Thompson v. Peace Corps , 159 F. Supp. 3d 56 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
SARA THOMPSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-0437 (ABJ)
)
PEACE CORPS, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Pro se plaintiff Sara Thompson brought this action against the Peace Corps, alleging that
she was harmed by taking mefloquine, an anti-malarial drug which was required as part of her
service as a Peace Corps volunteer in Burkina Faso, West Africa. Am. Compl. [Dkt # 4].
Defendant has moved to dismiss plaintiff’s claims pursuant to Federal Rule of Civil Procedure
12(b)(1) or, in the alternative, Rule 12(b)(6). Def.’s Mot. to Dismiss [Dkt. # 10] (“Def.’s Mot.”).
Because the United States has not waived its sovereign immunity under the Federal Tort Claims
Act for claims arising out of injuries sustained in foreign countries, and because the Peace Corps
Act does not provide plaintiff with an independent cause of action against defendant, the motion
to dismiss will be granted.
BACKGROUND
Plaintiff applied to become a Peace Corps volunteer in January 2009, and in March 2010,
she was offered and accepted an assignment to become a Girls’ Education and Empowerment
Peace Corps volunteer in Burkina Faso, West Africa. Am. Compl. ¶¶ 3–4. In June 2010, she
attended two days of pre-service training in Philadelphia, Pennsylvania, and then flew to Burkina
Faso for three months of training on “safety and security issues, cross-cultural matters, medical
and health safety, [and] language training.” Id. ¶¶ 5–6. She was sworn in as an official Peace
Corps volunteer in August 2010. Id. ¶ 7.
Plaintiff states that “[f]rom the moment that [she] started training in Burkina Faso, [she]
was given anti-malarial medication, called mefloquine.” Am. Compl. ¶ 8. She alleges that the
Peace Corps requires all volunteers and trainees to take an anti-malarial prophylaxis, and that if
she had refused to take the drug, she would have been terminated from the Peace Corps. Id. ¶ 9.
She contends that the manner in which she was given the drug – “in a concentrated loading dose
for the first three days” – was contrary to the recommendations of the Centers for Disease Control
and was not approved by the Food and Drug Administration. Id. ¶ 8.
Plaintiff alleges that she suffered “several health issues related to impaired cognitive
functioning” during her time as a Peace Corps volunteer as a result of taking mefloquine. Am.
Compl. ¶¶ 11–15, 21. Specifically, plaintiff states that she would “misplace every day items,”
“sleep more than sixteen hours a day,” “experience symptoms of paranoia,” hallucinate, and
experience severe dizziness and vertigo, which caused her to vomit. Id. She also states that from
August 2012 to the present, she has continued to suffer “intense bouts of dizziness, vertigo, and
disequilibrium,” and has repeatedly sought medical treatment to address her health issues without
success. Id. ¶¶ 26, 28–32. She believes that she has “a permanent brain injury” and she states that
the injury has affected her life and made her uncertain about her future. Id. ¶ 33.
Plaintiff initiated this action on March 25, 2015, Compl. [Dkt. # 1], and she filed an
amended complaint on April 14, 2015. Am. Compl. She contends that the Peace Corps failed to
advise her of the risks of taking mefloquine in the manner in which it was prescribed to her, and
that the Peace Corps was negligent in dispensing the drug to its volunteers. Id. ¶¶ 36–38. She
maintains that the Peace Corps should have provided extensive training and counseling to its
2
volunteers prior to and after administering mefloquine, and that the Peace Corps improperly
withheld information from her regarding mefloquine’s side effects, depriving her of the choice to
take another drug. Id. ¶¶ 39–42. 1
On August 12, 2015, defendant moved to dismiss plaintiff’s claims for lack of subject
matter jurisdiction and for failure to state a claim. Def.’s Mot.; Mem. in Supp. of Def.’s Mot. [Dkt.
# 10] (“Def.’s Mem.”). Plaintiff opposed the motion on November 25, 2015. Opp. of Pl. to Def.’s
Mot. [Dkt. # 14] (“Pl.’s Opp.”). Defendant did not file a reply.
STANDARD OF REVIEW
I. 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 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 jurisdiction, 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).
1 In her opposition to defendant’s motion to dismiss, plaintiff appears to concede that she
was given a choice of three anti-malarial drugs, and that she picked mefloquine, but she contends
that the Peace Corps did not provide her with sufficient information to make an informed decision
about which drug to choose. Opp. of Pl. to Def.’s Mot. [Dkt. # 14] [Dkt. # 14] at 23–24.
3
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 Pharm., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).
II. 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. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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., 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 conclusions” or a “formulaic recitation of the
elements of a cause of action,” id., 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., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed
liberally in the plaintiff’s favor, and the Court 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
4
1271, 1276 (D.C. Cir. 1994). Where the action is brought by a pro se plaintiff, a district court has
an obligation “to consider [her] 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, 520–21 (1972). 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 the plaintiff’s legal conclusions. See id.; 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.” 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. The Court lacks subject matter jurisdiction over this case pursuant to the foreign
country exception to the Federal Tort Claims Act.
Plaintiff’s amended complaint offers little to assist the Court in determining the legal basis
for her claims against the Peace Corps, other than to assert twice that defendant acted negligently
when it administered mefloquine to plaintiff. See Am. Compl. ¶¶ 37, 41. However, her citations
to case law suggest that she intended to bring this action under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346, 2671–2680. See Am. Compl. ¶¶ 52–53, citing Leaf v. United States,
588 F.2d 733 (9th Cir. 1978), and In re Agent Orange Prod. Liab. Litig., 580 F. Supp. 1242
(E.D.N.Y. 1984). Plaintiff also attached a treatise on the FTCA, entitled “Away from Justice and
Fairness: the Foreign Country Exception to the Federal Tort Claims Act,” as an exhibit to her
5
amended complaint. Ex. 12 to Am. Compl. [Dkt. # 4-1]. And in response to defendant’s motion
to dismiss, which treated plaintiff’s claims as arising under the FTCA, see Def.’s Mem. at 1,
plaintiff acknowledged that the “only recourse for the remaining claims is the FTCA,” Pl.’s Opp.
at 18, and she repeatedly characterized her claims against defendant as sounding in negligence.
See id. at 7–8, 23, 26. Therefore, the Court will construe plaintiff’s amended complaint as asserting
tort claims against the federal government under the FTCA.
“The FTCA ‘was designed primarily to remove the sovereign immunity of the United
States from suits in tort and, with certain specific exceptions, to render the Government liable in
tort as a private individual would be under like circumstances.’” Sosa v. Alvarez-Machain, 542
U.S. 692, 700 (2004), citing Richards v. United States, 369 U.S. 1, 6 (1962); see also 28 U.S.C.
§ 2674. Specifically, the FTCA provides a limited waiver of the government’s sovereign
immunity “for money damages . . . for injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).
But there are exceptions to the FTCA’s immunity waiver. See, e.g., id. § 2680. And
“[w]hen one of the FTCA’s exceptions applies – that is, when the Government has not waived its
sovereign immunity . . . the federal courts lack subject-matter jurisdiction” over the case. Harbury
v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008); see also Sloan v. U.S. Dep’t of Hous. & Urban
Dev., 236 F.3d 756, 759 (D.C. Cir. 2001). In particular, the FTCA excludes from its waiver of
sovereign immunity “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). This
exception is expansive: it “bars all claims based on any injury suffered in a foreign country,
regardless of where the tortious act or omission occurred.” Sosa, 542 U.S. at 712.
6
Plaintiff’s claims in this case arise exclusively out of the side effects she experienced and
the injuries she sustained from taking mefloquine, and plaintiff concedes that she did not begin
taking the drug – or suffering any ill effects – until after she arrived in Burkina Faso. See Am.
Compl. ¶ 8 (“From the moment that I started training in Burkina Faso, I was given anti-malarial
medication, called mefloquine . . . .”). Plaintiff does not allege that she was ever administered
mefloquine in the United States prior to her departure to Africa in 2010, and while she does
complain of continuing side effects after her return home in 2012, her claims based on those
injuries arose out of the administration of mefloquine in Burkina Faso. Plaintiff’s injuries were
thus suffered in a foreign country, and on that basis, the Court could conclude that it lacks subject
matter jurisdiction over this case pursuant to the foreign country exception. See Sosa, 542 U.S. at
712.
Plaintiff acknowledges that “the origins of the case seem to have started in Burkina Faso,”
but she argues that the Peace Corps took actions in the United States that deviated from the
appropriate standard of care. Am. Compl. ¶ 52. In her opposition, plaintiff appears to suggest that
because defendant failed to provide her with sufficient information regarding the dangers and side
effects of mefloquine before she left the United States, the foreign country exception should not
apply to her claims. See, e.g., Pl.’s Opp. at 13–15 (describing plaintiff’s communications and
meetings with defendant in the United States prior to her departure to Burkina Faso during which
plaintiff alleges defendant failed to provide sufficient information regarding mefloquine); id. at 16
(“[T]he distribution and communication of the anti-malarial policy and the anti-malarial drugs
should have occurred on U.S. soil.”). She also offers the following facts in support of her
contention that the Court has jurisdiction over this action:
The contract that the Plaintiff entered with the defendant was executed
within the boundaries of the United States. Peace Corps Headquarters are
7
within the boundaries of the District of Columbia. Plaintiff’s contract to act
on behalf of Peace Corps was formed through inter-state communications
from Plaintiff in Homer, Alaska to the Defendant in Washington, D.C.
either directly or through Peace Corps designated agents. . . . The events
leading up to the claims by the Plaintiff occurred within the confines of the
United States, at the direction of Peace Corps and any other agents
purported to represent the Peace Corps within the boundaries of the United
States or Burkina Faso, therefore, this Court has complete jurisdiction over
the issues at hand.
Id. at 15–16.
But this argument – that “because [defendant’s] negligent direction and oversight occurred
in the United States, the foreign-country exception should not apply” – “is precisely what Sosa
rejected.” Gross v. Def. Alternatives, Inc., 946 F. Supp. 2d 120, 124 (D.D.C. 2013), aff’d sub nom.
Gross v. United States, 771 F.3d 10 (D.C. Cir. 2014), citing Sosa, 542 U.S. at 701–03. In Sosa,
the plaintiff suffered injuries in Mexico, but the Ninth Circuit permitted his case to proceed after
finding that his injuries were “the direct result of wrongful acts of planning and direction by DEA
agents located in California.” 542 U.S. at 702. In rejecting this so-called headquarters doctrine,
the Supreme Court reiterated that “the FTCA’s foreign country exception bars all claims based on
any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.”
Id. at 712.
Following the Sosa Court’s reasoning, even if the Peace Corps acted negligently in the
United States when communicating the risks of mefloquine, plaintiff’s injuries were still sustained
as a result of taking the drug in Burkina Faso, and the foreign country exception bars her tort claims
against the federal government. 2 For those reasons, the Court finds that it lacks subject matter
2 Plaintiff also argues that, “even if this case is considered to have originated in a foreign
country, exception to this has been already been decided in a court case as precedence.” Am.
Compl. ¶ 53, citing In re Agent Orange Prod. Liab. Litig., 580 F. Supp. 1242 (E.D.N.Y. 1984).
But the Agent Orange case preceded Sosa, and it was explicitly rejected in that decision. See Sosa,
542 U.S. at 710–11.
8
jurisdiction over plaintiff’s claims, and defendant’s motion to dismiss under Rule 12(b)(1) will be
granted. 3
II. The Peace Corps Act does not provide plaintiff with a private right of action against
defendant or the United States.
In an abundance of caution and in recognition of plaintiff’s pro se status, the Court will
also consider what it interprets as plaintiff’s assertion of claims under the Peace Corps Act, 22
U.S.C. § 2504. In her opposition to defendant’s motion to dismiss, plaintiff states that she “relies
completely on the statutory language set forth by the Peace Corps Act,” and she asserts that “[t]he
controlling law that should be utilized in the court’s making its jurisdictional decision is the Peace
Corps Act.” Pl.’s Opp. at 4; see also id. at 7 (“[T]he Court has jurisdiction of this case as set forth
by the Peace Corps Statute . . . .”). She contends that “[t]he Peace Corps Act specifically
highlights the ability of a Peace Corps Volunteer or a Returned Peace Corps Volunteer to pursue
litigation against Peace Corps,” id. at 10, and she quotes at length from various provisions of that
statute throughout her opposition. Id. at 4–6, 11–12, 21–23. She also argues that “it would be
proper for Peace Corps Volunteers and Returned Peace Corps Volunteers to bring tort claims
against the United States Government” under the Peace Corps Act, and that “Congress’ intent was
to allow this to occur.” Id. at 16.
To the extent that plaintiff is attempting to assert a cause of action under the Peace Corps
Act, she cannot do so. That statute does not provide an independent, private right of action against
3 In her opposition, plaintiff outlines the elements of a cause of action for negligent or
fraudulent misrepresentation, ostensibly in support of her claim that defendant “either intentionally
or unintentionally, did not disclose all relevant information regarding the anti-malarial drug,
mefloquine” and she states that she “detrimentally relied on these omissions.” Pl.’s Opp. at 7–8.
But the FTCA also categorically excludes from its sovereign immunity waiver “[a]ny claim arising
out of . . . misrepresentation.” 28 U.S.C. § 2680(h). Thus, to the extent that plaintiff is seeking to
assert a claim of misrepresentation against the Peace Corps, it is still barred by an FTCA exception,
and the Court still lacks jurisdiction over this case.
9
the Peace Corps or the United States, or a waiver of the government’s sovereign immunity to such
claims.
First, while it is true that the Peace Corps Act addresses tort claims, it states only that
“[v]olunteers shall be deemed employees of the United States Government for the purposes of the
Federal Tort Claims Act and any other Federal tort liability statute.” 22 U.S.C. § 2504(h). It does
not provide a mechanism for a Peace Corps volunteer to hold the government liable for damages;
rather, it contemplates holding a Peace Corps volunteer liable under the FTCA for causing harm
to another while acting as an “employee of the Government.” See id.; 28 U.S.C. § 1346(b)(1).
Plaintiff also specifically references section 2504(i) of the Act, which provides that “[t]he
service of a volunteer may be terminated at any time at the pleasure of the President.” 22 U.S.C.
§ 2504(i). She argues:
[A]s the President is allowed to terminate the service of any volunteer, as
outlined by the Peace Corps Act, the President’s ability to perform duties
asserting the jurisdiction of the Executive branch overseas, the exclusion of
the Judicial Branch would be a gross violation of the checks and balances
as outlined by our Founding Fathers. Therefore, as outlined, the District
Court has complete subject matter jurisdiction of Plaintiff’s complaint as
set forth in this document.
Pl.’s Opp. at 13. It appears that plaintiff is attempting to argue that it would somehow be
inequitable or improper to permit the President to assert his authority overseas by terminating
Peace Corps volunteers while simultaneously depriving the courts of the authority to hear claims
asserted by volunteers that arise overseas. Id. But the statute makes clear that Peace Corps
volunteers serve “at the pleasure of the President,” 22 U.S.C. § 2504(i), obviating the need for any
checks and balances by the judiciary. And the fact remains that the Act does not provide for a
private right of action against the government based on injuries sustained as a result of service in
the Peace Corps.
10