                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




 JAMES CHELMOWSKI,

         Plaintiff,
            v.                                             Civil Action No. 17-1394 (JEB)


 UNITED STATES OF AMERICA,

         Defendant.




                          MEMORANDUM OPINION AND ORDER

       After prior unsuccessful efforts to set forth his causes of action, pro se Plaintiff James

Chelmowski again moves to file a Second Amended Complaint, which contains a farrago of

claims against the Government under, inter alia, the Federal Tort Claims Act, the Freedom of

Information Act, and the Privacy Act. The Government opposes in fairly cursory fashion,

believing that such an effort is futile inasmuch as no claim could survive a motion to dismiss.

Construing his proposed pleading generously, the Court finds that certain claims may proceed

and will thus grant his Motion in part.

I.     Background

       After filing an initial Complaint asserting FTCA claims, see ECF No. 1, Plaintiff

amended two months later, filing a pleading that invoked the Privacy Act, FOIA, and the FTCA

and contained over 300 pages of exhibits. See ECF No. 6. The Government responded with a

motion to dismiss, see ECF No. 12, leading Chelmowski to seek leave to file a Second Amended

Complaint. See ECF Nos. 15, 18. Because that proposed pleading numbered 95 pages and
failed to clearly set out his claims, the Court ordered that he file a renewed motion for leave to

file a second amended complaint and required that such complaint not exceed 30 pages and

separately enumerate each cause of action. See ECF No. 24 (Order). Chelmowski has now

complied with the page limitations, although his newest proposed Second Amended Complaint

still contains a lengthy and superfluous legal analysis with case citations and never separately

sets out each claim. See ECF No. 27-1 (Proposed SAC).

          As best the Court can discern, he seeks documents from several federal agencies under

both FOIA and the Privacy Act, the retraction of certain personal identifying information about

him that the Government has published, and damages under the FTCA. The Government now

opposes the Motion, principally arguing that amendment would be futile. See ECF No. 29

(Opp.).

II.       Legal Standard

          A plaintiff may amend his complaint once as a matter of course within 21 days of serving

it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1).

Otherwise, he must seek consent from the defendant or leave from the Court. The latter “should

[be] freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether

to grant leave to file an amended complaint, courts may consider “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this

Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the



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non-movant generally carries the burden in persuading the court to deny leave to amend.”

Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).

       It is clear, however, that amendment should not be permitted if it would be futile. In

other words, if the new causes of action would still be deficient notwithstanding the proposed

amendment, courts need not grant leave. See In re Interbank Funding Corp. Securities

Litigation, 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion to

amend if the amended pleading would not survive a motion to dismiss.”) (citing Foman, 371

U.S. at 182, for proposition that “‘futility of amendment’ is permissible justification for denying

Rule 15(a) motion”); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)

(“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not

survive a motion to dismiss.”) (citations omitted).

III.   Analysis

       In opposing amendment here, the Government first contends that Plaintiff’s latest

Complaint still does not satisfy Fed. R. Civ. P. 8(a)(2)’s requirement that such a pleading contain

“a short and plain statement of the claim.” Opp. at 4. While the proposed Second Amended

Complaint is hardly a paragon of pleading clarity, the Court will not reject it on this basis.

       Defendant next maintains that any FTCA claim cannot proceed. The Court agrees.

Chelmowski’s failure to set out any particular facts underlying such proposed count would alone

doom it. To the extent he explains that it is somehow connected to fraudulent misrepresentation

or concealment, such claims are barred by sovereign immunity. See United States v. Neustadt,

366 U.S. 696, 701-02 (1961). And his allegations that FOIA non-disclosures are somehow

actionable under the FTCA are also non-starters.



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       The Government, however, offers no reason why Plaintiff’s separate claims under FOIA

and the Privacy Act cannot proceed. Chelmowski, for example, alleges that he has submitted

numerous FOIA requests to the Federal Communications Commission, the National Archives

and Records Administration, and the Environmental Protection Administration, and he lists the

request numbers. See Proposed SAC, ¶ 37. Similarly, he identifies Privacy Act requests

submitted to the same three agencies. Id., ¶ 43. Claims for withheld documents in those requests

may proceed. To the extent Plaintiff believes that the agencies have engaged in a policy of

withholding, id., ¶ 25, he has not adequately alleged such a claim. See Judicial Watch v. Dep’t

of Homeland Security, 895 F.3d 770, 774 (D.C. Cir. 2018). Finally, Plaintiff alleges that the

FCC has disclosed his personally protected information in violation of the Privacy Act. Id., ¶ 35.

As the Government does not address that either, the Court will permit it to go forward for the

time being.

IV.    Conclusion

       The Court, accordingly, ORDERS that:

       1. Plaintiff’s Motion for Leave to File is GRANTED IN PART and DENIED IN PART;

       2. His Second Amended Complaint is deemed FILED;

       3. He may proceed with his FOIA and Privacy Act claims only; and

       4. The Government shall file an Answer or a Motion to Dismiss as to those claims only

              by September 27, 2018.

       IT IS SO ORDERED.

                                                            /s/ James E. Boasberg
                                                            JAMES E. BOASBERG
                                                            United States District Judge
Date: September 13, 2018

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