CANCEL v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Filing 7

MEMORANDUM AND OPINION. Signed by Judge Loren L. AliKhan on 1/7/2025. (zmtm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSE L. CANALES CANCEL,
Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Defendant.

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Civil Action No. 24-2695 (UNA)

MEMORANDUM OPINION
Plaintiff initiated this matter on July 20, 2024, by filing a pro se complaint, ECF No. 1, and
an application for leave to proceed in forma pauperis (“IFP”), ECF No. 2. On October 24, 2024,
the court reviewed the complaint and found that Plaintiff’s vague allegations that Defendant U.S.
Department of Health and Human Services (“HHS”) engaged in misrepresentation, discrimination,
abuse of power, and disparagement and behaved as “professional gas lighters” failed to provide
adequate notice of a claim pursuant the Federal Rules of Civil Procedure. See ECF No. 5, at 2
(quoting ECF No. 1, at 4). Accordingly, the court entered an order granting Plaintiff’s IFP
application and directing him to file, within thirty days, an amended complaint that complied with
Federal Rules of Civil Procedure 8(a), 8(d), and 10(b) and Local Civil Rules 5.1(c) and 5.1(e). See
id. at 2-3.
In response to the court’s order, on November 18, 2024, Plaintiff filed an amended
complaint, ECF No. 6, which is now before the court. Upon review of the amended complaint,
and for the reasons explained below, the court will dismiss this matter without prejudice. See Fed.
R. Civ. P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(ii).

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Like its precursor, the amended complaint is not a model of clarity, covering a variety of
topics, ranging from 1997 to date, see generally ECF No. 6, and the paragraphs are not “limited as
far as practicable to a single set of circumstances,” Fed. R. Civ. P. 10(b). Plaintiff alleges that
HHS “gaslighted” him, abused its power, discriminated against him, and intentionally
misrepresented itself in connection with an administrative complaint he filed with HHS’s Office
for Civil Rights. See ECF No. 6, at 4, 6-10. More specifically, Plaintiff explains that he filed an
HHS complaint alleging that a medical group and its providers had denied him services in violation
of his civil rights and ultimately caused him to lose his disability benefits. See id. at 4-6. HHS
then closed his case without an investigation, which Plaintiff alleges caused him emotional distress
tantamount to torture and entitles him to $250,000 in damages. See id. at 1-4, 6-11.
Simply put, Plaintiff’s claims cannot survive. First, sovereign immunity bars suits against
the United States, its agencies, and its officials, except upon consent, which must be clear and
unequivocal. See United States v. Mitchell, 445 U.S. 535, 538 (1980); Clark v. Library of
Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). A waiver of sovereign immunity “must be
unequivocally expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S. 187,
192 (1996) (citations omitted). Here, Plaintiff has neither pleaded nor established that HHS has
expressly consented to be sued for damages. Additionally, as relevant here, there is no waiver of
sovereign immunity for constitutional claims, see FDIC v. Meyer, 510 U.S. 471, 477-78 (1994),
for any alleged “act or omission” of a federal employee “based upon the . . . performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused,” 28 U.S.C.
§ 2680(a); see Auleta v. United States, 80 F. Supp. 3d 198, 203 (D.D.C. 2015), or for alleged

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intentional torts, 28 U.S.C. § 2680(h); see Williams v. Wilkie, 320 F. Supp. 3d 191, 198
(D.D.C. 2018).
Second, at bottom, Plaintiff is challenging an agency decision; which is more properly
understood as a challenge brought under the Administrative Procedure Act (“APA”). See 5 U.S.C.
§ 702 (providing APA review to a “person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute”).
However, the APA waives sovereign immunity only for claims “where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah
Wilderness All., 542 U.S. 55, 64 (2004). An agency’s decision to close a complaint, like HHS’s
decision here, is an “‘agency action [that] is committed to agency discretion by law,’” and is thus
“explicitly excepted from APA review.” Payne v. Becerra, No. 22-00869, 2023 WL 3376630,
at *5 (D.D.C. May 11, 2023) (alterations in original) (quoting 5 U.S.C. § 701(a)(2), aff’d, No. 235131, 2024 WL 409404 (D.C. Cir. Feb. 1, 2024) (per curiam). In any event, monetary relief is not
available under the APA. See 5 U.S.C. § 702; Cohen v. United States, 650 F.3d 717, 723 (D.C.
Cir. 2011) (en banc) (“[T]here is no doubt Congress lifted the bar of sovereign immunity in actions
not seeking money damages.”).
For these reasons, this matter will dismissed without prejudice and Plaintiff’s motion for
appointment of counsel, ECF No. 3, will be denied as moot. A separate order accompanies this
memorandum opinion.

LOREN L. ALIKHAN
United States District Judge
Date: January 7, 2025
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