Anderson v. Carter
| Decision Date | 18 September 2015 |
| Docket Number | No. 14–5002.,14–5002. |
| Citation | 802 F.3d 4 |
| Parties | Wayne M. ANDERSON, Appellant v. Ashton B. CARTER, Secretary of Defense, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jeffrey L. Light argued the cause and filed the briefs for appellant.
Bruce D. Brown and Gregg P. Leslie were on the brief for amicus curiae The Reporters Committee for Freedom of the Press in support of appellant.
Wayne H. Williams, Special Assistant U.S. Attorney, argued the cause for appellees. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SENTELLE.
Appellant Wayne M. Anderson is a freelance journalist. In July of 2010, he was working as an embed journalist at a NATO base in Afghanistan. After he reported on a controversial shooting incident at an adjoining Afghan national army base over the objections of United States military personnel assigned to the NATO operation, his embed status was withdrawn, and he was returned to the United States. Anderson brought the present action against the Secretary of Defense and subordinate officers in both their personal and official capacities, seeking, as is relevant to the present appeal, reversal of the memorandum terminating his embed status and reinstatement of his credentials and accommodation status. The district court dismissed appellant's claims in their entirety. Because we conclude that Anderson has asserted no claim cognizable by this court, we affirm the judgment of dismissal.
Because the basis of our decision that this case must be dismissed for lack of jurisdiction is not dependent upon any detail of the underlying facts, our discussion will be brief. Further detail may be found in the district court's opinion. See Anderson v. Gates, 20 F.Supp.3d 114 (D.D.C.2013).
In 2010, Anderson, a freelance journalist working under contract for a Washington, DC, newspaper, applied for status of a military-embed journalist in Afghanistan with the North Atlantic Treaty Organization (“NATO”) International Security Assistance Force, an international force created by the United Nations Security Council to assist in maintaining security in Afghanistan. In process of becoming an embedded reporter, Anderson signed and submitted an acknowledgment of the “Media Ground Rules” required by the International Security Assistance Force. That acknowledgment included a statement by the embed journalist that:
I have read the media ground rules provided to me by International Assistance Force Afghanistan (ISAF) Public Affairs staff and agree, with my signature, to abide by them. I also understand that any violation of these ground rules is cause for the revocation of my accommodated media status with ISAF.
In July of 2010, during his first week as an embedded reporter, Anderson videotaped and photographed casualties from a shooting incident near the base where he was assigned. According to defendants, the video showed the identifiable faces of wounded
soldiers. He posted the video on YouTube without receiving consent from the soldiers and before their next of kin could be notified, all in violation of the Ground Rules. Anderson disputes the accusation that his photographs and video product revealed the identity of the soldiers. Neither we nor the district court need resolve that factual dispute in order to dispose of this litigation.
A few days after the photographing and videoing incident, Colonel Hans E. Bush reviewed a request to terminate Anderson's accommodated status based on his alleged violation of the Ground Rules. Colonel Bush found that plaintiff had violated the Ground Rules and approved the termination. As a result of termination of his status, the military returned Anderson to the United States. Upon his return, he appealed the termination through the International Security Assistance Force Public Affairs channels. In January of 2011, Colonel Gregory Julian, Chief of Public Affairs of the Supreme Headquarters Allied Powers Europe and Allied Command Operations, denied Anderson's appeal. Both Bush and Julian were subsequently named as defendants in this litigation.
Anderson, at that time acting without counsel, filed a three-count complaint in the United States District Court for the District of Columbia against Robert Gates, then-Secretary of Defense; John M. McHugh, then-Secretary of the Army; Colonels Bush and Julian; and Colonel Sean Mulholland. The complaint purported to seek relief against defendants in both their individual and official capacities. See Anderson, 20 F.Supp.3d at 119. Count I of the complaint alleged that defendants in their individual capacities violated Anderson's First Amendment rights by terminating his status in retaliation for his constitutionally protected speech, and by refusing or neglecting to prevent such deprivations or denials of his First Amendment rights. Count II alleged a breach-of-contract claim based on the theory that the defendants had breached an agreement arising from the acknowledgment of the “Ground Rules.” Count III sought “a judicial declaration that defendants' conduct deprived Anderson of his rights under the U.S. Constitution and the laws of the United States.” Id. (quoting Anderson's complaint at ¶ 63).
All defendants moved to dismiss “for lack of personal jurisdiction over defendants in their individual capacities under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(2), for failure to state a claim upon which relief can be granted under Rule 12(b)(6), and for lack of subject-matter jurisdiction under Rule 12(b)(1).” Id. The district court granted the motion and dismissed the action. Anderson filed the present appeal.
On appeal, Anderson, now acting through counsel, alleges no error in the dismissal of the claims against the defendants in their individual capacities. Indeed, he acknowledges that “[t]his appeal is limited to a suit against [d]efendants-[a]ppellees in their official capacities....” Reply Br. at 16. Of course, even without the acknowledgment, any error not asserted and argued on appeal is deemed forfeited. We therefore confine our discussion to the claims against defendants in their official capacities.
Briefly put, appellant is now arguing that he has sufficiently alleged “a claim for retaliation under the First Amendment and a claim for violation of the Administrative Procedure Act.” Appellant's Br. at 9. As in all cases, our first duty is to ascertain whether the district court, and derivatively this court, have jurisdiction to determine those claims. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). For two reasons, we conclude that appellant's claims are not within the jurisdiction of the courts.
The Supreme Court has taught in Steel Co. and numerous other cases that when a federal court has no jurisdiction over a case, it cannot determine any other question concerning the merits of that action. However, since the two grounds affecting our decision in this action are equally threshold questions, we will observe that appellant's claims founder on either or both of them.
First, appellant's allegations do not bring his claims within the jurisdictional statute he asserts. Briefly put, this action is barred by the sovereign immunity of the United States. Appellant forthrightly admits that, as he has asserted no error in the district court's dismissal of the claims against the individual defendants, “[t]his appeal is limited to a suit against the [d]efendants-[a]ppellees in their official capacities and therefore the suit is subject to governmental defenses including sovereign immunity.” Reply Br. at 16 (citing Kentucky v. Graham, 473 U.S. 159, 166–67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ). What appellant does not concede, but what is correct, is that an action against the United States cannot surpass the barrier of sovereign immunity without a statutory waiver. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The government's consent to be sued may not be inferred, but must be “unequivocally expressed” in statutory text. Fed. Aviation Admin. v. Cooper, ––– U.S. ––––, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012). “Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).
Appellant asserts that his claim is cognizable under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702. Unfortunately for appellant, that statute does not waive sovereign immunity for the present claims. We note in considering Anderson's argument that it is not at all clear that he actually asserted this position below, but affording as we do lenience in our review of the pleading of pro se litigants, as appellant then was, we will at least consider the argument for the APA as an applicable exception to sovereign immunity. Having so considered, we determine that the APA excludes the present action by its terms.
The APA, in 5 U.S.C. § 701, provides review of actions of an agency of the United States. See 5 U.S.C. § 701(b)(1). The statutory definition of “agency” expressly “does not include—military authority exercised in the field in time of war.” Id. § 701(b)(1)(G). From the very face of the complaint, all of the events surrounding the controversy between the embed journalist and...
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