Charles v. United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NATHAN M.F. CHARLES,
Plaintiff
Civil Action No. 21-0864 (CKK)
v.
UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION
(April 7, 2022)
This matter comes before the Court on Plaintiff’s [31] Motion for Reconsideration.

Plaintiff moves the Court, pursuant to Federal Rule of Civil Procedure 60(b), to vacate its [30]

Memorandum Opinion and Order dismissing this case for lack of jurisdiction. Insofar as

Plaintiff clarifies his defamation claim to center on alleged conduct the Court did not analyze in

its [30] Memorandum Opinion and Order granting Defendant’s [3] Motion to Dismiss, the Court

will exercise its discretion to revisit its [30] Memorandum Opinion and Order and reanalyze

dismissal on Plaintiff’s proposed basis. Even doing so, however, the Court concludes it still

lacks jurisdiction over this case. Accordingly, upon consideration of the pleadings, 1 the relevant

1
This Memorandum Opinion focuses on the following documents:
• Plaintiff’s Complaint, ECF No. 1-1 (“Compl.”);
• Plaintiff’s sealed Reply to Defendant’s Motion to Dismiss, ECF No. 6 (“Pl.’s Opp.”);
• Plaintiff’s proposed Amended Compaint, ECF No. 19-1 (“Am. Compl.’);
• Plaintiff’s Motion for Reconsideration, ECF No. 29 (“Mot.”);
• Defendant’s Opposition to Plaintiff’s Motion for Reconsideration, ECF No. 32 (“Def.’s
Opp.”); and
• Plaintiff’s Reply to Opposition to Motion for Reconsideration, ECF No. 33 (“Pl.’s
Repl.”).
In an exercise of its discretion, the Court finds that holding oral argument in this action
would not be of assistance in rendering a decision. See LCvR 7(f).
1
legal authorities, and the entire record, the Court shall DENY Plaintiff’s [31] Motion for

Reconsideration.

I. BACKGROUND

Before turning to the circumstances underlying Plaintiff’s most recent Motion, the Court

shall pause to repeat some of the general background in this case. On February 25, 2021,

Plaintiff, previously employed as an attorney at the National Security Division (“NSD”) of the

United States Department of Justice, filed a complaint for defamation against two of his

coworkers in the District of Columbia Superior Court. Notice of Removal at ¶ 2. Plaintiff’s

operative complaint is threadbare; it characterizes his coworkers’ statements as “false” and made

to “Plaintiff’s direct supervisor and other managerial officials of [NSD].” Compl. at ¶¶ 3-4. The

complaint’s only other factual allegation is that, “[a]s a result of [his coworkers’] publication of

these defamatory statements, [] Plaintiff was suspended from his position as a federal

prosecutor,” resulting in lost wages. See id. at ¶ 5. On March 31, 2021, Defendant filed their

notice of removal, arguing that it was the true party in action as Plaintiff’s former coworkers

were acting in their official capacity when they uttered the allegedly defamatory statements. Id.

at ¶ 5.

A week after removal, Defendant filed its motion to dismiss for lack of subject matter

jurisdiction. In support thereof, Defendant argued: (1) the Court did not have derivative

jurisdiction because federal courts have exclusive jurisdiction over claims arising under the

FTCA; (2) contrarily, Plaintiff cannot bring an FTCA claim because the FTCA does not waive

sovereign immunity for intentional torts; and (3) Plaintiff had yet to effect proper service.

It was not until Plaintiff’s opposition2 that Plaintiff offered some factual development in

2
Upon Defendant’s motion, the Court sealed Plaintiff’s opposition as, Defendant represented,
Plaintiff revealed the existence of sensitive, ongoing national security investigations. Order at 1,
2
response to Defendant’s jurisdictional arguments. Broadly, Plaintiff’s conflict with his

coworkers seems to have begun when, Plaintiff alleges, they ignored concerns he raised about

Pl.’s

Opp. at 4-6. In its [30] Memorandum Opinion and Order, the Court focused on Plaintiff’s

allegation that he submitted a draft report on the subject to his supervisor, that she directed him

not to share the draft outside of the Department of Justice, and when he did, she reported his

actions to upper management within NSD. Charles v. United States, 2022 WL 558181 at *2.

The Court focused on that fact mainly because neither Plaintiff’s complaint nor proposed

amended complaint identified what false statement gave rise to his defamation claim (and his

proposed claim for intentional infliction of emotional distress). See id. Indeed, both Plaintiff’s

original complaint and proposed amended complaint had very few factual allegations, while

Plaintiff’s 73-page opposition, as Plaintiff writes in the instant Motion, “was particularly

lengthy,” “included a variety of minimally relevant details of the case,” and some of which “was

mere plot exposition––perhaps even ‘surplusage.’” Mot. at 3.

Considering mainly Plaintiff’s failure to follow his supervisor’s instructions not to share

the draft memorandum, the Court concluded that a superior charging Plaintiff with failure to

follow instructions was an “action[] ‘of the kind [they] [were] employed to perform.’” Charles,

2022 WL 558181 at *4 (quoting Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659,

664 (D.C. Cir. 2006)). As a result, the Court held that Plaintiff’s complaint fell within the ambit

of the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”) and dismissed Plaintiff’s

complaint because the defamation claim, as the Court understood it to be pled, did not fall within

ECF No. 28 (Feb. 22, 2022). The Court has redacted the same detail here that it redacted in its
[30] Memorandum Order and Opinion.
3
the federal government’s waiver of sovereign immunity. Id. at *5. Additionally, the Court

denied Plaintiff leave to amend his complaint to add a claim for intentional infliction of

emotional district because, as the Court understood it to be pled, the proposed amended

complaint failed to state such a claim. Id. at *5.

Plaintiff’s present Motion insists that the Court focused on the wrong allegations laid out

in his [6] Reply to Defendant’s Motion to Dismiss (which, again, were included in neither his

original complaint nor proposed amended complaint). In the present Motion, Plaintiff includes a

chart––reproduced almost verbatim below––delineating which allegations on which Plaintiff

would have had the Court’s analysis focus. 3

Date Event Significance Citation to the
Record of this Case
August 20-September The Plaintiff authors [No entry] ECF No. 6, ¶¶ 7-8,
16, 2019 the aforementioned 20-23
“draft memo”
September 16, 2019 Julie Edelstein [No entry] ECF No. 6, ¶ 24
instructs the Plaintiff
not to distribute the
“draft memo” outside
of his immediate
office
September 18, 2019 The Plaintiff The Plaintiff has ECF No. 6, ¶¶ 25-27.
distributes the “draft never disputed that he
memo” outside of his disobeyed Julie
immediate office. Edelstein’s
instructions in this
situation. He thought
he was justified based
on the circumstances.
However, his
supervisors later
counseled him
otherwise, the
Plaintiff never did it
again.

3
Some cells in the chart are empty of content. The Court has added “[No entry]” in a cell that
Plaintiff left empty.
4
October 1, 2019, at Jay Bratt, Julie [No entry] [No entry]
4:30 PM EDT Edelstein, and the
Plaintiff’s direct
supervisor
(hereinafter “Direct
Supervisor” counsel
the Plaintiff that it
was inappropriate to
send a draft memo
outside of his
immediate office
after being told not
to, and that his
perceived
justification for doing
so was insufficient.
The counseling
session ended with a
discussion of several
other issues in the
office, none of which
pertained to
substantive legal
issues.
October 3, 2019 Direct Supervisor The statement from ECF No. 6 ¶ 35.
sends the Plaintiff an this email, “We
email to memorialize consider constructive
the counseling conversations, like
session on October 1, the one we had on
2019. The email Tuesday, to be the
included the appropriate method to
statement, “We handle confusion,
consider constructive disagreements, and
conversations, like frustration, that we all
the one we had on inevitably experience
Tuesday, to be the as we work together
appropriate method to to advance CES’s
handle confusion, mission,” is the
disagreements, and “instruction” Jay
frustration, that we all Bratt and Julie
inevitably experience Edelstein would later
as we work together claim was an
to advance CES’s [a instruction not to
sub-office within question Julie’s legal
NSD] mission. analysis.
February 19, 2020 The Plaintiff Edelstein’s legal [No entry]

5
 highlighted some text reasoning – is the act
in a draft search that Julie Edelstein
warrant affidavit and and Jay Bratt stated
added to the margin violated their
comment, “NMC, instructions to the
02/19/20: Per Julie’s Plaintiff on October
orders, this has to 1-3, 2019.
come out. I
vehemently disagree
with her. I event
went so far as to raise
the issue with two
Deputy Assistant
Attorneys General.
However, I was
ultimately overruled.”
March 30, 2020 Direct Supervisor At no point had ECF No. 23 ¶¶ 52-57.
Issued the Plaintiff a anyone issued the
Notice of Proposed Plaintiff an order to
Suspension. The “refrain from
charge in the notice challenging Deputy
was “Failure to Chief Edelstein’s
Follow Instructions” litigation and
the Notice claimed strategy-related
that the Plaintiff had decisions in
been instructed to communications
“refrain from outside of the
challenging Deputy Counterintelligence
Chief Edelstein’s and Export Control
litigation and Section’s (CES)
strategy-related management chain”
decisions in or anything like it.
communications Nor did the Notice
outside of the contain any details on
Counterintelligence when or by what
and Export Control’s manner anyone might
(CES) management have issued the
chain.” Plaintiff such an
instruction.

Mot. at 7-9. Based on Plaintiff’s chart, and as far as the Court can tell, it appears that Plaintiff

offers the following allegation as the actionable conduct at issue (i.e., as the false statement(s)

that Plaintiff “failed to follow instructions”): Plaintiff inserted a critical comment on a draft

6
document; both Edelstein and Bratt falsely claimed to an unnamed supervisor that either Bratt,

Edelstein, or both had instructed him not to do so; and that false statement caused Plaintiff’s

separation from the Department of Justice. Plaintiff further alleges in the instant Motion that the

alleged statements “were felony violations of 18 U.S.C. § 1001 because they were misstatements

made in the course of an official proceeding before the Executive Branch of the United States

Government.” Mot. at 4.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 60(b), a district court may “relieve a party or

its legal representative from a final judgment, order, or proceeding” on one of six grounds: (1)

mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud;

(4) that the judgment is void; (5) applying the judgment prospectively is no longer equitable; or

(6) any other reason that justifies relief. The party seeking relief under Rule 60(b) bears the

burden of showing that they are entitled to the relief sought, and the decision to grant such a

motion “‘is committed to the discretion of the District Court.’” United States v. Dynamic

Visions, Inc., 321 F.R.D. 14, 17 (D.D.C. 2017). Motions for reconsideration are generally

“disfavored” and granting them are an “unusual measure.” Walsh v. Hagee, 10 F. Supp. 3d 15,

18 (D.D.C. 2013). Indeed, a Rule 60(b) motion may only be granted if the movant can establish

upon vacatur, “some prospect of proceeding on the merits.” Thomas v. Holder, 750 F.3d 899,

903 (D.C. Cir. 2014).

III. DISCUSSION

A. Pleading

Before moving to the merits, a word on the law of pleading and the Court’s original

approach to this case is in order. A complaint must give a defendant “fair notice of the basis for

7
petitioner’s claims.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002). As the Supreme

Court has explained, “[a] pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation

of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 678 (2009)).

More specific to this case, under District of Columbia law, defamation must be pled with

particularity. Vreven v. Am. Ass’n of Retired Persons, 604 F. Supp. 2d 9, 15 (D.D.C. 2009). That

means, in practice, that a plaintiff must “‘allege specific defamatory comments . . . by pleading

the time, place, content, speaker, and listener of the alleged defamatory matter.’” Von Kahl v.

Bureau of Nat’l Affairs, Inc., 934 F. Supp. 2d 204, 217 (D.D.C. 2013) (quoting Caudle v.

Thomason, 942 F. Supp. 635, 638 (D.D.C. 1986)).

As the Court noted in its [30] Memorandum Opinion and Order, Plaintiff’s operative

complaint veered closer to a case of what “will not do.” See Charles, 2022 WL 558181 at *1.

Plaintiff’s operative complaint stated, in one paragraph, that Edelstein and Bratt “published

statements to the Plaintiff’s direct supervisor and other managerial officials of the National

Security Division of the U.S. Department of Justice claiming the Plaintiff had failed to follow

instructions.” ECF 1-1 at 13. As a result, it was nigh impossible for the Court to discern, from

the face of the complaint, what statement alleged that Plaintiff failed to follow which instruction,

not to mention the identity of the other individuals to whom Bratt and/or Edelstein uttered these

mysterious statements. However, because Defendant moved to dismiss the complaint for lack of

jurisdiction, and not failure to state a claim, it was within the Court’s discretion to move beyond

the complaint’s “four corners” and “consider the complaint supplemented by undisputed facts

evidenced in the record.” Compare Coal. for Underground Expansion v. Mineta, 333 F.3d 193,

8
198 (D.C. Cir. 2003) (citations omitted) (Rule 12(b)(1) motion) with Hamilton v. United States,

502 F. Supp. 3d 266, 273 (D.D.C. 2020) (court limited to “four corners of the complaint” and

attachments in 12(b)(6) motion).

So, the Court moved to Plaintiff’s prolix 73-page opposition to determine what Plaintiff

considered to be the actionable conduct at issue. The Court also did so in light of “Plaintiff’s pro

se status.” See Charles, 2022 WL 558181 at *4. Plaintiff seems to think that even mentioning

that Plaintiff has proceeded pro se cut against him. See Mot. at 9-10. Quite the opposite. Any

“document filed pro se is to be liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), 4

and the Court attempted to construe all of Plaintiff’s filings as broadly and liberally as possible.

See also Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (court “may consider

supplemental material filed by a pro se litigant in order to clarify the precise claims being

urged”). Even doing so, the opposition itself did not make clear what conduct Plaintiff

considered actionable for defamation. Of the paragraphs that Plaintiff now states constitute his

defamation claim, none of them characterizes the factual allegations as those underpinning the

complaint’s defamation claim. Indeed, the only new characterization of Plaintiff’s defamation

claim came in paragraph 66, in which Plaintiff wrote that his “Complaint highlighted that Jay

Bratt and Julie Edelstein made materially false statements when they claimed they issued the

Plaintiff an unambiguous set of instructions and the Plaintiff disobeyed them.” The opposition

4
In Erickson, the Supreme Court continued that sentence to say, “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” 551 U.S. at 94 (emphasis added) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Plaintiff is, of course, a lawyer. The law in this Circuit is less settled as to whether, and
to what degree, a pro se attorney’s filings should be construed liberally. Nevertheless, given
Plaintiff’s practice appears to have been entirely prosecutorial, the Court shall extend him the
same deference as it would any other pro se litigant. See Cooper v. Farmers New Century Ins.
Co., 667 F. Supp. 2d 175, 179 (D.D.C. 2009) (CKK) (Court “construe[d] the plaintiff’s filings
liberally” even though pro se plaintiff was “an attorney representing himself”).
9
was entirely silent as to which of the factual allegations were those “materially false statements.”

Nevertheless, and in light of Plaintiff’s pro se status, the Court shall exercise its discretion to

reconsider its [30] Memorandum Opinion & Order and construe the operative complaint and

proposed amended complaint as Plaintiff asks.

B. Merits

1. Scope of Employment

As the parties agree, the crux of this case is and has always been whether Bratt and

Edelstein were acting within the course of their employment when they uttered the alleged

defamatory statements. Compare Mot. at 10 with Def.’s Opp. at 2-3. If they were, Plaintiff’s

defamation claim (and proposed claim for intentional infliction for emotional distress) are barred

under the Federal Tort Claims Act both for failure to exhaust administrative remedies and for the

statutory refusal to waive sovereign immunity for such claims. See Charles, 2022 WL 558181 at

*4. If Bratt and Edelstein were not acting within the course of their employment, however, the

United States is not the proper defendant in action and the Court, at present time, lacks removal

jurisdiction over this case. See Charles, 2022 WL 558181 at *3.

Turning to that question, the Westfall Act, 28 U.S.C. § 2679, governs when a federal

official is immunized from state tort liability for that official’s purportedly tortious act. In

relevant part, the Act provides:

Upon certification by the Attorney General that the defendant was acting within the scope
of his office or employment at the time of the incident out of which the claim arose, any
civil action or proceeding commenced upon such a claim in a United States district court
shall be deemed an action against the United States under the provisions of this title and
all references thereto, and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1). 5 Although the Attorney General’s declaration that an official was acting

5
As the Court explained in the last Memorandum Opinion and Order, a Westfall Declaration
filed in state court necessarily removes the action to federal court as the federal court has original
10
in the course of their employment is not “conclusive,” it does “constitute prima facie evidence

the employee was [in fact] acting within the scope of [their] employment.” Council of Am.

Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). As such, the Act establishes

an evidentiary question that a defendant must contest by “coming forward with specific facts

rebutting the certification.” See Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003). As

Plaintiff notes, relying on Stokes, sometimes an evidentiary hearing is necessary to determine

whether the official was acting within the scope of their employment. See id. at 1216. Usually,

however, it is more appropriate for the Court to decide the question on the papers. See Wuterich

v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009). 6

In either case, the question is governed by the law of respondeat superior in the state in

which the alleged tort occurred––here, the District of Columbia. Wilson v. Libby, 535 F.3d 697,

711 (D.C. Cir. 2008). The District of Columbia follows the Second Restatement of Agency in

delineating scope of employment:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master; and

(d) if force is intentionally used by the servant against the other, the use of force is not

unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little actuated
by a purpose to serve the master.

jurisdiction over the matter. Charles, 2022 WL 558181 at *1.
6
Accord Singleton v. United States, 277 F.3d 864, 871 (6th Cir. 2002); Davric Maine Corp. v.
USPS, 238 F.3d 58, 67 (1st Cir. 2001).
11
Schechter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427-28 (D.C. 2006). “Although

scope of employment is generally a question for the jury, it ‘becomes a question of law for the

court, however, if there is not sufficient evidence from which a reasonable juror could conclude

that the action was within the scope of employment.’” District of Columbia v. Bamidele, 103

A.3d 516, 525 (D.C. 2014) (Fisher, J.) (quoting Weinberg v. Johnson, 518 A.2d 985, 991 (D.C.

1986)). “‘However, if the employee acts in part to serve his employer’s interest, the employer

will be held liable for the intentional torts of his employee even if prompted partially by personal

motives, such as revenge.’” Id. (quoting Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C.

2000).

In its February 26, 2022 Minute Order, the Court asked the parties to address whether and

to what degree Plaintiff’s classification of Bratt and Edelstein’s conduct as “felonious” affected

the scope-of-employment analysis. Essentially, whether an employee’s activity was criminal is

probative, but not determinative, of whether their conduct was within the scope of their

employment. See Harbury v. Hayden, 522 F.3d 413, 422 (D.C. Cir. 2008) (“seriously criminal

and violent conduct can still fall within the scope of a defendant’s employment under D.C. law”).

The key question is not whether conduct was criminal, but whether it fits within the strictures of

Second Restatement of Agency. See, e.g., Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981)

(laundromat employee acted within scope of employment in shooting customer during dispute

over removing clothes from washing machine).

Plaintiff relies mainly on Stokes v. Cross, 327 F.3d 1210 (D.C. Cir. 2003). In that case,

an officer of the Uniform Police Branch of the United States Government Printing Office

claimed that his coworkers defamed him by alleging that he failed to provide “necessary

assistance in dealing with [a] trespasser.” Id. at 1212. He further alleged that his co-workers

12
“destroyed and ignored critical [and exonerating] evidence” and also “threatened [another

officer’s] career and livelihood if he did not make a statement adverse” to the plaintiff. Id. The

Court concluded that an evidentiary hearing was necessary to determine whether “destroying

critical evidence, preparing and submitting false affidavits by use of threat and coercion, and

engaging in other criminal acts” acted within the scope of their employment. Id. at 1216

(emphasis added). In other words, the Court of Appeals reversed mainly for the district court’s

failure to properly determine whether the conduct alleged fell within the employees’ scope of

employment when the district court instead summarily treated the government’s Westfall

Declaration as determinative. See id. So, on remand, the district court considered the question

and concluded that “destroying critical evidence, preparing and submitting false affidavits by use

of threat and coercion, and engaging in other [unnamed] criminal acts” were, in fact, within the

scope of the police officers’ employment. See Stokes v. Cross, 2005 WL 79036 (D.C. Cir. Jan.

13, 2005). The Court of Appeals then summarily affirmed that conclusion in an unpublished

opinion. Id.

In any event, Plaintiff’s allegations are quite distinct from those in Stokes. Plaintiff

alleges no threats or coercion nor any destruction of evidence. Rather, Plaintiff alleges that Bratt

and Edelstein falsely stated that Plaintiff’s addition of critical comments in a draft search warrant

constituted “failure to follow [prior] instructions” not to do so. In that regard, this case is much

more akin to Jacobs v. Vrobel, 724 F.3d 217 (D.C. Cir. 2013). In that case, an employee of the

General Services Administration sued her supervisor for defamation by falsely “criticiz[ing] her

work abilities when a potential employer calls for a reference.” Id. at 219 (cleaned up). The

court held that the references, even if false, fell within the natural job responsibilities of a

manager and that they were “actuated, at least in part, by a purpose to serve the master.” See id.

13
at 222.

Turning, then, to the Restatement’s factors, the Court finds that the alleged defamatory

statements are “of the kind that [Bratt and Edelstein] [were] employed to perform.” “Courts

routinely find that a federal employee’s statements made during the course of government

investigations fall within the scope of that employee’s duties, even when the statements are

alleged to be false or defamatory.” Minnick v. Carlile, 946 F. Supp. 2d 128, 132 (D.D.C. 2013);

see also Hosey v. Jacobik, 966 F. Supp. 12, 14-15 (D.D.C. 1997) (finding that federal

employee’s allegedly defamatory statements during a government security clearance

investigation were made within the scope of employment). Plaintiff offers no authority to the

contrary, and it strikes the Court as axiomatic that the review of an employee’s work is part of a

supervisor’s job.

Second, Plaintiff does not appear to contest that the allegedly defamatory statements were

made “substantially within the authorized time and space limits.” Construing Plaintiff’s filings

liberally, it appears that Bratt and Edelstein made their statements while within the Department

of Justice and during working hours.

As to the third and final factor, the Court of Appeals has made clear that “even a partial

desire to serve the master” is sufficient to satisfy this prong. Ballenger, 44 F.3d at 664. Even

drawing all inferences in Plaintiff’s favor, Plaintiff’s filings establish that no reasonable jury

could find either Bratt or Edelstein uttered the allegedly defamatory statements solely for selfish

purposes. Each and every instance of friction between Plaintiff and Bratt and/or Edelstein

involved aspects of Plaintiff’s work that Bratt and/or Edelstein thought deficient or improper.

See, e.g., Pl.’s Opp. at ¶ 27 (email sent outside NSD); ¶ 30 (Bratt thought Plaintiff’s

characterization of Edelstein’s management as being “kept in the dark and fed a steady die[t] of

14
garbage” “unprofessional”); ¶ 47 (Edelstein thought Plaintiff’s edits to search warrant affidavit

deficient). Plaintiff’s own filings establish that a motivation, if not the motivation, for Bratt and

Edelstein’s allegedly defamatory statements were to incur an adverse employment action of

some sort against Plaintiff for what they evidently viewed as bad work. Whether Plaintiff’s work

was in fact poor, and whether Bratt and/or Edelstein committed a tortious or felonious action to

accomplish that end, the motivation was nevertheless to serve their master, the United States

Department of Justice. See Kelley v. FBI, 67 F. Supp. 3d 240, 286-87 (D.D.C. 2014) (subjective

ends, not objective means, is relevant inquiry for third agency factor). Like the employment

references in Jacobs, the pleadings demonstrate that the allegedly defamatory statements served,

at least in part, a workplace purpose. Moreover, like for the first factor, Plaintiff offers no

authority supporting a different finding.

2. Jurisdiction

As the Court explained in its [30] Memorandum Opinion and Order, having concluded

that Plaintiff has not carried his burden to show that Bratt and Edelstein were not acting within

the course of their employment, the rest of Plaintiff’s case falls. As the FTCA waives immunity

only for non-intentional torts, Plaintiff cannot maintain either a defamation claim or a claim for

intentional infliction of emotional distress against the United States. 7 See Jackson v. United

States, 857 F. Supp. 2d 158, 161 (D.D.C. 2012) (defamation); Koch v. United States, 209 F.

Supp. 2d 89, 94 (D.D.C. 2002) (intentional infliction of emotional distress). Even if the FTCA

did waive immunity for these torts, the Court would not have subject matter jurisdiction because

7
Ultimately, Plaintiff’s proposed claim for intentional infliction of emotional distress is no
longer an issue in this case because Plaintiff has not in the instant Motion asked the Court to
reconsider its holding that his proposed amended complaint failed to state a claim for intentional
infliction of emotional distress. Charles, 2022 WL 558181 (citing Kassem v. Wash. Hosp. Ctr.,
513 F.3d 251, 255 (D.C. Cir. 2008).
15
Plaintiff has not, as he appears to concede, exhausted his administrative remedies. See Totten v.

Norton, 421 F. Supp. 2d 115, 122 (D.D.C. 2006); 28 U.S.C. § 2675(a). Accordingly, as Plaintiff

has failed to show Bratt and Edelstein were not acting within the course of their employment

when they uttered the allegedly defamatory statements, the Court must deny Plaintiff’s request

for reconsideration dismissing this case for lack of jurisdiction.

IV. CONCLUSION

For the foregoing reasons, the Court has concluded that Plaintiff’s [31] Motion for

Reconsideration should be DENIED. Given Plaintiff’s insistence that he has only “br[ought]

this case . . . to clear his name, get his job back, and obtain a modicum of vindication over the

way the Justice Department’s National Security Division was led and managed during his

tenure,” Mot. at 10 n.4, the Court shall stress what it has held. The Court has held only that, per

Plaintiff’s allegations, Bratt and Edelstein acted within the course of their employment when

they uttered the allegedly tortious statements, and that, as such, the Federal Tort Claims Act

removes Plaintiff’s claims from the Court’s jurisdiction. It has not passed judgment on any other

aspect of Plaintiff’s case or allegations.

An appropriate order accompanies this memorandum opinion.

Dated: April 7, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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