MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE
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:
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 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 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) ...