UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NANCY NORTON, Plaintiff, v. Civil Action No. 20-0921 (CKK) UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION (March 18, 2021)

Plaintiff Nancy Norton brings this action against Defendant United States of America under

the Federal Tort Claims Act (“FTCA”), alleging that she suffered injuries when she tripped and

fell on the White House grounds. See Am. Compl., ECF No. 9, ¶¶ 2, 18–20. Pending before the

Court is Defendant’s [10] Motion to Dismiss. Defendant claims that this Court lacks jurisdiction

over Plaintiff’s claim because her exclusive remedy is through the Federal Employees’

Compensation Act (“FECA”), and not the FTCA. In the alternative, Defendant argues that even

if Plaintiff may obtain relief under the FTCA, this Court lacks subject matter jurisdiction because

Plaintiff failed to exhaust her administrative remedies prior to commencing this civil action. Upon

consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court

GRANTS Defendant’s Motion to Dismiss because it lacks subject matter jurisdiction over

Plaintiff’s claim. 1

1 This Court’s consideration has focused on the following documents: • Def.’s Mem. in Supp. of Mot. to Dismiss Am. Compl. (“Def.’s Mem.”), ECF No. 10-1; • Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 12; and • Def.’s Reply in Supp. of Mot. to Dismiss Am. Compl. (“Def.’s Reply”), ECF No. 13.

1 I. BACKGROUND

Plaintiff’s claim in this action stems from an injury she suffered during the White House

Easter Egg Roll (hereinafter referred to as the “Easter Egg Roll”) on April 22, 2019, which was

held at the White House in President’s Park. See Am. Compl. ¶¶ 12, 18–26. According to Plaintiff,

she was hired by Rosedale Marketing LLC, a private company, to work at the Easter Egg Roll.

Id. ¶ 14. Plaintiff alleges that, during a break from work, she sustained severe injuries when she

tripped and fell on an unsecured cord on an asphalt walkway in President’s Park. Am. Compl.

¶¶ 18–26. Plaintiff contends that Defendant negligently maintained the White House grounds and

walkways in an unsafe condition during the event, and that Defendant knew, or, in the exercise of

reasonable care, should have known that the asphalt walkway was “extremely dangerous and posed

a risk of severe injury to event attendees.” Id. ¶¶ 27, 31. Plaintiff further claims that Defendant,

as the host of the Easter Egg Roll, breached its duty of care owed to her by failing to place warning

signs on the walkway or “correct the dangerous condition by the unsecured cord.” Id. ¶¶ 30, 32.

Plaintiff subsequently began the administrative process to obtain monetary damages under

the FTCA for personal injuries. On August 6, 2019, Plaintiff filed an administrative tort claim

with the United States Department of Justice (“DOJ”). Id. ¶ 3. On September 24, 2019, DOJ

acknowledged receipt of Plaintiff’s claim and informed her that it was forwarded to the White

House. Id. ¶ 4. Plaintiff then initiated this civil action on April 7, 2020, claiming that she had not

received a response from the White House as of that date. Compl., ECF No. 1, ¶ 6.

On July 13, 2020, the White House informed Plaintiff that it had forwarded her

administrative tort claim to the National Park Service (“NPS”). Am. Compl. ¶ 7. The next day,

Defendant filed a motion to dismiss Plaintiff’s original complaint. See ECF No. 7. On July 21,

2020, Plaintiff herself submitted a copy of her administrative tort claim to NPS, attaching to it her

correspondence from DOJ and the White House. Am. Compl. ¶ 7.

2 On July 24, 2020, Plaintiff filed an amended complaint, addressing her efforts to submit

her claim to NPS since she first filed this lawsuit on April 7, 2020, and providing additional details

regarding her alleged employment at the Easter Egg Roll. See id. ¶¶ 6–8, 13–16. On August 14,

2020, Defendant moved to dismiss Plaintiff’s Amended Complaint, contending that the Court lacks

jurisdiction over Plaintiff’s claim for two reasons. First, Defendant claims that Plaintiff was

working as a volunteer at the Easter Egg Roll, and therefore, pursuant to the Volunteers in the

Parks Act (“VPA”),

, Plaintiff would have been considered a federal employee

whose exclusive remedy for any injury sustained is through the FECA. Def.’s Mem. at 1. Second,

Defendant argues that even if the FTCA applies rather than the FECA, this Court still lacks

jurisdiction over Plaintiff’s claim because she failed to exhaust her administrative remedies prior

to filing her complaint.

Defendant’s Motion is now ripe for the Court’s review.

II. LEGAL STANDARD

Defendant moves to dismiss Plaintiff’s claim for lack of subject matter jurisdiction. A

court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it lacks

subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider

the complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for

Underground Expansion v. Mineta,

(D.C. Cir. 2003) (citation omitted); see also

Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005)

(“[T]he district court may consider materials outside the pleadings in deciding whether to grant a

motion to dismiss for lack of jurisdiction.”).

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all

factual allegations in the complaint and construe the complaint liberally, granting plaintiff the

benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole

3 Comm’n,

(D.C. Cir. 2005) (“At the motion to dismiss stage, counseled

complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all

possible inferences favorable to the pleader on allegations of fact.”); Koutny v. Martin,

(D.D.C. 2007) (“[A] court accepts as true all of the factual allegations contained

in the complaint and may also consider undisputed facts evidenced in the record.” (internal

citations and quotation marks omitted).

Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains

the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am.

Farm Bureau v. U.S. Env’t Prot. Agency,

(D.D.C. 2000). “Although a

court must accept as true all factual allegations contained in the complaint when reviewing a

motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6)

motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

(D.D.C. 2007) (internal citations and quotation marks omitted). A court need not accept as

true “a legal conclusion couched as a factual allegation” or an inference “unsupported by the facts

set out in the complaint.” Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006)

(internal citation and quotation marks omitted).

III. DISCUSSION

In its Motion, Defendant first contends that this Court lacks jurisdiction over Plaintiff’s

claim because her exclusive remedy is through the FECA. Def.’s Mem. at 1. According to

Defendant, Plaintiff was a “volunteer” at the Easter Egg Roll, and therefore, pursuant to the VPA,

she is afforded the protections and benefits of a federal employee, including workers’

compensation through the FECA for any injury sustained while volunteering.

Defendant also

contends that even if the FTCA applies, the Court still lacks jurisdiction over Plaintiff’s claim

4 because she failed to exhaust her administrative remedies before filing her complaint in April 2020.

Id. at 2. The Court concludes that Plaintiff failed to satisfy the FTCA’s exhaustion requirement

prior to commencing her civil action, and so it does not consider Defendant’s arguments regarding

whether Plaintiff was a volunteer subject to the FECA.

A. Exhaustion of Administrative Remedies

Under the FTCA, a plaintiff may sue the government for “personal injury . . . caused by

the negligent or wrongful act or omission of any employee of the Government.”

(b)(1). In order to bring suit under the FTCA, however, a claimant must first satisfy the

FTCA’s exhaustion requirement under

(a). This section provides:

An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section.

(a) (emphasis added). The Supreme Court has interpreted this section to mean

that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their

administrative remedies.” McNeil v. United States,

(1993). A claimant’s failure

to “heed [the FTCA’s] clear statutory command” warrants dismissal of his claim.

(upholding

dismissal of FTCA claim for lack of jurisdiction when plaintiff failed to exhaust administrative

remedies); see Henderson v. Ratner, No. CV 10-5035,

, at *1 (D.C. Cir. 2010)

(affirming dismissal of FTCA claim when “[claimant] failed to demonstrate that he exhausted his

administrative remedies before filing suit in the district court”).

5 Here, Defendant argues that Plaintiff failed to satisfy the FTCA’s exhaustion requirement

by commencing a civil action before NPS received Plaintiff’s administrative tort claim. Def.’s

Mem. at 14. Plaintiff filed her initial complaint before this Court on April 7, 2020, approximately

three months before submitting her administrative claim to NPS on July 21, 2020. See Am. Compl.

¶ 7. Therefore, Plaintiff failed to adhere to the FTCA’s exhaustion requirement.

Plaintiff, however, contends that because she submitted her administrative claim to DOJ

on August 6, 2019, and then waited approximately seven months for the White House to respond

after it had received her claim from DOJ on September 24, 2019, Defendant “cannot now seek to

undermine” Plaintiff’s “good faith effort to comply” with the FTCA. Pl.’s Opp’n at 8–9.

Plaintiff’s “good faith effort” is insufficient to bypass the FTCA’s exhaustion requirement. Under

the FTCA, “exhaustion occurs once a claimant has presented the appropriate federal agency with

a claim . . . and the agency has (1) denied the claim in writing or (2) failed to provide a final

disposition within six months of the claim’s filing.” Cureton v. U.S. Marshals Serv.,

(D.D.C. 2004) (emphasis added); Menifee v. U.S. Dep’t of the Interior,

(D.D.C. 2013) (same). This requirement “enables the agency to investigate and ascertain

the strength of a claim . . . [and] determine whether settlement or negotiations to that end are

desirable.” GAF Corp. v. United States,

(D.C. Cir. 1987); see also Wilbur v.

C.I.A.,

(D.C. Cir. 2004) (citation omitted) (“Exhaustion of administrative

remedies is generally required before seeking judicial review ‘so that the agency has an opportunity

to exercise its discretion and expertise on the matter and to make a factual record to support its

decision.’”).

Here, Plaintiff contends that Defendant had notice of her administrative claim “for over a

year.” Pl.’s Opp’n at 9. But NPS did not receive notice of Plaintiff’s administrative claim until

6 the White House forwarded it to the agency on July 13, 2020, Am. Compl. ¶ 6, and it was not until

July 21, 2020, that Plaintiff submitted her claim directly to NPS, id. ¶ 7. Moreover, Plaintiff has

not explained why she did not know that NPS was the “appropriate Federal agency,” § 2675(a), or

why she believed DOJ was the appropriate agency, other than stating that it is “an agent of

Defendant,” Pl.’s Opp’n at 8. Accordingly, Plaintiff’s argument that she made a “good faith effort

to comply” with the FTCA’s exhaustion requirement is not enough.

The exhaustion of administrative remedies can be jurisdictional or non-jurisdictional. See

Avocados Plus Inc. v. Veneman,

, 1247–48 (D.C. Cir. 2004) (discussing the

distinction). Non-jurisdictional exhaustion is “a judicially created doctrine requiring parties who

seek to challenge agency action to exhaust available administrative remedies before bringing their

case to court.”

. Jurisdictional exhaustion, however, “requires [the plaintiff to] resort

to the administrative process as a predicate to judicial review.”

The D.C. Circuit has

consistently held that the “FTCA’s requirement of filing an administrative complaint with the

appropriate agency prior to instituting an action [is] jurisdictional.” Simpkins v. Dist. of Columbia,

(D.C. Cir. 1997); see, e.g., Odin v. United States,

(D.C. Cir.

1981) (stating that section 2675(a) is a “‘jurisdictional prerequisite[]’ to suit”); GAF Corp.,

818 F.2d at 904–05 (stating section 2675(a) imposes a “jurisdictional prerequisite to the

maintenance of a tort suit against the United States”). In addition, an agency denial, or deemed

denial after six months, is also part of this jurisdictional prerequisite. See McNeil,

(“The most natural reading of [section 2675(a)] indicates that Congress intended to require

complete exhaustion . . . before invocation of the judicial process”); Chien v. United States, No.

17-2334 (CKK),

, at *8 (D.D.C. Sept. 23, 2019) (same). Furthermore, courts in

this Circuit have found that a “court may not waive the FTCA’s exhaustion requirement on

7 equitable grounds.” Chien,

, at *8 (citation omitted); Corsi v. Mueller,

, 73 (D.D.C. 2019) (same); cf. Smith v. Clinton,

(D.D.C.

2017) (rejecting plaintiffs contention that “exhaustion would be futile” because the “FTCA’s

exhaustion requirement is jurisdictional and cannot be excised”), aff’d,

(D.C. Cir.).

Therefore, although it took approximately ten months for the White House to inform Plaintiff that

NPS received her administrative tort claim, Plaintiff cannot rely on this fact alone as the basis for

the Court to waive the exhaustion requirement.

Next, Plaintiff suggests that the “lengthy delay” by the White House satisfies the FTCA’s

exhaustion requirement as the statute provides that the “failure of an agency to make final

disposition of a claim within six months after it is filed shall . . . be deemed a final denial of the

claim.” § 2675(a); see Pl.’s Opp’n at 9 (“Defendant has had notice of Plaintiff’s claim for over a

year, and [] Defendant delayed for ten months in sending the claim from the White House to NPS.”)

This argument also fails because it is the “claimant’s responsibility to submit [her] tort claim to

the appropriate federal agency.” Young-Bey v. Unity Med. Healthcare,

(D.D.C. 2016) (emphasis added);

at 309–10 (rejecting plaintiff’s argument that he submitted

his claim to appropriate agency by submitting it to a grantee of the appropriate agency); cf. McNeil,

(emphasis added) (finding the “command that an ‘action shall not be instituted . . .

unless the claimant shall have first presented the claim to the appropriate Federal agency and his

claim shall have been finally denied by the agency’” to be “unambiguous”). The Court reiterates

that Plaintiff has not explained why she believed submitting her claim to DOJ would be sufficient

to satisfy the FTCA’s procedural requirements, or why she was unable to find out that NPS was

the appropriate agency given that she sustained her injuries in President’s Park, a National Park. 2

2 See The President of the United States lives in a National Park, NPS.gov, https://www.nps.gov/ whho/index.htm (last visited Mar. 18, 2021).

8 Finally, Plaintiff’s amended complaint also cannot satisfy the FTCA’s exhaustion

requirement. Under the FTCA, the appropriate analysis is whether the claimant exhausted her

administrative remedies at the time she filed her complaint, not whether the exhaustion

requirement was ultimately satisfied at a later date. See Hurt v. Lappin,

(D.D.C. 2010) (“Even though the six-month period has now expired, the relevant analysis is

whether [plaintiff] had exhausted his administrative remedy at the time he filed his complaint.”);

McNeil,

(rejecting plaintiff’s argument that subsequent receipt of formal denial

from an agency is sufficient to satisfy the exhaustion remedies). As a result, “a premature

‘complaint cannot be cured through amendment, but instead, plaintiff must file a new suit.’”

Harrod v. U.S. Parole Comm’n, No. 13-774 (RMC),

, at *1 (D.D.C. 2014)

(collecting cases); Edwards v. Dist. of Columbia,

(D.D.C. 2009) (internal

citations omitted) (“[T]he failure to exhaust administrative remedies prior to filing suit cannot be

remedied by amending the complaint at a later date.”).

Accordingly, Plaintiff’s amended complaint, which incorporates the updates in the

procedural history and addresses her employment during the Easter Egg Roll, cannot cure the

defect in this case, nor can the Court bypass the FTCA’s exhaustion requirement. See McNeil,

(“Every premature filing of an action under the FTCA imposes some burden on the

judicial system. . . . The interest in orderly administration of this body of litigation is best served

by adherence to the straightforward statutory command”); Duplan v. Harper,

(10th Cir. 1999) (“Allowing claimants [] to bring suit under the FTCA before exhausting their

administrative remedies and to cure the jurisdictional defect by filing an amended complaint would

render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial

system.”). Furthermore, the Court cannot grant Plaintiff’s request to stay the proceedings, rather

9 than dismiss her case. See McNeil,

(holding a claimant’s “fail[ure] to heed [the

FTCA’s clear statutory command” warrants dismissal of his case).

B. Dismissal Without Prejudice

Lastly, the Court addresses whether it should dismiss Plaintiff’s amended complaint with

or without prejudice. Although the Supreme Court has affirmed a dismissal with prejudice for

failure to comply with section 2675(a), see McNeil,

, courts in this Circuit have

often dismissed such cases without prejudice, see, e.g., Simpkins,

(reversing in

part district court’s dismissal with prejudice and remanding for dismissal without prejudice); M.J.

v. Georgetown Uni. Med. Ctr., No. 13-5321,

, at *1 (D.C. Cir. 2014) (modifying

district court’s dismissal pursuant to Simpkins); Chien,

, at *8 (applying same

standards); Hurt,

(granting defendant’s motion to dismiss without

prejudice). Therefore, the Court’s dismissal of this case based on Plaintiff’s failure to exhaust her

administrative remedies will be without prejudice.

IV. CONCLUSION

The Court concludes that Plaintiff has failed to exhaust her administrative remedies as

required by the FTCA. Accordingly, this Court is without subject matter jurisdiction over

Plaintiff’s claim. For the foregoing reasons, Defendant’s [10] Motion to Dismiss is GRANTED

and the case shall be DISMISSED WITHOUT PREJUDICE. An appropriate Order

accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

10