UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) WILLIAM T. CUNNINGHAM , ) ) Plaintiff , ) ) v. ) C ase No. 21- cv -00187 (APM) ) ZACHARY WRIGHT , ) ) Defendant . ) _________________________________________ ) MEMORANDUM OPINION Before the court is Defendant Zachary Wright’s Motion to Dismiss, ECF No. 5. Fo r the reasons that follow, the motion is granted. First, Plaintiff’s intentional infliction of emotional distress claim is dismissed for the same reasons th at 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 a dministrative j udge 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 ; N otice of Removal of a Ci vil 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). T he 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 sub ject 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 clai m 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 re litigation 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 immu nity” 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