McLean v. Obama et al

Filing 43

ORDER AND REASONS - dismissing plaintiff's complaint.. Signed by Chief Judge Sarah S. Vance on 6/30/15.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VICKI FANNING MCLEAN

CIVIL ACTION

VERSUS

NO: 15-8

PRESIDENT OF THE UNITED STATES,
BARACK OBAMA, ET AL.

SECTION: R(4)

ORDER AND REASONS
Defendants President Barack Obama, former Presidents George H.
Bush, George W. Bush, and William Clinton, former United States
Attorneys General Eric Holder, John Ashcroft, Alberto Gonzales and
Michael Mukasey, the United States Department of Justice, and the
United States Federal Court System move to dismiss plaintiff Vicki
McLean's claims under Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6).1

The Court grants defendants' motions because the Court

does not have jurisdiction over plaintiff's claims.

I.

Background
Plaintiff, proceeding pro se, filed the instant suit levying

several

allegations

Government.

The

against

gravamen

various
of

branches

plaintiff's

of

suit

the
is

Federal

that

defendants "conspired together in racketeering activities" to:
(1) murder plaintiff's husband, James McLean, in order to
steal his designs for the "High Frequency Active Aurora
Program," a "weather modification system" used by the
Department of Defense to "create the Japan earthquake on

1

R. Docs. 14 and 22.

all

3/11/2011;"
(2) launder money from the United States Medicare and
Medicaid funds;
(3) "financially and physically attack" plaintiff,
including several alleged assassination attempts; and
(4) prohibit plaintiff from disclosing defendants'
activities by interfering with plaintiff's court filings
and by stabbing her previous attorney.2
Plaintiff seeks monetary damages for all of these alleged harms.3
Defendants

now

move

to

dismiss

plaintiff's

claims

under

Federal Rule of Civil Procedure 12(b)(1) arguing that the Court
lacks subject matter jurisdiction.

In the alternative, defendants

argue that plaintiff has failed to plead a claim upon which relief
may be granted under Rule 12(b)(6).

II.

Standard of Review
Federal Rule of Civil Procedure 12(b)(1) permits dismissal for

lack of jurisdiction over the subject matter of a claim. In ruling
on a Rule 12(b)(1) motion to dismiss, the Court may rely on (1) the
complaint alone, presuming the allegations to be true, (2) the
complaint supplemented by undisputed facts, or (3) the complaint
supplemented by undisputed facts and by the court's resolution of
disputed facts.

Den Norske Stats Ojeselskap As v. HeereMac Vof,

241 F.3d 420, 424 (5th Cir. 2001); see also Marrera-Montenegro v.

2

R. Doc. 1 at 3-7.

3

Id. at 13 (styled as "restitution").
2

United States, 74 F.3d 657, 659 (5th Cir. 1996).

The party

asserting jurisdiction bears the burden of establishing that the
district court possesses jurisdiction.

Ramming v. United States,

281 F.3d 158, 161 (5th Cir. 2001).
When, as here, grounds for dismissal may exist under both Rule
12(b)(1) and Rule 12(b)(6), the Court should dismiss only under the
former without reaching the question of failure to state a claim.
See Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).

Because

the Court finds that plaintiff's claim must be dismissed under Rule
12(b)(1), it does not address the legal standard for dismissal
under Rule 12(b)(6).

III. Discussion
Defendants contend that federal sovereign immunity precludes
the Court from exercising jurisdiction over plaintiff's claims.
"The basic rule of federal sovereign immunity is that the United
States cannot be sued at all without the consent of Congress."
Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.
273, 287 (1983).

Accordingly, suits against officials or agencies

of the United States are barred if there is no waiver of sovereign
immunity.

Hawaii v. Gordon, 373 U.S. 57, 58 (1963).

"A

waiver of

the Federal Government's sovereign immunity must be unequivocally
expressed in the statutory text and will not be implied."
Pena, 518 U.S. 187, 192 (1996).

3

Lane v.

Absent an express waiver of

sovereign immunity, a federal court does not have jurisdiction to
adjudicate claims against sovereign defendants. FDIC v. Meyer, 510
U.S. 471, 475 (1994) ("Sovereign immunity is jurisdictional in
nature.

[Thus,] the terms of [the United States'] consent to be

sued in any court defines that court's jurisdiction to entertain
the suit.") (internal quotation marks omitted).

A plaintiff bears

the burden of showing Congress' unequivocal waiver of sovereign
immunity in a suit against federal agencies or officials.

St.

Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 315 (5th Cir.
2009).
Here, plaintiff fails to carry her burden of demonstrating
Congress's unequivocal waiver of sovereign immunity.

Indeed,

rather than attempt to demonstrate a waiver of sovereign immunity,
plaintiff argues that "it is ridiculous to state [that] the United
States as a sovereign nation is immune from being sued except if
the United States has consented to be sued."4

Unfortunately for

plaintiff, "[t]he doctrine of sovereign immunity is inherent in our
constitutional structure and . . . renders the United States [and]
its departments immune from suit except as the United States has
consented to be sued."

Williamson v. U.S. Dep't of Agric., 815

F.2d 368, 373 (5th Cir. 1987).
As mentioned above, the gravamen of plaintiff's allegations
are that the federal defendants "conspired together in racketeering

4

R. Doc. 24 at 1.
4

activities" to cause harm to the plaintiff.5

Although plaintiff

does not ground her claims on any particular statute, the Court
reads plaintiff's complaint as asserting civil RICO liability under
18 U.S.C. § 1962.6

Section 1962, however, does not contain an

express waiver of sovereign immunity, see 18 U.S.C. § 1962, et
seq., and every court to address the issue has found that the
Federal Government and its employees are immune from suit under the
civil RICO statute.

See Hamrick v. Bush, Civ. A. No. 04-5316, 2006

WL 1524593, at *1 (D.C. Cir. Jan. 26, 2006) (appellant has not
demonstrated that Congress waived sovereign immunity for civil RICO
claims); United States v. Bonnanno Organized Crime Family of La
Cosa

Nostra,

879

F.2d

20,

22-23

(2d

Cir.

1989)

(review

of

legislative history does not evince any congressional intent to
expose the United States to RICO liability); McMillan v. Dep't of
Interior, 907 F. Supp. 322, 326 (D. Nev. 1995), aff'd 87 F.3d 1320
(9th Cir. 1996), cert. denied 519 U.S. 1132 (1997) (holding that no
RICO statute waives the sovereign immunity of the United States or
its agencies); Tipton v. Northrop Grumman Corp., Civ. A. No. 081267, 2009 WL 2969505, at *2 (E.D. La. Sept. 10, 2009) (collecting
cases); c.f. McNeily v. United States, 6 F.3d 343, 350 (5th Cir.

5

R. Doc. 1 at 3.

6

Despite the confusing and inscrutable nature of
plaintiff's complaint, the Court has made every effort to
construe plaintiff's claims as broadly and favorably as possible.
See Cooper v. Sheriff of Lubbock Cnty., 929 F.2d 1078, 1081 (5th
Cir. 1991).
5

1993) (the United States may not be a proper defendant in a RICO
suit); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (same).
Additionally, to the extent that plaintiff is alleging violations
of her civil rights, the Fifth Circuit "has long recognized that
suits against the United States brought under the civil rights
statutes are barred by sovereign immunity." Affiliated Prof'l Home
Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999).
See also Unimex, Inc. v. U.S. Dep't of Housing & Urban Dev., 594
F.2d 1060, 1061 (5th Cir. 1979) (sovereign immunity bars claims
against federal government under 42 U.S.C. §§ 1981, 1982 and 1986).
Moreover, to the extent that plaintiff's claims are not barred
by sovereign immunity, the Court finds that plaintiff's claims are
facially frivolous and, therefore, fail to invoke the Court's
jurisdiction.

See Dilworth v. Dallas Cnt. Comm. Coll. Dist., 81

F.3d 616, 617 (5th Cir. 1996) ("When a plaintiff's complaint is
facially frivolous and insubstantial, it is insufficient to invoke
the jurisdiction of a federal court.").

Indeed, the United States

Supreme Court "has repeatedly held that the federal courts are
without

power

to

entertain

claims

otherwise

within

their

jurisdiction if they are so attenuated and insubstantial as to be
absolutely

devoid

of

merit,

wholly

insubstantial,

obviously

frivolous, plainly unsubstantial, or no longer open to discussion."
Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (internal quotations
and citations omitted).

Plaintiff's claims here–-that the current

6

and former Presidents and Attorneys General of the United States
conspired along with the Department of Justice and the entire
Federal Judicial System to murder her husband, steal his weather
control device, and launder money from federal programs–-fall
within the category of claims so "fantastic and delusional" as to
preclude

the

Court

from

exercising

Hernandez, 504 U.S. 25, 32 (1992).

jurisdiction.

Denton

v.

See also Maringo v. McGuirk,

268 F. App'x 309, 310 (5th Cir. 2008) ("Maringo's claims against
McGuirk and her ghost are 'obviously frivolous' factually, and the
district court's dismissal of them is affirmed based on the lack of
subject matter jurisdiction."); Gallop v. Chaney, 642 F.3d 364, 386
(2d Cir. 2011) (affirming dismissal of complaint setting forth
fantastical alternative history of the September 11, 2001 terrorist
attack); Degrazia v. FBI, 316 F. App'x 172, 137 (3d Cir. 2009)
(affirming dismissal because district court lacked jurisdiction
over claims based on "fantastic scenarios lacking any arguable
factual basis"); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)
(stating that complaints consisting of "fanciful claims," "bizarre
conspiracy theories," or allegations of "fantastic government
manipulations of [the plaintiff's] will or mind" are generally
subject to dismissal under Rule 12(b)(1)); Flores v. U.S. Attorney
Gen., Civ. A. No. 14-198, 2015 WL 1088782, at *3 (E.D. Tex. Mar. 4,
2015) (finding no jurisdiction when "plaintiff's claims present
either a delusional scenario due to some mental incapacity or a

7

poor

attempt

at

entertaining

oneself

by

filing

a

frivolous

lawsuit"); Whitehead v. White & Case, LLP, Civ. A. No. 12-399, 2012
WL 1795151, at *2 (W.D. La. Apr. 19, 2012) (finding no jurisdiction
over plaintiff's claim that President George W. Bush "retaliated
against [plaintiff] for writing his college paper on the Persian
Gulf War"); Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006)
(holding

that

the

court

lacked

jurisdiction

over

plaintiff's

"fundamentally incredible" claim that FBI attacked him with lasers
and radiation).

IV.

Conclusion
For the foregoing reasons, the Court finds that it lacks

jurisdiction over plaintiff's claims.
grants

defendants'

motions

and

hereby

Accordingly, the Court
dismisses

plaintiff's

complaint.

New Orleans, Louisiana, this

30th

day of June, 2015.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

8