Keo v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LA’KEYA KEO, : CIVIL NO: 1:25-CV-00126
:
Plaintiff, : (Judge Wilson)
:
v. : (Magistrate Judge Schwab)
:
FEDERAL BUREAU OF :
INVESTIGATION, :
:
Defendant. :
REPORT AND RECOMMENDATION
I. Introduction.
The court is required to consider sua sponte whether it has subject-matter
jurisdiction. Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 548 (2019). Here,
Plaintiff La’Keya Keo is suing the Federal Bureau of Investigation (“FBI”). But
the FBI has sovereign immunity as to Keo’s claims. Accordingly, we recommend
that the court dismiss this case without prejudice for lack of subject-matter
jurisdiction, and we recommend that the court close this case.
II. Background and Procedural History.
Keo began this action by filing a complaint and an application to proceed in
forma pauperis. See docs. 1, 4. We granted the application to proceed in forma
pauperis. See doc. 5.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 1 of 15

2
In her original complaint, Keo asserted that she is suing the FBI because she
personally went to file charges against Kimberly Nguyen and Minear Keo, Sr.
because they hid cameras in her house and exposed her online and because Nguyen
stalked her at her jobs, but instead of pressing charges, the FBI ignored her and
hung up on her. Doc. 1 at 2. As relief, Keo sought 5.3 to 15.7 billion dollars. Id.
Concluding that the FBI has sovereign immunity, by a Report and
Recommendation dated April 22, 2025, we recommended that the court dismiss
this case without prejudice for lack of subject-matter jurisdiction. Doc. 8. Noting
that granting leave to amend would be futile, we also recommended that the court
close the case. Id. at 5 n.3, 6. Although the court stated that it adopted the Report
and Recommendation and it dismissed Keo’s complaint without prejudice, it did
not close the case. Doc. 12. Rather, it gave Keo leave to file an amended
complaint. Id. at 3.
Keo subsequently filed an amended complaint. Doc. 15. The amended
complaint names only the FBI. Id. at 1. The allegations of the amended complaint
are not clear. Keo talks about cybercrimes and cyberbullying. Id. at 2–5. But the
crux of her allegations remains that although she reported crimes to the FBI, the
FBI failed to investigate her reports and file charges. Id. at 2–3, 5–6. Keo also
makes a passing reference to Title VII. Id. at 1.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 2 of 15

3
After reviewing the amended complaint, we still conclude that the court
lacks subject-matter jurisdiction. Thus, we recommend that the court dismiss this
case without prejudice. Although we are recommending that the court dismiss the
case without prejudice, we do so because a dismissal for lack of subject-matter
jurisdiction must be without prejudice to reflect that the case was not decided on
the merit.1 Because further leave to amend would be futile, we recommend that the
court not give Keo further leave to amend, and we recommend that the court close
this case.
III. Discussion.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “[T]hey have only the power that
is authorized by Article III of the Constitution and the statutes enacted by Congress
pursuant thereto.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
(1986). “Subject-matter jurisdiction can never be waived or forfeited.” Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012). Thus, the court has an obligation to satisfy itself
that it has subject-matter jurisdiction, and the court may raise the issue sua sponte.
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77–78 (3d Cir. 2003). “If the court
1 See infra n.4.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 3 of 15

4
determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
“It is axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.” U.S. v. Mitchell,
463 U.S. 206, 212 (1983). “Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471,
475 (1994). Thus, “[u]nder the doctrine of sovereign immunity, the United States
‘is immune from suit save as it consents to be sued . . . and the terms of its consent
to be sued in any court define that court’s jurisdiction to entertain the suit.’”
Cooper v. C.I.R., 718 F.3d 216, 220 (3d Cir. 2013) (quoting U. S. v. Testan, 424
U.S. 392, 399 (1976)).
Here, there are no allegations to suggest that the FBI, an agency of the
United States, has waived its sovereign immunity. Construing the amended
complaint liberally, it appears that that Keo may be seeking to bring a
constitutional claim under Bivens2 against the FBI and a Title VII claim against the
FBI. We analyze each in turn. Further, although Keo does not mention the
Federal Tort Claims Act, (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, we also
2 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 4 of 15

5
conclude that the court does not have subject-matter jurisdiction over any such
claim here.
A. Bivens.
Keo may be seeking to bring a constitutional claim under Bivens against the
FBI. But Keo cannot proceed against the FBI under Bivens for numerous reasons,
not the least of which is that the FBI is shielded by sovereign immunity. Malinsky
v. FBI, No. 23-2951, 2024 WL 911073, at *1 n.2 (3d Cir. Mar. 4, 2024) (agreeing
“with the District Court that Malinsky could not proceed against the FBI under a
Bivens theory because, among other things, “[a]bsent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit[]” (internal
citation omitted)); Smith v. Luzerne Cnty. FBI Agency, 517 F. App’x 65, 66–67 (3d
Cir. 2013) (concluding that because there are no allegations that the United States
waived it sovereign immunity, “Smith has not stated a viable claim against” the
FBI); Richardson v. Fed. Bureau of Investigation, No. 3:22-CV-00434, 2022 WL
5237902, at *8 (M.D. Pa. Aug. 26, 2022) (concluding that “sovereign immunity
precludes Richardson from bringing a Bivens action against the FBI, a federal
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 5 of 15

6
agency”), report and recommendation adopted, 2022 WL 5199976, at *1 (M.D.
Pa. Oct. 5, 2022).3
B. Title VII.
In her amended complaint, Keo makes a passing reference to Title VII. Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., concerns
employment discrimination. “In 1972, Congress extended Title VII’s protection to
federal employees.” Francis v. Mineta, 505 F.3d 266, 271 (3d Cir. 2007). The
federal-sector provision of Title VII provides that “[a]ll personnel actions affecting
employees or applicants for employment” in specified federal departments and
agencies “shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).
3 In addition to any Bivens claims being barred by the FBI’s sovereign
immunity, we also note that Keo cannot bring a Bivens action against the FBI
because a Bivens action can be brought only against an individual, not an agency.
See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). Further, even if brought against
an individual, Keo’s claims would be without merit as “[i]t is well-established that
decisions regarding the filing of criminal charges are the prerogative of the
executive branch of government and are assigned to the sound discretion of
prosecutors.” Davis v. Gallota, No. 3:25-CV-255, 2025 WL 642094, at *2 (M.D.
Pa. Feb. 27, 2025). And a private citizen “lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973); see also Town of Castle Rock v. Gonzalez, 545 U.S. 748, 768
(2005) (“[T]he benefit that a third party may receive from having someone else
arrested for a crime generally does not trigger protections under the Due Process
Clause, neither in its procedural nor in its ‘substantive’ manifestations.”).
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 6 of 15

7
Here, Keo does not allege that she was an employee or an applicant for
employment with the FBI. Rather, she alleges that she complained to the FBI
about events—some of which may have happened where she was employed—but
the FBI failed to take any action. Keo’s does not raise an arguable claim under
Title VII.
“[T]he absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional
power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
89 (1998) (emphasis in original). Subject-matter jurisdiction is not defeated by the
possibility that the averments of the complaint might fail to state a cause of action
on which the plaintiff could actually recover. Id. “Dismissal for lack of subject-
matter jurisdiction because of the inadequacy of the federal claim is proper only
when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to involve a federal
controversy.’” Id. (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414
U.S. 611, 666 (1974)).
Here, given that Keo was not an employee or applicant for employment with
the FBI, any Title VII claim against the FBI is completely implausible and devoid
of merit. Thus, Keo’s passing reference to Title VII is not sufficient to invoke the
court’s federal question jurisdiction.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 7 of 15

8
C. FTCA.
The court also does not have subject-matter jurisdiction here under the
FTCA, which “allows a plaintiff to bring certain state-law tort suits against the
Federal Government.” Brownback v. King, 592 U.S. 209, 210 (2021). “In 1946,
Congress passed the FTCA, which waived the sovereign immunity of the United
States for certain torts committed by federal employees” acting within the scope of
their employment. Id. at 212. “The FTCA ‘was designed primarily to remove the
sovereign immunity of the United States from suits in tort and, with certain
specific exceptions, to render the Government liable in tort as a private individual
would be under like circumstances.’” Sosa v. Alvarez-Machain, 542 U.S. 692, 700
(2004) (quoting Richards v. United States, 369 U.S. 1, 6 (1962)).
The only proper defendant with respect to an FTCA claim is the United
States. See 28 U.S.C. § 2679; Moore v. Holtzapple, No. 1:24-CV-01845, 2025 WL
1647742, at *2 (M.D. Pa. June 9, 2025) (“The United States is the only proper
defendant in an FTCA suit.”). Here, Keo names the FBI, not the United States, as
the defendant.
In addition to not naming the United States, Keo has not shown that she
exhausted administrative remedies. “The FTCA bars claimants from bringing suit
in federal court until they have exhausted their administrative remedies.” McNeil v.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 8 of 15

9
United States, 508 U.S. 106, 113 (1993). 28 U.S.C.A. § 2675(a) provides, in
pertinent part:
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 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 and sent by certified or registered mail.”
“This requirement is jurisdictional and cannot be waived.” Shelton v. Bledsoe, 775
F.3d 554, 569 (3d Cir. 2015). Because the FTCA’s exhaustion requirement is
jurisdictional, “[t]he plaintiff ‘must plead administrative exhaustion in an FTCA
case.’” Gayle v. Mowatt, No. 1:23-CV-00861, 2025 WL 903832, at *12 (M.D. Pa.
Mar. 25, 2025) (quoting Guilford v. FCI Williamsburg, No. 22-CV-1945, 2022 WL
2192945, at *2 (E.D. Pa. June 16, 2022)). Here, Keo has not alleged that she
exhausted administrative remedies under the FTCA. And given that she does not
even mention the FTCA, there is not a reasonable basis to think that if she was
given further leave to amend, she could plausibly allege that she exhausted
administrative remedies under the FTCA before instituting this action. See McNeil,
508 U.S. at 112 (concluding that the FTCA requires exhaustion “before invocation
of the judicial process”).
Additionally, Keo’s claim that the FBI failed to investigate her complaints is
barred by the discretionary function exception to the FTCA.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 9 of 15

10
The FTCA’s waiver of sovereign immunity contains a number of exceptions
including the discretionary function exception, which provides that the FTCA shall
not apply to “[a]ny claim based upon an act or omission of an employee of the
Government . . . based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a). The discretionary function exception “marks the boundary
between Congress’ willingness to impose tort liability upon the United States and
its desire to protect certain governmental activities from exposure to suit by private
individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984). Through the discretionary function exception,
Congress sought “to prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic and political policy through
the medium of an action in tort” and to “protect the Government from liability that
would seriously handicap efficient government operations.” Id. at 814.
“As a threshold matter, before determining whether the discretionary
function exception applies, a court must identify the conduct at issue.” S.R.P. ex
rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012). After that, the
court uses a two-part test to determine whether the discretionary function exception
applies. Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013). “First, we
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 10 of 15

11
consider the nature of the conduct and decide whether it ‘involv[es] an element of
judgment or choice.’” Xi v. Haugen, 68 F.4th 824, 838 (3d Cir. 2023) (quoting
United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz v. United
States, 486 U.S. 531, 536 (1988)). “If a ‘federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,’ the exception
does not apply because ‘the employee has no rightful option but to adhere to the
directive.’” S.R.P., 676 F.3d at 333 (quoting Berkovitz, 486 U.S. at 536). Second,
if the conduct at issue involves an element of judgment, a court must then
“determine whether the judgment exercised ‘is of the kind that the discretionary
function exception was designed to shield.’” Baer, 722 F.3d at 172. ‘“Because the
purpose of the exception is to prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and political policy . . . the
exception protects only governmental actions and decisions based on
considerations of public policy.’” S.R.P., 676 F.3d at 333 (quoting Gaubert, 499
U.S. at 323). “The focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy analysis.” Gaubert,
499 U.S. at 325.
If the conduct at issue falls within the discretionary function exception, the
Court lacks subject-matter jurisdiction. Xi, 68 F.4th at 837–38 (“[A] claim
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 11 of 15

12
concerning conduct that falls within this exception must be dismissed for lack of
subject matter jurisdiction.”). Here, Keo is complaining about the FBI not
investigating her reports of misconduct by others. But investigative decisions are
within the FBI’s discretion and are they types of decisions that the discretionary
function exception was designed to shield. See Garner v. United States, No. 24-
CV-2381 (JMC), 2025 WL 2083158, at *3 (D.D.C. July 24, 2025) (footnote
omitted) (“Because her case takes issue with the way the FBI decided to handle her
complaints, Garner’s claim falls within the FTCA’s discretionary exception and the
Court lacks jurisdiction.”), appeal docketed, No. 25-5335 (D.C. Cir. Sept. 22,
2025); Butler v. City of Allentown, No. 22-CV-1471, 2022 WL 1592580, at *5
(E.D. Pa. May 19, 2022) (concluding that the FBI’s “decision to respond to or
investigate Butler’ allegations is within the agency’s discretion and, thus, falls
withing the discretionary function exception to the FTCA”); Barbieri v. United
States, No. CV 16-3748, 2017 WL 4310255, at *6 (E.D. Pa. Sept. 28, 2017)
(concluding that FTCA claim based on FBI agent’s investigation and Assistant
United States Attorney’s prosecution was barred by the discretionary function
exception); Bedell v. United States, No. 1:16-CV-00019, 2016 WL 2647577, at *5
(M.D. Pa. May 10, 2016) (noting that “[i]t is clear that how and under what
circumstances a law enforcement officer conducts a criminal investigation is a
discretionary function[,]” and concluding that the discretionary function exception
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 12 of 15

13
barred FTCA claim based on FBI agent’s failure to investigate reports by the
plaintiff), a’ffd, 669 F. App’x 620, 622 (3d Cir. 2016); McCrudden v. United
States, No. 14-3532-RBK-AMD, 2016 WL 1259965, at *3 (D.N.J. Mar. 31, 2016)
(“Because the decision to initiate an investigation is within the FBI’s discretion,
Plaintiff’s “failure to investigate” claim is excepted from the FTCA’s waiver of
sovereign immunity.”). Here, because the discretionary function exception applies,
this court does not have subject-matter jurisdiction over the FTCA claim.
D. Summary.
Because the FBI has sovereign immunity, this court lacks subject-matter
jurisdiction, and we will recommend that the court dismiss this case without
prejudice. See Mohn v. United States, No. 23-1023, 2023 WL 4311609, at *2 (3d
Cir. July 3, 2023) (observing that “when a district court dismisses claims for lack
of subject matter jurisdiction, the dismissal should be without prejudice”); Merritts
v. Richards, 62 F.4th 764, 772 n.4 (3d Cir. 2023) (noting that “a dismissal with
prejudice on a threshold ground [such as lack of subject-matter jurisdiction] should
ordinarily be vacated and remanded with instructions for the claim to be dismissed
without prejudice”). And because the FBI has sovereign immunity and this court
lacks subject-matter jurisdiction, granting Keo further leave to amend would be
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 13 of 15

14
futile. Thus, we recommend that this case be dismissed without prejudice and
without further leave to amend.4
IV. Recommendation.
For the foregoing reasons, we recommend that the court dismiss this action
without prejudice for lack of subject-matter jurisdiction. We further recommend
that the court close this case.
4 Dismissal “without prejudice” is often used to indicate that the plaintiff
may amend his complaint. But in the context of a dismissal for lack of subject-
matter jurisdiction, a dismissal “without prejudice” indicates that the claim was not
decided on the merits. ‘“A dismissal with prejudice operates as an adjudication on
the merits’ and typically prevents the plaintiff from subsequently litigating his
claims in either the original court or any other forum.” Aldossari on Behalf of
Aldossari v. Ripp, 49 F.4th 236, 262 (3d Cir. 2022) (quoting Papera v.
Pennsylvania Quarried Bluestone Co., 948 F.3d 607, 611 (3d Cir. 2020)).
“Conversely, a [d]ismissal . . . without prejudice is a dismissal that does not
operat[e] as an adjudication upon the merits, . . . and thus does not have a [claim-
preclusive] effect.” Papera, 948 F.3d at 611 (internal quotation marks and citations
omitted). And “[i]f a court . . . determines that it lacks subject matter jurisdiction,
it cannot decide the case on the merits.” In re Orthopedic “Bone Screw” Prod.
Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997). “It has no authority to do so.” Id.
Thus, a dismissal for lack of subject-matter jurisdiction “must be without
prejudice.” Aldossari, 49 F.4th at 262. “Even when a district court determines that
granting leave to amend would be futile,” “a dismissal for lack of [subject-matter
jurisdiction] must be ‘without prejudice[.]’” Cook v. GameStop, Inc., 148 F.3d 153,
163 (3d Cir. 2025) (quoting Barclift v. Keystone Credit Servs., LLC, 93 F.4th 136,
148 (3d Cir. 2024)). Although we recommend that the complaint be dismissed
without prejudice for lack of subject-matter jurisdiction, we recommend that the
court not grant Keo further leave to amend as such leave to amend would be futile.
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 14 of 15

15
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 31st day of October, 2025.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
Case 1:25-cv-00126-JPW Document 17 Filed 10/31/25 Page 15 of 15