i

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

20-cv-22942-Moore-Becerra

___________________________________

:

CHRISTINA MARIE MCLAUGHLIN, :

:

Plaintiff, :

:

v. :

:

FLORIDA INTERNATIONAL :

UNIVERSITY, et. al. :

:

Defendants. :

____________________________________:

MEMORANDUM IN SUPPORT OF THE UNITED STATES DEPARTMENT OF 

EDUCATION AND SECRETARY OF EDUCATION ELISABETH DEVOS’S MOTION 

TO DISMISS THE PLAINTIFF’S FIRST AMENDED COMPLAINT UNDER RULES 

12(b)(1) AND 12(b)(6) FOR LACK OF SUBJECT MATTER JURISDICTION AND 

FAILURE TO STATE A CLAIM

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TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................................................................................iv

EXHIBIT LIST ..................................................................................................................... viii

INTRODUCTION....................................................................................................................1

MEMORANDUM OF POINTS AND AUTHORITIES.............................................................2

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT ..................................................2

ARGUMENT...........................................................................................................................5

I. The Court should dismiss this case under Rule 12(b)(1) for lack of subject matter 

jurisdiction ..............................................................................................................5

A. Rule 12(b)(1) Standard.......................................................................................5

B. Sovereign immunity bars Plaintiff’s constitutional claims (Counts I and III) 

against the Federal Defendants ...........................................................................6

C. Neither the DOE nor Secretary Devos are proper defendants for Plaintiff’s 

remaining tort claims (Counts IV, VII, VIII, IX and X) .......................................6

D. Even if allowed to substitute the United States as a defendant for the remaining 

tort claims, Plaintiff cannot proceed at this time because she failed to exhaust her 

administrative remedies......................................................................................7

E. There is no basis for a case under the FTCA for Plaintiff’s intentional tort claims 

of fraud (Count VII) and civil conspiracy to commit fraud (Count VIII), as the 

United States has not waived sovereign immunity ...............................................8

F. All claims against the Federal Defendants must be dismissed because there is no 

subject matter jurisdiction created by FERPA .....................................................9

G. The “discretionary function” exception bars all of Plaintiff’s potential FTCA

claims..............................................................................................................11

H. No private party analog to the alleged conduct exists, thus negating any

government liability under the FTCA ...............................................................14

II. In the alternative, the Court should dismiss this case under Rule 12(b)(6) for failure to 

state a claim upon which relief may be granted.......................................................15

A. Rule 12(b)(6) Standard.....................................................................................15

B. Plaintiff alleges no specific facts concerning Secretary Devos ...........................16

C. Plaintiff fails to plead the elements of a fraud claim under Florida law (Count 

VII); alternatively, Plaintiff cannot sufficiently allege the elements of a fraud 

claim ...............................................................................................................16

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D. Plaintiff’s claim for civil conspiracy (VIII) fails because Florida does not 

recognize an independent claim for civil conspiracy, and Plaintiff cannot allege a 

valid claim that could form the basis of a conspiracy.........................................18

E. Plaintiff’s claims for breach of fiduciary duty (Count IX) and negligence (Count 

X) both fail because the Federal Defendants have no duty to the Plaintiff, and 

Plaintiff fails to allege specific damages............................................................19

CONCLUSION......................................................................................................................20

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TABLE OF AUTHORITIES

CASES

Allocco v. City of Coral Gables, 221 F. Supp. 2d 1317, 1360-61 (S.D. Fla. 2002) .............. 18, 19

Air Shuttle Corp. v. United States, 112 F.3d 532, 536-537 (1st Cir. 1997) ................................14

Air Turbine Technology, Inc. v. Atlas Copco AB, 295 F. Supp. 2d 1334, 1347 (S.D. Fla. 2003) .17

Alvarez v. United States, 862 F.3d 1297, 1301-02 (11th Cir. 2017) ............................................9

ASEDAC v. Panama Canal Comm’n, 453 F.3d 1309, 1315 (11th Cir. 2006) ..............................6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ...................................................................... 15, 16

Autery v. United States, 992 F.2d 1523, 1528 (11th Cir. 1993) ................................................12

Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010) ......................................................12

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ....................................................... 15, 16

Blank v. United States, 9 Fla. L. Weekly Fed. D17 (S.D. Fla. April 19, 1995) ..........................13

Brown v. Devos, No. 2:20-cv-286-FtM-38MRM, 2020 U.S. Dist. LEXIS 148896, at *3 (M.D. 

Fla. Aug. 18, 2020) ................................................................................................................10

Burton v. Linotype Co., 556 So. 2d 1126, 1127 (Fla. 3d DCA 1989) ..........................................9

Cannon v. University of Chicago, 441 U.S. 677, 668 (1979) ....................................................10

Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1977) ..........................................18

Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) ......................................19

Cortez v. EEOC, 585 F. Supp. 2d 1273 (D.N.M. 2007) ...........................................................14

Curto v. Smith, 5:01-cv-01570-FSJ, fn. 18 (N.D.N.Y. March 12, 2003) ...................................11

Czarnecki v. Roller, 726 F. Supp. 832, 840 (S.D. Fla. 1989) ....................................................18

Davis v. Coca-Cola Bottling Co. Consol., 516 F3d. 955, 974 (11th Cir. 2008) .........................18

Denton v. Stokes, 620 Fed. Appx 712, 713-14 (11th Cir. 2015) ..................................................6

Dichter-Mad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016 (C.D. Cal. 2010) 

aff’d 709 F.3d 749 (9th Cir. 2013) ..........................................................................................13

F.D.I.C. v. Meyer, 510 U.S. 471, 485-86 (1994) ........................................................................6

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Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152-53 (1982) ........................19

Figueroa v. United States, 739 F.Supp.2d 138, 141 (E.D.N.Y. 2010) .......................................14

Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) .......6

Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) .....................................17

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ...........................................................................10

Gonzalez v. United States, No. 18-cv-21789-KMM, 2018 U.S. Dist. LEXIS 224454, at *6 (S.D. 

Fla. Oct. 11, 2018) .................................................................................................................15

Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002) ...................................................................19

Heckler v. Chaney, 470 U.S. 821, 831 (1984) .........................................................................13

Hellwege v. Tampa Fam. Health Ctrs., 103 F. Supp. 3d 1303, 1311 (M.D. Fla. 2015) ..............10

Hobdy v. United States, 762 F.Supp. 1459, 1461 (D. Kan. 1991) .............................................13

JBP Acquisitions, LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1264 (11th Cir. 2000)......7

Kentucky v. Graham, 473 U.S. 159, 165 (1985) ........................................................................6

Knezevich v. Carter, 805 F. App’x 717, 726 (11th Cir. 2020) ..................................................19

Lambert v. United States, 198 F. App’x 835, 838 (11th Cir. 2006) ...........................................16

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990) ..................................................5

Martes v. Chief Exec. Officer of S. Broward Hosp. Dist., 683 F.3d 1323, 1326 n.4 (11th Cir. 

2012) ....................................................................................................................................10

Matsushita Elec. Co. v. Zeigler, 158 F.3d 1167, 1169 (11th Cir. 1998) ......................................7

McNeil v. United States, 508 U.S. 106 (1993) ...........................................................................8

Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999) ..................................................8

Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980) ......................................5

Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992) .................................................................7

Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) ...............................................15

Philip Morris USA Inc. v. Boatright, 217 So. 3d 166, 174 (Fla. 2d DCA 2017) ..........................9

Phillips v. U.S., 260 F.3d 1316, 1318 (11th Cir. 2001) ..............................................................8

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Posner v. Essex Ins. Co., 178 F.3d 1209, 1217 (11th Cir. 1999) ...............................................18

Prof’l LED Lighting, Ltd. v. Aadyn Tech., LLC, 88 F. Supp. 3d 1356, 1373 (S.D. Fla. 2015).....16

Schaefer v. United States Dep’t of Educ., No. 4:05cv641 SNL, 2005 U.S. Dist. LEXIS 27895, 

2005 WL 3008516 (E.D. Mo. Nov. 9, 2005) ................................................................12, 13, 14

Soriano v. United States, 352 U.S. 270, 276 (1957) ...................................................................9

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) ............................................5

Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004) ..................................................16

Taylor v. Gen. Motors Corp., 875 F.2d 816, 822 (11th Cir. 1989) ............................................19

Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 785-86 (2nd Cir. 2002) .................................10

Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1315 (11th Cir. 2007) ..............................16

Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008) ............................8

U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009) ..........11

United States ex rel. Atkins v. Mclnteer, 470 F.3d 1350, 1357 (11th Cir. 2006) ........................17

United States v. Gaubert, 499 U.S. 315, 322 (1991) ................................................................12

United States v. Olson, 546 U.S. 43, 45-46 (2005) ..................................................................14

United States v. King, 395 U.S. 1, 4 (1969) ...............................................................................6

United States v. Sherwood, 312 U.S. 584 (1941) .......................................................................6

United States v. Varig Airlines, 467 U.S. 797, 814 (1984) .......................................................12

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 

454 U.S. 464, 471-72 (1982) ..................................................................................................10

Viridis Corp. v. TCA Glob. Credit Master Fund, LP, 721 F. App’x 865, 875 (11th Cir. 2018) .....9

Wadlington v. Cont’l Med.Servs., Inc., 907 So. 2d 631, 632 (Fla. 4th DCA 2005) ....................16

Warth v. Seldin, 422 U.S. 490, 500 (1975) ..............................................................................10

Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015) ........................................ 8, 9, 15

Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) .......................................17

Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008) .................................................19

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STATUTES

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) .....................................passim

Federal Torts Claims Act, 28 U.S.C. § 1346 ......................................... 1, 4, 5, 7, 8, 9, 11, 14, 15

28 U.S.C. § 2672 .................................................................................................................1, 7

28 U.S.C. § 2674 ...................................................................................................................14

28 U.S.C. § 2675 .................................................................................................................4, 7

28 U.S.C. § 2679 .....................................................................................................................7

28 U.S.C. § 2680 ...............................................................................................................9, 11

28 C.F.R. § 14.2 ..................................................................................................................5, 7

34 C.F.R. § 35.2 ..................................................................................................................5, 7

34 C.F.R. § 99.7 ......................................................................................................................3

34 C.F.R. § 99.10 ....................................................................................................................3

34 C.F.R. § 99.20 ....................................................................................................................3

34 C.F.R. § 99.67 ..................................................................................................................11

34 C.F.R. § 100.7 ..................................................................................................................12

34 C.F.R. § 105.41 .................................................................................................................12

Fla. Stat. § 1002.22 ................................................................................................................19

U.S. Const. art. III .................................................................................................................10

U.S. Const. art. VI, cl. 2. ........................................................................................................19

U.S. Const. am. 1. ............................................................................................................1, 4, 5

U.S. Const. am. 5. ............................................................................................................1, 4, 5

U.S. Const. am. 14. ..........................................................................................................1, 4, 5

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OTHER AUTHORITIES

Fed. R. Civ. P. 8 ....................................................................................................................16

Fed. R. Civ. P. 9(b) ..........................................................................................................16, 17

Fed. R. Civ. P. 12(b)(1) ...............................................................................................1, 5, 7, 20

Fed. R. Civ. P. 12(b)(6) ................................................................................................ 1, 15, 20

Fed. R. Civ. P. 12(h)(3) ............................................................................................................5

EXHIBIT LIST

Ex. 1: Declaration of Tracy Sasser ........................................................................................4, 8

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INTRODUCTION

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the 

Department of Education (“DOE”) and Elisabeth D. Devos, in her official capacity as Secretary of 

the U.S. Department of Education (“Secretary Devos”) (hereinafter, “the Federal Defendants”)

jointly move to dismiss Plaintiff Christina Marie McLaughlin’s first amended complaint [D.E. 10]. 

The Plaintiff alleges that the Federal Defendants violated her First, Fifth, and Fourteenth 

Amendment rights and committed a variety of torts under Florida law by failing to timely 

investigate certain complaints she submitted to the DOE pursuant to the Family Educational Rights 

and Privacy Act, 20 U.S.C. §§ 1232g (“FERPA”). Plaintiff’s FERPA complaint concerns actions 

taken by codefendants Florida International University (“FIU”), FIU’s deans and professors, and 

the Florida Board of Governors. As an initial matter, sovereign immunity bars all of Plaintiff’s 

constitutional claims against the United States and its agencies. For the remaining tort claims, 

neither the DOE nor Secretary Devos is a proper defendant. Regardless, this Court lacks subject 

matter jurisdiction to hear Plaintiff’s tort claims, because Plaintiff failed to exhaust her 

administrative remedies under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2672 (the 

“FTCA”). Specifically, Plaintiff failed to present an administrative claim (e.g., a Form SF-95) to 

the DOE prior to filing her lawsuit. Finally, to the extent that Plaintiff could overcome the 

aforementioned hurdles, it will be impossible for her to state any cause of action against the Federal 

Defendants premised upon the purported mishandling of her FERPA complaint, as such an action 

is not cognizable. Not only is there no private party analog to the DOE’s actions, but the 

discretionary function exception to the FTCA bars all of Plaintiff’s potential tort claims. This 

Motion is supported by the following memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT1

From Fall 2016 through Spring 2017, plaintiff Christine McLaughlin was a student at FIU’s 

College of Law. (¶ 1) On May 23, 2016, FIU expelled the Plaintiff from the College of Law, as 

her cumulative GPA of 1.98 fell below the college’s minimum standard GPA of 2.00. (¶ 16 – 19, 

815, Ex. #3) Plaintiff asserts that her substandard GPA was not the result of her own poor academic 

performance, but rather was due to a political discrimination campaign carried out by various FIU 

professors and deans “using non-academic standards for grading; tampering with scantron 

tabulation; unauthorized grade unblinding to fraudulently mis-recorded grades.” (¶ 204) Ms. 

McLaughlin claims that she was targeted for her political beliefs as a “Donald Trump supporter”

(¶ 156) and that her expulsion from FIU “was a means to politically retaliate [against her] and 

engineer a leftist law school class.” (¶ 36)

Plaintiff’s dismissal from FIU (and FIU’s subsequent refusal to readmit the Plaintiff) led 

her to file a FERPA complaint with the DOE’s Office of Civil Rights (“OCR”) on November 24, 

2017. (¶ 65, 634, 635; Ex. #13) FERPA is a federal law that affords parents the right to have 

access to their children’s education records, the right to seek to have the records amended, and the 

right to have some control over the disclosure of personally identifiable information from the 

education records. When a student turns 18 years old, or enters a postsecondary institution at any 

age, the rights under FERPA transfer from the parents to the student.

The crux of Plaintiff’s allegations in her initial FERPA complaint are three-fold: (1) that 

FIU violated § 99.7 of the FERPA regulations by failing to annually notify students of their FERPA 

 1 Plaintiff’s filed her initial lawsuit on July 16, 2020. [D.E. 1] Plaintiff subsequently amended her 

complaint on July 31, 2020. [D.E. 10] Unless otherwise stated, all allegations detailed herein are 

taken from the Plaintiff’s first amended complaint and the exhibits attached thereto.

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rights; (2) that FIU violated § 99.10(a) and (b) of the FERPA regulations when it denied Plaintiff 

access to her education records within 45 days in response to the Plaintiff’s requests and/or failed 

to provide her with complete access to her education records; and (3) that FIU violated § 99.20 of 

the FERPA regulations when it denied Plaintiff’s request for a hearing to amend her education 

records and failed to comply with FERPA’s amendment provisions for hearings. (¶ 65, Ex. #13) 

Because Plaintiff’s allegations fell outside OCR’s jurisdiction, OCR advised Plaintiff via letter 

dated March 8, 2018 that it would take no action on to her FERPA complaint. (¶ 112(G); Ex. #22)

On March 15, 2018, Plaintiff filed a second complaint, this time with the DOE’s Family Policy 

Compliance Office (“FPCO”), re-alleging the same FERPA violations against FIU as contained in 

her original November 24, 2017 complaint to the DOE’s OCR. To date, the FPCO’s investigation 

into Plaintiff’s second FERPA complaint is ongoing, and the agency has not issued a final 

determination. (¶ 876, 880)

Cutting through the first amended complaint’s one hundred and fifteen pages of 

underbrush, the root cause of all claims directed towards the Federal Defendants is the allegation 

that “the DOE and FIU participated in an either expressed conspiracy or implied collusion to deny 

Ms. McLaughlin her FERPA rights and protect a liberal university’s malfeasance.” (¶ 97) 

Specifically, “the deep-state, anti-Trump U.S. Department of Education has shown reckless and 

callous indifference to Ms. McLaughlin’s federal vested rights under FERPA” (¶ 83) by failing to 

“timely and effectively process Ms. McLaughlin’s FERPA complaint.” (¶ 627) Although Plaintiff 

concedes that “FERPA fails to state an exact time reference for responding to complaints,” (¶ 877 

and 878) she nonetheless leaps to the conclusion that the “DOE has a statutory legal obligation to 

timely respond to Ms. McLaughlin, a student complainant, pursuant to 20 U.S.C. 1232(g)” (¶ 875) 

and therefore “failed to protect Ms. McLaughlin’s vested rights as FERPA intended.” (¶ 757) 

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Plaintiff complains that “DOE’s actions and failure to act aided FIU’s infringement of Ms. 

McLaughlin’s right to free speech and right to political expression,” (¶ 771) and “[t]he DOE 

weaponized FERPA law to facilitate the university systems to infringe and suppress the plaintiff’s 

fundamental Constitutional rights to free speech.” (¶ 781) Plaintiff claims that “[t]he DOE failed 

to make a determination on FIU’s notice of investigation because the DOE intended to support 

FIU’s unconstitutional infringement of freedom of speech, failure to provide procedural due 

process and equal protection of the law because the deep state DOE shares the anti-Trump, anticonservative animus towards Ms. McLaughlin.” (¶ 867) Without evidence, Plaintiff speculates this 

is because the DOE “is so poisoned and corrupted by anti-Trump deep-state swamp operatives that 

they have intentionally tried to bury and obviate Ms. McLaughlin’s [FERPA] complaint.” (¶ 89) 

Plaintiff concludes that “the DOE violated Ms. McLaughlin’s constitution right to due process 

under the Fifth Amendment because the DOE is a conspiracy participant in denying Ms. 

McLaughlin her property right to her law school education and her liberty interest in her good 

name and reputation.” (¶ 96)

Based on the above allegations, Plaintiff asserted eleven causes of action against the 

various defendants in her first amended complaint. Of these, only the following seven counts are 

applicable to the Federal Defendants: Count I (Violation of Plaintiff’s First Amendment Right of 

Freedom of Speech and Political Expression); Count III (Violation of Plaintiff’s Fourteenth 

Amendment and Florida Constitutional Right to Equal Protection of the Law); Count IV (U.S. 

Department of Education’s Breach of Legal Obligation to Properly Enforce a Student FERPA 

Complaint); Count VII (Fraud); Count VIII (Civil Conspiracy); Count IX (Breach of Fiduciary 

Duty); and Count X (Negligence).

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Prior to filing the instant lawsuit, Plaintiff did not present to the DOE the requisite 

administrative claim / Form SF-95 under the FTCA, pursuant to 28 U.S.C. § 2675(a). 28 C.F.R. § 

14.2, and 34 C.F.R. § 35.2. See Declaration of Tracy Sasser attached hereto as Exhibit 1.

ARGUMENT

I. The Court should dismiss this case under Rule 12(b)(1) for lack of subject 

matter jurisdiction.

A. Rule 12(b)(1) Standard.

Because federal courts are courts of limited jurisdiction, subject matter jurisdiction must 

be established before the case can proceed on the merits. See Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 94–95 (1998). Where subject matter jurisdiction is challenged pursuant to Rule 

12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion and it 

is presumed that a federal court lacks jurisdiction in a particular case until the plaintiff 

demonstrates it. Id. Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in 

two forms: “facial attacks” and “factual attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 

(11th Cir.1990). Facial attacks on the complaint “require[] the court merely to look and see if [the] 

plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his 

complaint are taken as true for the purposes of the motion.” Id., (quoting Menchaca v. Chrysler

Credit Corp., 613 F.2d 507, 511 (5th Cir.1980), cert. denied, 449 U.S. 953 (1980)) “‘Factual 

attacks’, on the other hand, challenge “the existence of subject matter jurisdiction in fact, 

irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, 

are considered.’” Id. Here, the Federal Defendants set forth both a facial and factual attack on 

subject matter jurisdiction. Whenever it appears that the court lacks jurisdiction of the subject 

matter, the court should dismiss the action. See Fed.R.Civ.P. 12(h)(3). On the other hand, if an 

attack on subject matter jurisdiction also implicates an element of the cause of action, then the 

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proper course of action for the district court is to find that jurisdiction exists and deal with the 

objection as a direct attack on the merits of the plaintiff’s case. Garcia v. Copenhaver, Bell &

Assocs., M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997)

B. Sovereign immunity bars Plaintiff’s constitutional claims (Counts I and 

III) against the Federal Defendants.

Plaintiff alleges that the DOE’s purported mishandling of her FERPA complaint violated 

her right to freedom of speech under the First Amendment of the U.S. Constitution (Count I) a due 

process violation under the Fifth and Fourteenth Amendments to the U.S. Constitution (Count III, 

and ¶ 96). Even if her allegations were supported by sufficient facts, these claims would still falter 

as the United States has not explicitly waived its sovereign immunity.

A court’s “jurisdiction to grant relief depends wholly upon the extent to which the United 

States has waived its sovereign immunity to suit and . . . such a waiver cannot be implied but must 

be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969) (citing United States v. 

Sherwood, 312 U.S. 584 (1941)) The United States has not waived sovereign immunity from

liability for an award of damages arising from an alleged violation of the Constitution. F.D.I.C. v. 

Meyer, 510 U.S. 471, 485-86 (1994). Here, sovereign immunity bars the Plaintiff’s constitutiona l 

claims against the DOE, as “the United States’ immunity from suit extends to its agencies.” See, 

e.g., ASEDAC v. Panama Canal Comm’n, 453 F.3d 1309, 1315 (11th Cir. 2006)

Sovereign immunity also bars the Plaintiff’s constitutional claims against Secretary Devos

in her official capacity as the Secretary of Education. See Kentucky v. Graham, 473 U.S. 159, 165

(1985) (explaining official-capacity lawsuits “generally represent only another way of pleading an 

action against an entity of which an officer is an agent”); see also Denton v. Stokes, 620 Fed. Appx 

712, 713-14 (11th Cir. 2015) (prohibiting recovery of damages from both the FBI and its agents 

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in their official capacities for an FBI agent’s unconstitutional actions.) As such, the constitutiona l 

claims against the United States (and by extension, the Federal Defendants) are not cognizable.

C. Neither the DOE nor Secretary Devos are proper defendants for Plaintiff’s

remaining tort claims (Counts IV, VII, VIII, IX and X). 

The first amended complaint sues the Federal Defendants for five additional causes of 

action sounding in tort: Count IV (Breach of Legal Obligation); Count VII (Fraud); Count VIII 

(Civil Conspiracy); Count IX (Breach of Fiduciary Duty); and Count X (Negligence). However, 

neither defendant is the proper party for such claims. Under 28 U.S.C. § 2679(b), the exclusive 

remedy for a state law tort claim against a federal employee acting within the scope of his or her 

employment is an action against the United States under the Federal Tort Claims Act, 28 U.S.C. 

§§ 1346, 2672 (the “FTCA”). See Matsushita Elec. Co. v. Zeigler, 158 F.3d 1167, 1169 (11th Cir. 

1998) Thus, neither the employee nor the agency is a proper party. Id. This remains true even if 

the FTCA precludes recovery against the United States. Nadler v. Mann, 951 F.2d 301, 305 (11th 

Cir. 1992). Accordingly, the DOE and Secretary Devos should be dismissed from this action 

pursuant to Fed. R. Civ. P. 12(b)(1), and the United States should be treated as the proper party 

defendant for all remaining tort claims against them.

D. Even if allowed to substitute the United States as a defendant for the 

remaining tort claims, Plaintiff cannot proceed at this time because she 

failed to exhaust her administrative remedies. 

Because Plaintiff’s complaints stem from a purported “delay” or “mishandling” of her 

FERPA complaint by the DOE’s employees and officers, the case fails jurisdictionally under the 

FTCA. Plaintiff cannot circumvent the requirements of the FTCA through artful pleading. See JBP 

Acquisitions, LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1264 (11th Cir. 2000). Before 

suing under the FTCA, the plaintiff must present an administrative claim to the pertinent federal 

agency. 28 U.S.C. § 2675(a). 28 C.F.R. § 14.2, and 34 C.F.R. § 35.2 delineate the requirements 

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for submitting an administrative claim to the DOE. After filing a claim with the DOE, the plaintiff 

must wait until either the agency denies the claim or at least six months after filing the claim. 28 

U.S.C. § 2675(a). The plaintiff’s failure to satisfy this requirement deprives the district court of 

subject-matter jurisdiction over the claim. Turner ex rel. Turner v. United States, 514 F.3d 1194, 

1200 (11th Cir. 2008) (citing McNeil v. United States, 508 U.S. 106 (1993)). As Sasser declaration 

makes clear (and the first amended complaint is silent otherwise), Plaintiff did not present the 

prerequisite administrative claim with the DOE. Thus, even if Plaintiff receives leave to substitute 

the United States as a defendant, the Court lacks subject-matter jurisdiction over Plaintiff’s claims 

because she failed to exhaust her administrative remedies under the FTCA. 

E. There is no basis for a case under the FTCA for Plaintiff’s intentional tort 

claims of fraud (Count VII) and civil conspiracy to commit fraud (Count 

VIII), as the United States has not waived sovereign immunity.

As stated above, the United States is immune from suit unless it expressly waives sovereign 

immunity and consents to be sued. Courts must construe this waiver of immunity strictly in favor 

of the United States. Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999); see also 

Phillips v. U.S., 260 F.3d 1316, 1318 (11th Cir. 2001) The FTCA is a limited statutory waiver of 

the United States’ sovereign immunity, and permits suits only involving claims arising from the:

“[N]egligent or wrongful act or omission of an employee of the Government while 

acting within the scope of his office or employment, under circumstances where the 

United States, if a private person, would be liable to the claimant in accordance 

with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1).

“[W]hile the FTCA, as a general matter, waives what would otherwise be the federal

government’s sovereign immunity from legal actions for torts committed by its employees, there

are exceptions to that general waiver.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 

2015), cert. denied, 577 U.S. 869 (2015) (citation omitted) “[A] court must strictly observe the

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‘limitations and conditions upon which the Government consents to be sued’ and cannot imply

exceptions not present within the terms of the waiver.” Id. at 1322 (quoting Soriano v. United 

States, 352 U.S. 270, 276 (1957)). One such exception is the intentional tort exception, which bars:

[a]ny claim arising out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander,2 misrepresentation, deceit,

or interference with contract rights ...”

28 U.S.C. § 2680(h) (emphasis added) “[A] claim will be deemed to have arisen from a § 2680

excepted tort if the governmental conduct that is essential to the plaintiff’s cause of action is

encompassed by that tort. And this is so even if the plaintiff has denominated, as the basis for the

cause of action, a tort not found within § 2680(h)’s list of excepted torts.” Zelaya, 781 F.3d at 

1333; Alvarez v. United States, 862 F.3d 1297, 1301-02 (11th Cir. 2017)

“Fraud” and “civil conspiracy to commit fraud” are both intentional torts which include 

misrepresentation or deceit as an essential element. See, e.g., Viridis Corp. v. TCA Glob. Credit

Master Fund, LP, 721 F. App’x 865, 875 (11th Cir. 2018), quoting Burton v. Linotype Co., 556 

So. 2d 1126, 1127 (Fla. 3d DCA 1989) (“Fraud is an intentional tort ...”), and Philip Morris USA

Inc. v. Boatright, 217 So. 3d 166, 174 (Fla. 2d DCA 2017) (“[T]he law of civil conspiracy holds 

co-conspirators liable for harm caused by other members of a conspiracy to commit an intentional

tort.”). Accordingly, these actions cannot subject the United States itself to suit under the FTCA 

and should be dismissed.

F. All claims against the Federal Defendants must be dismissed because 

there is no subject matter jurisdiction created by FERPA.

Plaintiff attempts to invoke this Court’s jurisdiction under FERPA. “The fact that a federal 

statue has been violated and some person harmed does not automatically give rise to a private 

 2 To the extent that Plaintiff attempts to include the Federal Defendants in Count XI (Defamation; 

False Light), this cause of action is also foreclosed by 28 U.S.C. § 2680(h).

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cause of action in favor of that person.” Cannon v. University of Chicago, 441 U.S. 677, 668 

(1979). The limited power of the federal judiciary under Article III of the United States 

Constitution is restricted to the adjudication of “cases and controversies” in which plaintiff have 

standing to bring their actions. Valley Forge Christian College v. Americans United for Separation 

of Church and State, Inc., 454 U.S. 464, 471-72 (1982). Where a plaintiff’s claim is based upon 

statutorily created rights, “the standing question ... is whether the ... statutory provision on which 

the claim rests properly can be understood as granting persons in the plaintiff’s position a right to 

judicial relief.” Warth v. Seldin, 422 U.S. 490, 500 (1975). Whether Plaintiff has standing in the 

instant case turns, therefore, on whether FERPA grants her the right to judicial relief through a 

private cause of action.

The Supreme Court, however, has held that an individual does not have either a right to

maintain a private cause of action or an implied right of action based upon alleged violations of 

FERPA, because FERPA provides no specific, individually enforceable rights. Gonzaga Univ. v. 

Doe, 536 U.S. 273 (2002); see also Hellwege v. Tampa Fam. Health Ctrs., 103 F. Supp. 3d 1303, 

1311 (M.D. Fla. 2015) (“In Gonzaga, the Court determined that it was not appropriate to infer 

a private right of action under [FERPA].”); Martes v. Chief Exec. Officer of S. Broward Hosp.

Dist., 683 F.3d 1323, 1326 n.4 (11th Cir. 2012) (“To be clear, Gonzaga declined to find a private

right of action in FERPA because the relevant provisions contain no rights-creating language, they 

have an aggregate, not individual focus, and they serve primarily to direct the Secretary of 

Education’s distribution of public funds to education institutions.”) Brown v. Devos, No. 2:20-cv286-FtM-38MRM, 2020 U.S. Dist. LEXIS 148896, at *3 (M.D. Fla. Aug. 18, 2020) (“[T]he statute 

at issue (FERPA) does not create a private right of action. That principle is binding Supreme Court 

precedent. And lower courts agree.”) (collecting cases); Taylor v. Vermont Dept. of Educ., 313 

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F.3d 768, 785-86 (2nd Cir. 2002) (holding that FERPA’s records-access provisions at 20 U.S.C. § 

1232g(a)(1) do not create a personal right enforceable under § 1983). “FERPA provides no 

guaranteed access to a formal administrative proceeding or to federal judicial review; rather, it 

leaves to administrative discretion the decision whether to follow up on individual complaints.” 

Curto v. Smith, 5:01-cv-01570-FSJ, fn. 18 (N.D.N.Y. March 12, 2003), internal citations omitted; 

see also 34 C.F.R. § 99.67(a) (stating that the Secretary of Education “may” enforce FERPA 

violations through various mechanisms.) The absence of individually enforceable rights under 

FERPA means that Plaintiff lacks standing to seek redress before this Court for any of her claimed 

injuries. Accordingly, as all of Plaintiff’s claims against the Federal Defendants are premised upon 

the DOE’s purported failure to comply with FERPA by not “timely” adjudicating Plaintiff’s 

FERPA complaint against FIU, the Court lacks subject matter jurisdiction over Plaintiff’s 

complaint.

G. The “discretionary function” exception bars all of Plaintiff’s potential

FTCA claims.

Even if, pursuant to a proper FTCA claim, Plaintiff filed suit against the correct entity (i.e. 

the United States), such a claim would still be subject to dismissal because of the “discretionaryfunction” exception to the FTCA, which precludes tort liability for:

“any claim . . . 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).

“When the discretionary function exception to the FTCA applies, no federal subject matter

jurisdiction exists.” U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th

Cir. 2009). The discretionary-function exception is intended “to prevent judicial second-guessing

of legislative and administrative decisions grounded in social, economic, and political policy

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through the medium of an action in tort.” United States v. Gaubert, 499 U.S. 315, 323, (1991)

(quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).

The Supreme Court has enunciated a two-part test for determining whether the

discretionary exception applies. If both prongs are met, the United States is shielded from liability,

even if its actions were negligent. See Autery v. United States, 992 F.2d 1523, 1528 (11th Cir. 

1993) First, the court must determine whether the challenged conduct involves “an element of 

judgment or choice.” Gaubert, 499 U.S. at 322. If so, courts then look at the second factor, which

is “whether that judgment is of the kind that the discretionary function exception was designed to

shield.” Id. The exception protects “only governmental actions and decisions based on 

considerations of public policy.” Id. at 323. When a statute or regulation allows a federal employee 

to act with discretion, “it must be presumed that the agent’s acts are grounded in policy when 

exercising that discretion.” Id. at 324. “An agency retains discretion whether to act where no statute 

or agency policy dictates the precise manner in which the agency is to complete the challenged 

task.” Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010). Both prongs of the exception are 

met here, because the conduct of which Plaintiff complains of arose in the context of decision 

making by the DOE’s OCR and FCPO, pursuant to its broad discretionary authority in the 

processing and handling of FERPA complaints.

Applying the first prong of the test, the applicable regulations and policies demonstrate that 

the DOE’s decisions regarding how to respond to a FERPA complaint involve an element of 

judgment or choice. When presented with a civil rights or FERPA complaint, DOE decisionmakers determine whether or not a violation occurred, and attempt to find a beneficial resolution 

to the issue. See, e.g., Schaefer v. United States Dep’t of Educ., No. 4:05cv641 SNL, 2005 U.S. 

Dist. LEXIS 27895, 2005 WL 3008516 (E.D. Mo. Nov. 9, 2005) (finding that the Department of 

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Education’s investigation process for a FERPA complaint was covered by the discretionary 

function exception); 20 U.S.C. § 1232g; 34 C.F.R. §§ 99.65-67; 100.7; 105.41. There is no specific 

statute, regulation, or policy that dictates that DOE investigate every complaint it is presented with 

or enforce sanctions against funding recipients. Id. Plaintiff admits as much in her first amended 

complaint by conceding that “FERPA fails to state an exact time reference for responding to 

complaints.” (¶ 877 and 878) This is consistent with what is to be expected with any agency 

investigation, which, by definition, must include an element of judgment or choice because 

decision-makers must use their judgment to determine the viability of the allegations. See Heckler 

v. Chaney, 470 U.S. 821, 831 (1984) (the Supreme Court “has recognized on several occasions 

over many years that an agency’s decision not to prosecute or enforce, whether through civil or 

criminal process, is a decision generally committed to the agency’s absolute discretion.”); DichterMad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016 (C.D. Cal. 2010) aff’d 709 F.3d 

749 (9th Cir. 2013) (finding that SEC’s decision of whether and how to conduct investigations and 

enforcement actions are discretionary).

The second prong is also met, as it is well established that investigations by federal officers 

involve the type of policy judgment protected by the discretionary function exception. See, e.g.,

Hobdy v. United States, 762 F.Supp. 1459, 1461 (D. Kan. 1991) (holding that a government 

agency’s decisions on “how to investigate, who to investigate, and how to present evidence to the 

proper authorities are classic examples of discretionary conduct.”); Blank v. United States, 9 Fla. 

L. Weekly Fed. D17 (S.D. Fla. April 19, 1995) (finding that the government’s decisions 

concerning the focus of its securities fraud investigation are a “classic example of discretionary 

activity which is absolutely immune from suit.”) Here, the DOE’s decisions as to its FERPA 

investigation such as “[d]etermining whether to take action against, cut funding from, or remove 

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accreditation from a university, are all issues that involve the weighing of competing interests

rooted in policy judgments.” See Schaefer, 2005 WL 3008516. As the government’s discretionary 

decisions were based on public policy considerations, Plaintiff’s suit is barred by the discretionary 

function exception.

H. There is no private party analog to the alleged conduct, thus negating any 

government liability under the FTCA.

Under the FTCA, the United States waives sovereign immunity for torts committed by its 

employees “under circumstances where the United States, if a private person, would be liable to 

the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 

§§ 1346(b)(1), 2674. In order to waive the government’s immunity under the FTCA, the plaintiff 

must show that the claim asserted is analogous to a comparable cause of action against a private 

individual. While this private analog does not need to be exact, there must be some persuasive 

analogy to show that the government actor would be subject to liability under state law if it were 

a private actor. United States v. Olson, 546 U.S. 43, 45-46 (2005); Figueroa v. United States, 739 

F.Supp.2d 138, 141 (E.D.N.Y. 2010) (no private analog is necessarily stated . . . where the FTCA 

claim is based only upon an alleged failure to enforce a federal statute or government regulation . 

. . because the action forming the basis of the claim, ‘is action of the type that private persons 

would not engage in and hence could not be liable for under local law.’) (internal citations omitted)

Further, courts have held that tort liability cannot be predicated on acts of “quasiadjudicative” or “quasi-judicial functions.” See e.g., Air Shuttle Corp. v. United States, 112 F.3d 

532, 536-537 (1st Cir. 1997) (alleged failure of FAA to take enforcement action had no private 

party analog); Cortez v. EEOC, 585 F.Supp.2d 1273 (D.N.M. 2007) (no private party analog for 

the EEOC’s alleged negligence in investigating the Plaintiff’s civil rights complaint). Here, there 

is no state private party analog to the DOE’s work in processing and investigating discrimination 

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charges or violations of FERPA. Any negligence in performing these inherently governmental 

functions would involve a breach of duty arguably created by federal law, the liability for which 

is not waived by the FTCA. See, e.g., Gonzalez v. United States, No. 18-cv-21789-KMM, 2018 

U.S. Dist. LEXIS 224454, at *6 (S.D. Fla. Oct. 11, 2018) (“Claims of negligent violations

of federal law are not actionable under the FTCA.”) citing Zelaya, 781 F.3d at 1324 (“it is well

established that a federalstatute cannot constitute the ‘law of the place’ because ‘[t]he FTCA

was not intended to redress breaches of federalstatutory duties.’”); Ochran v. United States, 273

F.3d 1315, 1317 (11th Cir. 2001) (“[U]ness the facts support liability under state law the district

court lacks subject matter jurisdiction to decide an FTCA claim.”) Moreover, Plaintiff will not be 

able to find a private analog, as investigations for FERPA violations are not activities that private 

persons can engage in. Rather, they are purely federal government functions. There is no authority 

under Florida law that imposes a duty on the DOE to investigate Plaintiff’s FERPA complaint or 

otherwise imposes any other duty regarding the handling of such investigations. Accordingly, 

Plaintiff’s complaint should be dismissed for lack of jurisdiction.

II. In the alternative, the Court should dismiss this case under Rule 12(b)(6) for 

failure to state a claim upon which relief may be granted.

A. Rule 12(b)(6) Standard.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this 

pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 

555). To meet the “plausibility standard,” a plaintiff must “plead[] factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

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(citing Twombly, 550 U.S. at 556). In analyzing an FTCA claim, the court applies the law of the 

state where the alleged tort occurred. See Lambert v. United States, 198 F. App’x 835, 838 (11th 

Cir. 2006) (citing Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004))

B. Plaintiff alleges no specific facts concerning Secretary Devos.

Under Twombly and Iqbal, a complaint must plead sufficient facts to allow a reasonable 

inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678; Twombly, 

550 U.S. at 556. Here, in the six times that the First Amended Complaint even mentions Secretary 

Devos, (¶¶ 647 – 650, 725, and 731) it is only in the context that she was the addressee of some of 

Plaintiff’s letters to the DOE concerning the status of her FERPA complaint. The first amended 

complaint pleads no factual matter regarding culpable conduct by Secretary Devos, and certainly 

no factual matter that allows a reasonable inference of culpable conduct directed to the disposition 

of Plaintiff’s FERPA complaint. Thus, the first amended complaint is deficient and should 

be dismissed as to Secretary Devos.

C. Plaintiff fails to plead the elements of a fraud claim under Florida law 

(Count VII); alternatively, Plaintiff cannot sufficiently allege the elements 

of a fraud claim.

Under Florida law, “[t]he requirements for a claim of fraud or fraudulent inducement are: 

(1) a false statement regarding a material fact; (2) the statement maker’s knowledge that the 

representation is false; (3) intent that the representation induces another’s reliance; and (4) 

consequent injury to the party acting in reliance.” Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 

1294, 1315 (11th Cir. 2007), citing Wadlington v. Cont’l Med.Servs., Inc., 907 So. 2d 631, 632 

(Fla. 4th DCA 2005) Moreover, “[i]n addition to the Rule 8(a) plausibility pleading requirement, 

Rule 9(b) imposes a heightened pleading standard for claims sounding in fraud.” Prof’l LED 

Lighting, Ltd. v. Aadyn Tech., LLC, 88 F. Supp. 3d 1356, 1373 (S.D. Fla. 2015). Plaintiff’s 

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allegations fail to satisfy at least three of these elements, even under the Rule 8(a) standard, much 

less under the heightened pleading standard for fraud claims required by Rule 9(b), which requires 

that ”[i]n alleging fraud or mistake, a party must state with particularity the circumstances 

constituting fraud or mistake.” This heightened pleading standard requires a plaintiff to allege “(1) 

precisely what statements were made in what documents or oral representations or what omissions 

were made, and (2) the time and place of each such statement and the person responsible for 

making (or, in the case of omissions, not making) same, and (3) the content of such statements and 

the manner in which they misled the plaintiff, and (4) what the defendants obtained as a 

consequence of the fraud.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001); 

see also Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.2006) (Rule 9(b) requires 

that the complaint state the “who, what, when[,] where, and how” of the alleged 

misconduct); United States ex rel. Atkins v. Mclnteer, 470 F.3d 1350, 1357 (11th 

Cir.2006) (“Particularity means that a plaintiff must plead facts as to time, place and substance of 

the defendant’s alleged fraud, specifically the details of the defendant[’s] allegedly fraudulent acts, 

when they occurred, and who engaged in them.”) (citations omitted). Plaintiff does not allege a 

single false statement attributable to the Federal Defendants.

Furthermore, Plaintiff has not alleged the Federal Defendants’ knowledge of falsity 

(element two). “An alleged misrepresentation is actionable only if the defendant knew or should 

have known that the statements were false, or if the statements were made without knowledge of 

their truth or falsity.” Air Turbine Technology,Inc. v.AtlasCopco AB, 295 F. Supp. 2d 1334, 1347

(S.D. Fla. 2003) (citation omitted). Logically, given that Plaintiff has failed to satisfy the first 

element of alleging a false statement of fact, Plaintiff necessarily also fails to satisfy the second 

element of alleging knowledge of the falsity. Regardless, Plaintiff’s complaint contains allegations 

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which, on their face, would show that the Federal Defendants were not a party to any of FIU’s

allegedly fraudulent actions and that Federal Defendants had no knowledge of any possible 

misrepresentations made by FIU. (¶ 582, 665, 667, and 694)

Finally, Plaintiff has not articulated any “actual damages”, only that she has “lost valuable 

time and incurred additional tuition expenses” (¶ 100) and has “likely lost out on important 

educational and employment opportunities” (¶ 631). A complaint’s factual allegations must be 

enough to raise a right to relief above the speculative level. Davis v. Coca-Cola Bottling Co. 

Consol., 516 F3d. 955, 974 (11th Cir. 2008). The Plaintiff may not rely on nebulous past injuries 

or future, hypothetical injuries that may never occur to support a claim for damages. Therefore, 

Plaintiff’s fraud claim should be dismissed.

D. Plaintiff’s claim for civil conspiracy (VIII) fails because Florida does not

recognize an independent claim for civil conspiracy, and Plaintiff cannot

allege a valid claim that could form the basis of a conspiracy.

Plaintiff’s claim for civil conspiracy fails because Plaintiff has not alleged a valid basis for

the purported conspiracy, as the underlying act is inextricably intertwined with her allegations

regarding her FERPA claim (¶ 943). “Florida does not recognize an independent action for

conspiracy.” Allocco v. City of Coral Gables, 221 F. Supp. 2d 1317, 1360-61 (S.D. Fla. 2002)

(citing Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1977). In Florida, a civil

conspiracy derives from the underlying claim that forms the basis of the conspiracy. Id. at 1361

(citing Czarnecki v. Roller, 726 F. Supp. 832, 840 (S.D. Fla. 1989)) (discussing and

applying Florida law). Pursuant to this rule, a claim that is found not to be actionable cannot serve

as the basis for a conspiracy claim. Id. (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1217 (11th

Cir. 1999) (applying Florida law). Not only does Plaintiff have no private right of action under 

FERPA, but Plaintiff alleges that the Federal Defendants themselves were deceived by FIU. (¶ 

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582, 665, 667, and 694) Therefore, Plaintiff’s civil conspiracy claims necessarily fail as a matter 

of law. See Allocco, 221 F. Supp. 2d. at 1361 (“Because the claim underlying the plaintiffs’

conspiracy count has failed, and the plaintiffs have not asserted any other unlawful action in 

support of their conspiracy count, [it] must also fail.”)

E. Plaintiff’s claims for breach of fiduciary duty (Count IX) and negligence

(Count X) both fail because the Federal Defendants have no duty to the

Plaintiff, and Plaintiff fails to allege specific damages.

Under Florida law, causes of action for breach of fiduciary duty and negligence are both 

predicated on a duty the defendant owes to the plaintiff. See Knezevich v. Carter, 805 F. App’x 

717, 726 (11th Cir. 2020), citing Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002) (reciting the 

elements of breach of fiduciary duty), and Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 

2008), citing Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (reciting the 

elements for negligence) Plaintiff’s Complaint should be dismissed for failure to state a claim upon 

which relief may be granted because there is no “duty” that the Federal Defendants have breached.

Plaintiff’s reliance on Fla. Stat. § 1002.22 for the proposition that Florida law imposes a 

duty on the DOE to enforce FERPA (¶ 773, 777) is misplaced, not only because the statute in 

question applies only to the Florida Board of Education, but because the supremacy clause of the 

United States Constitution requires that all conflicts between federal and state law be resolved in 

favor of the federal rule. See U.S. Const. art. VI, cl. 2. The supremacy clause therefore prohibits 

the enforcement of any state law that conflicts with the exercise of federal power. See, e.g., Fidelity

Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152-53 (1982); Taylor v. Gen. Motors

Corp., 875 F.2d 816, 822 (11th Cir. 1989) Without a duty owed to the Plaintiff, there can be no 

actionable breach of fiduciary duty or negligence. Additionally, as argued above, Plaintiff’s 

damages flowing from the breach of any purported duty are purely speculative. As such, both 

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Count IX and Count X fail to state a claim upon which relief may be granted and must be 

dismissed.

CONCLUSION

For the forgoing reasons, the United States respectfully requests that the Court dismiss with 

prejudice all of Plaintiff’s claims (Counts I, III, IV, VII, VIII, IX, and X) directed towards the

Federal Defendants pursuant to Rule 12(b)(1) because the United States has not waived sovereign 

immunity, and because this court lacks subject matter jurisdiction. Alternatively, the Court should 

dismiss with prejudice all of Plaintiff’s claims against the Federal Defendants pursuant to Rule

12(b)(6) for failure to state any claims upon which relief can be granted. Should any tort causes of 

action remain, the United States should be substituted in place of the Federal Defendants.

Respectfully submitted,

ARIANA FAJARDO ORSHAN

UNITED STATES ATTORNEY 

By: _/s/ John S. Leinicke

JOHN S. LEINICKE, ESQ.

Assistant United States Attorney

Court I.D./Bar No. 64927

Email: John.Leinicke@usdoj.gov

99 N.E. 4th Street, 3rd Floor

Miami, Florida 33132

Tel.: 305.961.3212 

Counsel for Defendants U.S. Dept. of 

Education and Elisabeth D. Devos, in her 

official capacity as Secretary of Education.

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