedure 12(b)(1)
must dismiss a case pursuant to Federal Rule 12(b)(1) when it
lacks subject-matter jurisdiction. In determining whether
there is jurisdiction, “the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Coalition for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v.
Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992)) (internal quotation marks omitted). “At the
motion to dismiss stage, counseled complaints, as well as
pro se complaints, are to be construed with
sufficient liberality to afford all possible inferences
favorable to the pleader on allegations of fact.”
Settles v. U.S. Parole Comm'n, 429 F.3d 1098,
1106 (D.C. Cir. 2005). In spite of the favorable inferences
that a plaintiff receives on a motion to dismiss, still that
“[p]laintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence.”
Am. Farm Bureau v. EPA, 121 F.Supp.2d 84, 90 (D.D.C.
2000). “Although a court must accept as true all
factual allegations contained in the complaint when reviewing
a motion to dismiss pursuant to Rule 12(b)(1), [a]
plaintiff['s] factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion than
in resolving a 12(b)(6) motion for failure to state a
claim.” Wright v. Foreign Serv. Grievance Bd.,
503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and
quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6)
to Federal Rule 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “[A] complaint [does not] suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
clear, a court may consider material extraneous to the
complaint in evaluating a Rule 12(b)(1) motion, unlike a Rule
12(b)(6) motion. “If, on a motion under Rule 12(b)(6)
or 12(c), matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” Fed.R.Civ.P.
12(d). “As a general rule, ‘Federal Rule of Civil
Procedure 12(d) forbids considering facts beyond the
complaint in connection with a motion to dismiss the
complaint for failure to state a claim.'”
Kaspersky Lab, Inc. v. U.S. Dep't of Homeland
Sec., 909 F.3d 446, 464 (D.C. Cir. 2018) (quoting
United States ex rel. Shea v. Cellco P'ship, 863
F.3d 923, 936 (D.C. Cir. 2017)). But Rule 12(d) does not
prohibit such consideration in connection with a motion under
Rule 12(b)(1). “[T]he district court may consider
materials outside the pleadings in deciding whether to grant
a motion to dismiss for lack of jurisdiction . . . .”
Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005) (citing Herbert, 974 F.2d at
197). If a motion alleging jurisdictional defects relies on
materials outside of the complaint, it does not
thereby convert into a motion for summary judgment. See
Haase v. Sessions, 835 F.2d 902, 905-06 (D.C. Cir. 1987)
(recognizing, under prior Rule 12 language, that
“only a 12(b)(6) motion [may] be converted
into a motion for summary judgment”); Al-Owhali v.
Ashcroft, 279 F.Supp.2d 13, 21 (D.D.C. 2003).
GROUNDS FOR SUBJECT-MATTER JURISDICTION
originally invoked three federal statutory bases for
subject-matter jurisdiction over their various claims against
all, or some subset, of the Government Defendants.
Jurisdiction under 5 U.S.C. §§ 701-06 and 28 U.S.C.
§ 1331 is no longer at issue because Plaintiffs have
ceased pursuing their APA claim. See Am. Compl.
¶ 120, Claims for Relief (Subpart B); Joint Notice
Regarding Pls.' Eleventh Claim, ECF No. 86.
tort claims allegedly arise under the Federal Tort Claims Act
(“FTCA”), for which they cite 28 U.S.C. §
2671 et seq. and 28 U.S.C. § 1346(b)(1). Am.
Compl. ¶ 117. The following nine of Plaintiffs'
remaining ten claims are tort claims: the First Claim, to the
extent that it consists of decedents' surviving tort
claims; the Second Claim, for wrongful death; the Third
Claim, for negligence in hiring, retention, and supervision;
the Fourth Claim, for negligence in investigation; the Fifth
Claim, for gross negligence; the Seventh Claim, for negligent
infliction of emotional distress; the Eighth Claim, for loss
of consortium; the Ninth Claim, for negligent
misrepresentation; and the Tenth Claim, for intentional
misrepresentation. Id. (Claims for Relief, Subpart
B). With two exceptions, each of the foregoing claims
proceeds against some combination of both Federal Defendants
and Doe Defendants. Only the Sixth and Tenth Claims proceed
exclusively against one or more Doe Defendants.
their constitutional claims, Plaintiffs turn to 28 U.S.C.
§ 1328, which section appears not to exist. In any
event, constitutional claims are contained in at least
Plaintiffs' Sixth Claim. Id. ¶ 119, Claims
for Relief (Subpart B). Plaintiffs also urge that the
constitutional claims of the decedents remain available under
the Survival Act. See Am. Compl. ¶ 245
(maintaining that recovery for surviving claims should
“includ[e] damages for violation of [decedents']
constitutional rights”). Assuming that those
constitutional claims survive, they presumably would lie only
against Doe Defendants, consistent with the constitutional
claims of living Plaintiffs in the Sixth Claim. The Court
need not decide whether those claims in fact survive,
however, as the Court shall decide below that all claims
against Doe Defendants must be dismissed without prejudice on
in their Amended Complaint also assert diversity jurisdiction
“[t]o the extent relevant.” Id. ¶
121. But the parties have not briefed that basis for
jurisdiction. Rather, with the exception of claims against
Doe Defendants, the briefing assumes that federal-question
jurisdiction over FTCA claims is the jurisdictional hook at
issue. That is consistent with the primary jurisdictional
assertion in Plaintiffs' Amended Complaint. See
Id. ¶¶ 117-21. Given the many Plaintiffs and
Defendants in this case, the Court shall refrain from a
sua sponte evaluation of citizenship to determine
whether diversity jurisdiction requirements are satisfied.
See generally Am. Farm Bureau, 121 F.Supp.2d at 90
(noting that plaintiff has burden to establish subject-matter
Federal Defendants' briefing does not always clearly
distinguish what they believe to be Rule 12(b)(1) versus Rule
12(b)(6) grounds for dismissal. Nor do Plaintiffs address
this issue. This omission concerns the Court because neither
party raises Supreme Court decisions that curtail the scope
of “jurisdictional” defenses in FTCA and other
actions. See, e.g., United States v. Kwai Fun
Wong, 135 S.Ct. 1625, 1632 (2015); Arbaugh v. Y
& H Corp., 546 U.S. 500, 515-16 (2006) (regarding
“a threshold limitation on a statute's scope”
as nonjurisdictional absent clear statement by Congress).
Nevertheless, the Court has attempted to ensure that it
abides by this strand of case law. Authority in either this
Circuit or its sisters continues to recognize as
jurisdictional the grounds upon which this Court shall
dismiss claims against Federal Defendants. The Court need not
reach the issue of tolling the FTCA's statute of
limitations, an issue which is now regarded as
non-jurisdictional under Kwai Fun Wong. See Kwai
Fun Wong, 135 S.Ct. at 1638. Today's decision to
dismiss claims against Federal Defendants is based
exclusively on lack of subject-matter jurisdiction under Rule
CLAIMS AGAINST FEDERAL DEFENDANTS
Court could exercise its discretion to treat certain of
Federal Defendants' arguments as conceded, for failure of
Plaintiffs to address those arguments in their Opposition.
Even though the Court shall not do so, for the reasons
described below, the Court shall find that it lacks
subject-matter jurisdiction over Plaintiffs' claims
against the Federal Defendants. Plaintiffs' tort claims
against Federal Defendants cannot survive because Plaintiffs
failed to name the United States as a defendant.
Alternatively, some of the Plaintiffs failed to exhaust their
administrative remedies. Those Plaintiffs who did exhaust
remedies now face an employment-related bar to their
recovery. The claims of only one plaintiff, Michelle R.
Harper, and her family surmount the respective
employment-related bar, but those claims shall be dismissed
in any case for failure to sue the proper defendant. The
Court shall go to great lengths to distinguish those claims
for which dismissal should be without prejudice.
Plaintiffs' Failure to Respond to Certain
threshold, Plaintiffs fail to address a number of Federal
Defendants' grounds for dismissal of claims against them.
To say so is not to characterize their briefing uncharitably;
Plaintiffs do make arguments. But they focus more on the
merits than some of the jurisdictional (and other) issues
raised by Federal Defendants. In their Reply, Federal
Defendants observe that Plaintiffs did not respond to the
following arguments in the Motion to Dismiss: the failure to
sue the proper defendant, namely the United States; the
application of the public duty doctrine and of the
intentional torts exception to the sovereign immunity waiver;
the failure to state a claim of negligence or negligent
infliction of emotional distress; and the application of the
exclusive-remedy provision of the Texas Workers'
Compensation Act. See Fed. Defs.' Reply at 1-5.
As this Memorandum Opinion will demonstrate, Plaintiffs have
not addressed crucial aspects of various other complex
arguments as well, such as Federal Defendants' defense
under the Federal Employees' Compensation Act.
Plaintiffs had not filed a timely opposition at all, then
Local Rule 7(b) would permit the Court to “treat the
motion as conceded.” Local Civil Rule 7(b). Although
that treatment has been upheld, the Court of Appeals has
cautioned that “grant[ing] an unopposed motion to
dismiss under Federal Rule 12(b)(6) risks circumventing the
clear preference of the Federal Rules to resolve disputes on
their merits.” Cohen v. Bd. of Trs. of Univ. of
District of Columbia, 819 F.3d 476, 482-83 (D.C. Cir.
2016). In those circumstances, dismissal without prejudice
could be appropriate. See Id. at 484.
for concession may be stronger where Plaintiffs did file an
opposition, but that brief did not address many of Federal
Defendants' arguments. “In the context of
non-dispositive motions, [the Court of Appeals]
[has] affirmed district court decisions that treated as
conceded an issue left entirely unaddressed by the plaintiff
in a timely filed response.” Wash. All. of Tech.
Workers v. U.S. Dep't of Homeland Sec., 892 F.3d
332, 344 (D.C. Cir. 2018) (emphasis added) (citing Texas
v. United States, 798 F.3d 1108, 1110, 1113-16 (D.C.
Cir. 2015); Wannall v. Honeywell, Inc., 775 F.3d
425, 428-29 (D.C. Cir. 2014)). The dispositive nature of the
pending motion seems to heighten the stakes.
light of Circuit precedent favoring decisions on the merits,
this Court shall generally not treat Federal Defendants'
unaddressed arguments as conceded. It is true that this Court
has “no obligation to ‘perform . . . legal
research for [Plaintiffs]'” in this circumstance.
Texas, 798 F.3d at 1115 (quoting Stanciel v.
Gramley, 267 F.3d 575, 578 (7th Cir. 2001)) (first
alteration in original). But, particularly because the Court
must address jurisdictional issues, the Court shall carefully
consider the arguments of Defendants and the support
therefor. Where Plaintiffs respond to an argument, but not an
aspect thereof, the Court may determine that Plaintiffs
concede that limited point. Federal Defendants too concede at
least one aspect of an issue that they otherwise address.
See infra Subpart IV.B.2.b (regarding denial, or
deemed denial, of claims presented administratively).
Court has decided that Plaintiffs did not concede
jurisdictional or other flaws in their Amended Complaint
simply by failing to address certain of Federal
Defendants' Rule 12(b)(1) grounds for dismissal. Despite
the dearth of counterarguments, however, the Court must
satisfy itself of subject-matter jurisdiction before it can
turn to any contest on the merits. See, e.g.,
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
parties have attached various materials to their briefing of
Federal Defendants' motion. As discussed above, the Court
may consider these materials on Rule 12(b)(1) grounds without
treating this motion as a motion for summary judgment.
See, e.g., Jerome Stevens Pharm., Inc., 402
F.3d at 1253.
has long been established . . . that the United States, as
sovereign, ‘is immune from suit save as it consents to
be sued . . . and the terms of its consent to be sued in any
court define that court's jurisdiction to entertain the
suit.'” United States v. Testan, 424 U.S.
392, 399 (1976) (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)) (second alteration in original).
The United States has consented to tort suits in certain
circumstances embodied in the FTCA. See, e.g.,
Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir.
2008) (recognizing “limited waiver of the
Government's sovereign immunity”). That limited
waiver is nevertheless curtailed by certain statutory and
common law regimes. See, e.g., Lockheed Aircraft
Corp. v. United States, 460 U.S. 190, 193-94 (1983)
(Federal Employees' Compensation Act); Feres v.
United States, 340 U.S. 135, 145 (1950) (implied
exception for military servicemembers); 1 Lester S. Jayson
& Robert C. Longstreth, Handling Federal Tort
Claims §§ 5.04, 5.05 (2018). Because
“[s]overeign immunity is jurisdictional in nature,
” a plaintiff's identification of a valid waiver is
critical to establishing a federal court's subject-matter
jurisdiction over FTCA claims. FDIC v. Meyer, 510
U.S. 471, 475 (1994); see also Fleming v. Nat'l
Transp. Safety Bd., No. 13-5287, 2014 WL 590974 (D.C.
Cir. Feb. 7, 2014) (per curiam) (citing Meyer, 510
U.S. at 475). Unless the United States has waived its
sovereign immunity in a specific context, a federal court
must dismiss claims against the United States. See,
e.g., Clark v. Wells Fargo Bank, 585 Fed.Appx.
817, 819-21 (3d Cir. Sept. 22, 2014) (affirming dismissal of
FTCA claims due to jurisdictional deficiencies).
FTCA's provisions are contained in two areas of the
United States Code, ” 28 U.S.C. § 1346(b) and
Chapter 171 of Title 28. Simmons v. Himmelreich, 136
S.Ct. 1843, 1846 (2016). Section 1346(b) “gives federal
district courts exclusive jurisdiction over tort claims
against the United States for the acts of its employees
‘[s]ubject to the provisions of chapter 171' of
Title 28.” Id. A plaintiff may avail herself
of this waiver of sovereign immunity if she satisfies the
“six elements” of an “actionable”
claim under Section 1346(b). Meyer, 510 U.S. at 477.
procedural aspects of the FTCA are contained in Chapter 171,
which dictates, in pertinent part, the “scope of [the]
United States' liability.” Simmons, 136
S.Ct. at 1846. “The United States shall be liable,
respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a
private individual under like circumstances . . . .” 28
U.S.C. § 2674.
Court shall turn to the series of jurisdictional hurdles that
allegedly bar Plaintiffs' tort claims against Federal
Defendants under the FTCA. “While . . . subject-matter
jurisdiction necessarily precedes a ruling on the merits, the
same principle does not dictate a sequencing of
jurisdictional issues.” Wash. All. of Tech.
Workers, 892 F.3d at 342 & n.4 (quoting Ruhrgas
AG, 526 U.S. at 584) (internal quotation marks omitted).
Accordingly, the Court shall begin with a jurisdictional
defect affecting all of the Plaintiffs before proceeding to
those that affect subsets of the Plaintiffs differently.
Disposition of this case on the articulated grounds will
preclude the Court from reaching some of Federal
Defendants' defenses, jurisdictional and otherwise.
Failure to Name the United States as a Party
among the elements of an actionable FTCA claim is that the
claim be “against the United States.”
Meyer, 510 U.S. at 477 (quoting 28 U.S.C. §
1346(b)) (internal quotation marks omitted). The United
States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has made clear that a plaintiff
must sue the United States itself to avail himself
of FTCA's waiver of sovereign immunity. See Goddard
v. District of Columbia Redev. Land Agency, 287 F.2d
343, 345-46 (D.C. Cir. 1961) (affirming dismissal because,
inter alia, FTCA complaint “must name the
United States as defendant”). Numerous other courts
have likewise “rigidly applied” this well-
established rule. 1 Jayson & Longstreth, supra,
§ 6.01 & n.17 (observing that FTCA claimant
“must bring his action against the United States,
specifically naming it as defendant” and collecting
“many cases” reflecting this proposition);
see also, e.g., Caires v. FDIC, 298
F.Supp.3d 79, 85-86 (D.D.C. 2018), appeal filed, No.
18-5055 (D.C. Cir.) (finding sufficient basis for dismissal
on jurisdictional grounds of suit against agency alone);
CHS Indus., LLC v. U.S. Customs & Border Prot.,
652 F.Supp.2d 1, 3 (D.D.C. 2009) (dismissing claims against
agency on this basis); Cox v. Sec'y of Labor,
739 F.Supp. 28, 29 (D.D.C. 1990) (“Since the plaintiff
elected to sue the Secretary of Labor in her official
capacity rather than the government itself, the complaint
must fail for that reason alone for lack of subject matter
light of Arbaugh and Kwai Fun Wong, is the
Court aware of any authority deeming the requirement to name
the United States to be non-jurisdictional. Rather, courts
have continued to dismiss claims against any other defendants
on jurisdictional grounds. See, e.g., King v.
U.S. Dep't of Veterans Affairs, 728 F.3d 410, 413
n.2 (5th Cir. 2013) (recognizing that district court rightly
dismissed FTCA claims against individual people); see
also Pappas v. United States, 617 Fed.Appx. 879, 881
(10th Cir. June 11, 2015) (citing, e.g., Meyer, 510
U.S. at 477) (treating deficiency in any of the six elements
of a cognizable claim as ...