Achagzai v. Broad. Bd. of Governors, Civil Action No. 14–768 (RDM)

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 109 F.Supp.3d 67
• Docket Number: Civil Action No. 14–768 (RDM)
• Parties: Taher Achagzai, et al., Plaintiffs, v. Broadcasting Board of Governors, Defendant.
• Decision Date: 12 June 2015

109 F.Supp.3d 67

Taher Achagzai, et al., Plaintiffs,
v.
Broadcasting Board of Governors, Defendant.

Civil Action No. 14–768 (RDM)

United States District Court, District of Columbia.

Signed June 12, 2015

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Shameela Sarah Shah, Law Offices of Shah & Shah, PLLC, Washington, DC, for Plaintiffs.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Before the Court is Defendant Broadcasting Board of Governors' motion to strike complaint and to dismiss in part (Dkt.14) and Plaintiffs' motion to expedite the proceedings (Dkt.17). Upon consideration of the parties' submissions, and for the reason explained below, Defendant's motion is GRANTED . The tort claims in counts 10–18 of the complaint are DISMISSED without prejudice, and Plaintiffs' complaint is STRICKEN . Plaintiffs' motion to expedite is DENIED without prejudice. Plaintiffs may file an amended complaint, consistent with this Memorandum Opinion and Order, on or before June 29, 2015.

I. BACKGROUND

The five Plaintiffs in this action—Taher Achagzai, Syed B. Shah, Mohammed Zamen Mohmand, Zeba Khadem, and Naseem S. Stanazai—allege that, starting as early as 2006, they were victims of employment discrimination on the bases of age and national origin, as well as unlawful retaliation and a number of common law torts, in the course of their employment as broadcasters in the Pashto Language Service of Voice of America. In total, they allege 18 separate counts–nine of which allege employment discrimination or related retaliation, and nine of which allege common law torts ranging from "negligence ... in the workplace" and "negligent infliction of emotional distress" to "invasion of privacy" and "defamation." Dkt. 1 at 213–23. Over the course of their 226–page complaint, Plaintiffs allege a litany of facts in support of these claims.

In its motion, Defendant argues that Plaintiffs have failed to allege that they exhausted administrative remedies pursuant to the Federal Tort Claims Act (FTCA), and that, accordingly, Plaintiffs' common law tort claims (Counts 10–18) must be dismissed for lack of subject matter jurisdiction. Dkt. 14 at 6. It also briefly notes "alternative grounds for dismissal" of several of the tort claims. Id. at 5. Finally, Defendant argues that the

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complaint in its current, sprawling form is "too unmanageable" to allow Defendant to evaluate additional defenses, and it requests an order striking the complaint for failure to comply with Rule 8(a).Id. at 6.

In their motion to expedite, Plaintiffs argue that their age and the fact that some of them are in poor health constitute "good cause" for expediting the proceedings pursuant to 28 U.S.C. § 1657(a).

II. LEGAL STANDARDS

The plaintiff bears the burden to establish that the Court has subject-matter jurisdiction. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). "In appropriate cases," a court may "dispose of a motion to dismiss for lack of subject matter jurisdiction ... on the complaint standing alone." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992). "[W]here necessary," however, the Court may consider "the complaint supplemented by undisputed facts" or resolve factual disputes on a motion under Rule 12(b)(1). Id. A court relying on the pleadings to resolve a motion under Rule 12(b)(1) "assume[s] the truth of all material factual allegations in the complaint." Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011).

Rule 8(a) mandates that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and Rule 8(d) requires that "[e]ach allegation ... be simple, concise, and direct." Fed. R. Civ. P. 8(a)(2), 8(d)(1). Together, these rules "underscore the emphasis placed on clarity and brevity by the federal pleading rules." Ciralsky v. CIA, 355 F.3d 661, 669 (D.C.Cir.2004) (quotation marks omitted). "Enforcing these rules is largely a matter for the trial court's discretion." Id. When a trial court concludes that an initial complaint fails to satisfy Rule 8, an appropriate remedy is to strike the complaint under Rule 12(f) and to provide the plaintiff with an opportunity to file an amended complaint that complies with the Rules. See id.

Under 28 U.S.C. § 1657(a), "each court of the United States shall determine the order in which civil actions are heard and determined, except that the court shall expedite the consideration of any action ... if good cause therefor is shown."

III. DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The complaint does not cite a statutory basis for the Court's jurisdiction over the common law tort claims pleaded in Counts 10–18. In their opposition brief, however, Plaintiffs contend that the Court has jurisdiction pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. See Dkt. 15–1 at 5. The FTCA is a "limited waiver of the United States' sovereign immunity," and, thus, "absent full compliance with the conditions the Government has placed upon its waiver, courts lack jurisdiction to entertain tort claims against it."¹ GAF Corp. v. United States, 818 F.2d 901, 904 (D.C.Cir.1987).

Here, Plaintiffs have failed to allege that they satisfied the requirement

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that they exhaust administrative remedies before filing an FTCA claim. Under the FTCA, "[a]n action [for certain tort claims] shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a). In this Circuit, "a jurisdictionally adequate presentment is one which provides to the appropriate agency (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." GAF Corp., 818 F.2d at 905.

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