893 F. Supp. 2d 258
D.D.C.2012Background
- The United States sues Second Chance Body Armor and Toyobo entities over alleged FCA and common law claims regarding defective Zylon-containing vests.
- Bachner, initially answering in 2006, later seeks to file a counterclaim alleging prosecutorial misconduct and other torts, and requests an independent investigator, scheduling-suspension, sanctions, and venue reconsideration.
- The government moves to strike/dismiss Bachner’s counterclaim on sovereign-immunity, timeliness, and failure to state a claim grounds.
- Court assesses whether Bachner may amend to add omitted or matured counterclaims under Rules 15(a) and 13(e), and whether FTCA exhaustion applies.
- Court considers supervisory sanctions, independent-investigator relief, and reconsideration of a venue-change denial, all of which Bachner seeks.
- Court grants government’s motion to dismiss/strike Bachner’s counterclaim and denies Bachner’s remaining relief requests as unfounded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bachner may add the counterclaim | Bachner seeks leave to add omitted/matured counterclaims under Rules 15(a) and 13(e). | Government argues sovereign immunity and procedural barriers defeat amendment. | Leave denied; counterclaims barred by sovereign immunity and exhaustion rules. |
| FTCA exhaustion and pre-answer tort claims | Bachner asserts FTCA exhaustion applies to pre-answer claims. | FTCA requires exhaustion and timely presentment; pre-answer acts occurred earlier than allowed. | Court lacks jurisdiction over pre-answer tort claims due to lack of exhaustion. |
| Post-answer matured/after-acquired counterclaims | Bachner contends post-answer claims can be added under Rule 13(e). | Sovereign immunity and exhaustion bar post-answer additions; some claims premature or futile. | Post-answer claims barred; even if allowed, they would be futile or time-barred by exhaustion. |
| Appointment of an independent investigator | Bachner requests independent investigation into DOJ conduct. | No statutory authority or basis to appoint; private plaintiff cannot compel independent counsel under Ethics Act. | Motion denied; no authority to appoint independent investigator. |
| Sanctions and reconsideration | Bachner seeks sanctions and reconsideration of venue denial. | No sanctionable misconduct proven; no basis for reconsideration. | Sanctions denied; reconsideration denied. |
Key Cases Cited
- Montecatini Edison, S.P.A. v. Ziegler, 486 F.2d 1279 (D.C. Cir. 1973) (case on counterclaims and related discretion)
- GAF Corp. v. United States, 818 F.2d 901 (D.C. Cir. 1987) (administrative exhaustion requirements under FTCA)
- Simpkins v. District of Columbia Gov’t, 108 F.3d 366 (D.C. Cir. 1997) (FTCA exhaustion and administrative requirements)
- Hill v. United States, 562 F. Supp. 2d 131 (D.D.C. 2008) (standard for reviewing pleadings and jurisdictional matters)
- Benoit v. U.S. Dep’t Agric., 608 F.3d 17 (D.C. Cir. 2010) (FTCA exhaustion requirement; administrative remedies)
- Head v. Kane Co., 668 F. Supp. 2d 146 (D.D.C. 2009) (prematurity of malicious-prosecution counterclaims; main action disposition)