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.

of America at the time of the alleged incidents.” ECF No. 1-2, at 1 (citing 28 U.S.C. § 2679(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, 802 F.3d 4, 8 (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, 551 U.S. 89, 94 (2007). When the plaintiff is pro se, as Mr. Braxton is here, the court will “liberally construe[]” his filings. Id.

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see id. (“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (quoting Estelle, 429 U.S. at 106)). 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., 789 F.3d 146, 151-52 (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, 2019 WL 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, 463 U.S. 206, 212 (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, 438 F.3d 1211, 1215 (D.C. Cir. 2006) (quoting Hubbard v. EPA, 982 F.2d 531, 532 (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, 508 U.S. 106, 113 (1993). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675 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, 944 F. Supp.

2d 36, 38 (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, 510 U.S. 471, 475 (1994). The FTCA is a broad waiver of the United States’ immunity for a range of common-law torts, 28 U.S.C. § 2674, but it has significant exceptions, see id. § 2680. As 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, 2007 WL 1821157, 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, 508 U.S. at 113.

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 [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