UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY BRAXTON,

Plaintiff, Civil Action No. 23-2474 (LLA) v.

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

This matter is before the court on Defendant United States’ Motion to Dismiss. ECF

No. 19. For the reasons explained below, the court will grant the motion and dismiss pro se

plaintiff Anthony Braxton’s complaint for lack of subject-matter jurisdiction. In light of that

dismissal, the court will deny as moot Mr. Braxton’s Motion for Preliminary Injunction and

Appointment of Counsel, ECF No. 26, his Motion for Leave to Proceed In Forma Pauperis, ECF

No. 29, his Emergency Motion for a Preliminary Injunction, ECF No. 30, his Motion to Expedite,

ECF No. 31, and his Motion for Emergency Order, ECF No. 34. Because the court has docketed

ECF Nos. 32 and 33 as surreplies,1 the court will deny as moot Mr. Braxton’s Motion for an

Extension of Time to file a surreply, ECF No. 27.

1 On April 10, 2024, Mr. Braxton sought leave to file two documents titled “Plaintiff’s Amended Complaint” and “Addendum to Plaintiff’s Request to Amend Complaint.” ECF Nos. 32, 33. Despite their titles, these appear to be surreplies because, in each, Mr. Braxton continues to litigate the government’s motion to dismiss. See ECF No. 32, at 1 (“I do not wish to change anything in my initial complaint. I only ask that the issues I’ve raised in my previous response to the defendant’s motion to dismiss and those that are address[ed] in my Request to Amend Complaint be included.”); ECF No. 33, at 1 (“I [did not] exhaust[] the FTCA Administration remedies to the specific extent the defendant is referring to is because I was prevented from doing so by the defendant’s co-conspirators.”). While surreplies are “generally I. Factual Background and Procedural History

In 2023, Mr. Braxton was convicted in the Superior Court of the District of Columbia of

eighteen counts, including assault with intent to kill while armed, aggravated assault while armed,

kidnapping, and stalking. He was sentenced to a total term of imprisonment exceeding

twenty-three years. See 2017-CF1-18884, Amended Judgment in a Criminal Case.2 Mr. Braxton

has appealed his case to the D.C. Court of Appeals. See Braxton v. United States, No. 23-CF-738

(D.C.).

Thereafter, proceeding pro se, Mr. Braxton brought this civil action against Dana Joseph,

an Assistant United States Attorney (“AUSA”) in his criminal case. ECF No. 1-1. He alleges that

AUSA Joesph “withheld evidence and allowed evidence to be destroyed to fabricate a case against

[him],” which “led to [him] being wrongfully detained and convicted,” “harassed and abused by

the court and St. Elizabeths Hospital,” and being “deprived of [his] freedom and ability to care for

[himself] and [his] son.” ECF No. 1-1, at 1-2. Mr. Braxton agrees that these are claims for “false

arrest” or “malicious prosecution,” see ECF No. 24, at 2, and, as relief, he seeks $20,000,000 in

damages, ECF No. 1-1, at 5.

Mr. Braxton initially filed his civil complaint in Superior Court, see ECF No. 1-1, but the

United States removed the case and filed a notice substituting itself for AUSA Joseph pursuant to

the Westfall Act, ECF No. 1-2, at 1. Under the Westfall Act, the United States certified that

AUSA Joseph “was acting within the scope of her employment as an employee of the United States

disfavored,” Kifafi v. Hilton Hotels Ret. Plan,

(D.D.C. 2010), in light of Mr. Braxton’s pro se status, the court allowed these two filings to be docketed as surreplies. If Mr. Braxton was seeking to amend his complaint through ECF Nos. 32 and 33, the court denies leave to amend because the document titled “Plaintiff’s Amended Complaint,” ECF No. 32, does not comply with Federal Rule of Civil Procedure 8(a)(2)’s requirement that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 2 Available at https://perma.cc/KN5D-GLGP. 2 of America at the time of the alleged incidents.” ECF No. 1-2, at 1 (citing

(d)(2)).

The United States then moved to dismiss under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). ECF No. 19. After the court advised Mr. Braxton of his obligations under the

Federal Rules of Civil Procedure and this court’s local rules to file an opposition, ECF No. 20,

Mr. Braxton timely filed an opposition, ECF No. 24. The United States timely filed a reply, ECF

No. 25, and Mr. Braxton filed two documents which the court has construed as surreplies, ECF

Nos. 32 and 33.

II. Legal Standards

The United States moves to dismiss for lack of subject-matter jurisdiction under

Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). ECF No. 19. The court will

focus on Rule 12(b)(1) because it concludes that it lacks jurisdiction over the matter. See Anderson

v. Carter,

(D.C. Cir. 2015) (explaining that the court cannot reach the merits of a

case in the absence of jurisdiction).

When considering a motion to dismiss, “a judge must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus,

(2007). When the

plaintiff is pro se, as Mr. Braxton is here, the court will “liberally construe[]” his filings.

(quoting Estelle v. Gamble,

(1976)); see

(“[A] pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” (quoting Estelle,

)). In assessing whether dismissal is warranted, a court

considers all of a pro se litigant’s filings, including attachments and any opposition filed. Brown

v. Whole Foods Mkt. Grp., Inc.,

(D.C. Cir. 2015).

Dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1) is appropriate if a

claim is barred by sovereign immunity. See Johnson v. Manzo, No. 18-CV-2608,

3 1470991, at *2 (D.D.C. Apr. 2, 2019). “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). “[T]he court will not hold the United States has

waived its sovereign immunity unless the waiver is ‘unequivocally expressed’ in an Act of

Congress.” Rochon v. Gonzales,

(D.C. Cir. 2006) (quoting Hubbard v. EPA,

(D.C. Cir. 1992)).

Dismissal for lack of subject-matter jurisdiction is also warranted when a plaintiff fails to

exhaust administrative remedies that serve as a jurisdictional prerequisite to bringing suit. See

McNeil v. United States,

(1993). The Federal Tort Claims Act (“FTCA”),

et seq., “requires that a claimant present his claim to the appropriate federal

agency prior to filing a civil action in a federal district court,” Davis v. United States,

(D.D.C. 2013).

III. Discussion

Mr. Braxton does not dispute that the United States properly substituted itself in as the

defendant in this case. ECF No. 24, at 5 (“It remains that the United States is now the proper

defendant.”). The central question for the court, then, is whether the United States has waived

sovereign immunity for the common-law torts of false arrest and malicious prosecution. The court

concludes that the United States has not waived sovereign immunity for these claims as they apply

to AUSA Joseph and, accordingly, it will dismiss the case for lack of subject-matter jurisdiction.

Under the doctrine of sovereign immunity, the United States is immune from suit unless

Congress expressly has waived the defense of sovereign immunity by statute. See FDIC v. Meyer,

(1994). The FTCA is a broad waiver of the United States’ immunity for a range

of common-law torts,

, but it has significant exceptions, see

§ 2680. As

4 applicable here, the FTCA does not waive sovereign immunity for “[a]ny claim arising out

of . . . false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, [or]

misrepresentation” unless such tort was committed by “investigative or law enforcement officers

of the United States Government.” Id. § 2680(h). The subsection goes on to define an

“investigative or law enforcement officer” as “any officer of the United States who is empowered

by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id.

Notwithstanding Mr. Braxton’s assertion to the contrary, ECF No. 24, at 5-6, federal

prosecutors like AUSA Joseph are not “investigative or law enforcement officers” under the

FTCA. See, e.g., Hobley v. United States, No. 07-CV-253,

, at *3

(D.D.C. June 25, 2007) (explaining that “federal prosecutors, including assistant United States

attorneys, are generally not considered ‘investigative or law enforcement officers’” and citing

cases). Accordingly, Mr. Braxton’s claims for false arrest and malicious prosecution are barred

by sovereign immunity and must be dismissed.

Mr. Braxton’s complaint also suffers from a separate jurisdictional defect: his failure to

exhaust administrative remedies. “The FTCA bars claimants from bringing suit in federal court

until they have exhausted their administrative remedies,” and a plaintiff’s “fail[ure] to heed that

clear statutory command” warrants dismissal of his complaint. McNeil,

.

Mr. Braxton concedes that he did not exhaust his administrative remedies but asks the court to “not

make [him] responsible for exhausting administrative remedies [he] never intended to use [or] that

5 [he] never knew were available.”3 ECF No. 24, at 7. While Mr. Braxton insists that he did not

intend to file a suit under the FTCA, that is the primary mechanism for seeking money damages

for alleged torts committed by an AUSA. Because exhaustion under the FTCA is mandatory and

jurisdictional, the court must dismiss Mr. Braxton’s claims regardless of his knowledge of the

FTCA’s exhaustion requirement.

IV. Conclusion

For the foregoing reasons, the court will issue a contemporaneous order granting the United

States’ Motion to Dismiss, ECF No. 19; dismissing this action without prejudice; and denying as

moot Mr. Braxton’s Motion for Preliminary Injunction and Appointment of Counsel, ECF No. 26,

his Motion for an Extension of Time, ECF No. 27, his Motion for Leave to Proceed In Forma

Pauperis, ECF No. 29, his Emergency Motion for a Preliminary Injunction, ECF No. 30, his

Motion to Expedite, ECF No. 31, and his Motion for Emergency Order, ECF No. 34.

/s/ Loren L. AliKhan LOREN L. ALIKHAN United States District Judge

Date: July 31, 2024

3 Mr. Braxton argues for the first time in his surreply that he was “prevented from [exhausting his remedies] by the defendant’s co-conspirators [as he] was denied law library services.” ECF No. 33, at 1. Arguments raised in a surreply come too late. See Tnaib v. Document Techs., LLC,

, 89 n.3 (D.D.C. 2006). But even if Mr. Braxton had raised this claim in his initial opposition, it would not excuse his failure to exhaust because “[t]he only recognized exceptions to the exhaustion requirement are where administrative remedies are inadequate or where irreparable injury would result absent immediate judicial review.” Bannum, Inc. v. Samuels,

(D.D.C. 2016), aff’d, No. 16-5353,

(D.C. Cir. Feb. 15, 2018) (citing Randolph-Sheppard Vendors of Am. v. Weinberger,

(D.C. Cir. 1986)). 6