Manning v. McHugh

• Court: District Court, District of Columbia
• Decided: January 22, 2019
• Docket: Civil Action No. 2012-1802
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHAWN NELSON MANNING, et al., Plaintiffs, v. Civil Action No. 12-1802 (CKK) MARK T. ESPER, Secretary of the Army, et al., Defendants.

MEMORANDUM OPINION (January 22, 2019) On November 5, 2009, an act of domestic terrorism killed or injured numerous military

servicemembers and civilians at Fort Hood. Many of those harmed by the attack, including family

members, now attempt to recover damages from Major Nidal Hasan, 1 the convicted shooter, as

well as from the estate of Anwar al-Aulaqi, the alleged co-conspirator. Plaintiffs also attempt to

hold certain government officials liable in either their official or personal capacities. 2

The Secretary of the Army, the Secretary of Defense, and the Director of the Federal

Bureau of Investigation (“FBI”), collectively “Federal Defendants,” 3 move to dismiss Plaintiffs’

claims against them in their official capacities pursuant to Federal Rules of Civil Procedure

1 The Court adopts the military title that Nidal Hasan allegedly held as of the Amended Complaint, without taking a position on whether that title has been or should be removed. 2 Plaintiffs use the term “individual” capacity, rather than personal capacity. Although the Court prefers the latter nomenclature, the distinction is without apparent difference. 3 As of the parties’ latest notice, the respective public officers sued in their official capacities were Secretary Mark T. Esper, Secretary James N. Mattis, and Director Christopher A. Wray. See Fed. R. Civ. P. 25(d) (providing for automatic substitution of successors to originally named officers); Fed. Defs.’ Mot. to Dismiss, ECF No. 77, at 1 n.1; Joint Notice of Factual, Procedural or Case Law Developments, ECF No. 85, at 1 n.1. The Court is aware that James N. Mattis is no longer Secretary of Defense. His successor is automatically substituted.

1 12(b)(1), (3), and (6). As Federal Defendants explain in their “Statement of Interest,” they also

take the opportunity to respond to claims solely against certain unnamed federal officials, John

Does #1 through #6, who were sued only in their personal capacities. See Fed. Defs.’ Mot. to

Dismiss, ECF No. 77 (“Fed. Defs.’ Mot.”), at 2 n.3 (citing, e.g., 28 U.S.C. § 517; Falkowski v.

EEOC, 783 F.2d 252, 253 (D.C. Cir. 1986) (per curiam)). The Court shall refer to the Federal

Defendants and the Doe Defendants collectively as the “Government Defendants.” Federal

Defendants’ motion does not respond to claims against the other two Defendants, Major Hasan

and Nasser al-Aulaqi, who allegedly represents Anwar al-Aulaqi’s estate. Accordingly, this

Memorandum Opinion shall address only the claims against the Government Defendants.

Upon consideration of the pleadings, 4 the relevant legal authorities, and the record as a

whole, the Court GRANTS Federal Defendants’ [77] Motion to Dismiss. 5 All of the claims

against Government Defendants shall be dismissed; some of those dismissals shall be without

prejudice, as specified below. With this decision, the Court is not ruling on the merits of any of

Plaintiffs’ claims.

Summary of Ruling

The Court shall dismiss all claims against Federal Defendants for lack of subject-matter

jurisdiction. Each Plaintiff’s claims against Federal Defendants shall be dismissed without

4 The Court’s consideration has focused on the following pleadings:

• Defs.’ Mem. of P&A in Supp. of Mot. to Dismiss, ECF No. 77 (“Fed. Defs.’ Mem.”); • Pls.’ Mem. of P&A in Oppostion [sic] to Mot. to Dismiss, ECF No. 80 (“Pls.’ Opp’n”); and • Reply in Supp. of Defs.’ Mot. to Dismiss, ECF No. 82 (“Fed. Defs.’ Reply”). 5 Because the Court resolves this motion on jurisdictional grounds under Rule 12(b)(1), the Court need not reach Federal Defendants’ venue arguments under Rule 12(b)(3) or pleading arguments under Rule 12(b)(6). In any event, Federal Defendants did not develop the Rule 12(b)(3) arguments in the briefing. See Fed. Defs.’ Mem. at 1 n.5.

2 prejudice for failure to name the United States as a defendant. Alternatively, certain Plaintiffs’

claims against Federal Defendants shall be dismissed without prejudice for failure to exhaust

remedies or because of the exclusive-remedy bar under the Federal Employees’ Compensation Act

(“FECA”). Prejudice shall attach to the dismissal of other Plaintiffs’ claims against Federal

Defendants under the Feres doctrine.

Each Plaintiff’s claims against Doe Defendants shall be dismissed without prejudice for

failure to serve them.

To reiterate, with this decision, the Court is not ruling on the merits of any of Plaintiffs’

claims.

I. BACKGROUND

A. Factual Background

Taking the allegations in the Amended Complaint as true for purposes of this motion, the

Court shall summarize the sad and horrific facts of some relevance here. On November 5, 2009,

Major Nidal Hasan, a then-practicing psychiatrist in the U.S. Army, opened fire at Fort Hood in

Texas. 1st Am. Compl., ECF No. 22 (“Am. Compl.”), ¶¶ 2, 29-30, 58, 170. Motivated by “radical

Islamist” ideology, Major Hasan’s shout of “Allah Akbar” expressly invoked the same “rallying

cry” used on 9/11 and in other jihadist attacks. Id. ¶¶ 30, 170. 6 This carefully planned shooting

spree claimed the lives of fourteen people, inflicted gunshot wounds on thirty-two more, and

visited physical and nonphysical injuries on a host of others, including family members of those

harmed at the scene. Id. ¶¶ 29-30, 127-68.

Major Hasan had communicated about jihad with Anwar al-Aulaqi, a leading al-Qaeda

operative whose activities included recruiting Americans to carry out domestic attacks. Id. ¶¶ 5-

6 Plaintiffs translate the Arabic, “Allah Akbar,” as “God is Great.” Am Compl. ¶ 30. 3 6, 22, 74, 85, 171. Through Major Hasan’s comments during his military medical training, and

through the FBI’s review of his emails, the Army and FBI were aware of his extremist views. E.g.,

id. ¶¶ 56, 67. Rather than taking precautions based on these views, however, or disciplining Major

Hasan for his substandard medical performance, the Army continued to advance his military and

medical careers, and the FBI minimized its investigation of him. E.g., id. ¶¶ 56, 61, 69. Each

agency’s actions were motivated by “political correctness and . . . ethnic and religious preferences”

that overrode their responsibility for safety and security. Id. ¶ 65 (Army); see also, e.g., id. ¶¶ 69,

83 (FBI).

B. Procedural Posture

This suit was filed on November 5, 2012, by certain individuals injured, and on behalf of

other individuals killed in the attack, as well as their family members. Compl., ECF No. 1. The

First Amended Complaint, dated April 30, 2013, contains nine tort and related claims against

Major Hasan, in his personal capacity, and/or Nasser al-Aulaqi, as personal representative of the

estate of Anwar al-Aulaqi. Am. Compl. ¶¶ 171, 181-239 (including, e.g., claim for conspiracy to

deprive civil rights pursuant to 42 U.S.C. § 1985(3)). Anwar al-Aulaqi was evidently killed by an

American drone strike in 2011. Id. ¶ 5.

Plaintiffs also plead eleven tort, constitutional, and Administrative Procedure Act (“APA”)

claims against a combination of Federal Defendants, named only in their official capacities, and

six unnamed John Doe Defendants, sued exclusively in their personal capacities. Id. ¶¶ 172-80;

240-331. Each Doe Defendant was allegedly an employee of the U.S. Army, the U.S. Department

of Defense, and/or the FBI. Id. ¶ 2.

Plaintiffs have experienced difficulties effectuating, or perfecting, service of process on at

least some of the defendants. For their part, Federal Defendants do not dispute proper service upon

4 themselves. And the Court shall reserve for another day the issue of service on Major Hasan and

Nasser al-Aulaqi, who are not presently moving for dismissal.

The Court is currently concerned with Doe Defendants. On February 11, 2013, this Court

prompted Plaintiffs to comply with Federal Rule of Civil Procedure 4(m) by filing proof of service

upon Doe Defendants, or explaining why they had not done so, by March 5, 2013. Order, ECF

No. 15. At Plaintiffs’ request, the Court extended that deadline until June 5, 2013. Min. Order of

Feb. 13, 2013. That deadline came and went amidst briefing of Federal Defendants’ motion to

stay proceedings during Major Hasan’s court martial, which stay the Court ultimately granted on

January 30, 2014. See Order, Manning v. McHugh, Civil Action No. 12-1802 (CKK), 2014 WL

12789614 (D.D.C. Jan. 30, 2014), ECF No. 50. In the meantime, the parties vigorously litigated

not only that motion but also Plaintiffs’ request for leave to conduct expedited discovery of the

identities of Doe Defendants, in order to facilitate service upon them. See, e.g., Pls.’ Opp’n to

Mot. to Stay and Cross-Mot. for Leave to Conduct Expedited Disc., ECF No. 30, at 17-18. In light

of the concerns with unlawful command influence that warranted the stay, the Court also denied

without prejudice Plaintiffs’ motion for expedited discovery. Manning, Civil Action No. 12-1802

(CKK), 2014 WL 12789614, at *5. The Court expressly permitted Plaintiffs to renew their request

“once the stay in this matter is lifted,” at which time “the Court will consider the parties’ arguments

for expedited discovery on the merits.” Id.

On August 23, 2013, Major Hasan was convicted in a military court of thirty-two

specifications of attempted murder and thirteen specifications of premeditated murder. Manning,

Civil Action No. 12-1802 (CKK), 2014 WL 12789614, at *2. Post-conviction proceedings lasted

much longer than the Court, or the parties, envisioned. Still, at Federal Defendants’ request and

over Plaintiffs’ repeated objections, the Court maintained the stay to avoid any risk of unlawful

5 command influence and to spare the inefficiencies of piecemeal proceedings. See, e.g., Order,

ECF No. 69; Manning, Civil Action No. 12-1802 (CKK), 2014 WL 12789614.

On March 29, 2017, when Federal Defendants at last indicated that “the Commanding

General, III Corps and Fort Hood took final action on the military court-martial of United States

v. Hasan,” the Court lifted the stay with Federal Defendants’ consent. Status Report, ECF No. 73;

Min. Order of Mar. 31, 2017. The parties agreed to brief Federal Defendants’ forthcoming

dispositive motion. Joint Status Report and Proposed Briefing Schedule, ECF No. 74. As of the

Court’s November 2018 inquiry, Major Hasan’s appellate post-conviction proceedings were still

in progress, but the Court understands that the risk of unlawful command influence is past. See

Joint Notice of Factual, Procedural or Case Law Developments, ECF No. 85; Min. Order of Mar.

31, 2017 (construing [73] Status Report as indication of “final action by the convening authority”).

Federal Defendants’ pending [77] Motion to Dismiss includes a Statement of Interest

regarding the claims against Doe Defendants, who still have not yet been identified. See Fed.

Defs.’ Mot. at 2 n.3. Federal Defendants make clear that they do not mean to enter an appearance

on behalf of those Doe Defendants. Id. The Court shall take this statement as a guide to certain

arguments that Doe Defendants might raise if they were to appear. Although Federal Defendants

do not expressly object to the lack of service on Doe Defendants, they reserve certain arguments

along those lines. See id. (offering, for example, “insufficiency of service of process” and “failure

to complete service of process in a timely manner”). Despite the lifting of the stay, and the

identification of these potential defenses in the briefing, Plaintiffs have not renewed their motion

for expedited discovery of Doe Defendants’ identities.

In order to facilitate this decision, the Court solicited further information from the parties

several times. See Min. Orders of Nov. 15, 2018, Nov. 30, 2018, and Dec. 11, 2018. At the Court’s

6 inquiry, Plaintiffs recently notified the Court that they no longer want to pursue their Eleventh

Claim, which had sought a declaratory judgment that certain Plaintiffs were entitled to Purple

Heart awards. See Min. Order of Nov. 30, 2018; Joint Notice Regarding Pls.’ Eleventh Claim,

ECF No. 86. Accordingly, only Plaintiffs’ first ten claims remain at issue in the pending motion,

which is now ripe for decision.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject-matter

jurisdiction. In determining whether there is jurisdiction, “the court may consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground

Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992)) (internal quotation marks omitted). “At the motion to dismiss

stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient

liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles

v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences

that a plaintiff receives on a motion to dismiss, still that “[p]laintiff bears the burden of proving

subject matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v. EPA, 121

F. Supp. 2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations

contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a]

plaintiff[’s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1)

motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv.

7 Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks

omitted).

B. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the grounds

that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if

accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678.

***

To be clear, a court may consider material extraneous to the complaint in evaluating a Rule

12(b)(1) motion, unlike a Rule 12(b)(6) motion. “If, on a motion under Rule 12(b)(6) or 12(c),

matters outside the pleadings are presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). “As a general rule,

‘Federal Rule of Civil Procedure 12(d) forbids considering facts beyond the complaint in

connection with a motion to dismiss the complaint for failure to state a claim.’” Kaspersky Lab,

Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 464 (D.C. Cir. 2018) (quoting United States ex

rel. Shea v. Cellco P’ship, 863 F.3d 923, 936 (D.C. Cir. 2017)). But Rule 12(d) does not prohibit

such consideration in connection with a motion under Rule 12(b)(1). “[T]he district court may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

8 of jurisdiction . . . .” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)

(citing Herbert, 974 F.2d at 197). If a motion alleging jurisdictional defects relies on materials

outside of the complaint, it does not thereby convert into a motion for summary judgment. See

Haase v. Sessions, 835 F.2d 902, 905-06 (D.C. Cir. 1987) (recognizing, under prior Rule 12

language, that “only a 12(b)(6) motion [may] be converted into a motion for summary judgment”);

Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003).

III. GROUNDS FOR SUBJECT-MATTER JURISDICTION

Plaintiffs originally invoked three federal statutory bases for subject-matter jurisdiction

over their various claims against all, or some subset, of the Government Defendants. Jurisdiction

under 5 U.S.C. §§ 701-06 and 28 U.S.C. § 1331 is no longer at issue because Plaintiffs have ceased

pursuing their APA claim. See Am. Compl. ¶ 120, Claims for Relief (Subpart B); Joint Notice

Regarding Pls.’ Eleventh Claim, ECF No. 86.

Plaintiffs’ tort claims allegedly arise under the Federal Tort Claims Act (“FTCA”), for

which they cite 28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b)(1). Am. Compl. ¶ 117. The

following nine of Plaintiffs’ remaining ten claims are tort claims: the First Claim, to the extent that

it consists of decedents’ surviving tort claims; the Second Claim, for wrongful death; the Third

Claim, for negligence in hiring, retention, and supervision; the Fourth Claim, for negligence in

investigation; the Fifth Claim, for gross negligence; the Seventh Claim, for negligent infliction of

emotional distress; the Eighth Claim, for loss of consortium; the Ninth Claim, for negligent

misrepresentation; and the Tenth Claim, for intentional misrepresentation. Id. (Claims for Relief,

Subpart B). With two exceptions, each of the foregoing claims proceeds against some combination

of both Federal Defendants and Doe Defendants. Only the Sixth and Tenth Claims proceed

exclusively against one or more Doe Defendants.

9 For their constitutional claims, Plaintiffs turn to 28 U.S.C. § 1328, which section appears

not to exist. In any event, constitutional claims are contained in at least Plaintiffs’ Sixth Claim.

Id. ¶ 119, Claims for Relief (Subpart B). Plaintiffs also urge that the constitutional claims of the

decedents remain available under the Survival Act. See Am. Compl. ¶ 245 (maintaining that

recovery for surviving claims should “includ[e] damages for violation of [decedents’]

constitutional rights”). Assuming that those constitutional claims survive, they presumably would

lie only against Doe Defendants, consistent with the constitutional claims of living Plaintiffs in the

Sixth Claim. The Court need not decide whether those claims in fact survive, however, as the

Court shall decide below that all claims against Doe Defendants must be dismissed without

prejudice on other grounds.

Plaintiffs in their Amended Complaint also assert diversity jurisdiction “[t]o the extent

relevant.” Id. ¶ 121. But the parties have not briefed that basis for jurisdiction. Rather, with the

exception of claims against Doe Defendants, the briefing assumes that federal-question jurisdiction

over FTCA claims is the jurisdictional hook at issue. That is consistent with the primary

jurisdictional assertion in Plaintiffs’ Amended Complaint. See id. ¶¶ 117-21. Given the many

Plaintiffs and Defendants in this case, the Court shall refrain from a sua sponte evaluation of

citizenship to determine whether diversity jurisdiction requirements are satisfied. See generally

Am. Farm Bureau, 121 F. Supp. 2d at 90 (noting that plaintiff has burden to establish subject-

matter jurisdiction).

Problematically, Federal Defendants’ briefing does not always clearly distinguish what

they believe to be Rule 12(b)(1) versus Rule 12(b)(6) grounds for dismissal. Nor do Plaintiffs

address this issue. This omission concerns the Court because neither party raises Supreme Court

decisions that curtail the scope of “jurisdictional” defenses in FTCA and other actions. See, e.g.,

10 United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015); Arbaugh v. Y & H Corp., 546 U.S.

500, 515-16 (2006) (regarding “a threshold limitation on a statute’s scope” as nonjurisdictional

absent clear statement by Congress). Nevertheless, the Court has attempted to ensure that it abides

by this strand of case law. Authority in either this Circuit or its sisters continues to recognize as

jurisdictional the grounds upon which this Court shall dismiss claims against Federal Defendants.

The Court need not reach the issue of tolling the FTCA’s statute of limitations, an issue which is

now regarded as non-jurisdictional under Kwai Fun Wong. See Kwai Fun Wong, 135 S. Ct. at

1638. Today’s decision to dismiss claims against Federal Defendants is based exclusively on lack

of subject-matter jurisdiction under Rule 12(b)(1).

IV. CLAIMS AGAINST FEDERAL DEFENDANTS The Court could exercise its discretion to treat certain of Federal Defendants’ arguments

as conceded, for failure of Plaintiffs to address those arguments in their Opposition. Even though

the Court shall not do so, for the reasons described below, the Court shall find that it lacks subject-

matter jurisdiction over Plaintiffs’ claims against the Federal Defendants. Plaintiffs’ tort claims

against Federal Defendants cannot survive because Plaintiffs failed to name the United States as a

defendant. Alternatively, some of the Plaintiffs failed to exhaust their administrative remedies.

Those Plaintiffs who did exhaust remedies now face an employment-related bar to their recovery.

The claims of only one plaintiff, Michelle R. Harper, and her family surmount the respective

employment-related bar, but those claims shall be dismissed in any case for failure to sue the

proper defendant. The Court shall go to great lengths to distinguish those claims for which

dismissal should be without prejudice.

A. Plaintiffs’ Failure to Respond to Certain Arguments

At the threshold, Plaintiffs fail to address a number of Federal Defendants’ grounds for

dismissal of claims against them. To say so is not to characterize their briefing uncharitably;

11 Plaintiffs do make arguments. But they focus more on the merits than some of the jurisdictional

(and other) issues raised by Federal Defendants. In their Reply, Federal Defendants observe that

Plaintiffs did not respond to the following arguments in the Motion to Dismiss: the failure to sue

the proper defendant, namely the United States; the application of the public duty doctrine and of

the intentional torts exception to the sovereign immunity waiver; the failure to state a claim of

negligence or negligent infliction of emotional distress; and the application of the exclusive-

remedy provision of the Texas Workers’ Compensation Act. See Fed. Defs.’ Reply at 1-5. As this

Memorandum Opinion will demonstrate, Plaintiffs have not addressed crucial aspects of various

other complex arguments as well, such as Federal Defendants’ defense under the Federal

Employees’ Compensation Act.

If Plaintiffs had not filed a timely opposition at all, then Local Rule 7(b) would permit the

Court to “treat the motion as conceded.” Local Civil Rule 7(b). Although that treatment has been

upheld, the Court of Appeals has cautioned that “grant[ing] an unopposed motion to dismiss under

Federal Rule 12(b)(6) risks circumventing the clear preference of the Federal Rules to resolve

disputes on their merits.” Cohen v. Bd. of Trs. of Univ. of District of Columbia, 819 F.3d 476,

482-83 (D.C. Cir. 2016). In those circumstances, dismissal without prejudice could be appropriate.

See id. at 484.

Grounds for concession may be stronger where Plaintiffs did file an opposition, but that

brief did not address many of Federal Defendants’ arguments. “In the context of non-dispositive

motions, [the Court of Appeals] [has] affirmed district court decisions that treated as conceded an

issue left entirely unaddressed by the plaintiff in a timely filed response.” Wash. All. of Tech.

Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 344 (D.C. Cir. 2018) (emphasis added)

(citing Texas v. United States, 798 F.3d 1108, 1110, 1113-16 (D.C. Cir. 2015); Wannall v.

12 Honeywell, Inc., 775 F.3d 425, 428-29 (D.C. Cir. 2014)). The dispositive nature of the pending

motion seems to heighten the stakes.

In light of Circuit precedent favoring decisions on the merits, this Court shall generally not

treat Federal Defendants’ unaddressed arguments as conceded. It is true that this Court has “no

obligation to ‘perform . . . legal research for [Plaintiffs]’” in this circumstance. Texas, 798 F.3d at

1115 (quoting Stanciel v. Gramley, 267 F.3d 575, 578 (7th Cir. 2001)) (first alteration in original).

But, particularly because the Court must address jurisdictional issues, the Court shall carefully

consider the arguments of Defendants and the support therefor. Where Plaintiffs respond to an

argument, but not an aspect thereof, the Court may determine that Plaintiffs concede that limited

point. Federal Defendants too concede at least one aspect of an issue that they otherwise address.

See infra Subpart IV.B.2.b (regarding denial, or deemed denial, of claims presented

administratively).

B. Subject-Matter Jurisdiction

The Court has decided that Plaintiffs did not concede jurisdictional or other flaws in their

Amended Complaint simply by failing to address certain of Federal Defendants’ Rule 12(b)(1)

grounds for dismissal. Despite the dearth of counterarguments, however, the Court must satisfy

itself of subject-matter jurisdiction before it can turn to any contest on the merits. See, e.g.,

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).

The parties have attached various materials to their briefing of Federal Defendants’ motion.

As discussed above, the Court may consider these materials on Rule 12(b)(1) grounds without

treating this motion as a motion for summary judgment. See, e.g., Jerome Stevens Pharm., Inc.,

402 F.3d at 1253.

13 “It has long been established . . . that the United States, as sovereign, ‘is immune from suit

save as it consents to be sued . . . and the terms of its consent to be sued in any court define that

court’s jurisdiction to entertain the suit.’” United States v. Testan, 424 U.S. 392, 399 (1976)

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (second alteration in original). The

United States has consented to tort suits in certain circumstances embodied in the FTCA. See,

e.g., Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (recognizing “limited waiver of the

Government’s sovereign immunity”). That limited waiver is nevertheless curtailed by certain

statutory and common law regimes. See, e.g., Lockheed Aircraft Corp. v. United States, 460 U.S.

190, 193-94 (1983) (Federal Employees’ Compensation Act); Feres v. United States, 340 U.S.

135, 145 (1950) (implied exception for military servicemembers); 1 Lester S. Jayson & Robert C.

Longstreth, Handling Federal Tort Claims §§ 5.04[1], 5.05[1] (2018). Because “[s]overeign

immunity is jurisdictional in nature,” a plaintiff’s identification of a valid waiver is critical to

establishing a federal court’s subject-matter jurisdiction over FTCA claims. FDIC v. Meyer, 510

U.S. 471, 475 (1994); see also Fleming v. Nat’l Transp. Safety Bd., No. 13-5287, 2014 WL 590974

(D.C. Cir. Feb. 7, 2014) (per curiam) (citing Meyer, 510 U.S. at 475). Unless the United States

has waived its sovereign immunity in a specific context, a federal court must dismiss claims against

the United States. See, e.g., Clark v. Wells Fargo Bank, 585 F. App’x 817, 819-21 (3d Cir. Sept.

22, 2014) (affirming dismissal of FTCA claims due to jurisdictional deficiencies).

“The FTCA’s provisions are contained in two areas of the United States Code,” 28 U.S.C.

§ 1346(b) and Chapter 171 of Title 28. Simmons v. Himmelreich, 136 S. Ct. 1843, 1846 (2016).

Section 1346(b) “gives federal district courts exclusive jurisdiction over tort claims against the

United States for the acts of its employees ‘[s]ubject to the provisions of chapter 171’ of Title 28.”

14 Id. A plaintiff may avail herself of this waiver of sovereign immunity if she satisfies the “six

elements” of an “actionable” claim under Section 1346(b). Meyer, 510 U.S. at 477.

The procedural aspects of the FTCA are contained in Chapter 171, which dictates, in

pertinent part, the “scope of [the] United States’ liability.” Simmons, 136 S. Ct. at 1846. “The

United States shall be liable, respecting the provisions of this title relating to tort claims, in the

same manner and to the same extent as a private individual under like circumstances . . . .” 28

U.S.C. § 2674.

The Court shall turn to the series of jurisdictional hurdles that allegedly bar Plaintiffs’ tort

claims against Federal Defendants under the FTCA. “While . . . subject-matter jurisdiction

necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of

jurisdictional issues.” Wash. All. of Tech. Workers, 892 F.3d at 342 & n.4 (quoting Ruhrgas AG,

526 U.S. at 584) (internal quotation marks omitted). Accordingly, the Court shall begin with a

jurisdictional defect affecting all of the Plaintiffs before proceeding to those that affect subsets of

the Plaintiffs differently. Disposition of this case on the articulated grounds will preclude the Court

from reaching some of Federal Defendants’ defenses, jurisdictional and otherwise.

1. Failure to Name the United States as a Party

First among the elements of an actionable FTCA claim is that the claim be “against the

United States.” Meyer, 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)) (internal quotation marks

omitted). The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has made clear that a plaintiff must sue the United States itself to avail himself of FTCA’s waiver

of sovereign immunity. See Goddard v. District of Columbia Redev. Land Agency, 287 F.2d 343,

345-46 (D.C. Cir. 1961) (affirming dismissal because, inter alia, FTCA complaint “must name the

United States as defendant”). Numerous other courts have likewise “rigidly applied” this well-

15 established rule. 1 Jayson & Longstreth, supra, § 6.01[2] & n.17 (observing that FTCA claimant

“must bring his action against the United States, specifically naming it as defendant” and collecting

“many cases” reflecting this proposition); see also, e.g., Caires v. FDIC, 298 F. Supp. 3d 79, 85-

86 (D.D.C. 2018), appeal filed, No. 18-5055 (D.C. Cir.) (finding sufficient basis for dismissal on

jurisdictional grounds of suit against agency alone); CHS Indus., LLC v. U.S. Customs & Border

Prot., 652 F. Supp. 2d 1, 3 (D.D.C. 2009) (dismissing claims against agency on this basis); Cox v.

Sec’y of Labor, 739 F. Supp. 28, 29 (D.D.C. 1990) (“Since the plaintiff elected to sue the Secretary

of Labor in her official capacity rather than the government itself, the complaint must fail for that

reason alone for lack of subject matter jurisdiction.”).

Nor, in light of Arbaugh and Kwai Fun Wong, is the Court aware of any authority deeming

the requirement to name the United States to be non-jurisdictional. Rather, courts have continued

to dismiss claims against any other defendants on jurisdictional grounds. See, e.g., King v. U.S.

Dep’t of Veterans Affairs, 728 F.3d 410, 413 n.2 (5th Cir. 2013) (recognizing that district court

rightly dismissed FTCA claims against individual people); see also Pappas v. United States, 617

F. App’x 879, 881 (10th Cir. June 11, 2015) (citing, e.g., Meyer, 510 U.S. at 477) (treating

deficiency in any of the six elements of a cognizable claim as a jurisdictional issue); Verizon Wash.,

D.C., Inc. v. United States, 254 F. Supp. 3d 208, 214-15 (D.D.C. 2017) (dismissing claims against

agency on jurisdictional grounds).

Through their Amended Complaint, Plaintiffs sue three federal officials in their official

capacities, six unnamed federal officials in their personal capacities, and two non-governmental

defendants. They do not sue the United States. “[T]hat the FTCA claim must be against the United

States . . . is not a trifling matter: in this case, its absence compels dismissal of [Plaintiffs’] claims

against the [Federal Defendants].” Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10, 16-

16 17 (D.D.C. 2015). 7 The Court need not decide whether claims against Doe Defendants sued

exclusively in their personal capacities also could be dismissed. Doe Defendants shall be

dismissed without prejudice on other grounds.

Faced with Federal Defendants’ briefing, Plaintiffs say nothing to excuse their failure to

sue the United States. If Plaintiffs had sought leave to amend to correct this fatal deficiency, the

Court would have allowed it. See, e.g., Hansen v. Lappin, 800 F. Supp. 2d 76, 81 n.5 (D.D.C.

2011) (Kollar-Kotelly, J.) (reaching other grounds for dismissal, in light of plaintiff’s willingness

to amend complaint). But Plaintiffs completely ignore this deficiency, which could have been

corrected easily. Accordingly, the Court shall dismiss all of the tort claims against Federal

Defendants, without prejudice to refiling if this error is corrected. No non-tort claims against

Federal Defendants remain either. 8

2. Exhaustion of Remedies

Beginning with the exhaustion requirement, the Court shall consider further jurisdictional

hurdles to determine whether prejudice should attach to the Court’s dismissal of claims against

Federal Defendants. The parties’ briefing of exhaustion leaves much to be desired. 9 The Court

shall nevertheless forge ahead in part on its own investigation of the authorities.

7 Even if Plaintiffs had properly sued the United States as well, there is persuasive authority for dismissing any remaining claims against the Federal Defendants. See, e.g., King, 728 F.3d at 413 n.2. 8 As noted above, the Eleventh Claim, alleging an APA violation, has been resolved. The only constitutional claims appear to be pled exclusively against Doe Defendants. 9 For example, the parties do not even mention Kwai Fun Wong. Moreover, Plaintiffs address Federal Defendants’ exhaustion arguments only selectively. See Pls.’ Opp’n at 8-9 (offering certain counterarguments “[b]y way of example”). 17 “The FTCA bars claimants from bringing suit in federal court until they have exhausted

their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). As the statute

makes clear,

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make 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 denial of the claim for purposes of this section. . . .

28 U.S.C. § 2675(a) (emphasis added). The presentment of an administrative claim before filing

an FTCA suit “is a jurisdictional prerequisite to the maintenance of a tort suit against the United

States.” GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987) (citing 28 U.S.C.

§ 2675(a)). Denial, or deemed denial, is part of this jurisdictional prerequisite too. See McNeil,

508 U.S. at 112 (interpreting Section 2675(a) as “indicat[ing] that Congress intended to require

complete exhaustion of Executive remedies before invocation of the judicial process” (emphasis

added)); Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (affirming dismissal for lack

of jurisdiction over FTCA claim filed after presentment to agency but before denial); Reynolds v.

United States, 748 F.2d 291, 292 (5th Cir. 1984) (same).

By contrast, recent Supreme Court precedent has construed the statute of limitations in 28

U.S.C. § 2401(b) as imposing only a non-jurisdictional limit on FTCA claims. 10 See Kwai Fun

Wong, 135 S. Ct. at 1632-33, 1638 (deciding that Section 2401(b) is “a mere claims-processing

rule” rather than “the rare statute of limitations that can deprive a court of jurisdiction”).

10 Section 2401(b) “states the [FTCA’s] statute of limitations, whose period is measured in terms of presentment and final denial of claims under [Section] 2675(a).” GAF Corp., 818 F.2d at 920 n.108. 18 Presentment itself nevertheless continues to be regarded as a jurisdictional non-negotiable. See

Smith v. Clinton, 886 F.3d 122, 127 (D.C. Cir. 2018) (per curiam) (affirming dismissal of certain

claims for lack of subject-matter jurisdiction in absence of exhaustion); 3 Jayson & Longstreth,

supra, § 17.01 (collecting post-Kwai Fun Wong cases distinguishing between jurisdictional issue

of presentment and non-jurisdictional issue of timeliness thereof).

Although the Supreme Court has affirmed a flat dismissal for failure to comply with

Section 2675(a), this Court shall abide by more recent D.C. Circuit precedent squarely considering

and finding that such a dismissal should be without prejudice. Compare McNeil, 508 U.S. at 109,

113 (affirming dismissal without discussing prejudice issue), with Simpkins v. D.C. Gov’t, 108

F.3d 366, 370-72 (D.C. Cir. 1997) (reversing in part a dismissal with prejudice and remanding for

dismissal without prejudice); see also, e.g., M.J. v. Georgetown Univ. Med. Ctr., No. 13-5321,

2014 WL 1378274 (D.C. Cir. Mar. 25, 2014) (per curiam) (modifying a district court’s dismissal

on the authority of Simpkins).

Federal Defendants aver that certain Plaintiffs failed to file administrative claims at all, and

that others failed to do so within the two-year statute of limitations. See Fed. Defs.’ Mem. at 5

(citing Exs. A, B, & C). But in light of Kwai Fun Wong, the Court shall reach only the first issue,

the presentment requirement. The statute of limitations would be an issue only if the Court found

jurisdiction, which it does not, and thereafter reached the Rule 12(b)(6) grounds for dismissal.

“[A]s with other jurisdictional prerequisites to suit, a claimant must both plead and prove

satisfaction of the administrative claim requirement in an FTCA suit.” 3 Jayson & Longstreth,

supra, § 17.01 (collecting cases). With regard to proof, the declarations filed in support of Federal

Defendants’ arguments are legitimate means of challenging subject-matter jurisdiction over

19 Plaintiffs’ claims. See, e.g., Rashad v. D.C. Cent. Det. Facility, 570 F. Supp. 2d 20, 24 & n.3

(D.D.C. 2008).

The Court pauses briefly to consider whether exhaustion is necessary for Plaintiffs’ First

and Second Claims, which arise under the District of Columbia Survival Act, D.C. Code § 12-101,

and District of Columbia Wrongful Death Act, D.C. Code § 16-2701, respectively. 11 “The

Wrongful Death Act creates ‘an entirely new right of action in favor of designated beneficiaries’

while the Survival Act ‘preserves and carries forward for the benefit of the deceased’s estate the

right of action which the deceased would have had, had he not died.’” Eastridge v. United States,

Civil Action No. 06-448 (CKK), 2007 WL 495797, at *11 (D.D.C. Feb. 12, 2007) (Kollar-Kotelly,

J.) (quoting Semler v. Psychiatric Inst. of Wash., D. C., Inc., 575 F.2d 922, 924-25 (D.C. Cir.

1978)). Plaintiffs do not respond to Federal Defendants’ argument that Survival Act and Wrongful

Death Act claims must be exhausted. The Court is not aware of any basis for excepting those

claims from the exhaustion requirement imposed by Section 2675(a). See Burton v. United States,

668 F. Supp. 2d 86, 95-98 (D.D.C. 2009) (finding exhaustion of remedies in FTCA case consisting

of Survival Act and Wrongful Death Act claims); Eastridge, Civil Action No. 06-448 (CKK), 2007

WL 495797, at *11-*12 (dismissing FTCA claims under Survival Act and Wrongful Death Act

that had not been exhausted). Accordingly, the following analysis of the exhaustion issue shall

apply to all of Plaintiffs’ remaining claims against Federal Defendants.

a. Pleading Compliance with Exhaustion Requirement

The Amended Complaint alleges that “unless otherwise noted, plaintiffs have served notice

of their claims for relief on defendants within two years of their accrual as required by 28 U.S.C.

11 As Federal Defendants correctly observe, Plaintiffs’ Amended Complaint reversed the statutory citations for the Survival Act and Wrongful Death Act. See Am. Compl. (First and Second Claims); Fed. Defs.’ Mem. at 9-10. This apparent mistake does not hinder the Court’s analysis.

20 § 2401 and more than six months have elapsed without defendants formally responding thereto.”

Am. Compl. ¶ 117. The Court shall turn shortly to the parties’ materials outside of the Amended

Complaint that test this allegation.

Before doing so, the Court treats the exception to which the aforementioned language,

“unless otherwise noted,” evidently adverts. The parties’ briefing does not address this issue. But

Plaintiffs concede in their Amended Complaint that certain of them filed administrative claims

less than six months before filing suit: Chelsea Garrett, Jerry and Michelle Sims, Carl Cooke, and

the Royal family. Id. ¶ 169. The Amended Complaint does not say whether those claims were

with the Army, FBI, or both; accordingly, in light of Plaintiffs’ burden, the Court shall assume that

the concession applies to claims with both agencies. See Am. Farm Bureau, 121 F. Supp. 2d at

90. The same concession about presenting claims less than six months before filing suit appears

in both the Amended Complaint and the original Complaint. See Compl., ECF No. 1, ¶ 161. These

Plaintiffs effectively admit, therefore, that they were not yet able to plead denial of their

administrative claims before pursuing their claims in this Court. See 28 U.S.C. § 2675(a)

(requiring the elapse of six months before deeming “final denial”).

This Court is not at liberty to proceed in the absence of a denial or deemed denial by the

appropriate agency. See McNeil, 508 U.S. at 112 (requiring adherence to “straightforward

statutory command” in 28 U.S.C. §2675(a)). Accordingly, the claims of Chelsea Garrett, Jerry

and Michelle Sims, Carl Cooke, and the Royal family must be dismissed without prejudice for

failure to exhaust administrative remedies with the Army and FBI.

b. Proving Compliance with Exhaustion Requirement

Federal Defendants challenge the claims of certain Plaintiffs who properly allege both

filing and deemed denial of their administrative claims. On behalf of the Army, Tracy Wynn,

21 Acting Chief of the Operations and Records Branch for the U.S. Army Claims Service, denies

receiving any claims from representatives of the following decedents: Libardo Caraveo, Justin

DeCrow, Frederick Greene, Jason Hunt, Amy Krueger, Russell Seager, Francheska Velez, “Velez,

Unborn Child” (hereinafter “Baby Velez”), 12 Juanita Warman, Kham Xiong, and “P.Z. Zeigler.”

Fed. Defs.’ Mem. at 5; Fed. Defs.’ Mem., Ex. A, ECF No. 77-1 (Decl. of Tracy Wynn). Plaintiffs

dispute this list in several ways.

First, Plaintiffs interpret Federal Defendants’ argument as stating that the military did not

receive a claim from “Staff Sergeant Zeigler.” Pls.’ Opp’n at 8. But that misrepresents the

briefing. Federal Defendants instead point out that the military did not receive a claim from “P.Z.

Zeigler,” whom the Court assumes is the “P.Z.” identified in the Amended Complaint as Staff

Sergeant Zeigler’s minor son. Fed. Defs.’ Mem. at 5; Fed. Defs.’ Reply at 10 n.4; see also Fed.

Defs.’ Mem., Ex. A (21 of 22), ECF No. 77-1 (Decl. of Tracy Wynn) (declaring on behalf of Army

the lack of administrative tort claims from P.Z. Zeigler); Am. Compl. ¶ 154 (distinguishing

between Plaintiffs in Zeigler family). Plaintiffs’ exhibit containing claim forms from Patrick and

Jessica Zeigler does not include claims on behalf of their child, minor P.Z. Pls.’ Opp’n, Ex. B,

ECF No. 80-2. Plaintiffs have failed to carry their burden. In the absence of any other basis for

finding that P.Z.’s claims against the military were exhausted, the Court shall rely on Ms. Wynn’s

declaration in finding that those claims have not been exhausted.

As for the other claims that the military allegedly did not receive, Plaintiffs rely on a letter

dated November 4, 2012, from a Dr. Michael Engelberg that allegedly conveys certain “amended”

12 This Plaintiff is the unborn child of decedent Francheska Velez. Am. Compl. ¶ 161. Both Ms. Velez and Baby Velez are represented by Eileen Rodriguez. Id. ¶¶ 133, 161. Ms. Rodriguez is referred to in the Amended Complaint varyingly as “Eileen” and “Eillen.” The Court shall simply use Eileen.

22 claim forms to the Department of Defense, the Army, the FBI, and the Department of Justice. Pls.’

Opp’n at 8-9; Pls.’ Opp’n, Ex. C, ECF No. 80-3. With this argument, Plaintiffs do not refer to

Baby Velez, so the Court finds that they concede any argument that claims on behalf of Baby

Velez with the military have been exhausted. Plaintiffs do refer to “P.Z. Zeigler,” on the other

hand, but there is no reference to P.Z., or any other member of the Zeigler family, in the letter

contained in Exhibit C. Accordingly, Plaintiff’s filing does not change the Court’s foregoing

assessment that claims with the military on behalf of P.Z. have not been exhausted. See Fed. Defs.’

Reply at 10.

Setting aside Baby Velez and P.Z., the amended forms purportedly add claims on behalf

of the remaining decedents who appear in Ms. Wynn’s declaration. See Pls.’ Opp’n, Ex. C, ECF

No. 80-3. Federal Defendants argue that these new claims, if in fact they were filed, were not

timely. See Fed. Defs.’ Reply at 10-11. But, under Kwai Fun Wong, the Court would not turn to

that statute of limitations issue until after satisfying itself of jurisdiction. The Court is still left

with a problem: a military declarant avers that certain claims were not received, while Plaintiffs

argue that they did in fact mail the claims. See, e.g., Pls.’ Opp’n at 9; Pls.’ Opp’n, Ex. D, ECF No.

80-4 (containing receipts purportedly from mailings of Plaintiffs’ claims). However, the Court

need not resolve this issue. The Court shall assume, arguendo, that representatives of the following

deceased military servicemembers did in fact file administrative claims: Libardo Caraveo, Justin

DeCrow, Frederick Greene, Jason Hunt, Amy Krueger, Russell Seager, Francheska Velez, and

Juanita Warman. The Court is comfortable making this assumption because it shall find, below,

that prejudice should attach anyway to the dismissal of these military servicemember Plaintiffs’

claims under the Feres doctrine.

23 Federal Defendants also allege that the following Plaintiffs did not submit a claim to the

FBI: Michelle Sims, Eileen Rodriguez as personal representative of Baby Velez, Eileen Rodriguez

as Baby Velez’s grandmother, and Juan G. Velez as Baby Velez’s grandfather. Fed. Defs.’ Mem.

at 5-6; see also Fed. Defs.’ Mot., Ex. B, ECF No. 77-2 (Decl. of Crystal J. Peterson, FBI, ¶ 7).

Plaintiffs dispute this claim only as to Michelle Sims. They suggest that because there is proof

that Ms. Sims submitted a claim to the Army, she likewise can be “presumed” to have filed with

the FBI as well. Pls.’ Opp’n at 9 (citing Fed. Defs.’ Mot., Ex. C, ECF No. 77-3 (6 of 7) (declaring

that Army received claim from Ms. Sims on June 25, 2012)). Plaintiffs rely on Dr. Engelberg’s

letter referenced above to show that a claim was filed with the FBI on her behalf. Id.; Pls.’ Opp’n,

Ex. C, ECF No. 80-3. But that letter does not refer to Ms. Sims. Nor does the set of mailing

receipts in Plaintiffs’ Exhibit D refer to a claim by Ms. Sims. Considering the relevant materials

outside the Amended Complaint, the Court finds insufficient evidence to show that Ms. Sims

submitted a claim to the FBI. 13 Even if Ms. Sims had so submitted, the Court observed above her

concession that she did not wait six months before filing suit. Accordingly, Ms. Sims has not

established that she exhausted her administrative remedy with the FBI. Moreover, Plaintiffs

concede any argument that Eileen Rodriguez as personal representative of Baby Velez, Eileen

Rodriguez as Baby Velez’s grandmother, and Juan G. Velez as Baby Velez’s grandfather

exhausted their remedies with the FBI.

Of course, Plaintiffs were required not only to file claims with the Army and FBI; those

claims also must have been denied or properly deemed denied before Plaintiffs could file suit.

Setting aside those Plaintiffs who admit filing suit within six months of their administrative claims,

13 The Court is comfortable making this finding despite the lack of certain letter-exhibits that Ms. Peterson’s declaration says are attached to it but do not appear in the record. See, e.g., Fed. Defs.’ Mot., Ex. B, ECF No. 77-2 (Decl. of Crystal J. Peterson, FBI, ¶¶ 4, 5). 24 or are dismissed for failure to prove that they filed claims, the Court lacks adequate proof that the

remaining Plaintiffs satisfied the denial requirement.

Because of lacunae in the parties’ briefing, the Court instructed Federal Defendants to file

supplemental declarations to clarify whom they admit properly exhausted remedies. See Min.

Order of Dec. 11, 2018; Def.’s [sic] Resp. to Ct.’s Order for Suppl. Decls., ECF No. 87 (“Fed.

Defs.’ Suppl. Decls.”). The resulting declarations improperly conflate timely filing with

exhaustion, failing to account for whether denial or deemed denial also occurred. See Fed. Defs.’

Suppl. Decls. at 1 (submitting certain declarations “that identify Plaintiffs whom the agencies

admit timely filed administrative claims with the respective agencies, and thereby exhausted their

administrative remedies”). Nevertheless, the Army and FBI declarations list claims that were

made before November 5, 2011. See Suppl. Decl. of Connie M. McConahy, U.S. Army Claims

Service, ECF No. 87-1, ¶ 2; Suppl. Decl. of Crystal J. Peterson, FBI, ECF No. 87-2, ¶ 4. This case

was not filed until November 5, 2012. Compl., ECF No. 1. Accordingly, it is clear that more than

six months elapsed between filing of those administrative claims as to which Federal Defendants

concede exhaustion and the filing of this lawsuit. Although Plaintiffs have the burden to establish

subject-matter jurisdiction, the Court shall again assume, arguendo, based on the Government’s

concession, that the Government either denied or did not respond to those claims within six

months, and that therefore Plaintiffs’ remedies were fully exhausted. The Court’s below analysis

of other obstacles to jurisdiction shall persuade the Court that the claims of nearly every Plaintiff

against Federal Defendants should be dismissed for employment-related reasons as well. 14

14 The exception is the claims of Michelle R. Harper and her family, which are dismissed solely for failure to name the United States as a defendant. 25 Federal Defendants’ supplemental declarations do not refer to the following further

Plaintiffs, who might have exhausted remedies with one of the two agencies: Eileen Rodriguez as

grandmother of Baby Velez (Army remedy only), Juan G. Velez as grandfather of Baby Velez

(Army remedy only), and P.Z. (FBI remedy only). Elsewhere in this Memorandum Opinion, the

Court found that these Plaintiffs failed to exhaust remedies with the other of the two agencies.

Plaintiffs have the burden to establish subject-matter jurisdiction, and they failed to do anything

affirmative in their Opposition to establish that these Plaintiffs exhausted remedies with these

agencies either. Because Federal Defendants’ supplemental declarations do not admit exhaustion

as to these Plaintiffs, and Plaintiffs do nothing to prove it, the Court shall find that Eileen

Rodriguez as grandmother of Baby Velez, and Juan G. Velez as grandfather of Baby Velez, did

not exhaust their Army remedies, and P.Z. did not exhaust his FBI remedy.

For the avoidance of doubt, the Court shall reiterate those Plaintiffs who, the Court has

found, failed to exhaust certain administrative remedies with both the Army and the FBI: Chelsea

Garrett, Jerry and Michelle Sims, Carl Cooke, the Royal family, 15 Baby Velez, Eileen Rodriguez

as Baby Velez’s grandmother, Juan G. Velez as Baby Velez’s grandfather, and P.Z. The Court

finds that these Plaintiffs’ claims must be dismissed without prejudice.

The Court notes that each of the Plaintiffs whose claims against Federal Defendants are

dismissed without prejudice for failure to exhaust administrative remedies is a military

servicemember or a family member thereof, with the exception of Baby Velez and her

grandparents. Accordingly, the Court’s dismissal with prejudice under the Feres doctrine below

15 Plaintiff-members of the Royal family consist of Christopher H. Royal, Stephanie J. Royal, and minor child C.S.R., II. Am. Compl. ¶ 150.

26 shall apply to all of these claims except those of Baby Velez and her grandparents, to which

prejudice shall not attach.

3. Employment-Related Bars

The Court now considers subject-matter jurisdictional bars attributable to Plaintiffs’

respective employers. The liability of the United States is limited as to the military

servicemembers and their families under the Feres doctrine. In light of Feres, the Court shall find

that prejudice should attach to the dismissal of the tort claims against the Federal Defendants by

military servicemembers and their family members.

The exclusive-remedy provision of the Federal Employees’ Compensation Act limits the

liability of the United States as to the federal civilian employees. Due to FECA, the Court shall

find that the claims of federal civilian employees and their family members against Federal

Defendants warrant dismissal without prejudice. They may refile their claims if they can prove

that the Secretary of Labor has decided that their compensation claims are outside the scope of

FECA.

The Court need not decide whether Feres and FECA defenses could properly be raised by

Federal Defendants themselves. In order to perform this analysis, the Court assumes, arguendo,

the substitution of the United States for the Federal Defendants. As the Court made clear earlier

in this Memorandum Opinion, Plaintiffs’ claims against Federal Defendants could be dismissed

without prejudice simply for failure to name the United States. Even if the Court were to permit

amendment to substitute the United States for the Federal Defendants, the failure to exhaust

remedies, the Feres doctrine, and FECA together warrant dismissal with or without prejudice of

all claims against the United States, with one exception: Those grounds do not preclude claims by

the one non-federal civilian employee, Michelle R. Harper, and her family members.

27 The Court shall evaluate Federal Defendants’ argument that state workers’ compensation

law bars Ms. Harper from recovery, on the assumption that the United States were substituted for

Federal Defendants. Here, the Court is not persuaded that the United States is entitled to avail

itself of the exclusive-remedy defense available under Texas state law. Accordingly, this defense

shall fail. Prejudice shall not attach to the dismissal of the claims of Ms. Harper and her family,

as they shall be dismissed solely for failure to sue the United States.

a. Military Servicemembers and Family Members

The military servicemembers and their families must establish that jurisdiction over their

tort claims against Federal Defendants is consistent with the Feres doctrine. In Feres v. United

States and companion cases, an injured military servicemember and the estates of other

servicemembers sued the United States for torts sustained during their service. Feres, 340 U.S.

135. The Supreme Court found no subject-matter jurisdiction, holding that “the Government is

not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out

of or are in the course of activity incident to service.” Id. at 146; see also Schnitzer v. Harvey, 389

F.3d 200, 202 (D.C. Cir. 2004) (treating Feres as jurisdictional issue).

Plaintiffs acknowledge that Feres potentially bars their claims, but they urge this Court to

“overturn” that doctrine. See, e.g., Pls.’ Opp’n at 10-14. Notwithstanding the raft of criticism of

Feres over the decades, this Court obviously lacks the power to overrule Supreme Court precedent.

See, e.g., United States v. Johnson, 481 U.S. 681, 692 (1987) (reaffirming Feres); id. at 700 (Scalia,

J., dissenting) (concluding that “Feres was wrongly decided”); Connell v. Copeland, 417 F. App’x

3, 4 (D.C. Cir. 2011) (“The validity of Feres is a question beyond this Court’s authority to consider,

and were it not, our own precedent would require this panel to reject [plaintiff’s] specific

arguments against it.”). Nor is the Court aware of any post-Arbaugh or post-Kwai Fun Wong

28 authority suddenly interpreting Feres as a non-jurisdictional issue. See, e.g., Ortiz v. United States

ex rel. Evans Army Cmty. Hosp., 786 F.3d 817, 818-20 (10th Cir. 2015) (affirming dismissal for

lack of subject-matter jurisdiction under Feres). If Feres applies, then prejudice must attach to the

dismissal of claims by military servicemembers and their families against the Federal Defendants.

Under D.C. Circuit precedent, courts applying the Feres doctrine assess whether an activity

is “incident to service” using a “totality of the circumstances” test that weighs: (1) “the injured

service member’s duty status,” (2) “the site of the injury,” and (3) “the nature of the activity

engaged in by the service member at the time of his injury.” Schnitzer, 389 F.3d at 203. The

“injuries” at issue are the harms to Plaintiffs from the attack itself, rather than the alleged torts of

certain officials that led to those injuries. See Klay v. Panetta, 924 F. Supp. 2d 8, 13 (D.D.C.

2013), aff’d, 758 F.3d 369 (D.C. Cir. 2014). In performing this inquiry, the Court may again

consider materials submitted with Federal Defendants’ Rule 12(b)(1) motion without treating it as

a Rule 56 motion.

Each of the Schnitzer factors supports a conclusion that the injuries in this case were

incident to military service. First, “the proper inquiry regarding duty status is whether a service

member is on active duty status or is discharged or furloughed.” Schnitzer, 389 F.3d at 204. The

Chief of the Army Personnel Records Division has confirmed that each of the servicemember-

plaintiffs was on active duty on November 5, 2009. See Fed. Defs.’ Mem., Ex. D, ECF No. 77-4

(Decl. of Donna Mukulic). 16 The second factor is readily satisfied where the “injury occurred

within a military facility.” Schnitzer, 389 F.3d at 203. Here, it is undisputed that the injuries

16 This declaration lists, among the servicemember-plaintiffs, a Nicole Brossard who does not appear in the Amended Complaint. The Court has also observed one or two other instances in the record of references to specific servicemembers who are not Plaintiffs. 29 occurred at a deployment center within Fort Hood. Fed. Defs.’ Mem. at 11 (citing several

government reports attached to Amended Complaint); Pls.’ Opp’n at 14.

As to the third factor, the Amended Complaint describes the deployment-related activities

of some of the servicemember-plaintiffs at the time of the attack. See Am. Compl. ¶¶ 144, 154,

159 (observing, e.g., that “Specialist Clifton Mikeal Stone . . . . was awaiting an anthrax

vaccination in preparation for his first deployment to Iraq”). Others were allegedly engaged in

military medical activities that day, e.g., id. ¶¶ 155, 156, and/or allegedly tried to assist

servicemembers during the shooting, e.g., id. ¶¶ 155, 157, 158. For still others, the Amended

Complaint is scant on description of their activities that day. E.g., id. ¶¶ 152, 153. But each of the

military servicemembers was doing something in or around a military deployment center when the

shooting occurred; otherwise, the respective servicemembers would not have been hurt.

Relying on elements identified in other circuits, Plaintiffs argue that servicemembers’

activities at the deployment center were essentially civilian in nature, and that litigating the case

would scarcely affect military discipline. Pls.’ Opp’n at 13-14 (citing Schoenfeld v. Quamme, 492

F.3d 1016 (9th Cir. 2007)). Moreover, servicemember-plaintiffs were injured alongside the many

civilians at the scene. Id. at 14 (citing Kloner v. United States, 196 F. Supp. 3d 375 (E.D.N.Y.

2016)). Plaintiffs refer to this case law in an attempt to invoke rationales for the Feres doctrine.

See id. But the D.C. Circuit has held that it is unnecessary to inquire whether liability in a given

case is consistent with the military discipline or other rationales for Feres. See Verma v. United

States, 19 F.3d 646, 648 (D.C. Cir. 1994) (per curiam) (rejecting “flexible approach” and applying

Feres “whether or not the circumstances of a case implicate the rationales for the Feres doctrine”).

Rather, the Court must stick to the factual question of whether Plaintiffs’ activity is incident to

30 service. “A degree of malleability in that inquiry does not supply a discretionary power to take

jurisdiction even if the inquiry has been resolved against the claimant.” Id.

To recapitulate, Plaintiffs can prevail on Federal Defendants’ Rule 12(b)(1) challenge only

if they prove that this Court has jurisdiction over military servicemembers’ claims, in spite of

Feres. See generally Am. Farm Bureau, 121 F. Supp. 2d at 90 (observing that plaintiffs bear the

burden). On November 5, 2009, those servicemembers were on active duty, and their activities

brought them to the deployment center, where the Amended Complaint alleges that many were

specifically engaged in deployment-related activities. Plaintiffs offer insufficient detail as to some

of these servicemembers’ activities that day to establish that the injuries were not incident to their

military service. After all, the relationship to military service is “broadly” construed. Schnitzer,

389 F.3d at 202. The Court is persuaded that these active-duty servicemembers’ injuries at the

deployment center were incident to military service. Their claims against Federal Defendants must

be dismissed with prejudice under Feres.

The families of servicemembers likewise have only limited rights under Feres progeny.

Plaintiffs do not expressly address this issue in their Opposition. As Federal Defendants rightly

recognize, however, D.C. Circuit precedent prohibits family members from recovering “where the

cause of action is ancillary or derivative to the serviceman’s action for his own injury received

incident to military service.” Lombard v. United States, 690 F. 2d 215, 223 (D.C. Cir. 1982)

(deeming this principle “well established” under Feres); see also Fed. Defs.’ Mem. at 12-13. The

alleged harms to family members in this case are examples of emotional distress, loss of

consortium, and other injuries commonly recognized as derivative of a primary tort claim. See

Harbury v. Hayden, 444 F. Supp. 2d 19, 43-44 (D.D.C. 2006) (Kollar-Kotelly, J.) (citing cases),

aff’d, 522 F.3d 413 (D.C. Cir. 2008). The impact of the Fort Hood attack on servicemember-

31 plaintiffs is the but-for cause of their family members’ claims, including wrongful death and

survival actions. See Lombard, 690 F.2d at 223, 225 (citing Monaco v. United States, 661 F.2d

129 (9th Cir. 1981)); see also id. at 223 (referring to two of three companion cases decided in

Feres as consisting of wrongful death actions); Van Sickel v. United States, 285 F.2d 87 (9th Cir.

1960) (barring wrongful death action on authority of Feres). None of those claims may proceed

under this Circuit’s precedent in Lombard, which has recently been cited favorably elsewhere. See

Ortiz, 786 F.3d at 825 & n.6 (citing Lombard, 690 F.2d at 219, 226).

Because Feres and its progeny apply, prejudice must attach to the Court’s dismissal of the

claims of military servicemembers and their families against Federal Defendants.

b. Federal Civilian Employees and Family Members

Plaintiffs who were federal civilian employees, and family members thereof, must contend

with the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. Those who allegedly were

federal civilian employees at the time of the attack are Lovickie D. Byrd, Anna E. Ellis, Kimberly

D. Munley, Linda J. Londrie, and Julia Wilson Adee. Am. Compl. ¶¶ 162, 163, 165, 166, 168.

Although the Amended Complaint ambiguously suggests that Plaintiff Diana J. White was a non-

federal civilian employee, Federal Defendants have asserted that she was in fact a federal civilian

employee, with federal personnel records that appear to support that contention. See id. ¶ 167;

Fed. Defs.’ Mem. at 13 & Ex. E. Plaintiffs have not objected. Federal Defendants do not object

to the characterizations of any of these other employees. Rather, Federal Defendants argue that

FECA’s exclusive-remedy provision bars claims by these Plaintiffs and their family members.

By offering fixed compensation in lieu of litigation rights, FECA “was designed to protect

the Government from suits under statutes, such as the Federal Tort Claims Act, that had been

enacted to waive the Government’s sovereign immunity.” Lockheed Aircraft Corp., 460 U.S. at

32 193-94. Like the application of Feres, FECA has represented a jurisdictional issue, and continues

to do so after Arbaugh and Kwai Fun Wong. See, e.g., Barnes v. United States, No. 18-5054, 2018

WL 5115528 (D.C. Cir. Sept. 19, 2018) (citing Spinelli v. Goss, 446 F.3d 159, 161 (D.C. Cir.

2006)) (affirming dismissal of FTCA claim for lack of jurisdiction due to FECA).

The FECA statutory scheme broadly defines an “employee” to include “a civil officer or

employee in any branch of the Government of the United States.” 5 U.S.C. § 8101(1)(A). The

United States is generally obligated by FECA to provide compensation where the “disability or

death of an employee result[s] from personal injury sustained while in the performance of his

duty,” with certain exceptions that do not apply here. 5 U.S.C. § 8102(a). An employee covered

by FECA is also subject to its exclusive-remedy provision:

The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. . . .

5 U.S.C. § 8116(c) (emphasis added). It is well established that “the United States’ liability for

work-related injuries under FECA is exclusive.” United States v. Lorenzetti, 467 U.S. 167, 169

(1984) (citing 5 U.S.C. § 8116(c)). The exclusive-remedy provision likewise precludes claims by

spouses, dependents, and other relatives of employees that are attributable to the harm to the

employee. See, e.g., Saltsman v. United States, 104 F.3d 787, 790-91 (6th Cir. 1997) (citing 5

U.S.C. § 8116(c)); Swafford v. United States, 998 F.2d 837, 841 (10th Cir. 1993) (citing, e.g., 5

U.S.C. § 8116(c); Lockheed Aircraft Corp., 460 U.S. at 195-96).

There is no dispute that the federal civilian Plaintiffs are employees for purposes of FECA.

But, in their Amended Complaint, Plaintiffs supply varying levels of detail about what the federal

33 civilian Plaintiffs were doing at the time of the attack. Lovickie D. Byrd, Kimberly D. Munley,

and Diana J. White each appear to have been engaged in some employment-related activity. See

Am. Compl. ¶ 162 (alleging that Ms. Byrd was “civilian federal employee who had just finished

processing” a servicemember at time of attack); id. ¶ 165 (indicating that Ms. Munley was civilian

Department of Defense police officer who “rushed to the scene of the shooting to confront Hasan

and exchanged fire with Hasan from six feet away”); id. ¶ 167 (identifying Ms. White as “civilian

speech pathologist working with” servicemember when attack occurred). Julia Wilson Adee

allegedly was a civilian employee of the Department of Defense who “had just parked near the

SRP when Hasan began shooting.” Id. ¶ 168. But the Amended Complaint neither defines “SRP”

nor otherwise explains the significance of her activity. And Plaintiffs plead nothing about the

activities of Anna E. Ellis or Linda J. Londrie at the time the attack occurred. Rather, Plaintiffs

simply identify occupations that locate these two individuals within the category of federal civilian

employees. See id. ¶ 163 (describing Ms. Ellis as civilian federal human relations employee); id.

¶ 166 (describing Ms. Londrie as civilian Department of Defense employee). 17 Perhaps at least

some of the federal civilian Plaintiffs could recover compensation under FECA from the United

States, on behalf of themselves and perhaps their family members, due to “personal injur[ies]

sustained while in the performance of [their] dut[ies].” 5 U.S.C. § 8102(a). Those Plaintiffs would

be prohibited from turning around and suing the United States under the FTCA. Id. § 8116(c).

Plaintiffs do not argue that FECA is inapplicable to these Plaintiffs. They instead challenge

the FECA defense only by arguing that constitutional claims should be excluded from FECA’s

17 Plaintiffs also allege that Ms. Londrie “consoled [a servicemember] in the last minutes of her life,” and acknowledge that Ms. Londrie “had no military training or experience.” Am. Compl. ¶ 166. Because Plaintiffs do not allege that Ms. Londrie was a medical staff person, it remains unclear whether this is the kind of activity that might be part of her employment duties. 34 exclusive-remedy provision. See Pls.’ Opp’n at 20-21. But the constitutional allegations in

Plaintiffs’ Sixth Claim run only against the Doe Defendants. See Am. Compl. ¶ 279. Because the

Doe Defendants are sued only in their personal capacities, the Court shall separately address claims

against them in the next Subpart.

The Court’s independent review of the authorities reveals that the exclusive-remedy

argument is not as straightforward as Federal Defendants suggest and Plaintiffs concede. The

springboard for further inquiry is federal civilian Plaintiffs’ failure to prove that they actually

sought compensation. “Compensation under [FECA] may be allowed only if an individual or

someone on his behalf makes claim therefor” that is “delivered to the office of the Secretary of

Labor” or a designee. 5 U.S.C. § 8121. The Secretary of Labor is tasked with deciding this claim,

and review of that decision is limited to administrative appeal. See id. §§ 8124, 8128 (prohibiting

judicial review); Spinelli, 446 F.3d at 161 (quoting Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 90-91

(1991) (“[T]he courts have no jurisdiction over FTCA claims where the Secretary determines that

FECA applies.” (internal quotation marks and alteration omitted)). In their Amended Complaint,

Plaintiffs demonstrate some awareness of the Secretary’s role when they plead that “the Secretary

of Labor has not offered or awarded FECA compensation to the plaintiffs for all (or in some cases

any) of their injuries and so there is no ‘substantial question of FECA coverage.’” Am. Compl.

¶ 124. But Plaintiffs have not pled, much less proven in this Rule 12(b)(1) posture, that each of

the federal civilian Plaintiffs filed administrative claims with the Secretary, and if so, how each of

those claims fared. Nor do Plaintiffs take up this issue again in their Opposition to the pending

motion.

Without further information about federal civilian Plaintiffs’ FECA claims, if any, the

Court is unable to proceed. If this Court were to decide, in the first instance, whether the exclusive-

35 remedy provision prohibits their recovery, then the Court would need to determine whether their

injuries occurred in the course of duty. See 5 U.S.C. § 8102(a); Daniels-Lumley v. United States,

306 F.2d 769, 770 (D.C. Cir. 1962). But that decision is not within this Court’s purview. Because

this is not a case in which federal civilian Plaintiffs’ injuries “were clearly not compensable under

[FECA],” long-standing D.C. Circuit precedent recognizes the statute’s implication that “the

Secretary of Labor must be given the primary opportunity to rule on the applicability of [FECA]

to this case.” Daniels-Lumley, 306 F.2d at 770-71 (noting approvingly that district court did not

decide duty issue). 18 Accordingly, this Court need not, and should not, decide whether the federal

civilian Plaintiffs are entitled to recover under FECA.

The parties’ briefing also fails to observe a possible distinction in the ability to recover for

physical versus nonphysical injuries. See Saltsman, 104 F.3d at 790 (not reaching issue of whether

nonphysical injuries that do not flow from physical injuries are compensable). Ms. Byrd, Ms.

Ellis, and Ms. Munley each allegedly suffered both physical and nonphysical injuries, while Ms.

Londrie, Ms. White, and Ms. Adee each allege strictly nonphysical injuries. See Am. Compl.

¶¶ 162-63, 165-68. This is still further reason to leave the FECA determination to the Secretary

in the first instance.

Only if the Court were assured that each of the federal civilian Plaintiffs 1) filed a FECA

claim with the Secretary, and 2) the Secretary determined that their respective injuries did not

occur within the performance of their duties, or were otherwise not compensable, would they

18 Out-of-circuit authority has also recognized a “substantial question” standard for deferring to the Secretary, such that any substantial question of FECA applicability would preclude advance recourse to litigation. See, e.g., Wallace v. United States, 669 F.2d 947, 951 (4th Cir. 1982) (finding “clearly not compensable” and “substantial question” standards to be alike in practice). It may be more difficult to apply that formulation of the standard in this case, however, where Plaintiffs omitted any detail about the activities of several of the Plaintiffs. The Court rests on the D.C. Circuit’s articulation. 36 clearly survive the exclusive-remedy provision. Absent answers, the Court cannot permit federal

civilian Plaintiffs to proceed here.

At least some out-of-circuit authority suggests that a stay of proceedings is appropriate to

give the Secretary an opportunity to evaluate the claims. See, e.g., DiPippa v. United States, 687

F.2d 14, 20 (3d Cir. 1982). But because federal civilian Plaintiffs failed to name the United States

as a defendant, which independently warrants dismissal, and because federal civilian Plaintiffs

have not requested a chance to pursue any as-yet unpursued administrative remedies, this Court

shall hew to precedent in this jurisdiction that favors dismissal when FECA does, or may, apply.

See, e.g., Barnes, No. 18-5054, 2018 WL 5115528 (affirming dismissal based on Secretary’s

finding that FECA applied); Daniels-Lumley, 306 F.2d at 770-72 (affirming without-prejudice

dismissal because plaintiff-appellant had not taken opportunities to pursue administrative remedy);

Davis v. United States, 973 F. Supp. 2d 23, 28 (D.D.C. 2014) (dismissing FTCA claims pursuant

to FECA, without discussing whether plaintiff sought Secretary’s determination). The Court shall

dismiss the claims of federal civilian Plaintiffs and their family members against Federal

Defendants without prejudice to their refiling upon any decision by the Secretary that those claims

fall outside the scope of FECA. 19 Cf. Kalil v. Johanns, 407 F. Supp. 2d 94, 100 (D.D.C. 2005)

(citing Daniels-Lumley, 306 F.2d at 771; Wallace, 669 F.2d at 951) (taking this approach based on

“‘substantial question’ as to whether FECA covers plaintiff’s [particular type of] claim at all”).

c. Independent Contractor and Family Members

The Court turns now to the claims of Plaintiff Michelle R. Harper and her family. With

the exception of these Plaintiffs, the Court has dismissed the claims of every other Plaintiff against

19 As indicated elsewhere in this Memorandum Opinion, federal civilian Plaintiffs also would need to name the United States as a defendant to move forward under the FTCA.

37 Federal Defendants for some reason additional to their failure to name the United States as a

defendant. Federal Defendants raise a state workers’ compensation defense to Ms. Harper’s

claims. Fed. Defs. Mem. at 15-16. If that defense is successful, the Court shall consider whether

such defense precludes her family’s claims as well. Which state’s workers’ compensation law

applies is the first order of business.

In an FTCA case, the Court applies “the law of the place where the act or omission

occurred.” 28 U.S.C. § 1346(b); see also Meyer, 510 U.S. at 477-78 (recognizing that “the ‘law

of the place’ means law of the State—the source of substantive liability under the FTCA”); Carlson

v. Green, 446 U.S. 14, 23 (1980) (“[A]n action under FTCA exists only if the State in which the

alleged misconduct occurred would permit a cause of action for that misconduct to go forward.”);

2 Jayson & Longstreth, supra, § 9.09[1].

While the attack on Ms. Harper indisputably occurred in Texas, it is possible that Federal

Defendants’ relevant acts or omissions occurred in the District of Columbia and/or other

jurisdictions. Federal Defendants invoke only Texas law, however, on the mistaken basis that the

state law applicable to the contract supplies the rule for this decision. 20 See Fed. Defs.’ Mem. at

15. Plaintiffs say nothing about the issue of Federal Defendants’ liability to an independent

contractor, much less about the appropriate state’s law to apply in such a scenario. In light of the

Amended Complaint and other briefing, however, it is unlikely that Ms. Harper would be covered

by the District of Columbia’s workers’ compensation regime. See D.C. Code § 32-1503

(establishing coverage generally for such injury or death as occur within the District of Columbia

or outside of it if “the employment is localized principally” in the District, with seemingly

20 The Court need not decide whether Texas law in fact governs the contract between the United States and the contractor for which Ms. Harper worked.

38 inapposite exceptions). Accordingly, for purposes of this analysis, the Court shall assume that

Texas law applies. 21

Under Texas law, workers’ compensation generally represents an injured employee’s

“exclusive remedy . . . against the employer or an agent or employee of the employer for the death

of or a work-related injury sustained by the employee.” Tex. Lab. Code § 408.001(a). Certain

provisions enable an entity not otherwise the direct employer to take advantage of the exclusive-

remedy provision. “A general contractor and a subcontractor may enter into a written agreement

under which the general contractor provides workers’ compensation insurance coverage to the

subcontractor and the employees of the subcontractor,” which “makes the general contractor the

employer of the subcontractor and the subcontractor’s employees only for purposes of” the Texas

workers’ compensation regime. Id. § 406.123(a), (e). As a premises owner construed as a “general

contractor,” the United States can enter into such an agreement with an independent contractor and

thereby become an “employer” entitled to exclusive-remedy protections. See Willoughby v. United

States ex rel. U.S. Dep’t of the Army, 730 F.3d 476, 481-82 (5th Cir. 2013) (per curiam). But the

United States does so only if it is constructively providing the workers’ compensation insurance

coverage by agreeing to reimburse the contractor for such coverage. See Willoughby, 730 F.3d at

480-81 (insurance premia were “allowable cost” in contract with government); Doss v. United

States, 793 F. Supp. 2d 859, 865-66 (E.D. Tex. 2011) (same); 1 Jayson & Longstreth, supra,

§ 5.08; see also HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350-52, 360 (Tex. 2009) (construing

Sections 406.123(e) and 408.001(a) in case not involving United States).

21 Because the caption of Plaintiffs’ Amended Complaint alleges that each of the Federal Defendants is located in the District of Columbia, the Court shall not consider other potential jurisdictions where the relevant acts or omissions may have occurred. In any event, such acts or omissions are likely more relevant to Doe Defendants, whose claims the Court treats separately below.

39 In this case, the United States evidently had a contract with Ms. Harper’s employer,

Ingenesis Arora Staffing, LLC (“Ingenesis”). See Fed. Defs.’ Mem., Ex. F, ECF No. 77-6

(containing Decl. of Donna K. Hendrix and accompanying contract excerpt). That agreement

required Ingenesis to obtain workers’ compensation coverage. Id. at 4. Plaintiffs do not contest

this, nor do they say anything about the workers’ compensation issue. But the excerpt of the

contract furnished by Federal Defendants does not require the United States to reimburse Ingenesis

for the cost of the required coverage. For example, there is no discussion of allowable costs that

could include insurance coverage. Nor do Federal Defendants argue that anywhere else in the

contract ultimately shoulders the United States with the burden to provide the coverage. Their

reliance on Willoughby overlooks this element. See Fed. Defs.’ Mem. at 16. And the contract’s

express incorporation of a section of the Federal Acquisition Regulation reinforces the impression

that Ingenesis was required to bear the cost of insurance on its own. See Fed. Defs.’ Mem., Ex. F,

ECF No. 77-6; 48 C.F.R. § 52.228-5 (“The Contractor shall, at its own expense, provide and

maintain during the entire performance of this contract, at least the kinds and minimum amounts

of insurance required in the schedule or elsewhere in the contract. . . .” (emphasis added)). 22

Federal Defendants have not shown that the United States is Ms. Harper’s statutory

employer under Texas workers’ compensation law. Accordingly, any workers’ compensation

secured by Ms. Harper under Ingenesis’s policy cannot act as an exclusive remedy precluding her

from seeking compensation against the United States.

22 The Court is unaware why the express language that the contractor furnish insurance “at its own expense” is omitted from the contract with Ingenesis, but still, there is no indication that the United States has agreed to pick up the tab.

40 Because Ms. Harper has not named the United States as a defendant, as discussed above,

her FTCA claims, and those of her family, 23 must nevertheless be dismissed without prejudice.

Because the Court has disposed of all of the claims against Federal Defendants on the

foregoing grounds, the Court need not reach other defenses relying on the discretionary function

and intentional torts exceptions to the sovereign immunity waiver, the public duty doctrine under

District of Columbia law, and the elements of negligence and negligent infliction of emotional

distress claims under District of Columbia law.

V. CLAIMS AGAINST DOE DEFENDANTS

As noted above, Federal Defendants voluntarily raised certain defenses on behalf of the six

Doe Defendants, who were sued in their personal capacities. See Fed. Defs.’ Mot. at 2 n.3. One

reason that this approach made sense is that each of Plaintiffs’ pending claims against Federal

Defendants also names at least one Doe Defendant. 24 Plaintiffs also plead two claims exclusively

against one or more Doe Defendants, namely claims for intentional misrepresentation and for

constitutional violations. See Am. Compl. ¶¶ 279, 309 (Sixth and Tenth Claims). For the reasons

that follow, however, the Court need not reach Federal Defendants’ arguments for dismissal of

these various claims. Rather, the Court shall dismiss, sua sponte and without prejudice, all of

Plaintiffs’ tort and constitutional claims against the Doe Defendants because they have not been

served with process.

Federal Rule of Civil Procedure 4(m) provides that

23 Members of Ms. Harper’s family who are Plaintiffs in this case consist of George Harper, Alyssa Magee, and minor children T.H. and A.M. Am. Compl. ¶ 164. 24 Only the Eleventh Claim, which is no longer pending, did not name at least one Doe Defendant.

41 If a defendant is not served within 90 days after the complaint is filed, the court-- on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. . . .

“In the absence of service of process (or waiver of service by the defendant), a court ordinarily

may not exercise power over a party the complaint names as defendant.” Murphy Bros. v. Michetti

Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). “The party on whose behalf service is made has

the burden of establishing its validity when challenged; to do so, he must demonstrate that the

procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other

applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting 4 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1083, at 334 (1969)) (internal

quotation marks and alteration omitted).

The Court reminded Plaintiffs of the Rule 4(m) requirements in its February 11, 2013,

order. Order, ECF No. 15. Yet, Plaintiffs have failed to submit proof of service of the Amended

Complaint on the Doe Defendants in the six-plus years of this litigation. Of course, Plaintiffs have

made some effort: They sought expedited discovery to uncover the identities of those Doe

Defendants and thenceforth facilitate service upon them. See Pls.’ Opp’n to Mot. to Stay and

Cross-Mot. for Leave to Conduct Expedited Disc., ECF No. 30, at 17-18. But that effort has

withered. Although their motion was denied without prejudice, Plaintiffs have not renewed their

request since the Court’s March 2017 decision to lift the stay in this matter. See Min. Order of

Mar. 31, 2017. Nor can Plaintiffs’ failure to serve the Doe Defendants be excused based on service

on Federal Defendants. See Simpkins, 108 F.3d at 369 (“[D]efendants in Bivens actions must be

42 served as individuals, pursuant to [Federal Rule of Civil Procedure] 4(e).”). 25 Moreover, Plaintiffs

do not respond to Federal Defendants’ Statement of Interest, despite Federal Defendants’ express

reservation of arguments related to defective service on Doe Defendants. See Fed. Defs.’ Mot. at

2 n.3.

At this point, Plaintiffs’ failure to serve Doe Defendants is sufficient grounds to dismiss

without prejudice the claims against Doe Defendants. Fed. R. Civ. P. 4(m); Order, ECF No. 15,

at 2. The Court does not understand why Plaintiffs have not renewed their motion for expedited

discovery. Accordingly, the Court shall not sua sponte provide Plaintiffs with a further

opportunity to effect service.

Notwithstanding the “usual practice” of proceeding no further than this finding of

insufficient service, the Court could turn to the merits of Federal Defendants’ motion on behalf of

Doe Defendants. See Simpkins, 108 F.3d at 369-70 (condoning “proceed[ing] to the Rule 12(b)(6)

determination . . . . to stop insubstantial Bivens actions in their tracks”). Yet, for several reasons

the Court shall not do so.

First, the dismissal of all claims against Federal Defendants means that there is no one

against whom to serve expedited discovery. Plaintiffs are left with a lawsuit against unnamed

people in exclusively personal capacities. The Court sees no reason to permit Plaintiffs further

time to brainstorm ways of serving them.

The Court is also loath to adjudicate defenses that may apply to defendants who have not

appeared. This Memorandum Opinion has made fine-grained determinations, often on subpar

25 “A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff’s constitutional rights.” Simpkins, 108 F.3d at 368 (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). Constitutional claims are among those raised against Doe Defendants in this case.

43 briefing, that have resulted in dismissals with and without prejudice. Arguments specific to the

Doe Defendants are likely to require further heavy lifting. Although Plaintiffs do not respond to

Federal Defendants’ arguments for dismissal of claims against Doe Defendants—which alone

could be treated as a concession—the Court once again hesitates to grant the motion on that basis.

See Cohen, 819 F.3d at 482-83.

If Plaintiffs were to perfect service on the Doe Defendants, then the Court may need to

evaluate statute of limitations issues, defenses to FTCA claims upon any substitution of the United

States, and qualified immunity defenses to constitutional claims against federal officials. See Fed.

Defs.’ Mem. at 31-45. The Court would do so before reaching the merits of Plaintiffs’ tort and

Bivens constitutional claims. The Court is unwilling to take any of these steps without briefing

from Doe Defendants themselves—at least without adequate briefing by Plaintiffs either.

Accordingly, in an exercise of its discretion under Rule 4(m), the Court shall dismiss

without prejudice all claims against Doe Defendants, sued in their personal capacities.

VI. DELAY AND RELATED ISSUES

Plaintiffs raise other interrelated issues that do not affect the Court’s disposition of this

motion. Really only one warrants some attention here, 26 due to its prominence in their pleading.

In the main, Plaintiffs argue that the Government now demonstrates the bad faith with which it

previously sought stays of this matter. See Pls.’ Opp’n at 5-10. The risk of unlawful command

influence—if these proceedings were to continue during Major Hasan’s court martial—was

allegedly unfounded. See id. at 6. But, as Federal Defendants appear to recognize, the Court

carefully evaluated the prospect of unlawful command influence based on a series of pleadings

26 Plaintiffs also complain that Purple Heart awards were unjustifiably delayed. See Pls.’ Opp’n at 4-5. But Plaintiffs have since ceased pursuing the corresponding claim in their lawsuit. See Min. Order of Nov. 30, 2018; Joint Notice Regarding Pls.’ Eleventh Claim, ECF No. 86. 44 over the course of years. See, e.g., Fed. Defs.’ Reply at 1 n.1; Order, ECF No. 69; Manning, Civil

Action No. 12-1802 (CKK), 2014 WL 12789614.

The Court understands that the stay of proceedings in this case further delayed closure for

the Plaintiffs, prolonging their evident “anger, frustration and suspicion.” Pls.’ Opp’n at 5-6. But

presumably Plaintiffs would prefer that Major Hasan—the ultimately convicted shooter who

perpetrated this horrific attack—would have no grounds to challenge the decision of the military

tribunal to convict him.

The Court shall not entertain Plaintiffs’ belated efforts to reopen this issue. And because

Plaintiffs’ arguments are directed indiscriminately to the “government,” the Court makes clear that

it shall not hold anything against the Doe Defendants either, for they have not been served and

therefore did not brief motions to stay this case.

More importantly, Plaintiffs’ claims against Federal Defendants are being dismissed—with

or without prejudice—for jurisdictional reasons, and not for reasons on the merits. Whether those

reasons surfaced then or now, the result would be the same: The Court cannot hear Plaintiffs’

claims against those defendants. Delays during the court-martial process are unfortunate, but not

grounds for departing from the dictates of jurisdiction.

VII. CONCLUSION

For all of the foregoing reasons, the Court hereby GRANTS Federal Defendants’ [77]

Motion to Dismiss.

The Court shall DISMISS WITHOUT PREJUDICE on certain grounds all remaining

claims (Eleventh Claim no longer at issue) against Federal Defendants by the following Plaintiffs,

as well as their Plaintiff-family members: Baby Velez, Lovickie D. Byrd, Anna E. Ellis, Kimberly

D. Munley, Linda J. Londrie, Julia Wilson Adee, Diana J. White, and Michelle R. Harper.

45 The Court shall DISMISS WITH PREJUDICE on different grounds the same claims

against Federal Defendants by all Plaintiffs other than those named above.

The Court shall DISMISS WITHOUT PREJUDICE all claims against Doe Defendants.

Plaintiffs shall submit a Status Report by FEBRUARY 12, 2019, indicating how they

propose to proceed.

An appropriate Order accompanies this Memorandum Opinion.

Dated: January 22, 2019

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge