United States District Court, District of Columbia
MAGNUS N. OGUGUA, Plaintiff,
NOT-FOR-PROFIT HOSPITAL CORP., Defendant.
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE
Magnus Ogugua alleges that his employer, Defendant
Not-For-Profit Hospital Corporation, violated the
anti-retaliation protections of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 218c, when it first
suspended and then fired him for complaining about the lack
of healthcare benefits. Pl.'s Am. Compl., ECF No. 6. In
response to Plaintiff's Amended Complaint, Defendant
filed a Motion to Dismiss. See Def.'s Mot. to
Dismiss, ECF No. 7 [hereinafter Def.'s Mot.]. Defendant
makes two arguments why the court should dismiss this action
for lack of subject matter jurisdiction: (1) Plaintiff failed
to serve Defendant with timely notice of his claim, as
required by D.C. Code § 44-951.14(d); and (2) Defendant
has not waived its sovereign immunity from suit. Def.'s
Mot., Def.'s Mem. in Supp., ECF No. 7-2 [hereinafter
Def.'s Mem.]; Def.'s Mem. in Reply, ECF No. 10
[hereinafter Def.'s Reply].
court rejects Defendant's first contention for the
reasons set forth in its recent decision, Akinsinde v.
Not-For-Profit Hospital Corp., No. 16-cv-00437, 2016 WL
6537931 (D.D.C. Nov. 3, 2016). In Akinsinde, this
court held that Section 44-951.14(d) does not operate as a
conditional waiver of sovereign immunity; it is purely a
notice provision. Id. at *3-4. Failure to satisfy
the notice requirement-if notice of the claim is
required-would compel dismissal, see Tucci v. District of
Columbia, 956 A.2d 684, 694 (D.C. 2008), but not because
the court lacks subject matter jurisdiction, see
Akinsinde, 2016 WL 6537931, at *3-4; contra
Def.'s Mem. at 2-5. Here, as in Akinsinde,
Plaintiff did not need to satisfy Section 44-951.14(d)'s
notice requirement because he brings only a federal cause of
action. See Akinsinde, 2016 WL 6537931, at *5;
cf. Brown v. United States, 742 F.2d 1498, 1509-10
(D.C. Cir. 1984) (en banc); Jaiyeola v. District of
Columbia, 40 A.3d 356, 370 & n.65 (D.C. 2012). Thus,
Defendant's first contention is without merit.
Defendant argues that it is immune from suit absent a waiver
of its sovereign immunity, and it has not consented to be
sued for violations of the FLSA. See Def.'s
Reply at 3 (citing and discussing Alden v. Maine,
527 U.S. 706, 712 (1999); Alabama v. Pugh, 438 U.S.
781, 781-82 (1978) (per curiam)). It is true that, “in
the absence of a statutory provision providing otherwise,
bodies within the District of Columbia government are not
suable as separate entities.” Hinton v. Metro.
Police Dep't, 726 F.Supp. 875, 875 (D.D.C. 1989);
accord Art & Drama Therapy Inst., Inc. v. District of
Columbia, 110 F.Supp.3d 162, 170 (D.D.C 2015)
(collecting cases showing “almost uniform agreement on
this point”). However, where there exists a statutory
provision waiving sovereign immunity, governmental entities
within the District of Columbia may be subject to suit.
Defendant is “an instrumentality of the District
government” to which this rule applies. D.C. Code
§ 44-951.02; cf. UMC Dev., LLC v. District of
Columbia, 982 F.Supp.2d 13, 18 (D.D.C. 2013).
the court concludes that Defendant waived its sovereign
immunity to suit under the FLSA. The legislative act that
created Defendant provides that Defendant “ha[s] the
power to . . . sue and be sued in its corporate name.”
Fiscal Year 2012 Budget Support Act of 2011, 19th Council
Sess. § 5117 (D.C. 2011) (codified at D.C. Code §
44-951.06). This language establishes a presumption in favor
of finding a full and complete waiver of sovereign immunity.
FDIC v. Meyer, 510 U.S. 471, 475, 481 (1994)
(stating that, absent a showing to the contrary, agencies
“authorized to ‘sue and be sued' are presumed
to have fully waived immunity” (internal quotation
marks omitted)); cf. Wood ex rel. United States v. Am.
Inst. of Taiwan, 286 F.3d 526, 533 (D.C. Cir. 2002)
(distinguishing Meyer-“[which held] that a
sue-and-be-sued clause represents a ‘broad waiver'
of sovereign immunity” in the context of the clause
appearing in the government entity's organic act-from the
case before it, in which the language did not appear in the
organic act); Galvan v. Federal Prison Indus., 199
F.3d 461, 464-67 (D.C. Cir. 1999). Defendant does not
identify or otherwise acknowledge this statutory provision,
let alone attempt to rebut the presumption in favor of
finding a waiver of sovereign immunity. See Meyer,
510 U.S. at 481 & n.8; Conn v. Am. Nat'l Red
Cross, 168 F.Supp.3d 90, 96 (D.D.C. 2016) (“In
this case, as in any where a sue-and-be-sued entity seeks to
avoid some aspect of liability or judicial process, it is the
[entity's] burden to overcome the presumption of a
complete waiver of immunity.” (citation omitted)).
Thus, Defendant's second argument also fails.
light of the foregoing, the court finds no defect in its
subject matter jurisdiction over Plaintiffs federal claim.
Accordingly, the court denies Defendant's Motion to
 The Patient Protection and Affordable
Care Act, enacted in 2010, amended the FLSA to protect
employees against various forms of employer retaliation.
See Pub. L. No. 111-148, § 1558, 124 Stat. 119,
261 (2010) (codified at 29 U.S.C. § 218c). The
anti-retaliation provision of the FLSA pertinent to this case
No employer shall discharge or in any manner
discriminate against any employee with respect to his or her
compensation, terms, conditions, or other privileges of
employment because the employee . . . has . . . objected to,
or refused to participate in, any activity, policy, practice,
or assigned task that the employee (or other such person)
reasonably believed to be in violation of any provision of
this title (or amendment), or any order, rule, regulation,
standard, or ban under this title (or amendment).
29 U.S.C. § 218c(a)(5).