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Manning v. Esper

United States District Court, District of Columbia

January 22, 2019

SHAWN NELSON MANNING, et al., Plaintiffs,
v.
MARK T. ESPER, Secretary of the Army, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         On 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, [1] 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 capacities.[2]

         The Secretary of the Army, the Secretary of Defense, and the Director of the Federal Bureau of Investigation (“FBI”), collectively “Federal Defendants, ”[3] 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 Defendants.

         Upon consideration of the pleadings, [4] the relevant legal authorities, and the record as a whole, the Court GRANTS Federal Defendants' [77] Motion to Dismiss.[5] 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 Plaintiffs' claims.

         Summary of Ruling

         The 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.

         Each Plaintiff's claims against Doe Defendants shall be dismissed without prejudice for failure to serve them.

         To reiterate, with this decision, the Court is not ruling on the merits of any of Plaintiffs' claims.

         I. BACKGROUND

         A. Factual Background

         Taking 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.[6] 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.

         Major 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).

         B. Procedural Posture

         This 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.

         Plaintiffs 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.

         Plaintiffs 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.

         The 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.” Id.

         On 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.

         On 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 [73] Status Report as indication of “final action by the convening authority”).

         Federal Defendants' pending [77] 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.

         In 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.

         II. LEGAL STANDARD

         A. Federal Rule of Civil Procedure 12(b)(1)

         A court 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).

         B. Federal Rule of Civil Procedure 12(b)(6)

         Pursuant 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.

         To be 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).

         III. GROUNDS FOR SUBJECT-MATTER JURISDICTION

         Plaintiffs 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.

         Plaintiffs' 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.

         For 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 other grounds.

         Plaintiffs 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 jurisdiction).

         Problematically, 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 12(b)(1).

         IV. CLAIMS AGAINST FEDERAL DEFENDANTS

         The 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.

         A. Plaintiffs' Failure to Respond to Certain Arguments

          At the 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.

         If 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.

         Grounds 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.

         In 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).

         B. Subject-Matter Jurisdiction

         The 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 (1999).

         The 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.

         “It 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[1], 5.05[1] (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).

         “The 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.

         The 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.

         The 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.

         1. Failure to Name the United States as a Party

         First 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[2] & 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 jurisdiction.”).

         Nor, in 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 ...


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