                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


JEFFREY JONES,

               Plaintiff,
       v.                                           Civil Action No. 17-1496 (TJK)

UNITED STATES OF AMERICA,

               Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Jeffrey Jones, a United States Capitol Police (“USCP”) officer, has brought suit

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), against the United States for

alleged injuries he suffered when a retired officer allegedly approached him from behind and

grabbed him around the neck. Before the Court is Defendant’s motion to dismiss for lack of

subject matter jurisdiction, ECF No. 14 (“MTD”), and Jones’ motion to file a second amended

complaint to add his wife as an additional plaintiff, ECF No. 17 (“Mot. to Amend”). For the

reasons stated below, the Court will grant Defendant’s motion and deny Jones’ motion.

       Background

       Jones is a police officer assigned to the House Division of the USCP. ECF No. 13 (“Am.

Compl.”) ¶¶ 6, 14. According to his amended complaint, on November 30, 2015, retired USCP

officer Julian Mitchell was allowed to enter the House Division Operations Office. Id. ¶¶ 7, 15,

20-22. While there, Mitchell was unescorted, despite a requirement that civilians be escorted by

USCP personnel at all times. Id. ¶¶ 23-24. In addition, Mitchell “had a reputation for grabbing

other personnel by the back of the neck” of which USCP personnel were aware. Id. ¶ 37. After

visiting a number of his former coworkers, Mitchell entered an office where Jones was working

on a computer. Id. ¶¶ 24-25. At the time, Jones was “on duty, in uniform wearing his
bulletproof vest, gun belt and full complement of gear.” Id. ¶ 26. Mitchell approached Jones

from behind and, “suddenly and without notice, forcefully grabbed and squeezed the back of

[his] neck.” Id. ¶¶ 25, 27. Jones struggled to free himself of Mitchell’s grip, the force of which

was “severe.” Id. ¶¶ 27-31. When Jones broke free, he immediately felt a painful, burning

sensation in his neck. Id. ¶¶ 32-34.

       About a week later, on December 7, 2015, Jones experienced “significant pain, burning,

muscle spasms and numbness,” which prompted him to seek medical treatment. Id. ¶ 39. Two

of Jones’ doctors attributed his symptoms to “Mr. Mitchell’s forceful grabbing and squeezing of

Mr. Jones’ neck.” Id. ¶¶ 45-46, 56-57. Despite the treatment, Jones continued to suffer from

“persistent pain and muscle stiffness.” Id. ¶ 46. As a result, he incurred significant medical

expenses and was unable to work for all of 2016. Id. ¶¶ 60-61.

       On July 26, 2017, Jones filed the instant case, bringing claims against Defendant for

premises liability and negligence under the FTCA. ECF No. 1. On October 24, Jones moved to

file an amended complaint that (1) added a claim for intentional infliction of emotional distress

and (2) joined Meredith McMahon, his wife, as an additional plaintiff with respect to all three

tort claims levied against Defendant. ECF No. 10. The Court granted the motion, but sua sponte

dismissed McMahon’s claims for lack of subject matter jurisdiction because she had not satisfied

the FTCA’s exhaustion requirement. ECF No. 12. On February 7, 2018, Defendant moved to

dismiss the remaining claims in Jones’ amended complaint for lack of subject matter jurisdiction

on the ground they are precluded by the Federal Employees’ Compensation Act (“FECA”), 5

U.S.C. § 8101, et seq. See MTD; ECF No. 15 (“Opp.”); ECF No. 16. On May 15, 2018, Jones

filed a motion to file a second amended complaint, through which he again seeks to add




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McMahon as an additional plaintiff with respect to all three tort claims. See Mot. to Amend;

ECF No. 18; ECF No. 19.

       Motion to Dismiss

       A.      Legal Standard

       Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d

442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an

examination of our jurisdiction.”). The law presumes that “a cause lies outside [the Court’s]

limited jurisdiction” unless the party asserting jurisdiction establishes otherwise. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). On a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1), “plaintiffs bear the burden of establishing

jurisdiction.” Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). District courts

“may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction

under [Rule] 12(b)(1) on the complaint standing alone.” Herbert v. Nat’l Acad. of Scis., 974

F.2d 192, 197 (D.C. Cir. 1992). In such cases, courts must “accept[] as true all of the factual

allegations contained in the complaint.” KiSKA Constr. Corp. v. WMATA, 321 F.3d 1151,

1157-58 (D.C. Cir. 2003).

       B.      Analysis

       The Court agrees with Defendant that it lacks subject matter jurisdiction over Jones’

remaining claims, and will dismiss them.

       It is well established that “the United States may not be sued without its consent.”

Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025 (D.C. Cir. 2006) (quoting United States

v. Mitchell, 463 U.S. 206, 212 (1983)). Moreover, the federal government’s “‘[s]overeign

immunity is jurisdictional in nature,’ so a claim barred by sovereign immunity lacks subject

matter jurisdiction.” Edwards v. United States, 211 F. Supp. 3d 234, 236 (D.D.C. 2016) (quoting


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FDIC v. Meyer, 510 U.S. 471, 475 (1994)). “The federal government may waive its sovereign

immunity by statute, but that waiver ‘must be unequivocally expressed in statutory text.’”

Webman, 441 F.3d at 1025 (quoting Lane v. Peña, 518 U.S. 187, 192 (1996)). The FTCA “was

designed primarily to remove the sovereign immunity of the United States from suits in tort.”

Levin v. United States, 568 U.S. 503, 506 (2013) (quoting Richards v. United States, 369 U.S. 1,

6 (1962)). Thus, “[w]here a plaintiff seeks money damages for torts committed by federal

employees in the course of their employment, they must rely on the waiver of sovereign

immunity found in the [FTCA].” Davis v. United States, 973 F. Supp. 2d 23, 28 (D.D.C. 2014).

       FECA carves out certain suits by federal employees from the FTCA’s sovereign-

immunity waiver. It provides such employees with an administrative process for seeking

compensation for work-related injuries. In exchange, “‘federal employees are statutorily

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

employment,’ and thus they cannot rely on the FTCA to bring work-related tort claims.”

Johnson v. Mao, 174 F. Supp. 3d 500, 522 n.14 (D.D.C. 2016) (quoting Davis, 973 F. Supp. 2d

at 28). Indeed, this is made explicit in the text of FECA’s exclusivity provision, which states:

               The liability of the United States . . . under [FECA] . . . with
               respect to the injury or death of an employee is exclusive and
               instead of all other liability of the United States . . . to the
               employee, . . . [or] spouse. . . because of the injury or death[.]

5 U.S.C. § 8116(c). The Supreme Court has explained that this provision “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. v. United States, 460 U.S. 190, 193-94 (1983). “In enacting this provision, Congress

adopted the principal compromise—the ‘quid pro quo’—commonly found in workers’

compensation legislation: employees are guaranteed the right to receive immediate, fixed



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benefits, regardless of fault and without need for litigation, but in return they lose the right to sue

the Government.” Id. at 194.

        Here, Jones’ tort claims against the United States cannot be brought under the FTCA

because they are precluded by FECA. As a result, his claims are barred by the federal

government’s sovereign immunity and his case must be dismissed for lack of subject matter

jurisdiction.

        In his amended complaint, Jones makes clear that he sustained his alleged injuries during

the course of his employment with the USCP. On November 30, 2015, Mitchell allegedly

grabbed Jones’ neck while Jones was “on duty,” “in uniform,” wearing his “full complement of

gear,” and in the course of working at his place of work. Am. Compl. ¶ 26. A week after this

incident occurred, he began to experience “significant pain” while “on duty.” Id. ¶ 39. Finally,

Jones’ physician’s statement certified that he was “injured in performance of duty” on November

30, 2015. Id. ¶ 58; see also id. ¶ 46 (physician’s reports “indicated Mr. Jones had persistent pain

and muscle stiffness as a result of Mr. Mitchell’s forceful grabbing and squeezing of Mr. Jones’

neck”). Because Jones’ alleged injuries were “sustained during the course of [his] employment,”

he “cannot rely on the FTCA to bring [his] work-related tort claims.” Johnson, 174 F. Supp. 3d

at 522 n.14 (quoting Davis, 973 F. Supp. 2d at 28). Indeed, as Defendant points out, MTD at 5-

6, Jones appears to have already pursued compensation under FECA for the injuries at issue in

this case. Cf. Scott v. USPS, 258 F. App’x 333, 333 (D.C. Cir. 2007) (affirming lower court

holding that lawsuit was precluded where claims were “precisely the same as those for which

[the plaintiff] previously sought to recover” under FECA).

        In his opposition, Jones does not seem to contest that his premises-liability and

negligence claims are within FECA’s scope. However, he argues that his intentional infliction of




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emotional distress (“IIED”) claim does not fall “within the scope of FECA” because that claim is

not based on a type of injury covered by the statute. Opp. at 9. As a result, he argues, his IIED

claim is not precluded. Id. Although other circuits have addressed this issue, “the D.C. Circuit

has not yet determined whether FECA covers intentional infliction of emotional distress.”

Gilliard v. Gruenberg, No. 16-cv-2007, 2018 WL 1471949, at *19 n.9 (D.D.C. Mar. 26, 2018);

compare Bennett v. Barnett, 210 F.3d 272 (5th Cir. 2000) (holding FECA coverage exists for

emotional-distress claims), with Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990)

(“FECA compensates government employees only for physical harm.”). At least one court in

this District has held that IIED claims are covered by FECA (and are thus precluded here)

because the statute “does not seem to distinguish IIED [claims] from other intentional torts on its

face.” Davis, 973 F. Supp. 2d at 28 n.4.

       Unfortunately for Jones, under Circuit precedent, the uncertainty surrounding whether his

IIED claim falls within the scope of FECA works to his disadvantage. “In light of the lack of

binding authority,” and because there is “at least a ‘substantial question’ as to whether FECA

covers plaintiff’s [IIED] claim,” such a claim “is not properly before this Court unless and until

the Secretary of Labor determines that such a claim is not covered by FECA.” Kalil v. Johanns,

407 F. Supp. 2d 94, 100 (D.D.C. 2005) (citing Daniels-Lumley v. United States, 306 F.2d 769,

771 (D.C. Cir. 1962)); see also Wallace v. United States, 669 F.2d 947, 951 (4th Cir. 1982).

       For the reasons stated above, the Court concludes that Jones’ FTCA claims must be

dismissed because they are precluded by FECA’s exclusivity provision, and therefore this Court

lacks subject matter jurisdiction.

       Motion to Amend

       Under Federal Rule of Civil Procedure 15(a)(2), if a party may no longer amend his

pleading as of right, then he “may amend [his] pleading only with the opposing party’s written


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consent or the court’s leave,” and “[t]he court should freely give leave when justice so requires.”

However, “[c]ourts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.” Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016)

(second alteration in original) (quoting James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d

1085, 1099 (D.C. Cir. 1996)).

       Here, Jones seeks to file a second amended complaint adding his wife, McMahon, as an

additional party—presumably with respect to all three tort claims. See Mot. to Amend at 11;

ECF No. 17-4 (proposed second amended complaint). The Court finds that Jones’ motion must

be denied on futility grounds for lack of subject matter jurisdiction. Indeed, FECA’s exclusivity

provision precludes McMahon’s proposed FTCA claims based on her husband’s injuries. See 5

U.S.C. § 8116(c) (liability under FECA is “exclusive and instead of all other liability of the

United States . . . to the employee, [and] his . . . spouse . . .” (emphasis added)). McMahon’s

proposed claims all appear to stem from Jones’ injuries, and nothing in Jones’ filings suggests

otherwise. The Court finds that all three of McMahon’s proposed claims, including the IIED

claim, are precluded for reasons already discussed. Thus, the Court does not have subject matter

jurisdiction over them.

       Conclusion

       For all of the above reasons, Defendant’s motion to dismiss, ECF No. 14, will be granted

and Jones’ motion to file a second amended complaint, ECF No. 17, will be denied. This action

will be dismissed for lack of subject matter jurisdiction, in a separate order.


                                                              /s/ Timothy J. Kelly
                                                              TIMOTHY J. KELLY
                                                              United States District Judge

Date: June 27, 2018



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