Case 1:17-cv-06990-LGS Document 39 Filed 01/31/18 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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:
CARTER PAGE,
:
:
Plaintiff,
:
:
-v-
: 17 Civ. 6990 (LGS)
OATH INC. and BROADCASTING BOARD :
:
OF GOVERNORS,
:
:
Defendants.
:
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF

DEFENDANT BROADCASTING BOARD OF GOVERNORS’
MOTION TO DISMISS THE COMPLAINT UNDER RULES 12(b)(1) and 12(b)(6)

GEOFFREY S. BERMAN
United States Attorney
Southern District of New York
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: (212) 637-2768
Facsimile: (212) 637-2702

STEPHEN CHA-KIM
Assistant United States Attorney
– Of Counsel –
 Case 1:17-cv-06990-LGS Document 39 Filed 01/31/18 Page 2 of 6

Defendant the Broadcasting Board of Governors (the “Board” or the “Government”), by

its attorney, Geoffrey S. Berman, United States Attorney for the Southern District of New York,

respectfully submits this reply memorandum of law in further support of its motion to dismiss

the complaint (“Compl.”) [Dkt. No. 1] for lack of subject-matter jurisdiction and failure to state a

claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

Like his voluminous complaint, the majority of Plaintiff Carter Page’s opposition brief

(“Pl.’s Br.”) [Dkt. No. 38], consists of purported background on the investigation of Russia’s

role in the 2016 election, and Page’s conspiratorial musings about his role therein. Read

solicitously, as a pro se litigant’s filings must be, only a few arguments relevant to the

Government’s motion to dismiss are discernable: that (1) his Federal Tort Claims Act (“FTCA”)

causes of action should proceed notwithstanding the unambiguous lack of a waiver of sovereign

immunity, based on an alleged “abuse of power”; (2) the Broadcasting Board of Governors

(“BBG”) is a proper defendant notwithstanding its lack of involvement in the alleged torts

because it was a “front organization”; (3) his “terrorism” claims are adequately pled on the basis

of alleged death threats he received from unnamed parties; and, (4) he administratively exhausted

his claims on the basis of a letter to the then-director of the Federal Bureau of Investigation

(“FBI”). As explained below, none of these contentions has any merit. Accordingly, as set forth

in the Government’s opening brief (“Br.”) [Dkt. No. 28] and below, Page’s claims against the

Government should be dismissed with prejudice, without leave to amend.

A. The FTCA’s Waiver of Sovereign Immunity for “Abuse of Process” Does Not Apply

As Page notes, Pl.’s Br. at 4, Congress has waived the Government’s sovereign immunity

for “any claim arising [out of] . . . abuse of process.” 28 U.S.C. § 2680(h). However, that

provision applies only “with regard to acts or omissions of investigative or law enforcement
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officers of the United States Government.” Id.; see also Bernard v. United States, 25 F.3d 98,

104 (2d Cir. 1994) (“The FTCA authorizes suits for abuse of process based only on the actions of

federal investigative or law enforcement officers[.]”). Page’s claims against the Government are

based on the alleged tortious acts of employees of Radio Free Europe (“RFE”), a broadcasting

entity that has no law enforcement or related investigative role whatsoever, even if it could be

considered an organ “of the United States Government,” which it cannot. See Br. at 5-6 (citing

Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1129-30 (D.C. Cir. 1985)). Accordingly, the “abuse of

process” exception to the sovereign-immunity bar has no relevance to, and cannot underpin, his

FTCA claims. See, e.g., Matos v. Hove, 940 F. Supp. 67, 73 (S.D.N.Y. 1996) (“abuse of process”

claim cannot be brought against Federal Deposit Insurance Corporation); cf. Bernard, 25 F.3d at

104 (federal prosecutor is not a law enforcement official for purposes of “abuse of process”

claim).

B. No Viable Claim Has Been Pled Against BBG

In response to the fact that he has improperly named the BBG for the alleged actions of

RFE, Page simply alludes to the BBG’s “vested interests and clear conflicts” (evidently with

RFE), based on an alleged meeting between an NBC executive and a U.S. Undersecretary of

State. Pl.’s Br. at 16-17. This non-sequitur, as well as Page’s citation of a statutory provision that

the BBG may award grants to non-RFE entities in certain circumstances, and his conclusory

assertion that the BBG is a “front organization,” id. at 14, do not address the issue at hand. Nor

does Page’s conclusory belief that the BBG provided “[in]sufficient oversight of its grantee

RFE.” Id. at 12. The law is unambiguous that the BBG cannot be held liable for the alleged torts

of RFE, which is an independent, non-governmental corporation, even if funded by the BBG. See

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22 U.S.C. § 6207(e); Ralis, 770 F.2d at 1129-30. Page’s claims against the Government fail on

this basis as well.

C. Page Was Not the Victim of Terrorism

Even if Congress had authorized claims of terrorism and funding-of-terrorism under the

FTCA, which it has not, Page fails to state a plausible claim. The sole basis for the facially

absurd premise that the Government has committed terrorism against Page is his allegation that

he has been the “target of terrorist threats as a result of the [Government’s] torts.” Pl.’s Br. at 18.

Even crediting this allegation for the purpose of the motion, the receipt of a threat does not rise

to the level of any reasonable definition of terrorism. See Br. at 7-8 (citing the Anti-Terrorism

Act). Moreover, the crux of Page’s claim appears to be that the publication of the allegedly

defamatory material caused certain readers, who are unnamed, to threaten harm against Page as a

result of his negative portrayal. Such an allegation is not the same as an allegation that the

Government itself waged terrorism against, let alone threatened, Page. The patently frivolous

claims of terrorism should be dismissed.

D. Page Did Not Administratively Exhaust His Claims

Page suggests that he administratively exhausted his FTCA claims by writing a letter to

James Comey, then-director of the FBI, in September 2016. Pl.’s Br. at 10. In that letter, which

was appended to the complaint, Page requests “the FBI’s prompt end of the reported inquiry

regarding [his] personal trip to Russia in July 2016—an investigation which has been widely

mentioned in the media.” Compl. [Dkt. 1] at Exh. 9 (“Ltr.”). Nothing in this letter satisfies the

requirements of an administrative claim, which must provide “notification of an incident,

accompanied by a claim for money damages in a sum certain for injury to or loss of property,

personal injury, or death alleged to have occurred by reason of the incident.” 28 C.F.R. § 14.2(a);

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see also Liriano v. ICE/DHS, 827 F. Supp. 2d 264, 269 n.3 (S.D.N.Y. 2011) (citing Johnson v.

Smithsonian Inst., 189 F.3d 180, 190 (2d Cir. 1999)). While calling the media reports “false,”

Page makes no mention of the BBG and RFE, no allegation of defamation, tortious interference,

and terrorism, and no demand of any damages therefrom. See Ltr. Moreover, Page offers no

explanation for why a letter to the FBI satisfies the requirement of an administrative claim

regarding the acts of the BBG. See 28 U.S.C. § 2675(a) (requiring that “claimant shall have first

presented the claim to the appropriate Federal agency”) (emphasis added). Consequently, even

if Page had valid claims to pursue to begin with, which he does not, he also fails to invoke the

Court’s jurisdiction because it is evident on the face of the pleadings and his own appended

materials that he has not exhausted his administrative remedies. See Celestine v. Mount Vernon

Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (holding that failure to present an

administrative claim bars jurisdiction); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d

Cir. 2002) (explaining which extraneous documents outside of complaint’s text may be properly

considered by court).

E. Page Does Not Contest That Any Amended Claim Would Be Untimely

Finally, Page offers no response whatsoever to the Government’s arguments that any

amended pleadings would be futile, given the facial frivolity of his terrorism claims and that the

statute of limitations has run for his defamation and tortious-interference claims under New York

law. Br. at 8-9. As a result, Page’s request that he be granted leave to amend his complaint, Pl.’s

Br. at 25, should be denied.1

1
Page’s opposition makes passing allusions to a number of additional, unrelated legal
provisions, including the honest-services statute, various amendments to the Constitution, 42
U.S.C. § 1983, and FOIA. See, e.g., Pl.’s Br. at 4-5, 7, 15. To the extent that Page means thereby
to raise entirely new claims, the Court may properly disregard these references as no such causes
of action are brought in the complaint (as well as on the basis that some, like honest-services
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CONCLUSION

For the reasons set forth herein and in the Government’s opening brief, the Court should

dismiss the complaint with prejudice against the Broadcasting Board of Governors.

Dated: New York, New York

January 31, 2018

Respectfully submitted,

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
Counsel for the Government

By: /s/ Stephen Cha-Kim

STEPHEN CHA-KIM
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
(212) 637-2768
stephen.cha-kim@usdoj.gov

fraud and the Eighth Amendment, are criminal law concepts that do not apply to Page’s action).
See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998).
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