Scarlett v. Office of Inspector General ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAROL SCARLETT,
Plaintiff,
Civil Action No. 22-cv-188 (BAH)
v.
Chief Judge Beryl A. Howell
NATIONAL SCIENCE FOUNDATION
OFFICE OF INSPECTOR GENERAL,
Defendant.
MEMORANDUM OPINION AND ORDER
Dr. Carol Scarlett, president of Axion Technologies LLC, has initiated this pro se lawsuit
against the Office of the Inspector General (OIG) of the National Science Foundation (NSF),
claiming that NSF denied her a research grant, then engaged in a cover-up of its wrongful denial
by retaliating against plaintiff and conducting a “sham investigation” when she filed a complaint.
See generally Am. Compl., ECF No. 16. Plaintiff alleges that NSF unlawfully applied
“enhanced criteria” in denying her grant application, see id. ¶ 7, and, in retaliation for her
criticism of NSF’s decision, a “false complaint” was filed against her with the NSF OIG alleging
“unknown wrong doings,” id. ¶¶ 3, 13, violating a contractor whistleblower protection provision
of the 2013 National Defense Authorization Act (NDAA), 41 U.S.C. § 4712. After plaintiff’s
appeal of the grant application denial was unsuccessful, she lodged a complaint with the NSF
OIG, which investigation plaintiff alleges was blighted by misconduct because of investigators’
failure to pursue her allegations that she was subject to uniquely burdensome financial liquidity
requirements. Id. at ¶¶ 61–66. The NSF OIG has now moved to dismiss the amended complaint,
under FED. R. CIV. P. 12(b)(1), (3) and (6), for lack of subject-matter jurisdiction, improper
1
venue, and plaintiff’s failure to allege any plausible claim. Def.’s Mot. Dismiss or Transfer
Venue (“Def.’s Mot.”), ECF No. 17.
For the reasons set forth below, the plaintiff’s amended complaint is dismissed.
I. BACKGROUND
The factual background—derived from plaintiff’s pro se amended complaint and her
other filings—and procedural history relevant to the pending motion are described below.
A. Factual Background
The conflict underlying plaintiff’s lawsuit began on April 2, 2018, when NSF denied
plaintiff’s application for a Small Business Innovation Research Phase II grant, which would
have extended research funding plaintiff previously received from NSF under the first phase of
the grant program. Am. Compl. ¶ 9. 1 Plaintiff claims that NSF denied her application based on
“enhanced criteria” not required of other applicants. Id. ¶ 7. Specifically, plaintiff alleges that, a
month before her application was denied, an external accountant assessing her company’s
financial viability on behalf of NSF informed plaintiff that her business needed to have “twenty-
four times . . . the stated NSF criteria for financial liquidity,” with 24 times the amount of the
business’s monthly “burn” rate held in a liquid account. Id. ¶¶ 7, 16. She further alleges that, in
denying her application, NSF failed to review her company’s interim financial statements, id. ¶
20, and relied on “materially false statements” about her business’s financial viability made by
the external accountant assigned to review her application, id. ¶¶ 7–8.
1
The Small Business Innovation Research Program provides seed funding for research and development
work by small businesses Typically, only those businesses that have already received a Phase I award qualify to
apply for a Phase II award to continue the projects initiated in the prior phase of research. See Small Business
Innovation Research, About, https://www.sbir.gov/about (last visited December 21, 2022); NSF, America’s Seed
Fund, Our Program, https://seedfund.nsf.gov/our-program/ (last visited December 21, 2022).
2
In the days after plaintiff was informed that she would not receive a Phase II grant, she
attempted to challenge the decision through a variety of avenues. First, she contacted NSF
officials in a series of emails and phone calls requesting that the decision be reversed. Id. ¶¶ 16,
22–23; First Errata to Am. Compl., Ex. 8, April 2, 2018-dated email chain between Scarlett and
NSF official, ECF No. 21-9; id., Ex. 9, April 3, 2018-dated email chain between Scarlett and
NSF officials, ECF No. 21-10; id., Ex. 10, April 5, 2018-dated email chain between Scarlett and
NSF official, ECF No. 21-11. According to plaintiff, during a phone call on April 6, 2018,
Charles Ziegler, then Branch Chief for the National Science Foundation’s Cost Analysis and
Audit Resolution Office, urged her to transfer $130,000 from her personal to business accounts
before she appealed the application’s denial in order to improve the business’s liquidity. Am.
Compl. ¶¶ 16, 23; First Errata to Amended Complaint, Ex. 15, Plaintiff’s Unsigned Affidavit,
ECF No. 21-16. Plaintiff appears to have appealed NSF’s decision within a week of receiving it,
see Pl.’s Resp. Def.’s Mot. Dismiss or Transfer Venue (“Pl.’s Opp’n”), Ex. 1 at 13, 47, June 21,
2018-dated NSF OIG Interview of Scarlett Tr., ECF No. 18-1, which appeal appears to have
been denied at some point before June 3, 2018, see First Errata to Am. Compl., Ex. 11, June 3,
2018-dated email from Scarlett to NSF official, ECF No. 21-12. Plaintiff then filed, on June 3,
2018, a complaint with NSF OIG, alleging misconduct in NSF’s consideration of her grant
application, causing an OIG investigation to be opened that included June 2018 and December
2018 interviews of plaintiff and the external accountant, respectively. Am. Compl. ¶¶ 34–36;
Errata to Am. Compl., Ex. 11. NSF OIG informed plaintiff on September 11, 2019 that it closed
its investigation into her complaint, finding “no evidence to support the allegations made.” Pl.’s
Opp’n, Ex. 1 at 69, Sept. 11, 2019-dated NSF OIG Ltr., ECF No. 18-1.
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Plaintiff alleges that NSF OIG retaliated against her for complaining about her grant
application’s denial. She appears to claim that she engaged in protected whistleblower action by
seeking “explanation from several division heads at NSF,” in the days after she received the
decision, as well as by filing her June 3, 2018 complaint. Am. Compl. ¶¶ 22, 55. She asserts
that NSF retaliated against her when (1) on April 5, 2018, a complaint was filed against plaintiff
before the NSF OIG, id. ¶ 13, and (2) her appeal of the grant application’s rejection was denied,
see Pl.’s Opp’n at 3. She further alleges a “causal connection between the filing of an OIG
complaint against the Plaintiff” and her “protected disclosure of illegally enhanced criteria for
receiving federal grants.” Am. Compl. ¶ 54. Apparently as a part of the investigation of the
claim against her, plaintiff received a subpoena for her company’s financial and personnel
records but was not provided a secure link with which to send those records to the investigator.
Id. ¶ 56.
Plaintiff similarly alleges that, with regard to her June 2018 complaint about the review
of her grant application, NSF OIG “conducted a sham investigation with the intent of covering
up violations of federal regulation by an external contractor.” Am. Compl. ¶ 61. Plaintiff
charges that the investigators “could [have] easily disprove[n]” certain “inconsistent claims”
made by the external accountant about her business, such as the claim that Scarlett’s company
suffered financial problems, and OIG’s failure to do so constituted misconduct, id. ¶¶ 38–39.
Separately, plaintiff alleges that NSF OIG breached a contract with her. She alleges that,
on September 26, 2017, she was “given a contract to continue work on an NSF project expected
to operate an additional three months beyond the initial end date and to conduct research beyond
the initial scope of work,” but that she was unaware of this contract until January 27, 2021, when
she appears to have participated in an interview with NSF OIG. Am. Compl. ¶ 5; First Errata to
4
Am. Compl., Ex. 18, Jan. 27, 2021-dated Scarlett Interview Tr. Excerpt, ECF No. 21-19.
Plaintiff alleges this contract provided no funds to perform the additional work, and was instead
“to be billed against the previous grant.” Am. Compl. ¶ 5. In a January 2021 interview with
NSF OIG, to which plaintiff cites in support of this claim, plaintiff described requesting and
receiving an extension from NSF to submit a final report regarding her Phase I grant work in
2017. First Errata to Am. Compl., Ex. 18 at 2–7. This extension appears to be the contract that
plaintiff describes as a “bad faith negotiation.” Am. Compl. ¶ 31.
B. Procedural Background
Plaintiff initiated this litigation on January 20, 2022, alleging claims of whistleblower
retaliation and breach of contract against the NSF OIG. Compl., ECF No. 1. 2 In response,
defendant moved to dismiss plaintiff’s complaint, under Federal Rule of Civil Procedure
12(b)(1), (3) and (6), for lack of subject-matter jurisdiction, improper venue, and plaintiff’s
failure to allege any plausible claim, or in the alternative, to transfer venue. Def.’s First Mot.
Dismiss or Transfer Venue, ECF No. 7. Plaintiff opposed the motion, see Pl.’s Resp. to Def.’s
First Mot. to Dismiss, ECF No. 8, and defendant replied on May 20, 2022, see Def.’s Reply
Supp. First Mot. Dismiss, ECF No. 9.
The initial round of briefing on the defendant’s motion to dismiss was rendered moot,
however, by plaintiff’s August 23, 2022 motion to amend her complaint to add a third count.
Pl.’s Mot. to Add Count, ECF No. 12. In compliance with the Court’s order granting plaintiff’s
motion, over defendant’s objection, plaintiff filed an amended complaint asserting the same two
counts, plus an additional count alleging “Investigator Misconduct & Obstruction” in the OIG’s
2
Plaintiff brought a separate Freedom of Information Act claim against the same defendant in March 2021,
seeking disclosure of the complaint regarding plaintiff or her company filed with the NSF OIG on April 5, 2018.
Scarlett v. OIG, Case No. 21-cv-819 (RDM), Complaint, ECF No. 1. This parallel litigation remains ongoing.
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investigation of her complaint regarding the review of her grant application. Am. Compl. ¶¶ 34–
53. Defendant again moved to dismiss or transfer venue as to the amended complaint, see Def.’s
Mot., which motion became ripe for resolution on October 6, 2022, see Def.’s Reply Supp. Mot.
Dismiss or Transfer Venue (“Def.’s Reply”), ECF No. 19. 3 After the conclusion of the parties’
briefing, plaintiff filed two errata to her amended complaint containing the exhibits referenced in
the amended complaint, see First Errata to Am. Compl., ECF No. 21 and Second Errata to Am.
Compl., ECF No. 22, and in response to the Court’s order urging plaintiff that the failure to
address arguments raised by defendant may result in those arguments being treated as conceded,
see Minute Order (Dec. 7, 2022), plaintiff filed a supplemental memorandum in support of her
opposition to the motion to dismiss. See Pl.’s Suppl. Mem. Supp. Opp’n Def.’s Mot. Dismiss
(“Pl.’s Suppl. Mem.”), ECF No. 23.
II. LEGAL STANDARD
Defendant seeks to dismiss plaintiff’s amended complaint under Rule 12(b)(1), (3), and
(6), for lack of subject-matter jurisdiction, improper venue, and failure to state a claim upon
which relief can be granted, respectively. Defendant’s improper venue challenge is appropriately
dealt with first as a “threshold, non-merits issue that a court can address without first establishing
its jurisdiction.” Chevron U.S.A., Inc. v. Env’t Prot. Agency, 45 F.4th 380, 385 (D.C. Cir. 2022).
A. Improper Venue
To prevail on a motion to dismiss for improper venue, under Rule 12(b)(3) of the Federal
Rules of Civil Procedure, “the defendant must present facts that will defeat the plaintiff's
assertion of venue.” See Slaby v. Holder, 901 F.Supp.2d 129, 132 (D.D.C. 2012) (quoting
3
Plaintiff filed a “Motion for Hearing” nearly three weeks after the defendant’s motion to dismiss became
ripe, requesting a “status hearing” on the complaint and defendant’s pending motion. See Pl.’s Mot. for Hr’g, ECF
No. 20. This motion will be denied as moot given the resolution of defendant’s motion.
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Wilson v. Obama, 770 F. Supp. 2d 188, 190 (D.D.C. 2011)). Nevertheless, the burden remains
on the plaintiff to establish that venue is proper since it is “the plaintiff's obligation to institute
the action in a permissible forum . . ..” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62
(D.D.C. 2011) (quoting Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003)); see also 14D
Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 3826 (4th ed. 2022)
(“[W]hen the defendant has made a proper objection, the burden is on the plaintiff to establish
that the chosen district is a proper venue.”). In reviewing such a motion, the court “accepts the
plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences
from those allegations in the plaintiff's favor and resolves any factual conflicts in the plaintiff's
favor.” Wilson, 770 F. Supp. 2d at 190 (quoting James v. Verizon Servs. Corp., 639 F. Supp. 2d
9, 11 (D.D.C. 2009)).
If venue is improper, district courts are required to “dismiss, or if it be in the interest of
justice, transfer” a case pursuant to the federal venue statute, 28 U.S.C. § 1406(a). The decision
whether to transfer or dismiss “rests within the sound discretion of the district court.” Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). While “[a]s a general matter, a
transfer of the case is favored over a dismissal,” Murdoch v. Rosenberg & Assocs., LLC, 875 F.
Supp. 2d 6, 11 (D.D.C. 2012) (quoting Jones v. United States, 820 F. Supp. 2d 58, 61 (D.D.C.
2011)), dismissal is appropriate where “no court would have subject matter jurisdiction over a
claim,” or the plaintiff’s claims have “obvious substantive problems.” Laukus v. United States,
691 F. Supp. 2d 119, 127 (D.D.C. 2010)). In order to determine whether transfer would be in the
interest of justice, courts may “take a ‘peek at the merits’” of the plaintiff’s claims. Id. (quoting
Phillips v. Seiter, 173 F.3d 609, 610–11 (7th Cir. 1999)). See also Williams v. Wells Fargo
Bank, N.A., 53 F. Supp. 3d 33, 38 (D.D.C. 2014) (“[D]ismissal is appropriate when transfer of
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the case ‘would only delay the inevitable and would not be in keeping with the Supreme Court's
instruction to the lower federal courts to weed out insubstantial suits expeditiously.’” (cleaned
up) (quoting McCain v. Bank of America, 13 F. Supp. 3d 45, 55 (D.D.C. 2014))); Ananiev v.
Wells Fargo Bank, N.A., 968 F. Supp. 2d 123, 132 (D.D.C. 2013) (dismissing rather than
transferring case with “significant substantive problems”); Buchanan v. Manley, 145 F.3d 386,
389 n.6 (D.C. Cir. 1998) (no abuse of discretion for district court to dismiss rather than transfer
case where there were “substantive problems” with the plaintiff's claims); Roman-Salgado v.
Holder, 730 F. Supp. 2d 126, 131 (D.D.C. 2010) (dismissing rather than transferring case for
improper venue where “it appears that the complaint in its current form would likely face
dismissal without prejudice for failure to state a claim”).
B. Lack of Subject-Matter Jurisdiction
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited
subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which
Congress grants jurisdiction.’” Bronner ex rel. Am. Stud. Ass'n v. Duggan, 962 F.3d 596, 602
(D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317
(D.C. Cir. 2012)); see also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are
courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and
statute.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))).
Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H
Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R.
CIV. P. 12(h)(3).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of demonstrating the court's subject-matter jurisdiction over the claim
at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to
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dismiss under Rule 12(b)(1), the court must determine jurisdictional questions by accepting as
true all uncontroverted material factual allegations contained in the complaint and “constru[ing]
the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from
the facts alleged.’” Hemp Indus. Ass'n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (quoting Am.
Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citations omitted)). The court
need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported
by facts alleged in the complaint or amount merely to legal conclusions. Id. at 288 (making clear
that liberally construing complaint in plaintiff's favor “does not entail ‘accept[ing] inferences
unsupported by facts or legal conclusions cast in the form of factual allegations’” (internal
quotations and citations omitted)).
C. Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.
Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A
claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely
consistent with’ a defendant’s liability,” but “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Rudder v. Williams, 666 F.3d
790, 794 (D.C. Cir. 2012). In deciding a motion under Rule 12(b)(6), the court must consider the
whole complaint, accepting all factual allegations in the complaint as true, even if doubtful in
fact, and construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555;
see also Atchley v. AstraZeneca UK Ltd., 22 F.4th 204, 210 (D.C. Cir. 2022). Courts do not,
however, “accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the
facts set out in the complaint.” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016)
9
(alteration in original) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994)). Where a plaintiff proceeds pro se, courts may consider all exhibits filed by the plaintiff
that “were intended to clarify the allegations in the complaint.” Abdelfattah v. U.S. Dep’t of
Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015). See also Greenhill v. Spellings, 482 F.3d
569, 572 (D.C. Cir. 2007) (“We have also permitted courts to consider supplemental material
filed by a pro se litigant in order to clarify the precise claims being urged.”).
III. DISCUSSION
As noted, plaintiff is seeking monetary compensation for what she alleges was
“retaliatory behavior” and “bad faith contracting” on the part of the NSF OIG. Am. Compl. ¶ 54.
Based on plaintiff’s future intention to move to Washington, D.C., and her ongoing Freedom of
Information Act lawsuit against the NSF OIG for the disclosure of records about the April 2018
complaint filed against her, see Scarlett v. Office of Inspector General, Case No. 21-cv-819
(RDM), plaintiff has filed her instant lawsuit in the District of Columbia. Am. Compl. ¶ 2; Pl.’s
Opp’n at 7. As explained below, defendant is correct that this jurisdiction is not the proper
venue for this action and further finds that dismissal, rather than transfer, is appropriate. No
other federal court has subject-matter jurisdiction over plaintiff’s Counts One and Three, and
Count Two fails to state a claim for relief.
A. Venue is Improper in the District of Columbia
The applicable venue statute, 28 U.S.C. § 1391(e), provides three bases for venue in
lawsuits against federal agencies. First, venue is proper in any judicial district in which
defendant resides. 28 U.S.C. § 1391(e)(1)(A). Defendant is located in Alexandria, Virginia,
where NSF is headquartered. See Def.’s Mem. Supp. Mot. Dismiss or Transfer Venue (“Def.’s
Mem.”), ECF No. 17-1. Second, venue is proper where “a substantial part of the events or
omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(e)(1)(B). Defendant urges that
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the relevant conduct giving rise to plaintiff’s claims was her Tallahassee, Florida-based
performance of the Phase I grant awarded by NSF, which performance was later investigated by
OIG for misconduct. Def.’s Mem. at 25–26. Plaintiff’s claims, however, largely turn on her
allegations of misconduct committed by the NSF OIG in investigating complaints submitted both
by and about plaintiff. Third, venue is proper where “plaintiff resides if no real property is
involved in the action.” 28 U.S.C. § 1391(e)(1)(C). Plaintiff resides in the Northern District of
Illinois. Pl.’s Opp’n at 7. The lack of proper venue for this case in the District of Columbia is
plain, because none of the three bases for venue are met. Rather, the first two bases for venue
point in the same direction: the Eastern District of Virginia.
Plaintiff nonetheless asserts that venue is proper in the District of Columbia. First,
plaintiff cites 5 U.S.C. § 552(a)(4)(B), which gives the District Court of the District of Columbia
jurisdiction over claims filed under the Freedom of Information Act. Pl.’s Opp’n at 7. That
statute is not relevant to plaintiff’s claims in the instant action and fails to provide this Court with
jurisdiction. Second, plaintiff argues that she intends to relocate to the District of Columbia, but
has been delayed as a result of the denial of plaintiff’s grant application. Pl.’s Suppl. Mem. at 3.
The venue statute, however, does not contemplate jurisdiction in which plaintiff intends to
reside—only where “plaintiff resides.” 28 U.S.C. § 1391(e)(1)(C).
B. Dismissal Rather than Transfer is Appropriate
Review of the plaintiff’s claims demonstrates “significant substantive problems” such
that transfer to the Eastern District of Virginia, where defendant resides and a substantial part of
the events giving rise to the claims occurred, would not be in the interest of justice. Ananiev,
968 F. Supp. 2d at 132. Plaintiff’s Counts One and Three fail for federal courts’ lack of subject-
matter jurisdiction as a result of the absence of any waiver of sovereign immunity. Count Two
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fails to state a claim of breach of contract by defendant NSF OIG, as opposed to the agency as a
whole.
1. Lack of Subject-Matter Jurisdiction
No federal court has subject-matter jurisdiction over plaintiff’s Counts One and Three
because the federal government has not waived sovereign immunity as to either claim. As to
Count One, plaintiff alleges that NSF OIG violated the whistleblower protection provision for
employees of government contractors under the NDAA, 41 U.S.C. § 4712, by retaliating against
her for reporting alleged misconduct by NSF staff in denying her grant application. Am. Compl.
¶¶ 14, 54–55. 4 As to Count Three, plaintiff alleges, without referencing a statutory or common
law cause of action, that NSF conducted a “sham investigation” of plaintiff’s complaint. Am.
Compl. ¶¶ 61–71. In light of plaintiff’s pro se status, which requires her pleadings to be
“liberally construed,” Abdelfattah, 787 F. 3d at 533 (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)), the factual allegations underlying both counts are also considered as potential claims
under the Federal Torts Claims Act (FTCA). See Def.’s Mem. at 20 (treating Count Three as a
claim pursuant to the FTCA).
4
Plaintiff appears to contend in her opposition to defendant’s motion to dismiss that her Count One claim
was brought under the Federal Torts Claims Act (FTCA) rather than NDAA. Pl.’s Opp’n at 1–2, 7 (“Plaintiff has a
right to seek relief under the FTCA and WPA”). See also Pl.’s Suppl. Mem. 6–7 (denying that 41 U.S.C. § 4712 is
the basis for her claim, arguing that the statute “serves as evidence of investigatory misconduct” instead). In the
plaintiff’s supplemental memorandum, she also newly asserts that her claims are rooted in the False Claims Act,
because of the NSF OIG’s “failure to stop waste, fraud and abuse the job for which the US employs the investigators
and investigative attorneys working with the NSF OIG.” Pl.’s Suppl. Mem. at 4. Of course, plaintiff’s late-
fashioned claim is not contemplated by the False Claims Act, see 31 U.S.C. § 3729(a)(1), because the NSF OIG’s
alleged conduct—“allowing US companies to be negatively impacted by unethical enhancement of criteria” and
retaliating against plaintiff, see Pl.’s Suppl. Mem. at 4—simply does not constitute “knowingly present[ing] . . . a
false or fraudulent claim for payment or approval,” and, obviously, the NSF OIG, as an investigatory body, does not
“request or demand . . . money or property” from the United States in connection with grant requests, 31 U.S.C. §
3729(b)(2). In any event, plaintiff offers only “threadbare recitals . . . supported by mere conclusory statements,”
Iqbal, 556 U.S. at 663, in support of her claim that the NSF OIG itself engaged in fraud against the United States
government in its handling of plaintiff’s complaint, which fails to state a plausible claim.
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Sovereign immunity shields the federal government and its agencies from suit and is
“jurisdictional in nature.” Am. Road & Transp. Builders Ass'n v. EPA, 865 F.Supp.2d 72, 79
(D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted). The
government may waive immunity, but such a waiver “must be unequivocally expressed in
statutory text . . . and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations
omitted). “If sovereign immunity has not been waived, a claim is subject to dismissal under Rule
12(b)(1) for lack of subject matter jurisdiction.” Clayton v. Dist. of Columbia, 931 F. Supp. 2d
192, 200 (D.D.C. 2013) (citing Meyer, 510 U.S. at 475). The plaintiff bears the burden “of
establishing both the court's statutory jurisdiction and the government's waiver of its sovereign
immunity.” Am. Road & Transp. Builders Ass'n, 865 F. Supp. 2d at 80 (citations omitted).
The pleaded cause of action for Count One, under the NDAA, 41 U.S.C. § 4712, does not
waive sovereign immunity. The statute protects employees of government contractors who
report misconduct related to federal contracts. See 41 U.S.C. § 4712(a)(1); see also Fuerst v.
Housing Auth. of Atlanta, 38 F.4th 860, 863, 869–70 (11th Cir. 2022) (holding that 41 U.S.C. §
4712 protects employees of federal grant recipients). An employee who files such a report and
who then experiences retaliation may, after exhausting administrative remedies, sue the
contractor. Id. § 4712(c)(2). The statute does not, however, provide for lawsuits against the
federal government itself—let alone explicitly waive sovereign immunity for certain claims
against the federal government. Id. (providing that, after exhausting all administrative remedies,
a complainant “may bring a de novo action at law or equity against the contractor, subcontractor,
grantee, or subgrantee”).
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Nor does the FTCA waive sovereign immunity as to either of plaintiff’s claims under
Counts One and Three. 5 The FTCA is a “limited waiver of the Government’s sovereign
immunity,” permitting plaintiffs to “sue the United States in federal court for state-law torts
committed by government employees within the scope of their employment.” Harbury v.
Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (citing 28 U.S.C. §§ 1346(b), 2671–80). At the
same time, “[t]he FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993)
(declining to excuse a pro se plaintiff’s failure to meet the exhaustion requirement). Pursuant to
this requirement, a plaintiff must first “present[] the claim to the appropriate Federal agency,”
and receive a final denial in writing. 28 U.S.C. § 2675(a). See also Simpkins v. D.C. Gov’t, 108
F.3d 366, 371 (D.C. Cir. 1997) (holding that, when a plaintiff failed to exhaust administrative
remedies, the district court “lacked subject matter jurisdiction, or if not jurisdiction, the
functional equivalent of it”).
In this matter, plaintiff filed a complaint regarding the denial of her grant application with
the NSF OIG on June 3, 2018, but there is no indication that the complaint alleged any
retaliatory actions by NSF OIG as a result of plaintiff’s allegations that her application was
wrongfully denied, as plaintiff now alleges in Count One. See Pl.’s Opp’n, Ex. 1 at 1–9,
Memorandum of Investigation, ECF No. 18-1 (describing OIG’s investigation into plaintiff’s
complaint). Nor has plaintiff alleged that she submitted any administrative claim with NSF OIG
to put the office on notice that she would allege misconduct by the investigators who were
5
Defendant rightly notes that claims under the FTCA must be brought against the United States, and
defendant therefore argues that plaintiff’s claims as construed under the FTCA fail because plaintiff sued solely the
NSF OIG. Def.’s Mem. at 21. Courts have declined to hold that pro se plaintiffs’ failure to name the correct
defendant is fatal, however, even substituting the correct defendant sua sponte. Abale Gnalega v. Wash. DC
Veterans Med. Ctr., 2018 WL 6433911, *1 n.2 (D.D.C. Dec. 7, 2018) (treating a pro se action under the FTCA as if
it were filed against the United States); Adeyemi v. Jones, 2005 WL 1017859, *2 (D.D.C. April 28, 2005) (same)
(citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).
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assigned to her complaint. Am. Compl. ¶¶ 34–53. See Grant v. Sec., U.S. Dep’t of Veterans
Affs., 2004 WL 287125, *1 (D.C. Cir. 2004) (per curiam) (“To satisfy the FTCA's exhaustion
requirement, an administrative claim must describe the alleged injury with sufficient particularity
to allow the agency to investigate and assess the strength of the claim. . . . The claim must also
set forth a ‘sum certain’ of damages so that the agency may make an informed decision whether
to attempt settlement negotiations.”) As a result, even liberally construing plaintiff’s Counts One
and Three as claims under the FTCA, her failure to exhaust these claims administratively means
that federal courts lack subject-matter jurisdiction over them.
C. Failure to State a Claim
Count Two alleges that NSF OIG breached a contract with plaintiff, but this fails to state
a claim. As factual support for this claim, plaintiff alleges she was “given a contract to continue
work on an NSF project expected to operate an additional three months beyond the initial end
date,” Am. Compl. ¶¶ 5–6, for which additional funds were not provided, constituting a violation
of “federal contract and labor laws,” id. ¶ 31. Plaintiff further elaborated that “an investigator
for the Defendant . . . attempted to retroactively alter language in a prior contract between
Plaintiff and NSF,” Pl.’s Opp’n at 11, citing an interview with an unidentified questioner in
which plaintiff described asking for an extension from NSF to submit a final report for her Phase
I research grant, see First Errata to Am. Compl., Ex. 18 at 1–7. She reasons that, because NSF
OIG “attempted to illegally hold Plaintiff to an unwritten contract with NSF . . . NSF OIG has
entered into a contract with the Plaintiff.” Pl.’s Suppl. Mem. at 9.
As defendant argues, even construing plaintiff’s allegations liberally in light of her pro se
status, plaintiff has failed to allege both that she entered a contract with the NSF OIG and that
the latter breached any obligation to her as a result of such a contract. See Red Lake Band of
Chippewa Indians v. U.S. Dep’t of Interior, 624 F. Supp. 2d 1, 12 (D.D.C. 2009) (“[A]s to the
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elements of a breach of contract claim under federal law, ‘a party must allege and establish: (1) a
valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a
breach of that duty; and (4) damages caused by the breach.’” (quoting Pryor v. United States, 85
Fed. Cl. 97, 104 (Fed. Cl. 2008))). Plaintiff alleges that NSF OIG somehow entered a new oral
contract with plaintiff by attempting to enforce an already existing contract between plaintiff and
NSF, but courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Plaintiff has merely
alleged that she had a contract with NSF, which is not a party to this litigation. As a result,
plaintiff’s breach of contract claim must be dismissed for failing to state a claim for which relief
can be granted.
IV. CONCLUSION AND ORDER
For the foregoing reasons, plaintiff has failed to meet her burden to establish that venue
for the instant lawsuit is proper in this jurisdiction, and the Court finds that transfer of the claims
to the Eastern District of Virginia would not be in the “interest of justice,” 28 U.S.C. § 1406(a),
because plaintiff “failed to show that [her] claims . . . could properly be heard in any federal
court.” Naartex Consulting Corp., 722 F.2d at 789. Accordingly, it is therefore—
ORDERED that defendant’s Motion to Dismiss or Transfer Venue, ECF No. 17, is
GRANTED, and it is further
ORDERED that plaintiff’s Motion for a Hearing, ECF No. 20, is DENIED as moot; and
it is further
ORDERED that this case is DISMISSED; and it is further
ORDERED that the Clerk of the Court is directed to close this case.
SO ORDERED.
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Date: December 21, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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