Gutrejman v. United States

527 F.Supp.3d 1

Esther GUTREJMAN, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 20-266 (RDM)

United States District Court, District of Columbia.

Signed March 19, 2021

Harriet Tamen, Pro Hac Vice, Stephen T. Rodd, Pro Hac Vice, Abbey Gardy, L.L.P., New York, NY, Marc Eric Miller, Elisabeth T. Kidder, Watkinson Miller, PLLC, Washington, DC, for Plaintiff.

Katherine Boyd Palmer-Ball, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

In 2014, the United States and France executed an Agreement on Compensation for Certain Victims of Holocaust-Related Deportation from France Who Are not Covered by French Programs (the "Agreement"). Dkt. 12-2 at 5. Under the Agreement, France provided $60 million for a compensation fund (the "Fund") to be administered by the Department of State (the "Department"), which would provide benefits to individuals who were deported from France to concentration camps during the Holocaust, as well as those individuals’ eligible family members. In return, the United States agreed to ask domestic courts to dismiss any lawsuits against the French government and the state-owned entity responsible for the transportation.

Albert Gutrejman, whose mother was deported from France and died at Auschwitz, filed a claim with the Department pursuant to the Agreement. The Department denied the claim. Esther Gutrejman, Albert Gutrejman's surviving wife, then filed this lawsuit against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. , alleging that the Department negligently rejected Albert Gutrejman's claim. Pending before the Court is the United States’ motion to dismiss on the ground that Plaintiff's claim falls outside the scope of the FTCA's limited wavier of sovereign immunity. Dkt. 12. Because the FTCA waives sovereign immunity only where state law would make a private person liable in tort, and because Plaintiff has not shown a state-law analogue for the tort she alleges, the Court will dismiss Plaintiff's complaint. The Court will, however, give Plaintiff an opportunity to file an amended complaint that repleads her claim under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq.

I. BACKGROUND

In 2014, the United States and France signed the Agreement to establish a compensation fund for holocaust victims who were deported from France to concentration camps. Dkt. 1 at 2 (Compl. ¶¶ 1–2); Dkt. 12-2. In recognition of France's "responsibility in the process of deportation of [Holocaust] victims and an imprescriptible debt toward them," Dkt. 12-2 at 6, the Agreement aimed to create "an exclusive mechanism for compensating persons who survived deportation from France, their surviving spouses, or their assigns," if those victims were not already eligible for existing compensation programs, id. at 8 (Agreement § 2.1). Under the Agreement, France paid $60 million to the United States to establish the Fund. Id. at 9 (Agreement § 4.1). In exchange, the United States agreed to "secure, with the assistance of the Government of [France] if need be, at the earliest possible date, the termination of any pending suits or future suits that may be filed in any court at any level of the United States legal system against France concerning any Holocaust deportation claim." Id. at 10 (Agreement § 5.2).

Based on the terms of the Agreement, eligible beneficiaries of the Fund "are the actual survivors of trains which deported victims from France to concentration camps such as Auschwitz or Buchenwald, or their surviving spouses." Dkt. 1 at 2 (Compl. ¶ 2); see also Dkt. 12-2 at 8 (Agreement § 2.1). If either the Holocaust survivor or the surviving spouse died after 1948, then their children, as assigns, are eligible to make a claim. Dkt. 1 at 2 (Compl. ¶ 2). The Agreement further provides, however, that neither French nationals, Dkt. 12-2 at 8 (Agreement § 3.1), nor beneficiaries of any other program designed to compensate victims of Holocaust deportation, id. at 8–9, are eligible to receive compensation from the Fund. Attached to the Agreement as an Annex is a "Form of Written Undertaking" that applicants to the Fund must execute. Id. at 14–15 (Agreement Annex). The applicant must provide "documentation establishing nationality" and "declare under penalty of perjury" that she has not received (and will not receive) compensation from any other program related to Holocaust deportation. Id. Beyond those restrictions, the Agreement gives the United States the "sole discretion" to distribute the funds "according to criteria which it shall determine unilaterally." Id. at 11 (Agreement § 6.1).

In 2016, Albert Gutrejman, who is now deceased, filed a claim with the Department. Dkt. 1 at 2 (Compl. ¶ 1). Albert Gutrejman's mother, "Estera[,] was deported from France on September 18, 1942 and died at Auschwitz." Id. (Compl. ¶ 3). Albert Gutrejman's stepfather, Henri Gutrejman, who would have been eligible to make a claim under the Fund, died in 1976. Id. Albert Gutrejman thus filed his claim as the sole heir of Henri Gutrejman. Id. As part of his claim, Albert Gutrejman provided a sworn affidavit that his stepfather was Romanian (and, thus, not French) and was married to his mother. Id. at 5 (Compl. ¶ 15).

The Department rejected Albert Gutrejman's claim, finding that he was ineligible because he had provided insufficient evidence of his stepfather's nationality. Id. (Compl. ¶ 14). Albert Gutrejman then provided an additional affidavit attesting that his stepfather was Romanian and died in 1976, but that he did not have a copy of his stepfather's death certificate. Id. (Compl. ¶ 16). In a third affidavit, he attested that, as a child, he had attended the wedding of his mother and stepfather by Rabbi Pinkus in Paris, and, in a fourth affidavit, his counsel attested that she had searched for "evidence of the marriage, but that after the destruction of World War II and the passing of more than 79 years, no such documents could be found." Id. (Compl. ¶ 17–18). In rejecting Albert Gutrejman's claim, the Department did not assert that Henri Gutrejman was a citizen of France, only that Albert Gutrejman had failed to provide adequate proof of Henri Gutrejman's nationality. Id. at 5–6 (Compl. ¶¶ 14, 20).

On January 31, 2020, Plaintiff Esther Gutrejman, as trustee of Albert Gutrejman's estate, filed this lawsuit against the United States. Dkt. 1. The complaint alleges that the Department's rejection of Albert Gutrejman's claim was "a wrongful act." Id. at 6 (Compl. ¶ 23). The United States moves to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). Dkt. 12. Plaintiff filed her opposition to the motion, Dkt. 14; the United States filed its reply, Dkt. 16; Plaintiff then filed a sur-reply brief, Dkt. 18; and, finally, the United States filed a notice of supplemental authority on March 8, 2021, Dkt. 19. The motion to dismiss is now fully briefed and ripe for decision.

II. LEGAL STANDARD

Federal courts are courts of limited subject-matter jurisdiction that "possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack of subject-matter jurisdiction. When a defendant files a motion to dismiss for lack of subject-matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction. Id. ; see Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Where, as here, a defendant contends that the jurisdictional allegations in the complaint are inadequate, the Court must "accept all well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor" but does not "assume the truth of legal conclusions." Williams v. Lew , 819 F.3d 466, 472 (D.C. Cir. 2016) (internal quotation marks omitted). In this sense, the Court must resolve the motion in a manner similar to a motion to dismiss under Rule 12(b)(6). See Price v. Socialist People's Libyan Arab Jamahiriya , 294 F.3d 82, 93 (D.C. Cir. 2002).

III. DISCUSSION

Under the doctrine of sovereign immunity, the United States may not be sued without its consent. FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Waivers of sovereign immunity must be " ‘unequivocally expressed’ " and " ‘strictly construed, in terms of [their] scope, in favor of the sovereign.’ " Tri-State Hosp. Supply Corp. v. United States , 341 F.3d 571, 575 (D.C. Cir. 2003) (quoting Dep't of Army v. Blue Fox, Inc. , 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) ). Plaintiff's claim is predicated on the limited waiver of sovereign immunity contained in the FTCA. See United States v. Orleans , 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The scope of the waiver of sovereign immunity under the FTCA is "coextensive" with the Court's subject-matter jurisdiction. Hornbeck Offshore Transp., LLC v. United States , 569 F.3d 506, 512 (D.C. Cir. 2009) ; see Lehman v. Nakshian , 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). The party bringing the suit "bears the burden of proving that the government has unequivocally waived its immunity." Tri-State Hosp. Supply , 341 F.3d at 575.

The FTCA permits tort suits for "money damages" against the United States by those who suffer "injury ... caused by the negligent or wrongful act or omission of any employee of the [g]overnment while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The waiver of sovereign immunity extends, however, only to those "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id. Sovereign immunity is thus waived only...