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The Report And Recommendation To Allow The Survivor Suit Against The FBI To Proceed (Part 4) (8/24/26) · Beyond The Horizon

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  Speaker 1: What's up, everyone, and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're going to pick up
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  Speaker 1: where we left off with Judge Lieberwitz's report on the
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  Speaker 1: Epstein survivor's lawsuit filed against the FBI two FBI agents
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  Speaker 1: in unidentified states. Plaintiffs also alleged negligence on the part
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  Speaker 1: of FBI agents in unidentified states, specifically agents mishandling of
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  Speaker 1: additional tips and red flags from ninety six to two
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  Speaker 1: thousand and five, an agent's mishandling of Plaintiff Christiansen's complain
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  Speaker 1: in two thousand and five. Without knowing the states where
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  Speaker 1: these alleged towards took place, the court cannot fully assess
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  Speaker 1: the existence or non existence of private party analogs in
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  Speaker 1: those states. Nevertheless, given that the Undersigned recommends allowing the
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  Speaker 1: claims to proceed as to FBI agents in New York
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  Speaker 1: and Florida, the Undersigned recommends allowing the remaining claims to
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  Speaker 1: proceed as well. The Government may revisit this issue at
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  Speaker 1: some rejudgment if appropriate. C Statute of Limitations and Equitable Tolling.
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  Speaker 1: The government next urges dismissal based on the statute of
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  Speaker 1: limitations and plaintiff failure to allege facts to show entitlement
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  Speaker 1: to equitable tolling. Specifically, the FTCA provides plaintiffs with a
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  Speaker 1: two year time limit to file an administrative claim with
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  Speaker 1: the appropriate federal agencies. As follows time for commencing action
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  Speaker 1: against the United States. B A tore claim against the
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  Speaker 1: US shall be forever barred unless it's presented in writing
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  Speaker 1: to the appropriate federal agency within two years after such
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  Speaker 1: a claim accrues, or unless the action is begun within
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  Speaker 1: six months after the date of mailing by certified or
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  Speaker 1: registered mail of notice of final denial of the claim
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  Speaker 1: by the agency to which it was presented. Here, the
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  Speaker 1: fac alleges that plaintiffs suffered injuries at various times between
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  Speaker 1: two thousand and seven and twenty seventeen. The government has
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  Speaker 1: submitted declaration attesting that plaintiffs failed to submit their administrative
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  Speaker 1: claims to the appropriate agency until May twenty third and beyond,
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  Speaker 1: well past the two year deadline. Plaintiffs do not dispute
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  Speaker 1: the accuracy of these submission dates. Instead, plaintiffs argue that
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  Speaker 1: their claim should be deemed timely under the doctrine of
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  Speaker 1: equitable tolling. The Supreme Court recognizes that equitable tolling applies
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  Speaker 1: to FTCA claims. See US Verse Long five seventy five,
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  Speaker 1: twenty fifteen. In the Eleventh Circuit, equitable tolling is appropriate
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  Speaker 1: when a movement on timely files because of extraordinary circumstances
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  Speaker 1: that are both beyond his control and unavoidable even with diligence.
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  Speaker 1: The diligence required for equitable tolling proposes is reasonable diligence,
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  Speaker 1: not maximum feasible diligence San Martin versus McNeil, eleven Circuit
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  Speaker 1: twenty eleven. The Eleventh Circuit has described equitable tolling as
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  Speaker 1: an extraordinary remedy to be applied sparingly at the motion
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  Speaker 1: to dismiss stage. A plaintiff must allege sufficient facts to
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  Speaker 1: state of claim for equitable tolling that is plausible on
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  Speaker 1: its face Massoni's versus Estevez, eleventh Circuit, August twenty third,
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  Speaker 1: twenty twenty one. Plaintiff's conclusiony assertion of equitable tolling is insufficient.
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  Speaker 1: The complaint must allege facts sufficient to support the contention
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  Speaker 1: that equitable tolling should apply. Applying these standards here, the
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  Speaker 1: Court finds that plaintiff have alleged sufficient facts accepted is
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  Speaker 1: true to support a plausible claim of equitable tolling. In particular,
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  Speaker 1: the fac alleges that plaintiffs failed to discover the facts
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  Speaker 1: showing a casual link between their injuries and the FBI's misconduct,
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  Speaker 1: in part because critical information was woefully hidden from the
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  Speaker 1: plaintiffs by the FBI for years. Plaintiffs alleged that the
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  Speaker 1: FBI's suppression of information was so persistent that Congress enacted
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  Speaker 1: a law in twenty twenty five to force the FBI
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  Speaker 1: to disclose information, namely the Epstein Files Transparency Act. Plaintiffs
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  Speaker 1: also alleged they failed to discover a casual link to
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  Speaker 1: the FBI's conduct until twenty twenty two, when they learned
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  Speaker 1: through a publicly filed lawsuit that JP Morgan Chase had
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  Speaker 1: reached out to the federal government on numerous occasions between
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  Speaker 1: two thousand and six and two thousand and eight and
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  Speaker 1: via numerous avenues regarding Epstein's transactions with the bank and
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  Speaker 1: concern for sex trafficking. The court finds these allegations sufficient
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  Speaker 1: to survive dismissal. The court rejects the government's counter argument
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  Speaker 1: that the FAC contains references to numerous news reports and
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  Speaker 1: other public sources that would have alerted a reasonable person
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  Speaker 1: to the FBI's misconduct much earlier than plaintiff's claim date
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  Speaker 1: of discovery. The government argues that these publicly available sources
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  Speaker 1: cited in plaintiff's own pleading, demonstrate that plaintiff failed to
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  Speaker 1: exercise the degree of due diligence necessary to support a
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  Speaker 1: plausible claim of equitable tolling. The Court is degrees, as
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  Speaker 1: the Supreme Court is noted, equitable tolling involves fact intensive disputes.
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  Speaker 1: To be sure, the FAC contains a mixed bag of allegations,
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  Speaker 1: some of which tend to support a claim of equitable
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  Speaker 1: tolling and some of which do the opposite. At this
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  Speaker 1: stage of the case, the Court will not balance the
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  Speaker 1: various allegations and determine which of them deserve the most weight. Instead,
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  Speaker 1: the Court finds the allegation sufficient at this stage of
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  Speaker 1: the case. The Court therefore rejects this argument for a
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  Speaker 1: dismissal d failure to include some certain money demands in
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  Speaker 1: the administrative claim. Finally, the government moves to dismiss the
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  Speaker 1: claims of Jane does thirteen twenty one to twenty nine
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  Speaker 1: for failure to exhaust administrative remedies in compliance with the FTCA,
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  Speaker 1: specifically by failing to include a some certain demand for
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  Speaker 1: money damages in their administrative claims. In particular, the FTCA
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  Speaker 1: provides that no action may be instituted upon a claim
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  Speaker 1: against the United States for money damages for injury unless
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  Speaker 1: the claimants shall have first presented the claim to the
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  Speaker 1: appropriate federal agency and his claim shall have been finally
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  Speaker 1: denied by the agency in writing and sent by certified
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  Speaker 1: or registered mail. US Code eighteen, section twenty six to
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  Speaker 1: seventy five A. The claim must be presented in writing
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  Speaker 1: to the appropriate agency within two years after such a
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  Speaker 1: claim accruise. US Code twenty eight section twenty four oh
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  Speaker 1: one B. Pursuant of federal regulation, a claim is deemed
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  Speaker 1: presented when the federal agency receives a claim in Standard
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  Speaker 1: Form ninety five or other written notification of the incident
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  Speaker 1: accompanied by a claim for money damages in a sum
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  Speaker 1: certain for injury less you have occurred by reason of
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  Speaker 1: the incident. The administrative exhaustion requirement functions as an important
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  Speaker 1: component for the government's waiver of sovereign immunity, as it
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  Speaker 1: gives agencies an opportunity to settle suits before litigation commences,
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  Speaker 1: which in turn can ease court congestion and avoid unnecessary litigation,
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  Speaker 1: while making it possible for the government to expedite the
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  Speaker 1: fair settlement of tort claims asserted against the United States
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  Speaker 1: Hernandez versus US eleven Circuit. As to the requirement of
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  Speaker 1: some certain demand for money damages, the Eleventh Circuit has
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  Speaker 1: adopted a lenient approach as follows. The Circuit has taken
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  Speaker 1: a somewhat lenient approach to the some certain requirement, holding,
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  Speaker 1: for example, that even where a claimant had not specifically
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  Speaker 1: stated the value of the claim, attaching medical bills and
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  Speaker 1: repair estimates to the claim notice could suffice. See Molnar
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  Speaker 1: versus US Fifth Circuit nineteen seventy five discussing some certain
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  Speaker 1: requirement and indicating that it can only be met by
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  Speaker 1: merely providing the agency with facts from which it could
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  Speaker 1: estimate the value of the claim. At a minimum. However,
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  Speaker 1: the administrative claim must either a expressly claim a sum certain,
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  Speaker 1: or b provide documentation which will allow the agency to
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  Speaker 1: calculate or estimate the damages to the claimant Suarez vs. Us,
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  Speaker 1: Eleventh Circuit nineteen ninety four. If the claimant fails to
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  Speaker 1: provide a sum certain within the claim, the administrative claim
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  Speaker 1: fails to meet the statutory prerequisite to maintaining a suit
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  Speaker 1: against the government and leaves the District Court without jurisdiction
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  Speaker 1: to hear the case. Turner five to fourteen ft three
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  Speaker 1: d affirming dismissal of FTCA case where administrative claim form
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  Speaker 1: failed to assert a some certain or attached documents to
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  Speaker 1: provide information as to the amount of damages the individual plaintiff.
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  Speaker 1: In this case, the government argues that jine Does thirteen
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  Speaker 1: twenty one twenty nine failed to include a some certain
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  Speaker 1: demand for money damages in their administrative claims. In support,
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  Speaker 1: the government has provided the court with anonymous SF ninety
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  Speaker 1: fives for these jane Does, as well as the declaration
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  Speaker 1: from a person who works in the FBI General Council's Office.
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  Speaker 1: Because the government asks the court to look beyond the
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  Speaker 1: four corners of the fac the court interprets this argument
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  Speaker 1: as raising a factual rather than a fascial attack on
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  Speaker 1: the subject matter jurisdiction pursue into Rule twelve v one
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  Speaker 1: at the hearing on this matter, the government confirmed that
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  Speaker 1: the argument raises a factual attack on subject matter jurisdiction.
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  Speaker 1: As noted, when a defendant raises a factual attack on
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  Speaker 1: subject matter jurisdiction, a district court must allow discovery before
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  Speaker 1: dismissing the case. To date, discovery in the case has
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  Speaker 1: been stayed. Accordingly, the Court rejects this argument for dismissal.
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  Speaker 1: The undersigned recommendations that the district judge, exercising his discretion
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  Speaker 1: in the case, allow a ninety day period of jurisdictional
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  Speaker 1: discovery concerning the exhaustion of administrative remedies by Jane Does
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  Speaker 1: thirteen twenty one to twenty nine. Once this discovery has
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  Speaker 1: been completed, the government may renew this motion. The Court
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  Speaker 1: has considered, but rejects plaintiff's argument that the government waive
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  Speaker 1: the sum s certain argument by failing to raise it
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  Speaker 1: in earlier emotion to dismiss practice. As plaintiffs correctly point out,
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  Speaker 1: Rule twelve G two provides that, subject to certain exceptions,
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  Speaker 1: a party that makes emotion under this rule must not
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  Speaker 1: make another motion under this rule raising a defense or
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  Speaker 1: objection that was available to a party but omitted from
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  Speaker 1: its earlier motion. The Court agrees that the some certain
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  Speaker 1: argument was available to the government but omitted from its
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  Speaker 1: earlier emotion. The Court nevertheless rejects this argument because it
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  Speaker 1: overlooks one of the exceptions set forth in the text
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  Speaker 1: to the rule. Specifically, Rule twelve G two applies except
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  Speaker 1: as provided in Rule twelve H two or three. Rule
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  Speaker 1: twelve H three in turn provides as follows three, lack
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  Speaker 1: of subject matter jurisdiction. If the Court determines at any
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  Speaker 1: time that it lacks subject matter jurisdiction, the Court must
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  Speaker 1: dismiss the action. In other words, the defense of lack
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  Speaker 1: of subject matters diction cannot be waived. The issue of
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  Speaker 1: administrative exhaustion under the FTCA goes to this court subject
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  Speaker 1: matter jurisdiction. As such, the government did not waive the
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  Speaker 1: sum certain argument by failing to raise it in earlier
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  Speaker 1: motion practice. The Court therefore rejects plaintiffs waiver argument five
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  Speaker 1: recommendation notice of right to object for the reason stated above.
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  Speaker 1: The Undersigned recommends that the motion to dismiss be denied
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  Speaker 1: as follows one. The district judge should lift the current
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  Speaker 1: stay order and allow a ninety day period of discovery
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  Speaker 1: on two jurisdictional issues. A the existence and content of
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  Speaker 1: any mandatory established policies, protocols, and procedures, whether written or otherwise,
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  Speaker 1: governing the FBI's conduct in assessing or handling tips, reports,
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  Speaker 1: and complaints of sexual abuse, child sexual abuse, and or
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  Speaker 1: child sexual abuse material and be the exhaustion of administrative
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  Speaker 1: remedies by Jane Does thirteen twenty one, twenty nine. At
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  Speaker 1: the conclusion of this limited discovery, the Government should be
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  Speaker 1: permitted to renew this motion seeking dismissal based on the
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  Speaker 1: discretionary function exception and the alleged failure to exhaust administrative
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  Speaker 1: remedies by Jane Does thirteen twenty one twenty nine, the
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  Speaker 1: remainder of this motion should be denied. The parties shall
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  Speaker 1: have fourteen days from the date of being served with
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  Speaker 1: a copy of this Report and Recommendation within which to
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  Speaker 1: file written objections if any with the District Judge. Failure
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  Speaker 1: to file objections timely shall bar the parties from a
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  Speaker 1: de novo determination by the District Judge of an issue
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  Speaker 1: covered in the Report and Recommendation, and shall bar the
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  Speaker 1: parties from attacking on appeal unobjected to factual and legal
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  Speaker 1: conclusions contained in this Report and recommendation. If a party
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  Speaker 1: does not intend to object to this Report and recommendation,
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  Speaker 1: the party shall file a notice to that effect within
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  Speaker 1: five days respectfully. Submitted in chans at West Palm Beach
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  Speaker 1: in the Southern District of Florida, this eighteenth day of
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  Speaker 1: August twenty twenty six, and this was signed by Ryan M. McCabe,
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  Speaker 1: us Magistrate Judge. All the information that goes with this
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  Speaker 1: episode can be found in the description box.