UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ROBERT E. ALLEN, et al., 

 Plaintiffs, 

 v. 

JERRY BROWN, et al., 

 Defendants. 

 

Civil Action No. 15-0969 (ESH) 

 

 Plaintiffs are twenty-four current or former police officers employed by the Department 

of Veterans’ Affairs (“VA”) at the VA Medical Center in Washington, D.C.1 who object to the 

secret installation of audio and video surveillance devices at their place of employment. 

Claiming violations of federal and District of Columbia law, they filed suit against Jerry Brown, 

the Chief of the VA Police Service; Brian Hawkins, the Medical Director at the VA Medical 

Center; Johnson Controls, Inc. (“JCI”), an outside contractor; and Robert A. McDonald, in his 

official capacity as former Secretary of the VA. Before the Court is defendants’ motion to 

dismiss or, in the alternative, for summary judgment. (See Defs.’ Mot. to Dismiss or, In the 

Alternative, for Summary Judgment, Sept. 30, 2015 [ECF No. 16] (“Defs.’ Mot.”).) For the 

reasons stated herein, defendants’ motion will be granted in part and denied in part. 

 

1

 Plaintiffs are: Robert Allen, Luis A. Rodriguez-Soto, Steven Smallwood, Anthony T. Green, 

Tywan Singleton, Ronald Wilson, William Nesbitt, Corey Powell, Walter Pittman, Gary E. 

Poindexter, Joshua J. Starleper, Thomas Rego, Cynthia Warren, Tommie R. Boozer, Thomas 

Dixon, Walter C. Bryan, Tyrone F. Tucker, Gary R. Smallwood, Kevin Lee Price, Gaylen 

Hawkins, Marlon Holder, Ricardo Wilkins, Myron Jeter, and Denise Glenn Gentry. (Compl. ¶¶ 

1-24.) 
2 

BACKGROUND

I. FACTS 

 According to the facts as set forth in the complaint,2

 in October 2013, Chief Brown, who 

is stationed at the VA Medical Center, arranged for the secret installation of surveillance devices 

in at least three “private areas” of the VA Medical Center. (Compl. ¶ 33.) Chief Brown obtained 

the consent of Director Hawkins, but did not follow the VA Handbook’s guidelines for audio 

surveillance. (See Compl. ¶¶ 49-53 (quoting VA Handbook §§ 6(b)(1)-(3)3).) 

 In November 2013 or thereafter, JCI, at Chief Brown’s request, secretly installed audio 

and video recording devices in at least three locations within the VA Medical Center: the Police 

Control Operations Office (“Control Office”), the Police Report Writing Room (“Report 

Room”), and the Watch Commander’s Office. (Compl. ¶¶ 34, 36.) The audio and video feeds 

from each of these devices were delivered on a real-time basis to Chief Brown’s office where 

they were also recorded. (Compl. ¶ 48.) 

 On January 24, 2014, several VA police officers found “a camera with a microphone 

covertly mounted on a support bracket for the CCTV monitors with a microphone hidden behind 

the monitors” in the Control Room. (Compl. ¶ 39.) The LED lights on the device were lit, but 

covered with black electrical tape. (Compl. ¶ 39.) One of the officers “covered the microphone 

portion of the camera while the officers present discussed what to do about the camera and 

 

2

 As is apparent in the analysis section infra, many of these facts are contested by defendants. 

3

 According to the complaint, section 6(b)(1) of the VA Handbook provides that “[t]he use of 

body microphones and recording devices are authorized for investigative purposes only. This use 

must be authorized by the Deputy Assistant Secretary for Security and Law Enforcement.” 

Section 6(b)(2) provides: “Use of any device to overhear or record conversations without the 

participants’ consent must be accomplished in accordance with the U.S. Attorney General’s 

guidelines on communication interception by Federal law enforcement personnel.” And section 

6(b)(3) provides: “[t]he use of recording devices is not authorized for the routine taping of 

conversations during patrol and other duty activities.” 
3 

microphone.” (Compl. ¶ 39.) In the midst of this discussion and immediately after the 

microphone was covered up, Chief Brown entered the room, demanded to know what the 

officers were doing, and “ordered all attending officers to draft statements regarding what was 

happening in the [C]ontrol [R]oom.” (Compl. ¶¶ 40-41.) 

 Two months later, in March 2014, another hidden camera with an attached microphone 

was found in the Report Room, a room using by officers to write reports and as an alternate 

break room. (Compl. ¶¶ 42-43.) On March 22, 2014, Chief Brown used the recordings from this 

device to administer discipline against Officer Luis A. Rodriguez-Soto (a named plaintiff), which 

included a two-week suspension without pay. (Compl. ¶ 44.) 

 Then, in January 2015, a hidden camera with an attached microphone was found in the 

Watch Commander’s Office, a room that is used on occasion as a changing room for both male 

and female officers. (Compl. ¶¶ 45-46.) 

 As far as plaintiffs are aware, all three devices remain in use. (Compl. ¶ 47.) In addition, 

plaintiffs suspect that there were additional recording devices secretly installed in the VA 

Medical Center. (Compl. ¶ 61.) 

II. PROCEDURAL HISTORY 

 On June 22, 2015, plaintiffs, on their own behalf and on behalf of all others similarly 

situated,4

 filed the above-captioned case, alleging that the secret surveillance devices installed at 

the VA Medical Center violate federal and state law and seeking injunctive relief and damages. 

 

4

 The “putative class” consists of 

All employees of the Department of Veterans Affairs Medical Center located at 

50 Irving Street NW, Washington D.C. 20422 whose conversations or activities 

were recorded without their knowledge or permission from the dates of May 29, 

2013 to the conclusion of this litigation. 

(Compl. ¶ 25.) 
4 

The specific claims in the complaint are that: (1) Chief Brown, Director Hawkins and JCI’s 

actions violated federal and state wiretapping statutes (Counts I and II) and constituted an 

unlawful civil conspiracy (Count III); (2) Chief Brown’s actions violated plaintiffs’ Fourth 

Amendment right not to be subjected to unreasonable searches and seizures (Count IV); and (3) 

Secretary McDonald is liable under the Federal Tort Claims Act (“FTCA”) for Chief Brown’s 

tortious acts and omissions (Count V).5

 (Compl. ¶¶ 75-98.) 

 Plaintiffs subsequently voluntarily dismissed with prejudice all of their claims against 

JCI. (See Notice of Voluntary Dismissal with Prejudice, Sept. 28, 2015 [ECF No. 15].) The 

remaining claims against Chief Brown, Director Hawkins and Secretary McDonald are the 

subject of defendants’ pending dispositive motion. 

 Defendants seek dismissal or summary judgment as to all of plaintiffs’ claims. No 

discovery has taken place, but defendants’ motion for summary judgment is supported by 

extensive declarations from Chief Brown and Frank Giorno, the VA’s Regional Counsel for the 

District of Columbia, along with excerpts of sworn testimony from Chief Brown, Director 

Hawkins, Deputy Chief of Police Cleveland Walls, and Officer Rodriguez-Soto, all of which 

were taken in April 2014 in the VA Medical Center’s Administrative Investigation Board’s 

 

5

 For Count I, plaintiffs “seek statutory damages from Defendants jointly and severally 

amounting to the greater of $100 per day for each employee recorded or $10,000.00 for each 

employee, attorneys’ fees, and the costs of this action.” (Compl. at 16.) For Count II, plaintiffs 

“seek statutory damages from Defendants jointly and severally amounting to the greater of $100 

per day for each employee recorded or $1,000.00 for each employee, punitive damages, 

attorneys’ fees, and the costs of this action.” (Compl. at 17.) For Count III, plaintiffs “seek 

damages as indicated in Counts One and Two against each Defendant jointly and severally.” 

(Compl. at 18.) For Count IV, plaintiffs seek “all damages available including money damages, 

attorneys’ fees, and costs.” (Compl. at 19.) For Count V, plaintiffs seek a declaration that 

defendants’ conduct was unlawful, compensatory and punitive damages, attorneys’ fees, and an 

order for the “expungement of all employee records wherein any employee of the Department of 

Veterans Affairs Medical Center was disciplined as a result of the hidden cameras and 

microphones.” (Compl. at 19-20.) 
5 

inquiry into a hostile work environment claim brought by plaintiffs against Chief Brown. 

Plaintiffs filed an opposition to defendants’ motion that is supported by declarations from ten of 

the named plaintiffs, along with a Rule 56(d) declaration from counsel6

 that asks the Court to 

deny defendants’ motion for summary judgment pending the completion of discovery. (See Pls.’ 

Opp’n to Defs.’ Mot., Dec. 4, 2015 [ECF No. 20].) Defendants filed a reply, submitting 

additional testimony from the Board investigation from several of the plaintiff officers, the VA 

Associate Director Bryan Matthews, and a JCI employee, Mark Bradford, along with a 

declaration from defendants’ counsel, Mark Nebeker. (See Defs.’ Reply, Feb. 8, 2016 [ECF No. 

24.) Plaintiffs sought leave to file a surreply to respond to the Nebeker Declaration (see Pls.’ 

Mot. to File Limited Surreply, Feb. 29, 2016 [ECF No. 27]), and defendants filed a response to 

the motion which included their response to the surreply (see Defs.’ Resp. to Pls.’ Motion to File 

Limited Surreply, Mar. 1, 2016 [ECF No 28]). The Court will grant plaintiffs’ motion and 

consider both plaintiffs’ surreply and defendants’ response in ruling on defendants’ dispositive 

motion. 

ANALYSIS 

 

I. WIRETAPPING STATUTES (COUNTS I & II) 

 In Counts I and II, plaintiffs claim that by secretly installing surveillance equipment in 

the VA Medical Center, Chief Brown and Director Hawkins violated the federal wiretapping 

 

6

 Rule 56(d) provides: 

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by 

affidavit or declaration that, for specified reasons, it cannot present facts essential 

to justify its opposition, the court may:(1) defer considering the motion or deny it; 

(2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue 

any other appropriate order. 

Fed. R. Civ. P. 56(d). 
6 

statute, see 18 U.S.C. § § 2510 et seq., and the District of Columbia’s wiretapping law, see D.C. 

Code § 23-542(b).7

 Defendants argue that Counts I and II are not viable claims because neither 

statute applies to video surveillance and it is undisputed that no audio surveillance ever took 

place.8 Plaintiffs appear to concede that neither statute applies to video surveillance, but they 

contend that they should be allowed to pursue Counts I and II because it is a disputed fact 

whether audio surveillance occurred, especially given that plaintiffs have not yet had the 

opportunity to take discovery. The Court agrees. 

 Defendants rely on the following evidence to argue that it is undisputed that no audio 

surveillance took place: (1) Chief Brown’s statement in his declaration that: “There was no 

request for audio surveillance or audio recording; nor to my knowledge was audio surveillance or 

audio recording approved or conducted at the VA Medical Center.” (Brown Decl. ¶ 10 

(emphasis added)); (2) an October 23, 2013 memorandum from Chief Brown to Director 

Hawkins seeking authorization to install two video recording devices (see Brown Decl. Ex. A 

(emphasis added)); (3) Director Hawkins’ negative response to the question “[w]as there any 

 

7

 In Count I, plaintiffs allege that Chief Brown, Director Hawkins, and JCI “jointly conspired to 

install video and audio surveillance equipment to secretly record conversations and conduct at 

the Medical Center,” that Chief Brown “used that recorded information to discipline, terminate 

and terrorize employees at the Medical Center,” and that “[d]efendants’ actions were not justified 

by any Court, or law enforcement agent and do not conform to any of the exceptions provided by 

18 U.S.C. § 2511(2).” (Compl. ¶¶ 76-78.) 

In Count II, plaintiffs allege that Chief Brown, Director Hawkins, and JCI “willfully intercepted 

oral communications between employees at the Veterans Affairs Medical Center,” that their 

actions “were not legally justified and do not establish any of the exceptions as set out in D.C. 

Code § 23-542(b),” and that Chief Brown “utilized the unlawfully intercepted oral 

communications to discipline, terminate, and terrorize employees at the Medical Center.” 

(Compl. ¶¶ 80-82.) 

8

 Defendants concede that both statutes apply to audio surveillance. (See Defs.’ Mot. at 12 

(“‘Both statutes create a private right of action of any person whose communications have been 

unlawfully intercepted, used or disclosed.’” (quoting Council on American-Islamic Relations 

Action Network, Inc. v. Gaubatz, 793 F.Supp. 2d 311, 328 (D.D.C. 2011))).) 
7 

audio involved in the recordings” that he “[d]id not authorize any audio” (Hawkins Tr. at 14); (4) 

JCI employee Bradford’s testimony that although he did not participate in the actual installation 

of any devices, he was there when the installing technician “tied back the audio cables and taped 

them” and that the technician “told him” that he never connected the audio (Bradford Tr. at 8); 

(5) Associate Director Matthews’ testimony about the surveillance device in the Control Room 

that “to [his] knowledge, it did not have audio” (Matthews Tr. at 6); and (6) defendants’ 

counsel’s declaration that he had the Office of the AUSA purchase a camera bearing the 

description “MiNi CCD” camera that he believed was similar to the camera pictured in plaintiffs’ 

exhibits, and that he tested the camera and discovered that the red LED light was lit when the 

power was on even when the audio and video feeds were not connected (Nebeker Decl. ¶¶ 2-3, 

7-8). 

 The declarations submitted by plaintiffs to respond to defendants’ evidence state that 

several officers saw a microphone attached to the camera in the Control Room, that the 

microphone was installed at a height that corresponded to where people would be having 

conversations, and that the LED lights on the device were lit. (See Rego Decl. ¶¶ 3-7 & Ex. 1; 

Boozer Decl. ¶¶ 3-4; Jeter Decl. ¶¶ 3-7; Holder Decl. ¶¶ 3-4; Allen Decl. ¶¶ 4-7; Rodriguez-Soto 

Decl. ¶¶ 3-5; Smallwood Decl. ¶¶ 3-6; Starleper Decl. ¶¶ 3-6; Singleton Decl. ¶¶ 3-6.) Plaintiffs’ 

declarations also describe one occasion when officers in the Control Room were talking about 

the camera and microphone they had found and then, after the officers covered up the 

microphone, “Chief Brown stormed into the room and started berating [the officers] about being 

near his camera and microphone” and then demanded that the officers prepare statements as to 

why they were in that area. (See Holder Decl. ¶¶ 5-6; Starleper Decl. ¶ 7; Allen Decl. ¶¶ 16-17.) 

On another occasion, an officer was in the Control Room “venting about having leave denied,” 
8 

and then five minutes later the Deputy Chief called the officer in and referenced his 

conversation. (Singleton Decl. ¶¶ 8-9.) 

 Considering the above evidence, and drawing all inferences in plaintiffs’ favor, as the 

Court must for purposes of ruling on defendants’ motion for summary judgment, the Court 

concludes that existing record is not sufficiently clear at this juncture to accept as undisputed the 

fact that no audio surveillance took place. Moreover, plaintiffs’ counsel has filed a declaration 

pursuant to Rule 56(d), stating that plaintiffs request document discovery and depositions in 

order to ensure that they have access to any evidence that might controvert Chief Brown’s 

declaration and the other evidence relied upon by defendants. (Rule 56 Decl. ¶¶ 3, 8-9.) This is 

a valid request, for courts are generally loath to award summary judgment before the nonmoving party has been given an adequate opportunity for discovery, see Swierkiewicz v. Sorema 

N. A., 534 U.S. 506, 512 (2002); Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 

1995), and there is nothing in this case that warrants an exception to this general rule. The 

strongest evidence for defendants is a declaration from Chief Brown, who is a defendant in this 

case. Plaintiffs should not have to accept the statements in his declaration at face value without 

having the opportunity to conduct document discovery and to depose him and others with 

potentially relevant information. For these reasons, the Court will deny without prejudice 

defendants’ motion for summary judgment on Counts I and II. 

II. CIVIL CONSPIRACY (COUNT III) 

 In Count III, plaintiffs allege that the actions of Chief Brown and Director Hawkins, in 

conjunction with JCI, render them liable for civil conspiracy. Specifically, plaintiffs claim that 

Chief Brown, Director Hawkins, and JCI entered into and carried out a conspiracy to illegally 

install hidden cameras and microphones in the Medical Center and that Chief Brown monitored 
9 

and utilized the data collected from those devices against employees of the Medical Center. 

(Compl. ¶¶ 83-88.) Defendants argue that the civil conspiracy count should be dismissed for 

failure to state a claim, because “if this Court finds, as is likely, that there are no underlying 

predicate counts, then the conspiracy count must similarly be dismissed.” (Defs.’ Mot. at 14.) 

Defendants are correct that “under both federal and District of Columbia law, civil conspiracy is 

not actionable in and of itself.” See Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1493 

(D.C. Cir. 1989). Rather, there must be an underlying predicate offense. However, as explained 

supra, the Court has rejected defendants’ challenges to Counts I and II, the underlying predicate 

offenses for Count III. Accordingly, defendants’ argument for the dismissal of Count III must 

must also be rejected. 

III. FOURTH AMENDMENT (COUNT IV) 

 In Count IV, plaintiffs claim that Chief Brown’s actions violated their Fourth 

Amendment right to be free from unreasonable searches and seizures and that under the Supreme 

Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 

403 U.S. 388 (1971), he is personally liable for damages. Bivens established that federal 

officials can be sued in their individual capacities for actions taken under the color of law that 

violate the Fourth Amendment, but the doctrine of qualified immunity protects government 

officials from liability “insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 

457 U.S. 800, 818 (1982). In the present case, defendants contend that they are entitled to 

summary judgment on plaintiffs’ claim against Chief Brown either (1) because the surveillance 

did not violate the Fourth Amendment, or (2) even if it did, the right was not clearly established 
10 

at the time the surveillance occurred. Given the incompleteness of the existing record, the Court 

finds it impossible at this time to agree with either of defendants’ arguments. 

 The Fourth Amendment’s protection “against unreasonable searches and seizures” 

“applies . . . when the government acts in its capacity as an employer.” City of Ontario v. Quon, 

560 U.S. 746, 756 (2010); see O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (“[i]ndividuals do 

not lose Fourth Amendment rights merely because they work for the government instead of a 

private employer.”). However, where the government as employer conducts a search or seizure 

for “noninvestigatory, work-related purposes” or for “investigations of work-related 

misconduct,” the standard for determining whether that search or seizure is reasonable (which 

was adopted by a plurality of the Supreme Court in O’Connor v. Ortega and has generally been 

followed by most lower courts, including the D.C. Circuit, see Stewart v. Evans, 351 F.3d 1239, 

1243 (D.C. Cir. 2003)) asks two questions. See O’Connor, 480 U.S. at 717-724. The first 

question is whether, considering the “operational realities of the workplace” “on a case-by-case 

basis,” the employee has a “reasonable expectation of privacy” in the intruded-upon space. Id. at 

717-18. If the answer to that question is yes, Fourth Amendment protections apply, and courts 

proceed to the question of whether the employer’s intrusion was “reasonable[] under all the 

circumstances.” O’Connor, 480 U.S. at 725-26; see also City of Ontario, 560 U.S. at 756-57. 

“Under this reasonableness standard, both the inception and the scope of the intrusion must be 

reasonable.” O’Connor, 480 U.S. at 726. 

 To support their argument that there was no Fourth Amendment violation, defendants 

rely primarily on a twenty-year old decision from a federal district court in Kansas. See 

Thompson v. Johnson County Community College, 930 F. Supp. 501 (D. Kan. 1996). In 

Thompson, the plaintiffs were community college security officers who challenged the 
11 

warrantless installation of video surveillance equipment in the security personnel locker area. 

The surveillance took place in the “security personnel locker area,” an area that “was not 

enclosed,” and that “was part of a storage room that also housed the College’s heating and air 

conditioning equipment.” Id. at 507. In this area, “[p]laintiffs’ activities could be viewed by 

anyone walking into or through the storage room/security personnel locker area,” the area was 

not “reserved for [the plaintiffs] exclusive use,” and “other college personnel also had regular 

access to this area.” Id. Based on these facts and applying the approach adopted by the plurality 

in O’Connor, the court granted summary judgment for the defendants, finding that (1) the 

officers had no reasonable expectation of privacy in the locker area, and (2) even if they did, the 

video surveillance conducted by the defendants to investigate reports of employee misconduct 

was reasonable in both inception and scope. Defendants contend, without further elaboration, 

that the facts in Thompson are “similar to the circumstances at issue in the instant action” and 

that, following Thompson, the Court should grant Chief Brown summary judgment on plaintiffs’ 

Bivens claim. (Defs.’ Mot. at 17-19.) 

 Although the facts in Thompson bear some similarities to the present case, defendants’ 

reliance on Thompson ignores critical differences. First and most importantly, the factual record 

in Thompson was fully developed, whereas the factual record here case is not. Second, the 

allegations of the complaint suggest that aspects of the surveillance at the VA Medical Center 

were different from those in Thompson. However, even if the facts turn out to be similar, the 

decision in Thompson is not controlling precedent for this Court, and other courts have analyzed 

similar situations differently. See, e.g., Jones v. Houston Community College Sys., 816 F. Supp. 

2d 418 (S.D. Tex. 2011) (community college security officers challenging video surveillance in 

office stated Fourth Amendment claim); Richards v. County of Los Angeles, 775 F. Supp. 2d 
12 

1176, 1182- (C.D. Cal. 2011) (covert videotaping of county employees in dispatch room violated 

Fourth Amendment); Rosario v. United States, 538 F. Supp. 2d 480, 495-500 (D.P.R. 2008) 

(federal police officers had reasonable expectation of privacy from video surveillance in VA 

locker-break room and stated claim that search was unreasonable); Trujillo v. City of Ontario, 

428 F. Supp. 2d 1094, 1101-09 (C.D. Cal. 2006) (police officers who were secretly videotaped in 

locker room had reasonable expectation of privacy and search was not reasonable). 

 For now, though, the Court will not speculate as to where the ultimate facts of this case 

will lead. As our Court of Appeals has made clear, “the inquiry into reasonableness must be 

made on a case-by-case basis,” and it must be based upon an adequate record. Stewart v. Evans, 

275 F.3d 1126, 1130-31 (D.C. Cir. 2002) (reversing dismissal and remanding because “[w]ithout 

knowing more about the circumstances surrounding the search, a court simply cannot assess 

whether it was reasonable”); see also O’Connor, 480 U.S. at 727 (remanding because “the record 

was inadequate for a determination on motion for summary judgment of the reasonableness of 

the search and seizure”). It is not apparent from the existing record, viewed in the light most 

favorable to plaintiffs, that the undisputed facts establish either that plaintiffs lacked a reasonable 

expectation of privacy in their conversations or their actions in the rooms where the surveillance 

allegedly occurred or that, if they had a reasonable expectation of privacy, the search was 

reasonable in both its inception and its scope. Given that plaintiffs have not yet had the 

opportunity to take discovery, and considering the disputed facts viewed in the light most 

favorable to the plaintiffs, the Court cannot find that defendants’ surveillance did not violate the 

Fourth Amendment. 

 For the same reason, it is premature at this juncture to conclude that Chief Brown is 

protected from liability by the doctrine of qualified immunity. For a right to be “clearly 
13 

established,” the “[t]he contours of the right must be sufficiently clear that a reasonable official 

would understand what he is doing violates that right. This is not to say that an official action is 

protected by qualified immunity unless the very action in question has previously been held 

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” 

Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that “a case directly on 

point’ is required. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). Rather, an official “can 

still be on notice that [his] conduct violates established law even in novel factual circumstances.” 

Hope v. Pelzer, 536 U.S. 730, 739 (2002). Here, where the Court has concluded that the record 

is inadequate to conclude that plaintiffs’ constitutional rights were not violated, it is also 

inadequate to assess whether defendant violated a right that was clearly established at the time of 

the challenged conduct. See Stewart v. Evans, 275 F.3d 1126, 1130-31 (D.C. Cir. 2002) 

(declining to dismiss on the ground of qualified immunity where record was inadequate to assess 

whether plaintiff lacked a reasonable expectation of privacy in the area searched). Accordingly, 

the Court will deny without prejudice defendants’ motion for summary judgment on Count IV. 

IV. FTCA (COUNT V) 

 In Count V, plaintiffs claim that the Department of Veterans Affairs, sued through 

Secretary McDonald in his official capacity as VA Secretary, is liable for damages under the 

FTCA for Chief Brown’s installation of hidden cameras and microphones. (See Compl. ¶¶ 96-

98.) Defendants move to dismiss Count V on the ground that the United States is the only proper 

party defendant in actions brought under the FTCA. As plaintiffs concede in their opposition 

(see Pls.’ Resp. at 4 n.1), defendants are correct that Count V should have been filed against the 

United States as the FTCA does not authorize suits against federal officials or federal agencies. 

See 28 U.S.C. § 2679; see also Kissi v. Simmons, No. 09-cv-1377, 2009 WL 3429567, at *1 
14 

(D.D.C. Oct. 22, 2009) (“the proper defendant to an action under the FTCA is the United States 

of America”); Cox v. Sec’y of Labor, 739 F. Supp. 28, 29 (D.D.C.1990) (dismissing FTCA claim 

against Secretary of Labor in her official capacity for lack of subject matter jurisdiction). 

Plaintiffs have not, however, filed a motion seeking leave to amend Count V. In addition, 

defendants have submitted uncontroverted evidence that any such amendment would be futile 

because plaintiffs have failed to exhaust their administrative remedies,9

 a jurisdictional 

requirement that must be satisfied before bringing suit under the FTCA. See 28 U.S.C. § 

2675(a)10; 28 C.F.R. § 14.2.11 Accordingly, Count V will be dismissed. 

 

9

 Defendants have submitted declarations from the VA’s Assistant General Counsel and the 

VA’s Regional Counsel in this region, both stating that a search was conducted of all available 

records and that no administrative FTCA claims filed by plaintiffs were discovered. (See

Bradshaw Decl. ¶ 5 (“A search of VA records was conducted. Numerous cases involving the 

named plaintiffs were discovered, but all such cases involved either Equal Employment 

Opportunity Commission complaints or adverse administrative action complaints. None of the 

filing in these cases can be construed as complying with the minimal tort claim requirements of 

28 C.F.R. § 14.2 In particular, none of the filings contained a demand for a sum certain.”); 

Giorno Decl. ¶ 3 (“I conducted a search of all available VA records of administrative tort claims 

submitted for adjudication maintained locally for evidence of an administrative claim filed by the 

above-name plaintiff. No such claim was discovered.”).) 

10 28 U.S.C. § 2675(a) states: 

 An action shall not be instituted upon a claim against the United States for money 

damages for injury or loss of property or personal injury or death caused by the 

negligent or wrongful act or omission of any employee of the Government while 

acting within the scope of his office or employment, 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 purposes of this section. 

11 28 C.F.R. § 14.2(a) states: 

For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim 

shall be deemed to have been presented when a Federal agency receives from a 

claimant, his duly authorized agent or legal representative, an executed Standard 

Form 95 or other written notification of an incident, accompanied by a claim for 

money damages in a sum certain for injury to or loss of property, personal injury, 

or death alleged to have occurred by reason of the incident; and the title or legal 
15 

CONCLUSION 

 Accordingly, and for the reasons stated above, defendants’ motion to dismiss or for 

summary judgment will be granted in part and denied in part. A separate Order accompanies this 

Memorandum Opinion. 

/s/ Ellen Segal Huvelle 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

Date: May 6, 2016 

 

capacity of the person signing, and is accompanied by evidence of his authority to 

present a claim on behalf of the claimant as agent, executor, administrator, parent, 

guardian, or other representative.