Emrit v. Devos

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Ronald Satish Emrit, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-417 (UNA)
)
Betsy DeVos et al., )
)
Defendants. )

MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintiff’s pro se complaint and

application for leave to proceed in forma pauperis. The Court will grant the application and

dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)

(requiring the court to dismiss an action “at any time” it determines that subject matter

jurisdiction is wanting).

“Federal courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute,” and it is “presumed that a cause lies outside this limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations

omitted). Under the doctrine of sovereign immunity, the United States and its agencies may be

sued only upon consent, which must be clear and unequivocal. United States v. Mitchell, 445

U.S. 535, 538 (1980) (citation omitted). A waiver of sovereign immunity “must be

unequivocally expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S.

187, 192 (1996) (citations omitted). A party seeking relief in the district court must at least plead

facts that bring the suit within the court’s jurisdiction. See Fed. R. Civ. P. 8(a). Failure to plead

such facts warrants dismissal of the action.

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 Plaintiff, a resident of Sarasota, Florida, has sued the United States Department of

Education, Education Secretary Betsy DeVos, two entities that appear connected to the

Department, and a private company in Oregon. See Compl. ¶¶ 6-11. Over time, plaintiff

allegedly has obtained student loans from “Sallie Mae, Brown University . . . Department of

Education, Southwest Student Services Corporation, Access Group/KHESLC, and/or Mohela

Corporation[.]” Id. ¶ 49. Plaintiff alleges, inter alia, that those now “consolidated student loans

. . . have . . . apparently been classified as ‘defaulted’,” and the Treasury Offset Program (TOP)

“has allowed the U.S. Department of Education to garnish at least 15% of the plaintiff’s

disability check from the Social Security Administration (SSA).” Id. ¶¶ 50-51. Plaintiff also

alleges that he has “tried to get this garnishment stopped through” defendants Default Resolution

Group, NelNet, and Action Financial Services, “but none of these agencies have been able to

help [him] get his student loans discharged and/or forgiven because of permanent disability

and/or economic hardship.” Id. ¶ 52.

In the nine-count complaint, plaintiff alleges breach of contract (count one),

constitutional violations (counts two through four), violations of Title VII of the Civil Rights Act

of 1964 and the Americans with Disabilities Act of 1990 (ADA) (counts five and six), and

tortious conduct (counts seven through nine). See Compl. ¶¶ 56-89. Plaintiff seeks $250,000 in

monetary damages and “an injunction . . . mandating that the five defendants cease and desist”

garnishment of his disability check. Compl. at 25.

Congress has not waived the federal government’s immunity from lawsuits based on

constitutional violations. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994). Nor has it

waived the Department of Education’s sovereign immunity as to injunctive relief. The Higher

Education Act of 1965 specifically provides that “no . . . injunction . . . shall be issued against

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the Secretary or property under the Secretary’s control[.]” 20 U.S.C. § 1082(a) (2) (emphasis

added); see Thomas v. Bennett, 856 F.2d 1165, 1168 (8th Cir. 1988) (agreeing that “this

provision prohibits [a] claim for injunctive relief” against the Education Secretary).

As for the federal statutory claims, plaintiff has not established his standing to sue, which

also “is a defect in subject matter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.

1987). The “purpose of Title VII is to protect employees from their employers’ unlawful

actions,” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178 (2011), but plaintiff has alleged

no facts from which it may be found or reasonably inferred that he is a “person . . . aggrieved by

an unlawful employment practice.” Fair Employment Council of Greater Washington, Inc. v.

BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994) (internal quotation marks omitted)). The

ADA, moreover, does not apply to the federal government. See Emrit v. Nat'l Institutes of

Health, 157 F. Supp. 3d 52, 56 n.3 (D.D.C. 2016), citing 42 U.S.C. § 12111(2), (5)(B)(i)

(excluding United States as an “employer” subject to the ADA).

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, which plaintiff

also invokes, waives the federal government’s immunity for certain personal injury claims for

damages. But before proceeding in federal court, the complainant must have first presented the

claim “to the appropriate Federal agency” and obtained a final written denial or allowed six

months to pass without a final disposition. 28 U.S.C. § 2675(a). Nothing in the complaint

suggests that plaintiff has pursued his administrative remedy under the FTCA, and under the law

in this circuit, the presentment requirement is “jurisdictional.” Simpkins v. District of Columbia

Gov’t, 108 F.3d 366, 371 (D.C. Cir. 2007).

Apart from the jurisdictional barriers, plaintiff admits that he has filed “this cause of

action” in other federal district courts, Compl. ¶ 6, and a “search of the federal judiciary’s Public

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Access to Court Electronic Records (PACER) service reveals that from February 7, 2019 through

February 18, 2019, plaintiff filed nine virtually identical actions against the same defendants

named herein.” Emrit v. DeVos, No. 1:20-CV-35 JAR, 2020 WL 833595, at *1 (E.D. Mo. Feb.

20, 2020) (citing cases). This suggests that plaintiff is abusing the process and the privilege of

proceeding in forma pauperis. Plaintiff is warned, therefore, that his persistence in submitting

lawsuits of this type and in this manner may result in an injunction that bars him from

proceeding in forma pauperis in future actions before this Court. See Hurt v. Social Security

Admin., 544 F.3d 308, 310 (D.C. Cir. 2008) (approving the denial of an abusive litigant’s “IFP

status prospectively.”); Butler v. Dep’t of Justice, 492 F.3d 440, 446 (D.C. Cir. 2007) (“Butler

may continue to engage in this pastime [of filing repetitive actions] if he wishes, but if he

chooses to do so here, it will have to be on his own dime.”); see also Ibrahim v. District of

Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000) (“Leave to file a claim in forma pauperis has

always been a matter of grace, a privilege granted in the court’s discretion . . ., and denied in the

court’s discretion when that privilege has been abused by filing claims or appeals that are

frivolous or otherwise not taken in good faith.”) (citations omitted).

The Court agrees with the U.S. District Courts for the Southern District of Texas and the

Eastern District of Missouri that each of plaintiff’s claims is conclusory, merely reciting “the

relevant law” but drawing no logical “connection between the factual allegations in the

complaint” and the “legal claims.” Emrit v. Devos, No. 2:20-MC-00316, 2020 WL 1279205, at

*1 (S.D. Tex. Feb. 19, 2020), report and recommendation adopted, No. 2:20-CV-52, 2020 WL

1272606 (S.D. Tex. Mar. 17, 2020) (record citations omitted)); Emrit, 2020 WL 833595, at *2.

Furthermore, the “Debt Collection Improvement Act clearly makes Social Security benefits

subject to offset” to collect student loan debt, Lockhart v. United States, 546 U.S. 142, 145

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(2005), and that lawful action seems to be the gravamen of plaintiff’s rambling complaint.

Consequently, this case will be dismissed. A separate Order accompanies this Memorandum

Opinion.

_________s/_____________
AMY BERMAN JACKSON
Date: April 6, 2020 United States District Judge

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