Bai v. Sherwin

• Court: District Court, District of Columbia
• Decided: January 13, 2022
• Docket: Civil Action No. 2021-0390
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JIEMIN BAI ) ) Plaintiff, ) ) v. ) Civil Action No. 21-cv-390 (TSC) ) ) MATTHEW M. GRAVES, United States ) Attorney of the District of Columbia, et al., ) ) Defendants. ) )

ORDER

On January 30, 2019, Plaintiff Jiemen Bai participated in a protest near the White House

during a diplomatic visit by representatives of the People’s Republic of China. After an altercation

during the protests, United States Secret Service officers arrested Bai, who was later charged and

acquitted of two criminal offenses arising out of the altercation. See U.S. v. Bai, No. 19-cr-34,

ECF No. 66 at 1 (D.D.C. Dec. 13, 2019). Bai has sued the Acting U.S. Attorney for the District

of Columbia in his official capacity, and now-former U.S. Attorney Liu in her official and personal

capacities, claiming 42 U.S.C. §§ 1981 and 1983 violations, Administrative Procedure Act

(“APA”) violations, and tort injuries. Compl. ¶¶ 32, 38, 42, 49, ECF No. 1 (“Compl.”).

Defendants have moved to dismiss, claiming the court lacks the jurisdiction to hear Bai’s claims

under Federal Rule of Civil Procedure 12(b)(1), and that Bai has failed to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. at 2-3, ECF No. 6. Because the court lacks

the jurisdiction to hear Bai’s tort claims, and Bai has failed to sufficiently plead his civil rights and

APA claims, Defendants’ Motion to Dismiss will be GRANTED.

Page 1 of 4 Bai alleges five tort claims: false arrest, false imprisonment, malicious prosecution, battery,

and assault. The court lacks jurisdiction to hear any of them. The Federal Tort Claims Act

(“FTCA”) is the exclusive remedy for tort actions against federal agencies and their officers. See

28 U.S.C. § 2679. The FTCA is a limited remedy--a federal court only acquires jurisdiction over

a claim after a plaintiff has exhausted all available administrative remedies. See 28 U.S.C. § 2675;

see also Smith v. Clinton, 886 F.3d 122, 127 (D.C. Cir. 2018) (holding that plaintiff’s failure to

exhaust administrative remedies deprived the district court of subject matter jurisdiction). Bai has

not alleged that he has exhausted his administrative remedies and Defendants submit they have

not received any such filing. See Defs.’ Mot., Jenkins Decl. at 1, ECF No. 6-2. While courts

construe complaints liberally and grant plaintiffs “the benefit of inferences that can be derived

from the facts alleged,” Bai has failed to proffer any evidence that would allow this court to infer

that he exhausted or even attempted to exhaust his administrative remedies. Consequently, the

court lacks jurisdiction to hear his tort claims.

A complaint must contain “sufficient factual matter” that, when accepted as true, states a

plausible claim to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Bai has alleged no facts to support his civil rights claims or

his APA claim.

As a threshold matter, Bai’s 42 U.S.C. § 1981 claim fails because § 1981 prohibits

discrimination in the making and enforcing of contracts, and Bai has not alleged any contractual

arrangement. More broadly, Bai’s invocation of § 1981 and § 1983 is inherently faulty. While

these statutes are federal remedies, they only apply to persons acting under color of “any State or

Territory, or . . . District of Columbia” law; they do not apply to federal officials exercising federal

authority. See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005)

(“Section 1983 does not apply to federal officials acting under color of federal law); Marcus v. Page 2 of 4 Geithner, 813 F. Supp. 2d 11, 19 (D.D.C. 2011) (42 U.S.C. § 1981 “does not apply to actions taken

under color of federal law”) (emphasis in original) (citation omitted). United States Attorneys are

federal officers. See 28 U.S.C. § 541 et seq. Plaintiff has alleged his civil rights violations stem

from Defendants’ “usurping and abusing the Federal justice system” by choosing to prosecute him.

Compl. ¶ 33. In the absence of any facts showing that Defendants—federal actors—were acting

under color of state law, Bai’s 42 U.S.C. § 1981 and § 1983 claims must fail.

Bai’s claim that the Defendants’ “outrageous behavior in pursuing [his] . . . vindictive and

frivolous prosecution” violated the APA similarly falls short. Compl. ¶ 53. As the Supreme Court

has explained, federal prosecutorial decisions are afforded a “presumption of regularity,” absent

any clear evidence to the contrary or violation of constitutional constraints. U.S. v. Armstrong,

517 U.S. 456, 464 (1996). Beyond characterizing his prosecution as “outrageous,” “vindictive,”

and “frivolous,” Bai has presented no evidence that Defendants’ prosecution of him was illegal,

irregular, or violated the Constitution. Absent such evidence, the court cannot sustain Bai’s APA

claims.

Finally, in his opposition to Defendants’ Motion to Dismiss, Bai attempts to re-plead his

tort claims as First Amendment violations of the Bivens Doctrine. Pl.’s Opp’n at 3–5, ECF No.

11; see also Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

As Defendants correctly observe, however, “a plaintiff cannot amend its complaint by briefs in

opposition to a motion to dismiss.” See Kingman Park Civic Ass’n v. Gray, 27 F. Supp. 3d 142,

165 n.10 (D.D.C. 2014). Bai’s Complaint made no reference to a Bivens claim, and his three

invocations of the First Amendment were in support of his tort claims. While Plaintiff is free to

amend his complaint, he cannot do so via opposition to a Motion to Dismiss.

Page 3 of 4 For these reasons, Defendant’s Motion to DISMISS is GRANTED.

Date: January 13, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 4 of 4