Gore v. Wilkie ( 2020 )

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
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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
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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
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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
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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”).
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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
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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
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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
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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.
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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
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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
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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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