The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Plaintiff Xiangyuan Zhu is a United States citizen of Chinese
descent who lives in Topeka, Kansas and is proceeding pro se in
this Court. After a mediation and settlement conference before a
United States Magistrate Judge in Topeka, Ms. Zhu orally agreed
to settle several housing-related discrimination claims against a
realtor in exchange for a monetary payment. The waiver language
in the written settlement document alarmed Ms. Zhu and she
refused to sign it. Finding that a full settlement had been
reached and that the document accurately reflected the
settlement, the Magistrate Judge recommended, and the District
Court Judge ordered, that Ms. Zhu sign the settlement agreement.
When she continued to refuse, her discrimination claims were
dismissed. The Tenth Circuit Court of Appeals sustained the
District Court Judge. Ms. Zhu now sues the United States for
alleged conspiracy to violate her civil rights under the Civil
Rights Act of 1964, 42 U.S.C. § 2000a-2, and
42 U.S.C. §§ 1981-82.*fn1 Because the United States has not waived its
sovereign immunity, the Court is without jurisdiction and Plaintiff's
complaint will be dismissed.
Ms. Zhu, a single mother, received her PhD from the University
of Oklahoma in May 1997 and began to work as a financial analyst
with the Federal Home Loan Bank of Topeka in December 1997.
Amended Compl. ¶ 46. She alleges that she purchased a house in
Topeka due to pressure from realtor Marc E. Bunting of
Countrywide Realty, Inc. ("Countrywide") in June 1998.
Plaintiff's Opposition to Federal Defendants' Motion to Dismiss
("Pl.'s Opp.") at 2.*fn2 Because repairs were needed, Mr.
Bunting retained a copy of the key to the house after closing and
allegedly demanded sexual favors from Ms. Zhu from November 1998
through June 1999. Id. at 3. Ms. Zhu says that after she
complained to his employer, Mr. Bunting threatened her with a
restraining order and threatened to have her fired. Id. Mr.
Bunting is alleged to have sexually assaulted Ms. Zhu on June 30,
1999. Id. at 4. Ms. Zhu states that she filed a written
complaint against Mr. Bunting with Countrywide on July 1, 1999,
and requested that the repairs to the house be completed. Id.
She reported the alleged rape to the Shawnee County Sheriff's
Department on July 2, 1999. Id. On April 28, 2000, Ms. Zhu
filed a complaint alleging discriminatory housing practices with
the U.S. Department of Housing and Urban Development ("HUD").
Two weeks later, on May 12, 2000, Ms. Zhu received a certified
letter from an attorney representing Mr. Bunting, threatening
criminal proceedings against her. Id. at 5. On May 19, 2000, Mr. Bunting filed a Petition for a Permanent
Restraining Order in State court accusing Ms. Zhu of trespass.
Id. Ms. Zhu responded in June 2000 by suing Mr. Bunting, his
lawyer, and the law firm. Id. The State court issued an order
on April 2, 2001, restraining Ms. Zhu from being within 500 feet
of Mr. Bunting "wherever he may be found, except as any
litigation or alternative dispute resolution proceedings require
their joint attendance. . . ." Id. at 6-7. Thereafter
Magistrate Judge O'Hara found that "Mr. Bunting proved none of
his allegations against Ms. Zhu was true." Id. at 6. Judge
Vratil found that "the timing of the letter [from Mr. Bunting's
lawyer threatening Ms. Zhu] and the lawsuit raises an inference
of retaliation [and] . . . constitute adverse actions that could
deter [Ms. Zhu] from exercising her rights under the Fair Housing
Act." Id. at 6; Zhu v. Countrywide Realty Co.,
165 F. Supp. 2d 1181, 1199 (D. Kan. 2001).
Judge Vratil referred Ms. Zhu's housing discrimination
complaint to Magistrate Judge O'Hara for mediation and settlement
in August 2001. Pl.'s Opp. at 8. The parties reached a
settlement, but Ms. Zhu refused to sign the formal settlement
agreement because it required her to waive all claims, including
"all claims which were or could have been brought against these
Defendants by Plaintiff in any of the actions, proceedings,
complaints, litigation or any other matter brought by the
Plaintiff." Id. at 9. Judge O'Hara recommended that the parties
be ordered to execute the settlement, and Judge Vratil accepted
The Court approves and adopts Judge O'Hara's Report
and Recommendation filed November 18, 2001, in its
entirety. . . . On or before January 4, 2001 [sic],
plaintiff shall file an affidavit which certifies
that she executed the settlement documents in the
prescribed form. If plaintiff does not timely file
such an affidavit, this order shall constitute a
dismissal of plaintiff's case with prejudice, and the
Clerk shall enter judgment to that effect.
Amended Compl. ¶¶ 80-81. Ms. Zhu appealed Judge Vratil's dismissal, but the Tenth
Circuit (Judges Henry, Briscoe, and Seymour) sustained the
decision on June 18, 2003, holding, "Plaintiff . . . proceeding
pro se, challenges the district court's order adopting the
magistrate judge's recommendation to enforce a settlement
agreement reached through mediation. We affirm." Amended Compl.
¶¶ 87-88; Zhu v. Countrywide Realty Co., No. 02-3087, 2003 U.S.
App. LEXIS 12306, at *2 (10th Cir. June 18, 2003).
In this Court, Ms. Zhu alleged that the Magistrate Judge, the
District Court Judge, and the Tenth Circuit Judges denied or
deprived her of the rights secured by the Fair Housing Act and
the Civil Rights Acts. Attorney General John Ashcroft was named
as a defendant because he "should have prevented commission of
wrongs conspired [and] done in the United States" to deny and
deprive Ms. Zhu of these rights and protections. Pl.'s Opp. at
12. Because these federal officials are sued in their official
capacities, the United States is substituted as the sole
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of proving by a preponderance of the
evidence that the Court possesses jurisdiction over her claims.
See Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 195 (D.D.C.
2002). In reviewing a motion to dismiss under Rule 12(b)(1), the
Court must accept the allegations in the complaint as true and
draw all reasonable inferences in the plaintiff's favor. These
allegations, however, "`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." Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001) (quoting 5A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE2D, § 1350). The Court may consider information outside
of the pleadings to determine its jurisdiction. See Lipsman v. Sec'y of Army,
257 F. Supp. 2d 3, 6 (D.D.C. 2003).
For the court to grant a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, it must
"appear? beyond doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The
threshold inquiry in resolving a motion to dismiss is not whether
the plaintiff will ultimately prevail, but whether he or she is
entitled to offer evidence to support his or her claims. See
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984). Just as with a
motion to dismiss pursuant to Rule 12(b)(1), "the court must
accept as true all [of the plaintiff's] well-pleaded factual
allegations and draw all reasonable inferences in favor of the
plaintiff?." See Alexis v. District of Columbia,
44 F. Supp. 2d 331, 336-37 (D.D.C. 1999). Although the court must construe
the complaint in the light most favorable to the non-moving
party, it "need not accept inferences drawn by the plaintiff if
such inferences are unsupported by the facts set out in the
complaint." Kowal, 16 F.3d at 1276. In addition, the court need
not accept the plaintiff's legal conclusions as true. See
Alexis, 44 F. Supp. 2d at 337.
As with the kings of yesteryear, the Federal Government is a
"sovereign" and can be sued only to the extent that it gives
permission. Any plaintiff wanting to sue the United States must
demonstrate the Government's specific and "unequivocally
expressed" waiver of its traditional sovereign immunity from
suit. United States v. Nordic Village, 503 U.S. 30, 33 (1992);
United States v. Testan, 424 U.S. 392, 399 (1976). Not finding
any applicable waiver of sovereign immunity for Ms. Zhu's
lawsuit, the Court must dismiss her complaint. Ms. Zhu relies on a host of statutes, but none provides the
Court with jurisdiction over the United States as a defendant. At
28 U.S.C. § 1343, one finds a grant of jurisdiction to the
District Courts for cases alleging civil rights violations. That
jurisdictional grant, however, does not constitute a waiver of
the Federal Government's sovereign immunity. See Salazar v.
Heckler, 787 F.2d 527, 528-29 (10th Cir. 1986) (holding that
when a statute confers jurisdiction to federal courts, whether it
also waives sovereign immunity is a secondary determination not
to be implied from the statute); Byrd v. Smith,
693 F. Supp. 1199, 1201 (D.D.C. 1986) (28 U.S.C. § 1343 does not "constitute
[a] waiver? by the United States to its sovereign immunity.").
Ms. Zhu's reliance on United States v. Testan, 424 U.S. 392
(1976), is misplaced. In that case, a federal employee sued the
United States under the Tucker Act, 28 U.S.C. § 1491, the
Reclassification Act, 5 U.S.C. § 5101, and the Back Pay Act,
5 U.S.C. § 5596. The Court unanimously held that these statutes
were only jurisdictional that is, a claim under any one of them
is brought in federal court but that they did not waive the
sovereign immunity of the federal government. Indeed, the Court
expressly rejected the argument that a statute that creates
"substantive rights" must, "of necessity[,] create a waiver of
sovereign immunity." Testan, 424 U.S. at 400 ("[W]e regard as
unsound the argument of amici that all substantive rights of
necessity create a waiver of sovereign immunity such that money
damages are available to redress their violation."). Ms. Zhu
argues that "a statute [that] creates a substantive right [is]
enforceable against the United States for money damages," Pl.'s
Opp. at 17, but does so by misunderstanding the Court's statement
that such an argument is "unsound," i.e., without merit. See
Testan, 424 U.S. at 400.
The civil rights statutes cited by Ms. Zhu provide no better
result in giving this Court jurisdiction over her claims.
42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986 "by their terms, do not apply to actions against the United States." Hohri v. United
States, 782 F.2d 227, 245 n. 43 (D.C. Cir. 1986), vacated on
other grounds, 482 U.S. 64 (1987). See also United States v.
Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) ("It is well
established . . . that the United States has not waived its
immunity to suit under the provisions of the [Civil Rights
Act]"); Biase v. Kaplan, 852 F. Supp. 268, 280 (D.N.J. 1994)
("[N]either § 1985 nor any other provision of the Civil Rights
Act may provide the basis for an action against the United States
or a Federal agency.").*fn3 Similarly, the Fair Housing Act
does not waive sovereign immunity to permit suits against the
federal government. Boyd v. Browner, 897 F. Supp. 590, 595
(D.D.C. 1995) ...