XELUP v. UNITED STATES DEPARTMENT OF COMMERCE et al

Filing 32

ORDER dismissing case. Signed by Judge Carl J. Nichols on 3/12/25. (lccjn1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TUSHKHUMOC XELUP,
Plaintiff,
v.

Civil Action No. 1:24-cv-1241 (CJN)

DEPARTMENT OF COMMERCE, et al.,
Defendants.
ORDER
Pro se plaintiff Tushkhumoc Xelup alleges that he is a “tribal and national citizen of the
Maipuri Arauan Nation of the Americas” (MAN), a tribal association seemingly headquartered in
the U.S. Virgin Islands. ECF No. 1 (Compl.) at 2, 5. In his capacity as “Plenipotentiary” of MAN,
Xelup purports to assert various tort claims, including under the Alien Tort Statute, 28 U.S.C.
§ 1350, for “environmental racism, forced identity, official oppression, and denial of human
rights.” Id. at 2. Xelup names as defendants the United States, several federal agencies and their
officials, two federal judges, the Virgin Islands and several of its officials, and a state court judge—
all of whom Xelup alleges have “interfere[d] with and deni[ed] [his] right of Plenipotentiary
authority with the citizens and members of the sovereign indigenous Maipuri Arauan nation.” Id.
at 1–2. The Court will dismiss Xelup’s claims.
I.

Claims Against Federal Defendants
Xelup’s claims against the federal defendants do not share one factual nucleus. Rather—

to the extent the Court is able to interpret them—they appear to grow out of several essentially
unrelated occurrences.

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First, Xelup alleges that the Department of Commerce, its Secretary, and the Census
Bureau were “ordered” by the Department’s Inspector General in 2015 to “adjust” their internal
records to “classify” Xelup’s race as “colored” rather than “negro,” but that neither agency
complied. Id. at 2, 7. According to Xelup, the government’s “identity fraud” has subjected him
to “continued governmental oppression and discrimination, false arrest, [and] aggravated
kidnapping,” and has “barred [him] from traveling at U.S. airports” and “performing [his] role of
Plenipotentiary.” Id. at 7. For this alleged harm, Xelup seeks damages of a hundred million dollars
and an injunction requiring the Department of Commerce and the Census Bureau to finally “adjust
their records.” Id.
Second, Xelup alleges that the Department of Homeland Security and its Secretary have
infringed his “right to movement.” Id. at 10. He claims that, after he assisted a fellow MAN
citizen in filing a tort claim against the United States, see Sakatu v. Virgin Islands of the United
States, et al., Civ. A. No. 23-cv-1601, he was “held” for “more than forty-five minutes” by customs
officials as he “attempted to travel to Washington, DC.” Id. Xelup seeks reimbursement for travel
expenses that he allegedly incurred as a result of that disruption, as well as injunctive relief, such
as the “immediate development” of a “policy which recognizes [his] indigenous rights to
movement.” Id. at 11.
Third, Xelup claims that the Department of Interior and its Secretary have impermissibly
“ignored” or refused to “file” communications that Xelup sent the Department concerning the
“American Arawak inhabitants of the Virgin Islands territory.” Id. at 11–12. Xelup alleges that
this conduct has “perpetuat[ed] the diminished rights and freedoms of [his] indigenous rights,” and
he accordingly seeks the creation of a “policy recognizing [his] indigenous right as Plenipotentiary

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of MAN” and an order requiring the government to “put in place immediate indigenous
protections.” Id.
Last, Xelup alleges that two federal judges, Judge Cheryl Krause and Judge Colin Bruce,
violated his rights and engaged in “systematic acts of apartheid” by denying him leave to intervene
in lawsuits pending before them that allegedly related to MAN’s territory or members. Id. at 17–
20. As a remedy, Xelup requests reimbursement of his legal fees in this lawsuit, as well as other
relief that would “reflect [his] right to represent[] and provide protections for the people of MAN.”
Id. at 19–20. Xelup also seeks damages for allegedly “slanderous” statements about MAN that
Judge Bruce made on the record in the prior case (namely, that MAN does not exist). Id. And in
his complaint’s general prayer for relief, Xelup further seeks against all defendants in the suit a
right to use certain “ceremonial” and “vacant lands”; an order requiring defendants to develop and
implement diversity policies for “indigenous inhabitants”; recognition of Xelup’s right to be an
“equal partner[]” in “decision-making”; and disgorgement of “benefits [that defendants] have
received from their illegal purchase[], sale, and possession[] of the subject, Arawak people, with
interest.” Id. at 21–22.
To the extent that Xelup’s claims against the federal government are more than “bizarre
conspiracy theories” which must be dismissed for lack of jurisdiction, Best v. Kelly, 39 F.3d 328,
330 (D.C. Cir. 1994), they also fail because they are barred by applicable immunity and
justiciability doctrines. “Sovereign immunity bars suits against the United States, its agencies, and
its employees sued in their official capacities, absent a waiver.”1 Jarvis v. Kijakazi, 2022 WL

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Although Xelup’s complaint can only reasonably be construed as pertaining to federal
government officials in their official capacities, see generally Compl., Xelup filed a “Notice of
Errata” purporting to clarify that all individual defendants “are being sued in their individual and
official capacit[ies].” ECF No. 14. But regardless, the federal government has submitted a
Westfall Certification attesting that all individually named federal employees were acting within
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4464985, at *2 (D.D.C. Sept. 26, 2022), aff’d, 2023 WL 2815967 (D.C. Cir. 2023). “Such a waiver
cannot be implied but must be unequivocally expressed” in statutory text. Id. (quotation marks
omitted). The only federal statute that Xelup mentions in his complaint is the Alien Tort Statute,
Compl. at 2, but that Act is essentially jurisdictional and does not “itself . . . provide a waiver of
sovereign immunity.” Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir.
1992).
Insofar as Xelup also intends to assert common law claims for tort damages against any
federal defendant, those must proceed here under the Federal Tort Claims Act (FTCA), which
“provides a method for enforcing state tort law against the federal government.” Buie v. United
States, 2024 WL 519593, at *5 (D.D.C. 2024), aff’d, 2025 WL 502043 (D.C. Cir. 2025). But the
only proper defendant in an FTCA case is the United States, not “individuals or [] particular
government agencies.” Cox v. Sec’y of Lab., 739 F. Supp. 28, 29 (D.D.C. 1990). And the United
States may be sued under the FTCA only after the plaintiff has “first presented the claim to the
appropriate Federal agency.” 28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S. 106,
113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have

the scope of their employment at the time of the alleged incidents. See ECF No. 15-2. Under the
Westfall Act, that certification requires the substitution of the United States as the sole federal
defendant in any damages action and establishes the Federal Tort Claims Act (FTCA) as the sole
available means of seeking damages, unless the plaintiff pleads “specific facts rebutting the
certification.” Council on Am. Islamic Rels. v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006)
(citing 28 U.S.C. § 2679(d)(1)); see also 28 U.S.C. § 1679(b)(1). As will be discussed, Xelup has
not alleged a viable FTCA claim. And although Xelup asserts that the government’s Certification
should not effect substitution here, he does not provide any coherent basis for that assertion. See
generally ECF No. 19. Nor does Xelup bring any claims that would fall within an exception to
the Westfall Act. See generally Compl.; see also 28 U.S.C. § 2679(b)(2). Finally, to the extent
that Xelup seeks injunctive relief against any individual federal defendant in his or her personal
capacity, that effort fails because the specific remedies Xelup seeks—alteration of records, the
creation of new policies, and the forfeiture of federal land— “can only be provided by the
government through government employees acting in their official capacities.” Hatfill v. Gonzales,
519 F. Supp. 2d 13, 26 (D.D.C. 2007).
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exhausted their administrative remedies.”). Because Xelup has not pleaded any facts indicating
that he complied with the FTCA’s exhaustion requirement as to any tort claims he makes against
the United States—the only claims here as to which sovereign immunity could conceivably be
waived—those claims must be dismissed. Nor can Xelup’s request for prospective injunctive
relief save his claims from the sovereign immunity bar, cf. Ex Parte Young, 209 U.S. 123, 159–60
(1908), as he lacks standing to seek it. Xelup has not alleged that he is “immediately in danger of
sustaining some direct injury as the result of the challenged official conduct” that is “both real and
immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02
(1983) (quotation marks omitted).
Finally, judicial immunity separately bars Xelup’s claims against Judge Krause and Judge
Bruce. Judges generally “enjoy absolute judicial immunity from suits for money damages for all
actions taken in [a] judicial capacity,” Sindram v. Suda, 986 F.2d 1459, 1460 (D.C. Cir. 1993) (per
curiam), and denying leave to intervene (including any statements made in that process) is plainly
a judicial function. See Mireles v. Waco, 502 U.S. 9, 12 (1991) (per curiam). Moreover, federal
district courts “lack[] jurisdiction to review decisions of other federal courts,” Smalls v. United
States, 471 F.3d 186, 192 (D.C. Cir. 2006), so Xelup also cannot obtain any non-monetary relief
he seeks against the judges—which is wholly premised on his view that their prior orders were
erroneous.
II.

Claims Against Virgin Islands Defendants
Xelup also brings claims against the Virgin Islands and two individuals it employs. Xelup

alleges that the Virgin Islands and its governor, Albert Bryan, “denied [him] access to conferences,
meetings, and other gatherings[] where [Governor Bryan] makes policy and rules affecting the
indigenous inhabitants” whom Xelup “represent[s] and protect[s]” in his role as “Plenipotentiary[]

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for the tribes of MAN.” Compl. at 15; see id. at 13. As relief, Xelup “seek[]s to have the Court
enforce and order the establishment of diversity policies and programs for indigenous
inclusiveness . . . for indigenous inhabitants in US territory.” Id. at 14, 16. In addition, Xelup
claims that a judge of the Superior Court of the Virgin Islands, Alphonso Andrews, Jr., improperly
denied his request to “review” files in a criminal case against a citizen of MAN. Id. at 16–17.
Regarding that alleged harm, Xelup “seeks reimbursement of fees related to the filing of this”
lawsuit and an order “barr[ing] [Judge Andrews’s] . . . actions which may operate in contradiction
or opposition to the role of plenary protections provided by international law.” Id. at 17. Xelup
also seeks against all Virgin Islands defendants the remedies in his general prayer for relief,
described above. See id. at 21–22.
To start, Xelup has not sued the Virgin Islands defendants in the correct venue. “The
federal venue statute provides three bases for venue.” Fam v. Bank of Am. NA (USA), 236 F. Supp.
3d 397, 406 (D.D.C. 2017). Civil actions may be brought in: (1) “a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located”; (2)
“a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred”; and (3) if no other district is appropriate, “any judicial district in which any defendant
is subject to the court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(1)–
(3). Xelup has not alleged that any Virgin Islands defendant resides in the District of Columbia;
rather, they appear to reside in the Virgin Islands, where Xelup also alleges that he maintains his
“official MAN [] office and staff.” Compl. at 2. Nor has Xelup alleged that a “substantial part of
the events . . . giving rise to” his claims against the Virgin Islands defendants occurred in this
district, and again, they appear to have occurred in the Virgin Islands. And because venue is proper

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in another district—the Virgin Islands—the final “prong of the general venue statute [is]
unavailable here.” Fam, 236 F. Supp. 2d at 407.
“Under 28 U.S.C. § 1406(a), [a] district court shall dismiss an action filed in an improper
venue or, if it is in the interest of justice, transfer such case to any district in which it could have
been brought.” Id. at 408. Here, transfer is not in the interest of justice and dismissal is appropriate
because Xelup’s complaint also fails to state a plausible claim for relief. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Regarding the Virgin Islands and Governor Bryan, Xelup alleges only
that those defendants denied him access to “conferences, meetings, and other gatherings” where
policies relevant to MAN supposedly are discussed. Compl. at 13, 15. But it is not clear what
legal right that plausibly violates—not to mention which international law, to the extent Xelup is
proceeding under the Alien Tort Statute—and Xelup points only to the nebulous concepts of
“[i]nternational diversity” and “inclusion.” Id. at 13; see Sosa v. Alvarez-Machain, 542 U.S. 692,
724–25 (2004). That is insufficient.
Regarding Judge Andrews, and as has already been explained, federal district courts
“generally lack[] appellate jurisdiction over other judicial bodies, and cannot exercise appellate
mandamus over other courts.” United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011). Yet,
Xelup asks the Court to hold that Judge Andrews erred when denying Xelup’s request to intervene.
Compl. 16–17. The Court cannot do so.
III.

Claims Against State Defendant
Xelup last asserts claims against a judge of the Las Vegas Superior Court, Christy Craig.

Id. at 20. Xelup alleges that Judge Craig rejected as fictious a MAN identification card proffered
by a MAN citizen who was stopped in Las Vegas for failing to use a turn signal, and then, when
MAN’s Attorney General at Xelup’s direction filed an “official notice” to the Las Vegas Superior

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Court, that Judge Craig further “disregarded all communications and ordered the MAN citizen be
locked up in a mental institution.” Id. at 20–21. To redress those alleged actions, Xelup again
seeks reimbursement of his costs and fees in this lawsuit and an order “bar[ring] [Judge Craig’s]
further actions related to [his] right to intervene as Plenipotentiary on behalf of Lusa Koi Yakaba,
who is a citizen of MAN.” Id. at 21. Xelup also seeks “damages for defamation as committed by
[Judge Craig],” as well as the aforementioned remedies in his general prayer for relief. Id. at 21–
22.
Although Judge Craig, unlike the other defendants in the case, has not moved for dismissal
of the claims against her, a “district court may sua sponte dismiss a claim pursuant to Rule 12(b)(6)
without notice where it is patently obvious that the plaintiff cannot possibly prevail based on the
facts alleged in the complaint.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 127 (D.C. Cir.
2012) (quotation marks omitted). For the reasons already discussed, that is true here. Judge Craig
is absolutely immune from damages suits over actions taken in a judicial capacity, and all actions
alleged in the complaint squarely fit that bill. See Sindram v. Suda, 986 F.2d at 1460; Mireles, 502
U.S. at 12. And the Court lacks jurisdiction to order injunctive relief against Judge Craig that
would amount to “appellate mandamus” over her decision in a prior case, which is what Xelup
seeks. Choi, 818 F. Supp. 2d at 85.
IV.

Conclusion
For the foregoing reasons, it is hereby
ORDERED that the Federal Defendants’ Motion to Dismiss, ECF No. 15, is GRANTED;

and it is further

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ORDERED that Plaintiff’s Motion to Deny the Federal Defendants’ Reply in Support of
the Motion to Dismiss, ECF No. 22, is DENIED because Plaintiff identified no basis for rejecting
Defendants’ timely-filed reply, ECF No. 20; and it is further
ORDERED that Governor Bryan and the Virgin Islands’ Motion to Dismiss, ECF No. 7,
is GRANTED and that the accompanying Motion to Quash is DENIED AS MOOT; and it is
further
ORDERED that Judge Andrews’s Motion to Dismiss, ECF No. 6, is GRANTED and that
the accompanying Motion to Quash is DENIED AS MOOT; and it is further
ORDERED that Judge Andrews’s Motion to Deem Conceded the Motion to Dismiss, ECF
No. 10, and Motion to Strike Plaintiff’s Memorandum in Opposition, ECF No. 13, are DENIED
because the Court considered Plaintiff’s Memorandum in Opposition, ECF No. 11, despite its
belatedness; and it is further
ORDERED that Plaintiff’s Motion to Deny Judge Andrews’s Motions to Dismiss, to
Deem Conceded, and to Strike, ECF No. 21, is GRANTED IN PART as to ECF Nos. 10 and 13
and DENIED IN PART as to ECF No. 6; and it is further
ORDERED that Plaintiff’s Motion to Take Judicial Notice, ECF No. 29, is DENIED
because Plaintiff states that “ECF No. 29 was not meant to be a MOTION” but “simply a . . .
NOTICE,” ECF No. 31; and it is further
ORDERED that Plaintiff’s complaint, ECF No. 1, and this case are DISMISSED
WITHOUT PREJUDICE.
This is a final and appealable Order.
The Clerk of Court is directed to close this case.

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DATE: March 12, 2025

________________________
CARL J. NICHOLS
United States District Judge

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