UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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WILLIAM T. CUNNINGHAM, )
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Plaintiff, )
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v. ) Case No. 21-cv-00187 (APM)
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ZACHARY WRIGHT, )
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Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Before the court is Defendant Zachary Wright’s Motion to Dismiss, ECF No. 5. For the
reasons that follow, the motion is granted.
First, Plaintiff’s intentional infliction of emotional distress claim is dismissed for the same
reasons that the court dismissed a nearly identical claim that Plaintiff brought against Wright in a
2019 suit, see Mem. Op., Cunningham v. Wright (Cunningham I), No. 19-cv-3357 (D.D.C.), ECF
No. 7 [hereinafter Cunningham I Op.]. For one, Plaintiff brings a common law tort claim against
Wright acting in his official capacity as an administrative judge of the Equal Employment
Opportunity Commission, see Notice of Removal of a Civil Action, ECF No. 1, Compl., ECF
No. 1-1, at 1, and therefore under the Westfall Act and the certification submitted in this case, the
United States is the proper defendant. See Cunningham I Op. at 1–2; Notice of Removal of a Civil
Action, ECF No. 1 [hereinafter Cunningham I Notice of Removal], Westfall Certification, ECF
No. 1-2. See generally Osborn v. Haley, 549 U.S. 225 (2007). The United States has not, however,
waived its sovereign immunity under the Federal Tort Claims Act (“FTCA”) for Plaintiff’s claim
because the claim arises from alleged “misrepresentation” and “deceit.” 28 U.S.C. § 2680(h);
Cunningham I Op. at 1–2; Pl.’s Resp. to Order, ECF No. 7 [hereinafter Pl.’s Resp.], at 1 (alleging
“[j]udicial [m]isconduct was committed while conspiring and colluding with the Department of
Labor (DoL) counsel”); Cunningham I Notice of Removal, Compl., ECF No. 1-2, at 3 (alleging
Wright “can be clearly heard lying to” Plaintiff). The court also lacks jurisdiction because Plaintiff
has failed to exhaust administrative remedies under the FTCA. See McNeil v. United States, 508
U.S. 106, 113 (1993) (affirming dismissal of the plaintiff’s FTCA claim for lack of subject matter
jurisdiction because “[t]he FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies”).
Second, dismissal is warranted because Plaintiff’s tort claim was previously dismissed on
jurisdictional grounds in Cunningham I and therefore is barred on the ground of res judicata. See
GAF Corp. v. United States, 818 F.2d 901, 912 (D.C. Cir. 1987) (stating a “judgment ordering
dismissal[] will . . . preclude relitigation of the precise issue of jurisdiction that led to the initial
dismissal”). Plaintiff identifies no basis for having “cure[d]” the jurisdictional deficiencies
identified in Cunningham I. See id. at 912–13.
Third, to the extent Plaintiff asserts a claim under the Fifth Amendment against Wright in
his individual capacity, that claim is dismissed for two reasons. As an administrative law judge,
Wright is immune from suit. The Supreme Court long ago “extended absolute immunity” to
administrative law judges performing judicial acts. Cleavinger v. Saxner, 474 U.S. 193, 200
(1985) (citing Butz v. Economou, 438 U.S. 478, 513 (1978)). In addition, the court lacks
jurisdiction over Wright because Plaintiff has failed to serve him with process. See 28 U.S.C.
§ 1448; Fed. R. Civ. P. 4(i)(3); Pl.’s Resp. at 2 (conceding failure to serve).
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Finally, to the extent Plaintiff brings a claim under 42 U.S.C. § 1983, that claim is likewise
dismissed because Wright is immune from suit for his judicial acts and because Plaintiff has not
served Wright.
For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 5, is granted. A final,
appealable order accompanies this Memorandum Opinion.
Dated: July 13, 2021 Amit P. Mehta
United States District Court Judge
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Cunningham v. Wright
Combined Opinion