UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JENNY SCHIEBER,
Plaintiff,
v. Civil Case No. 20-00264 (RJL)
UNITED STATES,
Defendant.
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MEMORANDUM OPINION
(March |S, 2021) [Dkt. #12]
Plaintiff Jenny Schieber (“plaintiff or “Schieber”) brings this action under the
Federal Tort Claims Act (“FTCA”) against the United States (“defendant” or the
“Government”) for damages arising from its allegedly negligent rejection of her claim for
compensation under an international agreement. See Compl. [Dkt. #1]. Before the Court
is the United States’ Motion to Dismiss Plaintiff's Complaint for lack of subject-matter
jurisdiction. See Def.’s Mot. to Dismiss (“Def.’s MTD”) [Dkt. #12]. Upon consideration
of the parties’ pleadings, relevant law, and the entire record, I agree with the United
States that sovereign immunity bars this suit. Accordingly, defendant’s Motion to
Dismiss is GRANTED and plaintiff's Complaint is DISMISSED.
BACKGROUND
This case arises from an international agreement between the United States and
France designed to compensate certain Holocaust survivors: The Agreement Between the
I
Government of the United States of America and the Government of the French Republic
on Compensation for Certain Victims of Holocaust-Related Deportation from France
Who Are Not Covered by French Programs (the “Agreement”). Compl. § 1. Under the
Agreement, France capitalized a fund (the “Holocaust Deportation Fund”) with $60
million and the United States agreed to administer distributions to certain persons who
survived deportation from France during the Holocaust as well as their surviving spouses
and assigns. See Ex. A to Def.’s MTD at Art. 2. To avoid duplicative payments under
existing French programs and other similar international agreements, the Agreement
excludes French nationals and certain nationals of other countries from eligibility. Jd. at
Art. 3. It also requires claimants to submit sworn statements of nationality and affirm
they have not received any Holocaust-deportation-related compensation from other
sources. /d. at Art. 5.
The Agreement provides that the United States “shall distribute” the $60 million
“according to criteria which it shall determine unilaterally, in its sole discretion.” Jd. at
Art. 6. But the Agreement clarifies that “notwithstanding” this discretion, the United
States “shall rely” on a claimant’s “sworn statement of nationality” and “sworn
representations” in determining whether a claimant is ineligible to receive compensation
under the Agreement due to their nationality or eligibility under other programs or
international agreements. Jd.
Plaintiff is currently a citizen and resident of Israel. Compl. 410. Plaintiffs
mother was deported from France to Auschwitz on July 31, 1943. Jd. 4.12. She was
survived by her spouse, plaintiffs father, who passed away in 1964 in Belgium. Jd.
Plaintiff's father was stateless when he died. Jd. J] 14-16.
In 2016, plaintiff brought a claim under the Agreement on behalf of her father’s
estate, asserting that as a surviving spouse of a deported person he was eligible to receive
compensation. Jd. J 13. In conjunction with this claim, plaintiff submitted affidavits
averring her father was stateless when he died. Jd. {4 15-16. Nonetheless, the United
States Department of State (“State Department”)—the agency responsible for
administering the Holocaust Deportation Fund, see Ex. A to Def.’s MTD at Art. 4—took
the position that plaintiff “had provided no evidence of the fact that [her father] was
stateless” and rejected plaintiff's claim on April 3, 2018. Compl. 7§ 7, 14.
Unsatisfied with this result, plaintiff brought this suit under the FTCA alleging the
State Department “wrongfully rejected” her claim, see id. J§] 4-5, 23, and seeking
$46,570.80 in damages—the amount her father’s estate would have received from the
Holocaust Deportation Fund under the Agreement. Jd. {J 7-8.
STANDARD OF REVIEW
Federal courts possess only limited jurisdiction. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). When, as here, a party moves to dismiss under
Federal Rule of Civil Procedure 12(b)(1), the Court must “determine whether it has
subject matter jurisdiction in the first instance.” Taylor v. Clark, 821 F. Supp. 2d 370,
372 (D.D.C. 2011) (quoting Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C. 2009)).
Under Rule 12(b)(1), plaintiff bears the burden of proving by a preponderance of the
evidence that the Court has subject-matter jurisdiction. Biton v. Palestinian Interim Self-
Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). The Court must accept as true all
well pleaded factual allegations and draw all reasonable inferences in plaintiff's favor.
Taylor, 821 F. Supp. 2d at 372. But “the Court may give the plaintiff's factual
allegations closer scrutiny” than it would in assessing a motion under Rule 12(b)(6).
Logan v. Dep’t of Veteran Affairs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004). The Court
may also consider materials outside of the pleadings. Id.
ANALYSIS
The United States generally enjoys sovereign immunity shielding it from tort
actions for money damages. Jayvee Brand, Inc. v. United States, 721 F.2d 385, 389
(D.C. Cir. 1983). Courts may only entertain such suits against the United States where an
express waiver of sovereign immunity exists. Jd. The FTCA operates as such a waiver,
“render[ing] the United States subject to suit for certain, but not all, tort claims.” Lewis v.
D.C. Police Dep’t, 271 F. Supp. 3d 177, 180 (D.D.C. 2017).
Under the FTCA, a plaintiff may sue the United States for “injury or loss of
property ... caused by the negligent or wrongful act or omission of any employee of the
Government.” 28 U.S.C. § 1346(b)(1). But the waiver only extends to circumstances
“where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” Jd. This
condition—known as the “local law requirement”—obligates an FTCA plaintiff to show
that the United States would be liable under applicable principles of state or local law in
order for the FTCA’s waiver to apply. Art Metal-USA, Inc. v. United States, 753 F.2d
4
1151, 1157 (D.C. Cir. 1985) (holding the FTCA only waives the United States’ sovereign
immunity “to the extent that a private person in like circumstances could be found liable
in tort under local law’); see also FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“[W]e have
consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the
State—the source of substantive liability under the FTCA.”).
Plaintiff contends the FTCA’s waiver applies here. Compl. { 7; Pl.’s Opp’n to
Def.’s MTD (“PI.’s Opp’n”) [Dkt. #16] at 4-6. To satisfy the local law requirement,
plaintiff points to D.C. tort law, arguing that the United States was negligent in rejecting
plaintiff's claim for compensation under the Agreement. See Compl. {[ 4-6, 11, 23
(alleging “wrongful” acts on behalf of the United States); Pl.’s Opp’n at 4-6 (arguing that
“the Complaint here alleges facts sufficient to sustain a negligence cause of action against
Defendant under District of Columbia law and the FTCA”). Defendant counters that the
Complaint’s alleged “wrongful” acts are based entirely on the Agreement and “any
alleged duties created by an international agreement are not predicated on state law as the
FTCA requires.”! Def.’s MTD at 6. Unfortunately for plaintiff, defendant is correct.
How so?
' Defendant also contends the Court lacks jurisdiction because (1) plaintiff's claim falls within the
discretionary function exception to the FTCA, see 28 U.S.C. § 2680(a) (establishing that the United States
maintains immunity for claims based on “the exercise or performance . . . [of] a discretionary function”),
and (2) any purported injury occurred outside the United States and therefore falls within the foreign
country exception to the FTCA, see Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (holding the
United States maintains immunity from suits where the purported injury was “suffered in a foreign
country, regardless of where the tortious act or omission occurred”). Because the Court finds jurisdiction
lacking under 28 U.S.C. § 1346(b)(1), it need not, and does not, consider these alternative arguments.
5
Far from constituting negligence under D.C. tort law, plaintiffs claim stems
entirely from this international Agreement. As the Complaint makes clear, the State
Department’s alleged “wrongful” act arises from its refusal to accept plaintiff's affidavits
regarding her father’s citizenship. See Compl. {J 4, 14-15, 17, 23-24. This, the
Complaint repeatedly alleges, violates the terms of the Agreement. See id. | 3 (‘‘[t]he
Agreement . . . states at Article 6 that a declaration on one’s honor as to nationality is
sufficient to satisfy the requirements regarding citizenship”); id. J 15 (“[t]he Agreement
itself at Article 6 provides that a declaration on one’s honor as to nationality is sufficient
to establish that element of claim eligibility”); id. ¥ 17 (alleging that the State
Department’s refusal to accept plaintiffs affidavits as sufficient “violates both the spirit
and the language of the Agreement”); id. 7 24 (“The Agreement requires that a claimant’s
statements of nationality in declarations of honor be recognized by [the State
Department] acting as claims administrator.”). Thus, without ruling on the merits of
plaintiff's proposed interpretation of the Agreement, the Court concludes her claim relies
entirely on the supposed treaty requirement that the State Department accept sworn
statements as sufficient for purposes of determining eligibility under the Agreement. In
substance, her claim is that the Government failed to follow the requirements of the
Agreement in rejecting her claim for compensation thereunder.
As such, plaintiff's claim is analogous to those cases alleging tortious conduct
arising from the Government’s failure to follow the requirements of a federal statute or
regulation. See, e.g., Hornbeck Offshore Transp. LLC vy. United States, 569 F.3d 506,
509 (D.C. Cir. 2009) (denying FTCA liability where the U.S. Coast Guard erroneously
6
decided that plaintiff's single-hulled oil barge was required to phase-out by 2005 instead
of 2015); Appleton v. United States, 180 F. Supp. 2d 177, 186 (D.D.C. 2002) (denying
FTCA liability arising from the Bureau of Alcohol Tobacco and Firearm’s allegedly
negligent initial approval of import permits); see also Akutowicz v. United States, 859
F.2d 1122, 1125-26 (2d Cir. 1988) (denying FTCA liability where the State Department
erroneously decided plaintiff had revoked his U.S. citizenship). In those situations, our
Circuit Court has held that plaintiffs cannot manufacture a cognizable FTCA claim
simply by labelling the violation of a federal statute or regulation ‘negligent.’ Hornbeck
Offshore Transp., 569 F.3d at 509 (“[I]t is virtually axiomatic that the FTCA does not
apply where the claimed negligence arises out of the failure of the United States to carry
out a federal statutory duty.” (quoting Sea Air Shuttle Corp. v. United States, 112 F.3d
532, 536 (Ist Cir. 1997))); see also Art Metal-USA, 753 F.2d at 1157 (holding “the
violation of a federal statute or regulation by government officials does not of itself create
a cause of action under the FTCA” and noting that “[t]he FTCA’s local law requirement
may not be circumvented merely by casting the alleged . . . wrong as negligence”).
Because that is precisely what plaintiff seeks to do here, her claim cannot survive. *
Hornbeck is indeed instructive. The plaintiff in that case—Hornbeck Offshore
Transportation, LLC (“Hornbeck”)—owned a single-hulled oil barge that was required to
be phased out of operation under the Oil Pollution Act of 1990 (“OPA”). Hornbeck
2 It makes no difference that plaintiff's alleged violation stems from an international agreement as
opposed to a federal statute or regulation. What is crucial for purposes of the FTCA is that the allegedly
breached duty be found in state or local law—here the tort law of D.C._—and not originate from an
alternative source. See Meyer, 510 U.S. at 478 (describing state law as the “source of substantive liability
under the FTCA”).
Offshore Transp., 569 F.3d at 507-08. The U.S. Coast Guard initially determined that,
due to the weight of the barge, it had to cease operation by 2005. Jd. at 508. Hornbeck
abided by this directive but simultaneously brought a claim under the Administrative
Procedure Act (“APA”) challenging the Coast Guard’s determination that 2005 was the
effective phase out deadline. 7d. The district court found in Hornbeck’s favor on the
APA claim, holding the actual phase out deadline under the OPA was 2015. Id.
Subsequently, Hornbeck brought an FTCA suit for damages caused by the U.S. Coast
Guard’s erroneous initial determination and the concomitant sidelining of its barge for the
pendency of its APA suit. Id.
The district court rejected Hornbeck’s FTCA claim for lack of subject-matter
jurisdiction, holding that Hornbeck failed to satisfy the local law requirement. Our
Circuit Court affirmed, rejecting Hornbeck’s “attempts to bring its claims under D.C. tort
law” and holding instead that the Coast Guard’s violation flow[ed] “only from a federal
statute.” Jd. at 509. Without the statutory provision specifying phase-out dates for
barges, the Circuit held, “Hornbeck could not possibly have a claim for damages.” Jd.;
accord Johnson v. Sawyer, 47 F.3d 716, 728 (Sth Cir. 1995) (en banc) (“[T]he FTCA...
is unavailable where [t]he existence or nonexistence of the claim depends entirely upon
Federal Statutes.”).
Plaintiff's claim here is similarly dependent on the Agreement. Without the
supposed requirement of Article 6 that the State Department must accept sworn affidavits
as sufficient to establish eligibility, plaintiff would have no claim. Just as no “local law
impose[d] tort liability for bungling the phase-out date for Hornbeck’s barge,” Hornbeck
8
Offshore Transp., 569 F.3d at 509, so no principle of D.C. tort law imposes liability for
failing to accept affidavits as sufficient proof of nationality or citizenship. Thus, as in
Hornbeck, plaintiff's claim here must fail?
Because plaintiff fails to satisfy the local law requirement, the FTCA’s waiver of
sovereign immunity does not extend to her claim. Accordingly, defendant’s sovereign
immunity bars this suit and deprives the Court of subject-matter jurisdiction. Hornbeck
Offshore Transp., 569 F.3d at 512 (“The extent of the waiver of sovereign immunity
under the FTCA is coextensive with the district court’s subject-matter jurisdiction to hear
the case’). As such, I must DISMISS plaintiff's Complaint.
CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss is GRANTED and the
action is DISMISSED in its entirety. An Order consistent with this decision accompanies
this Memorandum Opinion. rs ;
\ ol Lek?
RICHARD, ),EON
United States District Judge
3 Plaintiffs attempts to refer generally to negligence standards do not change this result. See Hornbeck
Offshore Transp., 569 F.3d at 509 (rejecting “attempts to circumnavigate the local law requirement by
arguing that there is a ‘general duty of one who undertakes an action . . . to act with due care’”); Art
Metal-USA, 753 F.2d at 1160.