United States District Court, District of Columbia
AMY BERMAN JACKSON United States District Judge
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.
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 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.
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).
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 ...