U.S. v. Baxter
| Decision Date | 23 May 2011 |
| Docket Number | 1:10-cv-00435-JAW |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GLENN A. BAXTER, Defendant. |
| Court | U.S. District Court — District of Maine |
The Court grants the counterclaim defendant's motion to dismiss a pro se amended counterclaim on multiple grounds: 1) that the counterclaim plaintiff does not have standing to file a civil action against the government for its decision not to initiate a prosecution; 2) that this Court does not have subject matter jurisdiction to review a Federal Communications Commission licensing decision; and, 3) that the Federal Tort Claims Act does not authorize a civil suit based on a governmental agency's alleged failure to perform its statutory duty.
On October 25, 2010, the United States of America (the Government) filed a complaint against Glenn A. Baxter, seeking to reduce to judgment a forfeiture order brought under Section 503(b) of the Communications Act of 1934, 47 U.S.C. § 503(b). Compl. (Docket # 1). On November 5, 2010, the Government filed an amended complaint and Mr. Baxter, acting pro se, filed an answer and counterclaim against the Government. Am. Compl. (Docket # 4); Answer and Countersuit (Docket# 5). In response to the Government's amended complaint, Mr. Baxter, filed an answer to the amended complaint and an amended counterclaim on November 18, 2010. Verified Answer to Amended Compl. and Am. $50,000,000 Countersuit (Docket # 8) (Countercl.). On December 8, 2010, the Government moved to dismiss Mr. Baxter's amended counterclaim. Mot. to Dismiss Am. Countercl. (Docket # 12) (Gov't's Mot). On December 17, 2010, Mr. Baxter responded. Verified Opp'n to Pl.'s Mot. to Dismiss Am. Countercl. and Incorporated Second Am. Countercl. (Docket # 16) (Baxter Opp'n). The Government replied on January 3, 2011, and Mr. Baxter filed a sur-reply on January 6, 2011. Reply to Def.'s Resp. to Mot. to Dismiss (Docket # 17) (Gov't's Reply); Def.'s Verified Reply to Pl.'s Reply to Def.'s Resp. to Mot. to Dismiss the Countercl. and Am. Countercl. (Docket # 18) (Baxter Sur-reply).
Mr. Baxter's Amended Answer and Counterclaim draws no lines between his answers to the Government's allegations and his counterclaims against the Government.1 As such, the Court has difficulty knowing which portions of the document deny the Government's claim and which portions state a counterclaim and, further, what those claims are. It appears that Mr. Baxter bases his counterclaims on two separate grounds: 1) the Government's failure to prosecute individuals he insists interfered with radio transmissions, and 2) the Government's use of the forfeiture proceedings to delay the renewal of his amateur radio license. Countercl. at 3, 7, 8, 11. He seeks civil damages of $50,000,000 for "various torts"and "for failure to process in a reasonable amount of time, [his] timely filed license renewal application for Amateur Radio Station K1MAN . . . using the instant matter as a reason for delay in direct violation of federal law." Countercl. at 3 (citing 47 U.S.C. § 504(c)). He refers to his claim as "a simple tort counterclaim against [the United States], namely for intentional and malicious subversion of United States administrative process which has caused great distress and permanent damage to [Mr. Baxter] and [Mr. Baxter]'s family." Id. at 4. Mr. Baxter further alleges that employees of the Federal Communications Commission (the Commission) and the Department of Justice (DOJ) are in violation of 47 U.S.C. §§ 501 and 333 for encouraging interference with amateur radio transmissions and he requests the Court order their criminal prosecution. Id. at 7-8. Specifically, he asks the Court to forward his pleading to Senator Susan Collins so that she may "move in Congress to obtain a Special Prosecutor to prosecute all alleged criminal violations." Id. at 11. Finally, he requests a court order "that the license renewal for K1MAN be immediately granted." Id. at 11.
The Government bases its motion to dismiss Mr. Baxter's counterclaims on Rules 12(b)(1) and 12(b)(6). Fed. R. Civ. P. 12(b)(1) and (6). Gov't's Mot. at 1. The Government argues that the Court should dismiss Mr. Baxter's counterclaims under Rule 12(b)(1) because it lacks jurisdiction to hear the counterclaims. Id. at 3. It contends that the counterclaims are barred by sovereign immunity and that federal courts of appeals have exclusive jurisdiction over any claim not barred bysovereign immunity. Id. at 8. The Government further argues that, even if the Court had jurisdiction to hear the counterclaims, the counterclaims should be dismissed under 12(b)(6) for failure to state a claim upon which relief can be granted. Id. at 8-10. It characterizes Mr. Baxter's claims as unadorned accusations that the Commission harmed him, which do not amount to a tort. Id.
Mr. Baxter contends that the Government is estopped from asserting the Court lacks jurisdiction over his counterclaims because the Government "dragged" him into court by bringing its forfeiture claim. Baxter Opp'n at 2. He asserts that courts of appeals do not have jurisdiction over his claim because he is not seeking renewal of his amateur radio license or quicker action in the renewal process. Id. at 3. Instead, he asserts that his claims are private torts over which Congress waived sovereign immunity by way of the Federal Torts Claims Act (FTCA). Id. He uses his opposition and sur-reply as opportunities to clarify the nature of the torts he alleges. First, he alleges the Government committed a tort by using the forfeiture proceedings to delay his license renewal. Id. at 3. Second, he alleges the Government committed a tort by failing to prosecute those interfering with his radio transmission and thereby encouraging the interference. Id. at 4-5; Baxter Sur-reply at 3. He says he has suffered mental anguish and an inability to find work as a result of the alleged conduct. Baxter Opp'n at 4-5; Baxter Sur-reply at 4
The Court is "required to construe liberally a pro se complaint and may [dismiss it] only if a plaintiff cannot prove any set of facts entitling him or her to relief." Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). "However, pro se status does not insulate a party from complying with procedural and substantive law." Id. "The policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled." Id.
Rule 12(b)(1) states that a party may assert the defense of lack of subject-matter jurisdiction by motion. FED. R. CIV. P. 12(b)(1). In ruling on such a motion, the Court "must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff." Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996). In addition, "the court may consider whatever evidence has been submitted." Id. Unlike in a 12(b)(6) motion, "The attachment of exhibits to a Rule 12(b)(1) motion does not convert it to a Rule 56 [summary judgment] motion." Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). "If the Court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." FED. R. CIV. P. 12(h)(3).
Rule 12(b)(6) provides, in part:
Every defense to a claim for relief in any pleading . . . must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted . . . .
FED. R. CIV. P. 12(b)(6). In ruling on a motion to dismiss under Rule 12(b)(6), a court "must assume the truth of all well-plead facts and give the plaintiffs the benefit of all reasonable inferences therefrom." Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010). To survive a motion to dismiss, "a complaint must establish a plausible entitlement to relief." Id. (internal quotations omitted).
Mr. Baxter lacks standing to initiate criminal prosecutions against government officials. It is well established that "a private citizen has no authority to initiate a federal criminal prosecution." Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (citing Keenan v. McGrath, 328 F.3d 610, 611 (1st Cir. 1964)).
Moreover, the Government's failure to initiate prosecutions under 47 U.S.C. §§ 501 and 333 is not civilly actionable because it is subject to sovereign immunity. "Generally speaking, the United States enjoys immunity from suit." Roman-Cancel v. United States, 613 F.3d 37, 41 (1st Cir. 2010). Congress waived the government's immunity from private tort actions in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. The statutory waiver provides:
Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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). However, section 2680 excludes discretionary government functions from 1346(b)'s waiver of immunity:
To continue reading
Request your trial