UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________ 

 ) 

KIESHA D. LEWIS, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 23-359 (RBW)

 ) 

DANIEL WERFEL, IRS ) 

Commissioner,

1

 ) 

 ) 

 Defendant. ) 

____________________________________) 

MEMORANDUM OPINION

The plaintiff, Kiesha D. Lewis, proceeding pro se, brings this civil action against the 

defendant, Daniel Werfel, in his official capacity as the Commissioner of the Internal Revenue 

Service (“IRS”), alleging (1) a claim under 42 U.S.C. § 1983 for the violation of her right to 

privacy under the Ninth Amendment, see Complaint for a Civil Case (“Compl.”) at 6–12, ECF 

No. 1, (2) the violation of her right to privacy under the Privacy Act of 1974, 5 U.S.C. § 552a, 

see id., and (3) the intentional infliction of emotional distress, see id. at 12–13. Currently 

pending before the Court is the defendant’s Motion to Dismiss (“Def.’s Mot.”), ECF No. 6, 

pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon careful consideration of the parties’ 

submissions,2 the Court concludes for the following reasons that it must grant the defendant’s 

motion. 

1 Daniel Werfel is the current Commissioner of the Internal Revenue Service, and he is therefore substituted for 

Douglas O’Donnell as the proper party defendant pursuant to Federal Rule of Civil Procedure 25(d).

2 In addition to the filings already identified, the Court considered the following submissions in rendering its 

decision: (1) the Memorandum of Law in Support of the United States’ Motion to Dismiss Plaintiff’s Complaint

(“Def.’s Mem.”), ECF No. 6-1; (2) the Plaintiff’s Response to Defendant’s Motion to Dismiss (“Pl.’s Opp’n”), ECF 

No. 9; and (3) the Reply in Support of the United States’ Motion to Dismiss (“Def.’s Reply”), ECF No. 10. 
2

I. BACKGROUND

A. Factual Background 

The following allegations are taken from the plaintiff’s Complaint, unless otherwise 

specified. The plaintiff formerly worked at the IRS, see Compl. at 7, and as part of her 

employment, underwent a background investigation conducted by the Defense 

Counterintelligence and Security Agency (“DCSA”), see id., Exhibit (“Ex.”) B (Privacy Act 

Request E-mail (Apr. 22, 2022)) at 1 (noting “that the Defense Counterintelligence and Security 

Agency (DCSA) . . . conducted [the plaintiff’s background] investigation”), ECF No. 1-2. 

Starting in 2016, the plaintiff “filed several complaints against the [IRS] for behavior that [she] 

characterize[d] as unethical, immoral, and against the federal government and IRS policy.” Id. at 

7. Then, “[i]n October 2017, [the plaintiff’s] employment with the IRS ended.” Id. However, 

“[d]espite this fact, the IRS [allegedly] contacted the [DCSA] several times in 2018 . . . to 

request and obtain private, personal, and confidential information on [the plaintiff] without [her] 

knowledge or consent.” Id. “In 2018, after receiving [the plaintiff’s] background investigation 

file, the IRS [allegedly] performed a ‘Suitability’ adjudication on [her.]”3 Id. at 9. “According 

to IRS policy, Suitability Investigations and Adjudications are only performed on IRS 

employees[,]” id., but the plaintiff “was not an IRS employee in 2018, [nor at that time] had 

3 The Defense Counterintelligence and Security Agency’s website defines a suitability adjudication as “the 

evaluation of duly authorized personnel vetting information that is relevant and reliable, to determine whether a 

person who performs or seeks to perform work for, or on behalf of, the Executive Branch, not including the 

President, the Vice President, or their respective Employees except as provided by 3 [United States Code] or annual 

appropriations acts is: (1) suitable for government employment; (2) eligible for Logical and/or Physical Access; (3) 

eligible for Access to Classified Information; (4) eligible to hold a Sensitive Position; or (5) fit to perform work for 

or on behalf of the government as a Contractor Employee.” Adjudications, Defense Counterintelligence and 

Security Agency, https://www.dcsa mil/Personnel-Security/Adjudications. The Court takes judicial notice of this 

information because it is available on the DCSA’s public website. See United States ex rel. Groat v. Boston Heart 

Diagnostics Corp., 255 F. Supp. 3d 13, 24 n.7 (D.D.C. 2017) (Walton, J.) (“[C]ourts in this jurisdiction have 

frequently taken judicial notice of information posted on official public websites of government agencies.” (quoting 

Pharm. Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014))). 
3

[she] been tentatively selected for an IRS position or appointed to a position at the IRS or at the 

Department of Treasury[,]” id. at 10. 

In 2019, the IRS also allegedly “contact[ed] a third party, the National Student 

Clearinghouse (NSC)”—a “nonprofit and nongovernmental organization that provides education 

reporting, data exchange, verification, and research services”—“to verify [the plaintiff’s] 

educational information.” Id. at 11. “On February 11, 2019, IRS employee ‘Donnie Robbins,’ 

[allegedly] contacted [the] NSC to verify [the plaintiff’s] education.” Id. Despite the plaintiff’s 

efforts to contact the IRS, “and sending various follow-up communications, [the IRS has

allegedly] refused to provide an explanation as to why an IRS employee was conducting this 

type of verification on [the plaintiff].” Id. 

Finally, the IRS also allegedly “collected and stored non-tax related data on [the 

plaintiff].” Id. at 12. More specifically, when the plaintiff submitted a Freedom of Information 

Act (“FOIA”) request for her personnel security investigation file, she received “a total of 192 

records[;]” however, according to the plaintiff, since her “IRS employment ended [in] October 

2017,” these records should not have existed. Id. Accordingly, the plaintiff alleges that:

Since filing formal complaints in 2016, [she] believe[s] that [she], [her] family, 

and [her] friends have been the target of a consistent, coordinated, and ruthless 

digital assassination retaliation campaign. The goals of this campaign are to 

cause [the plaintiff] to lose [her] job (by calling into question [her] security 

adjudication), cause undue financial burden (by causing [her] to have an 

unwarranted tax debt, causing [her] checking account to be in the negative or 

arbitrarily making [her] credit score lower) and to punish anyone who [the IRS] 

believe[s] [may be] assisting [the plaintiff] in [her] fight against this behavior. 

 

Id. In other words, the plaintiff “believe[s] that [she has] been the victim of federal government 

officials abusing their positions and/or authority to deprive [her] of [her] Ninth Amendment 

[r]ights and causing intentional infliction of emotional distress.” Id. at 6. 
4

B. Procedural Background 

The plaintiff filed her Complaint in this case on February 8, 2023. See Compl. at 1. On 

April 11, 2023, the defendant filed his motion to dismiss. See Def.’s Mot. at 1. The plaintiff 

filed her opposition on April 27, 2023, see Pl.’s Opp’n at 1, and the defendant filed his reply in 

support of his motion on May 8, 2023, see Def.’s Reply at 1. 

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can 

be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], a 

complaint must contain sufficient factual matter, 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 Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads 

factual content that allows the court to draw [a] reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 

In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the 

complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be

derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) 

(internal quotation marks omitted). While the Court must “assume the[] veracity” of any 

“well-pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the 

assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing 

Twombly, 550 U.S. at 555). Also, the Court need not “accept legal conclusions cast as factual 

allegations[,]” or “inferences drawn by [the] plaintiff if those inferences are not supported by the 

facts set out in the complaint[.]” Hettinga, 677 F.3d at 476. Finally, the Court “may consider 
5

only the facts alleged in the complaint, any documents either attached to or incorporated in the 

complaint[,] and matters of which [the Court] may take judicial notice.” Equal Emp. 

Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 

In applying the above framework, the Court is mindful of the fact that the plaintiff is 

proceeding in this matter pro se. This appreciation is required because the pleadings of pro se

parties are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must be 

held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 

551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). Furthermore, all factual 

allegations by a pro se litigant, whether contained in the complaint or other filings in the matter, 

should be read together in considering whether to grant a dispositive motion. See Richardson v. 

United States, 193 F.3d 545, 548 (D.C. Cir. 1999). However, just like parties represented by 

attorneys, a pro se litigant “must comply with the Federal Rules of Civil Procedure and this 

Court’s local rules[.]” Hedrick v. Fed. Bureau of Investigation, 216 F. Supp. 3d 84, 93 (D.D.C. 

2016) (citations omitted); see McNeil v. United States, 508 U.S. 106, 113 (1993) (“[The 

Supreme Court] ha[s] never suggested that procedural rules in ordinary civil litigation should be 

interpreted so as to excuse mistakes by those who proceed without counsel.”). 

III. ANALYSIS

The defendant argues that the Complaint should be dismissed pursuant to Federal Rule of 

Civil Procedure 12(b)(6) because: (1) “[T]he Ninth Amendment does not convey the kind of 

substantive rights required to sustain a § 1983 claim[,]” Def.’s Mem. at 1; “(2) [the plaintiff’s] 

Privacy Act claim fails because she has not alleged any ‘adverse effect,’ among other 

deficiencies[,]” id.; and (3) “[t]o the extent that [the p]laintiff alleges intentional infliction of 

emotional distress under the [Federal Tort Claims Act (‘FTCA’)],” the plaintiff has not “sought 
6

relief at the administrative level as required” by the FTCA, id. at 9. Although the plaintiff does 

not directly respond to the defendant’s arguments, she alleges that “[t]here are cases in which the 

federal government has held individuals and/or entities responsible and liable for privacy 

invasions.” Pl.’s Opp’n at 2. The Court will consider each of the defendant’s arguments in turn. 

A. Whether the Plaintiff Has Stated a Claim Under 42 U.S.C. § 1983 

The Court first considers the defendant’s challenge to the plaintiff’s § 1983 claim that the

IRS has violated her right to privacy under the Ninth Amendment. See Compl. at 6–12. The 

plaintiff claims that 42 U.S.C. § 1983 “gives citizens the right to seek civil action when a 

government official deprives one of any rights, privileges, or immunities secured by the 

Constitution.” Id. at 6. And here, the plaintiff alleges that she has “been the victim of federal 

government officials abusing their position and/or authority to deprive [her] of [her] Ninth 

Amendment Rights[.]” Id. More specifically, the plaintiff claims that the IRS violated her 

constitutional right to privacy when it allegedly “contacted the [DCSA] several times in 2018 

and the [NSC] in 2019 to request and obtain private, personal, and confidential information on 

[the plaintiff], without [her] knowledge or consent.” Id. at 7. The defendant responds that 

“[r]elief is not available [to the plaintiff] under § 1983” because “the Ninth Amendment does not 

convey the kind of substantive rights required to sustain a § 1983 claim.” Def.’s Mem. at 1. 

“Section 1983 is not the source of substantive rights but rather ‘a method for vindicating 

federal rights elsewhere conferred.’” Blackman v. District of Columbia, 456 F.3d 167, 177 

(D.C. Cir. 2006) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “In order to state a 

claim for relief under 42 U.S.C. § 1983, [a] plaintiff[] ‘must establish that [she] was deprived of 

a right secured by the Constitution or laws of the United States, and that the alleged deprivation 
7

was committed under color of state law.’” Rynn v. Jaffe, 457 F. Supp. 2d 22, 25–26 (D.D.C. 

2006). 

“The Ninth Amendment states that ‘[t]he enumeration in the Constitution of certain

rights, shall not be construed to deny or disparage others retained by the people.’” Id. at 26 

(quoting U.S. Const. amend. IX). Accordingly, “[a]s courts have consistently held, the Ninth 

Amendment is a rule of construction, not a substantive basis for a civil rights claim.” Id.; see 

also Wardlaw v. Pickett, No. 89-cv-1557 (OG), 1990 WL 209835, at *4 (D.D.C. Dec. 5, 1990) 

(“As courts have frequently noted, the [N]inth [A]mendment ‘has never been recognized as 

independently securing any constitutional right, for purposes of pursuing a civil rights claim.’” 

(quoting Standberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986))). Thus, the “plaintiff[] 

cannot cite the Ninth Amendment of the U.S. Constitution to support a § 1983 action.” Jaffe, 

457 F. Supp. 2d at 26. And the plaintiff does not provide any other substantive bases for her 

§ 1983 claim. See generally Compl. The Court must, therefore, dismiss the plaintiff’s § 1983 

claim. 

B. Whether the Plaintiff Has Stated a Claim Under the Privacy Act

The Court next addresses the defendant’s challenge to the plaintiff’s Privacy Act claim. 

See Compl. at 6–12. The plaintiff alleges that “the IRS failed to follow establish protocols[,]” id. 

at 8, when it allegedly “obtain[ed] private, personal, and confidential information on [the 

plaintiff],” id. at 7, which constituted a violation of “the Privacy Act of 1974[,]” id. at 8. More 

specifically, the plaintiff alleges that the defendant violated the Privacy Act when it “contacted 

the [DCSA] several times in 2018 and the [NSC] in 2019 to request and obtain private, personal, 

and confidential information on [the plaintiff], without [her] knowledge or consent.” Id. at 7. 

The defendant claims that “two critical deficiencies in [the p]laintiff’s Privacy Act claim are 
8

apparent.” Def.’s Mem. at 8. As a threshold matter, the defendant claims that the “[p]laintiff 

appears to have filed her Complaint after the statute of limitations had already elapsed.” Id. 

Moreover, the defendant states that the “[p]lantiff has failed to allege the required elements of a 

claim for relief under the Privacy Act.” Id. Because the Court ultimately concludes that the 

plaintiff has failed to state a claim for relief under the Privacy Act, the Court need not address 

whether the plaintiff’s claim is barred by the applicable statute of limitations. See Bailey v. 

Fulwood, 780 F. Supp. 2d 20, 23 (D.D.C. 2011) (“[I]n this Circuit, ‘the statute of limitations 

period set forth in 5 U.S.C. § 552a(g)(5) is not a jurisdictional bar.’” (quoting Kursar v. 

Transportation Sec. Admin., 751 F. Supp. 2d 154, 165 (D.D.C. 2010) (Walton, J.))). 

“To state a claim under the Privacy Act, a plaintiff must establish that (1) the agency 

violated a provision of the Act; (2) the violation was intentional or willful; and (3) the violation 

had an ‘adverse effect’ on the plaintiff in the form of damages.” Chichakli v. Tillerson, 882 F.3d 

229, 233 (D.C. Cir. 2018). Here, the plaintiff fails to demonstrate that “the [alleged Privacy Act] 

violation had an ‘adverse effect’ on [her] in the form of damages.” Id. At best, the plaintiff may 

be claiming that her emotional distress adversely affected her.

4

 See Compl. at 8 (“[T]he IRS 

failed to follow established protocols resulting in what [the plaintiff] believes was a violation of 

[her] constitutional right to privacy and the Privacy Act of 1974 resulting in Intentional Infliction 

of Emotional Distress.”). While “emotional trauma alone is sufficient to qualify as an ‘adverse 

effect’ under [the Privacy Act,]” Albright v. United States, 732 F.2d 181, 186 (D.C. Cir. 1984), a 

plaintiff is only entitled to recovery if the emotional trauma was “acute, tangible, and severe

enough to give rise to actual damages[,]” Mulhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 

4 Indeed, nowhere in the plaintiff’s filings does she allege that the IRS’s actions impacted her employment prospects 

or caused her any financial harm. See Pl.’s Opp’n at 5 (“[T]he IRS has been unsuccessful in its attempts to make me 

lose my job or my security adjudication.”); see id. at 5–6 (“[T]he federal government has been unsuccessful in its 

attempts to make me lose my job or my security adjudication[.]”). 
9

2007); see also Rice v. United States, 245 F.R.D. 3, 6 (D.D.C. 2007) (“Proof of adverse effect 

alone does not entitle plaintiffs to recovery under the Privacy Act without a further showing of 

‘actual damages.’” (quoting Doe v. Chao, 540 U.S. 614, 625 (2004))). And here, aside from 

conclusory statements that she suffered emotional distress, the plaintiff does not describe the 

severity of her distress or any actual damages that resulted from it. See generally Compl. 

Accordingly, the plaintiff fails to satisfy the third element of a Privacy Act claim—viz., “the 

[alleged] violation had an ‘adverse effect’ on [her] in the form of damages.” Chichakli, 882 F.3d 

at 233; see also Chao, 540 U.S. at 620–25 (holding that emotional anguish alone is insufficient, 

and that a plaintiff must show actual damages to recover under the Privacy Act). Accordingly, 

the Court concludes that it must dismiss the plaintiff’s Privacy Act claim.5 

C. Whether the Plaintiff Has Stated a Claim for Intentional Infliction of Emotional 

Distress Under the Federal Tort Claims Act

Finally, the Court considers the defendant’s challenge to the plaintiff’s intentional 

infliction of emotional distress claim. See Compl. at 12. As previously noted, see supra Section 

I.A, the plaintiff “believe[s] that [she] ha[s] been the victim of federal government officials 

abusing their positions and/or authority to deprive [her] of [her] Ninth Amendment [r]ights and 

5 In her opposition, the plaintiff cites to five cases “in which the federal government [ ] held individuals and/or 

entities responsible and liable for privacy invasions.” Pl.’s Opp’n at 2. However, none of the plaintiff’s cited cases 

are applicable to the present matter. Four of the plaintiff’s cited cases arose from enforcement actions brought by 

the Federal Trade Commission. See In the Matter of Lenovo Inc., 2017 WL 6885837 (F.T.C. Dec. 20, 2017); 

United States v. Vtech Elec. Ltd., et al., 2018 WL 317978 (N.D. Ill. Jan. 8, 2018); LabMD, Inc. v. Fed. Trade 

Comm’n, 894 F.3d 1221 (11th Cir. 2018); In re Facebook, Inc., Consumer Privacy User Profile Litigation, 402 F. 

Supp. 3d 767 (N.D. Cal. 2019). More specifically, these cases involved FTC actions against private entities for

violations of the Federal Trade Commission Act. Here, the plaintiff’s suit neither involves private entities nor 

violations of the Federal Trade Commission Act. See generally Compl. And the plaintiff provides no rationale for 

why suits brought by the FTC against private entities would be relevant to a matter involving the IRS’s alleged

acquisition or use of an employee’s data. The final case the plaintiff cites, Van Buren v. United States, 141 S. Ct.

1648 (2021), is similarly inapposite. Van Buren involved the Computer Fraud and Abuse Act—viz., a statute that 

the plaintiff does not invoke in her Complaint. Furthermore, the defendant in that criminal matter was a state police 

sergeant, see id. at 1652, not a federal employee or agency. Accordingly, the Court is unpersuaded that the 

plaintiff’s cited cases have any bearing on the resolution of this case. 
10

causing intentional infliction of emotional distress.” Id. at 6 (emphasis added). More 

specifically, the plaintiff alleges: 

Since filing formal complaints in 2016, [she] believe[s] that [she], [her] family, 

and [her] friends have been the target of a consistent, coordinated, and ruthless 

digital assassination retaliation campaign. The goals of this campaign are to 

cause [the plaintiff] to lose [her] job (by calling into question [her] security 

adjudication), cause undue financial burden (by causing [her] to have an 

unwarranted tax debt, causing [her] checking account to be in the negative or 

arbitrarily making [her] credit score lower) and to punish anyone who [the IRS] 

believe[s] [may be] assisting [the plaintiff] in [her] fight against this behavior. 

Id. at 12. The defendant argues that “[t]o the extent that [the p]laintiff alleges intentional 

infliction of emotional distress under the FTCA, . . . she has failed to state a claim upon which 

relief can be granted.” Def.’s Mem. at 9. More specifically, the defendant claims that “the 

FTCA requires plaintiffs to exhaust all administrative remedies before filing suit in federal 

district court.” Id. And, the defendant alleges that the “[p]laintiff has not properly exhausted her 

administrative remedies for her FTCA claim.” Def.’s Reply at 3 n.1. 

 “The exclusive remedy for torts committed by [g]overnment employees in the scope of 

their employment is a suit against the [g]overnment itself under the Federal Tort Claims Act 

(‘FTCA’), 28 U.S.C. §§ 1346(b), 2671–80. In other words, the FTCA works as a limited waiver 

of sovereign immunity, and claims for negligent and intentional infliction of emotional distress 

against a federal agency can only be pursued via the FTCA.” Wilson v. U.S. Dep’t of Transp., 

759 F. Supp. 2d 55, 64 (D.D.C. 2011) (internal citation omitted). “Further, the FTCA bars 

claimants from bringing suit until they have exhausted their administrative remedies, which 

includes the requirement that claimants first bring their claims to the agency, and that the claims 

have been denied by that agency.” Id.; 28 U.S.C. § 2675(a) (“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 
11

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[.]”). “To satisfy the FTCA’s administrativeexhaustion requirements, a plaintiff must first present [her] claim in writing to the appropriate 

federal agency within two years of the claim’s accrual.” Yirenkyi v. U.S. Cent. Intel. Agency, 

656 F. Supp. 3d 241, 248 (D.D.C. 2023). “Such exhaustion ‘is a requirement of the FTCA,’ that 

the [District of Columbia] Court of Appeals has deemed to be jurisdictional.” Emrit v. Nat’l 

Institutes of Health, 157 F. Supp. 3d 52, 55 (D.D.C. 2016) (internal citation omitted) (quoting 

Wilson v. Obama, 770 F. Supp. 2d 188, 191 (D.D.C. 2011)); see Simpkins v. District of 

Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 2007). Therefore, “FTCA claims may be 

dismissed for lack of subject matter jurisdiction where the plaintiff does not exhaust necessary 

administrative remedies under the FTCA, which is a mandatory prerequisite.” Tsitrin v. Lettow, 

888 F. Supp. 2d 88, 92 (D.D.C. 2012). 

Although the plaintiff does not explicitly invoke the FTCA in her Complaint, see 

generally Compl., the Court will liberally construe her filings as raising an intentional infliction 

of emotional distress claim under the Federal Tort Claims Act. See Harris v. Donahue, No. 11-

cv-2030 (BAH), 2011 WL 6759603, at *1 (D.D.C. Nov. 16, 2011) (“The Court is mindful of 

[the] plaintiff’s pro se status, and liberally construes her claim as one under the Federal Tort

Claims Act [ ] against the United States of America.”); Erickson, 551 U.S. at 94 (“A document 

filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, 

must be held to less stringent standard than formal pleadings drafted by lawyers[.]’” (internal 

citation omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); cf. Niedermeier v. Off.
12

of Baucus, 153 F. Supp. 2d 23, 27 (D.D.C. 2001) (noting “the general judicial preference for 

resolving [claims] on their merits rather than dismissing them on technicalities”). 

However, the plaintiff has failed to demonstrate that she satisfied the FTCA’s 

administrative exhaustion requirements. Although the plaintiff allegedly submitted a “Claim for 

Damage, Injury, or Death” form to the IRS on June 25, 2022, see Pl.’s Opp’n at 35, the 

information contained in that form is insufficient to satisfy the FTCA’s exhaustion requirements. 

Specifically, the plaintiff’s form makes no reference to intentional infliction of emotional 

distress. See Pl.’s Opp’n at 35. Instead, the plaintiff simply states that her “rights under the U.S. 

Constitution, the Ninth Amendment – the right to privacy and the Privacy Act of 1974 were 

violated.” Id. However, the plaintiff’s intentional infliction of distress claim—viz., a common 

law tort—does not arise under the Ninth Amendment or the Privacy Act of 1974. Cf. Hollis v. 

Rosa Mexicano DC, LLC, 582 F. Supp. 2d 22, 26 (D.D.C. 2008) (noting the standard for “the 

tort of intentional infliction of emotional distress” “[i]n the District of Columbia” (citing 

Restatement (Second) of Torts § 46 (1965))). Accordingly, the Court concludes that the plaintiff 

has failed to “present[] [her intentional infliction of emotional distress] claim to the [IRS]” as 

required by the FTCA. 28 U.S.C. § 2675; see Bembenista v. United States, 866 F.2d 493, 499 

(D.C. Cir. 1989) (finding that plaintiffs failed to exhaust their medical malpractice claim, as their 

administrative complaint only alleged assault); Edmonds v. United States, 436 F. Supp. 2d 28, 

34–35 (D.D.C. 2006) (holding that “[b]ecause [the plaintiff] asserted claims of negligent 

investigation for the first time in her Complaint filed in this Court, she failed to exhaust her 

administrative remedies with regard to these [specific] claims” and “[t]hus, the Court lack[ed] 

jurisdiction over these [specific] claims, and they must be dismissed”). Thus, the plaintiff’s 

FTCA claim must “be dismissed for lack of subject matter jurisdiction [as] the plaintiff d[id] not 
13

exhaust [the] necessary administrative remedies under the FTCA, which is a mandatory 

prerequisite.” Tsitrin, 888 F. Supp. 2d at 92. 

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it must grant the defendant’s motion 

to dismiss. 

SO ORDERED this 10th day of January, 2024.6

 

 REGGIE B. WALTON

 United States District Judge

6 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.