Lamb v. Millennium Challenge Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JERRY GORALSKI LAMB,
Plaintiff,

v Civil Action No. 19-589 (RDM)

MILLENNIUM CHALLENGE
CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jerry Goralski Lamb, appearing pro se, brings this suit against the Millennium
Challenge Corporation (the “MCC”) and James Blades, an MCC official. In 2016, Plaintiff
worked for about two months as a personal services contractor assigned to the MCC, until he
was terminated after allegedly failing a background check. Since then, Plaintiff has taken a
variety of steps seeking to understand and to challenge that background check and his
termination. He first filed requests for records related to his termination pursuant to the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. After the
MCC failed to timely respond, Plaintiff brought suit in this Court, and the MCC (and the
Department of State) eventually released the disputed records. See Lamb v. Millennium
Challenge Corp., 334 F. Supp. 3d 204 (D.D.C. 2018) (Lamb J; Lamb v. Millennium Challenge
Corp., No. 16-cv-765, 2019 WL 4141868 (D.D.C. Aug. 30, 2019) (Lamb ID); Minute Order,
Lamb vy. Millennium Challenge Corp., No. 16-cv-765 (D.D.C. Jan. 23, 2020). Then, based on
records he obtained in that litigation, Plaintiff brought this suit in March 2019, asserting four due

process claims, two Privacy Act claims, and other ill-defined claims against the MCC and
Blades. See Lamb v. Millennium Challenge Corp., 498 F. Supp. 3d 104, 108 (D.D.C. 2020)
(Lamb III). In response, Defendants moved to dismiss. Dkt. 29 at 1. The Court denied that
motion with respect to Plaintiff's due process claims and one of his two Privacy Act claims, but
otherwise granted the motion without prejudice. Lamb III, 498 F. Supp. 3d at 120-21.

That leads to where Plaintiff's efforts now stand. With leave of Court, Plaintiff filed an
amended complaint that (1) retains the claims that the Court declined to dismiss, (2) attempts to
cure the defects in the Privacy Act claim that the Court dismissed, and (3) seeks to add a claim
under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. See Dkt. 29
(ist Am. Compl.). Defendants, for their part, move to dismiss the amended Privacy Act claim
and the FTCA claim. Dkt. 32. Leaving no stone unturned, Plaintiff seeks leave to amend his
complaint, yet again, to “clarif[y]” his Privacy Act claim and the “common law claims that
underlie his FTCA claim.” Dkt. 37 at 1-2.

For the reasons explained below, the Court will GRANT Defendants’ partial motion to
dismiss, Dkt. 32, and will also DENY Plaintiff's motion for leave to amend the complaint, Dkt.
37,

I. BACKGROUND

Given the long history of Plaintiff's litigation against the MCC and Blades, and the
Court’s numerous opinions leading up to the present motion, the Court will only briefly recount
the relevant background. The Court assumes the truth of the allegations in Plaintiff's first
amended complaint for purposes of resolving Defendants’ motion to dismiss for failure to state a
claim, but will consider facts outside the pleadings for purposes of resolving Defendants’ motion

to dismiss for lack of jurisdiction. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129

(D.C. Cir. 2015).
On February 22, 2016, Plaintiff began working for Sawdey Solutions Services, Inc.,
which served as a contractor for the MCC. Dkt. 29 at 3 (Ist Am. Compl. 7); see also Lamb LIL,
498 F. Supp. 3d at 106. The job required a favorable background check, but it did not require a
security clearance or handling any classified information. Dkt. 29 at 3 (1st Am. Compl. § 7).
Although Plaintiff believed that he had already been “cleared” by the time he started the job, the
MCC informed him two weeks after he started work that he would need to interview with
someone from the State Department “as part of his background investigation.” Jd. (1st Am.
Compl. J 8). The State Department assisted in conducting Plaintiff's background investigation.
Id. (1st Am. Compl. ff 8-9).

On April 18, 2016, MCC officials “terminated [Plaintiff's] employment,” “confiscated”
his “government identification,” and “removed him from the premises.” Jd. (1st Am. Compl.
9). Plaintiff later learned from Sawdey that he was terminated because his “security check
came back unfavorable.” Jd. As a result, Plaintiff was “not permitted to continue to work on the
MCC contract,” and he was “debarred for 36 months by the MCC.” Jd. Plaintiff alleges that he
was “stigmatized as a result” of the MCC’s actions; that he “lost his job;” and that, despite his
“best efforts,” he has been unable to secure “alternative employment” as a government
contractor. Jd. To this day, Plaintiff “‘is still seeking employment.” Jd.

According to Plaintiff, “no one from the MCC has ever explained to him what issues or
charges arose” that resulted in his unfavorable background check, and the MCC never provided
“him the opportunity to respond to the agency’s concerns or charges.” Jd. (1st Am. Compl.

{| 10). Determined to learn what happened, Plaintiff requested “copies of all information
maintained about himself’ from the MCC. Jd. at 4 (Ist Am. Compl. J 11). When the agency

failed to timely respond, Plaintiff sued the MCC under FOIA and the Privacy Act. See Lamb II,
2019 WL 4141868, at *1. After three years of litigation and three opinions from this Court, the
MCC (and the State Department) finally provided the requested documents to Plaintiff, and the
Court closed the case in January 2020. Minute Order, Lamb v. Millennium Challenge Corp., No.
16-cv-765 (Jan. 23, 2020).

The records Plaintiff obtained shed light on the reasons for his termination. According to
Plaintiff, as part of his background investigation, the State Department provided the MCC with a
“robust and detailed” Report of Investigation (“ROI”), which Plaintiff alleges “ended under
favorable conditions.” Dkt. 29 at 5 (Ist Am. Compl. 4 19). The MCC then created an
“Adjudication Worksheet” that listed four “issues” relating to Plaintiff s background. Id. (st
Am. Compl. §§ 16-17); Dkt. 23-5.! In particular, it reported that Plaintiff (1) was “removed”
from his position at the Naval Air Systems Command Facility “for being absent without leave;”
(2) received a one-day suspension for “[f]ailure to follow an instruction and to promote the
efficiency of the service;” (3) was delinquent on a “[f]inancial [a]ecount;” and (4) received
“Ip]sychological [t]reatment.” Dkt. 23-5 at 1. The comments section of the Adjudication
Worksheet noted that the ROI “did not yield any additional information on the issues raised.”
Dkt. 29 at 5 (Ist. Am. Compl. J 17); Dkt. 23-5 at 1. The form provides a “Length of Proposed
Debarment” of 36 months, Dkt. 23-5 at 1, but the “Final Action” is listed as “unfavorable

determination,” rather than “Agency Debarment as Proposed,” id. The MCC gave Plaintiff no

! Plaintiff attached the Adjudication Worksheet to his response to Defendants’ first motion to
dismiss. See Dkt. 23-5. Because the first amended complaint describes the Adjudication
Worksheet in detail, the Court concludes that it is incorporated by reference. See Elder Care
Servs., Inc. v. Corp. for Nat’l & Cmty. Serv., No. 17-cv-1634, 2018 WL 4681002, at *1 n.1
(D.D.C. Sept. 28, 2018) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir.

2007)).
opportunity to contest or correct these findings, Dkt. 29 at 3 (1st Am. Compl. J 10), all of which
Plaintiff alleges are incorrect or misleading, id. at 5 (Ist Am. Compl. § 17).

On March 4, 2019, Plaintiff filed this lawsuit against the MCC and Blades, asserting four
claims under the due process clause of the Fifth Amendment (Counts I-IV) and two claims under
the Privacy Act (Counts V—VI). Dkt 1. On November 3, 2020, the Court dismissed one of those
Privacy Act claims (Count VI) and “any other claims” arguably raised in Plaintiff's complaint.
Lamb IT, 498 F. Supp. 3d at 120-21. The Court granted Plaintiff leave to file an amended
complaint so that he could clarify his Privacy Act claim in Count VI and assert any additional
claims, if appropriate. Jd. On December 1, 2020, Plaintiff filed an amended complaint
realleging the claims in his original complaint, expanding on the Privacy Act in Count VI, and
adding an FTCA claim (Count VII). See Dkt. 29. Defendants move to dismiss Count VI for
failure to state a claim and Court VII for lack of subject matter jurisdiction and failure to state a
claim. Dkt. 32. Plaintiff opposes that motion and, in the alternative, seeks leave to amend his
complaint to address the asserted deficiencies. Dkt. 37.

II. LEGAL STANDARDS

Although pleadings by pro se litigants are “held to less stringent standards than formal
pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), they must still
comply with the Federal Rules of Civil Procedure, see Jarrell v. Tisch, 656 F. Supp. 237, 239
(D.D.C. 1987).

A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear a
claim and may raise a “facial” or a “factual” challenge to the Court’s jurisdiction. See Hale v.
United States, No. 13-cv-1390, 2015 WL 7760161, at *3—4 (D.D.C. Dec. 2, 2015). A facial

challenge to the Court’s jurisdiction contests the legal sufficiency of the jurisdictional allegations
contained in the complaint, see Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006),
while a factual challenge “is addressed to the underlying facts contained in the complaint,” A/-
Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003). For factual challenges, the Court
““may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the
plaintiff and disputed by the defendant,’ but ‘must go beyond the pleadings and resolve any
disputed issues of fact the resolution of which is necessary to a ruling upon the motion to
dismiss.’” Erby, 424 F. Supp. 2d at 182-83 (quoting Phoenix Consulting Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). As a result, when controverted by competent
evidence, the factual allegations of the complaint are not entitled to a presumption of validity,
and the Court must resolve the factual dispute between the parties. Jd. at 183. The Court may
consider the complaint, any undisputed facts, and “the [C]ourt’s resolution of disputed facts.” Id.
(quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

Rule 12(b)(6) is designed to “test[] the legal sufficiency of a complaint.” Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Although “detailed factual allegations” are not required, the complaint must contain “more
than an unadorned, the-defendant-unlawfully-harmed-me allegation.” Jd. (quoting Twombly,
550 USS. at 555). In assessing a Rule 12(b)(6) motion, a court may consider only “the facts
contained within the four corners of the complaint,” Nat’! Postal Pro. Nurses v. U.S. Postal

Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006), along with “any documents attached to or
incorporated into the complaint, matters of which the court may take judicial notice, and matters
of public record,” U.S. ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011).

Ill. ANALYSIS
A. Privacy Act (Count VI)

1, Motion to Dismiss Under Rule 12(b)(6)

Plaintiff raises two Privacy Act claims in his first amended complaint—one of which
challenges the Adjudication Worksheet (Count V), and the other of which challenges a letter
from the MCC dated April 15, 2016, which is addressed to Plaintiff but, apparently, he never
received (Count VI). See Dkt. 29 at 11-14 ( Ist Am. Compl.). According to Plaintiff, he did not
receive the April 15, 2016 letter until October 11, 2018, when he received records from the MCC
pursuant to FOIA. Jd. at 4-5 (1st Am. Compl. ff 15, 21-22). Defendants move to dismiss only
the latter claim.

The Privacy Act “safeguards the public from unwarranted collection, maintenance, use
and dissemination of personal information contained in agency records” by, among other things,
“imposing responsibilities on federal agencies to maintain their records accurately.” Bartel v.
FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984) (footnotes omitted). In relevant part, the Act
requires that “[e]ach agency that maintains a system of records . . . maintain all records which are
used by the agency in making any determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the
individual in the determination.” 5 U.S.C. § 552a(e)(5). If an agency fails to do so, and
“consequently a determination is made which is adverse to the individual,” the individual may

sue the agency in federal district court. Jd. § 552a(g)(1)(C). A plaintiff may recover damages
under this provision if he establishes that the agency “acted in a manner which was intentional or
willful.” Jd. § 552a(g)(4).

To state a claim for damages under § 552a(g)(1)(C), Plaintiff must allege that (1) he “has
been aggrieved by an adverse determination;” (2) the MCC “failed to maintain his records with
the degree of accuracy necessary to assure fairness in the determination;” (3) the MCC’s
“reliance on the inaccurate records was the proximate cause of the adverse determination;” and
(4) the MCC “acted intentionally or willfully in failing to maintain accurate records.” Deters v.
U.S. Parole Comm’n, 85 F.3d 655, 657 (D.C. Cir. 1996).

The Court previously dismissed Count VI for failure to allege that any inaccuracies in the
April 15 letter proximately caused Plaintiffs termination. Plaintiffs original complaint alleged
that, on October 11, 2018, the MCC provided Plaintiff with a letter dated April 15, 2016, that
was inaccurate because it purported to include an enclosure “describing the specific charge(s) as
well as a summary of the [State Department’s] investigative information,” but no such enclosure
was provided to Plaintiff. Dkt. 1 at 13 (Compl.). Even construing the original complaint
liberally, the complaint appeared to allege only that the MCC omitted material when responding
to Plaintiff's FOIA request in October 2018. Lamb III, 498 F. Supp. 3d at 117. But, if that is all
that Plaintiff intended to allege, the claim failed as a matter of law: such an omission, committed
in 2018, “could not possibly have caused Plaintiff to lose his job” in 2016. Jd. Recognizing that
the complaint was not entirely clear, however, the Court granted Plaintiff leave to amend,
“clarifying this claim, if appropriate.” Jd.

Count VI of Plaintiff's first amended complaint strives to provide that clarification.
Plaintiff realleges that on October 11, 2018, the MCC provided Lamb with an “incomplete one

page document dated April 15, 2016,” Dkt. 29 at 13 (1st Am. Compl.), which is inaccurate in
three respects. First, he asserts that the letter is “inaccurate in its substance” and “was drafted
days prior to his termination and served as the basis for his termination.” Jd. Second, he alleges
that the “letter deliberately omitted enclosures that laid out the supposed basis for his inability to
perform services on behalf of MCC.” Jd. According to Plaintiff, “[h]ad those enclosures been
included, [he] would have been able to successfully rebut the claims of unfitness and he would
not have been terminated or debarred.” Jd. Third, Plaintiff at least suggests that the letter falsely
states that he was provided an opportunity to respond to the charges against him. Jd. at 5 (1st
Am. Compl. § 21).

Defendants move to dismiss this claim on two grounds. First, they once again contend
that Plaintiff has not pled facts sufficient to establish causation. Dkt. 32 at 6-7; see also Lamb
IIT, 498 F. Supp. 3d at 117. To the extent Plaintiff merely alleges that the enclosure and
summary were not included in the MCC’s response to his FOIA request, that omission had no
bearing on any adverse action or determination against Plaintiff. Dkt. 32 at 7. And, to the extent
Plaintiff alleges that the letter “served as the basis for his termination,” Dkt. 29 at 13 (1st Am.
Compl.), that contention is belied by Plaintiff's further allegation that the MCC “intentional[ly]”
omitted the “enclosure describing the specific charge(s)” and the “summary of the investigative
information which served as the basis for MCC finding [Plaintiff] unfit for employment,” id.
Second, Defendants argue that Plaintiffs allegations that the letter “was inaccurate in its
substance” and that the MCC “deliberately omitted” the enclosure and summary, id., are too
conclusory to survive a motion to dismiss. Most notably, Defendants stress that Plaintiff offers
no factual allegations rebutting the letter’s conclusion that he was unfit to perform services on

behalf of the MCC due to his prior misconduct or negligence in employment. See Dkt. 32 at 6—

7.
Before considering the parties’ respective arguments, the Court pauses to decide whether
the April 15 letter itself—as opposed to Plaintiffs description of it—is properly before the
Court. Plaintiff did not attach the April 15 letter to the first amended complaint, but it does
appear as an attachment to Defendants’ reply brief in support of summary judgment in Plaintiff's
earlier FOIA proceeding. See McCarthy Declaration at 30, Lamb v. Millennium Challenge
Corp., No. 16-cv-765 (D.D.C, Jan. 23, 2020) (ECF No. 67-2) (“Dkt. 67-2 at 30, Civil Action No.
16-cv-765”). Ordinarily, in deciding a motion to dismiss, “a court does not consider matters
outside the pleadings.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119
(D.D.C. 2019); see also Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (“In
deciding a motion brought under Rule 12(b)(6), a court is restricted from considering matters
‘outside’ the pleadings.” (quoting Fed. R. Civ. P. 12(d)). But a court may consider documents
“incorporated by reference in the complaint’ or ‘documents upon which the plaintiff's complaint
necessarily relies even if the document is produced not by the parties.” Applewhaite v. Shinton,
859 F. Supp. 2d 157, 159-60 (D.D.C. 2012) (alteration and citation omitted) (quoting Ward, 768
F. Supp. 2d at 119); see also Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322
(2007); Banneker, 798 F.3d at 1133. Not all documents mentioned in a complaint, however, fall
within this exception; rather, the exception applies only if the document is attached to the
complaint or it “is ‘referred to in the complaint and [is] integral to [the plaintiff's] claim.’”
Banneker, 798 F.3d at 1133 (quoting Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004))
(second brackets in original); see also 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1327 (4th ed. 2021) (explaining that incorporation is available if the
document is “extensively referenced and relied upon” in the complaint); Hawthorne v. Rushmore

Loan Mgmt. Servs., LLC, No. 20-cv-00393, 2021 WL 3856626 at *1 (D.D.C. Aug. 30, 2021).

10
“Moreover, if a party contests the authenticity of documents referenced or attached to the
complaint, ... consideration of these records may convert the motion to dismiss into a motion
for summary judgment.” Jd. (citing Fed. R. Civ. P. 12(d)).

Here, the Court will consider the MCC letter because it is referenced in and is integral to
Count VI. See, e.g., Dkt. 29 at 12 (1st Am. Compl.). Count VI repeatedly refers to the letter,
describes its contents, alleges that it is “inaccurate,” and seeks a declaration that the MCC is
“liable” under the Privacy Act for “maintain[ing]” the letter among its records. Id. at 12-13 (1st
Am. Compl.). Moreover, far from questioning the authenticity of the letter, Plaintiff's opposition
brief directs the Court’s attention to a copy of the letter filed in the related FOIA litigation, see
Dkt. 35 at 4 (citing Dkt. 67-2 at 30, Civil Action No. 16-cv-765), and Defendants raise no
objection to Plaintiffs reliance on that document, see Dkt. 36 at 2.

Turning to the merits, the Court agrees with Defendants that the first amended complaint
fails to plausibly allege that Plaintiff's negative background check resulted from any inaccuracies
in the letter or the omission of the enclosure and summary. To state a claim for a violation of 5
U.S.C. § 552a(e)(5), a plaintiff must allege that the agency failed to maintain records “with [the]
accuracy ... and completeness . . . necessary to assure fairness in any determination relating to
the qualifications, character, [or] rights” of the plaintiff and that, as a consequence of that failure,
“a determination is made which is adverse to the individual.” 5 U.S.C. § 552a(g)(1)(C). In other
words, the plaintiff must allege “not only that the inaccurate records were considered in making
the determination, but that an error in the records caused the determination.” Thompson v. Dep't
of State, 400 F. Supp. 2d 1, 19 (D.D.C. 2005); see also Dick v. Holder, 67 F. Supp. 3d 167, 185
(D.D.C. 2014) (explaining that a plaintiff must allege “reliance on the allegedly inaccurate record

caused [the adverse] determination”). Here, however, Plaintiff's allegations are too conclusory

11
and speculative to meet this burden. Plaintiff alleges that the letter was inaccurate and that
“consequently a determination was made which [was] adverse to” him. Dkt. 29 at 13 (Ist Am.
Compl.). But that language merely tracks the statute, and “[a] pleading that offers [only] ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.””
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Two additional allegations in the first amended complaint arguably add some factual
detail, but neither is sufficient to survive the motion to dismiss. First, the complaint alleges that
the letter “was drafted days prior to [Plaintiffs] termination and served as the basis for his
termination.” Dkt. 29 at 13 (1st Am. Compl.). Had Plaintiff alleged facts sufficient to permit a
plausible inference that the decision to terminate him was based on an inaccuracy in the letter,
Plaintiff would be on firm ground. The problem is that he fails to do so, and his “conclusions,”
without more, “are not entitled to the assumption of truth,” /gbal, 556 U.S. at 679. Nor does
Plaintiff plausibly allege that the letter or the omission of the enclosure or summary played a role
in the decision-making process, see id. at 678-79, and the letter itself does not support such an
inference. To the contrary, the letter is addressed to Plaintiff—and not to any agency
decisionmaker—and it reports that the results of his background investigation “raise a serious
question as to [his] fitness to perform services for or on behalf of [the] MCC.” Dkt. 67-2. at 30,
Civil Action No. 16-cv-765. Plaintiff ultimately received a copy of his ROI and the
Adjudication Worksheet, and he separately (and plausibly) alleges that the worksheet contains
inaccuracies that resulted in his negative background check and termination. See Dkt. 29 at 11—
12 (1st Am. Compl.). He does not plausibly allege, however, that a letter addressed to him,

which contains no analysis and no factual background, formed the basis for the agency’s adverse

determination.

12
Second, Plaintiff alleges that, had the letter contained the missing enclosures, he “would
have been able to successfully rebut the claims of unfitness and he would not have been
terminated or debarred.” Jd. at 13 (1st Am. Compl.). The problem with that contention is that
Plaintiff did not receive a copy of the letter until October 2018, more than two years after he was
terminated. Jd. at 5 (1st Am. Compl. 921). As a result, he cannot plausibly maintain that an
inaccuracy or omission in the letter caused his misfortune. Had he received the letter before he
was terminated on April 18, 2016, and had the letter contained a copy of the enclosure and
summary, Plaintiff might have been able to convince the MCC that it was making a mistake
before it ended his employment. But the failure to provide Plaintiff with such an opportunity
before acting does not give rise to a claim under the Privacy Act.

In his opposition brief, Plaintiff adds a third theory of causation: He asserts (1) that the
letter purported to provide him with an “opportunity to respond to the charges and [to] make any
comments or explanation [he] wish[ed] in the space provided after each charge,” see Dkt. 67-2 at
30, Civil Action No. 16-cv-765; (2) that he never received such an opportunity; and (3) “[b]y
creating the false impression that Plaintiff was given an opportunity to respond [and that he
failed to avail himself of that opportunity], the letter suggest[ed] that the charges were
thoroughly substantiated, thus providing a stronger basis for [the] MCC’s decision to terminate
Plaintiff.” Dkt. 35 at 5. The first problem with this theory is that it appears nowhere in the first
amended complaint. Plaintiff does not allege that the letter inaccurately reported that Plaintiff
had received an opportunity to respond to the charges against him, and it is well settled that a
plaintiff, even when proceeding pro se, may not amend his complaint through an opposition
brief. See, e.g., Sai v. TSA, 326 F.R.D. 31, 33 (D.D.C. 2018) (citing cases). Even beyond this

difficulty, moreover, Plaintiffs third theory of causation is not “enough to raise a right to relief

13
above the speculative level.” Twombly, 550 U.S. at 555. (“[T]he pleading must contain
something more... than... a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action.” (citing Wright & Miller, supra, § 1216 (3d ed. 2004))). Here, beyond
the mere existence of the letter, there is no reason to surmise that the MCC decisionmaker
reviewed the letter before deciding how to proceed; incorrectly believed, based on the letter, that
Plaintiff had an opportunity to respond to the charges against him and declined that offer; and
inferred from Plaintiff's failure to respond that the charges were meritorious.

“[E]ven a pro se [complaint] must contain ‘sufficient factual matter’ for the Court to
conclude that relief is plausible.” Nichols v. Vilsack, No. 13-cv-1502, 2015 WL 9581799, at *12
(D.D.C. Dec. 30, 2015); see also Lewis v. Bayh, 577 F. Supp. 2d 47, 55-56 (D.D.C. 2008)
(“Although the court recognizes that pro se complaints are ‘held to less stringent standards than
formal pleadings drafted by lawyers,’ they must still provide more than conclusory allegations to
survive a motion to dismiss.” (alterations and citation omitted) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972))). With respect to causation, Plaintiff's first amended complaint alleges
only that the “letter... served as the basis for his termination.” Dkt. 29 at 13 (1st Am. Compl.).
If the letter itself contained some indication that the agency intended to rely on its contents to
make a final decision, then perhaps this allegation would be sufficient. But the letter includes no
such indication, and the Court cannot otherwise discern how the scant letter to Plaintiff—as
opposed to the underlying ROI and Adjudication Worksheet, which separately form the basis for
Count V of the first amended complaint—could have led to Plaintiffs termination.

The Court will, accordingly, DISMISS Count VI of the first amended complaint for
failure to state a claim.

2. Motion for Leave to Amend

14
Anticipating the Court’s conclusion, Plaintiff moves for leave to file a second amended
complaint to “clarif[y] the content and significance of the [MCC letter] that [allegedly] resulted
in his termination.” Dkt. 37 at 2. Under Federal Rule of Civil Procedure 15(a)(2), courts
“should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also
Foman vy. Davis, 371 U.S. 178, 182 (1962). But “leave to amend should be denied when
amendment would be futile,” Sai v. DHS, 149 F. Supp. 3d 99, 126 (D.D.C. 2015), including
when “the proposed claim would not survive a motion to dismiss,” James Madison Ltd. by Hecht
v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). Here, Plaintiffs proposed amendment is futile.

If granted leave to amend, Plaintiff would add the following new allegations regarding
the MCC letter: First, Plaintiff would clarify that the letter was inaccurate because (1) “it
inaccurately stated that included therein was an ‘enclosure’” when “no such documents were
included;” (2) the letter “gave the false impression that there were several documents that
substantiated the conclusion that Plaintiff was unfit for employment” when “the only
investigative information resulting from the [State Department’s] background investigation was
the ROI;” and (3) “the letter falsely stated that Plaintiff was given an ‘opportunity to respond to
these charges and make any comments or explanations he wished,” which “gave the impression
that the lack-of-fitness finding had withstood challenge and was therefore credible.” Dkt. 37 at
8-9. For the reasons explained above, none of these clarifications would remedy the principle
flaw in the Privacy Act claim—that Plaintiff fails to plausibly allege that any deficiency or
inaccuracy in the letter (as opposed to the Adjudication Worksheet) caused the MCC to find
Plaintiff unfit for employment.

Second, Plaintiff's second amended complaint would add the following new allegations

about causation:

15
The[] inaccuracies [in the letter] led to Plaintiff's termination. MCC personnel

who made the decision to fire Plaintiff surely saw this letter in Plaintiff's file

and formulated several errant conclusions, including: first, that there actually

existed specific charges and that there was supporting documentation to those

specific charges and[,] second, that Plaintiff had the opportunity to contest the

finding but failed to do so — either out of neglect or because he had nothing to

say in his defense. Had MCC personnel known that the only investigative

information was the ROI and no other supporting documentation existed, they

would not have found Plaintiff unfit and fired him. Had they known that

Plaintiff had not received the letter or had an opportunity to contest it, they

would have provided him such an opportunity before considering taking an

adverse action against him.
Dkt. 37 at 8—9 (footnote omitted). Although these allegations are more explicit than those
contained in the first amended complaint, they also suffer from the same flaws discussed above.
Most notably, Plaintiff still offers no factual allegations that raise a claim “to relief above the
speculative level.” Twombly, 550 U.S. at 555. Plaintiff merely asserts that “MCC personnel
... surely saw th[e] letter,” must have incorrectly inferred that “there was supporting
documentation” for the charges of misconduct or negligence in employment, and must have
assumed that Plaintiff had the opportunity to respond to the charges “but failed to so —either out
of neglect or because he had nothing to say in his defense.” Dkt. 37 at 8. Even assuming the
truth of Plaintiffs factual allegations, as the Court must, these conclusions amount to nothing
more than “a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555
(quoting Wright & Miller, supra, § 1216). Indeed, accepting the truth of the facts alleged in
Plaintiff's proposed second amended complaint, the Court concludes that it is not merely
unlikely, but implausible, that the MCC decisionmakers were unaware of the ROI or
Adjudication Worksheet. Iqbal, 556 U.S. at 678-79. And, similarly, the Court is unpersuaded
that Plaintiff's bare allegations “nudge[]” his further clatm—that the letter misled the MCC

decisionmaker to believe that Plaintiff simply declined the agency’s invitation to respond to the

16
charges against him and, on that basis, inferred that he was guilty of those charges—“across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Plaintiffs efforts to correct the flaws in his existing complaint are, therefore, futile. The
Court will, accordingly, DENY Plaintiff's motion for leave to file a second amended complaint
as to Count VI.

B. FTCA (Count VID

Defendants also move to dismiss Count VII of Plaintiffs first amended complaint, which
seeks relief under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 ef seq.
The FTCA waives the sovereign immunity of the United Sates and “allows a plaintiff to bring
certain state-law tort suits against the Federal Government.” Brownback v. King, 141 S. Ct. 740,
745 (2021). Here, Plaintiff does not identify the state-law tort claims he seeks to invoke but,
rather, alleges that the MCC (1) “violated Plaintiff's rights by terminating him without cause,
debarring him due to unspecified ‘psychological treatment,’ and depriv[ing] him of the
opportunity to contest the finding that he was unfit for employment” and (2) “failed to maintain
his records in a manner necessary to ensure that he was not denied employment opportunities.”
Dkt. 29 at 14 (1st Am. Compl.).

Defendants move to dismiss the FTCA claim for its “many . . . failings.” Dkt. 32 at 9.
Defendants argue that the Court lacks jurisdiction because Plaintiff failed to exhaust his
administrative remedies. See id. at 8. They argue that Plaintiff may only bring an FTCA claim
against the United States and that he has not named the United States as a defendant. Jd. at 9,
And, they argue that Plaintiff “fail[s] to allege or even identify a common law tort. . . for which

the FTCA has waived the United States’ sovereign immunity.” Jd.

17
The Court starts, as it must, with subject-matter jurisdiction. Under the FTCA, “[a]n
action shall not be instituted upon a claim against the United States for money damages... ,
unless the claimant [has] first presented the claim to the appropriate Federal agency.” 28 U.S.C.
§ 2675(a). Under the law of this circuit, the exhaustion requirement is jurisdictional. See
Simpkins v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (“This court . . . [has] treated the
FTCA's requirement of filing an administrative complaint with the appropriate agency prior to
instituting an action as jurisdictional.”); Rasul v. Myers, 563 F.3d 527, 528 n.1 (D.C. Cir 2009)
(“Since plaintiffs failed to exhaust their administrative remedies as required by the FTCA, the
district court lacked jurisdiction.” (internal citation omitted)); Davis v. United States, 944 F,
Supp. 3d 36, 39 (D.D.C. 2013) (“The plaintiff's failure to submit an administrative claim under
the FTCA to the [agency] prior to filing this lawsuit deprives this Court of subject matter
jurisdiction.”). Accordingly, the Court lacks jurisdiction unless Plaintiff exhausted his
administrative remedies.

In considering Defendants’ motion to dismiss Plaintiff's original complaint, the Court
held that Plaintiff failed to exhaust administrative remedies, as required by the FTCA. Lamb JI,
498 F. Supp. 3d at 118. Although Plaintiffs original complaint did not mention the FTCA,
Plaintiff argued in his opposition brief that his complaint stated an FTCA claim, and, in the
alternative, he sought leave to amend the complaint to add allegations in support of such a claim.
Dkt. 23 at 10-11. Plaintiff also alleged that he “filed a complaint with the MCC on July 22,
2019,” thereby satisfying the FTCA’s exhaustion requirement. Jd. at 10. In response,
Defendants raised the same jurisdictional argument that they now assert, arguing that the Court
lacked jurisdiction over Plaintiff's putative FTCA claim because Plaintiff “filed his

administrative claim,” if at all, “after he filed his District Court complaint.” Dkt. 25 at 4. The

18
Court agreed, holding that “[b]ecause Plaintiff did not exhaust administrative remedies before
filing suit,” the Court was required to “dismiss his FTCA claims, insofar as his complaint [could]
be read to present any.” Lamb IIT, 498 F. Supp. 3d at 118.

The Court went on to explain that the question “[w]hether Plaintiff [could] amend his
compliant to cure this defect present[ed] a more difficult question.” Jd. The Court continued:

[T]he FTCA provides that a federal lawsuit “shall not be instituted” until after
the plaintiff has “first presented the claim to the appropriate [f]ederal agency”
and that claim has “been finally denied by the agency in writing and sent by
certified or registered mail.” 28 U.S.C. § 2675(a). The Supreme Court has
interpreted the word “instituted” in the FTCA as meaning to “begin” or
“commence,” such that exhaustion is required “before invocation of the judicial
process.” McNeil [v. United States], 508 U.S. [106,] 112 [(1993)]. Although “a
plaintiff can often cure a pleading defect by amending the complaint,” an
amended or supplemental complaint cannot change when a plaintiff brought his
action. See U.S. ex rel. Shea v. Cellco P’ship, 863 F.3d 923, 929 (D.C. Cir.
2017) (reaching a similar conclusion in the context of the False Claims Act based
on the “distinction between the complaint and the underlying action’).

In a more recent decision, however, the D.C. Circuit took a more practical
approach to whether a plaintiff could cure a defect in Article III standing through
an amended or supplemental complaint. Scahill v. [District of Columbia], 909
F.3d 1177, 1182-84 (D.C. Cir. 2018). Although jurisdiction is generally
determined at the time a plaintiff brings suit, the court of appeals concluded that
permitting plaintiffs to cure such jurisdictional defects through amended
pleadings avoids “the unnecessary hassle and expense of filing a new lawsuit
when events subsequent to filing the original complaint have fixed the
jurisdictional problem.” Jd. at 1184. The court of appeals based its decision on
Supreme Court cases that assessed jurisdiction based on supplemental pleadings
filed subsequent to the initial complaint, see Rockwell Int’l Corp. v. United
States, 549 U.S. 457, 473-74 (2007); Mathews v. Diaz, 426 U.S. 67, 75 (1976),
and on the supplemental pleading provision of Federal Rule of Civil Procedure
15(d), which provides that such pleading may “set[] out any transaction,
occurrence, or event that happened after the date of the pleading to be
supplemented,” Fed. R. Civ. P. 15(d). See Scahill, 909 F.3d at 1182-84. The
Mathews case from the Supreme Court is particularly relevant because it also
dealt with an administrative exhaustion requirement. 426 U.S. at 75. Although
exhaustion was a “nonwaivable condition of jurisdiction,” the Supreme Court
had “little difficulty” asserting jurisdiction because the plaintiff “satisfied this
condition while the case was pending in the District Court” and “[a]
supplemental complaint in the District Court would have eliminated this
jurisdictional issue.” Jd.

19
Id. at 118-19. But, having raised this question, the Court ultimately declined to pass on it, noting
that 1t was “unclear whether the MCC ha[d] issued a final denial” of Plaintiff's administrative
claim and that, as a result, it was “premature for the Court to consider whether an amendment to
Plaintiffs complaint or a supplemental complaint might remedy his failure to exhaust.” Jd. at
119.

Plaintiff's first amended complaint alleges (1) that he filed an FTCA administrative claim
with the MCC on July 18, 2019; (2) that the FCTA provides that the “failure of an agency to
make [a] final disposition of a claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final decision of the claim,” 28 U.S.C. § 2675(a); (3)
that six months had passed; and (4) that Plaintiff is exercising his option of deeming the agency’s
failure to act as a “final decision” on the claim. Dkt. 29 at 14 (1st Am. Compl.). In short,
Plaintiff alleges that, even if he failed to exhaust his administrative remedies before bringing suit,
he has now done so. That raises the question that the Court deferred deciding in its prior
opinion.

Before turning to that question, the Court must address a threshold factual issue that the
MCC raises. According to the MCC, it never received Plaintiff's administrative claim. Dkt. 32
at 8. That factual dispute matters because Defendants challenge the Court’s subject-matter
jurisdiction under Rule 12(b)(1), and, thus, Plaintiff bears the burden of demonstrating by a
preponderance of the evidence that he submitted a claim to the MCC, Thomas v. Nicholson, 539
F. Supp. 2d 205, 213 (D.D.C. 2008), even at this threshold stage of the litigation, see Feldman v.
FDIC, 879 F.3d 347, 351 (D.C. Cir. 2018). To the extent the parties submit “affidavits and other
exhibits” in support of their respective positions, moreover, the Court must “weigh the

conflicting evidence” to determine its jurisdiction. Thomas, 539 F. Supp. 2d at 213.

20
Plaintiff has met his burden of demonstrating by a preponderance of the evidence that he
submitted his administrative claim to the MCC. According to Defendants, the MCC has no
record of receiving such a claim. In support of that contention, they attach a declaration from
Richard J. McCarthy, General Counsel for Administration in the Office of General Counsel at
the MCC, attesting that he “ha[s] not seen or accepted any such administrative claim” and that
the “MCC has no record of Mr. Lamb serving MCC with an administrative FTCA claim.” Dkt.
32-1 at 1. In response, Plaintiff submits a Standard Form 95, “Claim for Damage, Injury, or
Death,” that lists the MCC as the claim recipient; uses the address that appears on the MCC’s
website; identifies Plaintiff as the “claimant;” and is dated July 18, 2019. See Dkt. 35-1 at 1.
Plaintiff also submits photocopies of a post office receipt, also dated July 18, 2019, and a return
receipt from the MCC, which shows a delivery date of July 22, 2019, and which bears the
signature of Jahnai Isom. See id. at 17. And, finally, Plaintiff submits a copy of what appears to
be Isom’s online CV, indicating that she worked at the MCC from October 2017 to November
2020. Jd. at 18.

With this evidence in mind, the Court finds that Plaintiff has met his burden of
demonstrating that he delivered his claim to the MCC. The Court does not question the veracity
of McCarthy’s declaration: But it is possible—and, under the present circumstances, likely—
that the claim was delivered to the MCC but was misplaced or never made it to McCarthy.
Significantly, Defendants do not cite any rule or publication that would have put Plaintiff on
reasonable notice that he needed to address his claim to McCarthy or needed to obtain
confirmation that McCarthy personally received it.

The Court is also persuaded that, even though Plaintiff never received a final denial or

other response, he exhausted his administrative remedies. As Plaintiff notes, the FTCA

21
expressly contemplates circumstances like those presented here and provides that a claimant
may, at his option, treat an agency’s failure to respond within six months as “a final denial of the
claim for purposes of” the FTCA. 28 U.S.C. § 2675(a). Here, Plaintiff alleges that he submitted
his claim on July 18, 2019, and that, “to date, the MCC has not responded.” Dkt. 29 at 14 (1st
Am. Compl.). Other than disputing that it received the claim, Defendants do not challenge these
assertions, and the Court concludes that Plaintiffs claim is properly deemed “denied” under the
statute.

This, then, tees up the question whether a plaintiff who fails to exhaust his FTCA
administrative remedies before bringing suit, but exhausts while the case is pending, can cure the
jurisdictional defect in his original complaint by filing an amended or supplement complaint that
adds the intervening jurisdictional allegations. The answer to that question begins with the
Supreme Court’s decision in McNeil v. United States, 508 U.S. 106 (1993). In that case, the
plaintiff—who, like Plaintiff here, was proceeding pro se—filed an FTCA claim in March 1989,
but he did not submit an administrative claim to the agency or receive a denial of that claim until
July 1989. Jd. at 108-09. The United States “was not served with a copy of [the] complaint until
July 30, 1990,” id. at 108, and thus no “progress ha[d] taken place in the litigation before the
administrative remedies [were] exhausted,” id. at 110. But the Supreme Court nonetheless held
that the plaintiff's claim was premature, and, on that basis, the Court held that the complaint was
properly dismissed for lack of jurisdiction. Jd. at 111-13.

To reach this conclusion, the Court started with the “unambiguous” text of the FTCA:
The statute “commands that an ‘action shall not be instituted . . . unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim shall have been final

denied by the agency in writing and sent by certified or registered mail.’” Jd. at 111 (quoting 28

22
U.S.C. § 2675(a)). Employing this clear imperative, the Court had little difficulty concluding
that, because the plaintiff had not filed his claim and had not received a final denial as of the day
he filed his complaint, his “complaint was filed too early.” Jd. Nor was the Court convinced that
the plaintiffs “subsequent receipt of a formal denial from the agency [could be] treated as the
event that ‘instituted’ the action” within the meaning of the FCTA. Jd. Rather, as used in the
FTCA, the word “instituted” means “begin” or “commence,” and, thus, “[t]he most natural
reading of the statute indicates that Congress intended to require complete exhaustion of
Executive remedies before invocation of the judicial process.” Jd. at 112. It does not mean, as
the plaintiff urged, that an action is “instituted” on the date when all “necessary predicates to
invocation of the court’s jurisdiction—namely, the filing of [a] complaint and the formal denial
of the administrative claim’”—are satisfied. Jd. at 111. In short, an action is “instituted” when
“the judicial process” begins. Jd. at 112.

In reaching this conclusion, the Supreme Court was unswayed by the plaintiffs status as
a pro se litigant. The Court observed that the statutory text is clear and, thus, the exhaustion
requirement “is certainly not a ‘trap for the unwary.”” Jd. at 113. Although the Court recognized
that pro se litigants are often accorded some leeway, it stressed, “we have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.” /d. “[I]n the long run,” the Court wrote, “experience
teaches that strict adherence to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.’” Id. (quoting Mohasco Corp. v. Silver, 447
U.S. 807, 826 (1980)).

That analysis comes very close to resolving the questioned presented here, with one

caveat: the McNeil Court declined to decide whether the plaintiff in that case took any step that

23
“constituted the commencement of a new action” “after the denial of his administrative claim on
July 21, 1989.” Id. at 110. As a result, the Court arguably left unanswered the question whether
a plaintiff can overcome the FTCA’s exhaustion requirement by filing an amended or
supplemental complaint. Or, to put the question in slightly different terms, may the Court treat a
supplemental complaint as a “new action,” thereby relieving the FTCA plaintiff of the
“unnecessary hassle and expense of filing a new lawsuit,” Scahill, 909 F.3d at 1184, merely to
assert subsequently arising facts or circumstances that are necessary to the Court’s jurisdiction?
Although a close question, the Court concludes that the FTCA does not permit a plaintiff to
rescue a prematurely filed lawsuit by amending or supplementing his complaint.

In recent years, courts have at times permitted plaintiffs to cure jurisdictional defects by
supplementing their complaints with newly arising facts, notwithstanding the usual rule that
jurisdiction is determined at the time the action is commencement. In Northstar Financial
Advisors Inc. v. Schwab Investments, 779 F.3d 1036 (9th Cir. 2015), for example, the plaintiff
lacked Article III standing at the time it brought suit, but it obtained “‘an assignment of claim .. .
several months after the original complaint was filed,” and that assignment cured the deficiency.
Id, at 1043. The defendant argued that the plaintiff's only option was to bring a new lawsuit,
“because standing must be determined at the time a complaint is filed.” Jd. The Ninth Circuit
was unconvinced, reasoning that “a lack of subject-matter jurisdiction should be treated like any
other defect for purposes of defining the proper scope of supplemental pleading.” /d. (quoting
Wright & Miller, supra, § 1507 (3d ed. 1998)). Indeed, as the Ninth Circuit observed, in
Mathews v. Diaz, 426 U.S. 67 (1976), the Supreme Court permitted “an applicant for Medicare”
to cure a “jurisdictional defect... by a supplemental pleading.’” Northstar Fin. Advisors, 779

F.3d at 1044. The Ninth Circuit then quoted the following passage from Mathews:

24
Although 42 U.S.C. § 405(g) establishes filing of an application as a

nonwaivable condition of jurisdiction, [the claimant] satisfied this condition

while the case was pending in the District Court. A supplemental complaint in

the District Court would have eliminated this jurisdictional issue: since the

record discloses, both by affidavit and stipulation, that the jurisdictional

condition was satisfied, it in not too late, even now, to supplement the complaint

to allege this fact.

Id. (quoting Mathews, 426 U.S. at 75). The D.C. Circuit reached a similar conclusion in Scahill.
See 909 F.3d at 1183-84. Recognizing that the circuits are split on the issue, the D.C. Circuit
joined the Ninth Circuit in holding “that a plaintiff may cure a standing defect under Article III
through an amended pleading alleging facts that arose after filing the original complaint.” Jd. at
1184,

The question posed here, however, differs from the question decided in Northstar
Financial Advisors and Scahill in a number of critical respects. To start, and most significantly,
those cases recognized a judge-made exception to a judge-made rule. Both cases grappled with
the general principle—first articled by Chief Justice John Marshall in the context of determining
diversity jurisdiction—that “jurisdiction of the court depends upon the state of things at the time
of the action brought.” Mollane v. Torrance, 9 Wheat. 537, 539 (1824); see also Rockwell Int’l
Corp. v. United States, 549 U.S. 457, 473 (2007). That principle—known as the “time-of-filing
rule”—while long-established, is grounded in policy considerations, see Grupo Dataflux v. Atlas
Glob. Grp., L.P., 541 U.S. 567, 580 (2004) (“The time-of-filing rule is what it is precisely
because the facts determining jurisdiction are subject to change, and because constant litigation
in response to that change would be wasteful.”), not in any congressional command, see id. at
583 (Ginsburg, J., dissenting) (“[Justice Marshall] did not extract this practical time-of-filing rule

from any constitutional or statutory text.”); Jowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d

1225, 1233 (10th Cir. 2010) (“The time-of-filing rule is a judge-made doctrine.”), and it is

25
subject to certain exceptions, see, e.g, Grupo Dataflux, 541 U.S. at 572-73; Wild v. Subscription
Plus, Inc., 292 F.3d 526, 528 (7th Cir. 2002); Dominium Austin Partners, LLC v. Emerson, 248
F.3d 720, 725 (9th Cir. 2001). And, in both Northstar Financial Advisors and Scahill, the courts
recognized prudential exceptions for cases in which facts necessary to establish standing occur
after suit is brought and no purpose would be served by requiring the plaintiff to file a new
action.

The present dispute, in contrast, requires the Court to apply an “unambiguous” statutory
“command,” which the Court is not “free to rewrite.” McNeil, 508 U.S. at 111. Under the plain
language of the FTCA, “TaJ}n action shall not be instituted . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have been final denied
by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). The
relevant language is clear and emphatic: a claimant may not institute—that is, “begin” or
“commence”—an action unless the claimant has already presented his claim and agency has
denied it. McNeil, 508 U.S. at 112. The Federal Rules of Civil Procedure are equally clear: “A
civil action is commenced by filing a complaint with the court,” Fed. R. Civ. P. 3 (emphasis
added), and not by amending or supplementing an existing complaint, Fed. R. Civ. P. 15.

The purposes of the relevant rules differ in important respects, as well. The time-of-filing
rule recognizes that jurisdictional facts are subject to change and that constantly evolving facts
can lead to confusing, inefficient, and “wasteful” litigation. Grupo Dataflux, 541 U.S. at 580.
Recognizing a narrow exception to that rule to avoid “the unnecessary hassle and expense of
filing a new lawsuit when events subsequent to tiling the original complaint have fixed the
jurisdictional problem,” Scahill, 909 F.3d at 1184, serves the same underlying interest in judicial

efficiency served by the time-of-filing rule. The FTCA pre-suit exhaustion rule serves a

26
different purpose and creating an exception for amended or supplement pleadings runs counter to
that purpose. As the Supreme Court observed in McNeil, “at least one objective of the [pre-suit
exhaustion rule is] to ‘reduce unnecessary congestion in the courts.’” 508 U.S. at 112 n.8
(quoting S. Rep. No. 89-1327, at 4 (1966), as reprinted in 1996 U.S.C.C.A.N. 2515, 2518). That
purpose is served most effectively by discouraging claimants from filing suit before they give the
administrative agency a meaningful opportunity to consider the claim. Indeed, to hold otherwise
would invite the precise kind of “burden[s] on the judicial system and on the Department of
Justice” and the disorderly “administration of this body of litigation” that the pre-suit exhaustion
requirement is designed to avoid. Jd. at 112; see also Sai, 99 F. Supp. 3d. at 63 (“Permitting a
party to file suit without exhausting, only to then seek a stay of the proceeding while he or she
files and exhausts an administrative claim, would undermine the exhaustion requirement and
would unnecessarily burden the courts and the parties.”’).

Construing the pre-suit exhaustion requirement in a manner that precludes curing defects
in amended or supplement pleadings is also consistent with the weight of authority. This Court
has held on several occasions that the “[flailure to exhaust administrative remedies [under the
FTCA] before bringing suit... cannot be remedied by amending the complaint or attempting to
exhaust while the suit is pending.” Sai, 99 F. Supp. 3d at 63; see also, e.g., Norton v. United
States, --- F. Supp. 3d ---, 2021 WL 1061544, at *5 (D.D.C. 2021); Harrod v. U.S. Parole
Comm'n, No. 13-774, 2014 WL 606196, at *1 (D.D.C. Feb. 18, 2014); Edwards v. District of
Columbia, 616 F.Supp.2d 112, 116 (D.D.C. 2009). Courts outside this jurisdiction, moreover,
have reached the same conclusion. See Sparrow v. USPS, 825 F. Supp. 252, 255 (E.D. Cal.
1993) (“If the claimant is permitted to bring suit prematurely and simply amend his complaint

after denial of the administrative claim, the exhaustion requirement would be rendered

27
meaningless.”); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“Allowing claimants
generally to bring suit under the FTCA before exhausting their administrative remedies and to
cure the jurisdictional defect by filing an amended complaint would render the exhaustion
requirement meaningless and impose an unnecessary burden on the judicial system.”); Toomey v.
United States, No. 10-260, 2012 WL 876801, at *3—-4 (E.D. Ky. Mar. 14, 2012) (same).

The Court is therefore unpersuaded that the Northstar/Scahill line of cases counsels in
favor a creating a similar exception to the FTCA pre-suit exhaustion requirement. Although a
slightly closer question, the Court is also convinced that Mathews v. Diaz is inapposite. In
Mathews, the plaintiffs were noncitizens who challenged the Social Security Act’s eligibility
requirements for noncitizens seeking enrollment in Medicare Part B’s supplemental insurance
program. 426 U.S. at 69-70. The Social Security Act “establishes filing of an application as a
nonwaivable condition of jurisdiction” in 42 U.S.C. § 405(g).? Id. at 69-70. One plaintiff failed
to file a Medicare Part B application until after he joined the lawsuit as a party. /d. at 71-72.
Despite § 405(g)’s exhaustion requirement, the Supreme Court had “little difficulty” holding that
the district court had jurisdiction over that plaintiff's claim because he “satisfied the[e statute’s
requirement] while the case was pending in the [d]istrict [cJourt.” Jd. at 75. The Court reasoned
that “[a] supplemental complaint . . . would have eliminated this jurisdictional issue” and
concluded that “it is not too late, even now, to supplement the complaint to allege this fact.” Jd.

The key difference between the Social Security Act and the FTCA is that only the latter

clearly prohibits the Court from hearing a case before the plaintiff has exhausted administrative

2 In relevant part, 42 U.S.C. § 405(g) provides: “Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a
review of such decision by a civil action commenced within sixty days after the mailing to him
of notice of such decision or within such further time as the Commissioner of Social Security

may allow.”

28
remedies. See 28 U.S.C. § 2675(a). This distinction was highlighted by Judge Bryson in his
opinion for the Federal Circuit in Black v. Secretary of Health and Human Services, 93 F.3d 781
(Fed. Cir. 1996). In that case, a plaintiff sought compensation under the National Childhood
Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 3300aa et seqg., which at the time
provided that individuals who suffered certain vaccine-related injuries could receive
compensation by filing a petition with the Vaccine Injury Compensation Program attesting,
among other things, that the claimant had “incurred unreimbursable expenses . . . in an amount
greater than $1,000.” 42 U.S.C. § 300aa—11(c)(1)(D)(i) (1996).? The question in Black was
whether a petitioner could satisfy the statutory $1000 requirement through “a supplemental
pleading filed after the initial petition.” Black, 93 F.3d at 784.

In answering that question, the Federal Circuit emphasized that “determining whether a
supplemental pleading can be used to rescue an insufficient petition or complaint in a particular
case depends on a careful reading of the substantive provision at issue.” /d. at 790. Thus, “[i]f
the statute in question contains . . . an express prohibition against filing a complaint before the
expiration of a statutory waiting period, it would defeat the purpose of the statutory prohibition
to permit a plaintiff to ignore the waiting period, file his complaint during the prohibited period,
and then seek to cure the defect by filing a supplemental pleading alleging that he waiting period
expired during the pendency of the action.” Jd. As the Federal Circuit explained, the FTCA is a
prime example of such a regime: it contains an “express prohibition[] against filing suit . . .
before exhausting administrative remedies.” Jd.; see also 28 U.S.C. § 2675(a) (“An action shall

not be instituted . . . unless the claimant shall have first [exhausted administrative remedies].”).

3 Congress later eliminated the $1000 requirement from the Vaccine Act. See Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277, § 1502,
112 Stat. 2681, 2681-741 (1998).

29
The Medicare Act, in contrast, does not contain such an express prohibition. See 42 U.S.C.

§ 405(g) (“Any individual, after any final decision of the Commissioner... , may obtain a
review of such decision by a civil action.”). It was for that reason, according to the Federal
Circuit, that the Supreme Court held in Mathews that the Medicare Act “did not forbid[] a
claimant from filing an action prior to the agency’s denial of an administrative claim,” even
though the statute authorized an individual to obtained judicial review only “after [receiving a]
final decision” from the agency. Black, 93 F.3d at 791. Applying this understanding, the
Federal Circuit held that the Vaccine Act was “more akin to the [Social Security Act] at issue in
Mathews . . . than to the [FTCA] at issue in McNeil,” and, accordingly, it held that the plaintiff
could establish jurisdiction by supplementing his petition.*

The Court agrees with the line that the Federal Circuit drew in Black. Although the
Medicare Act and the FTCA both require exhaustion before bringing suit, the language of the
FTCA is far more categorical and compulsory, and it is designed to prevent unnecessary and
premature litigation from burdening “the judicial system and . . . the Department of Justice.”
McNeil, 508 U.S. at 112. Given the FTCA’s express prohibition against prematurely filing suit,
see id. at 111-12, and the fact that neither Mathews, Northstar Financial Advisors, nor Scahill
involved an analogous jurisdictional provision, the Court concludes that an FTCA plaintiff
cannot cure a premature filing “by . . . attempting to exhaust while the suit is pending” and filing
an amended or supplement complaint. Sai, 99 F. Supp. 3d at 63. Indeed, this case illustrates the

importance of maintaining that bright-line rule. Plaintiff filed his original complaint on March 4,

4 More precisely, the Federal Circuit held, based on its interpretation of the “joint operation” of
multiple provisions in the Vaccine Act, that a plaintiff could establish jurisdiction through
supplemental pleading so long as she incurred $1000 in expenses “during the limitations period”
described in the Act. See Black, 93 F.3d at 791-92.

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2019, Dkt. 1, and he now contends that he exhausted his administrative remedies under the
FTCA by mailing a copy of that complaint to the MCC July 18, 2019, Dkt. 29 at 14-15 (1st Am.
Compl.). That is not the process that the FTCA envisions.

The Court will, accordingly, DISMISS Count VII for lack of subject matter jurisdiction.
And, because the Court determines that Plaintiff cannot cure this jurisdictional defect through an
amended or supplemental pleading, the Court will DENY Plaintiff's motion for leave to file a
second amended complaint as to Count VII as futile.

CONCLUSION

For these reasons, the Court hereby GRANTS Defendants’ motion to dismiss Counts VI
and VII of Plaintiff's first amended complaint, Dkt. 32. The Court DENIES Plaintiff's motion
for leave to file a second amended complaint, Dkt. 37, as futile. The remainder of Plaintiff's

claims in his first amended complaint, Counts I-V, are unaffected by this order.

SO ORDERED. op
Ld. ral

RANDOLPH D. MOSS
United States District Judge

Date: September 27, 2021

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