Whitaker v. United States

1

JAMES BENSON WHITAKER, Plaintiff, v. UNITED STATES, Defendant.

Civil Action No. 22-cv-01414 (CKK)

United States District Court, District of Columbia

August 4, 2023

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Plaintiff James Benson Whitaker, proceeding pro se, sues the United States for damages and equitable relief under the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 1346, 2672. See Compl. ECF No. 1, at 4 6.^[1] Currently before the Court is Defendant's Motion to Dismiss, or alternatively, for Summary Judgment, ECF No. 14 including its Memorandum in Support (“Def. Mem.”), ECF No. 14-4. In response, Plaintiff filed an Opposition (“Pl. Opp'n”), ECF No. 16, to which Defendant filed a Reply (“Def. Reply”), ECF No. 17. For the reasons discussed below, the Motion to Dismiss will be granted and this case will be dismissed without prejudice pursuant to Federal Rule 12(b)(1).

I. BACKGROUND

Plaintiff is a former Foreign Service Officer for United States Agency for International Development (“USAID”). See Compl. at 7. During his first overseas tour in 2010, Plaintiff received a massage while on temporary duty assignment in Tajikistan. Id. He asserts that, during the massage, he became the victim of a sexual assault. See id. More specifically, he alleges that the masseuse touched him inappropriately and propositioned him, upon which he immediately “ended the massage, declining the offer.” Id.

Approximately a decade later, on June 12, 2020, Plaintiff was undergoing “security clearance review” through USAID's Office of Security, and during an interview with USAID official, Daniel Dorminey, he disclosed the massage incident in Tajikistan. Id.; see Pl. Opp'n Ex. A (Pl.'s Security Investigation Stmt., dated 6/18/22), ECF No. 16-1, at 3-4. He also disclosed previous struggles with gambling and resulting debts. See Pl. Opp'n Ex. A at 2-3. Plaintiff indicates that Dorminey submitted his investigation report on July 7, 2020. See Compl. at 8.

On July 14, 2020, Plaintiff received a Notice of Security Clearance Suspension from the Office of Security, stating that “[d]uring the investigation, additional potentially disqualifying information was developed, which is a security concern[,]” more specifically, Plaintiff's “delinquent debt and gambling.” Id. at 8. According to Plaintiff, “[t]here was no mention of sexual misconduct in the Notice of Security Clearance Suspension or that sexual misconduct would be investigated.” Id. Plaintiff was placed on paid administrative leave, pending the outcome of the Office of Security's investigation into his gambling and debt. See id. at 7; Pl. Opp'n Ex. B, ECF No. 16-2, (Notice of Administrative Leave, dated 7/14/20).

On August 7, 2020, and “[s]eparate from the security investigation [into his debt and gambling],” Nicholas Gottlieb, USAID's Director of Employee and Labor Relations, notified Plaintiff by email that he “was being investigated for potential employee misconduct, specifically, that he paid for nudge massages.” Compl. at 7; see Pl. Opp'n Ex. C (Notice and Response Emails, dated 8/7/20-8/8/20), ECF No. 16-3, at 2-3. Plaintiff responded to Gottlieb by email the following day, “denying that he had ever paid for sex acts and complain[ing] that if a woman experienced what [he] had . . . it would clearly be considered sexual assault.” Compl. at 7; see Pl. Opp'n Ex. C at 1-2.

On September 3, 2020, Plaintiff received a Notice of Proposed Separation, executed by Bob Leavitt, USAID's Chief Human Capital Officer. Compl. at 7; see Pl. Opp'n Ex. D, ECF No. 16-4 (Notice of Separation, dated 9/3/20). It listed the massage incident in Tajikistan as support for the charge of “Conduct Unbecoming a Foreign Service Officer.” See id. In addition, the Notice stated that Plaintiff did not have “the potential for rehabilitation” because he allegedly failed to acknowledge “responsibility or remorse for [his] actions” and instead “paint[ed] [himself] as the victim.” See id.

Plaintiff alleges that these charges negatively impacted his mental health, and as a result, on September 21, 2020, his therapist recommended that he go to the emergency room for suicide prevention. See Compl. at 7-8. After, from September 25, 2020, to October 23, 2020, he received treatment for depression through a partial hospitalization program. During this time, and due to his depression, Plaintiff applied for (1) Social Security disability benefits and, (2) disability retirement benefits through the Foreign Service Pension System. See id. On October 16, 2020, he submitted a formal Response to his Notice of Proposed Separation, in which he described the impact that the alleged sexual assault had on his mental health. See id. at 7-8; Pl.'s Opp'n Ex. F (Response to Notice of Proposed Separation, dated 10/16/20), ECF No. 16-6.

On December 1, 2020, the Office of Security apparently emailed Plaintiff with a report documenting the results of its investigation into the massage incident in Tajikistan but declining to classify the event as sexual assault. See id. at 8. The Office ultimately concluded that, even though Plaintiff “did not accept the offer for sexual services[,]” his receipt of nude massages nonetheless reflected “poorly on his judgment and reason.” See id.

Later that same month, Plaintiff was notified by the Department of State's Office of Medical Services that he qualified for permanent disability retirement based on his chronic depression, and it was determined that his “disability is caused by disease, not due to vicious habits, intemperance, or willful conduct[.]” See id.; Pl.'s Opp'n Ex. G (State Dep't Disability Determination, dated 12/17/20), ECF No. 16-7, at 1.

Before filing this lawsuit, Plaintiff submitted a “Standard Form 95” to Deputy General Counsel at USAID, who acknowledged receipt of the tort claim on August 12, 2021. See Compl. at 9. Although Plaintiff apparently did not receive USAID's Final Decision, see id., it was issued on February 3, 2022, denying Plaintiff's FTCA claim for substantially similar reasons to those raised in Defendant's pending dispositive Motion, see Def. Mem. at 3 n.1; Def. Mem. Ex. 2 (USAID Final Decision, dated 2/3/2022), ECF No. 14-3. Notably, Plaintiff never filed a workers' compensation claim with the Office of Workers' Compensation Programs (“OCWP”). See Def. Mem. Ex. 1, First Declaration from Penelope E. Schultz (“Schultz Decl. I”), ECF No. 14-2, ¶ 3.

Plaintiff then filed this lawsuit on May 6, 2022, alleging intentional infliction of emotional distress (“IIED”), contending that USAID had a duty to recognize that the massage incident in Tajikistan was a sexual assault, and to investigate it accordingly. See Compl. at 9. Plaintiff further alleges that Defendant “committed error and abuse in its investigation,” by making reckless, outrageous, and defamatory statements about his conduct, judgment, and character, and engaged in victim-blaming, causing him to suffer from continued depression, and ultimately costing him his job. See id. at 4, 6, 9. He demands $3,463,481 in lost salary, expungement of his security and personnel files as to Leavitt's findings, and that USAID consult with experts from the Rape, Abuse & Incest National Network (“RAINN”) to train its human resource and security personnel. See Id. at 4.

II. STANDARD OF REVIEW

Motion to Dismiss for Lack of Subject Matter Jurisdiction^[2]

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subjectmatter jurisdiction' and ‘ha[ve] the power to decide only those cases over which Congress grants jurisdiction.' ” Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568 U.S. 251, 256 (2013) (“ ‘Federal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by Constitution and statute.' ”) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Federal courts have an obligation to ensure that they do not exceed the scope of their jurisdiction. See Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

Absent subject-matter jurisdiction over a case, a court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); Fed.R.Civ.P. 12(h)(3).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of demonstrating a court's subject-matter jurisdiction over the claim at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015), cert. denied, 577 U.S. 1103 (2016); see also Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942). When considering a motion to dismiss under Rule 12(b)(1), a court must accept as true all uncontroverted material factual allegations contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged' and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). A court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735 n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). By...