UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EMILIO FUSCO,

Plaintiff, v. Civil Action No. 20-864 (JEB) THE UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

Plaintiff Emilio Fusco, currently serving a 25-year sentence on racketeering and extortion

charges, brought this pro se action to complain that his extradition and incarceration violated the

U.S.-Italy Bilateral Extradition Treaty and thus warrant $5 million in damages. The Government

now moves to dismiss, arguing that sovereign immunity deprives the Court of jurisdiction and

that, on the merits, Fusco’s claim is barred by the statute of limitations and by the doctrine of res

judicata. Agreeing on all points, the Court will grant the Motion.

I. Background

On this Motion to Dismiss, the Court views the facts pled in the Complaint as true, except

where citing public records. Emilio Fusco is a dual citizen of Italy and the United States. See

ECF No. 1 (Compl.), ¶ 1. On July 29, 2010, he was arrested in the former country and then

extradited here to face a five-count indictment on racketeering and conspiracy charges. Id.,

¶¶ 4–8. On October 11, 2012, Plaintiff was convicted in the Southern District of New York of

racketeering conspiracy (

(d)), extortion conspiracy (

), and

interstate travel in aid of racketeering (

), while obtaining acquittals on two other

counts. See United States v. Fusco,

, 44–45 (2d Cir. 2014). A racketeering

1 conviction under the Racketeer Influenced and Corrupt Organizations (RICO) Act requires proof

of the existence of a “pattern of racketeering activity” involving “two or more related predicate

acts of racketeering.” United States v. McGill,

(D.C. Cir. 2016) (citations and

internal quotations omitted); see also

(c). The District Court sentenced Fusco

to 25 years’ imprisonment, relying in part on its finding by a preponderance of the evidence that

he had participated in the predicate acts of conspiracy to murder. Fusco,

.

On appeal to the Second Circuit, Plaintiff claimed that his prosecution and sentencing had

violated the U.S.-Italy Extradition Treaty.

Specifically, he contended that the U.S.

Government’s extradition request had promised that he would be charged with only five counts

(not including homicide) and could be convicted and sentenced only on proof beyond a

reasonable doubt.

Fusco claimed that he was actually “prosecuted and sentenced for the

crime of homicide” based on a lower standard of proof, “in violation of the Extradition Treaty.”

The Second Circuit rejected this argument, noting that “as the indictment and judgment make

clear, Fusco was neither prosecuted nor sentenced for the crime of homicide.”

Rather, he

was sentenced “for the racketeering charge with the murders as predicate acts,” and the lower

court’s “judicial factfinding with respect to the murders did not increase the prescribed 45–year

statutory maximum for the convicted crimes,” meaning that they did not need to be proved

beyond a reasonable doubt.

at 45–46. Shortly after his conviction was affirmed, Plaintiff

filed a motion to vacate, set aside, or correct his sentence. See Fusco v. United States, No. 09-

1239,

, at *1 (S.D.N.Y. Nov. 21, 2018). Although Fusco’s motion raised his

treaty-violation argument, the court mentioned that this had already been rejected by the Second

Circuit, and it thus focused its analysis on Plaintiff’s new, unrelated claims before denying the

motion.

.

2 On March 30, 2020, nearly nine years after his 2011 extradition, Plaintiff brought this

current action against Assistant U.S. Attorney Mark Lanpher, claiming that Lanpher “knew or

should have known at the time” he filed the extradition request that he was understating the

number of charged counts and overstating the minimum burden of proof. See Compl., ¶¶ 8, 11.

Had Italy known this, Fusco believes, it “would not have extradited the Plaintiff to the United

States of America.”

. In responding, the United States substituted itself as Defendant

pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the

Westfall Act), which immunizes government employees sued for actions taken within the scope

of their employment. See Def. MTD at 6; ECF No. 5-2, Exh. A (Westfall Certification) at ECF

p. 24. It simultaneously moved to dismiss, alleging a lack of subject-matter jurisdiction under

Fed. R. Civ. P. 12(b)(1) and a failure to state a claim under Fed. R. Civ. P. 12(b)(6).

II. Legal Standard

Defendant’s Motion invokes the legal standards for dismissal under Rules 12(b)(1) and

12(b)(6). When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must

demonstrate that the court indeed has subject-matter jurisdiction to hear his claims. See Lujan v.

Defenders of Wildlife,

(1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior,

(D.C. Cir. 2000). “Because subject-matter jurisdiction focuses on the court’s

power to hear the plaintiff’s claim, a Rule 12(b)(1) motion [also] imposes on the court an

affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.”

Grand Lodge of Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). For

this reason, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.”

at 13–14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure

3 § 1350 (2d ed. 1987)) (alteration in original). In policing its jurisdictional borders, the court

must scrutinize the complaint, treating its factual allegations as true and granting the plaintiff the

benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome

Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005). The court need not rely

“on the complaint standing alone,” however, but may also look to undisputed facts in the record

or resolve disputed ones. See Herbert v. Nat’l Acad. of Sci.,

(D.C. Cir. 1992).

Rule 12(b)(6), conversely, provides for the dismissal of an action where a complaint

fails to “state a claim upon which relief can be granted.” When the sufficiency of a complaint is

challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and

should be liberally construed in the plaintiff’s favor. Browning v. Clinton,

(D.C. Cir. 2002). Although the notice-pleading rules are “not meant to impose a great burden on

a plaintiff,” Dura Pharms., Inc. v. Broudo,

(2005), and “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v.

Twombly,

(2007), “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,

(2009) (internal quotation marks and citation omitted). The plaintiff must put

forth “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”

Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” Twombly,

(quoting Scheuer v. Rhodes,

(1974)), the facts alleged in the complaint “must be enough to raise a right to

relief above the speculative level.” Id. at 555. In evaluating the sufficiency of a plaintiff’s

complaint under Rule 12(b)(6), the court may consider “the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and matters of which [the court]

4 may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C.

Cir. 1997).

III. Analysis

The gravamen of Fusco’s suit is his allegation that Lanpher’s misstatements violated the

Bilateral Extradition Treaty, which thereby caused his subsequent incarceration and suffering.

Although he seeks $5 million in damages, Plaintiff has not articulated a specific cause of action

for his claim. But “[c]ourts must construe pro se filings liberally,” Richardson v. United States,

(D.C. Cir. 1999), and the Court here will interpret Fusco’s Complaint as

alleging a cause of action under the Federal Tort Claims Act for the intentional tort of

misrepresentation made in the course of the Government’s extradition request. See Compl., ¶ 11.

Assuming that this is indeed his cause of action, the Government argues that the Court

lacks subject-matter jurisdiction both because Plaintiff has not exhausted his administrative

remedies and because the Government has not waived its sovereign immunity. Additionally, it

contends that Fusco fails to state a claim because his suit is untimely and barred by the doctrine

of res judicata. The Court will consider each of these four arguments in turn, although each

separately suffices for dismissal.

A. Subject-Matter Jurisdiction

1. Exhaustion of Administrative Remedies

“[S]uits for damages against the United States under the common law must be brought

pursuant to the limited waiver of sovereign immunity in the FTCA.” Benoit v. U.S. Dept. of

Agric.,

(D.C. Cir. 2010). Sovereign immunity, moreover, “is jurisdictional in

nature.” FDIC v. Meyer,

(1994). In order to obtain a waiver of such

immunity, a plaintiff must, under the FTCA, “have exhausted his administrative remedy before

5 filing suit.” Benoit,

(citations omitted); see also McNeil v. United States,

(1993) (“The FTCA bars claimants from bringing suit in federal court until they

have exhausted their administrative remedies.”); Ali v. Rumsfeld,

(D.C. Cir.

2011) (failure to exhaust administrative remedies in FTCA case jurisdictional).

In order to satisfy the FTCA’s administrative-exhaustion requirements, a plaintiff must

first present his claim in writing to the appropriate federal agency within two years of the claim’s

accrual, see

(b), which in Fusco’s case would have been the Department of

Justice. Plaintiff offers a novel work-around, maintaining that, shortly after his 2012 trial, his

attorney wrote the Italian Ministry of Justice with his complaints, and the Ministry then sent a

letter to the Department of Justice to discuss the allegations. See ECF No. 7 (Pl. Opp.) at 7–8;

ECF No. 7-1, Exh. F (DOJ Response Letter) at 1–2. This letter, however, was neither from

Plaintiff nor did it constitute a written FTCA claim, and “informal complaints or requests to [an

agency] do not suffice” for the purposes of administrative exhaustion. Davis v. United States,

(D.D.C. 2013); see also Grant v. Sec’y, U.S. Dep't of Veterans Affs., No.

03-5260,

, at *1 (D.C. Cir. Feb. 4, 2004) (rejecting appellant’s argument “that

his informal letter of complaint to the Director of the Veterans’ Administration Medical Center

was sufficient to satisfy the FTCA's administrative exhaustion requirement”).

Beyond this deficient contention, Plaintiff does not assert that he ever presented an

administrative claim to the agency, and the Government supplies a sworn declaration stating that

it has never received one from Fusco. See ECF No. 10-1, Exh. 1 (Declaration of Molly A.

Edwards), ¶ 3. His failure to submit an administrative claim under the FTCA thus deprives this

Court of subject-matter jurisdiction. See Davis,

; see also Henderson v.

Ratner, No. 10-5035,

, at *1 (D.C. Cir. June 7, 2010) (affirming dismissal of

6 FTCA claim where “[a]ppellant failed to demonstrate that he exhausted his administrative

remedies before filing suit in the district court”).

2. Sovereign Immunity

Another facet of sovereign immunity independently blocks Plaintiff’s way. It is true that

the “FTCA operates as a limited waiver of sovereign immunity, rendering the United States

amenable to suit for certain tort claims, subject to various exceptions.” Scruggs v. Bureau of

Engraving & Printing,

(D.D.C. 2016). Yet, “[o]ne such exception

preserves sovereign immunity in claims against the government for certain intentional torts,”

including misrepresentation. Id.; see

(h) (sovereign immunity bars “any claim

arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or interference with contract rights”).

Misrepresentation, of course, is precisely the conduct in which Fusco alleges that

Lanpher engaged. As the Government explains: “Plaintiff appears to allege that former AUSA

Lanpher committed the intentional tort of misrepresentation when he allegedly included ‘untrue

statements’ regarding the counts with which Fusco had been charged in an affidavit.” Def. MTD

at 9. It then states that “the United States has not waived sovereign immunity with respect to the

intentional tort of misrepresentation.”

at 9–10. Fusco offers no rebuttal in his papers.

Even if the Court were to liberally construe Plaintiff’s Complaint as also alleging false

imprisonment, false arrest, malicious prosecution, or deceit, he would be out of luck since these

torts still fall under the FTCA’s international-tort exception, and the Government has made clear

that it does not intend to waive sovereign immunity. See Def. MTD at 10 n.8. This

jurisdictional ground also independently requires dismissal of the case.

7 B. Merits

Even if the Court had jurisdiction, which it does not, Fusco would come up short on the

merits for two reasons.

1. Statute of Limitations

Section 2401(b) of the FTCA “provides that a tort claim against the United states ‘shall

be forever barred’ unless it is presented to the ‘appropriate Federal agency within two years after

such claim accrues’ and then brought to federal court ‘within six months’ after the agency acts

on the claim.’” United States v. Kwai Fun Wong,

, 405 (2015) (quoting

(b)). A tort claim accrues “by the time a plaintiff has discovered both his injury and its

cause.” Sexton v. United States,

(D.C. Cir. 1987) (citation and quotation

marks omitted). A court may equitably toll the limitations period, but only if a plaintiff can

demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstances stood in his way.” Pace v. DiGuglielmo,

(2005).

The Government asserts that “Plaintiff’s claim accrued over a decade ago, on September

10, 2010, when the United States’ request for his extradition, supported by an affidavit from

then-AUSA Lanpher was filed with the Italian Ministry of Justice.” Def. MTD at 11. This

seems too early, given that Fusco might not then have known the charges he would ultimately

face. Yet, even if the claim accrued on the date of his conviction in 2012 or perhaps the date the

Second Circuit affirmed the conviction in 2014, he would still be outside the statutory two-year

window by at least five years. To the extent Plaintiff could contend that the fact of conviction

did not mean he had discovered the cause of the injury, he cannot deny that he was aware of it by

the time his attorney wrote the Italian Ministry of Justice with these complaints in September

8 2012. See DOJ Response Letter. Nor has he ever claimed that the statute of limitations should

have been tolled at any point. His suit is thus untimely.

2. Res Judicata

Finally, the Government argues that Plaintiff’s claim is barred by the doctrine of res

judicata. See Def. MTD at 11–13. “Under the doctrine of res judicata, or claim preclusion, a

subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims

or cause of action, (2) between the same parties or their privies, and (3) there has been a final,

valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United States,

(D.C. Cir. 2006).

Whether two suits involve the same claim turns on “whether the facts are related in time,

space, origin, or motivation, whether they form a convenient trial unit, and whether their

treatment as a unit conforms to the parties' expectations or business understanding or usage.”

Apotex, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2004) (internal citations

omitted). “There is an identity of the causes of action when the cases are based on the same

nucleus of facts, because it is the facts surrounding the transaction or occurrence which operate

to constitute the cause of action, not the legal theory upon which a litigant relies.” United States

ex rel. Folliard v. Synnex Corp.,

(D.D.C. 2011) (citations and internal

quotation marks omitted).

The crux of this suit is that the prosecutor violated the Extradition Treaty by stating

falsely in the extradition request that Fusco would not be tried or sentenced for the crime of

homicide. See Compl., ¶¶ 11–13. But in his 2014 appeal of his conviction, Plaintiff raised the

exact same claim, alleging that “his prosecution and sentencing violated the Extradition Treaty

between the Government of the United States and the Government of the Italian Republic.”

9 Fusco,

. In that case, the Second Circuit rejected Fusco’s argument because

he “was neither prosecuted nor sentenced for the crime of homicide,” and thus his “prosecution

and sentencing did not violate the Extradition Treaty.”

This case, as a result, involves the

same claim between the same parties after there has already been a valid, final judgment on the

merits made by a court of competent jurisdiction. Smalls,

. Fusco’s claim is

accordingly also barred by the doctrine of res judicata.

IV. Conclusion

For the foregoing reasons the Court will grant Defendant’s Motion to Dismiss. A

separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: March 19, 2021

10