Emrit v. National Institutes of Health

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RONALD SATISH EMRIT, )
NICOLE ROCIO LEAL-MENDEZ, )
)
Plaintiffs, )
)
v. ) Civil Action No. 14-2083 (BAH)
)
NATIONAL INSTITUTES OF HEALTH et al, )
)
)
Defendants. )

MEMORANDUM OPINION

The plaintiffs, Ronald Satish Emrit and Nicole Rocio Leal-Mendez, are two residents of

Las Vegas, Nevada. They have brought suit pro se against the National Institutes of Health

(NIH), the Centers for Disease Control (CDC), the U.S. Food and Drug Administration (FDA), and

the U.S. Department of Health and Human Services (HHS) for alleged violations of the

Constitution, the Americans with Disabilities Act of 1990 (ADA), Title VII of the Civil Rights Act of

1964, and 42 U.S.C. § 1983. 1 In addition, the plaintiffs assert common law claims of negligence

and intentional infliction of emotional distress (“IIED”). See Compl. ¶¶ 1-3, ECF No. 1. The

complaint stems from the plaintiffs’ alleged attempts to obtain a diagnosis and treatment for

Leal-Mendez’s “mysterious, parasitic infection.” Compl. ¶ 19. The plaintiffs seek $45 million in

money damages and an order compelling the defendants to treat Leal-Mendez with specific

“pharmaceutical drugs.” Compl. at ECF pp. 15-17.

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Emrit “claims to be the guardian or guardian ad litem representing” Leal-Mendez. Compl. ¶
4. Emrit has supplied no documentation of a guardianship, and this Court denied his request to
be appointed Leal-Mendez’s guardian. See July 15, 2015 Order, ECF No. 26. Consequently,
Emrit “may plead and conduct” his case only. 28 U.S.C. § 1654.

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 The defendants have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure on the bases that the plaintiffs (1) failed to exhaust their administrative remedies

prior to filing this lawsuit, and (2) have stated no claims upon which relief can be granted. For

the reasons explained below, the Court finds that it lacks subject matter jurisdiction.

Consequently, it will grant the defendants’ motion to dismiss, albeit for a different reason. See

Fed. R. Civ. P. 12(h)(3) (requiring a court to dismiss an action “at any time” that subject matter

jurisdiction is found wanting).

I. BACKGROUND

The plaintiffs’ allegations are as follows. For three years leading up to the filing of this

action in December 2014, Leal-Mendez “tried to get assistance from the NIH, CDC, and even

Walter Reed Hospital with regards to assisting her with diagnosing and treating her mysterious,

parasitic infection,” which she “believes” is the result of having contracted “a sexually-

transmitted parasite from a criminal recidivist[.]” Compl. ¶¶ 19-20. As a result of the infection,

Leal-Mendez suffers from pain and experiences blood and mucous secretions that she claims

are not caused by her other various medical conditions. Allegedly, Leal-Mendez was seen by

her primary care physician in or near Providence, Rhode Island, diagnosed with “polycystic

ovaries,” and prescribed medicine “to deal with and/or cope with [her] pain[.]” Id. ¶¶ 22, 24-

25. Leal-Mendez “would like to be treated with . . . pharmaceutical drugs . . . used to treat

mite-like parasites which can burrow under the skin/epidermis (like scabies).” Id. ¶ 26.

The plaintiffs’ claims are captioned in the complaint as follows: Count One: Negligence;

Count Two: IIED; Count Three: ADA Violation; Count Four: Title VII Violation; Count Five:

Violation of 42 U.S.C. § 1983; Count Six: Violation of the Equal Protection Clause; Count Seven:

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Violation of the Due Process Clause; Count Eight: Violation of the Privileges and Immunities

Clause.

II. DISCUSSION

Prior to reaching the merits of a claim, federal courts must “assure themselves of

jurisdiction[.]” Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014) (quoting Floyd v. District

of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997) (internal alteration and quotation marks

omitted)). See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (instructing

that a court has an affirmative obligation “to consider whether the constitutional and statutory

authority exist for [it] to hear each dispute”) (citation and internal quotation marks omitted)).

A complaint may be dismissed on jurisdictional grounds when it “is ‘patently

insubstantial,’ presenting no federal question suitable for decision.” Tooley v. Napolitano, 586

F.3d 1006, 1009 (D.C. Cir. 2009) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)). In

addition, the “federal courts are without power to entertain claims otherwise within their

jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit.’ ”

Hagans v. Lavine, 415 U.S. 528, 536-7 (1974) (quoting Newburyport Water Co. v. Newburyport,

193 U.S. 561, 579 (1904)).

The plaintiffs’ tenuous allegations against the named defendants satisfy the foregoing

standard. Consequently, the Court may dismiss the entire complaint on the sole ground that it

is frivolous. 2 Nevertheless, as explained below, the Court finds certain claims foreclosed also

under the doctrines of sovereign immunity and standing.

2 The Court agrees with the defendants’ unopposed arguments that the plaintiffs’
constitutional claims (Counts Six, Seven and Eight) are baseless. See Defs.’ Mem. of P. & A. at
10-12. In addition, § 1983 (Count Five) is wholly inapplicable to the federal agencies sued here
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 A. Sovereign Immunity

Sovereign immunity bars lawsuits for money damages against the United States and its

agencies absent a specific waiver by the federal government. Wilson v. Obama, 770 F. Supp. 2d

188, 191 (D.D.C. 2011) (citing Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984)).

Section 1346(b) of the United States Code “grants the federal district courts jurisdiction over a

certain category of claims for which the United States has waived its sovereign immunity and

rendered itself liable.” FDIC v. Meyer, 510 U.S. 471, 477 (1994) (citation, internal quotation

marks, and alteration omitted). Congress has not waived the United States’ immunity with

respect to tort claims arising under the Constitution. Id. at 476-78. In addition, claims against

the United States not sounding in tort and seeking damages exceeding $10,000 are the

exclusive province of the U.S. Court of Federal Claims. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, provides a limited waiver of

sovereign immunity where a plaintiff seeks monetary damages against a federal agency for

certain common law torts committed by federal employees. Wilson, 770 F. Supp. 2d at 191

(citing Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006)). The waiver does not occur,

however, until the plaintiff has exhausted administrative remedies by "first present[ing] the

claim to the appropriate Federal agency" and obtaining a final written decision or waiting six

months after presentment. 28 U.S.C. § 2675(a). Such exhaustion “is a requirement of the

FTCA,” Wilson, 770 F. Supp. 2d at 191 (citation omitted), that the Court of Appeals has deemed

to be jurisdictional. See Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir.

because that statute creates a private right of action against a “person” who is alleged to have
violated one’s constitutional rights while acting “under color of . . . any State or Territory or the
District of Columbia.” Id.
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2007) (concluding that the “district court . . . lacked subject matter jurisdiction, or if not

jurisdiction, the functional equivalent of it” over an unexhausted FTCA claim); Abdurrahman v.

Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming the district court’s

dismissal of an unexhausted FTCA claim “for lack of subject matter jurisdiction”); Tsitrin v.

Lettow, 888 F. Supp. 2d 88, 92 (D.D.C. 2012) (“FTCA claims may be dismissed for lack of subject

matter jurisdiction where the plaintiff does not exhaust necessary administrative remedies

under the FTCA, which is a mandatory prerequisite.”) (citations omitted).

The plaintiffs have not refuted, and thus have conceded, that they did not exhaust their

administrative remedies under the FTCA prior to filing suit. See generally Pls.’ Opp’n, ECF No.

25. Hence, the Court lacks jurisdiction over the plaintiffs’ negligence and IIED claims (Counts

One and Two).

B. Standing to Sue

“Article III of the Constitution limits the jurisdiction of federal courts to ‘actual cases or

controversies between proper litigants.’ ” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir.

2014) (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996)). To establish

standing to sue generally, plaintiffs “ ‘must have suffered or be imminently threatened with a

concrete and particularized injury in fact that is fairly traceable to the challenged action of the

defendant and likely to be redressed by a favorable judicial decision.’ ” Id. (quoting Lexmark

Int'l, Inc. v. Static Control Components, Inc., --- U.S. ---, 134 S.Ct. 1377, 1386 (2014) (other

citation omitted)). In addressing standing under Title VII, which the plaintiffs have invoked, the

Supreme Court has held “that the term ‘aggrieved’ in Title VII incorporates [a zone of interest]

test, enabling suit by any plaintiff with an interest ‘arguably [sought] to be protected by the

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statute,’ . . . while excluding plaintiffs who might technically be injured in an Article III sense

but whose interests are unrelated to the statutory prohibitions in Title VII.” Thompson v. N.

Am. Stainless, LP, 562 U.S. 170, 178 (2011) (quoting National Credit Union Admin. v. First Nat.

Bank & Trust Co., 522 U.S. 479, 495 (1998)).

Title VII proscribes discrimination against federal employees or applicants for federal

employment on the bases of race, color, religion, gender, or national origin. See 42 U.S.C. §

2000e-16(c); Black Employ’s of Library of Congr. v. Billington, 737 F. 3d 767, 772 (D.C. Cir. 2013)

(“The statute at issue here, Title VII, gives injured employees a right to sue.”). Similarly, as

applicable here, the Rehabilitation Act of 1973 implicitly proscribes discrimination against

federal employees or applicants for federal employment on the basis of disability. 3 See Redd v.

Summers, 232 F.3d 933, 936 (D.C. Cir. 2000) (noting that “although [§ 501 of the Rehabilitation

Act] does not explicitly either prohibit federal government disability discrimination in

employment, or authorize prohibitory regulations, it is understood to support the Equal

Opportunity Employment Commission's adoption of regulations that do so”) (citing 29 U.S.C. §

791; 29 C.F.R. § 1614.203(b)); Koch v. Holder, 930 F. Supp. 2d 14, 17 (D.D.C. 2013) (“Title VII,

the ADEA, and the Rehabilitation Act cover only employees in a direct employment relationship

3 The plaintiffs have invoked the ADA, which does not apply to the federal government. See
42 U.S.C. § 12111(2), (5)(B)(i) (excluding United States as an “employer” subject to the Act).
Consistent with the requirement to construe pleadings “so as to do justice,” Fed. R. Civ. P. 8(e),
the Court has considered the plaintiffs’ ADA claim under the analogous Rehabilitation Act. The
Rehabilitation Act has two components—Section 501 and Section 504. Section 504 “addresses
federal disability discrimination in . . . the administration of a federal program or activity,” Redd
v. Summers, 232 F.3d 933, 936 (D.C. Cir. 2000) (citing 29 U.S.C. § 794(a)), the definition of which
does not include the United States or its agencies. See id., § 794(b). Hence, the Court has
considered the plaintiffs’ disability discrimination claim only under § 501.
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with the employer and applicants for employment.”) (citations and internal quotation marks

omitted)).

The plaintiffs have not alleged facts stating or implying that they are current or former

federal employees or federal job applicants. Moreover, they have not opposed, and thus have

conceded, the defendants’ argument to the contrary. See Defs.’ Mem. of P. & A. at 9, ECF No.

18. Furthermore, the allegations in the complaint fail to establish how Leal-Mendez’s alleged

injuries are “fairly traceable” to the NIH, CDC, FDA or HHS. Even if a link is established, neither

Title VII nor the Rehabilitation Act is the proper vehicle for redressing Leal-Mendez’s claims.

Consequently, the Court finds that the plaintiffs lack standing to sue under Title VII (Count Four)

or under the Rehabilitation Act (Count Three as construed). See Khaksari v. Chairman, Broad.

Bd. of Governors, 451 Fed. App’x. 1, 4 (D.C. Cir. 2011) (affirming the district court’s “legal

conclusion [that plaintiff] is not an ‘employee’ and therefore lacks standing to complain either

of a hostile work environment or of retaliation” under Title VII) (citations omitted)). And “[t]he

defect of standing is a defect in subject matter jurisdiction.” 4 Haase v. Sessions, 835 F.2d 902,

906 (D.C. Cir. 1987).

4 Since the Court has adequate grounds to dismiss the case in its entirety, it will not address
the defendants’ valid argument for dismissing Emrit’s claims based on his lack of standing to
assert a right stemming from Leal-Mendez’s alleged injuries. See Defs.’ Mem. of P. & A. at 4-5;
Powers v. Ohio, 499 U.S. 400, 411 (1991) (“In the ordinary course, a litigant must assert his or
her own legal rights and interests, and cannot rest a claim to relief on the legal rights or
interests of third parties.”). Finally, the defendants suggest that this Court consider imposing
filing restrictions on Emrit “due to his nationwide campaign of frivolous in forma pauperis
litigation.” Defs.’ Reply at 1, ECF No. 27. But this Court cannot impose a nationwide restriction,
and it must look to “the number, content, frequency, and disposition of [Emrit’s] previous
filings” here to justify a filing restriction in this Court. Butler v. Dep't of Justice, 492 F.3d 440,
445 (D.C. Cir. 2007) (citation and internal quotation marks omitted). A search of this Court’s
dockets has located no other civil action filed by Emrit.
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III. CONCLUSION

For the foregoing reasons, this action is dismissed for want of subject matter

jurisdiction. A separate final Order accompanies this Memorandum Opinion.

/s/Beryl A. Howell
DATE: January 29, 2016 UNITED STATES DISTRICT JUDGE

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