UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) WILLIAM T. CUNNINGHAM , ) ) Plaintiff, ) ) v. ) Civil Action No. 23-01104 (ABJ) ) U.S. EQUAL OPPORTUNITY ) EMPLOYMENT COMMISSION, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION On April 20, 2023, pro se plaintiff William Cunningham brought this action against defendant U.S

. Equal Employment Opportunity Commission (“EEOC”). See Compl. [Dkt. # 1].
He alleges violations of the federal criminal code and the Fourth, Fifth, and Fourteenth Amendments, as well as the state

- law claim of intentional infliction of emotional distress. See Compl. at 1, 4, 6 –8. Defendant has moved to dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss [Dkt. # 7]; Def.’s Mem. of P. & A. in Supp. of Mot. to Dismiss [Dkt. # 7- 1] (“Mot.”). For the following reason s, d efendant ’s motion to dismiss will be GRANTED . BACKGROUND Plaintiff was employed in the Bureau of Labor Statistics , a governmental entity housed within the Department of Labor , from December 13, 2015 until his termination on December 9,
2016. Cunningham , EEOC Appeal No. 2019005370 (2020) , Ex. 2 to Mot. [Dkt. # 7- 3] (“EEOC Appeal Decision”) at 1 ; Compl. at 3

. On th e day he was terminated, plaintiff appealed his termination decision to the Merit Systems Protection Board (“MSPB”). EEOC Appeal Decision2 at 1

. He then filed a discrimination c omplaint with the Department of Labor on February 14, 2017

. Id. at 2. 1 Finally , p laintiff filed a request for hearing with the EEOC on September 29, 201 7 concerning the Department’s alleged refusal to investigat e his claim of discrimination

. Compl. at
1. 2 Plaintiff’s complaint arises out of these latter EEOC proceedings. Plaintiff’s First EEOC Proceeding Plaintiff’s EEOC case was assigned to Administrative Law Judge Gladys Collazo. Compl. at 1. DoL informed Judge Collazo that plaintiff’s discrimination c laim was being held in abeyance pending the resolution of his MSPB case , as both involved allegations of discrimi n ation. Compl. at 1. On June 8, 2018, plaintiff contacted Judge Collazo’s chambers asking for a status update. Compl. at 1. On June 13, Judge Collazo’s law clerk informed plaintiff that the Department had not provided an investigation report . Compl. at 2. Plaintiff then requested the report from Department of Labor ’ s Office of Internal Enforcement , but he was informed that no investigation was conducted because th e case was being held in abeyance. Compl. at 2.
P laintiff claims this course of conduct “effectively ended” his request for a hearing. Compl. at 2

. He further alleges that Judge Collazo “could clearly see” that the cases were not connected , and that she “chose to continue to conspire with Labor Department employees instead of moving forward with the EEOC process.” Compl. at 2. According to plaintiff, Judge Collazo’s actions violated 18 U.S.C. §§ 2, 242 , as well as the Fifth and Fourteenth Amendments

. Compl. at

1 Plaintiff does not mention initiating the Labor Department discrimination charge (No. F17

- 11

- 051) in his complaint but refers to it

. See Compl. at 1, 2, 5. 2 Plaintiff claims he made three hearing requests. The first one was on September 29, 2017. Compl. at 1. According to the complaint, plaintiff’s EEOC case (No. 570

- 2018

- 00032X) was not opened until December 2017 but was given a “back date” of September 29, 2017. Compl. at 1.3 1. Plaintiff also appears to allege that the actions of the Department of Labor employees involved with his case violated the Fifth and Fourteenth Amendments

. Compl. at 1. Plaintiff’s Second EEOC Proceeding On August 29, 2018, plaintiff filed a retaliation charge against the Department of Labor , which “was g iven the same EEOC Case Number” as his previous EEOC proceeding . Compl. at
2. 3 Th e new charge w as assigned to Administrative Law Judge Zachary Wright on October 30, 2018. Compl. at 2. Judge Wright, Department of Labor counsel Elizabeth Beason, and plaintiff participated in a conference call about the case on November 29, 2018. Compl. at 3. 4 Plaintiff claims that he noted during the call that his retaliation charge did not receive a new case number , and Judge Wright explained the case number was “just a formality.” Compl. at 3. According to the complaint, Beason stated that the EEOC lacked jurisdiction because of the pending MSPB matt er . Compl. at 3. She also allegedly informed Judge Wright that the Department had extended plaintiff a settlement offer for $10,000 and an agreement to remove the language “Termination During Probationary Period” from plaintiff’s SF

- 50 , Compl. at 3, which is a form used by federal employees during the job application process. 5 Beason added that plaintiff would not be reinstated at the Department under the terms of the settlement offer . Compl. at 3. Plaintiff claims that Judge Wright asked him whether he accepted the offer. Compl. at 3. Pl aintiff

3 Plaintiff asserts, without citing any authority, that assigning his retaliation claim the same number as his discrimination claim is evidence of the conspiracy against him because “[e]ach new charge presented to the EEOC is supposed to get a new case number.” Compl. at 2. 4 The call was initially scheduled for November 15, but Judge Wright rescheduled for personal reasons . Compl. at 2. Plaintiff appears to claim the rescheduling was part of the conspiracy against him because it gave the Department additional time “to prepare their case for the next conference call .” Compl. at 3. 5 See Frequently Asked Questions , U.S. Office of Personnel Management, https://www.opm.gov/frequently

- asked

- questions/search/?search=sf

- 50 (last visited Jul. 1, 2024).4 alleges he declined the offer and recounted the details of his termination , as well as the hardships he faced since being terminated. Compl. at 3

– 4. According to plaintiff, Judge Wright “sounded like he could care le ss” and encouraged him to accept the settlement offer, as did Beason. Compl.
at 4. Plaintiff alleges the actions of Judge Wright and Ms. Beason “were in violation of [ 18 U.S.C. § 1512 ] and the beginning of violating [ 18 U.S.C. § 241 ]

. ” Compl. at 4. On November 29, 2018, Judge Wright issued a show

- cause order to the Department

. 6 Compl. at 4. The order did not mention plaintiff’s retaliation claim , but it instructed the agency to provide a counteroffer to plaintiff’s settlement demand. Compl. at 4. Plaintiff alleges Judge Wright ’s conduct violate d 18 U.S.C. § 241, and “began t o violate” 18 U.S.C. §§ 242, 1343, 1505, and the Fifth and Fourteenth Amendments. Compl. at 4. Plaintiff also claims he submitted a new retaliation charge to the EEOC. Comp l . at 4. According to the complaint, prior to the Department of Labor’s submission of its counteroffer, plaintiff sent Judge Wright “unwavering proof” that he experienced discrimination, informed him of provisions of the collective bargaining agreement he was subject to, and shared a major contribution he made to the Department . Compl. at 4

– 5. O n December 17, 2018, the Department sub mitted its counteroffer, which plaintiff alleges was identical to its initial offer. Compl. at 5. Plaintiff claims Judge Wright “did nothing about the counteroffer being exactly the same as the original settlement offer .” Compl. at 5. The Department submitted its response to the order to show cause on December 20, 2018, and plaintiff responded the next day. Compl. at 5.

6 Although t he complaint does describe what the order required of the parties, the EEOC Appeal Decision explains the order gave “the [Department] an opportunity to explain why it did not investigate the non

- termination portion of [plaintiff’s] EEO complaint.” EEOC Appeal Decision at 3.5 On February 21, 2019, Judge Wright granted default judgment in favor of the plaintiff , sanctioned the Department , and ordered plaintiff to submit a prima facie showing of discrimination . Compl. at 5. Judge Wright also found that plaintiff’s cases with the Department of Labor and MSPB were not “inextricably intertwined.” Compl. at 5. In a footnote, Judge Wright explained that the default judgment entitled plaintiff monetary relief only for creation of a hostile work environment and denial of a bonus, but not reinstatement. Compl. at 5. Plaintiff alleges Judge Wright violated 18 U.S.C. § 242 , apparently for granting default judgment in plaintiff’s favor and not reinstating him at the Bureau of Labor Statistics . Compl. at 6

– 7

. On Mar ch 11, 2019, plaintiff submitted his prima facie showing of discrimination. Compl. at 6. Plaintiff claims that due to a footnote in Judge Wright’s order, he did not inclu de information in his brief about his supervisor withholding his bonus. Compl. at 6. 7 According to the complaint, however, Judge Wright, “was already well aware through prior emails as well as conference calls of [plaintiff] not receiving a bonus.” Compl. at 6. The Department responded to plaintiff’s prima facie showing of discrimination on March 28, 2019 and allegedly “only mentioned matters pertaining to a bonus.” Compl. at 6. Judge Wright issued a decision on April 11, 2019, finding that plaintiff failed to establish a prima facie case for discrimination. Compl. at 6. P laintiff alleges that Judge Wright relied upon plaintiff’s failure to mention his bonus in his brief as grounds for his decision . Compl. at 6. Plaintiff claims that Judge Wright and Department of Labor counsel Beason, among others, attended an EEOC Meet and Greet event on April 10, 2019 , the day before he issued his decision

.

7 The footnote stated : “W hile the A gency argues any claim relating to Complainant’s bonus would be untimely raised, the lack of an investigation into this claim prevents such a determination .” Compl. at 6 (emphasis in original).6 Compl

. at 6. Plaintiff seems to allege that Judge Wright spoke with Department counsel at the event and that their discussion influenced Wright’s decision in plaintiff’s discrimination case

. Compl. at 6. According to plaintiff, the actions of Judge Wright and Beason violated 18 U.S.C. § 241. Compl. at 6. The parties held a conference on April 12, 2019, which plaintiff claims he recorded. Compl. at 7. On the call, Judge Wright can allegedly “be heard depriving [plaintiff] of his request for relief”

– presumably reinstatement

– and allegedly violating various federal law s . Compl. at
7. Plaintiff also alleges Judge Wright said on the call, “Mr. Cunningham I can’t award this type of relief to you even if I wanted to ,” which plaintiff claims “along with [Judge Wright’s] other actions” constitute s intentional infliction of emotional distr ess. Compl. at 7. 8 After the conference call, plaintiff emailed Judges Wright and Collazo asking for “some sort of legal statute as to why he is unable to receive his requested relief.” Compl. at 7. Plaintiff alleges that neither judge responded , and that their actions and omissions are evidence of their conspiracy with the Department of Labor . Compl. at 7. On May 31, 2019, Judge Wright issued a decision regarding the Department of Labor’s liability and damages after granting plaintiff a default judgment . Compl. at 7. Judge Wright ordered the Department to pay plaintiff $5,000, provide specified training, and post a notice regarding the finding of discrimination . Compl. at 7. Plaintiff alleges that because this order did not grant plaintiff his requested relief, Judge Wright “conspire[ed] with the DoL by aiding and abetting the DoL to further retaliate aga inst” plaintiff in violation of 18 U.S.C. §§ 2, 1513.

8 According to the next sentence in the complaint, Judge Wright’s “other actions” appear to be (1) ordering a monetary award less than the DoL’s settlement offer; and (2) not removing the termination notation from plaintiff’s SF

- 50, as stipulated in the settlement offer. Compl. at 7

– 8.7 Compl. at 7. P laintiff also alleges that Judge Wright violated the Fifth and Fourteenth Amendments and “several statutes” on the April 12 conf erence call “by not granting the proper due process nor equal protection of the law.” Compl. at 7. Plaintiff’s Appeal Plaintiff appealed Judge Wright’s decision to the EEOC Office of Federal Operations (“OFO ”). Compl. at 8. On July 23, 2020, OFO Director Carlton Hadden issued his decision affirming Judge Wright’s decision. See Compl. at 8; see also EEOC Appeal Decision at 4. Plaintiff alleges that by not reinstating the plaintiff or removing the termination notation from his
SF

- 50, Director Hadden violated 18 U.S.C. §§ 2, 241

– 242, 1513, and the Fourth, Fifth, and Fourteenth Amendments . Compl. at 8. Plaintiff further claims that Director Hadden’s statement in his ruling that plaintiff failed to p rove he deserved more than $5,000 caused him “more emotional distress.” Compl. at 8. 9 Although the complaint is prolix and not entirely clear , it appears to allege that :

• EEOC and Department of Labor employees committed federal crimes by conspiring to deprive , and aiding and abetting the deprivation of , his constitutional rights under color of law , among others federal criminal violations

. See Compl. at 1, 4, 6

– 8,

• EEOC and Department of Labor employees violated the Fourth, Fifth, and Fourteenth Amendme nt during the course of plaintiff’s series of proceedings

. Compl. at 1, 4, 7

– 8.

• The actions of EEOC and Department of Labor employees , including the denial of plaintiff’s request for reinstatement, constituted the tort of intentional infliction of emotional distress. Compl. at 7. On July 20, 2023, d efendant moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted

. See Mot. at 6.

9 In his decision, Director Hadden stated: “[Plaintiff] disputes the award to him of $5,000

. . . . [W]e find [plaintiff] has not shown he is entitled to more.” EEOC Appeal Decision at 3.8 Plaintiff opposes the motion , see Pl.’s Mot. to Continue [Dkt. # 10]; Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. to Continue [Dkt. # 10

- 1] (“O pp.”), and the matter is fully briefed. See Def.’s Reply Br. in Supp. of Mot. to Dismiss [Dkt. # 12] (“Reply”) ; Pl.’s Mot. to Add Additional Information [Dkt. # 13] (“Pl.’s Mot. to Add)

. 10

LEGAL STANDARD In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must “treat the complaint’s factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citations omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005) (applying principle to a Rule 12(b)(1) motion). Nevertheless , the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002) (rule 12(b)(6) case); Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (rule 12(b)(1) case). Subject Matter Jurisdiction Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence

. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp. , 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen

10 Plaintiff filed a motion to continue on August 21, 2023, which the Court deemed to be plaintiff’s opposition to defendant’s motion to dismiss. See Pl.’s Mot. to Continue [Dkt. # 10].9 v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited juris diction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject

- matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject

- matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982). When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case .” Scolaro v. D.C. Bd. of Elections & Ethics , 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992 ); see also Jerome Stevens Pharms. , Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Failure to State a Claim “To survive a [Rule 12(b)(6)] 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 antic Corp. v. Twombly , 550 U.S. 544, 570 (2007). In Iqbal , the Supreme Court reiterated the two principles underlying its decision in Twombly : “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” a nd “[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 678

– 79, citing Twombly , 550 U.S. at 555

– 56.10 A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing Twombly , 550 U.S. at 556. “ The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully .” Id. , quoting Twombly , 550 U.S. at 556. A pleading must offer more than “labels and conclu sions” or a “formulaic recitation of the elem ents of a cause of action,” id. at 682 , quoting Twombly , 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .” Id. at 678 , citing Twombly , 550 U.S. at 555. When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler , 617 F.2d at 608. Where the action is brought by a
pro se plaintiff, a district court has an obligation “to consider his filings as a whole before dismissing a complaint,” Schnitzler v. United States , 761 F.3d 33, 38 (D.C. Cir. 2014), citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999), because such complaints are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner , 404 U.S. 519, 520 (1972). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported b y facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. See id. ; 16 F.3d at 1276 ; see also Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.”11 Gustave

- Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002) , citing EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624

– 25 (D.C. Cir. 1997).
ANALYSIS I. Plaintiff’s Criminal Law Claims Must Be Dismissed. Plaintiff attempt s to bring claims under a number of provisions of the fed eral criminal code, including 18 U.S.C.§§ 2, 241, 242, 1343, 1505, 1512, 1513

. Compl. at 1, 4, 6

– 8. Defendant argues that the statutes involved do not include a private right of action for their civil enforcement

. Mot. at
7. This is accurate, and the claims based on alleged violations of criminal la w will be dismissed.

“ [ T ] here is no private right of action to enforce provisions of criminal law, and only a federal prosecutor may determine whether to pursue a criminal action

. ” Ajenifuja v. Dangote , 485 F. Supp. 3d 120, 128 (D.D.C. 2020), quoting Ivey v. Nat’l Tre asury . Emps

. Union , No. 05

- 1147, 2007 WL 915229, at *5 (D.D.C. Mar. 27, 2007) ; see also Cent

. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. , 511 U.S. 164, 190 (1994) ( internal quotations omitted) (noting that the Supreme Court has “refused to infer a private right of action from a bare criminal
statute” (internal quotation marks omitted) )

. This means that p rivate individuals can not bring a claim under a criminal statute “unless a specific statute provides for a private right of action.”
Tri c e v. FDIC , No. 17

- cv - 1564, 2022 WL 17250284, at *4 ( D.D.C. Nov. 28, 2022) (citation omitted)

. Unlike criminal statutes that do precisely that, see, e.g. , 18 U.S.C § 2333 (creating civil remedies for U.S. nationals injured by an act of international terrorism) , none of the cited provisions in Title 18 expressly create a private right of action under which defendants may be sued

. P laintiff’s criminal law c laims will therefo re be dismissed. See, e.g. , Johnson v. D.C. Crim.
Just. Act , 305 F. App’x 662, 662 (D.C. Cir. 2008) ( affirming dismissal of claims brought under12 18 U.S.C. §§ 241 and 242 by a private individual because the statutes provide no private right of action).
II. Plaintiff Fails to Plausibly Allege Violations of the Fourth, Fifth, or Fourteenth Amendments. Plaintiff alleges that defendant EEOC and Department of Labor employees violated the Fourth, Fifth, and Fourteenth Amendments throughout his various proceedings . Compl. at 1, 4,
7

– 8. P laintiff fails to provide sufficient facts or details to substantiate any of the purported violations , and his claims will be dismissed.
A. Plaintiff fails to plausibl y allege a Fourth Amendment violation . In his complaint, plaintiff alludes to the Fourth Amendment only once , claiming: “I nstead of following the MD

- 110 that clearly states what the Complainant is entitled, [Office of Federal Operations Director Carlton Hadden’s] actions were in violation of . . . the 4 th , 5 th and 14 th
Amendments.” Compl. at 8. The “actions” in question refer to Director Hadden’s affirmance of Judge Wright’s May 31, 2019 decision, which awarded plaintiff $5,000

. See EEOC Appeal Decision at 4. The Fourth Amendment protects individuals against “unreasonable searches and seizures” by the government , U.S. Const. amend. IV , and it is entirely inapplicable here

. Plaintiff’s single allegation amounts to nothing more than a n unsupported legal conclusion, which the Court need not, and will not, accept. Kowal , 16 F.3d at 1276.
B. Plaintiff fails to plausibly allege a Fifth Amendment violation . Throughout his complaint, p laintiff alleges that EEOC and Department of Labor employees deprived him of his Fifth Amendment rights. See Compl. at 1, 4, 7

– 8 . First, he claims without further elaboration that EEOC Administrative Law Judge Collazo aided and abetted “the DoL with the violation of [plaintiff’s] [c] onstitutional [r] ights ( 5th & 14th Amendments ).” Compl. at 1.13 Next, he claims that Administrative Law Judge Wright’s November 29, 2018 order to show cause violated the Fifth Amendment . Compl. at 4. Plaintiff further alleges that Judge Wright deprived him of his Fifth Amendment rights during the April 12, 2019 confer ence call by “not granting the proper due process nor equal protection of the law.” Compl. at 7. Finally, plaintiff claims that Director Hadden’s appeal decision violated the Fifth Amendment. Compl. at 8. The Due Process Clause of the Fifth Amendment provides that an individual shall not “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. A core
ten e t of procedural due process is that “a depr i vation of live, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. V. Loudermill , 470 U.S. 532, 542 (1985), quoting Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 313 (1950). “The f irst inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘lib erty.’” Ralls Corp. v. Comm. o n Foreign Inv. i n U.S. , 758 F.3d 296, 315 (D.C. Cir. 2014), quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 59 (1999). If that is shown , then the court consider s “whether the procedures used by the Government in effecting th e depr i vation ‘comport with due process.’” Id. , quoting Am. Mfrs. Mut. Ins. Co. , 526 U.S. at 59. In his opposition, plaintiff asserts that “federal employment is constitutionally protected property, meaning that it cannot be taken away without due process .” Opp. at 2. That can be true in some cases, but w hether a government employee has a constitutionally protected property interest in their employment “turns on the extent of any substantive limitations on the government’s authority to remove [them] .” Esparraguera v. Dept. of the Army , 101 F.4th 28, 33 (D.C. Cir. 2024). A p lainti ff must show “a legitimate expectation, based on rules (statutes or regulations) or understandings (contracts, express or implied)” that he would not be terminated.14 Piroglu v. Coleman , 25 F.3d 1098, 1104 (D.C. Cir. 1994), quoting Hall v. Ford , 856 F.2d 255, 265 ( D.C. Cir. 1988) ; see also Bd. of Regents of State Colls. v. Roth , 408 U.S. 5 64 , 577 (1972) (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. .

. . He must, instead, have a legitimate claim of entitlement to it.”). Here, p laintiff does not allege any “legitimate expectation,” Piroglu , 25 F.3d at 1104, that he would not be terminated. See general ly Compl. ; Opp. 11 Moreover, e ven if plaintiff ha d a protected property interest in his federal employment, his claim would still fail. “A procedural due process violation occurs when an official deprives an individual of a liberty or property interest without providing appropriate pr ocedural protections.” Atherton v. D.C. Off. of Mayor , 567 F.3d 672, 689 (D.C. Cir. 2009). What is considered appropriate depends on the particular situation and case. See Ralls Corp. , 758 F.3d at 317. And
in asserting a procedural due process violation , a plaintiff “nece ssarily presents the question of what, if any, additional process is due .” Doe ex rel. Fein v. District of Columbia , 93 F.3d 861, 868 (D.C. Cir. 1996). Plaintiff baldly alleges various violations of the Fifth Amendment, but he does not point to the denial of any procedure to which he was entitled

. See generally Compl. Instead , i t appears that plaintiff stakes his due process claim on his dissatisfaction with the outcome of his proceedings

. See Compl. at 1, 4, 7

– 8

. The complaint details at length the various processes of

11 Although plaintiff claims otherwise in his opposition , see Opp. at 1, it appears from a document referenced in the complaint that he was a probationary employee at the Department of Labor at the time of his termination. See EEOC Appeal Decision at 1; see also Compl. at 3 (noting that “Termination During Probationary Period” was placed on plaintiff’s SF

- 50); Order in EEOC Case No. 570

- 2018

- 00032X, Ex. 1 to Def.’s Mot. [Dkt. # 7

- 3 ] (“ EEOC Order”) (stating that plaintiff was dissatisfied “with his termination during his probationary period”). To the extent that plaintiff was a probationary employee, his employment would be “at will” and he would have no protected property interest in his employment. See Piroglu , 25 F. 3d at 1104.15 which plaintiff availed himself to seek redress for his allegedly unlawful termination , including his claim with the MSPB, his discrimination claim with the Department of Labor, both EEOC proceedings, and his appeal of his EEOC decision. See generally Compl. As the government notes, “[p]laintiff’s own description of events suggest[s] he was afforded due process .” Mot. at 12. The only time plaintiff specifically alleges a denial of due process is in his opposition. See Opp. at 4 (alleging that the Department of Labor attempted to “stifle” his due process when it “moved to dismiss the Plaintiff’s EEOC appeal to the [Office of Federal Operations] ” because he filed a civil action in federal court). 12 Contrary to plaintiff’s allegation, it does not appear that this action denied him any due process or affected his OFO appeal at all. Plaintiff not only received a decision in his OFO appeal, but the decision states, “[t]o the extent the [Department of Labor] argues that [plaintiff’s] administrative EEO action should be terminated because he filed a civil suit on the same matters, we disagree because the [c] ourt dismissed the civil action for failure to exhaust his administrative remedies.” EEOC Appeal De c ision at 4 ; see also Op p . at 4 , citing Cunningham v. Wright , 19

- cv - 03357 (D.D.C. Jan. 31, 2020). Because his OFO claim was heard , plaintiff’s allegation that he was denied procedural due process falls flat. In sum, plaintiff has alleged no protected property interest upon which his procedural due process claim is based, and he fail s to identify any process that was due but denied. Plaintiff ’ s Fifth Amendment claim must accordingly be dismissed.

12 Plaintiff fails to plead these specific allegations in his complaint, but t he Court addresses them given the obligation “to consider [a pro se plaintiff’s] filings as a whole before dismissing a complaint

. ” Schnitzler , 761 F.3d at 38.16 C. Plaintiff fails to plausibly allege a Fourteenth Amendment violation . Plaintiff alleges

– in an unspecified manner

– that Judge Wright ’s and Director Hadd e n ’s actions violated the Fourteenth Amendment

. See Compl. at 4, 7

– 8. The Fourteenth Amendment, however, “operates only to control action of the states, and does not purport to extend to authority exercised by the government of the United States.” Wight v. Davidson , 181 U.S. 371, 384 (1901 ); see also U.S. Const. amend. XIV § 1 ( “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protecti on of the laws. ” ) (emphasis added). Plaintiff’s Fourteenth Amendment claim against defendant , a federal agency, must accordingly be dismissed under Rule 12(b)(6)

.17 III. P laintiff Fails to State A Claim for Intentional Infliction of Emotional Distress . Plaintiff a lleges that Judge Wright’s April 12, 2019 comments and Director Hadden ’s affirmance of the order find ing the Department liable but failing to reinstate him amount to the tort of intentional infliction of emotional distress . Compl. at 7–8. Plaintiff’s claim fails

. 13
To state a claim of IIED claim under D.C. law, a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff sever e emotional distress.” Minch v. District of Columbia , 952 A.2d 929, 940 (D.C. 2008) (citation omitted); see also Rogala v. District of Columbia , 161 F.3d 44, 57– 58 (D.C. Cir. 1998) (applying the same three- part analysis). To be “extreme and outrageous,” conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Armstrong v. Thompson , 80 A.3d 177, 189 (D.C. 2013), quoting Drezja v. Vaccaro , 650 A.2d 1308, 1312 n.10 (D.C. 1994). “The requirement of outrageousness is not an easy one to meet.” Drezja , 650 A.2d at 1312. Further , “ severe emotional distress” must be “emotional distress of s o acute a nature

13 The FTCA provides that, prior to initiating suit in the United States district courts, “the claimant shall have first presented the claim to the appropriate Federal a gency.” 28 U.S.C. § 2675(a); GAF Corp. v. United States , 818 F.2d 901, 905 (D.C. Cir. 1987) (“ Only after a proper presentment has been made may a claimant commence a lawsuit in federal court.”). An administrative claim is considered presented for purposes of § 2675 when a claimant provides a federal agency with “ an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damage .” 28 C.F.R. § 14.2. Plaintiff failed to allege that his IIED claim was properly presented to the EEOC prior to filing this lawsuit. See generally Compl. B ased solely on the complaint, then, this Court lacks subject matter jurisdiction to hear his claim. Plaintiff nevertheless argues in his opposition that he timely served “ the EEOC and US [ sic ] Attorney with a SF -95, ” in which he allegedly “pointed out all the wrongful or negligent acts and omissions of the EEOC employees .” Opp. at 2. However, e ven considering and crediting plaintiff’s statement that he timely served an SF

- 95s and exhausted his administrative remedies , see Schnitzler , 761 F.3d at 38 (describing a court’s obligation “ to consider [a pro se plaintiff’s] filings as a whole before dismissing a complaint ”), his IIED claim still must be dismissed for failure to state a claim for the reasons discussed below

.18 that harmful physical consequences might be not unlikely to result.” Ortberg v. Goldman Sachs Grp. , 64 A.3d 158, 164 (D.C. 2013), quoting Kotsch v

. District of Columbia , 924 A.2d 1040, 1046 (D.C. 2007). According to plaintiff, the “extreme and outrageous conduct” he suffered was Judge Wright’s April 12, 2019 statement, “I can’t award this type of relief to you even if I wanted to ,” Compl. at 7 , and Director Hadden ’ s “state [ment] in his ruling that [plaintiff] didn’t prove that he deserved more than the $5,000 awarded to him .” Compl. at 8. 14 While plaintiff may have been understandably dissatisfied with the outcome of his EEOC proceeding, liability for IIED “will not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or ot her trivialities .” Homan v. Goyal , 711 A.2d 812, 818 (D.C. 1998) (internal quotations omitted); s ee also Ortberg , 64 A.3d at 16 3 (explaining that conduct must be found by the average person to be outrageous)

. 15 Plaintiff’s claim for IIED will therefore be dismissed.

14 Plaintiff also claims Judge Wright’s “other actions . . . constitute[d]” IIED, but he does not specify what the alleged “other actions ” are. Compl. at 7. Assuming that they include (1) ordering a monetary award less than DoL’s settlement offer, and (2) not removing the termination notation from plaintiff’s SF

- 50, as stipulated in the settlement offer, see Compl. at 7

– 8, neither of th o se actions satisfy the standard for “extreme and outrageous” conduct. See Armstrong , 80 A.3d at 189. 15 Plaintiff ’ s IIED claim fails for additional reasons. Aside from alleging that Judge Wright’s April 12, 2019 comments and “other actions” were “done . . . with malice,” Compl. at 7

– 8, he fails to plead allegations concerning Wright or Hadden’s state of mind

. See generally Compl. Nor has he shown that Wright and Hadden’s actions cause d “severe emotional distress” under D.C. law. See Ortberg , 64 A.3d at 164 (“Recovery is not allowed merely because condu ct causes mental distress,” quoting Crowley v. N. Am. Telecomms. Ass’n , 681 A.2d 1169, 1172 ( D.C. Cir. 1997)). In fact, plaintiff does not appear to specifically allege the nature of any emotional distress endured

. See generally Compl.; Opp.; see also Ortberg , 64 A.3d at 164 (describing common symptoms of emotional distress including sleep loss and inability to concentrate as well as the relevance of the intensity and duration of the distress).19 IV. Sovereign Immunity Bars Plaintiff’s Constitutional Tort Claims. While it is not clear from his complaint, plaintiff states in his opposition that he is “filing

a lawsuit for [c]onstitutional [t]orts.” Opp. at 2. The opposition did not clarify exactly what constitutional torts he alleges , aside from the fact that they were committed by “federal employees

. ” Opp. at 3. N onetheless, any such claims cannot succeed. “It is axiomatic that the United States may not be sued without its consent .” United States v. Mitchell , 463 U.S. 206, 212 ( 1983); see also United States v. Sherwood , 312 U.S. 584, 586 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued.”). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer , 510 U.S. 471, 475 (1994). Sovereign immunity is jurisdictional in nature and the status of the United States’s consent to be sued will determine a court’s jurisdiction to hear a particular case. See id. ; see also Mitchell , 463 U.S. at 212 (“[ T]he existence of consent is a prerequisite for jurisdiction.”). “[A] claim barred by sovereign immunity lacks subject matter jurisdiction and may be dismissed under a 12( b)(1) motion.” Scruggs v. Bureau of Engraving & Printing , 200 F. Supp. 3d 78, 82 (D.D.C. 2016)

. To survive a 12(b)(1) mot ion, a plaintiff must prove that so vereign immunity has been waived. See Jackson v. Bush , 448 F. Supp. 2d 198, 200 (D.D.C. 2006), citing Tri

- State Hosp. Supply Corp. v. United States , 341 F.3d 571, 575 (D.C. Cir. 2003). United States d istrict c ourts have jurisdiction where sovereign immunity has been waived. 28 U.S.C. § 1346(b); Meyer , 510 U.S. at 477. Section 1346(b) ’s waiver o f sovereign immunity, however, does not include constitutional torts. Meyer , 510 U.S. at 478 (“[ T]he United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims.”). Accordingly,20 to the extent plaintiff alleges a constitutional tort against defendant, a federal government agency, this Court lacks jurisdiction to hear it.
CONCLUSION For the foregoing reasons, defendant’s motion to dismiss the complaint [Dkt. # 7] is
GRANTED. A separate order will issue.

AMY BERMAN JACKSON United States District Judge
DATE: September 30, 2024