Millen v. United States Attorney's Office for the District of Columbia

• Court: District Court, District of Columbia
• Decided: July 2, 2009
• Docket: Civil Action No. 2009-0553
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEVIN MILLEN, : : Plaintiff, : : v. : Civil Action No. 08-0113 (EGS) : UNITED STATES ATTORNEY’S : OFFICE FOR THE DISTRICT OF : COLUMBIA, : : Defendant. :

MEMORANDUM OPINION

Plaintiff, proceeding in forma pauperis, filed a pro se complaint against the defendant.

The defendant has filed a motion to dismiss, and the plaintiff has filed his responses. Because

the defendant is immune from a suit such as this one, the complaint will be dismissed for lack of

subject matter jurisdiction.

The plaintiff filed a civil action against the defendant on January 16, 2009 in Superior

Court for the District of Columbia. The defendant, as a federal defendant, removed the

complaint to this court. The complaint asserts a claim for defamation. In its entirety, the

complaint alleges that “[t] attorney office has the exact paperwork and they put malicious lies in

the papers about me (Kevin Mullen). These people could have stopped the paper but allowed

them to write these vicious lies.” Compl. at 1. As damages, the plaintiff $10 million “plus 9,000

a month for 10,000 months.”1 Id. Among the exhibits appended to the complaint is a copy of an

Associate Press story dated November 11, 1998, stating that the plaintiff, “who played

1 Ten thousand months is 833 years and 4 months. [basketball] for Georgetown from 1991 to 1995, was arraigned . . . following his arrest on

charges of unlawful entry . . . said . . . a spokesman for the U.S. Attorney’s Office for the District

of Columbia.” Compl. Ex.

The defendant has moved to dismiss the complaint on multiple grounds, including that

the federal defendant is immune from this suit. See Def.’s Mem. in Support of Def.’s Mot. to

Dismiss (“Def.’s Mem.”) at 3-5. The plaintiff has filed two “motions to strike,” each of which

will be considered here as a response to the defendant’s motion. See Pl.’s Motion to Strike, May

29, 2009;2 June 16, 2009.

It is well-settled that, as sovereign, the federal government is subject to suit only insofar

as it has consented to suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver,

sovereign immunity shields the Federal Government and its agencies from suit.”). With certain

exceptions, the federal government has consented to suit under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2671 – 2680, for acts or omissions that would

constitute torts at common law. 28 U.S.C. § 2674. One of those exceptions, however, is for

defamation suits against federal prosecutors. See 28 U.S.C. § 2680(h) (excepting defamation

from the provisions of the Federal Tort Claims Act). While the FTCA’s exception for

defamation does not shield “investigative or law enforcement officers of the United States

Government” from a defamation suit, a federal prosecutor performing duties as spokesman for

the U.S. Attorney’s Office in reporting an arraignment to the press is acting in his role as

prosecutor, not as an investigative or law enforcement officer for purposes of the FTCA. Moore

2 As a motion to strike, this motion was denied. However, the substance of the submission was taken into consideration in reaching this decision.

-2- v. United States, 213 F.3d 705, 710 (D.C. Cir. 2000) (determining that the federal prosecutor was

“not an investigative or law enforcement officer” for purposes of § 2680(h)); see Trupei v.

United States, 304 Fed. Appx. 776, 784 (11th Cir. 2008) (affirming district court’s determination

that prosecutors were not “investigative or law enforcement officers” within the meaning of the

§ 2680(h)); Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (stating that “the FTCA

does not authorize suits for intentional torts based upon the actions of Government prosecutors”).

Therefore, the defendant in this action is immune from a damages action for the claim asserted,

and the complaint will be dismissed for lack of subject matter jurisdiction.

A separate order accompanies this memorandum opinion.

/s/ EMMET G. SULLIVAN Date: July 2, 2009 United States District Judge

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