Manning v. Garland

• Decision Date: 31 March 2021
• Docket Number: Civil Action No. 20-664 (TJK)
• Parties: PETER MANNING et al., Plaintiffs, v. MERRICK B. GARLAND et al., Defendants.
• Court: U.S. District Court — District of Columbia

PETER MANNING et al., Plaintiffs, v. MERRICK B. GARLAND et al.,¹ Defendants.

Civil Action No. 20-664 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2021

MEMORANDUM OPINION

Plaintiffs Peter Manning and Aaron Barfield, proceeding pro se, sue various employees and entities of the federal government and the state of Washington, challenging Washington's marijuana licensing and regulatory scheme. Before the Court are the federal Defendants' motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim, ECF No. 10, and the state Defendants' motion to dismiss due to state sovereign immunity and for lack of personal jurisdiction, ECF No. 9. For the reasons explained below, the Court will grant the federal Defendants' motion, grant the state Defendants' motion in part, and transfer the remaining claims against the state Defendants to the Western District of Washington.

I. Background

Plaintiffs challenge Washington's marijuana licensing and regulatory scheme. They allege that the Washington State Liquor and Cannabis Board ("WSLCB"), Washington Governor Jay Inslee, WSLCB Chair Jane Rushford, and WSLCB Director Rick Garza—the "state Defendants"—have administered that regime in a way that discriminates against African-Americans and that violates the terms of certain federal grants by flouting federal laws governing controlled substances. ECF No. 12 ("Am. Compl.") ¶¶ 1.2-1.5. In particular, Plaintiffs allege that the state Defendants have inconsistently enforced rules and improperly enforced draft rules to disqualify African-American licensing applicants while "whites with the same qualifications were approved for licensing." Id. ¶¶ 4.17-4.18. As a result, "[o]f the approximate 2000 recreational cannabis licenses currently operating under color of law in Washington State's illicit regulatory system, less than 1% have African Americans as majority owners." Id. ¶ 4.23. Plaintiffs allege that they have been harmed because they are African-American residents of Washington who have been denied licenses. Id. ¶¶ 3.1-3.2, 4.5. As for Attorney General Merrick Garland, former Attorney General William Barr, and the Department of Justice—the "federal Defendants"—Plaintiffs allege they are violating their "duty to ensure that those receiving grants and funds from the Department of Justice abide by the terms of their agreements." Id. ¶ 4.29. Plaintiffs have sued Inslee, Rushford, Garza, and Barr in both their individual and official capacities, id. ¶¶ 3.3-3.7, and Garland now replaces Barr in his official capacity, see Fed. R. Civ. P. 25(d).

Plaintiffs assert causes of action under 42 U.S.C. §§ 1981, 1983, 1985 and Wash. Rev. Code § 49.60.030, 49.60.400. Id. at 9. They also assert claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Id. at 10-11. They seek an unspecified amount of damages, as well as declaratory and injunctive relief. Id. at 9-11. Under the Declaratory Judgment Act, 28 U.S.C. § 2201, they ask the Court to declare that the state Defendants' policies violate federal law and discriminate based on race and to declare that the federal Defendants have breached their duties to ensure grant recipients abide by federal law. Am. Compl. at 9-11.Finally, Plaintiffs seek an injunction under the All Writs Act, 28 U.S.C. § 1561, enjoining Defendants' conduct and any further grant funding. Am. Compl. at 9-11.

II. Legal Standards

"Federal courts are courts of limited jurisdiction . . . possess[ing] only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, a federal court must ensure it has jurisdiction over a claim before proceeding to the merits. Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007); see also Fed. R. Civ. P. 12(h)(3). When a defendant moves to dismiss the claims against him for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff bears the burden of establishing jurisdiction." Slack v. Wash. Metro. Area Transit Auth., 325 F. Supp. 3d 146, 151 (D.D.C. 2018) (citing Georgiades v. Martin-Trigonda, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984)).

A motion to dismiss under Rule 12(b)(2) tests whether the Court may exercise personal jurisdiction over the defendant. The plaintiff bears "the burden of establishing a factual basis for the exercise of personal jurisdiction." Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990). The D.C. Circuit has held that absent jurisdictional discovery or an evidentiary hearing on jurisdiction, a plaintiff can carry her burden by making "a prima facie showing" of personal jurisdiction. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) (citation omitted). To do so, a plaintiff need not "adduce evidence that meets the standards of admissibility reserved for summary judgment and trial." Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010). Instead, "she may rest her arguments on the pleadings," bolstered by affidavits and other written materials. Id. That said, she "cannot rest on bare allegations or conclusory statements." GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998). Rather, she "must allege specific facts connecting each defendant with the forum." Id.

III. Analysis

A. Claims Against the Federal Defendants

All claims against the federal Defendants will be dismissed for one or more of the following reasons: sovereign immunity, failure to state a claim, failure to effectuate service, lack of standing, and lack of subject-matter jurisdiction.

1. Counts II, III, and IV (Violations of 42 U.S.C. §§ 1981, 1983, and 1985)

Plaintiffs' claims under 42 U.S.C. §§ 1981, 1983, and 1985 will be dismissed against the Department of Justice and Attorney General Garland because of sovereign immunity. Sovereign immunity bars suits against the United States, its agencies, and its employees sued in their official capacities under these statutes, absent a waiver. FDIC v. Meyer, 510 U.S. 471, 475 (1994). And the United States has not waived sovereign immunity from suit under these statutes. See Prince v. Rice, 453 F. Supp. 2d 14, 26 (D.D.C. 2006) (section 1981); Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) (section 1983); Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006) (section 1985).²

Plaintiffs' claims under 42 U.S.C. §§ 1981, 1983, and 1985 will also be dismissed against Barr because Plaintiffs have failed to state a claim. First, 42 U.S.C. §§ 1981 and 1983 do not apply because Plaintiffs do not allege that Barr was acting under color of state law as those statutes require. See Prince, 453 F. Supp. 2d at 25-26 (section 1981); Settles, 429 F.3d at 1104 (section 1983). Rather, they assert that he was acting under color of federal law, see, e.g., Am.Compl. ¶¶ 4.29-4.30, and the proper vehicle for a claim against a federal official in his individual capacity acting under color of federal law is a Bivens claim, which the Court addresses below. As for 42 U.S.C. § 1985, that statute prohibits conspiring to deprive a person of civil rights, but Plaintiffs do not allege any facts to suggest that he was involved in such a conspiracy. See Roum, 461 F. Supp. 2d at 46.

Finally, these claims against Barr must also be dismissed for insufficient service of process. As the federal Defendants point out, "it does not appear from the docket that [Barr] has been served in his individual capacity." ECF No. 10 at 1 n.1. "On a motion to dismiss for insufficient service, "the plaintiff [must] establish[] that [] he has properly effected service' as is required under Rule 4." Cornish v. United States, 885 F. Supp. 2d 198, 204 (D.D.C. 2012) (quotation omitted). Here, Plaintiffs have not met their burden to demonstrate proper service on Barr in his individual capacity; indeed, they have not filed proof of any service. Nor have they, over 300 days past the 90-day deadline to effectuate service, sought to extend the time to do so. See Fed. R. Civ. P. 4.

2. Count IX (Bivens Claim)

Plaintiffs' Bivens claim against Barr will also be dismissed for insufficient service of process. "In a Bivens action, the defendants must be personally served as individuals in order for a court to have jurisdiction over them . . . . The failure to effect individual service is fatal to a Bivens claim." Cornish, 885 F. Supp. 2d at 205 (quotation omitted). And to repeat, Plaintiffs have not met their burden to show proper service on Barr in his individual capacity or filed proof of any service. That failure is "fatal," id., and Plaintiffs' Bivens claim will therefore bedismissed for insufficient service.³

3. Count VI (Unconstitutional Grants and State Statutes)

The Court will dismiss this count against the federal Defendants for lack of standing. To satisfy the "'irreducible constitutional minimum' of standing" under Article III, a plaintiff must show: "(1) an 'injury in fact' that is 'concrete and particularized' as well as 'actual or imminent'; (2) a 'causal connection' between the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, 'that the injury will be redressed by a favorable decision.'" Ark Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiffs bear the burden of establishing these elements. See Defenders of Wildlife, 504 U.S. at 561.

The Court finds that Plaintiffs have failed to allege an injury in fact related to this claim. Plaintiffs' alleged harm arises from the state Defendants' administration of Washington's marijuana regulatory regime and specifically their denial of Plaintiffs' license applications—not from the "continuing awards of grant money." See Am. Compl. at 10. Plaintiffs identify no concrete and particularized harm caused by the federal Defendants' awarding these grants, which Plaintiffs do not even allege support or otherwise have any...