                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
JOHN ALVIN BECK,                          )
                                          )
                        Plaintiff,        )
                                          )
            v.                            ) Civil Action No. 17-2488 (TSC)
                                          )
UNITED STATES GOVERNMENT, et al.,         )
                                          )
                        Defendants.       )
_________________________________________ )

                                 MEMORANDUM OPINION

       This matter is before the court on Defendants’ Motion to Dismiss (ECF No. 16). For the

reasons discussed below, the court grants the motion.


                                      I. BACKGROUND


       The Smithsonian Institution is an independent trust instrumentality of the United States.

See 20 U.S.C. § 41. Its Board of Regents is the governing body, see 20 U.S.C. § 42(a), to which

Secretary David J. Skorton reports, see 20 U.S.C. § 46. A special police force protects

Smithsonian buildings and grounds, including museums on the National Mall. See 40 U.S.C. §§

6301(1)(A), 6306. Smithsonian Directive 405 sets forth the policies and procedures by which

the Smithsonian’s Office of Protection Services (“OPS”) may bar a person from entering

Smithsonian buildings and grounds for having engaged in prohibited conduct. (Mem. of P. & A.

in Support of Defs.’ Mot. to Dismiss (“Def.’s Mem.”), Ex. A (Smithsonian Directive 405, dated

July 19, 2012) at 1-2.)

       On September 29, 2017, OPS issued Plaintiff a barring notice, which explained:



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               For over 10 years, you have engaged in a campaign to draw attention
               to what you have characterized as the systematic slaughter of
               innocent animals at Cornell University. Your campaign has
               included placing advertisements in local New York papers and
               erecting signage on your property. In addition, you sued Cornell
               for dismissing you from employment. Your campaign has included
               hostile accusations against Dr. Skorton, Cornell’s former president.
               Since Secretary Skorton’s appointment at the Smithsonian, you have
               sent correspondence to the Smithsonian multiple times accusing Dr.
               Skorton of crimes and violence. The tone of your letters has been
               hostile.

               You have been observed at the Smithsonian on at least three
               occasions this summer and fall asking for the location of the
               Secretary's office, despite having no business to conduct with the
               Smithsonian. Most recently, on September 26, 2017, you were
               present at the Smithsonian castle and inquired about the location of
               the Secretary’s office and his phone number. When asked the nature
               of your business with the Secretary, you raised your voice then told
               the officer to disregard your inquiry. You indicated that you had
               attended school with the Secretary, but refused to leave any contact
               information.

               Because of your long-standing record of hostility towards Secretary
               Skorton, your repeated recent attempts to locate his office, and the
               confrontational and evasive behavior you displayed on Smithsonian
               grounds, you are hereby denied admission to [Smithsonian]
               buildings [and] grounds [on the National Mall in Washington, D.C.]
               through September 30, 2018.
(Compl., Ex. (Barring Notice) at 1-2.) The notice advised Plaintiff that if he failed to obey it, he

would be arrested and charged with unlawful entry. (Id., Ex. at 1.)

       Plaintiff alleges that Secretary Skorton has “violated [his] constitutional rights by

refusing and denying [him his] rights to visit national treasures on United States of America

Government Property . . . under threat of arrest and incarceration.” (Id. at 3 (page numbers

designated by ECF).) Plaintiff denies ever having been in Washington, D.C., and ever having

any interest in Secretary Skorton. (See id. at 5.) He regards the “advertisements that [he] placed

in local papers” and “signage [he has] lawfully erected on [his] property” as exercises of rights to



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freedom of the press and freedom of speech. (Id. at 3. 1) Plaintiff asks this court “to give [him

his] constitutional rights back and damages.” (Id. at 4; see Ans. to Defs.’ Mot. to Dismiss at 5.)


                                          II. DISCUSSION


                                 A. Dismissal Under Rule 12(b)(1)

       Defendants first move to dismiss Plaintiff’s Complaint under Federal Rule of Civil

Procedure 12(b)(1) on the ground that this court lacks subject matter jurisdiction. Federal courts

are courts of limited jurisdiction, see Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir.

2004), and the law presumes that “a cause lies outside [the court’s] limited jurisdiction” unless

the plaintiff establishes otherwise, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). In response to a defendant’s motion to dismiss a complaint for lack of subject matter

jurisdiction, the plaintiff must establish jurisdiction by a preponderance of the evidence. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F.

Supp. 2d 59, 63 (D.D.C. 2002). In evaluating a motion to dismiss under Rule 12(b)(1), the court

must “assume the truth of all material factual allegations in the complaint and ‘construe the

complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the

facts alleged [.]’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting

Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

        “It is elementary that ‘the United States, as sovereign, is immune from suit save as it

consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting



1
  Plaintiff erected six signs on his property, and describes them as “four - four feet by sixteen
feet and two four feet by eight feet in size displayed on a major highway.” (Ans. to Defs.’ Mot.
to Dismiss at 3 (page number designated by ECF).)
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United States v. Sherwood, 312 U.S. 584, 586 (1941)). Sovereign immunity extends to

government agencies and to their employees sued in their official capacities. See Meyer, 510

U.S. at 483-86; Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir. 1984) (“Sovereign

immunity . . . bar[s] suits for money damages against officials in their official capacity absent a

specific waiver by the government.”).

       The Federal Tort Claims Act (“FTCA”) is such a waiver of sovereign immunity. Subject

to certain imitations set forth in 28 U.S.C. §§ 2671-80, a federal district court has jurisdiction

over “claims against the United States, for money damages . . . , for injury . . . caused by the

negligent or wrongful act or omission of any employee of the Government” while the employee

was “acting within the scope of his employment, under circumstances where the United States, if

a private person, would be liable to the claimant in accordance with the law of the place where

the act or omission occurred,” 28 U.S.C. § 1346(b)(1); see Meshal v. Higgenbotham, 804 F.3d

417, 428 (D.C. Cir. 2015) (noting that Congress deemed “the FTCA . . . the exclusive remedy for

federal officials sued for ‘scope-of-employment’ torts”).

       For purposes of this discussion, the court presumes, without deciding, that Plaintiff

articulates viable First Amendment claims for which he demands money damages against the

United States, the Smithsonian Institution and Secretary Skorton in his official capacity.

“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from

suit,” FDIC v. Meyer, 510 U.S. 471, 475 (1994), and the Smithsonian Institution is a federal

agency for purposes of the FTCA, see Expeditions Unlimited Aquatic Enters., Inc. v.

Smithsonian Inst., 566 F.2d 289, 296 (D.C. Cir. 1977); Girdler v. United States, 923 F. Supp. 2d,

168, 186 (D.D.C. 2013).




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       Plaintiff’s FTCA claim fails for two reasons. “First, he does not assert that he has

exhausted necessary administrative remedies under the FTCA, which is a mandatory prerequisite

to bringing such a claim in court.” Epps v. U.S. Attorney General, 575 F. Supp. 2d 232, 238

(D.D.C. 2008) (citing GAF Corp. v. United States, 818 F.2d 901, 904-05 (D.C. Cir. 1987)).

Second, even if Plaintiff had exhausted his administrative remedies, the FTCA does not waive

the government’s immunity for a constitutional tort. See Meyer, 510 U.S. at 477-78; Epps, 575

F. Supp. 2d at 238; Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1317 (D.D.C. 1985).

Therefore, the court must dismiss for lack of subject matter jurisdiction Plaintiff’s constitutional

tort claims against the United States, the Smithsonian and Secretary Skorton in his official

capacity.

                                B. Dismissal Under Rule 12(b)(6)
       The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” and “the grounds for the court's jurisdiction” so that a defendant has fair

notice of the claim and the ground upon which it rests. Fed. R. Civ. P. 8(a); see Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing cases). Rule 12(b)(6) permits a defendant to

move for dismissal on the grounds that the complaint has failed “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a motion “tests the legal sufficiency of a

complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a Rule

12(b)(6) motion, “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, 556 U.S. 662, 678 (2009) (internal

quotation marks and citation omitted). “A claim has facial plausibility when the plaintiff pleads

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

for the misconduct alleged.” Id. A complaint containing only “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” cannot survive a motion

                                                  5
to dismiss. Iqbal, 556 U.S. at 678. In addition, the presumption of truth accorded factual

allegations at this stage does not apply to a plaintiff’s legal conclusions in the complaint,

including those “couched” as factual allegations. Id. (quoting Twombly, 550 U.S. at 555).

    1. Claim Under 42 U.S.C. § 1983 Against the United States, Smithsonian Institution, and
                          Secretary Skorton in his Official Capacity

       Section 1983 provides a remedy where a person acting under color of state or District of

Columbia law deprives a plaintiff of his Constitutional rights. 42 U.S.C. § 1983. Although a

municipality may be held liable under the statute for injury suffered as a direct result of its

unconstitutional policy, practice, or custom, see Monell v. Dep’t of Soc. Svcs. of the City of New

York, 436 U.S. 658, 690-91 (1978), “Section 1983 does not apply to federal officials acting under

color of federal law,” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005)

(citations omitted). Therefore, Plaintiff’s claims against the United States, the Smithsonian and

Secretary Skorton in his official capacity under § 1983 must be dismissed.

           2. Claim Under Bivens against Secretary Skorton in his Individual Capacity

       Plaintiff is no more successful if he were to raise his claims against Secretary Skorton in

his individual capacity under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). The only plausible theory for a claim of this nature would have

Secretary Skorton held liable for the actions of a subordinate – the deputy director of OPS who

signed and issued the barring notice. (See Compl., Ex. 1 at 2.) “A superior official cannot be

held liable under Section 1983 or Bivens for the constitutional torts of employees under him or

her; the common law theory of respondeat superior does not pertain to the federal government in

this context.” Epps, 575 F. Supp. 2d at 238. Nothing in the Complaint suggests that Secretary

Skorton personally was involved in issuance of the barring order, and absent any showing that




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Skorton himself violated Plaintiff’s rights, the Bivens claim fails. See Cameron v. Thornburgh,

983 F.2d 253, 258 (D.C. Cir. 1993).


                                       III. CONCLUSION


       The Court concludes that it lacks subject matter jurisdiction over Plaintiff’s constitutional

tort claims, and that the complaint fails to state claims under § 1983 and Bivens upon which

relief can be granted. Accordingly, the Court grants Defendants’ motion to dismiss. An Order is

issued separately.


DATE: July 9, 2018                           /s/
                                             TANYA S. CHUTKAN
                                             United States District Judge




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