# Grappell v. Cardona

> District Court, S.D. Florida · May 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10123302

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** May 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10123302

## How later opinions describe it (automated extraction)

- explaining that while Rule 17(c), Fed. R. Civ. P., permits a parent to sue on behalf of a minor child, it does not permit a non-attorney parent to act as legal counsel for the child in such an action
- finding Section 504 of the Rehabilitation Act “does not provide for a claim against the Government when the plaintiff seeks review of a particular agency decision regarding an alleged act of discrimination by a recipient of federal funds.”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-24336-BLOOM/Torres

JENNIFER GRAPPELL,

Plaintiff,
v.

MIGUEL CARDONA, as Secretary,
U.S. Department of Education

Defendant.
________________________________/

THIS CAUSE is before the Court upon Defendant Miguel Cardona, as Secretary, U.S.
Department of Education’s Motion to Dismiss Plaintiff’s Complaint, ECF No. [22] (“Motion”).
Plaintiff Jennifer Grappell, a pro se litigant, filed a Response in Opposition (“Response”), ECF
No. [27].1 The Court has reviewed the Motion, the supporting and opposing submissions, the
record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth
below, the Motion is granted.
I. BACKGROUND

A. Procedural History

Plaintiff filed her pro se Complaint on November 13, 2023, asserting causes of action
against Defendant on behalf of herself and her son for Defendant’s “neglect of duty,” “obstruction
of justice,” and violations of Title IX. See ECF No. [1] at 3-4. The Complaint is completed on
Official Form Pro Se 1 – Complaint for Civil Case and references an accompanying attachment as
Plaintiff’s statement of her claim. Id. at 4. The attachment, a letter from Jana Erickson, Program
Manager for the United States Department of Education Office for Civil Rights, Region IV

1 Defendant did not file a Reply in Support of his Motion.
(“OCR”), notes that Plaintiff has filed three administrative complaints with OCR regarding alleged
sex discrimination and retaliation against her son by the Miami-Dade County School District. See
id. at 6-9. One such complaint remains under investigation by OCR.2 Id. at 7. The OCR letter
informs Plaintiff the OCR will issue its written determination to Plaintiff and the Miami-Dade

County School District once its investigation is complete, and that “OCR expects to complete its
investigation by September 30, 2022.” Id. Plaintiff alleges Defendant committed “gross
negligence” in handling her three OCR complaints, observing that “a written determination”
regarding her third OCR complaint “was promised to Plaintiff by September 30, 2022.” Id. at 8.
Plaintiff’s Complaint seeks an order requiring OCR “to deliver their written determination …
within 14 days” of the Court’s order as well as punitive and compensatory damages for herself and
her son.3 Id. at 9.
Defendant filed a Notice of Related Cases and Vexatious Litigation Injunction, ECF No.
[10], and points out that Plaintiff previously raised substantially similar claims of sex
discrimination and retaliation against various Miami-Dade County School defendants

(collectively, the “School Board Defendants”). Plaintiff brought two such cases in this District,
Case No.19-cv-23990-MGC and Case No. 21-cv-22016-BB, both of which were dismissed with
prejudice. Plaintiff appealed the dismissal of Case No.19-cv-23990-MGC to the Eleventh Circuit,
which affirmed the dismissal of Plaintiff’s discrimination and retaliation claims with prejudice.
Grappell v. Carvalho, 847 F. App’x 698 (2021). However, the Eleventh Circuit reversed and
remanded Plaintiff’s claims brought on behalf of her son and direct that the claim be dismissed
without prejudice because pro se litigants cannot bring claims on their children’s behalf. See id. at

2 The OCR dismissed Plaintiff’s first two administrative complaints on July 31, 2017 and March
26, 2019, respectively. ECF No. [1] at 6.
3 The Complaint also requests the Court “urge Secretary Miguel Cardona to resign immediately if
he is unable to supply Plaintiff with a letter of written determination.” Id. at 9.
701. Plaintiff then brought near-identical claims against the School Board Defendants on behalf of
herself and her son, which were deemed frivolous by this Court and resulted in the entry of a
vexatious pro se litigant injunction. Grappell v. Carvalho, Case No. 21-CV-22016-BB, 2021 WL
5178750, at *10 (S.D. Fla. Nov. 8, 2021). The Court’s filing injunction prohibits Plaintiff from

filing further lawsuits in this District against the School Board Defendants without first obtaining
leave of Court.4 Id.
B. Motion
Defendant primarily argues Plaintiff’s Complaint must be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(1) because lawsuits against federal officials such as Defendant
require a waiver of federal sovereign immunity to proceed. Defendant contends Plaintiff fails to
identify a valid waiver of sovereign immunity that demonstrates her claim may proceed, and no
such waiver exists. Accordingly, Defendant argues the Court lacks subject-matter jurisdiction over
Plaintiff’s claim. Alternatively, Defendant contends the Complaint must be dismissed as a shotgun
pleading or for failing to state a claim in violation of Federal Rule of Civil Procedure 12(b)(6).
Plaintiff argues she has standing to bring a Title IX claim on her son’s behalf, and her Complaint

states a viable cause of action under Title IX and the Federal Tort Claims Act (“FTCA”).
II. LEGAL STANDARD
A. Motion to Dismiss
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, “once a
federal court determines that it is without subject matter jurisdiction, the court is powerless to

4 The Court’s filing injunction does not include Defendant. Id.
continue.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). The party
bringing the claim has the burden to establish federal subject matter jurisdiction. United States ex
rel. Brown v. Walt Disney World Co., 361 F. App’x 66, 68 (11th Cir. 2010) Kokkonen, 511 U.S.
at 377 (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799) and McNutt v. Gen. Motors

Acceptance Corp., 298 U.S. 178, 182-183 (1936)).
Rule 12(b)(1) motions challenging the district court’s subject matter jurisdiction come in
two forms: facial attacks and factual attacks. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). A facial attack
“requires 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.” Lawrence, 919 F.2d at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507,
511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980)). A factual attack,
on the other hand, “challenge[s] ‘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. When a defendant launches a factual attack, “the trial court may proceed as it never could under
12(b) (6) or Fed. R. Civ. P. 56. … no presumptive truthfulness attaches to plaintiff’s allegations,
and the existence of disputed material facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims. Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412-13
(5th Cir. 1981)); see also Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063, 1067 (S.D. Fla.
2020) (“When subject matter jurisdiction is faced with a factual attack, ‘the trial court is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the case.’”) (quoting
Lawrence, 919 F.2d at 1529)).
B. Pro Se Litigants
Courts must “construe pro se pleadings liberally, holding them to a less stringent standard
than those drafted by attorneys.” Arrington v. Green, 757 F. App’x 796, 797 (11th Cir. 2018)
(citing Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). Still, a pro se party must abide by
“the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989); see also Peterson v. Atlanta Hous. Auth., 998 F.2d

904, 912 (11th Cir. 1993) (“[A] court’s duty to liberally construe a plaintiff's complaint in the face
of a motion to dismiss is not the equivalent of a duty to re-write it.”).
III. DISCUSSION

Defendant mounts a factual attack against Plaintiff, arguing the Court lacks subject matter
jurisdiction because Defendant is immune from suit, and Plaintiff fails to identify a valid waiver
of federal sovereign immunity that demonstrates her claims can proceed. Plaintiff responds that
she has standing to assert Title IX claims on behalf of herself and her son. Plaintiff also argues she
can hold Defendant liable in tort for failing to fulfill his official duties under the FTCA. Plaintiff
notes the FTCA provides a general waiver of sovereign immunity for tort claims and contends
Florida law provides the basis for a viable FTCA tort claim against Defendant.
As noted, Plaintiff asserts claims on behalf of herself and her son. In doing so, Plaintiff
ignores the Eleventh Circuit’s guidance that pro se litigants cannot bring claims on behalf of their
children. As the Eleventh Circuit previously explained to Plaintiff, such claims must be dismissed
without prejudice:
At the outset, we note that Grappell, a non-attorney proceeding pro se, purported
to bring claims on behalf of herself and her minor son. While individuals in federal
court generally may “may plead and conduct their own cases personally,” 28 U.S.C.
§ 1654 (emphasis added), the right to appear pro se does not extend to non-attorney
parties representing the interests of others. In particular, we have held that “parents
who are not attorneys may not bring a pro se action on their child’s behalf.” Devine
v. Indian River Cnty. Sch. Bd., 121 F.3d 576, 581 (11th Cir. 1997) (explaining that
while Rule 17(c), Fed. R. Civ. P., permits a parent to sue on behalf of a minor child,
it does not permit a non-attorney parent to act as legal counsel for the child in such
an action), overruled in part on other grounds by Winkelman ex rel. Winkelman v.
Parma City Sch. Dist., 550 U.S. 516, 535, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007).
This rule “helps to ensure that children rightfully entitled to legal relief are not
deprived of their day in court by unskilled, if caring, parents.” Devine, 121 F.3d at
581. Accordingly, to the extent Grappell, a non-attorney, sought to represent the
legal interests of her son, the district court should have dismissed those claims
without prejudice.
Grappell v. Carvalho, 847 F. App’x 698, 701 (11th Cir. 2021). Accordingly, Plaintiff’s claims
brought on behalf of her son are dismissed without prejudice.5 The Court proceeds to determine
whether Plaintiff’s claim against Defendant must be dismissed for lack of subject matter
jurisdiction.
Defendant argues Plaintiff’s claim must be dismissed without prejudice for lack of subject
matter jurisdiction. As noted, Plaintiff brings a claim against Defendant in his official capacity as
Secretary of the U.S. Department of Education for the negligent processing of her OCR
complaints, “neglect of duty/refusal to perform duties,” and “obstruction of justice.” See generally
ECF No. [1]. The Complaint cites 42 U.S.C. § 1986, 18 U.S.C. § 1510, and Title IX as the bases
for federal subject matter jurisdiction. Id. at 3. Defendant observes “none of these statutes provide
the requisite waiver of federal sovereign immunity that would allow Plaintiff to sue a federal
officer or agency as she has done here.” ECF No. [22] at 7.
Defendant is correct that “[s]overeign immunity is jurisdictional in nature.” F.D.I.C. v.
Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000, L. Ed. 2d 308 (1994). Accordingly, “[a]bsent a
waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Id.
(quoting Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 1968, 100 L.Ed.2d 549 (1988)); see
also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983)

5 Plaintiff argues she has standing to assert Title IX claims on behalf of her son. As discussed,
however, this argument ignores the Eleventh Circuit’s determination that “parents who are not attorneys
may not bring a pro se action on their child’s behalf.” Devine v. Indian River Cnty. Sch. Bd., 121 F.3d 576,
581 (11th Cir. 1997). Plaintiff’s claims on behalf of her son therefore must be dismissed without prejudice
even if Plaintiff has standing to assert those claims.
(“It is axiomatic that the United States may not be sued without its consent and that the existence
of consent is a prerequisite for jurisdiction”). Such consent must be “unequivocally expressed.”
United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).
Accordingly, Plaintiff’s claim must be dismissed for lack of subject matter jurisdiction if she fails

to identify a valid waiver of federal sovereign immunity that permits her claim to proceed against
Defendant.
A. 42 U.S.C. § 1986 and 18 U.S.C. § 1510
Defendant is correct that none of the jurisdictional bases identified in the Complaint waive
federal sovereign immunity. Plaintiff does not challenge Defendant’s argument that Section 1986
and Section 1510 fail to waive federal sovereign immunity. Section 1986 creates a cause of action
against anyone with “knowledge that any of the wrongs conspired to be done, and mentioned in
section 1985 of this title, are about to be committed, and having the power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do.” 42 U.S.C. § 1986. As
Defendant accurately observes, Section 1986 does not waive federal sovereign immunity. See, e.g.,
Zhu v. Gonzales, No. 04–1408(RMC), 2006 WL 1274767 (D.D.C. May 8, 2006) (“42 U.S.C. §§

1981, 1982, 1985 and 1986 ‘by their terms, do not apply to actions against the United States.’”)
(quoting Hohri v. United States, 782 F.2d 227, 245 n. 43 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987)); see also United States v. Timmons,
672 F.2d 1373, 1380 (11th Cir. 1982) (“It is well established in this circuit that the United States
has not waived its immunity to suit under the provisions of the civil rights statutes.”).
The same is true with respect to Section 1510. Not only does Section 1510 fail to waive
federal sovereign immunity, Section 1510 is also a criminal statute that “do[es] not provide a civil
cause of action or any civil remedies.” Grappell, 847 F. App’x at 701 (citing Hanna v. Home Ins.
Co., 281 F.2d 298, 303 (5th Cir. 1960) (“The sections of Title 18 may be disregarded in this suit.
They are criminal in nature and provide no civil remedies.”)); Anderson v. Perez, 860 F. App’x
688, 690 (11th Cir. 2021) (same). Plaintiff’s reliance on Section 1986 and Section 1510 thus fails
to demonstrate subject matter jurisdiction exists over her claim.
B. Title IX
Title IX similarly fails to create a cause of action against Defendant. As Defendant points

out, Title IX creates a private cause of action against discriminating entities that receive federal
funding, including school districts. See Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999);
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005). However, Title IX does not create a
private right of action against Defendant, the Department of Education, or against the United States
itself. Women’s Equity Action League v. Cavazos (“WEAL”), 906 F.2d 742, 751 (D.C. Cir. 1990)
(citing Cannon v. Univ. of Chi., 441 U.S. 677 (1979)); cf. Marlow v. U.S. Dept. of Educ., 820 F.2d
581, 583 (2d Cir. 1987) (finding Section 504 of the Rehabilitation Act “does not provide for a
claim against the Government when the plaintiff seeks review of a particular agency decision
regarding an alleged act of discrimination by a recipient of federal funds.”).
Plaintiff observes that Title IX provides a private cause of action for money damages and

injunctive relief “against a school system in cases of student-to-student sexual harassment where
the school acts with deliberate indifference to known acts of harassment.” ECF No. [27] at 7
(alterations added) (citing Du Bois v. Bd. Of Regents of Univ. of Minn., 987 F.3d 1199 (8th Cir.
2021)). However, this argument fails to demonstrate that Title IX waives federal sovereign
immunity by creating a private cause of action against Defendant or the Department of Education,.
Plaintiff otherwise provides no support for her position that Title IX provides a private cause of
action against Defendant. Plaintiff has accordingly failed to show Title IX confers subject-matter
jurisdiction over her claim. Moreover, the Court is persuaded by the Second Circuit’s observation
that finding such cause of action exists would be inconsistent with the Supreme Court’s guidance
that “[a]llowing an action against the federal funding agency would be ‘far more disruptive’ of its
enforcement efforts ‘than a private suit against the recipient of federal aid could ever be.’” Marlow,
820 F.2d at 583-84 (citing Cannon v. University of Chicago, 441 U.S. 677, 707 n.41, 99 S.Ct. at
1962 n.41). The Court accordingly finds Title IX also fails to provide a waiver of federal sovereign

immunity.
C. Administrative Procedure Act

Unlike Title IX, Defendant accurately observes that the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701 – 706, does waive federal sovereign immunity for actions “seeking
relief other than money damages,” 5 U.S.C. § 702, but only where “there is no other adequate
remedy in a court.” 5 U.S.C. § 704. As noted, Plaintiff seeks an order compelling Defendant to
render a decision on Plaintiff’s administrative complaint. Plaintiff is thus “seeking relief other than
money damages[.]” 5 U.S.C. § 702. Defendant contends the APA fails to waive sovereign
immunity here because Title IX provides Plaintiff with an adequate remedy. Plaintiff does not
respond to Defendant’s argument. The Court is persuaded that the APA’s waiver of sovereign
immunity is inapplicable to Plaintiff’s claim because Title IX affords Plaintiff an adequate remedy.
Title IX provides two remedies for individuals accusing educational institutions that receive
federal funding of sex discrimination: (1) filing a sex discrimination complaint with OCR, see 34
C.F.R. § 106.81, and (2) filing a private suit for injunctive and monetary relief against the
educational institution directly. Cannon v. Univ. of Chicago, 441 U.S. 677 (1979); Franklin v.
Gwinnett County Public Sch., 503 U.S. 60 (1992).
Regarding the complaint procedure, the Department of Education’s regulations provide
that the “responsible Department official or his designee will make a prompt investigation
whenever a compliance review, report, complaint, or any other information indicates a possible
failure to comply with this part.” 34 C.F.R. § 100.7(c). If OCR determines there is insufficient
evidence of a violation, it will inform both the recipient and the complainant in writing. 34 C.F.R.
§ 100.7(d)(2). If the OCR finds sufficient evidence of a Title IX violation, it first attempts to
resolve the matter by informal means, 34 C.F.R. § 100.7(d)(1), before initiating either fund

termination proceedings or referring the complaint to the U.S. Department of Justice for litigation.
20 U.S.C. § 1682; 34 C.F.R. § 100.8. As Defendant points out, neither Title IX’s regulations nor
Title IX impose a statutory or regulatory deadline for completing such investigations.
Title IX also permits a plaintiff to file a private suit for injunctive and monetary relief
directly against the discriminating entity. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979);
Franklin v. Gwinnett County Public Sch., 503 U.S. 60 (1992). The Government accurately
observes that Plaintiff has unsuccessfully done so twice already and is now subject to a vexatious
pro se litigant injunction, which prohibits Plaintiff from filing renewed claims against the School
Board Defendants. See Grappell, 2021 WL 5178750, at *10. Defendant argues this private right
of action “is the adequate remedy for discrimination.” ECF No. [22] at 8. The Court agrees for the

reasons discussed below.
The Eleventh Circuit has not addressed whether Title IX’s private cause of action
constitutes an adequate remedy that precludes APA jurisdiction. As Defendant observes, however,
the D.C. Circuit has found Title IX’s private remedy is adequate, thus precluding APA subject
matter jurisdiction. In Women’s Equity Action League v. Cavazos (“WEAL”), 906 F.2d 742 (D.C.
Cir. 1990), then-Judge Ginsburg found Title VI and Title IX’s private causes of action are
“adequate, ‘and therefore preclusive of a default remedy under the APA.’” Id. at 750-51 (quoting
Council of & for the Blind of Delaware Cnty. Valley, Inc. v. Regan, 709 F.2d 1521 (D.C. Cir.
1983); citing 5 U.S.C. § 704). Judge Ginsburg noted this finding is consistent with the Supreme
Court’s guidance that private suits brought to remedy discriminatory practices are adequate—and
preferable—remedies. WEAL, 906 F.2d at 751 (“Cannon suggests that Congress considered
private suits to end discrimination not merely adequate but in fact the proper means for individuals
to enforce Title VI and its sister antidiscrimination statutes.”).

This finding is consistent with the Eleventh Circuit’s jurisprudence on the issue of adequate
remedies. For example, Irwin v. Miami-Dade Cnty. Pub. Sch., 398 F. App’x 503 (11th Cir. 2010),
the Eleventh Circuit affirmed the dismissal of a plaintiff’s “claims against the federal agencies and
the individual federal defendants[,]” observing the plaintiff “identified no basis for waiver of
sovereign immunity that would permit jurisdiction over his claims against the agencies or against
the United States itself.” Id. at 506 (citing Meyer, 510 U.S. at 475). The plaintiff brought
constitutional, Title VII, and various tort claims against several federal and state defendants based
on “his difficulties in getting hired as a teacher in Florida because of his arrest record.” Id. at 505.
The court rejected the plaintiff’s reliance on Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) to support his

constitutional and Title VII claims, observing “[a] Bivens action against individual federal officials
is appropriate only if there is no other adequate remedy.” Id. at 506 (citing Lee v. Hughes, 145
F.3d 1272, 1275 (11th Cir. 1998)). The Eleventh Circuit found Bivens was inapplicable because
“[t]he remedy for employment discrimination is to sue the discriminating employer, not the
investigating agency.”6 Id.; see also Heslop v. Attorney Gen. of U.S., 594 F. App’x 580, 584 (11th
Cir. 2014) (finding no APA jurisdiction because “the INA gives [the plaintiff] an adequate remedy:

6 The Parties do not discuss whether Plaintiff’s claim can plausibly be construed as a Bivens action
against Defendant. As the Eleventh Circuit explained in Irwin, however, Bivens fails to provide a waiver of
federal sovereign immunity for the same reason: Title IX provides Plaintiff with an adequate remedy. Irwin,
398 F. App’x at 506.
the ability to seek in federal district court de novo review of USCIS’s denial of his application for
naturalization after he exhausts his administrative remedies.”) (citing 8 U.S.C. § 1421(c)).
Consistent with WEAL and Irwin, the Court finds no APA jurisdiction exists over
Plaintiff’s claim because Title IX provides an adequate remedy: a direct cause of action against

the discriminatory educational institution. 398 F. App’x at 506. As Defendant points out, the fact
that Plaintiff did not prevail in her lawsuits against the School Board Defendants—and is now
subject to a filing injunction—does not render this remedy inadequate within the meaning of the
APA. Accordingly, neither Title IX nor Section 504 of the APA waive federal sovereign immunity
such that Plaintiff’s claim may proceed.
D. Federal Tort Claims Act
Plaintiff’s Response does argue Defendant should be vicariously liable “for the ‘school
board defendants’ failures & for still employing people who commit crimes[.]” ECF No. [27] at
1-2. For support, Plaintiff accurately observes that the FTCA waives the United States’ sovereign
immunity for tort claims. Plaintiff accordingly argues she can plausibly allege a negligence claim
against Defendant for his neglect of duty under the FTCA.

The FTCA waives sovereign immunity for money damages “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,” but only where the plaintiff “shall have first presented the claim to the
appropriate Federal agency.” 28 U.S.C. § 2675(a). “Through the enactment of the FTCA, the
federal government has, as a general matter, waived its immunity from tort suits based on state
law tort claims.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015) (citing Millbrook
v. United States, ––– U.S. ––––, 133 S.Ct. 1441, 1443, 185 L.Ed.2d 531 (2013)). Under the FTCA,
however, “a federal agency must receive an SF-95 or other written notification from a claimant
before the claimant can proceed against that agency.” Barnett v. Okeechobee Hosp., 283 F. 3d
1232, 1241 (11th Cir. 2002). Doing so affords the federal agency “an opportunity to resolve the
dispute without litigation.” Id. at 1236. As Defendant points out, a “court has no subject matter
jurisdiction over a suit against the United States unless the plaintiff has first filed an administrative
claim with the concerned agency pursuant to § 2675(a) that contains a ‘claim for money damages

in a sum certain.’” Wills v. Postmaster Gen., 300 F. App’x 748, 752 (11th Cir. 2008) (quoting
Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006)); see also Scarbrough v. Astrue,
327 F. App’x 827, 829 (11th Cir. 2009); Seneca v. United S. & E. Tribes, 318 F. App’x 741, 746
(11th Cir. 2008); Torjagbo v. United States, 285 F. App’x 615, 617 (11th Cir. 2008)).
The Government contends the Court lacks subject-matter jurisdiction under the FTCA
because Plaintiff failed to first file an administrative claim with the Department of Education. For
support, Defendant provides a Declaration from Jill Siegelbaum (“Siegelbaum”), ECF No. [22-1],
who serves as the Acting Assistant General Counsel, Division of Business and Administrative
Law, United States Department of Education (Department). Id. ¶ 1. Siegelbaum testified that she
directed her “staff to conduct a careful search of the Department’s FTCA claim files, and that such
review located no record of any FTCA claim filed with the Department” by Plaintiff.7 Id. ¶ 4.

Plaintiff responds by attaching an SF-95 that she completed on January 24, 2024 and sent to
Siegelbaum on January 26, 2024. See ECF No. [27-1] at 2-3, 9. However, Plaintiff’s SF-95 fails
to demonstrate this Court has subject-matter jurisdiction over her claim. Plaintiff sent Siegelbaum
this SF-95 over two months after filing this lawsuit and fails to demonstrate Plaintiff “has first
filed an administrative claim with the concerned agency pursuant to § 2675(a)[.]” Wills, 300 F.
App’x at 752. To the contrary, by belatedly sending her SF-95 to Siegelbaum, Plaintiff tacitly

7 The Department of Education’s FTCA regulation requires administrative FTCA claims to be filed
with Siegelbaum at the following address: Department of Education Claims Officer, Washington, DC
20202. 34 C.F.R. § 35.2(c); ECF No. [22-1] ¶ 3.
concedes she failed to file an administrative claim with the Department of Education before filing
this lawsuit. The FTCA accordingly fails to confer subject-matter jurisdiction over Plaintiff’s
claim.
In sum, the Court finds it lacks subject-matter jurisdiction over Plaintiff’s claim. Plaintiff

has failed to meet her burden to establish subject-matter jurisdiction. None of the jurisdictional
bases identified in the Complaint—Section 1986, Section 1510, and Title IX—waive Defendant’s
federal sovereign immunity, and the APA’s default waiver of sovereign immunity is inapplicable.
The Court does not have jurisdiction under the FTCA because Plaintiff has failed to exhaust her
administrative remedies. Accordingly, Plaintiff’s claim must be dismissed.
Defendant contends dismissal should be with prejudice. Defendant argues doing so is
appropriate because Plaintiff cannot state a claim under the FTCA, and the FTCA thus cannot
confer subject-matter jurisdiction under any circumstances. Plaintiff responds that Florida tort law
provides a cause of action for her claim against Defendant. The Court accordingly must determine
whether Plaintiff should be granted leave to amend her complaint, and whether dismissal should

be with or without prejudice.
E. Futility
District courts “have broad discretion in permitting or refusing to grant leave to amend.”
Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). Leave to amend should be “freely given” absent a showing of “futility
of amendment.” Id. at 1270 (citing Foman, 371 U.S. at 182). When an amended complaint would
still be “properly dismissed or be immediately subject to summary judgment for the defendant,” a
district court could determine that leave to amend the complaint is futile. Cf. Rivas v. Bank of N.Y.
Mellon, 777 F. App’x 958, 965 (11th Cir. 2019) (citing Cockrell v. Sparks, 510 F.3d 1307, 1310
(11th Cir. 2007)).
As a threshold matter, the Court finds Plaintiff should not be granted leave to amend.
Plaintiff has failed to identify a waiver of federal sovereign immunity that permits her claim to
proceed against Defendant. The FTCA does provide such a waiver, but only after Plaintiff exhausts
her administrative remedies pursuant to § 2675(a). Because Plaintiff must do so before this Court

would have subject-matter jurisdiction under the FTCA, the Court finds amendment is futile and
thus declines to grant Plaintiff leave to amend her Complaint.
Although granting leave to amend would plainly be futile, whether dismissal should be
with or without prejudice is less clear. As noted, the FTCA provides a general waiver of federal
sovereign immunity “from tort suits based on state law tort claims.” Zelaya, 781 F.3d at 1321
(citation omitted). If Plaintiff complies with § 2675(a)’s notice requirements, she may sue
Defendant—and the United States—based on an underlying tort claim. However, “[i]f there is no
specific waiver of sovereign immunity as to a particular claim filed against the Government, the
court lacks subject matter jurisdiction over the suit.” Id. at 1322 (citing Meyer, 510 U.S. 471 at
475-76). Furthermore, the FTCA imposes a predicate requirement “that the circumstances be such

that a private person would be liable under the law of the state where the federal employee’s act
or omission occurred, had a private person so acted.” Id. For this Court to have subject-matter
jurisdiction over Plaintiff’s claim, Plaintiff therefore must identify a Florida or District of
Columbia8 (“D.C.”) tort claim that provides (1) a valid waiver of sovereign immunity and (2) a
cause of action for money damages premised on (3) Defendants’ failure to fulfill his statutory and
regulatory duties.
The Government argues no such claim exists under Florida law, and Plaintiff’s claim
accordingly should be dismissed with prejudice. Plaintiff responds that Florida law recognizes the

8 D.C. tort law provides a plausible basis for a claim against Defendant, as the Department of
Education is headquartered in D.C. See Zelaya, 781 F.3d at 1325.
doctrine of vicarious liability, and she therefore can hold Defendant vicariously liable for the
actions of the School Board Defendants. For support, Plaintiff cites Florida Statutes § 768.28,
which, like the FTCA, provides a general waiver of Florida’s sovereign immunity for tort claims.
However, Florida Statutes § 768.28 does not provide a cause of action that permits Plaintiff to sue

Defendant for failing to fulfill his official duties by negligently processing Plaintiff’s OCR
complaints. Plaintiff’s reliance on the doctrine of vicarious liability is also misplaced. Defendant
is not the employer of the School Board Defendants. Even assuming a waiver of sovereign
immunity, there is no basis for holding Defendant liable for the torts of the School Board
Defendants. Further, Plaintiff has failed to show Florida law waives Defendant’s liability for the
torts of his subordinates, or that Florida law permits holding Defendant vicariously liable for such
conduct in the first place. The Court thus agrees with Defendant that Plaintiff fails to identify a
Florida tort providing a cause of action under the FTCA, and Plaintiff therefore fails to show this
Court would have subject matter jurisdiction over his claim. For the reasons discussed below,
however, whether such a claim exists under Florida or D.C. law is less clear.

Plaintiff seeks to hold Defendant liable for neglect of his official duties as Secretary of the
Department of Education. For support, Plaintiff points to Defendant’s obligations under Title IX.
As discussed, Plaintiff has failed to show Defendant has violated any federal duties. Title IX and
its implementing regulations do not impose a deadline for rendering an administrative decision. 34
C.F.R. § 100.7(c). Moreover, “the fact that a federal employee has failed to perform duties imposed
by federal law is insufficient by itself to render the federal government liable under the FTCA.”
Zelaya, 781 F.3d at 1324 (citing Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th
Cir. 2004)). “[T]he negligent performance of duties set out in federal statutes and regulations may
shore up a claim under the FTCA, ‘but only if there are analogous duties under local tort law.’” Id.
(quoting Art Metal–U.S.A., Inc. v. United States, 753 F.2d 1151, 1158 (D.C. Cir. 1985)). As
discussed, Plaintiff has failed to identify any such analogous duties under Florida tort law. For its
part, Defendant contends no such duties exist. But whether that is the case presents a complicated
inquiry that the Parties have not addressed in their briefing.

As noted, Plaintiff seeks to hold a federal officer liable in tort for failing to fulfill his
statutory and regulatory duties. As the Eleventh Circuit observed in Zelaya, “[d]ifficulties arise,
however, when the activities at issue are ‘uniquely governmental functions’ with unique duties
that suggest no obvious analogue among private actors.” Id. at 1324 (quoting Indian Towing Co.
v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 100 L.Ed. 48 (1955)). “Notwithstanding these
conceptual difficulties, the Supreme Court long ago made clear that there is no exception from
FTCA liability solely because the particular tort arose from the performance of uniquely
governmental functions.” Id. (citing Indian Towing, 350 U.S. at 64, 76 S.Ct. 122). Defendant is
accordingly incorrect that the Court may dismiss Plaintiff’s claim with prejudice after simply
assuring itself “[t]here is certainly no Florida tort for negligent processing of an OCR complaint.”

ECF No. [22] at 12. The Eleventh Circuit instead instructs that “in cases where the plaintiff points
to the violation of a federal statutory or regulatory duty, we generally look to the applicable state’s
Good Samaritan doctrine to decide if the plaintiff has alleged a state tort claim that satisfies the §
1346(b)(1) requirement and thereby opens the door for a claim under the FTCA.” Zelaya, 781 F.3d
at 1325 (citing Sellfors v. United States, 697 F.2d 1362 (11th Cir. 1983); Howell v. United States,
932 F.2d 915 (11th Cir. 1991); Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081 (11th Cir.
2004)).
The plaintiffs in Zelaya argued the Securities and Exchange Commission (“SEC”)
breached the duty of care it owed investors by violating its federal statutory duties. Id. at 1325.
Like Plaintiff, however, their complaint “alleged only the tort of negligence,” without identifying
a specific Florida tort claim “and in apparent ignorance of the fact that identifying an analogous
state tort cause of action is required for an FTCA cause of action.” Id. The Eleventh Circuit noted
the plaintiff’s reliance on federal duties was insufficient and proceeded to analyze whether “the

laws of Texas (where the alleged investigative failures occurred) or the District of Columbia
(where the SEC is headquartered)” recognize such a claim. Id. The court found “neither Texas nor
the District of Columbia requires a person to act to prevent harm to others, absent some special
relationship[,]” and that “[i]t therefore seems questionable whether Plaintiffs could show, for either
Texas or the District of Columbia, the existence of a tort cause of action against a private person
under the circumstances alleged[.]” Id. at 1326 (citations omitted). The court declined to “decide
the case on this ground, however because neither party has briefed the matter.” Id. The same is
true here. As noted, the Parties do not analyze Florida or D.C. tort law to determine whether a
cause of action exists against Defendant. Defendant assumes no such duty exists, while Plaintiff
assumes a cause of action exists under the doctrine of vicarious liability.

Accordingly, while it may be unlikely Plaintiff can assert a cause of action in tort that both
provides a waiver of sovereign immunity and a private cause of action against Defendant for
money damages, Defendant has failed to show no cause of action exists. The Court therefore
declines to dismiss Plaintiff’s claim with prejudice.9 As the above analysis makes clear, however,

9 The Court similarly declines to dismiss Plaintiff’s claim with prejudice based on Defendant’s
arguments that Defendant would be an improper party-Defendant because the United States would likely
be substituted for Defendant, and because the FTCA’s discretionary function exception likely applies. See
ECF No. [22] at 9 fn. 3-4 (citing 28 U.S.C. § 2679(a); Matsushita Elec. Co. v. Zeigler, 158 F.3d 1167, 1169
(11th Cir. 1998); Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000)). Although those are certainly
plausible outcomes, such determinations are premature unless and until Plaintiff demonstrates the FTCA
confers subject-matter jurisdiction because either Florida or D.C. tort law provides a cause of action for
Plaintiff’s claim against Defendant. See Lawrence v. Dunbar, 919 F.2d 1525, 1528 n.4 (11th Cir. 1990)
(“The scope of federal liability, of concern only after the fact of consent to be sued, and therefore
jurisdiction, is established, is set forth at 28 U.S.C. § 2674.) (emphasis in original).
Case No. 23-cv-24336-BLOOM/Torres

asserting a viable tort claim against Defendant over which this Court has jurisdiction requires
showing (1) compliance with the FTCA’s exhaustion requirements, (2) identifying a specific
waiver of sovereign immunity with respect to a tort claim under Florida or D.C. law; (3) identifying
a duty Defendant owed Plaintiff under either Florida or D.C. tort law, and (3) demonstrating
Defendant is liable for money damages because Defendant breached a duty he owed Plaintiff. If
Plaintiff fails to meet any of those requirements, she fails to state a claim under the FTCA, fails to
show subject matter jurisdiction exists, or both. Any such claim would be frivolous and properly
subject to dismissal with prejudice.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Government’s Motion to Dismiss, ECF No. [22], is GRANTED.
2. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE.
3. The Court Clerk is directed to CLOSE this case.
4. To the extent not otherwise disposed of, any scheduled hearings are CANCELED,
all pending motions are DENIED AS MOOT, and all deadlines are
TERMINATED.
DONE AND ORDERED in Chambers at Miami, Florida, on May 20, 2024.

BETHBLOOM ———“‘“COCS
UNITED STATES DISTRICT JUDGE
ce: Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10123302. Public record. Not legal advice.