# FAWCETT v. United States

> District Court, D. Maine · August 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11123500

## Case

- **Court:** District Court, D. Maine
- **Decided:** August 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

SHIRLEY FAWCETT, )
)
Plaintiff, )
)
v. ) Docket No. 2:24-cv-00235-NT
)
UNITED STATES OF AMERICA, )
)
Defendant. )

ORDER ON MOTION TO DISMISS
Before me is the Defendant’s motion to dismiss the Plaintiff’s amended
complaint (ECF No. 12). For the reasons stated below, the motion is GRANTED IN
PART and DENIED IN PART.
BACKGROUND
On May 3, 2023, Shirley Fawcett had an appointment with the Social Security
Administration (“SSA”). 1st Am. Compl. (“Am. Compl.”) ¶¶ 32, 34 (ECF No. 7). The
SSA “serves all Americans,” but “a large percentage” of its office visitors are “elderly,
disabled, or both.” Am. Compl. ¶ 22. The purpose of Ms. Fawcett’s appointment was
to obtain a new Social Security card, which she needed to move into a new
independent living facility. Am. Compl. ¶ 32. The appointment, which had to be in-
person, was at the SSA’s office in the Custom House in downtown Portland, Maine.
Am. Compl. ¶¶ 5, 35–36. The SSA had just moved into the Custom House days before.
Am. Compl. ¶ 35. Ms. Fawcett’s daughter called ahead of the visit, and an SSA agent
told her the office was located inside the Custom House on Commercial Street. Sworn
Aff. of Victoria Thayer (“Thayer Aff.”) ¶¶ 5–6 (ECF No. 34-4). The SSA agent did not
tell her about any other entrances to the Custom House. Thayer Aff. ¶ 7.
Ms. Fawcett’s daughter drove her to her appointment and dropped her off at

the Custom House’s back entrance on Commercial Street. Am. Compl. ¶¶ 38–39;
Thayer Aff. ¶ 8. There were no signs at the Commercial Street entrance informing
visitors that additional and accessible entrances were available. Thayer Aff. ¶ 9. Ms.
Fawcett’s daughter would have liked to help her mother into and out of the building,
but there was no available parking nearby. Am. Compl. ¶ 39; Thayer Aff. ¶ 8. So, Ms.
Fawcett’s daughter circled the area and (unsuccessfully) looked for a parking spot.

Am. Compl. ¶¶ 39, 45.
After Ms. Fawcett’s SSA appointment, she exited the Custom House through
the back entrance on Commercial Street. Am. Compl. ¶ 42. That entrance has
multiple steps between the entrance doors and the sidewalk. Decl. of Waldemar
Rogowicz (“Rogowicz Decl.”) ¶ 5 (ECF No. 32); Am. Compl. ¶ 19. The entrance had
no handrails. Am. Compl. ¶ 19. Ms. Fawcett could walk independently but was
elderly and relied on handrails on staircases. Am. Compl. ¶ 37. Though she proceeded

as carefully as possible, it had rained that day, and the steps were slippery. Am.
Compl. ¶¶ 41, 46–47. Without a handrail to help her balance, Ms. Fawcett fell down
the stairs and onto the pavement below. Am. Compl. ¶¶ 46–48. She sustained
significant injuries from the fall. Am. Compl. ¶ 49.
The Custom House, a historically significant building listed in the National
Register of Historic Places, is maintained and managed by the General Services
Administration (“GSA”), a federal agency that provides workspaces for federal
employees and operates federal buildings. Am. Compl. ¶¶ 4–5; Def.’s Mot. Exs. 10, 11
(ECF Nos. 12-10, 12-11). The GSA completed major projects on the Custom House in

1998, 2009, and 2013. Rogowicz Decl. ¶¶ 6–9. At some point, the GSA installed a
handrail on the steps of the Custom House’s front entrance on Fore Street. Am.
Compl. ¶ 15.1 In 2009, the GSA’s work included alterations to the Commercial Street
entrance’s exterior door. Rogowicz Decl. ¶ 8. But the steps at the Commercial Street
entrance “are original to the building and have not been altered or renovated.”
Rogowicz Decl. ¶ 6. In 2013, the GSA added a handicap-accessible walkway and

entrance with an automatic door on the Custom House Street side of the building,
among other accessibility upgrades. Rogowicz Decl. ¶¶ 9–10. The GSA completed this
2013 project “to provide an accessible route to meet [Architectural Barriers Act]
compliance.” Rogowicz Decl. ¶ 10.
In July of 2024, Ms. Fawcett filed a one-count complaint against the United
States2 alleging that the GSA’s negligence caused her fall and resulting injuries.
Compl. (ECF No. 1). The United States filed a motion to dismiss for lack of jurisdiction

and Ms. Fawcett responded by amending her complaint. Mot. to Dismiss (ECF No. 6);
Am. Compl. Her amended complaint added allegations of negligence against the SSA,

1 Ms. Fawcett alleged that the Fore Street handrail was added in 1998, 1st Am. Compl. (“Am.
Compl.”) ¶¶ 6–8, 14–15 (ECF No. 7), but jurisdictional discovery has cast doubt on that allegation, see
United States’ Suppl. Briefing 4–5 (ECF No. 33). In any event, the timing of the installation of the
railing at the Fore Street entrance is not relevant to the analysis that follows.
2 I use the terms “Defendant,” “United States,” and “Government” interchangeably in this order.
among other changes.3 See Am. Compl. ¶¶ 22–31. The United States once again filed
a motion to dismiss, and I held oral argument on the motion. Mot. to Dismiss Am.
Compl. Pursuant to Fed. R. Civ. P. 12(b)(1) (“Def.’s Mot.”) (ECF No. 12); Minute

Entry (ECF No. 27). During oral argument it became clear that there were open—
and, according to the parties, easily answerable—questions about key facts that bore
on my jurisdiction over this dispute. Accordingly, I deferred ruling on the motion to
dismiss and ordered the parties to propose a plan for limited jurisdictional discovery
and supplemental briefing, which they did, and which I approved. Minute Entry;
Order on Jurisdictional Discovery (ECF No. 29). With the benefit of additional

discovery and briefing, the matter is now before me on the United States’ motion to
dismiss the amended complaint for lack of jurisdiction.4
LEGAL STANDARD
On a motion to dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1), I accept as true all well-pleaded facts in the plaintiff’s
complaint, evaluate them in the light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff’s favor. Fothergill v. United States, 566 F.3d

3 The Plaintiff’s amended complaint named the Social Security Administration (“SSA”) as the
defendant. See Am. Compl. 1. At oral argument, Plaintiff’s counsel explained that this was a
typographical error and that the United States is the proper defendant. I have modified the caption
accordingly and recognize the United States as the only defendant. See Fed. R. Civ. P. 21 (“On motion
or on its own, the court may at any time, on just terms, add or drop a party.”).
4 Ms. Fawcett requested another oral argument in her supplemental brief. Pl.’s Suppl. Briefing
on Def.’s Mot. to Dismiss (“Pl.’s Suppl. Br.”) 13 (ECF No. 34). Based on my analysis of the parties’
supplemental filings and given that I have already held oral argument on the Government’s motion to
dismiss, I do not view a second oral argument as helpful here. Accordingly, I DENY Ms. Fawcett’s
request for oral argument.
248, 251 (1st Cir. 2009). I may consider evidence submitted by the parties without
converting a Rule 12(b)(1) motion to dismiss into a Rule 56 motion for summary
judgment. Gonzales v. United States, 284 F.3d 281, 288 (1st Cir. 2002). “As the party

asserting federal jurisdiction, [the] [P]laintiff[ ] bear[s] the burden of establishing its
existence.” Reyes-Colón v. United States, 974 F.3d 56, 60 (1st Cir. 2020).
DISCUSSION
I. The Federal Tort Claims Act and the Discretionary Function
Exception
“As a sovereign, the United States is immune from suit unless it consents to
being sued.” Reyes-Colón, 974 F.3d at 58. Congress has the authority to grant that
consent and remove sovereign immunity. Merlonghi v. United States, 620 F.3d 50, 54

(1st Cir. 2010). With the Federal Tort Claims Act (“FTCA”), Congress did just that.
The FTCA authorizes civil actions for damages against the United States for
“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 . . . .” 28 U.S.C. § 1346(b)(1). But this seemingly broad grant of authority
is limited by several exceptions. And if an exception applies, “the government’s
immunity remains intact,” and the court lacks subject matter jurisdiction over the

claim. Reyes-Colón, 974 F.3d at 58.
The exception at issue here is the discretionary function exception. It preserves
sovereign immunity for tort claims based on “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). This exception “preserves the separation of powers by
preventing judicial second-guessing of legislative and administrative decisions
grounded in social, economic, and political policy through the medium of an action in

tort.” Reyes-Colón, 974 F.3d at 58 (citation and quotations omitted). To determine
whether the discretionary function exception applies, courts “first must identify the
conduct that is alleged to have caused the harm[.]” Fothergill, 566 F.3d at 252. From
there, courts “determine whether that conduct can fairly be described as
discretionary, and if so, decide whether the exercise or non-exercise of the granted
discretion is actually or potentially influenced by policy considerations.” Id.

Accordingly, I start by identifying the conduct that allegedly caused the harm.
To identify such conduct, the First Circuit has instructed that it is not a plaintiff’s
characterization that matters but rather the “nature and quality” of the conduct
itself. Id. at 253. First Circuit examples make clear that this characterization should
be a succinct statement of the allegedly negligent conduct at the heart of the case.
See, e.g., Reyes-Colón, 974 F.3d at 60; Fothergill, 566 F.3d at 253; Shansky v. United
States, 164 F.3d 688, 690–91 (1st Cir. 1999). Here, the alleged harm-producing

conduct was the Defendant’s failure to: (1) make the back entrance of the Custom
House safe and accessible to visitors; and (2) direct SSA visitors to one of the safer or
accessible entrances to the Custom House.5

5 In her amended complaint and response to the Government’s motion to dismiss, Ms. Fawcett
also faulted the Government for choosing to locate a public-serving SSA office in a building without a
safe and accessible entrance. Am. Compl. ¶ 52(e); Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss 14–15
(“Pl.’s Resp.”) (ECF No. 18). However, following jurisdictional discovery, it is now clear that Custom
House did have an accessible entrance when the SSA moved there in 2023. Decl. of Waldemar
The next step of the discretionary function analysis is to evaluate whether each
instance of harm-producing conduct was discretionary. “[C]onduct is generally
considered discretionary unless a federal statute, regulation, or policy specifically

tells federal officials to act a particular way.” Reyes-Colón, 974 F.3d at 60. Then, “[t]he
second question (asked only if the conduct involves an element of discretion) is
whether the exercise or non-exercise of the granted discretion is actually or
potentially affected by legitimate policy-related judgments[.]” Id. at 59 (citations and
quotations omitted). Accordingly, I apply these inquiries to each instance of alleged
harm-producing conduct.

A. The GSA’s Failure to Make the Custom House’s Commercial
Street Entrance Accessible to Visitors
1. Was the Conduct Discretionary?
Ms. Fawcett points to multiple authorities that she maintains required the
GSA to make the back, Commercial Street entrance of the Custom House accessible
to visitors.
a. The Architectural Barriers Act
First, Ms. Fawcett points to the Architectural Barriers Act (“ABA”). Pl.’s Resp.
in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Resp.”) 7–8 (ECF No. 18). Through this
statute, Congress directed the GSA to “prescribe standards for the design,
construction, and alteration of buildings . . . to insure whenever possible that
physically handicapped persons will have ready access to, and use of, such buildings.”

Rogowicz (“Rogowicz Decl.”) ¶¶ 9–10 (ECF No. 32). Thus, I no longer need to address this alleged
harm-producing conduct.
42 U.S.C. § 4152.6 The GSA complied with this directive, first with the Uniform
Federal Accessibility Standards (“UFAS”), and then with the Architectural Barriers
Act Accessibility Standards (“ABAAS”). Whether the UFAS or the ABAAS apply to a

particular project is a matter of timing. The UFAS apply if the “construction or
alteration” began on or before May 8, 2006, and the ABAAS apply if it began after
May 8, 2006. 41 C.F.R. § 102-76.65(a)(1). Under the ABA, “[e]very building . . . altered
after the effective date of a standard issued under this chapter . . . shall be . . . altered
in accordance with such standard.” 42 U.S.C. § 4155.
Following jurisdictional discovery, the parties now agree that the only

alteration to the exterior Commercial Street entrance involved changes to the door
during the 2009 renovations.7 United States’ Suppl. Briefing 3–4, 5 (ECF No. 33);
Pl.’s Suppl. Briefing on Def.’s Mot. to Dismiss (“Pl.’s Suppl. Br.”) 6–8 (ECF No. 34).

6 In this statute, “building” means “any building or facility” that is “to be constructed or altered
by or on behalf of the United States” and whose intended use requires it to “be accessible to the public.”
42 U.S.C. § 4151(1).
7 In her amended complaint, Ms. Fawcett alleges that both the Fore and Commercial Street
entrances were renovated in 1998. Am. Compl. ¶¶ 6–8. And with her briefing on the motion to dismiss,
she provided information from the GSA’s website, which referenced the 1998 renovation. Pl.’s Resp.
Ex. 4 (“GSA Fact Sheet”) (ECF No. 18-4). The GSA Fact Sheet reported that “[i]n 1998, the aluminum
doors, which were installed during the 1960s at the main entrances, were replaced with wooden doors
similar in design and color to the original doors to the building.” GSA Fact Sheet 1 (emphasis added).
The use of the plural “entrances” lent support to Ms. Fawcett’s allegation that both the Fore and
Commercial Street entrances were renovated in 1998. However, jurisdictional discovery has shown
that this representation on the GSA website was not accurate and that the entrance doors were in fact
renovated in 2009. Rogowicz Decl. ¶ 8. While precedent exists for taking judicial notice of information
on official government websites, see, e.g., Gent v. CUNA Mut. Ins. Soc’y, 611 F.3d 79, 84 n.5 (1st Cir.
2010), this example suggests courts should revisit that practice or at least proceed with caution when
considering doing so.
Accordingly, the question is whether the ABAAS in effect in 2009 required the GSA
to take any particular action.8
As to scope, the ABAAS apply to “[a]ll areas of newly designed and newly

constructed buildings and facilities and altered portions of existing buildings and
facilities[.]” 36 C.F.R. pt. 1191, App. A (July 23, 2004 ed.) § 201.1. For alterations,
“[w]here existing elements or spaces are altered, each altered element or space shall
comply with the applicable requirements of Chapter 2 [of the ABAAS].” Id. § 202.3.
An “element” is “[a]n architectural or mechanical component of a building, facility,
space, or site.” 36 C.F.R. pt. 1191, App. B (July 23, 2004 ed.) § 106.5. And a “space” is

“a definable area, such as a room, toilet room, hall, assembly area, entrance, storage
room, alcove, courtyard, or lobby.” Id. A door is thus an “element,” and because only
the door to the Commercial Street entrance was altered, only the door (but not the
entire entrance) had to comply with ABAAS. Accordingly, ABAAS did not specifically
require the Government to add handrails or other accessibility features to the
Commercial Street entrance just because it altered the door. And so, this choice not
to add accessibility features was discretionary. See Reyes-Colón, 974 F.3d at 60.9

8 The Architectural Barriers Act Accessibility Standards (“ABAAS”) were promulgated in 2004
and remained unchanged until 2013. Architectural Barriers Act (ABA) Accessibility Guidelines, 69
Fed. Reg. 44151 (July 23, 2004); Architectural Barriers Act (ABA) Accessibility Guidelines, 78 Fed.
Reg. 59493 (Sept. 26, 2013). Here, I consult the 2004 ABAAS because they were in effect during the
2009 renovations.
9 Ms. Fawcett also argues that the 2009 Custom House renovations were extensive enough that
the ABAAS required the GSA to add at least one “code-compliant and accessible entrance . . .
connected to all primary function areas of the building” during that renovation. Pl.’s Suppl. Br. 7,
10–11. I do not need to reach that argument because the undisputed evidence now shows that the
Custom House had such an entrance by the time Ms. Fawcett visited in 2023. See Rogowicz Decl.
¶¶ 9–10.
b. The Public Buildings Amendments Act10
Next, Ms. Fawcett cites the Public Buildings Amendments Act, 40 U.S.C.
§ 3312, and the related P100 Facilities Standards, as binding the GSA to act in a

particular way with respect to accessibility at the Custom House. Pl.’s Resp. 7; see
Def.’s Mot. Ex. 12 (ECF No. 12-12). Under that statute:
Each building constructed or altered by the [GSA] or any other federal
agency shall be constructed or altered, to the maximum extent feasible
as determined by the Administrator or the head of the federal agency,
in compliance with one of the nationally recognized model building codes
and with other applicable nationally recognized codes, including
electrical codes, fire and life safety codes, and plumbing codes, as the
Administrator decides is appropriate. In carrying out this subsection,
the Administrator or the head of the federal agency shall use the latest
edition of the nationally recognized codes.
40 U.S.C. § 3312(b). However, Ms. Fawcett has not directed me to any nationally
recognized codes that required specific conduct by the GSA with respect to Custom
House renovations or accessibility. The statutory text quoted above is not itself a
mandate for the installation of a handrail, for example.
Moreover, even if Ms. Fawcett had pointed to a particular code, I agree with
the United States that Section 3312(b) leaves ample room for discretionary decision-
making. See Def.’s Mot. 20–21. For example, it does not require compliance with any
particular code, it implies that the agency head has discretion over which code to
follow if multiple codes conflict, and it uses discretionary language like “to the
maximum extent feasible as determined by the Administrator” and “as the

10 Ms. Fawcett does not address the Public Buildings Amendments Act in her supplemental
briefing, perhaps because she no longer views that statute as a directing the GSA to take a particular
action in this case. However, because she raised it in her opposition to the Government’s motion to
dismiss, I address it here.
Administrator decides is appropriate.” 40 U.S.C. § 3312(b); see also Alberty v. United
States, 54 F.4th 571, 576 (8th Cir. 2002) (“Section 3312(b) is couched in discretion.”).
In sum, because Section 3312(b) of the Public Buildings Amendments Act does

not “specifically tell[ ] federal officials to act a particular way,” Reyes-Colón, 974 F.3d
at 60, it does not remove the conduct here from the type of discretionary decision-
making covered by the exception.
2. Was the Exercise of Discretion Actually or Potentially
Influenced by Policy Considerations?
Because I find that the GSA’s decision not to add accessibility features to the
Commercial Street entrance in 2009 was discretionary, I next evaluate whether the
agency’s exercise of that discretion was “actually or potentially affected by legitimate
policy-related judgments.” Reyes-Colón, 974 F.3d at 59 (citations and quotations
omitted). Because “the law presumes that government employees’ discretionary
decisions do indeed involve policy judgments,” it is Ms. Fawcett’s burden to allege

“facts that would support a finding that [the GSA’s] exercise of discretion in this
instance was not susceptible to policy analysis.” Davallou v. United States, 998 F.3d
502, 505 (1st Cir. 2021).
I have little difficulty finding that this discretionary decision could have been
affected by policy analysis. The GSA’s evaluation of whether to modify the
Commercial Street entrance could involve consideration of cost, aesthetics, safety,

and historical integrity, just to name a few. See Fothergill, 566 F.3d at 253 (listing
“efficiency, safety, aesthetics, and cost” as factors “readily susceptible to policy
analysis”).
Accordingly, because this exercise of discretion was actually or potentially
influenced by policy considerations, the discretionary function exception applies. I
therefore lack jurisdiction over Ms. Fawcett’s claim based on the GSA’s failure to

make the Commercial Street entrance accessible to visitors.
B. The Government’s Failure to Direct Visitors to the Custom
House’s Safer or Accessible Entrances
Ms. Fawcett asserts that the Government directed her to use the Commercial
Street entrance to attend her appointment, rather than the entrances on Fore or
Custom House Street. Pl.’s Suppl. Br. 9, 12; see also Am. Compl. ¶ 52(f), (k), (l).
According to Ms. Fawcett, this instruction to use the non-accessible back entrance
amounted to negligence. Pl.’s Suppl. Br. 12.
1. Was the Conduct Discretionary?
The first question is whether this direction, or the related failure to inform
Ms. Fawcett that there was a safer way to get in and out of the building, amounted

to discretionary conduct. Ms. Fawcett has not identified any statute, regulation, or
policy concerning this conduct. Thus, I proceed as if the challenged conduct is
discretionary. See Reyes-Colón, 974 F.3d at 60.
2. Was the Exercise of Discretion Actually or Potentially
Influenced by Policy Considerations?
The next question is whether the Government’s exercise of discretion on how
to direct SSA office visitors to enter and exit the Custom House was actually or
potentially influenced by policy considerations. As already noted, it is Ms. Fawcett’s
burden to rebut the presumption that the Government’s discretionary conduct
involved policy judgments. Davallou, 998 F.3d at 505. Here, Ms. Fawcett alleges that
visitors to the SSA office are largely “elderly, disabled, or both.” Am. Compl. ¶ 22. She
further alleges that the Government required visitors to navigate granite steps
without the aid of a handrail in rainy Maine weather to attend their SSA

appointments. In addition, she alleges that the Commercial Street entrance was on a
busy street with limited parking, such that her daughter could not help her enter or
leave the building. Finally, she alleges that the Government directed her to this
difficult-to-navigate entrance when there were two other options available: one with
a handicap-accessible walkway and automatic door, and another with a handrail.
The previously discussed discretionary decision about whether to make the

Commercial Street entrance accessible in the first place was clearly susceptible to
policy considerations. But here, Ms. Fawcett has alleged sufficient facts that the
Government’s discretionary decision was not (actually or potentially) the product of
policy considerations. The Custom House already had an accessible entrance.
Informing SSA office visitors about that entrance would not involve weighing social,
economic, or political considerations. The SSA had to direct visitors to some entrance,
after all. I can think of no policy implicated by choosing to direct the SSA-visiting

population to a hard-to-navigate entrance when better options were readily available.
As the First Circuit has observed, where “the unreasonableness of the activity
would be clearly apparent ex ante to any reasonable observer,” it cannot be viewed as
the product of policy analysis. Hajdusek v. United States, 895 F.3d 146, 152 (1st Cir.
2018); see, e.g., Smith v. United States, 752 F. Supp. 3d 242, 264 (D. Mass. 2024) (“The
decisions to leave the helicopter directly on the obvious and actively used snowmobile
trail near dusk without suspending or shortening the training plan and/or taking any
mitigating precautions to alert approaching snowmobilers were neither based on
policy-driven analysis nor susceptible to policy analysis.”); Dumais v. United States,

No. 22-cv-112-PB, 2023 WL 5237904, at *9 (D.N.H. Aug. 15, 2023) (citation and
quotations omitted) (negligently maintaining a trailer by over-torquing bolts is “not
the sort of decision grounded in social, economic, and political policy that the
discretionary function exception is meant to immunize”).
Because the Government’s decision to direct SSA visitors to the Commercial
Street entrance was not susceptible to policy considerations, the discretionary

function exception does not apply. Therefore, I have jurisdiction over Ms. Fawcett’s
claim that the Defendant negligently failed to direct her to a safe or accessible
entrance.
II. Notice of Claim Requirement
Finally, the United States asserts that Ms. Fawcett’s claim against the SSA
should be dismissed for lack of subject matter jurisdiction for the independent reason
that she failed to put the SSA on proper notice of her claims, as required by 28 U.S.C.

§ 2675. Def.’s Mot. 24–26. Section 2675 requires plaintiffs seeking to sue the United
States to first exhaust administrative remedies. 28 U.S.C. § 2675(a). A plaintiff
satisfies this requirement by providing written notice that contains “(1) sufficient
information for the agency to investigate the claims, and (2) the amount of damages
sought.” Santiago-Ramirez v. Sec’y of Dep’t of Defense, 984 F.2d 16, 19 (1st Cir. 1993).
The First Circuit has described this test as “eminently pragmatic.” Dynamic Image
Techs., Inc. v. United States, 221 F.3d 34, 40 (1st Cir. 2000). “[A]s long as the language
of an administrative claim serves due notice that the agency should investigate the
possibility of particular (potentially tortious) conduct and includes a specification of
the damages sought, it fulfills the notice-of-claim requirement.” Id.

The United States faults Ms. Fawcett for including a theory of liability against
the SSA in her amended complaint that did not appear in her notice of claim. Def.’s
Mot. 26. While the United States accurately observes that Ms. Fawcett did not spell
out each theory of liability she now pursues in her notice of claim, I do not read
Section 2675 as demanding that level of specificity. Ms. Fawcett sent her notice of
claim to the SSA (as well as the GSA), explained her fall, and accused both agencies

of negligence in maintaining or renovating the Custom House entrance without
including a handrail. See Def.’s Mot. Exs. 15, 16 (ECF Nos. 12-15, 12-16). That was
enough information for each agency to investigate the possibility of tortious conduct.
To bar her claim for not fleshing out every possible theory of liability against each
agency would violate the First Circuit’s instruction to apply the notice of claim
requirement pragmatically, not “woodenly.” Dynamic Image Techs., 221 F.3d at 40.
Ms. Fawcett properly exhausted her administrative remedies before filing suit in this

Court.
CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss the Plaintiff’s
amended complaint (ECF No. 12) is GRANTED IN PART and DENIED IN PART.

The Plaintiff’s negligence claim may proceed, but only to the extent it is based on the
Defendant’s failure to direct Ms. Fawcett to a safer or accessible entrance to the
Custom House.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 19th day of August, 2025.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11123500. Public record. Not legal advice.