Fusco v. United States
| Decision Date | 19 March 2021 |
| Docket Number | Civil Action No. 20-864 (JEB) |
| Parties | EMILIO FUSCO, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Emilio Fusco, currently serving a 25-year sentence on racketeering and extortion charges, brought this pro se action to complain that his extradition and incarceration violated the U.S.-Italy Bilateral Extradition Treaty and thus warrant $5 million in damages. The Government now moves to dismiss, arguing that sovereign immunity deprives the Court of jurisdiction and that, on the merits, Fusco's claim is barred by the statute of limitations and by the doctrine of res judicata. Agreeing on all points, the Court will grant the Motion.
On this Motion to Dismiss, the Court views the facts pled in the Complaint as true, except where citing public records. Emilio Fusco is a dual citizen of Italy and the United States. See ECF No. 1 (Compl.), ¶ 1. On July 29, 2010, he was arrested in the former country and then extradited here to face a five-count indictment on racketeering and conspiracy charges. Id., ¶¶ 4-8. On October 11, 2012, Plaintiff was convicted in the Southern District of New York of racketeering conspiracy (18 U.S.C. § 1962(d)), extortion conspiracy (18 U.S.C. § 1951), and interstate travel in aid of racketeering (18 U.S.C. § 1952), while obtaining acquittals on two other counts. See United States v. Fusco, 560 F. App'x 43, 44-45 (2d Cir. 2014). A racketeering conviction under the Racketeer Influenced and Corrupt Organizations (RICO) Act requires proof of the existence of a "pattern of racketeering activity" involving "two or more related predicate acts of racketeering." United States v. McGill, 815 F.3d 846, 932 (D.C. Cir. 2016) (citations and internal quotations omitted); see also 18 U.S.C. § 1962(c). The District Court sentenced Fusco to 25 years' imprisonment, relying in part on its finding by a preponderance of the evidence that he had participated in the predicate acts of conspiracy to murder. Fusco, 560 F. App'x at 45.
On appeal to the Second Circuit, Plaintiff claimed that his prosecution and sentencing had violated the U.S.-Italy Extradition Treaty. Id. Specifically, he contended that the U.S. Government's extradition request had promised that he would be charged with only five counts (not including homicide) and could be convicted and sentenced only on proof beyond a reasonable doubt. Id. Fusco claimed that he was actually "prosecuted and sentenced for the crime of homicide" based on a lower standard of proof, "in violation of the Extradition Treaty." Id. The Second Circuit rejected this argument, noting that "as the indictment and judgment make clear, Fusco was neither prosecuted nor sentenced for the crime of homicide." Id. Rather, he was sentenced "for the racketeering charge with the murders as predicate acts," and the lower court's "judicial factfinding with respect to the murders did not increase the prescribed 45-year statutory maximum for the convicted crimes," meaning that they did not need to be proved beyond a reasonable doubt. Id. at 45-46. Shortly after his conviction was affirmed, Plaintiff filed a motion to vacate, set aside, or correct his sentence. See Fusco v. United States, No. 09-1239, 2018 WL 6097874, at *1 (S.D.N.Y. Nov. 21, 2018). Although Fusco's motion raised his treaty-violation argument, the court mentioned that this had already been rejected by the Second Circuit, and it thus focused its analysis on Plaintiff's new, unrelated claims before denying the motion. Id. at *2, 8.
On March 30, 2020, nearly nine years after his 2011 extradition, Plaintiff brought this current action against Assistant U.S. Attorney Mark Lanpher, claiming that Lanpher "knew or should have known at the time" he filed the extradition request that he was understating the number of charged counts and overstating the minimum burden of proof. See Compl., ¶¶ 8, 11. Had Italy known this, Fusco believes, it "would not have extradited the Plaintiff to the United States of America." Id., ¶ 12. In responding, the United States substituted itself as Defendant pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which immunizes government employees sued for actions taken within the scope of their employment. See Def. MTD at 6; ECF No. 5-2, Exh. A (Westfall Certification) at ECF p. 24. It simultaneously moved to dismiss, alleging a lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and a failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Defendant's Motion invokes the legal standards for dismissal under Rules 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to dismiss, the plaintiff must demonstrate that the court indeed has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). "Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion [also] imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . 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." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1350 (2d ed. 1987)) (alteration in original). In policing its jurisdictional borders, the court must scrutinize the complaint, treating its factual allegations as true and granting the plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The court need not rely "on the complaint standing alone," however, but may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992).
Rule 12(b)(6), conversely, provides for the dismissal of an action where a complaint fails to "state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in the plaintiff's favor. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Although the notice-pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "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). The plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. In evaluating the sufficiency of a plaintiff's complaint under Rule 12(b)(6), the court may consider "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court]may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
The gravamen of Fusco's suit is his allegation that Lanpher's misstatements violated the Bilateral Extradition Treaty, which thereby caused his subsequent incarceration and suffering. Although he seeks $5 million in damages, Plaintiff has not articulated a specific cause of action for his claim. But "[c]ourts must construe pro se filings liberally," Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), and the Court here will interpret Fusco's Complaint as alleging a cause of action under the Federal Tort Claims Act for the intentional tort of misrepresentation made in the course of the Government's extradition request. See Compl., ¶ 11.
Assuming that this is indeed his cause of action, the Government argues that the Court lacks subject-matter jurisdiction both because Plaintiff has not exhausted his administrative remedies and because the Government has not waived its sovereign immunity. Additionally, it contends that Fusco fails to state a claim because his suit is untimely and barred by the doctrine of res judicata. The Court will consider each of these four arguments in turn, although each separately suffices for dismissal.
"[S]uits for damages against the United States under the common law must be brought pursuant to the limited waiver of sovereign immunity in the FTCA." Benoit v. U.S. Dept. of Agric., 608 F.3d 17, 20 (D.C. Cir. 2010). Sovereign immunity, moreover, "is jurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475 (1994). In order to obtain a waiver of such immunity, a plaintiff must, under the FTCA, "have exhausted his administrative remedy beforefiling suit." Benoit, 608 F.3d at 20 (citations omitted); see also McNeil v. United States, 508 U.S. 106, 113 (1993) (); Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011) (...
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