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 cur rent or former police officers e mployed by the Department of Veterans’ Affairs (“VA”) at t he VA Medical Center in Washing ton, D.C. 1 who object to the secret installation of audio and vi deo surveillance devices at their place of employment. Claiming violations of federal and D istrict of Col umbia law, th ey filed suit against Jerry Brown, the Chief of the VA Police Servi ce; 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 Secret ary of the VA. Before the Co urt is defendants’ motion to dismiss or, in the alternativ e, for summary judgment. ( See Defs.’ Mot. to Dismiss or, In the Alternative, for Summary J udgment, Sept. 30, 2015 [ECF No. 16] (“Defs.’ Mot.”).) For the reasons stated herein, defendants’ motion will be granted in pa rt and denied in part.

1 Plaintiffs are: Robert Allen, L uis A. Rodriguez-Soto, Steven S mallwood, Anthony T. Green, Tywan Singleton, Ronald Wilson, William Nesbitt, Corey Powell, Walter Pittman, Gary E. Poindexter, Joshua J. Starlep er, Thomas Rego, Cynthia Warren, T ommie R. Boozer, Thomas Dixon, Walter C. Bryan, Tyrone F . Tucker, Gary R. Smallwood, Ke vin Lee Price, Gaylen Hawkins, Marlon Holder, Ricardo W ilkins, Myron Jeter, and Denis e 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 sur veillance devices in at least three “private areas ” of the VA Medical Center. (C ompl. ¶ 33.) Chief Brown obtained the consent of Director Hawki ns, but did not follow the VA Hand book’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 le ast 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 camer a 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 lig hts 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 o fficers present discussed whatto do about the camera and

2 As is apparent in th e analysis section infra , many of these facts are contested by defendants.
3 According to the complaint, sect ion 6(b)(1) of the VA Handbook provides that “[t]he use of body microphones and recording devi ces are authorized for inves tigative purposes only. This use must be authorized by the Deputy A ssistant Secretary for Securi ty and Law Enforcement.” Section 6(b)(2) provides: “Use of any device to overhear or rec ord conversations without the participants’ consent must be acc omplished in accordance with t he U.S. Attorney General’s guidelines on communication in terception by Federal law enforce ment personnel.” And section 6(b)(3) provides: “[ t]he use of recording devices is not author ized for the routine taping of conversations during patrol a nd other duty activities.”3 microphone.” (Compl. ¶ 39.) In the midst of this discussion a nd immediately after the microphone was covered up, Chief B rown entered the room, demand ed to know what the officers were doing, and “ordere d all attending officers to dra ft statements regarding what was happening in the [C]ontrol [R]oom.” (Compl. ¶¶ 40-41.) Two months later, in March 2014, ano ther 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. Rodrigu ez-Soto (a named plaintiff), which included a two-week suspens ion without pay. (Compl. ¶ 44.) Then, in January 2015, a hidden camer a with an attached microp hone 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 us e. (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 behal f of all others similarly situated, 4 filed the above-captioned case, a lleging that the secret surve illance devices installed at the VA Medical Center violate fe deral and state law and seeking injunctive relief and damages.

4 The “putative class” consists of All employees of the Department of Veterans Affairs Medical Cen ter located at 50 Irving Street NW, Washington D.C. 20422 whose conversations or activities were recorded without their know ledge or permission from the da tes of May 29, 2013 to the conclusion of this litigation. (Compl. ¶ 25.)4 The specific claims in the compl aint are that: (1) Chief Brown, Director Hawkins and JCI’s actions violated federal and sta te wiretapping statutes (Counts I and II) and constituted an unlawful civil conspiracy (Count I II); (2) Chief Brown’s action s violated plaintiffs’ Fourth Amendment right not to be subjec ted to unreasonable searches an d seizures (Count IV); and (3) Secretary McDonald is liable under the Federa l Tort Claims Act (“FTCA”) for Chief Brown’s tortious acts and omissions (Count V). 5 (Compl. ¶¶ 75-98.) Plaintiffs subsequently volunt arily dismissed with prejudice a ll of their claims against JCI. ( See Notice of Voluntary Dismissa l with Prejudice, Sept. 28, 2015 [ ECF No. 15].) The remaining claims against Chie f Brown, Director Hawkins and Secr etary McDonald are the subject of defendants’ pending dispositive motion. Defendants seek dismissal or s ummary judgment as to all of pla intiffs’ claims. No discovery has taken place, but de fendants’ motion for summary j udgment is supported by extensive declarations from Chief Brown and Frank Giorno, the V A’s Regional Counsel for the District of Columbia, along with e xcerpts of sworn testimony fr om Chief Brown, Director Hawkins, Deputy Chief of Police Cleveland Walls, and Officer Ro driguez-Soto, all of which were taken in April 2014 in the VA Medical Center’s Administrat ive Investigation Board’s

5 For Count I, plaintiffs “seek sta tutory damages from Defendant s jointly and severally amounting to the greater of $100 per day for each employee reco rded or $10,000.00 for each employee, attorneys’ fees, and t he costs of this action.” (Com pl. at 16.) For Count II, plaintiffs “seek statutory damages from Def endants jointly and severally a mounting to the greater of $100 per day for each employee recorded or $1,000.00 for each employ ee, 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 Defenda nt jointly and severally.” (Compl. at 18.) For Count IV, plai ntiffs seek “all damages ava ilable including money damages, attorneys’ fees, and costs.” ( Compl. at 19.) For Count V, pla intiffs seek a declaration that defendants’ conduct was unlawfu l, compensatory and punitive dam ages, 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 e nvironment claim brought by plaint iffs against Chief Brown. Plaintiffs filed an opposition to def endants’ motion that is su pported by declarations from ten of the named plaintiffs, along with a Rule 56(d) declaration from counsel 6 that asks the Court to deny defendants’ motion for summ ary judgment pending the comple tion of discovery. ( See Pls.’ Opp’n to Defs.’ Mot., Dec. 4, 2015 [EC F No. 20].) Defendants f iled a reply, submitting additional testimony from the Bo ard investigation from several of the plaintiff officers, the VA Associate Director Bryan Matth ews, and a JCI employee, Mark Bra dford, along with a declaration from defendant s’ counsel, Mark Nebeker. ( See Defs.’ Reply, Feb. 8, 2016 [ECF No. 24.) Plaintiffs sought leave to f ile a surreply to respond to the Nebeker Declaration ( see Pls.’ Mot. to File Limited Surre ply, Feb. 29, 2016 [ECF No. 27]), and defendants filed a response to the motion which included the ir response to the surreply ( see Defs.’ Resp. to Pls.’ Motion to File Limited Surreply, Mar. 1, 2016 [ECF No 28]). The Court will gr ant plaintiffs’ motion and consider both plaintiffs’ surre ply and defendants’ response in ruling on defendants’ dispositive motion.
ANALYSIS
I. WIRETAPPING STATUTES (COUNTS I & II) In Counts I and II, plaintiffs c laim that by secretly installi ng surveillance equipment in the VA Medical Center, Chief Bro wn and Director Hawkins violate d the federal wiretapping

6 Rule 56(d) provides: When Facts Are Unavailable to t he Nonmovant. If a nonmovant sh ows by affidavit or declaration that, f or specified reasons, it cannot present facts essential to justify its opposition, the cour t may:(1) defer considering the motion or deny it; (2) allow time to obtain affidav its 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 Colum bia’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 survei llance and it is undisputed thatno audio surveillance ever took place. 8 Plaintiffs appear to concede that neither statute applies to video surveillance, but they contend that they should be allo wed to pursue Counts I and II b ecause it is a disputed fact whether audio surveillance occurr ed, especially given that plai ntiffs have not yet had the opportunity to take discovery. The Court agrees. Defendants rely on the following e vidence to arg ue that it is undisputed that no audio surveillance took place: (1) Chief Brown’s statement in his dec laration that: “There was no request for audio surveilla nce or audio recording; nor to my knowledge was audio surveillance or audio recording approved or conducte d at the VA Medical Center. ” (Brown Decl. ¶ 10 (emphasis added)); (2) an Oct ober 23, 2013 memorandum from Chie f Brown to Director Hawkins seeking authori zation to install two video recording devices ( see Brown Decl. Ex. A (emphasis added)); (3) Director Hawkins’ negative response to t he question “[w]as there any

7 In Count I, plaintiffs allege th at Chief Brown, Director Hawki ns, and JCI “jointly conspired to install video and audio surveilla nce equipment to secretly reco rd conversations and conduct at the Medical Center,” that Chief B rown “used that recorded infor mation to discipline, terminate and terrorize employees at the Medical Center,” and that “[d]ef endants’ actions were not justified by any Court, or law enforcement agent and do not conform to an y of the exceptions provided by 18 U.S.C. § 2511(2).” (Co mpl. ¶¶ 76-78.) In Count II, plaintiffs allege th at Chief Brown, Director Hawki ns, and JCI “willfully intercepted oral communications between emplo yees at the Veterans Affairs M edical Center,” that their actions “were not legally j ustified and do not establish any of the exceptions as set out in D.C. Code § 23-542(b),” and that Chief B rown “utilized the unlawfull y intercepted oral communications to discipline, terminate, and terrorize employee s at the Medical Center.” (Compl. ¶¶ 80-82.)
8 Defendants concede that both sta tutes apply to audio surveilla nce. ( See Defs.’ Mot. at 12 (“‘Both statutes create a privat e right of action of any person whose communications have been unlawfully intercepted, us ed 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 testi mony that although he did not part icipate in the actual installation of any devices, he was there when t he installing technician “t ied back the audio cables and taped them” and that the technician “ told him” that he never connecte d the audio (Bradford Tr. at 8); (5) Associate Director Matthew s’ testimony about the surveillan ce device in the Control Room that “to [his] knowledge, it did no t have audio” (Matthews Tr. at 6); and (6) defendants’ counsel’s declaration that he ha d the Office of the AUSA purch ase a camera bearing the description “MiNi CCD” camera th at he believed was similar to t he 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 conne cted (Nebeker Decl. ¶¶ 2-3, 7-8). The declarations submitte d by plaintiffs to respond to defenda nts’ evidence state that several officers saw a microphone attached to the camera in the Control Room, that the microphone was installed at a he ight 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; A llen Decl. ¶¶ 4-7; Rodriguez-Soto Decl. ¶¶ 3-5; Smallwood Decl. ¶¶ 3-6; Starleper Decl. ¶¶ 3-6; S ingleton Decl. ¶¶ 3- 6.) Plaintiffs’ declarations also describe one occasion when officers in the Co ntrol Room were talking about the camera and microphone the y had found and then, after the of ficers covered up the microphone, “Chief Brown stormed into the room and started bera ting [the officers] about being near his camera and microphone” an d then demanded that the offi cers 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 “ventin g 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 ruli ng on defendants’ motion for sum mary judgment, the Court concludes that existi ng record is not suffi ciently clear at thi s juncture to accept as undisputed the fact that no audio surveillanc e took place. Moreover, plaintif fs’ counsel has filed a declaration pursuant to Rule 56(d), stating t hat plaintiffs request documen t discovery and depositions in order to ensure that they have access to any evidence that migh t controvert Chief Brown’s declaration and the other ev idence relied upon by defendants. (Rule 56 Decl. ¶¶ 3, 8-9.) This is a valid request, for courts are ge nerally loath to award summar y judgment before the nonmoving party has been given an a dequate opportunity for discove ry, 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 excep tion to this general rule. The strongest evidence for defendant s is a declarati on from Chief B rown, who is a defendant in this case. Plaintiffs should not have t o accept the statements in h is declaration at face value without having the opportunity to conduct document discovery and to dep ose him and others with potentially relevant informati on. For these reasons, the Court will deny without prejudice defendants’ motion for summa ry judgment on Counts I and II.
II. CIVIL CONSPIRACY (COUNT III) In Count III, plaintiffs allege that the actions of Chief Brow n and Director Hawkins, in conjunction with JCI, render them liable for civil conspiracy. Specifically, plaintiffs claim that Chief Brown, Director Hawkins, a nd JCI entered into and carried out a conspiracy to illegally install hidden cameras and micropho nes in the Medical Center an d that Chief Brown monitored9 and utilized the data collected f rom those devices against empl oyees of the Medical Center. (Compl. ¶¶ 83-88.) Defendants argu e that the civil conspiracy count should be dismissed for failure to state a claim, because “ if this Court finds, as is l ikely, that there are no underlying predicate counts, then the cons piracy count must similarly be d ismissed.” (Defs.’ Mot. at 14.) Defendants are correct that “unde r 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 predicat e offense. However, as explained

supra , the Court has rejected defendant s’ 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 tha t Chief Brown’s actions viola ted their Fourth Amendment right to be free from unreasonable searches and seizu res 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 personal ly liable for damages. Bivens established that federal officials can be sued in their i ndividual capacities for action s taken under the color of law that violate the Fourth Amendment , but the doctrine of qualified imm unity protects government officials from liability “inso far as their conduct does not vio late clearly established statutory or constitutional rights of whic h a reasonable person would have k nown.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). In the prese nt case, defendants cont end that they are entitled to summary judgment on plaintiffs’ cl aim against Chief Brown eithe r (1) because the surveillance did not violate the Fourth Amend ment, or (2) even if it did, th e right was not clearly established10 at the time the surveillance o ccurred. Given the incompletenes s of the existing r ecord, the Court finds it impossible at this time to agree with either of defend ants’ arguments. The Fourth Amendment’s protect ion “against unreasonable search es and seizures” “applies . . . when the government acts in its capacity as an e mployer.” 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 right s merely because they work for t he government instead of a private employer.”). However, where the government as employer conducts a search or seizure for “noninvestigatory, work-relate d purposes” or for “investiga tions of work-related misconduct,” the standard for dete rmining whether that search o r 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 t he “operational realities of the workplace” “on a case-by-case basis,” the employee has a “rea sonable expectation of privacy” in the intruded-upon space. Id . at 717-18. If the answer to that ques tion is yes, Fourth Amendmen t 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 stan dard, both the inception and the scope of the intrusion must be reasonable.” O’Connor , 480 U.S. at 726. To support their argument that t here was no Fourth Amendment v iolation, defendants rely primarily on a twenty-year o ld decision from a federal dis trict court in Kansas. See Thompson v. Johnson County Community College , 930 F. Supp. 501 (D. Kan. 1996). In Thompson , the plaintiffs were communit y college security officers who c hallenged the11 warrantless installation of video s urveillance equipment in the security personnel locker area. The surveillance took place in t he “security personnel locker a rea,” an area that “was not enclosed,” and that “was part of a storage room that also house d the College’s heating and air conditioning equipment.” Id . at 507. In this area, “[p]lain tiffs’ activities could be vie wed by anyone walking into or through the s torage room/security person nel locker area,” the area was not “reserved for [the plaintiffs ] exclusive use,” and “other c ollege personnel also had regular access to this area.” Id . Based on these facts and appl ying the approach adopted by th e plurality
in O’Connor , the court granted summary judgme nt for the defendants, findin g that (1) the officers had no reasonable expect ation of privacy in the locker area, and (2) even if they did, the video surveillance conducted by the defendants to investigate r eports of employee misconduct was reasonable in both inception and scope. Defendants contend , without further elaboration, that the facts in Thompson are “similar to the circumstan ces at issue in the instant acti on” and that, following Thompson , the Court should grant Chief Brown summary j udgment on plaint iffs’
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. Fir st and most importantly, the factual record
in Thompson was fully developed, whereas the factual record here case is n ot. Second, the allegations of the complaint suggest that aspects of the survei llance 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 fo r 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 c ollege security officers ch allenging video surveillance in office stated Fourth Amendment claim); Richards v. County of Los Angeles , 775 F. Supp. 2d12 1176, 1182- (C.D. Cal. 2011) (covert vi deotaping of county empl oyees 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 reas onable expectation of privacy from video surveillance in VA locker-break room and stated cla im that search was unreasonable ); Trujillo v. City of Ontario , 428 F. Supp. 2d 1094, 1101-09 (C.D. Cal. 2006) (police officers who were secretl y videotaped in locker room had reasonable expe ctation of privacy and search wa s not reasonable). For now, though, the Court will not s peculate as to where the ultimate facts of this case will lead. As our Court of Appeal s has made clear, “the inquir y into reasonableness must be made on a case-by-case basis,” and it must be based upon an ade quate record. Stewart v. Evans , 275 F.3d 1126, 1130-31 (D.C. Cir. 2002) (reversing dismissal an d remanding because “[w]ithout knowing more about the circumsta nces 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 determina tion on motion for summary judgme nt 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 th e undisputed facts establish ei ther 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 expectatio n of privacy, the search was reasonable in both its inception and its scope. Given that pla intiffs have not yet had the opportunity to take discovery, a nd considering the disputed fac ts viewed in the light most favorable to the plaintiffs, t he Court cannot find that defenda nts’ surveillance did not violate the Fourth Amendment. For the same reason, it is premat ure at this juncture to concl ude that Chief Brown is protected from liability by the doctrine of qualified immunity. For a right to be “clearly13 established,” the “[t]he contours of the right must be sufficie ntly clear that a reasonable official would understand what he is doing v iolates that right. This is not to say that an official action is protected by qualified immunity unless the very action in quest ion has previously been held unlawful, but it is to say that in the light of pre-existing la w the unlawfulness must be apparent.” Anderson v. Creighton , 483 U.S. 635, 640 (1987). This does not mean that “a case di rectly 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 conclude d that the record is inadequate to conclude that plaintiffs’ constitutional right s were not violated, it is also inadequate to assess whether defe ndant violated a right that wa s 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 gr ound of qualified immunity where record was inadequate to assess whether plaintiff lacked a reas onable expectati on of privacy in the area searched). Accordingly, the Court will deny without prej udice defendants’ motion for su mmary judgment on Count IV.
IV. FTCA (COUNT V) In Count V, plaintiffs claim that the Department of Veterans A ffairs, sued through Secretary McDonald in his offici al capacity as VA Secretary, is liable for damages under the FTCA for Chief Brown’s install ation of hidden cameras and micro phones. ( See Compl. ¶¶ 96- 98.) Defendants move to dismi ss Count V on the ground that the United States is the only proper party defendant in actions brought under the FTCA. As plaintif fs concede in their opposition ( see Pls.’ Resp. at 4 n.1), defendants are correct that Count V sho uld have been filed against the United States as the FTCA does not authorize suits against fede ral officials or federal agencies.
See 28 U.S.C. § 2679; see also Kissi v. Simmons , No. 09-cv-1377, 2009 WL 3429567, at *114 (D.D.C. Oct. 22, 2009) (“the proper d efendant to an action unde r 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 he r official capacity for lack of subject matter jurisdiction). Plaintiffs have not, however, file d a motion seeking leave to a mend 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 satisfi ed before bringing suit under t he 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 declarat ions from the VA’s Assistant General Counsel and the VA’s Regional Counsel in this re gion, both stating that a searc h was conducted of all available records and that no administrat ive FTCA claims filed by plainti ffs were discovered. ( See Bradshaw Decl. ¶ 5 (“A search of VA records was conducted. Num erous cases involving the named plaintiffs were discovere d, but all such cases involved e ither Equal Employment Opportunity Commission complaint s or adverse administrative act ion complaints. None of the filing in these cases can be cons trued as complying with the mi nimal 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 s earch of all available VA rec ords of administrative tort claims submitted for adjudication maintained locally for evidence of a n administrative claim filed by the above-name plaintiff. No suc h claim was discovered.”).)
10 28 U.S.C. § 2675(a) states: An action shall not be instituted upon a claim against the Uni ted States for money damages for injury or loss of property or personal injury or de ath caused by the negligent or wrongful act or om ission of any employee of the Go vernment while acting within the scope of his o ffice or employment, unless the claimant shall have first presented the claim to the appropriate Federal agenc y and his claim shall have been finally den ied by the agency in writing and sen t by certified or registered mail. The failure of an agency to make final disposi tion of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final de nial of the claim for purposes of this section.
11 28 C.F.R. § 14.2(a) states: For purposes of the provisi ons of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been pres ented when a Federal agency re ceives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notifica tion of an incident, accompani ed by a claim for money damages in a sum certain f or injury to or loss of propert y, personal injury, or death alleged to have occurr ed by reason of the incident; an d the title or legal15 CONCLUSION Accordingly, and for the reas ons stated above, defendants’ mot ion 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, a nd is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, a dministrator, parent, guardian, or other representative.