Youming Jin v. Ministry of State Sec.

Decision Date01 March 2007
Docket NumberCivil Action No. 02-627 (RMU).
Citation475 F.Supp.2d 54
PartiesYOUMING JIN et al., Plaintiffs, v. MINISTRY OF STATE SECURITY et al., Defendant.
CourtU.S. District Court — District of Columbia

Martin F. McMahon, Washington, DC, for Plaintiffs.

Carmine Ralph Zarlenga, III, Howrey Simon Arnold & White, LLP, Kenneth Anthony Gallo, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Washington, DC, Louis Glaza, Prusik, Selby, Daley & Kezelis, Chicago, IL, for Defendants.


URBINA, District Judge.


The plaintiffs, 51 Falun Gong1 practitioners who are visiting Chinese nationals, U.S. residents, or U.S. citizens, allege violations of their rights under the Constitution and federal and state law by persons and entities associated with the People's Republic of China ("PRC"). They bring suit against the PRC Ministry of State Security and the PRC Ministry of Public Security (collectively, "defendant ministries"), PRC national broadcasting entity China Central Television ("CCTV"), various PRC embassy and consulate officials, several unidentified persons employed by the PRC, the head of a Chinese-American association, and China Television Corp., Inc. (collectively, "the defendants" or the "government").

Before the court is the defendants' motion to dismiss the current action for lack of subject-matter jurisdiction.2 Because claims II and IX of the plaintiffs' amended complaint involve commercial activity within the meaning of the Foreign Sovereign Immunities Act ("FSIA") and because a nexus exists between these two causes of action and the alleged commercial activity, the court has federal subject-matter jurisdiction over these two causes of action. However, because the remaining claims are not based upon a commercial activity or a non-discretionary tort activity within the meaning of FSIA, the defendants are entitled to sovereign immunity from suit. Accordingly, the court sua sponte dismisses the remaining claims.

A. Factual Allegations

The plaintiffs all practice Falun Gong, a self-improvement practice or discipline similar to Tai Chi which has its roots in ancient Chinese culture. Am. Compl. ¶ 36. According to the plaintiffs, Falun Gong has become a very popular form of exercise and meditation in China since the government loosened controls after the Cultural Revolution. Id. ¶ 37. The plaintiffs report that since its introduction into China in 1992, the number of Falun Gong practitioners has grown rapidly, reaching more than 70 million in number by 1999. Id.

The plaintiffs allege that Falun Gong was initially well received in China for its health benefits, obtaining numerous awards and counting many government officials and senior Communist members among its practitioners. Id. ¶ 38. They claim, however, that the Chinese government began to perceive the spectacular growth of Falun Gong as a threat to state security, national stability and economic development. Id. ¶¶ 39-40. The plaintiffs assert that in 1996, after the government's limited success in early efforts to control the Falun Gong's practice, the government began a campaign to marginalize and eventually eradicate Falun Gong by publishing a series of negative articles about the practice in state-run newspapers. Id. ¶ 41. Over the next few years, the government allegedly escalated its efforts by issuing a nationwide ban on Falun Gong literature, starting a media campaign to characterize Falun Gong as a cult whose members advocated criminal activity, and harassing, physically intimidating, detaining, and arresting practitioners without cause. Id. ¶¶ 41-43. In 1999, after a peaceful demonstration by Falun Gong practitioners for the release of their fellow practitioners, PRC president Jiang Zemin allegedly directed government officials to utilize the full resources of the state to eradicate the Falun Gong practice both in China and overseas. Id. ¶¶ 46-47. The government's efforts within China allegedly resulted in the murder of 1,500 Falun Gong practitioners, the arrest and detention of up to 50,000 practitioners, the torture of thousands of Falun Gong members, the incarceration of practitioners in labor/reeducation camps and mental institutions, and the expulsion of practitioners from educational institutions and employment. Id. ¶¶ 49-50.

In the United States, the Chinese government allegedly engaged in many of the same tactics of threats and coercion that it used in China. Id. ¶¶ 53. The plaintiffs assert that in a propaganda campaign aimed at overseas Chinese residents, the Chinese government sought to use mass media outlets to disparage Falun Gong leadership and vilify Falun Gong practice. Id. Toward that end, the plaintiffs contend, the Chinese government used its embassy and consulate officials to orchestrate a nationwide campaign of disinformation against Falun Gong practitioners, distributing negative programming produced in China throughout major U.S. television markets and preventing Falun Gong practitioners from having equal access to those outlets.3 Id. In particular, the plaintiffs allege that on January 30, 2001, the government staged a limited-access news event at which several individuals identified as Falun Gong practitioners set themselves on fire in Tiananmen Square. Id. ¶¶ 55, 221-23. In February 2001, defendant CCTV promoted and distributed the television footage of the staged news event throughout the United States. Id. ¶¶ 56-57. According to the plaintiffs, the CCTV footage was accompanied by a narrative that defamed certain Falun Gong practitioners living in the United States as advocates of suicide, intra-family violence, anti-family values, and cult worship. Id. In October and November 2001, the footage was re-broadcast in the top five U.S. markets for Chinese-Americans, id. ¶¶ 59, 234, and in December 2001, CCTV re-broadcasted this footage as one of its top stories of 2001. Id. ¶¶ 61. The plaintiffs allege that ministry and embassy officials disseminated thousands of videotape copies of the footage to various federal and state officials and incorporated the contents of the footage with defamatory statements onto the Chinese embassy's website. Id. ¶¶ 62, 65, 235-36, 238. Finally, the plaintiffs assert that the officials issued threats and took actions against U.S. city officials who proclaimed support for Falun Gong practitioners. Id. ¶¶ 62-70.

B. Procedural Background

The plaintiffs filed their initial complaint on April 3, 2002 and an amended complaint on July 5, 2002. In their amended complaint, the plaintiffs allege the following eleven causes of action: (I) violations of Racketeering Influences and Corrupt Organizations ("RICO"), 28 U.S.C. §§ 1962(c), (d), "arising out of FSIA commercial activity" for physical assault and battery while demonstrating or handing out literature, malicious destruction of property/acts of vandalism, threats of murder and arson, wiretapping, commission of a federal crime; (II) "FSIA `tortious activity' § 1605(a)(5) negligent hiring, retention, and supervision;" (III) violations of 42 U.S.C. §§ 1983 and 1985(c)(3) of the Civil Rights act of 1871; (IV) civil conspiracy; (V) aiding and abetting a civil conspiracy; (VI) invasion of privacy; (VII) invasion of privacy of a plaintiff; (VIII) defamation; (IX) malicious interference with an existing contractual relationship; (X) "District of Columbia bias-related crimes" in violation of 22 D.C.Code § 3201 et seq; and (XI) aiding and abetting the commission of bias-related crimes. Am. Compl. ¶¶ 81, 105, 106, 124, 160, 171, 213, 217, 242, 249, 255.

On March 24, 2003, the court granted CCTV's motion to dismiss the plaintiffs' defamation claim, their eighth count. Mem. Op. (March 24, 2003). On October 9, 2004, the court granted the plaintiffs' motion for jurisdictional discovery. Mem. Op. (Oct. 24, 2004). The Society delivered to the court its Suggestion, dated July 4, 2005, in which it argued that the court lacks subject-matter jurisdiction over the defendants. On July 15, 2005, the plaintiffs sent the court a letter in lieu of filing a motion to strike the Society's Suggestion.4

Because immunity is a positive claim, one that involves not merely a defense to liability but also a protection from suit, see Foremost-McKesson v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C.Cir.1990) (citing Prakash v. Am. Univ., 727 F.2d 1174, 1179 (D.C.Cir.1984)), the court has an obligation to consider sua sponte its jurisdiction over the defendant ministries and CCTV.5 Accordingly, the court ordered the plaintiffs to show cause why this case should not be dismissed for lack of subject-matter jurisdiction. Order (Dec. 12, 2005). In January 2006, the plaintiffs filed their memorandum in response to the court's order and in February the Society provided its response to the plaintiffs' response. It is to the jurisdictional question that the court now turns.

A. Legal Standard for Dismissal Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").

Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ir.,...

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