Kirkpatrick v. Holder et al

Filing 13

REPORT AND RECOMMENDATIONS that the District Court GRANT Defendants' 9 Motion to Dismiss this lawsuit for lack of subject matter jurisdiction. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DAVID SCOTT KIRKPATRICK

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V.
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LORETTA E. LYNCH, ATTORNEY
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GENERAL OF THE UNITED STATES;
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RICHARD L. DURBIN, UNITED STATES §
ATTORNEY FOR THE WESTERN
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DISTRICT OF TEXAS; AND THE
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UNITED STATES DEPARTMENT
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OF JUSTICE
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A-15-CA-313-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction,

filed on June 17, 2015 (Dkt. No. 9); Plaintiff’s Response to Motion to Dismiss, filed on June 30,
2015 (Dkt. No. 10); and Defendant’s Reply, filed on July 6, 2015 (Dkt. No. 12).
The District Court referred the above-motion to the undersigned Magistrate Judge for a report
and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules
of the United States District Court for the Western District of Texas, Local Rules for the Assignment
of Duties to United States Magistrate Judges.
I. GENERAL BACKGROUND
On December 2, 2014, Plaintiff David Scott Kirkpatrick (“Kirkpatrick”) filed a lawsuit in
the Waco Division of the United States District Court seeking a determination under the Federal
Declaratory Judgment Act and 42 U.S.C. § 1983 that he is not a “convicted felon” for purposes of
18 U.S.C. § 922 and related statutes and that he is not subject to prosecution or conviction for

possessing a firearm. See Complaint in Kirkpatrick v. United States of America, No. 6:14-CV-465
WSS. On March 17, 2015, the Honorable Walter S. Smith, Jr. granted the United States’ Motion
to Dismiss for Lack of Jurisdiction based on sovereign immunity and dismissed Kirkpatrick’s
lawsuit. Dkt. No. 7 in 6:14-CV-465 WSS. Kirkpatrick did not appeal the Order. A few weeks later,
on April 21, 2015, Kirkpatrick filed an identical lawsuit in the Austin Division of the Western
District of Texas alleging the same claims against the same Defendant—the United States. Dkt. No.
1. On May 25, 2015, Kirkpatrick amended his Complaint to drop the United States as a defendant,
and added Loretta E. Lynch, Attorney General of the United States, Richard L. Durbin, United States
Attorney for the Western District of Texas, and the United States Department of Justice (collectively
“Defendants”) as Defendants in the case.
Defendants have now filed the instant Motion to Dismiss moving the Court to dismiss this
lawsuit under Federal Rule of Civil Procedure 12(b)(1) because the Court lacks subject matter
jurisdiction over the Defendants based on the doctrine of sovereign immunity.
II. STANDARD OF REVIEW
Federal courts have limited jurisdiction, and therefore, the power to adjudicate claims only
when jurisdiction is conferred by statute and the Constitution. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter
jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders
Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof
for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). “Accordingly, the
plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id. In ruling on a
Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone;
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(2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed
facts, along with the court’s resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th
Cir. 2008).
III. ANALYSIS
A.

Claims Against the Department of Justice
“Sovereign immunity shields the United States from suit absent a consent to be sued that is

‘unequivocally expressed.’” United States v. Bormes, 133 S.Ct. 12, 16 (2012) (quoting United States
v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992)). The Supreme Court has long held that only
Congress can consent to suits against the United States. See e.g., Stanley v. Schwalby, 162 U.S. 255,
269-70 (1896); Kansas v. United States, 204 U.S. 331, 390 (1907). Thus, a plaintiff may only sue
the United States or its agencies if a federal statute explicitly waives sovereign immunity. See e.g.,
Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign
immunity must be unequivocally expressed in statutory text, and will not be implied.”). The doctrine
of sovereign immunity extends to the agencies of the United States. F.D.I.C. v. Meyer, 510 U.S.
471, 475 (1994). Because sovereign immunity deprives a court of jurisdiction, it may be raised at
any time by any party or by the court sua sponte. Henderson v. Shinseki, 562 U.S. 428, 435 (2011);
Johnston v. United States, 85 F.3d 217, 218 n. 2 (5th Cir.1996).
The Court lacks subject matter jurisdiction over the United States DOJ, because it is an
agency of the United States, and therefore possesses sovereign immunity. See Thibodeaux v.
Tamashiro, 540 F. App’x. 418, 419 (5th Cir. 2013); Smart v. Holder, 368 F. App’x 591, 593 (5th Cir.
2010). Kirkpatrick has failed to identify a statute that waives the DOJ’s sovereign immunity in this
case. General jurisdictional statutes such as 28 U.S.C. § 1331 do not waive the Government’s
sovereign immunity. Smith v. Booth, 823 F.2d 94, 97 (5th Cir. 1987). Nor does the declaratory
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judgment statute, 28 U.S.C. § 2201, confer jurisdiction on a federal court where none otherwise
exists. Anderson v. United States, 229 F.2d 675, 677 (5th Cir. 1956).1 Because Kirkpatrick has
failed to identify a statute that shows that the United States has consented to this lawsuit, the DOJ
is entitled to sovereign immunity from this lawsuit.
B.

Individual Defendants
In addition to the DOJ, Kirkpatrick has brought official capacity claims against Loretta E.

Lynch, the Attorney General of the United States, and Richard L. Durbin, the United States Attorney
for the Western District of Texas. As official capacity claims, Kirkpatrick’s claims against Lynch
and Durbin are really claims against the Untied States, and thus they too are barred by sovereign
immunity. See Anderson v. Transamerica Specialty Ins. Co., 804 F. Supp. 903, 906 (S.D. Tex.
1992) (“[A] suit against the head of a federal agency in his official capacity only is considered a suit
against the government itself”). Suits against federal officers are barred by the doctrine of sovereign
immunity “if the conduct in question has been undertaken on behalf of the government.” 14
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3655 (3d ed. 2013). When an action “is against a federal officer, the court at the very
least, must analyze the facts of the case and the relief sought by the plaintiff to determine whether
the suit is in reality against the individual or against the federal government.” Id. As the Fifth
Circuit has explained:

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Kirkpatrick has also invoked 42 U.S.C. § 1983 in this lawsuit. However, § 1983 does not
apply to the United States or to federal officials acting under federal law. See District of Columbia
v. Carter, 409 U.S. 418, 424-25 (1973) (§ 1983 “does not reach . . . actions of the Federal
Government and its officers are at least facially exempt from its proscriptions.”); Morales-Garza
v. Lorenzo-Giguere, 277 F. App’x 444, 446 (5th Cir.), cert. denied, 555 U.S. 971 (2008) (§ 1983 does
not apply to federal officers who act under federal law).
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The fact that the United States was not named as a defendant does not determine
whether it is actually a party to the suit, for it has long been the law that to make such
a determination it is necessary to look to the effect of the judgment that may be
rendered. For, as stated in Dugan v. Rank, 372 U.S. 609 (1963): “The general rule
is that a suit is against the sovereign if ‘the judgment sought would expend itself on
the public treasury or domain, or interfere with the public administration, or if the
effect of the judgment would be ‘to restrain the Government from acting, or to
compel it to act.”
Simons v. Vinson, 394 F.2d 732, 736 (5th Cir.), cert. denied, 393 U.S. 968 (1968) (internal citations
and quotations omitted). Because Lynch and Durbin’s conduct in question was clearly undertaken
on behalf of the Government, and the effect of the judgment would clearly be to to restrain the
Government from acting, Kirkpatrick’s lawsuit against Lynch and Durbin is barred by the doctrine
of sovereign immunity. See Smart, 368 F. App’x at 593 (dismissing Attorney General and Acting
United States Attorney based on sovereign immunity).2 As Kirkpatrick has failed to identify a statute
that shows that the United States has consented to suits of this type, the Individual Defendants have
sovereign immunity from this lawsuit.
IV. RECOMMENDATION
The undersigned therefore RECOMMENDS that the District Court GRANT Defendants’
Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. No. 9) and DISMISS this lawsuit
for lack of subject matter jurisdiction.3

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Moreover, 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).
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Because the Court finds that this case should be dismissed for lack of subject matter
jurisdiction based on sovereign immunity, the Court need not reach Defendants’ alternative argument
based on res judicata.
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V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 2nd day of September, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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