K.J. v. United States

• Decision Date: 15 November 2022
• Docket Number: Civil Action 22-180 (JEB)
• Parties: K.J., et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Columbia

K.J., et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

Civil Action No. 22-180 (JEB)

United States District Court, District of Columbia

November 15, 2022

MEMORANDUM OPINION

JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

Pseudonymous Plaintiffs K.J. and J.S. were female contract employees at the United States Department of Veterans Affairs. During their time there, a VA employee surreptitiously recorded them and other women using two cameras hidden in a women's restroom. Plaintiffs thus bring the present action against the United States under the Federal Tort Claims Act for what they contend was the Government's negligent failure to discover the second camera or to warn Plaintiffs that it might exist.

Defendant moves to dismiss, arguing both that the discretionary-function exception to the FTCA's waiver of sovereign immunity bars the suit and that Plaintiffs' claim depends upon an untenable theory of premises liability. Because the Court is persuaded that the Government is correct, it will grant the Motion.

I. Background

In setting forth the background here, the Court accepts as true at this stage all factual assertions alleged in Plaintiffs' Complaint and draws all reasonable inferences in their favor. See Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).

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In January 2019, Plaintiffs were employed by contractors for the VA, and they worked at the VA headquarters building. See ECF No. 4 (Compl.), ¶ 9. That month, then-VA employee Alex Greenlee installed two hidden micro-video cameras in the stalls of the twelfth-floor female restrooms in order to secretly record women using the facilities. Id., ¶ 13. A woman working in the building discovered one of these cameras on January 25, 2019, and reported its presence to the Federal Protective Service, the law-enforcement agency responsible for federal facilities like the VA. Id., ¶¶ 14-15.

Upon receiving that report, FPS seized the camera and identified Greenlee as the person likely responsible for its placement the same day. Id., ¶¶ 16-17. The VA immediately fired him and barred him from the premises, id., ¶ 17, and he was subsequently arrested and pled guilty to counts related to the recordings. Id., ¶ 19.

Plaintiffs allege that they were assured that the restroom was safe to use after the first camera was discovered. Id., ¶ 16. Despite these assurances and allegedly because of FPS's failure to conduct a thorough initial search for more cameras, Plaintiff J.S. discovered a second camera three days later beneath a different stall in the same restroom. Id., ¶¶ 18, 20. Subsequent analysis revealed that the cameras captured images of Plaintiffs and other victims using the restroom and that some of this footage was recorded by the second camera after the first had been discovered. Id., ¶ 21.

Plaintiffs filed this suit against the Government under the FTCA on January 23, 2022, seeking to recover for the “significant emotional distress, suffering, shame, physical injuries, . . . medical expenses[,] and other damages,” id., that they suffered by way of the FPS's and the VA's alleged negligence. Id., ¶¶ 22-25. They allege in their sole count that the United States is vicariously liable for its failure to maintain its premises in a reasonably safe condition and to

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warn Plaintiffs of the danger of voyeuristic recording in light of the first camera's discovery. Id., ¶¶ 22, 25. Defendant now moves to dismiss. See ECF No. 12 (Def. MTD).

II. Legal Standard

Defendant's Motion invokes Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). When a defendant files a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, the plaintiff generally “bears the burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, 442 F.Supp.3d 87, 91-92 (D.D.C. 2020) (quoting Didban v. Pompeo, 435 F.Supp.3d 168, 172-73 (D.D.C. 2020)); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Court “assume[s] the truth of all material factual allegations in the complaint and ‘construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'” Am. Nat'l Ins. Co., 642 F.3d at 1139 (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

To survive a motion to dismiss under Rule 12(b)(6), conversely, a complaint must “state a claim upon which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). While a plaintiff may survive a Rule 12(b)(6) motion even if “‘recovery is very remote and unlikely,'” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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III. Analysis

To properly set the stage, it is important to note that Plaintiffs seek to hold the United States liable only with regard to the second camera. They do not allege any negligence prior to the discovery of the first. In seeking dismissal here, the Government makes two independent arguments. It first contends that the Court lacks subject-matter jurisdiction under the...