Swofford v. United States Government et al

Filing 24

ORDER granting in part Defendants' 18 Motion to Dismiss for Lack of Jurisdiction. All of Plaintiff's claims are dismissed, except for his FOIA claim against the United States Department of Justice. Signed by District Judge Keith Starrett on December 9, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MARTIN KEARBY SWOFFORD, JR.
V.

PLAINTIFF

CIVIL ACTION NO. 5:16-CV-20-KS-MTP

UNITED STATES OF AMERICA et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part Defendants’ Motion to Dismiss
[18] for lack of subject matter jurisdiction. All of Plaintiff’s claims are dismissed, except
for his FOIA claim against the United States Department of Justice.
I. BACKGROUND
Plaintiff sued the United States of America and a variety of its agencies – the
General Services Administration, Office of Personnel Management, Justice
Department, United States Marshal’s Service, and Internal Revenue Service. The legal
basis and purpose of his suit is unclear. His Complaint [1] contains no citation to a
particular law, theory of liability, or demand for relief.
Plaintiff apparently claims that a private party under contract with the General
Services Administration stole his salary, which caused him to take on credit card debt,
which caused him to be fired from his job as a security guard at the federal courthouse
in Natchez, Mississippi. He claims that the various government agencies named as
Defendants engaged in a criminal conspiracy that caused him to accrue credit card
debt, lose his job, and accrue an incorrect amount of federal income tax liability.
Defendants filed a Motion to Dismiss [18], which the Court now addresses.

II. DISCUSSION
Each Defendant is an agency of the United States government. Defendants
argue that they enjoy sovereign immunity against Plaintiff’s claims, and, therefore,
that this case should be dismissed for lack of subject matter jurisdiction. “[S]overeign
immunity is jurisdictional in nature . . . ,” St. Tammany Parish v. FEMA, 556 F.3d 307,
316 (5th Cir. 2009), and “[f]ederal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is not to be expanded
by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S. Ct. 1673, 128 L. Ed. 2d 391 (1994). Accordingly, “[a] case is properly dismissed for
lack of subject matter jurisdiction . . . .” Smith v. Reg’l Transit Auth., 756 F.3d 340, 347
(5th Cir. 2014). “[T]he burden of establishing [jurisdiction] rests upon the party
asserting jurisdiction.” Kokkonen, 511 U.S. at 377.; see also Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001).
“A rule 12(b)(1) motion should be granted only if it appears certain that the
plaintiff cannot prove a plausible set of facts that establish subject matter jurisdiction.”
Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009). A district court may dismiss
a suit for lack of subject matter jurisdiction based on: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Here, the Court elects
to only consider the pleadings and undisputed facts evidenced in the record.
Accordingly, it must “consider the allegations in the plaintiff’s complaint as true.”
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Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010).
“The basic rule of federal sovereign immunity is that the United States cannot
be sued at all without the consent of Congress. Because sovereign immunity is
jurisdictional in nature, Congress’s waiver of it must be unequivocally expressed in
statutory text and will not be implied.” St. Tammany Parish, 556 F.3d at 316. “Absent
a waiver, sovereign immunity shields the Federal Government and its agencies from
suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).
Plaintiff, as the party who filed this action, bears the burden of establishing
jurisdiction, Kokkonen, 511 U.S. at 377, and he also “bears the burden of showing
Congress’s unequivocal waiver of sovereign immunity.” St. Tammany Parish v. Fema,
556 F.3d 307, 315 (5th Cir. 2009).
Plaintiff made no attempt in his Complaint [1], his Response [20] to Defendants’
motion, or the various letters he sent after the Response [21, 22, 23] to demonstrate
that Congress waived Defendants’ sovereign immunity with respect to his claims.
Likewise, he did not articulate any basis for this Court’s jurisdiction. He did not cite
the Federal Tort Claims Act or assert any tort theory under state law that would
permit him to proceed thereunder. See Smart v. Holder, 368 F. App’x 591, 593 (5th Cir.
2010). In fact, his Complaint [1] and briefing on the present motion [20] contain a
variety of factual allegations without any corresponding cause of action, theory of
liability, or demand for relief – with a single exception addressed below.
Therefore, the Court concludes that Plaintiff has not carried his burden of
demonstrating that Congress unequivocally waived its sovereign immunity with
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respect to most of the claims he asserted in this case. Accordingly, this Court lacks
subject matter jurisdiction, and most of the case must be dismissed.
However, Plaintiff mentioned in his Response [20] to Defendants’ Motion to
Dismiss [18] that he is “suing the United States Justice Department because [he
believes] they violated federal law when they denied two Freedom of Information
Requests.” Defendant did not address this claim in its Motion to Dismiss [18] or apply
the sovereign immunity argument to it. Of course, Defendant could not have done so
insofar as Plaintiff’s Complaint [1] includes no mention of the Freedom of Information
Act (“FOIA”). Regardless, the Court must “permissively” construe a pro se litigant’s
pleadings and briefs. SEC v. AMX, Int’l, 7 F.3d 71, 75 (5th Cir. 1993). In an abundance
of caution, the Court presently declines to dismiss Plaintiff’s FOIA claim against the
Department of Justice. But Defendant is free to file another motion to dismiss, as it
deems appropriate.
III. CONCLUSION
For these reasons, the Court grants in part Defendants’ Motion to Dismiss [18]
for lack of subject matter jurisdiction. All of Plaintiff’s claims are dismissed, except for
his FOIA claim against the United States Department of Justice.
SO ORDERED AND ADJUDGED, on this, the 9th day of December, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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