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ZHU v. U.S.

June 9, 2005.


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"). Id.

  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 that recommendation:
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 Defendant.


  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) ...

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