Kurtz v. United States

• Decision Date: 26 July 2011
• Docket Number: Civil Action No. 10–1270 (RWR).
• Citation: 798 F.Supp.2d 285
• Parties: James D. Lammers KURTZ, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

798 F.Supp.2d 285

James D. Lammers KURTZ, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 10–1270 (RWR).

United States District Court, District of Columbia.

July 26, 2011.

James D. Lammers Kurtz, Plymouth, WI, pro se.

Fred Elmore Haynes, U.S. Attorney's Office, John Robert Jacob, Akin Gump Strauss Hauer & Feld LLP, James M. Loots, Law Offices of James M. Loots PC, Washington, DC, Francis X. Sullivan, Wisconsin Department of Justice, Madison, WI, Patrick M. Harvey, Whyte Hirschboeck Dudek, S.C., Milwaukee, WI, Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff James D. Lammers Kurtz has named the United States as a defendant in a complaint concerning property located in Wisconsin and harms occurring in Wisconsin. The complaint alleges misconduct by four federal judges, and that the United States unlawfully holds property belonging to the plaintiff. The United States has moved to dismiss, and the plaintiff has moved for leave to amend his complaint. Because the United States has not waived its sovereign immunity with respect to the plaintiff's claims that are based upon his allegations against the federal judicial defendants, and there is no private right of action for the plaintiff's claim regarding his property, the United States' motion to dismiss will be granted.¹ The motion for leave to amend will be denied as futile, and the remaining unnamed defendants will be dismissed because they have not been timely served.

BACKGROUND

The plaintiff alleges that three judges of the United States Court of Appeals for the Seventh Circuit and a judge of the United States District Court for the Eastern District of Wisconsin “wont [sic] allow a legit[imate] record [to be] made” regarding his claims against other defendants who have been dismissed from the case.² (Compl. at 23.) Additionally, the plaintiff alleges that property of his is “held by the USA by violation of 18USC1001, 1341, 1503 etc[.]” ( Id. at 3.) The United States has moved to dismiss and incorporates in its motion its opposition to the plaintiff's motion to deem the allegations against the United States as conceded.³ (Mot. to Dismiss the U.S. at 1.) That opposition argues in part that the United States has not waived its sovereign immunity with respect to the plaintiff's claims, and that the complaint is subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Mem. in Opp'n to Pl.'s Mot. to Deem the Allegations Against the U.S.A. Conceded at 3.)

DISCUSSION

I. SUBJECT–MATTER JURISDICTION

“[T]he plaintiff bears the burden of establishing that the court has subject-matter jurisdiction.” Larsen v. U.S. Navy, 486 F.Supp.2d 11, 18 (D.D.C.2007); see also Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007). A court “ ‘must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.’ ” Short v. Chertoff, 526 F.Supp.2d 37, 41 (D.D.C.2007) (quoting Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006)). Although a court is to construe liberally a pro se complaint, Howerton v. Ogletree, 466 F.Supp.2d 182, 183 (D.D.C.2006), “[p]ro se plaintiffs are not freed from the requirement to plead an adequate jurisdictional basis for their claims.” Gomez v. Aragon, 705 F.Supp.2d 21, 23 (D.D.C.2010).

A. Sovereign Immunity

Because the United States' consent to be sued in a particular court defines the scope of that court's jurisdiction, “[a]bsent a waiver, sovereign immunity shields the Federal Government ... from suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“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.”). A waiver of sovereign immunity “must be unequivocally expressed in statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (internal citation omitted). “[C]onditions upon which the Government consents to be sued must be strictly observed[,]” Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (quotation marks and citation omitted), and any waiver is construed strictly in the sovereign's favor. Lane, 518 U.S. at 192, 116 S.Ct. 2092.⁴

The plaintiff's complaint names the United States as a defendant “in light of” the plaintiff's allegations against the federal judicial defendants, and the plaintiff seeks damages and injunctive and declaratory relief. (Compl. at 22, 25.) The Administrative Procedure Act (“APA”) provides that “[t]he United States may be named as a defendant” in an action “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority[.]” ⁵ 5 U.S.C. § 702. This provision waives the government's immunity from suit. Trudeau v. FTC, 456 F.3d 178, 186 (D.C.Cir.2006). Although the plaintiff does not bring his claims under the APA, there “is nothing in the language of ... § 702 that restricts its waiver to suits brought under the APA.” Id. However, the APA's waiver of sovereign immunity applies only to suits for specific relief against an agency or officer acting or failing to act in an official capacity.

Because the APA explicitly excludes the courts of the United States from its definition of an agency, 5 U.S.C. § 701(b)(1)(B), it does not waive the United States' sovereign immunity with respect to the plaintiff's claims against the United States based upon the allegations regarding the dismissed federal judicial defendants. In Wall v. U.S. Dep't of Justice, No. 3:09CV1066 (DJS), 2010 WL 4923736, at *1, 6 (D.Conn. Nov. 29, 2010), a plaintiff brought suit seeking equitable relief from, among other defendants, a federal district and a federal circuit judge. The court concluded that “ § 702 does not constitute a waiver of sovereign immunity as to claims against federal judges[,]” and that the court lacked “subject matter jurisdiction over [a] ... Complaint seeking equitable relief against ... federal judges [.]” Id. at *8. Just an in Wall, § 702 does not waive sovereign immunity here as to the plaintiff's claims for specific relief from the federal judicial defendants.

An alternative analysis yields the same result. “[S]overeign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional[.]” Clark v. Library of Cong., 750 F.2d 89, 102 (D.C.Cir.1984); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (reasoning that where a “statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional[,]” “the conduct against which specific relief is sought is beyond the officer's powers and is, therefore, not the conduct of the sovereign”). The D.C. Circuit has suggested—albeit in the context of monetary damages and not injunctive relief—that this exception “does not apply when the suit is brought directly against the United States rather than against a government official.” Clark, 750 F.2d at 103 n. 31; see also Larson, 337 U.S. at 693, 69 S.Ct. 1457 (noting that if an officer is “exercising the powers delegated to him by the sovereign[,] ... the action is the sovereign's and a suit to enjoin it may not be brought unless the sovereign has consented”). Not applying this officer exception to the sovereign immunity bar where a suit for specific relief is brought directly against the United States is consistent with the legal fiction underlying the exception—that the unconstitutional conduct of an officer is not the conduct of the sovereign and is not endorsed by the sovereign. This fiction dissolves where a plaintiff sues the sovereign directly. Because the plaintiff's claims against the federal judicial defendants have been dismissed, there are no remaining government officials in the suit whose actions could be declared unconstitutional or who could be enjoined. This posture—in which the United States is the only remaining named defendant—precludes the officer exception to the sovereign immunity bar from applying.⁶

B. Private right of action

The plaintiff's complaint also alleges that the United States holds property of his in violation of various sections of Title 18 of the United States Code, including the provisions criminalizing making false statements, 18 U.S.C. § 1001, mail fraud, 18 U.S.C. § 1341, and influencing or injuring an officer or juror, 18 U.S.C. § 1503. (Compl. at 3, 22.) However, none of these criminal statutes creates private rights of action upon which a litigant may bring a civil suit. See Banks v. Kramer, No. 09–5140, 2009 WL 5526780, at *1 (D.C.Cir. Dec. 30, 2009) (18 U.S.C. §§ 1001, 1503); RJ Prod. Co. v. Nestle USA, Inc., Civil Action No. 10–584(ESH), 2010 WL 1506914, at *2 n. 1 (D.D.C. Apr. 15, 2010) (18 U.S.C. § 1341). Because the lack of a private right of action precludes the existence of subject-matter jurisdiction, see Sanders v. U.S. Dep't of Justice, Civil Action No. 09–721(JDB), 2009 WL 1076704, at *1 (D.D.C. Apr. 21, 2009) (dismissing claim for lack of subject matter jurisdiction where statute under which plaintiff brought the claim did not confer a private right of action), claims suffering from this jurisdictional defect may be dismissed sua sponte. See Hurt v. U.S. Court of Appeals for D.C. Circuit Banc, 264 Fed.Appx. 1, 1 (D.C.Cir.2008) (noting that Federal Rule of Civil Procedure 12(h)(3) authorizes a court to analyze on its own the issue of subject-matter jurisdiction). Thus, the plaintiff's claim that the United States is unlawfully holding his property will be dismissed. See...