UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEAN P. GASKIN, et al.,

Plaintiffs, Civ. Action No. 15-33 (EGS) v.

STEPHEN M. MAY, et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiffs Sean P. Gaskin (“Mr. Gaskin”); John W.

Scantlebury (“Mr. Scantlebury”); and Frederick C. Hawkesworth

(“Mr. Hawkesworth”) 1 (collectively, “Plaintiffs”) bring this

action to recover damages and obtain declaratory and injunctive

relief related to their incarceration in Barbados following an

extradition request and provisional arrest warrants in United

States v. Hawkesworth, No. 1:04-0285-EGS (D.D.C.). See Second

Supplemented Compl. & Demand for Jury Trial (“Complaint” or

“SAC”), ECF No. 47 ¶¶ 1, 81-121. 2 Plaintiffs sue the United

States as well as the following individuals in their individual

1 Mr. Hawkesworth died during this litigation. See Notice of Death of Frederick C. Hawkesworth, ECF No. 15. His wife is now representative of his estate. See SAC, ECF No. 47 ¶ 4. 2 When citing electronic filings throughout this Opinion, the

Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 capacity: Stephen M. May (“Mr. May”); Gordon Patten, Jr. (“Mr.

Patten”); Jodi L. Avergun (“Ms. Avergun”); Kenneth A. Blanco

(“Mr. Blanco”); Paul M. O’Brien (“Mr. O’Brien”); Arthur Wyatt

(“Mr. Wyatt”); Christopher A. Wray (“Mr. Wray”); Alice S. Fisher

(“Ms. Fisher”); Lanny A. Breuer (“Mr. Breuer”); John D. Ashcroft

(“Mr. Ashcroft”); Alberto Gonzales (“Mr. Gonzales”); Michael B.

Mukasey (“Mr. Mukasey”); Eric H. Holder, Jr. (“Mr. Holder”); and

John Does 1-20 3 (collectively, “Individual Defendants”). Id. ¶¶

5-11.

Pending before the Court is Defendants’ Motion to Dismiss,

see Mot. Dismiss (“Defs.’ Mot.”), ECF No. 49. Upon careful

consideration of the motion, opposition, and reply thereto, the

applicable law, and the entire record herein, the Court hereby

GRANTS Defendants’ Motion to Dismiss, ECF No. 49.

II. Background

A. Factual

Mr. Gaskin, Mr. Scantlebury, and Mr. Hawkesworth were

arrested in Barbados in May 2004 based on a criminal complaint.

See SAC, ECF No. 47 ¶ 46. Later, on June 17, 2004, a federal

grand jury for the District of Columbia returned an indictment

against Plaintiffs and two other individuals on two counts of

3 The John Doe Defendants are “other federal officials or entities whose actions or inaction injured Plaintiffs under U.S. or Barbadian law, including the common law.” SAC, ECF No. 47 ¶ 10. 2 trafficking and distribution of cocaine. Id. ¶ 42. The United

States sought Plaintiffs’ extradition from Barbados. Id. ¶ 46.

Plaintiffs challenged extradition and were released on bail in

the meantime. See id. On June 9, 2011, authorities in Barbados

remanded Plaintiffs to prison while awaiting extradition. Id. ¶

60. Upon motion by the United States, the Court dismissed the

indictment on January 9, 2014. Id. ¶ 66. Plaintiffs were

released from custody in Barbados that same day. Id.

B. Procedural

Defendants filed this Motion to Dismiss on November 9,

2020. See Defs.’ Mot., ECF No. 49. On January 11, 2021,

Plaintiffs filed a brief in opposition, see Mem. Law Supp. Pls.’

Opp’n Def.’s Mot. Dismiss (“Pls.’ Opp’n”), ECF No. 50; and

Defendants replied on March 31, 2021, see Reply Supp. Defs.’

Mot. Dismiss (“Defs.’ Reply”), ECF No. 52. The motion is now

ripe and ready for adjudication.

III. Legal Standard

A. Rule 12(b)(1) Motion to Dismiss

“A federal district court may only hear a claim over which

[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover,

(D.D.C. 2017) (quoting Metro. Wash. Chapter v. District of

Columbia,

(D.D.C. 2014)). To survive a Rule

3 12(b)(1) motion, the plaintiff bears the burden of establishing

that the court has jurisdiction by a preponderance of the

evidence. Lujan v. Defenders of Wildlife,

(1992). Because Rule 12(b)(1) concerns a court’s ability to hear

a particular claim, “the court must scrutinize the plaintiff’s

allegations more closely when considering a motion to dismiss

pursuant to Rule 12(b)(1) than it would under a motion to

dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol

Police Bd.,

(D.D.C. 2011) (citations

omitted). In so doing, the court must accept as true all of the

factual allegations in the complaint and draw all reasonable

inferences in favor of the plaintiff, but the court need not

“accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Rann v. Chao,

(D.D.C. 2001). The Court may also

consider “undisputed facts evidenced in the record” as well as

its own “resolution of disputed facts.” Herbert v. Nat’l Acad.

Of Scis.,

(D.C. Cir. 1992).

Faced with motions to dismiss under Rule 12(b)(1) and Rule

12(b)(6), a court should first consider the Rule 12(b)(1) motion

because “[o]nce a court determines that it lacks subject matter

jurisdiction, it can proceed no further.” Ctr. for Biological

Diversity v. Jackson,

(D.D.C. 2011)

(citations and internal quotation marks omitted).

4 B. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

(2007) (citation and internal quotation marks

omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, 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)

(citation and internal quotation marks omitted). “In determining

whether a complaint fails to state a claim, [the Court] may

consider only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters

of which [the Court] may take judicial notice.” E.E.O.C. v. St.

Francis Xavier Parochial Sch.,

(D.C. Cir.

1997). A claim is facially plausible when the facts pled in the

complaint allow the court to “draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal,

. The standard does not amount to a “probability

5 requirement,” but it does require more than a “sheer possibility

that a defendant has acted unlawfully.”

“[W]hen ruling on a defendant’s motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

D.C. Off. of the Mayor,

(D.C. Cir. 2009)

(citation and internal quotation marks omitted). In addition,

the court must give the plaintiff the “benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI

Commc’ns Corp.,

(D.C. Cir. 1994).

IV. Analysis

A. The Court Will Substitute the United States in Place of the Defendants Sued in Their Individual Capacities for the Common-Law Tort Claims

The Federal Employees Liability Reform and Tort

Compensation Act of 1988,

(“Westfall Act”),

“accords federal employees absolute immunity from common-law

tort claims arising out of acts they undertake in the course of

their official duties.” Osborn v. Haley,

(2007). Pursuant to this statute, the Attorney General may

certify “that the defendant employee was acting within the scope

of his office or employment at the time of the incident out of

which the claim arose.”

(d)(1). This

certification triggers immunity for the defendant employee,

Phillips v. Spencer,

(D.D.C. 2019); and

6 substitution of the United States for that employee as the

party-defendant, see Wuterich v. Murtha,

(D.C.

Cir. 2009).

Here, Plaintiffs allege several common-law tort claims

against various Defendants in their individual capacity. See

SAC, ECF No. 47 ¶¶ 81-120. Defendants have submitted with their

Motion to Dismiss a Certification from Daniel F. Van Horn, Chief

of the Civil Division in the Office of the U.S. Attorney for the

District of Columbia, 4 stating that Mr. May, Mr. Patten, Ms.

Avergun, Mr. Blanco, Mr. O’Brien, Mr. Wyatt, Mr. Wray, Ms.

Fisher, Mr. Breuer, Mr. Ashcroft, Mr. Gonzales, Mr. Mukasey, and

Mr. Holder were acting within the scope of their employment at

the time of the relevant events. See Certification from Daniel

F. Van Horn, ECF No. 49-2 at 1. This certification is “prima

facie evidence that the employee[s] w[ere] acting within the

scope of [their] employment.” Council on Am. Islamic Rels. v.

Ballenger,

(D.C. Cir. 2006). Because

Plaintiffs do not challenge whether the individual Defendants

were acting within the scope of their employment, see generally

Pls.’ Opp’n, ECF No. 50; the Court substitutes the United States

4 The Attorney General may make this certification through a delegate. See Jacobs v. Vrobel,

(D.C. Cir. 2013). 7 as defendant for the common-law tort claims, see

(d)(1).

B. The Court Does Not Have Subject Matter Jurisdiction Over Plaintiffs’ Common-Law Tort Claims

Defendants move to dismiss Counts IV, V, VI, VII, and VIII

of the Complaint for lack of subject matter jurisdiction. Defs.’

Mot., ECF No. 49 at 16-22; Defs.’ Reply, ECF No. 52 at 9-18.

Specifically, they argue that the FTCA governs this case and

that the FTCA’s waiver of sovereign immunity does not apply to

Plaintiffs’ claims. See

Plaintiffs concede that the FTCA’s

waiver of sovereign immunity does not apply to their injuries

because those injuries arose abroad. Pls.’ Opp’n, ECF No. 50 at

10 (citing

(k); Sosa v. Alvarez-Machain,

(2004)). However, they maintain that the FTCA does

not apply to this case and that the Court otherwise has subject

matter jurisdiction over it. See id. at 14-20. For the reasons

discussed below, the Court concludes that it does not have

subject matter jurisdiction over Plaintiffs’ tort claims.

“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a

prerequisite for jurisdiction.” United States v. Mitchell,

(1983). Plaintiffs’ common-law tort claims

therefore may proceed only if they “fall within a valid waiver

of sovereign immunity.” Sierra Club v. Wheeler,

,

8 616 (D.C. Cir. 2020). This waiver “must be ‘unequivocally

expressed in the statutory text’ and ‘strictly construed, in

terms of its scope, in favor of the sovereign.’” Tri-State Hosp.

Supply Corp. v. United States,

(D.C. Cir.

2003) (quoting Dep’t of Army v. Blue Fox, Inc.,

(1999)).

Here, Defendants identify the FTCA as the only possible

waiver of sovereign immunity for Plaintiffs’ common-law tort

claims. See Defs.’ Mot., ECF No. 49 at 17. Still, they contend

that the FTCA prevents Plaintiffs from maintaining these claims

because the law waives sovereign immunity only under limited

circumstances, which are not present here. See id. at 16-22.

Specifically, Defendants argue that the FTCA bars Plaintiffs’

tort claims because (1) the claims are untimely, see id. at 17

(citing

(b)); (2) the claims are based on

injuries that arose abroad, see

at 18-19 (citing

(k)); (3) the claims allege that DOJ attorneys were

responsible for malicious prosecution or false imprisonment, see

at 20 (citing

(h)); and (4) the claims fall

under the discretionary function exception to the FTCA, see

at 20-22 (citing

(a)).

Plaintiffs concede that the FTCA does not waive sovereign

immunity for claims, like those here, that are based on injuries

that arose abroad. Pls.’ Opp’n, ECF No. 50 at 10 (citing 28

9 U.S.C. 2680(k); Sosa,

). They do not offer an

alternative statute waiving sovereign immunity for common-law

tort claims against the United States. See generally

This

failure is fatal. See Tri-State Hosp. Supply Corp.,

(“A party bringing suit against the United States bears the

burden of proving that the government has unequivocally waived

its immunity.”).

Moreover, the Court agrees with Defendants that there is no

statutory waiver of sovereign immunity here. The FTCA is the

sole waiver of sovereign immunity for tort actions against the

United States. See Gable v. United States,

(D.D.C. 2013); cf. Council on Am. Islamic Rels.,

. This waiver is subject to several exceptions, including the

foreign country exception. See

(k). Under the

foreign country exception, sovereign immunity is not waived for

“[a]ny claim arising in a foreign country.”

The Supreme

Court has clarified that this exception “bars all claims based

on any injury suffered in a foreign country, regardless of where

the tortious act or omission occurred.” Sosa,

.

Here, it is undisputed that Plaintiffs were injured in Barbados.

See Defs.’ Mot., ECF No. 49 at 19; Pls.’ Opp’n, ECF No. 50 at

10. Plaintiffs’ common-law tort claims therefore all fall

squarely within the foreign country exception. See Sosa,

.

10 Plaintiffs’ briefing misses the significance of this

conclusion. Because the foreign country exception applies, the

FTCA does not waive sovereign immunity for the tort claims in

this case. See

. Rather than identify another basis

for waiver of sovereign immunity, Plaintiffs argue that the FTCA

does not apply at all. See Pls.’ Opp’n, ECF No. 50 at 17-20.

They reason that Section 2679, which states that the FTCA is the

exclusive remedy for tort actions against the United States for

damages, does not apply to tort actions that fall under the

exceptions to the FTCA in Section 2680, such as the foreign

country exception, because Section 2680 states that the

provisions of the FTCA “shall not apply.” See

at 17-20

(citing

, 2680). The Court rejects this

tortured reading of the FTCA. Indeed, the authority Plaintiffs

rely on—Simmons v. Himmelreich,

(2016)—clearly

states that “[t]he dismissal of a claim in the ‘Exceptions’

section signals merely that the United States cannot be held

liable for a particular claim.”

. Put

differently, the exceptions to the FTCA do not provide an escape

hatch from the exclusive remedy provision. And even if there

were such a hatch, Plaintiffs would still need to identify some

other waiver of sovereign immunity. See Sierra Club,

.

11 Plaintiffs’ other arguments do not fare any better. They

argue that they may “proceed[] on a Bivens-style tort fashioned

under this Court’s common-law powers or in a pre-FTCA diversity

action based on Barbados law.” Pls.’ Opp’n, ECF No. 50 at 20

(emphasis in original). To reach this result, Plaintiffs

articulate a new theory for this Court’s common-law powers. See

id. at 22-25. They do not address the issue of sovereign

immunity—the critical issue at this juncture, see generally id.

at 20-25; and provide the Court with no basis for resolution in

their favor. As Defendants explain in their reply briefing, see

Defs.’ Reply, ECF No. 52 at 12-13; even if the Court could

fashion a new private right of action, the Court does not have

the power to imply a waiver of sovereign immunity, see Lane v.

Pena,

(1996).

Plaintiffs also attempt to save their tort claims by

turning to other jurisdictional matters. See Pls.’ Opp’n, ECF

No. 50 at 14-17. Specifically, they argue that the Court has

subject matter jurisdiction over their tort claims because the

Court has federal question jurisdiction, diversity jurisdiction,

and supplemental jurisdiction. See

Even assuming arguendo

that they are correct on these points, the Court may not

exercise jurisdiction over the tort claims here unless there has

been a clear waiver of sovereign immunity, see FDIC v. Meyer,

(1994).

12 The FTCA is the only possible waiver of sovereign immunity

for Plaintiffs’ tort claims against the United States. Because

these claims all fall under the foreign country exception, there

is no waiver of sovereign immunity here. The Court therefore

DISMISSES Counts IV, V, VI, VII, and VIII against the United

States for lack of subject matter jurisdiction.

C. Plaintiffs Have Failed to State Bivens Claims

Defendants next move to dismiss Counts IV, V, VI, and VII

against the Defendants sued in their individual capacity for

failure to state a claim under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics,

(1971). See

Defs.’ Mot., ECF No. 49 at 22-29. In Bivens, the Supreme Court

recognized an implied private right of action for damages

against federal officials alleged to have violated a citizen’s

constitutional rights. See Corr. Servs. Corp. v. Malesko,

(2001). Defendants argue that (1) Mr. Gaskin and Mr.

Hawkesworth cannot raise Bivens claims because they were non-

citizens and non-residents during the relevant events; and (2)

there is no basis to imply Bivens claims here. See Defs.’ Mot.,

ECF No. 49 at 22-29.

Plaintiffs concede that Bivens claims are not available

here. Pls.’ Opp’n, ECF No. 50 at 10 (citing Hernandez v. Mesa,

(2020)). Accordingly, the Court DISMISSES Counts

IV, V, VI, and VII against the Defendants sued in their

13 individual capacity for failure to state a constitutional-tort

claim.

D. Plaintiffs Have Failed to State a Claim for the Remaining Counts of the Complaint

Finally, Defendants move to dismiss each Count of the

Complaint for failure to state a claim under Rule 12(b)(6). See

Defs.’ Mot., ECF No. 49 at 34-41. The Court addresses only

Counts I, II, and III here, having already dismissed Counts IV,

V, VI, VII, and VIII supra.

1. Malicious Prosecution and False Imprisonment

Defendants move to dismiss Count I of the Complaint, which

alleges two common-law torts: malicious prosecution and false

imprisonment. Defs.’ Mot., ECF No. 49 at 35-37; see SAC, ECF No.

47 ¶¶ 81-86 (using the terms “wrongful prosecution and

imprisonment”). For the reasons that follow, the Court DISMISSES

this Count for failure to state a claim.

“Under District of Columbia law, a plaintiff alleging

malicious prosecution must prove (1) a criminal proceeding

instituted or continued by the defendant against the plaintiff;

(2) termination of the proceeding in favor of the plaintiff; (3)

absence of probable cause for the proceeding; and (4) malice,

defined as ‘a primary purpose in instituting the proceeding

other than that of bringing an offender to justice.’” Sherrod v.

McHugh,

, 254–55 (D.D.C. 2018) (quoting

14 DeWitt v. District of Columbia,

(D.C. 2012)). A

showing of probable cause is a valid defense to a malicious

prosecution claim.

Under District of Columbia law, a plaintiff alleging false

imprisonment must prove “(1) detention or restraint against

one’s will within boundaries fixed by the defendant, and (2) the

unlawfulness of such restraint.” Harris v. U.S. Dep’t of

Veterans Affs.,

, 911–12 (D.C. Cir. 2015) (citing

Edwards v. Okie Dokie, Inc.,

(D.D.C.

2007)). As with malicious prosecution, probable cause is a

defense to a false imprisonment claim.

Defendants argue that both claims fail because there was

probable cause for Plaintiffs’ arrest, prosecution, and

imprisonment. See Defs.’ Mot., ECF No. 49 at 35-37. They point

to the fact that Plaintiffs were prosecuted and incarcerated

pursuant to an indictment returned by a federal grand jury for

the District of Columbia.

(citing SAC, ECF No. 47 ¶ 42).

Indeed, the Supreme Court “has held that an indictment, ‘fair

upon its face,’ and returned by a ‘properly constituted grand

jury,’ conclusively determines the existence of probable cause.”

Gerstein v. Pugh,

, 118 n.19 (1975) (quoting Ex

parte United States,

(1932)). Further,

Defendants argue that Plaintiffs have raised only conclusory

allegations as to the lack of probable cause. Defs.’ Mot., ECF

15 No. 49 at 36 (citing SAC, ECF No. 47 ¶¶ 65, 82-86, 88, 91, 98-

99).

Plaintiffs do not defend the adequacy of their factual

allegations in the Complaint. See generally Pls.’ Opp’n, ECF No.

50. Instead, they largely repeat their motion to alter the

Court’s dismissal of charges from the criminal proceedings.

Compare id. at 26-42, with Mot. Alter Dismissal to Dismissal

with Prejudice for Lack of Probable Cause of Criminal Conduct,

United States v. Hawkesworth, No. 1:04-0285-EGS (D.D.C.), ECF

No. 106. The Court has already rejected those arguments, see

Mem. Op., United States v. Hawkesworth, No. 1:04-0285-EGS

(D.D.C.), ECF No. 133; and will not reconsider its earlier

decision.

Plaintiffs have failed to rebut Defendants’ probable cause

defense; accordingly, the Court DISMISSES Count I of the

Complaint for failure to state a claim for malicious prosecution

and false imprisonment.

2. Expungement

Defendants argue that the Court should dismiss Count II of

the Complaint, which alleges an injunctive claim for

expungement, because expungement is an equitable remedy and not

a cause of action. See Defs.’ Mot., ECF No. 49 at 39-40.

Plaintiffs counter that they do not “lack a cause of action for

expungement under the equitable doctrine of Ex parte Young and

16 its modern judicial-review descendants, including the

[Administrative Procedure Act,

]” and that

the Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) has recognized this cause of action. Pls.’ Opp’n, ECF

No. 50 at 44 (citations omitted). The Court agrees with

Defendants and DISMISSES Count II.

There is “no standalone right to expungement of government

records . . . in this Circuit.” United States v. Douglas,

(D.D.C. 2017) (internal quotation marks

omitted) (quoting Abdelfattah v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015)). Instead, the D.C. Circuit

has held that expungement is a remedy that a court should impose

“where necessary to vindicate rights secured by the Constitution

or by statute.” Chastain v. Kelley,

(D.C.

Cir. 1975) (citing Menard v. Saxbe,

(1974)).

Here, Plaintiffs have pleaded a standalone claim for

expungement. See SAC, ECF No. 47 ¶¶ 87-89. D.C. Circuit

precedent clearly forecloses this claim. See Abdelfattah,

. Plaintiffs may not now amend the claim in their

opposition briefing to allege an Ex parte Young or

Administrative Procedure Act violation. See Budik v. Ashley,

(D.D.C. 2014) (“It is a well-established

principle of law in this Circuit that a plaintiff may not amend

her complaint by making new allegations in her opposition

17 brief.”), aff’d sub nom. Budik v. United States, No. 14-5102,

(D.C. Cir. Nov. 12, 2014). The Court therefore

DISMISSES Count II of the Complaint for failure to state a

claim.

3. Right to Travel and Associate

Defendants move to dismiss Count III of the Complaint,

which alleges an injunctive claim for restrictions of the right

to travel and associate freely, because Plaintiffs have not

identified the source of these rights and because the Complaint

is “fatally conclusory.” Defs.’ Mot., ECF No. 49 at 40-41. In

their opposition briefing, Plaintiffs allege that they have a

right to travel under the First Amendment. Pls.’ Opp’n, ECF No.

50 at 44 (citing Trump v. Hawaii,

(2018)).

Further, they argue that they all have third-party standing to

assert their family members’ right to travel and that Mr.

Scantlebury has a right to visit his family in the United

States.

(citation omitted). Plaintiffs also seem to suggest

that they may move for leave to amend the claim. See

The Court agrees with Defendants that Plaintiffs have

failed to state a claim for relief. Unlike the constitutional

right to interstate travel, which “is virtually unqualified,”

Haig v. Agee,

(1981); the constitutional right

to international travel “is best described as the freedom to

travel to foreign countries, and involves, inter alia, the right

18 to own a passport,” Nattah v. Bush,

(D.D.C. 2011) (citations and internal quotation marks omitted).

Assuming arguendo that Plaintiffs may assert third-party

standing here, they have failed to make any factual allegations

that any family member’s right to travel has been affected. See

generally SAC, ECF No. 47. Nor do they plead any facts alleging

that Mr. Scantlebury’s right to travel to the United States has

been violated. See generally

Accordingly, the Court

DISMISSES Count III for failure to state a claim. See Iqbal,

.

19 V. Conclusion

For the foregoing reasons, the Court GRANTS Defendants’

Motion to Dismiss, ECF No. 49.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge February 27, 2023

20