Case 18-2295, Document 78, 04/05/2019, 2534293, Page1 of 27

18-2295 To Be Argued By:

STEPHEN CHA-KIM

United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 18-2295

CARTER PAGE,
Plaintiff-Appellant,
—v.—

OATH, INC. and BROADCASTING

BOARD OF GOVERNORS,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR DEFENDANT-APPELLEE

BROADCASTING BOARD OF GOVERNORS

GEOFFREY S. BERMAN,
United States Attorney for the
Southern District of New York,
Attorney for Defendant-Appellee
Broadcasting Board of Governors.
86 Chambers Street, 3rd Floor
New York, New York 10007
STEPHEN CHA-KIM, (212) 637-2768
CHRISTOPHER CONNOLLY,
Assistant United States Attorneys,
Of Counsel.
Case 18-2295, Document 78, 04/05/2019, 2534293, Page2 of 27

TABLE OF CONTENTS
PAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . 3

Issues Presented for Review . . . . . . . . . . . . . . . . . . . 3

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Procedural History . . . . . . . . . . . . . . . . . . . . 4

B. Background . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. The Board and RFE/RL’s September

2016 Article . . . . . . . . . . . . . . . . . . . . . . 5

2. The Complaint . . . . . . . . . . . . . . . . . . . . 7

C. The District Court’s Orders . . . . . . . . . . . . . 8

Summary of the Argument . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . 10

POINT I—The District Court Lacked Subject

Matter Jurisdiction Over Page’s Claims . . . . . 11

A. The FTCA’s Waiver of Sovereign

Immunity Specifically Excludes
Defamation and Tortious Interference
Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Page Failed to Exhaust His Administrative

Remedies as Required by the FTCA . . . . . 14
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ii
PAGE

C. The ATA Bars Terrorism Claims Against

the Government . . . . . . . . . . . . . . . . . . . . . 15

POINT II—Page Fails to State a Claim Against

the Board for RFE/RL’s Publication of the
Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

POINT III—The District Court Acted Within Its

Discretion in Denying Leave to Amend the
Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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iii
PAGE

TABLE OF AUTHORITIES

Cases:
Adams v. U.S. Dep’t of Housing & Urban
Development,
807 F.2d 318 (2d Cir. 1986) . . . . . . . . . . . . . . . . . 15
Adeleke v. United States,
355 F.3d 144 (2d Cir. 2004) . . . . . . . . . . . . . . . . . 14
Advanced Magnetics, Inc. v. Bayfront
Partners, Inc.,
106 F.3d 11 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . 19
B & A Marine v. American Foreign Shipping,
23 F.3d 709 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 12
Celestine v. Mount Vernon Neighborhood
Health Ctr.,
403 F.3d 76 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . 14
Chen v. United States,
854 F.2d 622 (2d Cir. 1988) . . . . . . . . . . . . . . . . . 13
Cortlandt St. Recovery Corp. v. Hellas
Telecommunications,
790 F.3d 411 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 10
Ecco Plains, LLC v. United States,
728 F.3d 1190 (10th Cir. 2013) . . . . . . . . . . . . . . 13
Foman v. Davis,
371 U.S. 178 (1962) . . . . . . . . . . . . . . . . . . . . . . . . 19
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iv
PAGE

Garling v. United States E.P.A.,

849 F.3d 1289 (10th Cir. 2017) . . . . . . . . . . . . . . 12
Hamm v. United States,
483 F.3d 135 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 12
In re Agent Orange Prod. Liab. Litig.,
818 F.2d 210 (2d Cir. 1987) . . . . . . . . . . . . . . . . . 14
In re Supreme Beef Processors, Inc.,
468 F.3d 248 (5th Cir. 2006) . . . . . . . . . . . . . . . . 13
Joiner v. United States,
No. 3:17-CV-2692-S, 2018 WL 6727085
(N.D. Tex. Dec. 21, 2018) . . . . . . . . . . . . . . . . . . . 16
Klayman v. Obama,
125 F. Supp. 3d 67 (D.D.C. 2015) . . . . . . . . . . . . 16
Knife Rights, Inc. v. Vance,
802 F.3d 377 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 11
Liranzo v. United States,
690 F.3d 78 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . 11
Makarova v. United States,
201 F.3d 110 (2d Cir. 2000) . . . . . . . . . . . . . . 10, 11
Millares Guiraldes de Tineo v. United States,
137 F.3d 715 (2d Cir. 1998) . . . . . . . . . . . . . . . . . 12
Pellegrino v. United States T.S.A.,
896 F.3d 207 (3d Cir. 2018) . . . . . . . . . . . . . . . . . 12
Port Dock & Stone Corp. v. Oldcastle
Northeast, Inc.,
507 F.3d 117 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 11
Case 18-2295, Document 78, 04/05/2019, 2534293, Page6 of 27

v
PAGE

Ralis v. RFE/RL, Inc.,

770 F.2d 1121 (D.C. Cir. 1985). . . . . . . . . . . . . . . 17
Robinson v. Overseas Military Sales Corp.,
21 F.3d 502 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 11
Romulus v. United States,
160 F.3d 131 (2d Cir. 1998) . . . . . . . . . . . . . . . . . 15
Salahuddin v. Cuomo,
861 F.2d 40 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . 19
United States v. Mitchell,
445 U.S. 535 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 11
Van Buskirk v. The New York Times Co.,
325 F.3d 87 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . 19

Statutes:
18 U.S.C. § 2331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 U.S.C. § 2333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 U.S.C. § 2337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
22 U.S.C. § 6207 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17
22 U.S.C. § 6211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 U.S.C. § 2674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28 U.S.C. § 2675 . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
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PAGE

28 U.S.C. § 2679 . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18

28 U.S.C. § 2680 . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Regulations:
28 C.F.R. § 14.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Case 18-2295, Document 78, 04/05/2019, 2534293, Page8 of 27

United States Court of Appeals

FOR THE SECOND CIRCUIT
Docket No. 18-2295

CARTER PAGE,
Plaintiff-Appellant,
—v.—

OATH, INC., AND BROADCASTING BOARD OF GOVERNORS,

Defendants-Appellees.

BRIEF FOR DEFENDANT-APPELLEE

BROADCASTING BOARD OF GOVERNORS

Preliminary Statement
Defendant-appellee the Broadcasting Board of Gov-
ernors (the “Board”) is an agency of the federal govern-
ment that oversees the non-military international
broadcasting of the United States. As part of its mis-
sion, the Board funds a number of independent media
organizations (“grantees”) around the world. One such
grantee is Radio Free Europe/Radio Liberty (“RFE/
RL”), a not-for-profit news organization that promotes
democratic values through independent and ethical
journalism in 22 countries, mostly in Eastern Europe
Case 18-2295, Document 78, 04/05/2019, 2534293, Page9 of 27

and Central Asia, where a free press is banned or not

fully developed.
In September 2016, RFE/RL published an online
article summarizing media reports that U.S. intelli-
gence officials had an investigative interest in plain-
tiff-appellant Carter Page, a purported foreign policy
expert and advisor to then-candidate Donald Trump,
based on Page’s pattern of activities involving Russia.
In response to the RFE/RL article, Page commenced
this action pro se in September 2017, naming as a de-
fendant the Board, which played no role in the publi-
cation of the article in question. Page’s complaint
raised four claims against the Board: that as a result
of RFE/RL’s online publication, the Board had (i) de-
famed him; (ii) committed an act of terrorism against
him; (iii) funded terrorism; and (iv) tortiously inter-
fered with his contracts and prospective business rela-
tions.
These claims are meritless, and the district court
properly dismissed them. As a threshold matter, the
district court lacked jurisdiction over Page’s defama-
tion and tortious interference claims because they are
expressly excluded from the Federal Tort Claims Act’s
(“FTCA’s”) waiver of sovereign immunity. Moreover,
Page failed to exhaust his administrative remedies be-
fore filing suit, as required by the FTCA. Similarly, the
Anti-Terrorism Act (“ATA”) precludes Page’s claim
that RFE/RL’s article amounted to an act of terrorism.
And, as the district court correctly determined, even if
it possessed subject matter jurisdiction, dismissal was
also proper because the complaint failed to state a
Case 18-2295, Document 78, 04/05/2019, 2534293, Page10 of 27

claim against the Board for the actions of RFE/RL, a

separate entity that is not a government agency.
Given these deficiencies, the district court did not
abuse its discretion in subsequently denying Page
leave to amend his complaint, as no new set of plead-
ings could overcome the jurisdictional hurdles identi-
fied by the district court or otherwise state a claim for
relief. Accordingly, the district court’s orders dismiss-
ing the complaint and denying leave to amend the
pleadings should be affirmed.

Jurisdictional Statement
Page asserted that the district court had jurisdic-
tion over his claims against the Board pursuant to 28
U.S.C. § 1331, because they arose under the laws of
the United States. As explained below, however, the
district court lacked jurisdiction because Page failed to
exhaust his administrative remedies and, in any
event, Page’s claims are not cognizable under either
the FTCA or ATA. See Argument, Point I. On August
3, 2018, Page filed a notice of appeal of, among other
things, the district court’s March 20, 2018, order dis-
missing his claims against the Board, and its June 11,
2018, order denying Page leave to amend the plead-
ings. (Appendix (“A”) 137). Accordingly, this Court has
jurisdiction over this appeal under 28 U.S.C. § 1291.

Issues Presented for Review

1. Whether the district court lacked subject matter
jurisdiction over Page’s claims against the Board be-
cause: (a) the FTCA does not waive the government’s
Case 18-2295, Document 78, 04/05/2019, 2534293, Page11 of 27

sovereign immunity for defamation and tortious inter-

ference claims; (b) Page failed to exhaust his adminis-
trative remedies for those claims; and (c) Page’s terror-
ism-related claims against the government are ex-
pressly prohibited by the ATA.
2. Whether, even if the district court had subject
matter jurisdiction over Page’s claims, Page failed to
state a claim against the Board because it cannot be
held liable for the alleged actions of RFE/RL, which is
a legally separate and operationally independent en-
tity and is not a federal agency.
3. Whether the district court acted within its dis-
cretion in denying Page’s motion to amend the com-
plaint, because Page would be unable to cure the juris-
dictional and other legal deficiencies in the pleadings.

Statement of the Case

A. Procedural History

Page commenced this action in district court on
September 14, 2017. (A 9-63). On March 20, 2018, the
district court (Lorna G. Schofield, J.) entered an order
granting the Board’s motion to dismiss the complaint
under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). (A 117-26). Also on March 20, 2018, the dis-
trict court entered an order granting defendant-appel-
lee Oath, Inc.’s motion to dismiss. (A 108-16). By order
dated June 11, 2018, the district court denied Page’s
motion for leave to amend his pleadings. (A 132-36).
Page appealed those orders, as well as certain other
orders entered by the district court during the course
of the litigation, on August 3, 2018. (A 137).
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B. Background

1. The Board and RFE/RL’s September 2016

Article
In 1994, Congress passed the International Broad-
casting Act, codified at 22 U.S.C. §§ 6204-23, which
created the Board and vested it with oversight author-
ity over the non-military international broadcasting of
the United States.1 As part of that authority, the
newly-formed Board was tasked with making grants of
funds to several pre-existing broadcasting entities, in-
cluding RFE/RL. 22 U.S.C. § 6207. The Board was also
authorized to make “all major policy determinations
governing the operation of RFE/RL.” 22 U.S.C.
§ 6207(a)(2). Nevertheless, Congress made clear that
RFE/RL was “not a federal agency or instrumentality.”
22 U.S.C. § 6207(e).
RFE/RL is a private, nonprofit “501(c)(3)” corpora-
tion that reports “the news in 22 countries where a free
press is banned by the government or not fully estab-
lished.” RFE/RL Mission Statement, https://press-
room.rferl.org/p/6110.html (last visited Apr. 2, 2019);

—————
1 On August 22, 2018, during the pendency of this
litigation, the Board changed its name to the United
States Agency for Global Media. See U.S. Agency for
Global Media, https://www.usagm.gov/who-we-are/
history/ (last visited Apr. 2, 2019). For the sake of con-
sistency with other documents filed in this case, the
government will continue to refer to “the Board” in this
brief.
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see also 22 U.S.C. § 6211 (affirming RFE/RL’s “contin-

uing mission” in nations without the “clearly demon-
strated . . . establishment and consolidation of demo-
cratic rule” or a “balanced, accurate, and comprehen-
sive news [media]”). RFE/RL’s “publicly stated mis-
sion” is to “provide independent journalism that pro-
motes democratic values and institutions and combats
all forms of intolerance.” RFE/RL Mission Statement,
https://pressroom.rferl.org/p/6110.html (last visited
Apr. 2, 2019).
On September 24, 2016, RFE/RL published an ar-
ticle on its website with the headline: “Report: U.S. In-
telligence Officials Examining Trump Adviser’s Russia
Ties.” (Supplemental Appendix of Oath, Inc. (“SA”)
10). The article cited a Yahoo News article published
the previous day, which had reported that “U.S. intel-
ligence officials [we]re trying to establish whether a
businessman identified by [then] Republican presiden-
tial candidate Donald Trump as a foreign policy ad-
viser has held private discussions with senior Russian
officials on bilateral issues, including U.S. sanctions.”
(SA 10). According to the RFE/RL report, the Yahoo
News article cited “ௗ‘multiple sources who have been
briefed on the issue’ as saying that the individual un-
der scrutiny [wa]s Carter Page, a former Moscow-
based investment banker whom Trump identified in
March [2016] as part of his foreign policy team.”
(SA 10-11).
The RFE/RL article recounted further details from
the Yahoo News article’s reporting, including that an
“unidentified ‘Western intelligence source’ௗ” had re-
ceived reports that Page had met with various Russian
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officials and businessmen. (SA 11). It also stated that

Page had previously given a lecture in Moscow, in
which he had criticized “Washington and other West-
ern capitals” in ways “that echo [criticisms] frequently
voiced by the Kremlin.” (SA 12). The RFE/RL article
included statements from Trump campaign officials al-
ternately describing Page as having “no role” in the
campaign and as an “informal foreign policy adviser.”
(SA 12). The article then cited a March 2016 interview
Page had given to Bloomberg, in which he stated that
“he had investments in state-owned Russian energy gi-
ant Gazprom,” the target of U.S. and European sanc-
tions. (SA 12). Finally, the article provided general
background information on the proposed Russia poli-
cies of the two major presidential campaigns and the
accusations that Russian agents had hacked the
emails of Democratic National Committee staff mem-
bers. (SA 13).

2. The Complaint

Page describes himself as the managing partner of
a New York “investment management and advisory
firm” and a “scholar in foreign policy.” (A 11). Page
commenced this action in September 2017, bringing
claims against the Board and Oath, Inc. (the parent
company of Yahoo News), relating to the RFE/RL and
Yahoo News articles. (A 9-63). Page alleged that, with
its article, RFE/RL had “republished” “false allega-
tions” contained in the Yahoo News article concerning
his connections to Russia, thereby “directly t[ying him]
to dominant public controversies.” (A 10). As a result,
Page alleged that he suffered a “life-threatening” loss
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to his professional reputation, and had been threat-

ened with “terrorizations” and “death or serious bodily
injury.” (A 48, 61). Based on these allegations, Page
asserted four causes of action against the Board. First,
Page claimed that the Board, through RFE/RL, “pub-
lished or caused to be published false and defamatory
statements.” (A 60). Second, Page alleged that the
Board committed “acts of terrorism” against him by
publishing the allegedly defamatory material. (A 60-
61). Third, Page asserted that by providing funds to
RFE/RL, the Board had financed terrorism. (A 61-62).
Finally, Page claimed that the Board, as a result of
RFE/RL’s article, had tortiously interfered with his ex-
isting and prospective business relationships. (A 62-
63). Page brought the same claims against Oath, Inc.,
with the exception of the “Financing of Terrorism”
claim. (A 60-63).

C. The District Court’s Orders

On March 20, 2018, the district court granted the
Board’s motion to dismiss the complaint in its entirety.
(A 117-26). First, the district court held that it lacked
subject matter jurisdiction over Page’s defamation and
tortious interference claims. (A 121-22). The court con-
strued those claims as being brought under the FTCA,
but found that the FTCA does not waive the govern-
ment’s sovereign immunity for those types of claims.
(A 121-22). Moreover, the district court held that Page
had not exhausted his administrative remedies as re-
quired by the FTCA, rejecting Page’s argument that
an unrelated letter he allegedly sent to then-Federal
Bureau of Investigation (“FBI”) Director James Comey
qualified as an administrative complaint against the
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Board. (A 123). Second, with respect to the terrorism-

related claims, which the district court construed as
arising under the ATA, the district court also held that
it lacked subject matter jurisdiction because the ATA
expressly precludes suits against the government. (A
123-24). Finally, the district court dismissed the com-
plaint on the alternative ground that Page had not
pleaded any facts showing that the Board, as opposed
to the legally separate RFE/RL, played any part in
publishing the article underlying Page’s claims. (A
124-25). Also on March 20, 2018, the district court
granted Oath, Inc.’s motion to dismiss the complaint.
(A 108-116).
On April 16, 2018, Page sought leave to amend his
complaint. (A 95-96). On June 11, 2018, the district
court denied Page’s application on the ground that
amendment would be futile because Page’s proposed
amendments would not cure the pleading deficiencies
the district court identified in its order dismissing the
complaint. (A 132-36). This appeal followed. (A 137).2

—————
2 In addition to appealing the district court’s or-
ders granting the defendants’ respective motions to
dismiss and denying leave to amend the pleadings,
Page also purports to appeal the district court’s orders
denying Page’s application for a pass to use his mobile
device in the courthouse (Dist. Ct. ECF No. 11), appli-
cation for permission to file documents electronically
(Dist. Ct. ECF No. 61), and motion for a temporary re-
straining order (Dist. Ct. ECF No. 49). (A 137).
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10

Summary of the Argument

The district court properly dismissed Page’s com-
plaint. First, the court lacked subject matter jurisdic-
tion because the FTCA does not waive sovereign im-
munity for defamation and tortious interference
claims. See infra Point I.A. Moreover, Page failed to
exhaust his administrative remedies. See infra Point
I.B. As for Page’s terrorism-related claims, they are ex-
pressly barred by the ATA. See infra Point I.C. Even if
the court had jurisdiction, dismissal was also proper
because Page failed to state a claim against the Board
for the alleged publication of an article by its grantee,
RFE/RL. See infra Point II. Finally, the district court
did not abuse its discretion in denying Page leave to
amend the complaint, as any renewed attempt to as-
sert jurisdiction or state a claim against the Board
would have been futile. See infra Point III. The district
court’s orders should therefore be affirmed.

ARGUMENT

Standards of Review
When considering a dismissal for lack of subject
matter jurisdiction, this Court “review[s] factual find-
ings for clear error and legal conclusions de novo.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000). To determine whether subject matter jurisdic-
tion exists, “the court may also rely on evidence out-
side the complaint.” Cortlandt St. Recovery Corp. v.
Hellas Telecommunications, 790 F.3d 411, 417 (2d Cir.
2015). “A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the
Case 18-2295, Document 78, 04/05/2019, 2534293, Page18 of 27

11

evidence that it exists.” Makarova, 201 F.3d at 113.

The Court’s review of a dismissal for failure to state a
claim is also “de novo, taking as true the factual alle-
gations of the complaint, but giving no effect to legal
conclusions couched as factual allegations.” Port Dock
& Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d
117, 121 (2d Cir. 2007). Finally, the Court reviews a
district court’s denial of leave to amend pleadings
“only for abuse of discretion,” which requires “an error
of law, a clearly erroneous assessment of the facts, or
a decision outside the available range of permitted
choices.” Knife Rights, Inc. v. Vance, 802 F.3d 377, 389
(2d Cir. 2015).

POINT I

The District Court Lacked Subject Matter

Jurisdiction Over Page’s Claims

A. The FTCA’s Waiver of Sovereign Immunity

Specifically Excludes Defamation and
Tortious Interference Claims
The government “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.” Liranzo v. United States, 690
F.3d 78, 84 (2d Cir. 2012) (quoting United States v.
Mitchell, 445 U.S. 535, 538 (1980) (quotation marks
omitted)); see also Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994) (extending prin-
ciple of sovereign immunity to federal agencies and in-
strumentalities). Here, the FTCA provides that “[t]he
United States shall be liable, respecting the provisions
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12

of this title relating to tort claims, in the same manner

and to the same extent as a private individual under
like circumstances[.]” 28 U.S.C. § 2674.3 But this
waiver of sovereign immunity is “a limited” one, allow-
ing for tort suits against the government only “under
specified circumstances.” Hamm v. United States, 483
F.3d 135, 137 (2d Cir. 2007) (citing Millares Guiraldes
de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.
1998)). Relevant to this appeal, Congress explicitly ex-
cluded certain intentional tort claims from the FTCA’s
waiver of sovereign immunity, among them “[a]ny
claim arising out of . . . abuse of process, libel, slander,
misrepresentation, deceit, or interference with con-
tract rights.” 28 U.S.C. § 2680(h).
Page’s defamation claim is squarely forestalled by
this “intentional tort” exception. See B & A Marine v.
American Foreign Shipping, 23 F.3d 709, 715 (2d Cir.
1994) (affirming dismissal of libel claim under FTCA);
Pellegrino v. United States T.S.A., 896 F.3d 207, 230
(3d Cir. 2018) (affirming dismissal of defamation claim
as barred by the FTCA), reh’g en banc granted, 904
F.3d 329 (3d Cir. 2018); Garling v. United States
E.P.A., 849 F.3d 1289, 1299 (10th Cir. 2017) (“Defama-
tion claims are the equivalent of libel and slander and
thus exempt from the waiver of sovereign immunity
under the intentional tort exception.” (quotation
marks omitted)). So too is his claim for tortious inter-

—————
3 Although Page has named the Board as a de-
fendant, the only proper defendant in an FTCA case is
the United States. See 28 U.S.C. § 2679(b)(1).
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ference with contractual rights and prospective busi-

ness relations. See Chen v. United States, 854 F.2d
622, 628 n.2 (2d Cir. 1988) (“[A]ctions for tortious in-
terference with business (i.e., prospective) advantage
are barred as claims arising out of interference with
contract rights.” (quotation marks omitted)); see also,
e.g., Ecco Plains, LLC v. United States, 728 F.3d 1190,
1195 (10th Cir. 2013) (affirming dismissal of claim
where substance of cause of action, “despite the labels
placed on the claims,” fell under tortious interference
exception); In re Supreme Beef Processors, Inc., 468
F.3d 248, 252 (5th Cir. 2006) (§ 2680(h)’s exception for
“interference with contract rights” claims “deprive[s]
courts of subject matter jurisdiction and cannot be
waived”).
In an effort to overcome this barrier to suit, Page
appears to rely on an exception to the exception con-
tained within 28 U.S.C. § 2680(h), which specifically
authorizes suits for some intentional torts that are
committed by investigative or law enforcement offic-
ers. (Brief for Plaintiff-Appellant (“Br.”) 18). That pro-
vision preserves the waiver of sovereign immunity for
certain torts, including “abuse of process,” committed
by “any officer of the United States who is empowered
by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.” 28 U.S.C.
§ 2680(h). Page’s reliance on this provision is unavail-
ing, because there is no basis to find, or indeed any al-
legation made in the complaint, that anyone at the
Board is a law enforcement officer empowered to exe-
cute searches, seize evidence, or make arrests. Page
otherwise alleges that he was subjected to “abuse of
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14

process” by the FBI and the Foreign Intelligence Sur-

veillance Court (Br. 17-19), but those contentions are
beside the point because they neither relate to the sub-
stance of his claims against the Board nor demonstrate
that the Board has any law enforcement function.
Because the FTCA expressly prohibits claims of
defamation and tortious interference, the district court
correctly dismissed these claims against the Board.

B. Page Failed to Exhaust His Administrative

Remedies as Required by the FTCA
Even if the government had waived its sovereign
immunity for defamation and tortious interference
claims, those claims would still be subject to dismissal
because Page failed to exhaust his administrative rem-
edies. The FTCA bars suit against the government
“unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency.” 28
U.S.C. § 2675(a). The plaintiff bears the burden to
“both plead and prove compliance with the [FTCA’s ex-
haustion] requirements,” In re Agent Orange Prod.
Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987), which
are “jurisdictional and cannot be waived,” Celestine v.
Mount Vernon Neighborhood Health Ctr., 403 F.3d 76,
82 (2d Cir. 2005); see also Adeleke v. United States, 355
F.3d 144, 153 (2d Cir. 2004) (exhaustion requirement
“applies equally to litigants with counsel and to those
proceeding pro se”).
Page does not, and cannot, plead compliance with
the FTCA’s administrative exhaustion requirement.
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15

His only gesture in that direction is to point to the let-

ter he allegedly sent to then-FBI Director Comey on
September 25, 2016, a copy of which was attached to
the complaint. (SA 16; Br. 40-41). But that letter made
no mention whatsoever of the Board, RFE/RL, or any
of the allegations that form the basis of Page’s FTCA
claims. Nor was the letter even submitted to the
Board. Accordingly, the letter fails to satisfy the re-
quirements for an administrative claim. See, e.g., Rom-
ulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998)
(“In this Circuit, a Notice of Claim filed pursuant to
the FTCA must provide enough information to permit
the agency to conduct an investigation and to estimate
the claim’s worth.”); Adams by Adams v. U.S. Dep’t of
Housing & Urban Development, 807 F.2d 318, 320 (2d
Cir. 1986) (administrative claim must state a “sum
certain”); 28 U.S.C. § 2675(a) (administrative claim
must be directed to “the appropriate federal agency”);
28 C.F.R. § 14.2(a) (listing elements of an administra-
tive claim). This failure to exhaust administrative
remedies similarly deprived the district court of sub-
ject matter jurisdiction over Page’s FTCA claims
against the Board.

C. The ATA Bars Terrorism Claims Against the

Government
Page’s claims that the Board committed and funded
terrorism is similarly barred by the express terms of
the relevant statute. The district court construed
Page’s terrorism-related claims as being asserted un-
der the ATA, which provides a civil cause of action to
“[a]ny national of the United States injured in his or
her person, property, or business by reason of an act of
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16

international terrorism[.]” 18 U.S.C. § 2333. On ap-

peal, Page asserts that his terrorism claims arise un-
der that statute. (Br. 35). But the ATA’s civil remedy
explicitly excludes any action against “the United
States, an agency of the United States, or an officer or
employee of the United States or any agency thereof
acting within his or her official capacity or under color
of legal authority.” 18 U.S.C. § 2337; see Klayman v.
Obama, 125 F. Supp. 3d 67, 79 (D.D.C. 2015) (“[b]y its
terms,” ATA prohibits suits against the United States
and its agencies); Joiner v. United States, No. 3:17-CV-
2692-S, 2018 WL 6727085, at *9 (N.D. Tex. Dec. 21,
2018) (“There is no language in the ATA indicating
congressional intent to waive sovereign immunity.”).
Thus, like his defamation and tortious interference
claims, Page’s terrorism-related claims are expressly
barred by statute.4

—————
4 Furthermore, RFE/RL’s publication of the arti-
cle in question does not amount to an act of interna-
tional terrorism, which is defined in part as “violent
acts or acts dangerous to human life that are a viola-
tion of the criminal laws of the United States,” in-
tended “to intimidate or coerce a civilian population”
or “affect the conduct of a government by mass de-
struction, assassination, or kidnapping.” 18 U.S.C.
§ 2331(1).
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17

POINT II

Page Fails to State a Claim Against the Board for

RFE/RL’s Publication of the Article
Even if the district court possessed subject matter
jurisdiction—which it did not—the complaint is still
subject to dismissal for failure to state a claim. (A 124-
25). Page brought suit against the Board without
pleading any facts to show how it was responsible for
the publication of an article by a separate entity, RFE/
RL. Although RFE/RL is a grantee of the Board, which
retains some policy oversight in addition to providing
funding, see 22 U.S.C. § 6207, RFE/RL “is at bottom a
non-governmental entity, a private, state-chartered
corporation whose operational independence has been
carefully protected by Congress,” Ralis v. RFE/RL,
Inc., 770 F.2d 1121, 1129 (D.C. Cir. 1985). Indeed, Con-
gress made clear that, unlike the Board, RFE/RL is
“not a federal agency or instrumentality.” 22 U.S.C.
§ 6207(e).
In an attempt to justify his claims against the
Board, Page presents a series of opaque allegations in-
volving a former chair of the Board and a State De-
partment official, but those allegations fail to establish
that the Board can be held liable for RFE/RL’s publi-
cation of the September 2016 article. (Br. 49-51). The
only connection between the Board and RFE/RL that
Page correctly identifies is that one funds the other,
but mere “public funding” is insufficient to turn a non-
governmental entity like RFE/RL into a “government
controlled operation” and “pierce its private-actor
veil.” Ralis, 770 F.2d at 1129. Or, as the district court
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18

put it, the Board “funds but does not control RFE[/
RL].” (A 125). Accordingly, the district court correctly
dismissed the complaint on the alternative ground
that it fails to state a claim against the Board.

POINT III

The District Court Acted Within Its Discretion in

Denying Leave to Amend the Complaint
Finally, the district court did not abuse its discre-
tion in denying Page’s application for leave to amend
his complaint. As the district court recognized, the ab-
sence of a waiver of sovereign immunity enabling Page
to bring his claims is a categorical bar to his action
against the Board, which no repleading could over-
come. (A 135).
On appeal, Page argues that he should have been
allowed to amend the complaint to name the United
States instead of the Board as defendant. (Br. 29-30).
But that misapprehends the problem. Although it is
true that, for claims brought under the FTCA, the
United States is the only proper defendant, 28 U.S.C.
§ 2679(b)(1), substituting the United States for the
Board would not overcome the lack of a waiver of sov-
ereign immunity.5 “Leave to amend need not be
granted” where, as here, “the proposed amendment
—————
5 Page’s stated desire to name the Department of
Justice and FBI as defendants for alleged but un-
described roles in the publication of the article (A 29)
similarly would not establish subject matter jurisdic-
tion over his FTCA and ATA claims.
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19

would be futile.”6 Advanced Magnetics, Inc. v. Bayfront

Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962) (internal
quotation marks omitted)).
Moreover, denial of leave even to a pro se litigant is
warranted where, again as here, “the substance of the
claim pleaded is frivolous on its face.” Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (affirming dis-
missal with prejudice where pro se “plaintiff can prove
no set of facts in support of his claim”). The gravamen
of Page’s complaint—that owing to a grantee’s publi-
cation of an article summarizing other news reports,
the Board defamed him, interfered with his business,
and committed terrorism—is wholly without merit.
Accordingly, the district court did not abuse its discre-
tion in denying Page’s post-dismissal application for
leave to amend his pleadings.

—————
6 A common law defamation claim against RFE/
RL in lieu of a suit against the government would be
similarly futile, as the statute of limitations has now
run. See Van Buskirk v. The New York Times Co., 325
F.3d 87, 89 (2d Cir. 2003) (under New York law, defa-
mation claim must be brought within one year of pub-
lication, even in context of internet material).
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CONCLUSION
The district court’s orders should be affirmed.

Dated: New York, New York

April 5, 2019

Respectfully submitted,

GEOFFREY S. BERMAN,
United States Attorney for the
Southern District of New York,
Attorney for Defendant-Appellee,
Broadcasting Board of Governors.

STEPHEN CHA-KIM,
CHRISTOPHER CONNOLLY,
Assistant United States Attorneys,
Of Counsel.