Basily v. Smithsonian Institution

• Court: District Court, District of Columbia
• Decided: June 22, 2023
• Docket: Civil Action No. 2022-3722
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NASR BASILY,

Plaintiff,

v. Case No. 22-cv-3722 (CRC)

SMITHSONIAN INSTITUTION,

Defendant.

OPINION

Plaintiff Nasr Basily filed a pro se civil complaint against the Smithsonian Institution in the

District of Columbia Superior Court, seeking damages for a workplace injury he suffered during his

employment with the Smithsonian. See Notice of Removal of a Civil Action, ECF No. 1, at 6–7.

The Smithsonian removed Basily’s case to this Court pursuant 28 U.S.C. § 1442(a)(1) and filed a

motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See id. at 1–2; see

also Mot. to Dismiss. Construing the complaint as asserting a personal injury claim under the

Federal Tort Claims Act (“FTCA”), the Smithsonian contends, among other things, that the Court

lacks subject matter jurisdiction over Basily’s action because the Federal Employees Compensation

Act (“FECA”) provides the exclusive basis for relief for workplace injuries sustained by federal

employees. Mot. to Dismiss at 4–5. Because Basily is proceeding pro se, the Court filed an order

pursuant to Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453 (D.C.

Cir. 1992), instructing him to respond to the Smithsonian’s motion by March 24, 2023 or risk

dismissal for failing to respond. See Order, ECF No. 5. To date, Basily has not filed any

opposition to the Smithsonian’s motion despite the Court’s warning. Under Local Civil Rule 7(b),

the Court may treat a dispositive motion as conceded if a party fails to file and serve an opposition

within the time prescribed by the Court. Because Basily has failed to respond to the Smithsonian’s motion, the Court will exercise its discretion under Local Rule 7(b) and summarily dismiss this

case.

Further, even if Basily had opposed the Smithsonian’s motion, the Court would in any event

dismiss this case for lack of subject matter jurisdiction. “FECA carves out certain suits by federal

employees from the FTCA’s sovereign-immunity waiver.” Jones v. United States, 318 F. Supp. 3d

15, 19 (D.D.C. 2018). In exchange for FECA’s creation of an administrative process by which

employees can seek compensation for work-related injuries, “federal employees are statutorily

precluded from bringing suits for money damages for injuries sustained during the course of their

employment.” Id. (quoting Johnson v. Mao, 174 F. Supp. 3d 500, 522 n.14 (D.D.C. 2016)); see

also 5 U.S.C. § 8116(c) (“The liability of the United States or an instrumentality thereof under

[FECA] . . . with respect to the injury or death of an employee is exclusive and instead of all other

liability of the United States . . . to the employee . . . because of the injury or death . . . .”). Because

Basily’s complaint clearly alleges that the injuries underlying his claim for damages were the result

of a “bad accident at work by [his] coworker,” Notice of Removal of a Civil Action, ECF No. 1, at

6, his case must be dismissed for lack of subject matter jurisdiction, Jones, 318 F. Supp. 3d at 20.1

For these reasons, the Court will grant the Smithsonian’s Motion to Dismiss and will

dismiss Basily’s complaint with prejudice. A separate Order shall accompany this opinion.

CHRISTOPHER R. COOPER Date: June 22, 2023 United States District Judge

1 Basily’s complaint also contains a few stray allegations that he lost his job at the Smithsonian. The Court does not, however, construe these passing references to job loss as asserting a separate employment claim against the Smithsonian. The bulk of Basily’s allegations and all of the attachments to his complaint concern his physical injuries sustained at work, and on the cover sheet for his Superior Court complaint, Basily likewise checked the box identifying his suit as a personal injury action, not an employment claim. Notice of Removal of a Civil Action, ECF No. 1, at 31. 2