UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

_________________________________________ 

 ) 

WILLIAM T. CUNNINGHAM, ) 

 ) 

Plaintiff, ) 

 ) 

 v. ) Case No. 21-cv-00187 (APM)

 ) 

ZACHARY WRIGHT, ) 

 ) 

Defendant. ) 

_________________________________________ ) 

MEMORANDUM OPINION

Before the court is Defendant Zachary Wright’s Motion to Dismiss, ECF No. 5. For the 

reasons that follow, the motion is granted. 

First, Plaintiff’s intentional infliction of emotional distress claim is dismissed for the same 

reasons that the court dismissed a nearly identical claim that Plaintiff brought against Wright in a 

2019 suit, see Mem. Op., Cunningham v. Wright (Cunningham I), No. 19-cv-3357 (D.D.C.), ECF 

No. 7 [hereinafter Cunningham I Op.]. For one, Plaintiff brings a common law tort claim against 

Wright acting in his official capacity as an administrative judge of the Equal Employment 

Opportunity Commission, see Notice of Removal of a Civil Action, ECF No. 1, Compl., ECF 

No. 1-1, at 1, and therefore under the Westfall Act and the certification submitted in this case, the 

United States is the proper defendant. See Cunningham I Op. at 1–2; Notice of Removal of a Civil 

Action, ECF No. 1 [hereinafter Cunningham I Notice of Removal], Westfall Certification, ECF 

No. 1-2. See generally Osborn v. Haley, 549 U.S. 225 (2007). The United States has not, however, 

waived its sovereign immunity under the Federal Tort Claims Act (“FTCA”) for Plaintiff’s claim

because the claim arises from alleged “misrepresentation” and “deceit.” 28 U.S.C. § 2680(h); 
2 

Cunningham I Op. at 1–2; Pl.’s Resp. to Order, ECF No. 7 [hereinafter Pl.’s Resp.], at 1 (alleging 

“[j]udicial [m]isconduct was committed while conspiring and colluding with the Department of 

Labor (DoL) counsel”); Cunningham I Notice of Removal, Compl., ECF No. 1-2, at 3 (alleging 

Wright “can be clearly heard lying to” Plaintiff). The court also lacks jurisdiction because Plaintiff 

has failed to exhaust administrative remedies under the FTCA. See McNeil v. United States, 508 

U.S. 106, 113 (1993) (affirming dismissal of the plaintiff’s FTCA claim for lack of subject matter 

jurisdiction because “[t]he FTCA bars claimants from bringing suit in federal court until they have 

exhausted their administrative remedies”). 

Second, dismissal is warranted because Plaintiff’s tort claim was previously dismissed on 

jurisdictional grounds in Cunningham I and therefore is barred on the ground of res judicata. See 

GAF Corp. v. United States, 818 F.2d 901, 912 (D.C. Cir. 1987) (stating a “judgment ordering 

dismissal[] will . . . preclude relitigation of the precise issue of jurisdiction that led to the initial 

dismissal”). Plaintiff identifies no basis for having “cure[d]” the jurisdictional deficiencies

identified in Cunningham I. See id. at 912–13. 

Third, to the extent Plaintiff asserts a claim under the Fifth Amendment against Wright in 

his individual capacity, that claim is dismissed for two reasons. As an administrative law judge, 

Wright is immune from suit. The Supreme Court long ago “extended absolute immunity” to 

administrative law judges performing judicial acts. Cleavinger v. Saxner, 474 U.S. 193, 200

(1985) (citing Butz v. Economou, 438 U.S. 478, 513 (1978)). In addition, the court lacks 

jurisdiction over Wright because Plaintiff has failed to serve him with process. See 28 U.S.C. 

§ 1448; Fed. R. Civ. P. 4(i)(3); Pl.’s Resp. at 2 (conceding failure to serve). 
3 

Finally, to the extent Plaintiff brings a claim under 42 U.S.C. § 1983, that claim is likewise 

dismissed because Wright is immune from suit for his judicial acts and because Plaintiff has not 

served Wright. 

For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 5, is granted. A final, 

appealable order accompanies this Memorandum Opinion. 

 

Dated: July 13, 2021 Amit P. Mehta

 United States District Court Judge