UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANDREW WARREN, )
)
Plaintiff, )
)
)
v. ) Civil Case No. 15-1473 (RJL)
)
THE CENTRAL INTELLIGENCE )
AGENCY, el al., )
) F;LEo
Defendants. ) SEP 29 2016
CC|er:i, :I.S.hDistrict & Bankruptcy
MEMO 2 PNDUM OPINION our s ort e Dlstr|ct of Columb|a

 

(September 2016) [Dkts. #21 & #22]

Plaintiff Andrew Warren, Who Was employed by the Central Intelligence Agency
(“CIA”) until 2009, brings this suit alleging he Was harmed on two different occasions:
first When CIA doctors failed to diagnose his post-traumatic stress disorder (“PTSD”)
caused by situations he endured in his Work with the CIA and, second, When Leon
Panetta testified on a matter involving the plaintiff at one of his hearings to be confirmed
as the director of the CIA. Although plaintiffs initial complaint named only former-
Director Panetta and the CIA as defendants, plaintiff amended his complaint to add the
United States as a defendant, and he now brings all three of his claims against the United
States under the Federal Tort Claims Act. See First Am. Compl. (“FAC”) [Dkt. #19].

The case is presently before the Court on two motions to dismiss: one by former-
Director Panetta [Dkt. #21] and one by the CIA and the United States (collectively “the

federal defendants”) [Dkt. #22]. In responding to defendant Panetta’s motion to dismiss,

plaintiff conceded that he is not pursuing any claims against the former director in his
individual capacity. Pl.’s Opp’n l n.l [Dkt. #24]. Accordingly, I will analyze the
grounds for dismissal outlined in the federal defendants’ motion only. As the federal
defendants point out, plaintiff did not properly serve this suit on the United States.
Accordingly, the Court does not have personal jurisdiction over any of the defendants
Nevertheless, defendants ask me to dispose of this matter once and for all, arguing that
even if they were properly within my jurisdiction, plaintiff still could not bring this suit
because his causes of action are time-barred. lt is for these reasons, which I explain
more fully below, that the defendants’ motions to dismiss are GRANTED and the suit is
DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND

Plaintiff claims that as a result of his work with the CIA, he suffered from PTSD
beginning as early as 2001. FAC M ll-12. He alleges that it was medical malpractice
that CIA medical personnel failed to diagnose his PTSD during several medical exams
conducted during his time at the agency. Ia'. ‘M l3, 36-38. According to plaintiff, the
untreated PTSD caused him to engage in behaviors that resulted in his termination from
the CIA in 2009 and, later, to criminal charges. Ia’. ‘W ll, 18.

At the beginning of 2009, the news media reported that plaintiff Warren had
sexually assaulted two women while overseas as a CIA agent. See Fed. Defs.’ MTD 5-7

(citing sources of which the Court takes judicial notice). The report identified Warren

by name. Id. Shortly thereafter, on February 6, 2009, Leon Panetta testified at a
confirmation hearing before the Senate Intelligence Committee, where two senators
asked Panetta questions about the news report. Ia’. They inquired as to the
repercussions of the story being reported in the press and asked how he would handle
sharing information about such allegations if they were reported to him as the director of
the CIA. Id.

Plaintiff was indicted on one count of sexual abuse in June 2009. See Fed. Defs.’
MTD 8, n.6 (citing United States v. Warren, No. 09-cr-158 (D.D.C. filed June 18, 2009),
ECF No. l). After more than a year of criminal proceedings, Warren ultimately pleaded
guilty to a superseding information charging him with abusive sexual contact and
possession of a firearm by an unlawful user of a controlled substance in June 2010. Id.
(citing ECF No. 62, ECF No. 63). He was sentenced in March 201 l. Id. (citing Minute
Order of Mar. 3, 2011); FAC 11 18. At some time prior to being sentenced, Warren
submitted a psychiatrist’s report to that court explaining that he had been suffering from
untreated PTSD since 2001. FAC 11 l2. Plaintiff was released from incarceration for
those crimes in January 2015. Pl.’s Opp’n 4.l

Plaintiff Warren notified the CIA of his claims in March 2015, FAC 11 21, about
two months after being released from prison, about four years after being sentenced in the

criminal proceeding, and more than six years after defendant Panetta’s confirmation

 

l Plaintiff failed to plead in his complaint the dates of his incarceration, but defendants do not challenge
either the basis of plaintiffs representation or its accuracy. See Fed. Defs.’ Reply 3-5 [Dkt. #25].

3

hearing testimony. He filed this lawsuit against the CIA and Panetta in September 2015,
Compl. [Dkt #l], but he eventually amended the complaint to join the United States as a
defendant and to specify that each count is “against the United States,” FAC 5-7.
Plaintiff alleges in Count l that Panetta’s remarks before the Senate Intelligence
Committee violate the national security laws and therefore make the United States liable
to him under the F ederal Torts Claim Act (“FTCA”). FAC 5-6. In Count 2, he makes
the same FTCA claim on the alternate theory that Panetta’s remarks violate the common
law tort of invasion of privacy. FAC 6. There is no Count 3 in plaintiffs amended
complaint. In Count 4, plaintiff claims the United States is liable under the FTCA for
the CIA failing to diagnose and treat his PTSD. FAC 7.

ANALYSIS

I. The Complaint Should Be Dismissed Because Plaintiff Failed t0 Properly
Serve Defendants.

Attempting to interpret plaintiffs intentions faithfully, it seems that his amended
complaint pursues claims against the United States only. See FAC 5-7. But even if he
intended to pursue claims against the CIA and former-Director Panetta in his official
capacity, service on the United States would be required. See Fed. R. Civ. P. 4(i)(2)
(even to sue an “agency” or “employee” of the United States, the plaintiff must serve the
United States in addition to the named defendant). Either way, this Court is required to

dismiss the case for lack of personal jurisdiction over the defendants if plaintiff did not

properly serve the United States. See Omm' Capz'tal Int'l, Ltd. v. Raa’olf Woljj‘"& Co., 484
U.S. 97, 104 (1987) (proper service is necessary to establish personal jurisdiction).

The requirements for serving the United States are given in Federal Rule of Civil
Procedure 4(i)(l): a plaintiff must send the complaint and summons to both the U.S.
Attorney of the district where the action is maintained and the Attorney General of the
United States. Plaintiff responds to defendants’ argument that he has not sent the
complaint and summons to the Attorney General by citing to an irrelevant provision of
the federal mles_Rule lS(c)~_that governs the timing of adding the federal government
as a party. See Pl.’s Opp’n 3. Plaintiff therefore concedes that he never sent the
Complaint, the First Amended Complaint, or a summons to the Attorney General of the
United States. Ia'. Accordingly, the suit must be dismissed for lack of jurisdiction.

II. The Complaint Is Dismissed with Prejudice Because Plaintiff’s Claims
Have Expired.

Even where service is improper and the court does not have personal jurisdiction

over the defendants, the law of this Circuit is that allowing a plaintiff to properly serve

another suit containing the same meritless claims would be inconsistent with the district

court's duties. See Simpkins v. D.C. Gov’t, 108 F.3d 366, 369-70 (D.C. Cir. 1997); see
also Ana’erson v. Gates, 20 F. Supp. 3d 114, 123 (D.D.C. 2013), affd sub nom. Ana’erson
v. Carter, 802 F.3d 4 (D.C. Cir. 2015). It is therefore proper to reach the question

whether this suit should be dismissed with prejudice because it is untimely.

The parties agree that a two-year statute of limitations applies to all three of
plaintiffs claims. See 28 U.S.C. § 2401(b); Fed. Defs.’ MTD 9; Pl.’s Opp’n 4.
Defendants argue that plaintiffs claims based on Panetta’s testimony accrued when he
gave that testimony in February 2009 and that the claim based on plaintiffs undiagnosed
PTSD accrued at the latest in March 2011, by which time plaintiff had indicated
awareness of his undiagnosed PTSD in his criminal proceeding Fed. Defs.’ MTD 9-11.
The claims are untimely, according to defendants, because plaintiff did not notify the
CIA of the claims until at least four years later, in March 2015. Plaintiff takes issue with
the dates of accrual. Apparently on the theory that he was not really injured by the
alleged events until he was charged with a superseding information and detained in June
2010, plaintiff contends that his claims would have accrued in June 2010 except for the
fact that he was incarcerated from that time until January 2015. Pl.’s Opp’n 4-5.
Plaintiff cites to D.C. Code § 12-3 02(a)(3) for the proposition that when a cause of action
accrues for a person while he is imprisoned, the statute of limitations shall not begin to
run until that “disability is removed.” Ia’. (citing D.C. Code § 12-302(a)).

Even accepting plaintiffs revisionist theory that his Only injury was being indicted
and detained in June 2010, he is mistaken that his claims could have survived until he
was released from prison in 2015. The tolling provision in the D.C. Code simply does
not apply to claims brought pursuant to the FTCA. Wallace v. Kalo, 549 U.S. 384, 388

(2007) (“The accrual date of a [federal] cause of action is a question of federal law that is

not resolved by reference to state law.”); e,g. Thomas v. U.S. Parole Comm’n, No. 03-
5289, 2004 WL 75 8966, at *1 (D.C. Cir. Apr. 7, 2004) (declining to apply D.C. Code
§ 12-302(a)(3) to toll prisoner’s statute of limitations under the FTCA, referencing Sexton
v. United States, 832 F.2d 629, 633 n.4 (D.C. Cir. 1987), for the proposition that the
FTCA’s statute of limitations must be interpreted “solely by reference to federal law”).
Hence, the clock was running on plaintiffs claims while he was in prison and, under any
of the parties’ proposed dates of accrual, the claims expired before he was released.
CONCLUSION

For the foregoing reasons, defendants’ motions to dismiss are hereby GRANTED

and this case is DISMISSED WITH PREJUDICE. An order consistent with this

decision accompanies this Memorandum Opinion.

 

