                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 CAMERON GORE, et al.,

                Plaintiffs,

        v.
                                                          Civil Action No. 19-cv-1134 (RDM)
 ROBERT WILKIE, Secretary of the U.S.
 Dep’t of Veterans Affairs, et al.,

                Defendants.


                                 MEMORANDUM OPINION

       Plaintiff Cameron Gore worked as an attorney in the Office of the General Counsel at the

Department of Veterans Affairs (“VA”) for nearly twenty years before he resigned in May 2018.

Dkt. 8 at 4, 13 (Am. Compl. ¶¶ 9, 22(EE)). He alleges that he resigned (1) because two of his

colleagues, Robert Fleck and Kristina Wiercinski—a married couple who were investigated for

misconduct related to Wiercinski’s hiring by the office—lied to investigators about when Gore

called Wiercinski to offer her a job at the VA; (2) because the VA failed to terminate Fleck for

his misconduct and for lying to the investigators and failed take any other meaningful

disciplinary action; and (3) because it became intolerable for Gore to continue working alongside

Fleck and Wiercinski in light of these events and to continue working for an agency that failed to

take his allegations or the misconduct at issue seriously. See Dkt. 8 at 10–15 (Am. Compl. ¶ 22).

Gore further alleges that the offending conduct continued after he left the VA, when Fleck sued

the VA and continued to make the same false statements in his complaint about Gore’s actions,

and the VA took no steps to correct those allegedly false allegations. Id. at 13–14 (Am. Compl.

¶¶ 22(FF)–(MM)). According to Gore, Fleck and Wiercinski acted in the course of their
employment at the VA, and senior VA officials (most notably the General Counsel) also engaged

in related acts of misconduct in the course of their employment. See id. at 15 (Am. Compl. ¶

22(OO)) (quoting a letter from VA disputing Gore’s contention that VA employees acted within

the scope of their employment). Based on the narrative set forth in his 112-page amended

complaint, Gore contends that he is entitled to recover from the VA under the Federal Tort

Claims Act, 28 U.S.C. § 1346, for intentional and negligent infliction of emotional distress and

constructive discharge. Id. at 62–84 (Am. Compl. ¶¶ 88–107). Gore’s spouse, Plaintiff Heather

Woods, brings a separate claim for loss of consortium arising out of this same alleged

misconduct. Id. at 84–85 (Am. Compl. ¶ 108). Defendants move to dismiss all of Plaintiffs’

claims for lack of subject-matter jurisdiction or, in the alternative, for failure to state claims upon

which relief can be granted. See Dkt. 19.

         For the following reasons, the Court will GRANT Defendants’ motion to dismiss.

                                        I. BACKGROUND

A.       Factual Background

         The following allegations from Plaintiffs’ complaint are taken as true for purposes of

Defendants’ motion to dismiss. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011).

         Gore worked as an attorney in the VA’s Office of General Counsel (“OGC”) from

January 1999 until May 4, 2018, when he resigned from his job as Chief Counsel for the OGC’s

Real Property Law Group. Dkt. 8 at 4, 13 (Am. Compl. ¶¶ 9, 22(EE)). His complaint centers on

the VA’s investigation of Robert Fleck—a coworker of Gore’s—and Fleck’s actions related to

the OGC’s hiring of Fleck’s wife, Kristina Wiercinski, as an e-discovery attorney who would




                                                   2
provide support to both Gore and Fleck’s groups within the OGC. See Dkt. 8 at 5, 8–9 (Am.

Compl. ¶¶ 10–11, 18–19).

       In June 2016, the VA’s Deputy General Counsel, Richard Hipolit, asked Fleck for

Wiercinski’s resume in connection with hiring new attorneys in the OGC, and Fleck provided

him the resume. Id. at 10 (Am. Compl. ¶ 22(A)–(B)). In early August 2016, Gore, Fleck and

others within the OGC conferred and decided that, instead of hiring a general staff attorney to fill

a vacancy within Gore’s group, the office should hire an e-discovery attorney. See id. (Am.

Compl. ¶ 22(C)). On August 12, 2016, the OGC posted the vacancy on an internal webpage and

indicated that any applications from non-VA employees should be sent directly to Gore for

evaluation. Id. (Am. Compl. ¶ 22(E)). On August 16, 2016, two OGC employees applied for the

position. Id. (Am. Compl. ¶ 22(F)). On August 18, 2016, Wiercinski sent Gore her application

by email. Id. (Am. Compl. ¶ 22(G)).

       On September 30, 2016, Fleck emailed Wiercinski certain “[c]onfidential VA

[i]nformation” from his work computer to her personal computer. Id. at 11 (Am. Compl.

¶ 22(I)). On October 4, 2016, a panel of OGC attorneys interviewed all three candidates for the

vacancy and recommended Wiercinski to Gore “as the only candidate to be considered for the

position.” Id. (Am. Compl. ¶ 22(J)). That same day, Gore requested and received “clearance”

from human resources to contact Wiercinski and to inform her that she has been “selected” for

the position. Id. (Am. Compl. ¶ 22(K)–(L)).

       Following the VA’s decision to hire Wiercinski, the VA’s Office of Inspector General

(“OIG”) investigated whether Fleck improperly played a role in the agency’s decision to hire his

wife. Id. at 8 (Am. Compl. ¶ 18). Gore alleges that both Wiercinski and Fleck “lied repeatedly”

“under oath” in the course of that investigation and, in particular, that they “falsely alleg[ed] that



                                                  3
Gore telephoned Wiercinski in mid-Sept[ember] 2016[] and offered her the e-discovery

position,” id. at 9 (Am. Compl. ¶ 19)—that is, before Fleck allegedly sent Wiercinski any

confidential VA information. Gore vehemently disputes that he called Wiercinski before the

panel interviewed the applicants and recommended that the VA hire Wiercinski. See, e.g., id. at

9, 10 (Am. Compl. ¶¶ 19, 22(H)). To do so, Gore explains, would have been “prior to and

outside of the well-established . . . processes, procedures [and] protocols” of the VA. Id. at 9

(Am. Comp. ¶ 19). Gore further alleges that, as a result of Fleck and Wiercinski’s false

testimony, he “bec[ame] a ‘subject of the investigation.’” Id. at 12 (Am. Compl. ¶ 22(S)). On

March 29, 2018, the OIG issued its report which found, among other things, that “Fleck [and]

Wiercinski lied repeatedly about Gore while testifying under oath to multiple OIG investigators.”

Id. at 12 (Am. Compl. ¶ 22(W)). The report also allegedly recommended that Fleck be

terminated. See id. at 12 (Am. Compl. ¶ 22(V), (Z)).

       In April 2018, after issuance of the report, Gore continued to follow up with leadership in

the OGC about the “accountability process regarding the OIG report.” Id. at 12 (Am. Compl.

¶ 22(X)—(Y)). He was, however, “rebuffed.” Id. at 12 (Am. Compl. ¶ 22(X)). Gore also

expressed “safety concerns about having to continue [to] work[] with . . . Fleck [and]

Wiercinski,” id. at 13 (Am. Compl. ¶ 22(AA)), after Fleck was not fired, notwithstanding the

OIG report’s recommendation, id. at 12–13 (Am. Compl. ¶ 22(Z)). Gore ultimately took a leave

of absence from April 23, 2018 to May 4, 2018, after which he resigned his position. Id. at 13

(Am. Compl. ¶ 22(DD)–(EE))

       After Gore resigned, Fleck filed a lawsuit in this Court against the VA under the Privacy

Act, alleging that the OIG report contained false information and asserting that Gore called

Wiercinski in mid-September 2016. Id. (Am. Compl. ¶ 22(FF)); see also Fleck v. Dep’t of



                                                 4
Veterans Affairs Office of the Inspector Gen., No. 18-cv-1452 (D.D.C. filed Jun. 20, 2018). The

VA moved to dismiss the suit and, Gore alleges, the attorneys at the Department of Justice

representing the VA failed to advise this Court that the agency had already “reviewed and

concurred with the [OIG’s] finding” that Gore did not call Wiercinski to offer her the job in mid-

September 2016. Dkt. 8 at 12 (Am. Compl. ¶ 22(LL)); see also Fleck v. Dep’t of Veterans

Affairs, Office of the Inspector General, 2020 WL 42842 (D.D.C. Jan. 3, 2020).

B.     Procedural Background

       On April 19, 2019, Gore filed this suit against Secretary Wilkie and the Department of

Veterans Affairs for intentional infliction of emotional distress (Count I), Dkt. 8 at 62–80 (Am.

Compl. ¶¶ 88–102); negligent infliction of emotional distress (Count II), id. at 80–82 (Am.

Compl. ¶¶ 103–04); and constructive termination (Count III), id. at 82–84 (Am. Compl. ¶¶ 105–

07). His spouse, Heather Woods, joins the action and seeks to recover on a theory of loss of

consortium (Count IV). Id. at 84–85 (Am. Compl. ¶ 108).

                                    II. LEGAL STANDARD

       “A motion to dismiss under Rule 12(b)(1) challenges the court’s jurisdiction to hear a

claim and may raise a ‘facial’ or a ‘factual’ challenge to the court’s jurisdiction.” Lemma v.

Hispanic Bar Ass’n, No. 17-2551, 2019 WL 4043983, at *2 (D.D.C. Aug. 27, 2019). A facial

challenge asks whether the plaintiff has alleged facts sufficient to establish the court’s

jurisdiction, while a factual challenge asks whether “the complaint [as] supplemented by

undisputed facts evidenced in the record, or the complaint [as] supplemented by undisputed facts

plus the court’s resolution of disputed facts” establish that the court has jurisdiction. Herbert v.

Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). The plaintiff bears the burden of




                                                  5
establishing that the Court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife, 504

U.S. 555, 561 (1992).

       A motion to dismiss for failure to state a claim under Rule 12(b)(6), in contrast, “tests the

legal sufficiency of the allegations contained in the complaint.” Betesfa v. United States, 410 F.

Supp. 3d 132, 137 (D.D.C. 2019). A complaint must contain “‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (ellipsis in original).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to

dismiss, a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of

the elements of a cause of action.” Id. Instead, the complaint’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. (citations and footnote

omitted).

                                          III. ANALYSIS

A.     Plaintiffs’ Claims Under the APA

       As an initial matter, Gore and the VA dispute what claims Gore has brought. According

to the VA, Gore brings only claims for damages under the FTCA. See Dkt. 19 at 14. Gore, in

contrast, argues that his complaint should be read to assert both a claim under the Administrative

Procedure Act, 5 U.S.C. § 701, et seq., and a series of FTCA claims. See Dkt. 20 at 16–17, 27.

       The complaint is not, by any measure, a paragon of clarity. Indeed, had the VA moved to

dismiss under Federal Rule of Civil Procedure 8, it might well have prevailed on that ground

alone. Fed. R. Civ. P. 8 (requiring pleadings to contain “a short a plain statement of the claim”).



                                                  6
The VA is also correct that the section of complaint entitled “Causes of Action” refers only to

“claims under the FTCA based on intentional infliction of emotional distress (denominated as

‘Count I’), negligent infliction of emotional distress (denominated as ‘Count II’), constructive

termination (denominated as ‘Count III’), and loss of consortium (denominated as ‘Count IV’).”

Dkt. 22 at 8 (citing Dkt. 8 at 62–85 (Am. Compl. ¶¶ 88–108)). Three paragraphs of the 130-

paragraph complaint, however, do refer to the APA, as does Gore’s prayer for relief—at least in

passing. Dkt. 8 at 2, 29, 34, 109 (Am. Compl. ¶¶ 2, 50, 54). For present purposes, however, the

Court need not decide whether Gore has, in fact, pled an APA claim. Rather, because the Court

agrees with the VA that, even if an APA claim can be found lurking in the complaint, Gore lacks

standing to pursue such a claim, Dkt. 22 at 7–9, the Court can turn directly to that question.

         The APA permits “[a] person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant statute” to

seek judicial review of that action in the federal courts. 5 U.S.C. § 702. A reviewing court may

“compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(a), or may “hold

unlawful and set aside agency action” if it is, inter alia, “in excess of [the agency’s] statutory

. . . authority,” id. § 706(2)(C). The APA, however, provides a vehicle for such judicial review

of an agency action only where “there is no other adequate remedy in a court.” Id. § 704.

       Gore characterizes his APA claim as arising from his supervisors’ alleged failure to

comply with Department of Veterans Affairs Accountability and Whistleblower Protection Act

of 2017 (“Accountability Act”), Pub. L. No. 115-41, 131 Stat. 862, codified at 38 U.S.C. § 713 et

seq., by declining adequately to discipline Fleck for his alleged misconduct, including his false

testimony regarding Gore’s actions. Dkt. 20 at 16. Gore asserts that by harboring Fleck




                                                  7
Defendants created an untenable work situation for Gore, as he had offered testimony to

investigators that directly controverted Fleck’s testimony. Dkt. 20 at 16–25.

       According to the VA, this claim fails for three reasons. First, the VA questions both

whether Gore is an “aggrieved person” within the meaning of the APA such that he may invoke

that statute to enforce the Accountability Act and whether he has Article III standing to pursue

such a claim. See Dkt. 22 at 8–9. Second, the agency contends that Gore’s supervisors did not

violate the Accountability Act because their discipline of Fleck fell within the discretion granted

to them under that Act, and this Court may not review that exercise of discretion. Id. at 10–11.

Finally, it argues that the APA does not provide a vehicle for review of these claims because a

separate statute, the Civil Service Reform Act, 5 U.S.C. § 1101, et seq., provides the exclusive

mechanism for review of claims like Gore’s and therefore offers an “adequate remedy.” Id. at 9–

10. Because the Court agrees with the VA’s first contention—that Gore has failed to allege facts

sufficient to sustain his Article III standing to sue under the APA of the Accountability Act—it

need not reach the VA’s remaining arguments.

       “Article III of the Constitution limits the jurisdiction of federal courts to ‘actual cases or

controversies between proper litigants.’” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir.

2014) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996) (en banc)).

The “plaintiff bears the burden of ... establishing the elements of standing,” and each element

“must be supported in the same way as any other matter on which the plaintiff bears the burden

of proof, i.e., with the manner and degree of evidence required at the successive stages of the

litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal quotation marks

omitted) (second quote quoting Lujan, 504 U.S. at 561). As a result, “[t]o survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim [of



                                                  8
standing] that is plausible on its face.” Id. (alterations in original) (internal quotation marks

omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

        Establishing standing requires a showing of three elements—injury in fact, causation, and

redressability—which together constitute the “irreducible constitutional minimum of standing.”

Lujan, 504 U.S. at 560. On a motion to dismiss, “the plaintiff must sufficiently allege a

‘concrete and particularized’ injury that is ‘fairly traceable to the challenged action of the

defendant’ and ‘likely’ to be ‘redressed by a favorable decision.’” West v. Lynch, 845 F.3d 1228,

1230 (D.C. Cir. 2017) (quoting Lujan, 504 U.S. at 560–61). The first element, injury in fact,

requires that a plaintiff show an “invasion of a legally protected interest which is . . . actual or

imminent, not conjectural or hypothetical.” Arpaio, 797 F.3d at 19 (quoting Lujan, 504 U.S. at

560). The second element, causation, demands a “causal connection between the injury and the

conduct complained of” that is attributable to the defendant, “and not the result of the

independent action of some third party not before the court.” Id. (quoting Lujan, 504 U.S. at

561). The final element, redressability, requires that the injury be remediable “by a favorable

decision.” Id. (quoting Lujan, 504 U.S. at 560–61).

        Although Gore’s APA claim is difficult to decipher and faces numerous jurisdictional and

substantive hurdles, its most evident flaw is that Gore has failed to identify any redressable

injury that he suffered as a result of the VA’s alleged violation of the Accountability Act. Gore

does not allege that the VA took any action against him under the Accountability Act; rather, he

alleges that the agency violated the act by failing to impose sufficiently severe discipline on

Fleck. His theory is apparently that by failing to terminate or more severely discipline Fleck, the

agency made his working environment intolerable and forced him to resign. But even if that




                                                   9
causal chain withstood scrutiny—and the Court doubts that it does—Gore has failed to explain

how a Court order would redress any causally-related injury he suffered.

       The APA contains a limited waiver of sovereign immunity that applies only to claims

against the United States “seeking relief other than money damages,” 5 U.S.C. § 702.

Accordingly, any APA injury alleged by Gore cannot be remedied by a damage award.

Moreover, even though back pay is treated as an equitable remedy in some contexts, the APA’s

waiver of sovereign immunity does not reach claims for back pay. See Hubbard v. EPA, 982

F.2d 531, 532 (D.C. Cir. 1992) (en banc); McKoy v. Spencer, 271 F. Supp. 3d 25, 33 (D.D.C.

2017). Nor is there any basis to conclude that Gore might seek reinstatement at some time or

that, if reinstated, he would continue to experience an intolerable work environment based on the

VA’s failure to subject to Fleck to more severe discipline or to require that he undergo additional

training. See Tolton v. Jones Day, No. 19-945, 2020 WL 2542129, at *37–38 (D.D.C. May 19,

2020) (explaining that a plaintiff seeking reinstatement might have standing to seek injunctive

relief redressing discriminatory employment practices at their former employer). Finally, a court

order declaring that the “warning letters that Byrne issued to Fleck” or “the corresponding

requirement that Fleck take additional training violated the APA” or the Accountability Act, Dkt.

8 at 109 (Prayer for Relief), would not redress any cognizable injury that Gore allegedly

suffered.

       In sum, the complaint fails to identify any nonmonetary form of relief that would remedy

an actual or imminent injury that Gore allegedly suffered due to the agency’s alleged failure to

enforce the Accountability Act. Id. at 109–11 (Prayer for Relief). The Court, accordingly, lacks

Article III jurisdiction to consider Gore’s APA claim.




                                                10
B.     Plaintiffs’ FTCA Claims

       1.      Constructive Discharge

       The VA moves to dismiss Gore’s constructive discharge claim on the ground that no such

claim is cognizable under D.C. law, and therefore he cannot pursue such a claim against the VA

under the FTCA. See Dkt. 19 at 19. The Court agrees. “The liability of the United States for

FTCA claims is determined by the law of the place of the tort,” Totten v. Norton, 421 F. Supp. 2d

115, 123 n.5 (D.D.C. 2006), which, here, is the District of Columbia, see Dkt. 8 at 3 (Am.

Compl. ¶ 4). Constructive discharge is not itself a cause of action but, instead, serves only to

permit liability where an employee’s firing would otherwise be actionable. See Bean v. District

of Columbia, 264 F. Supp. 3d 242, 259 (D.D.C. 2017). The general rule under D.C. law is that

“an employer may discharge an at-will employee at any time and for any reason, or for no reason

at all.” Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991). There is, however, a

narrow exception to that general rule, giving rise to liability for wrongful termination where an

employer “retaliate[s] against an employee by discharging that employee for refusing to break

the law.” Id. at 32 (citing W. Prosser & W. Keeton, The Law of Torts § 130, at 1027–28 (5th ed.

1984)). Gore contends that the VA is liable for his constructive discharge because the agency

violated the Accountability Act by failing adequately to discipline Fleck. See Dkt. 20 at 24–25.

He does not, however, allege that his employer asked him to break the law under penalty of

termination, nor does he allege that the agency’s purported violation of the Accountability Act is

itself actionable (aside for his flawed APA theory, discussed above).

       Gore, accordingly, fails to state a claim under the FTCA relating to his alleged

constructive termination.




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       2.      Gore’s Remaining FTCA Claims

       The VA moves to dismiss Gore’s remaining FTCA claims for lack of subject-matter

jurisdiction. Dkt. 19 at 14. The FTCA waives the sovereign immunity of the United States and

“grants federal district courts jurisdiction over claims arising from certain torts committed by

federal employees in the scope of their employment.” Sloan v. U.S. Dep’t of Housing & Urban

Dev., 236 F.3d 756, 759 (D.C. Cir. 2001) (citing 28 U.S.C. §§ 1346(b), 2674). Among other

exceptions, however, the waiver of sovereign immunity does not extend to “[a]ny claim arising

out of . . . libel, slander, misrepresentation, [or] deceit.” 28 U.S.C. § 2680(h). The VA contends

that because Gore’s remaining FTCA claims “arise from alleged false statements, they cannot be

pursued under the FTCA.” Dkt. 19 at 14–15. The Court agrees.

       According to Gore, Fleck and Wiercinski’s acts that give rise to his claims for intentional

and negligent infliction of emotional distress are “are markedly distinct from [claims for]

misrepresentation, libel, or slander.” Dkt. 20 at 39. The difference, in Gore’s view, is that the

conduct that he challenges here put him “at risk for perjury or making false statements (when

Gore testified to the OIG), criminal liability, prison time, and monetary fines.” Id. But, even

accepting Gore’s contention that he suffered emotional distress—including worries that the

inconsistencies between his (allegedly truthful) testimony and Fleck’s (allegedly false) testimony

might land him in legal hot water—his claims turn on the premise that Fleck knowingly made

false statements about Gore and that those falsehoods caused Gore injury. Id. at 39-40. The fact

that Gore does not use the labels “libel” or “slander” and, indeed, disavows those labels does not

alter the nature of his claims and does not avoid the broad exception to the FTCA for claims

“arising out of . . . libel, slander, misrepresentation [or] deceit.” 28 U.S.C. § 2690(h). Notably,

the exception is not limited to claims for “libel, slander, misrepresentation [or] deceit;” it applies



                                                  12
to all claims that “aris[e] out of” such actions. Id. What matters is not “how [a claim is]

described by a plaintiff” but whether the claim is “based on dissemination of defamatory

information.” Edmonds v. United States, 436 F. Supp. 2d 28, 35 (D.D.C. 2006) (citing Kugel v.

United States, 947 F.2d 1504, 1506–07 (D.C. Cir. 1991)). The Court, accordingly, “must

scrutinize the alleged cause of [plaintiff’s] injur[ies]” to determine whether the alleged injury

was caused by allegedly defamatory statements. Upshaw v. United States, 669 F. Supp. 2d 32,

44–45 (D.D.C. 2009) (quoting Kugel, 946 F.3d at 1507).

       In describing his claims for intentional and negligent infliction of emotional distress,

Gore repeatedly focuses on Fleck and Wiercinski’s allegedly false statement about Gore, both to

OIG investigators and in Fleck’s lawsuit against the VA. See, e.g., Dkt. 8 at 62 (Am. Compl.

¶ 88) (explaining that Fleck and Wiercinski engaged in “civil conspiracy, by fraudulently and

recklessly lying repeatedly to multiple OIG investigators”); id. at 63 (Am. Compl. ¶90)

(explaining that Fleck “attempted to further their civil conspiracy, by intentionally . . . repeating

. . . false allegations about Gore” in the civil case Fleck brought against the VA); id. at 75 (Am.

Compl. ¶ 97) (explaining that “VA and OGC leadership failed to sufficiently engage and check

with . . . MPA and HR . . . who could have readily confirmed . . . that Gore did not . . . hire

Wiercinski” in mid-September 2016, as Fleck and Wiercinski had claimed); id. at 80–81 (Am.

Compl. ¶ 103–04). The Court thus concludes that these claims “aris[e] out of” Fleck and

Wiercinski’s alleged “misrepresentation[s]” and slanderous statements and are, therefore, barred

by the libel/slander exception to the FTCA, 28 U.S.C. § 2680(h).

       3.      Woods’s Loss of Consortium Claim

       Finally, Gore’s spouse, Heather Woods, brings a claim for loss of consortium under the

FTCA. Dkt. 8 at 84–85 (Am. Compl. ¶ 108). As with Gore’s claims for intentional and



                                                  13
negligent infliction of emotional distress, this claim “aris[es] out of” Fleck’s alleged

“misrepresentation[s]” about Gore’s actions and is, therefore, also barred by the libel/slander

exception to the FTCA. 28 U.S.C. § 2680(h). The complaint alleges that “Fleck’s acts of

making repeated false allegations about Gore to this Court . . . —after Gore was no longer

employed at VA . . . —coupled with the [VA’s] acts and omissions, including a failure to prevent

Fleck from doing so, and subsequently setting the record straight” caused Gore and Woods to

suffer “severe emotional distress.” Dkt. 8 at 84 (Am. Compl. ¶ 108). Because this claim, like

Gore’s claims for intentional and negligent infliction of emotional distress, arises out of Fleck’s

alleged false statements, it must also be dismissed.1

                                          CONCLUSION

       For the foregoing reasons, the Court will GRANT Defendants’ motion to dismiss, Dkt.

19.

       A separate order will issue.



                                                        /s/ Randolph D. Moss
                                                        RANDOLPH D. MOSS
                                                        United States District Judge
Date: May 31, 2020




1
  To the extent Woods means to bring a loss of consortium claim under the APA, such claim is
barred because the APA does not waive sovereign immunity for claims, like her loss of
consortium claim, that seek money damages. See 5 U.S.C. § 702.

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