Cofield v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________________
)
KEENAN K. COFIELD, )
)
Plaintiff, )
)
v. ) Civ. No. 14-0055 (KBJ)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
_____________________________________ )

MEMORANDUM OPINION

Plaintiff Keenan K. Cofield (“Plaintiff”) is a Maryland state prisoner

incarcerated at the Eastern Correctional Institution in Westover, Maryland. 1 In

December of 2013, Plaintiff lodged a complaint in the Superior Court of the District of

Columbia against the United States and various federal agencies, President Barack

Obama, the United States House of Representatives, and the United States Senate

(collectively, “Federal Defendants”), as well as the Internet Corporation for Assigned

Names and Numbers (“ICANN”) and that organization’s President, Rod Beckstrom.

Plaintiff demands billions of dollars in damages and injunctive and declaratory relief.

On January 15, 2014, the House of Representatives removed the case to this

Court pursuant to 28 U.S.C. §§ 1442, 1446, with the consent of the remaining Federal

Defendants. (Notice of Removal, ECF No. 1.) On February 5, 2014, the Court granted

the House of Representatives’ motion to dismiss in light of Plaintiff’s consent to the

1
Plaintiff is apparently serving a ten-year sentence that the Circuit Court of Baltimore County imposed
on December 7, 2011, for a theft conviction. See Cofield v. Fed. Bureau of Prisons, No. 12-1178, 2012
WL 6201205, at *1 (D. Md. Dec. 11, 2012).

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dismissal. (See Order, ECF No. 6.) Presently before the Court is the remaining Federal

Defendants’ motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules

of Civil Procedure or for summary judgment under Rule 56. (See Fed. Defs.’ Mot. to

Dismiss, or in the Alternative, Mot. for Summ. J., ECF No. 9, at 1.) 2 In addition,

ICANN has moved to dismiss under Rule 12(b)(5) for insufficient service of process.

(See Defs.’ Internet Corp. for Assigned Name and Numbers & Richard Beckstrom’s

Mot. to Dismiss, ECF No. 27; Mem. In Supp. of Defs. Internet Corp. for Assigned

Name and Numbers & Rod Beckstrom’s Mot. to Dismiss (“ICANN’s Mem.”), ECF No.

27-2, at 1.) Plaintiff has filed a response to the Federal Defendants’ motion and has

moved for summary judgment or a default judgment “specifically against Defendants

ICANN[.]” (Pl.’s Mot. for Summ. J., or in the Alternative Mot. for Default J. &

Response to U.S. Gov’t’s Only Mot. to Dismiss, ECF No. 13.)

Because this Court concludes that it lacks jurisdiction over Plaintiff’s claims

against the Federal Defendants, the Court will GRANT the Federal Defendants’ motion

under Rule 12(b)(1), and will REMAND Plaintiff’s case against ICAAN and Beckstrom

to the Superior Court. 3 A separate order consistent with this opinion will follow.

I. BACKGROUND

The two-count complaint in this matter is perplexing. The Court has read it

liberally and considers the following information to be relevant to the disposition of the

case.

2
Page numbers throughout refer to those the Court’s electronic filing system assigns.
3
Plaintiff also seeks to compel the United States and ICANN to produce certain documents. (See
Request for Production of Documents—By Plaintiff, ECF No. 20.) Because this Court finds that it
lacks jurisdiction over Plaintiff’s claims against the Federal Defendants, it will deny any aspect of the
motion that pertains to the Federal Defendants, leaving the remainder for the Superior Court to resolve.

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 Plaintiff alleges that, in approximately 1997 or 1998, the Department of

Commerce (via the National Institute of Standards and Technology and the National

Telecommunications and Information Administration) issued a proposal that “allowed

for the creation and formation of” ICANN. (Compl., ECF No. 1-1, at 7.) According to

Plaintiff, ICANN is “a California non-profit, which . . . oversees, the Internet, regulates

Domain names, web addresses, the organization in charge of creating hundreds of

additional address suffixes, and more.” (Id.; see also ICANN’s Mem. at 2 (explaining

that ICAAN is a Los Angeles, California-based “not-for-profit public benefit

corporation” that “administers the Internet’s domain name system [] on behalf of the

Internet community, pursuant to a series of agreements with the United States

Department of Commerce.” (citation omitted)).) Plaintiff also describes ICANN as “a

single white owned non-profit government controlled business monopoly[.]” (Compl.

at 9.) He states that “[a]ll [he] wants is the legal right for the process and competition

to be fair, to be open, and equal to all no matter, race and other factors, to provide and

expand the existing internet/technology system to more people in different ways . . .

and the right to open and do business like ICANN[.]” (Id. at 7.)

In Count 1 of the Complaint, Plaintiff challenges the Defendants’ alleged denial

in September 2013 of his “several” Freedom of Information Act (“FOIA”) requests for

records pertaining to ICANN, “includ[ing] the 1998 proposal that led to [its]

creation[.]” (Id. at 6.) In Count 2 of the Complaint, Plaintiff accuses the federal

government of engaging in widespread illegal and unfair business practices with a

“non-government servant, agent, or contractor” to the detriment of “minority or blacks,”

who, according to Plaintiff, cannot “engage with ICANN [] for assigned names and

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numbers[.]” (Id. at 9.) Plaintiff alleges, among other wrongs, that the government has

“issued a blank check to allow [] ICANN a[n] un-restricted license with a BIG

expensive specific duty and title[.]” (Id.) Plaintiff also states that he is Black, and

“[w]e as a race of people have been intentionally omitted, to be left behind when it

comes to technology [] by design[.]” (Id. at 11.) Plaintiff continues in this manner,

directing his accusations in large part at ICANN. Ultimately, the complaint demands a

judgment of $10 billion in punitive damages, $3 billion in compensatory damages, and

“a guaranteed government loan, grants and/or line of credit of . . . [one billion] dollars,

to start and further develop[] Plaintiff[’]s business ideas, business plans, business

models to concepts into jobs and careers, in the tech profession.” (Id. at 23, 24.) In

addition, Plaintiff seeks an injunction barring ICAAN from, among other conduct,

issuing “any . . . new web addresses or domain name suffixes” and declaratory relief.

(Id. at 24-35.)

In their motion to dismiss, the Federal Defendants contend inter alia that this

Court lacks subject matter jurisdiction by virtue of four jurisdictional barriers:

Sovereign Immunity; the derivative jurisdiction doctrine; the Speech or Debate Clause

(as to the U.S. Senate); and Plaintiff’s lack of standing as to Count II of the Complaint.

(See Mem. in Supp. of Defs.’ Mot. to Dismiss, or in the Alternative, Mot. for Summ. J.

(“Fed. Defs.’ Mem.”), ECF No. 9-1, at 11- 18.) For their part, ICANN and Beckstrom

have jointly moved to dismiss under Rules 12(b)(5) and 4(m), alleging that Plaintiff

never properly served them with the complaint, and that they have never waived service

of process. (ICANN’s Mem. at 4-5.)

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 As explained below, this Court concludes that the claims against the individual

federal officials in their personal capacities are not properly brought and that it does not

have jurisdiction over Plaintiff’s claims against the Federal Defendants by virtue of

sovereign immunity and the derivative jurisdiction doctrine; consequently, the Court

declines to consider the Federal Defendants’ other (alternative) grounds for dismissal.

In addition, the Court will remand what remains of the case—i.e., Plaintiffs’ claims

against ICCAN and Beckstrom—leaving those defendants’ service arguments for the

Superior Court to resolve. See McKoy-Shields v. First Wash. Realty, Inc., No. 11-

01419, 2012 WL 1076195, at *2-3 (D.D.C. Mar. 30, 2012) (remanding remainder of

removed case after finding that court lacked jurisdiction over claims against federal

agency).

II. LEGAL STANDARDS FOR MOTION TO DISMISS UNDER RULE 12(B)(1)

If a court lacks subject matter jurisdiction to entertain a claim, it must dismiss

that claim. See Fed. R. Civ. P. 12(b)(1), 12(h)(3). Where, as here, a defendant files a

motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), “the court must first

examine the Rule 12(b)(1) challenges” because a dismissal for lack of subject matter

jurisdiction renders “the [other] accompanying defenses and objections [] moot[.]”

Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 64 (D.D.C. 2011) (citations and

internal quotation marks omitted).

It is well-settled that the plaintiff bears the burden of establishing jurisdiction by

a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992) (citation omitted); Halcomb v. Office of the Senate Sergeant-at-Arms of the U.S.

Senate, 209 F. Supp. 2d 175, 176 (D.D.C. 2002) (citation omitted). Indeed, when it

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comes to Rule 12(b)(1), it is “‘presumed that a cause lies outside [the federal courts’]

limited jurisdiction,’ unless the plaintiff establishes by a preponderance of the evidence

that the Court possesses jurisdiction[.]” Muhammed v. FDIC, 751 F. Supp. 2d 114, 118

(D.D.C. 2010) (first alteration in original) (quoting Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994) and citing Hollingsworth v. Duff, 444 F. Supp. 2d 61,

63 (D.D.C. 2006)).

“[T]he court must scrutinize the plaintiff’s allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under . . . Rule

12(b)(6).” Schmidt, 826 F. Supp. 2d at 65 (citing Macharia v. United States, 334 F.3d

61, 64, 69 (D.C. Cir. 2003), Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 12

(D.D.C. 2010), and Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.

2d 9, 13 (D.D.C. 2001)). Still, the court must accept as true all of the factual

allegations in the complaint and draw all reasonable inferences in favor of the plaintiff,

Epps, 719 F. Supp. 2d at 13 (citing Holy Land Found. for Relief & Dev. v. Ashcroft, 333

F.3d 156, 165 (D.C. Cir. 2003)), but it need not “accept inferences unsupported by the

facts alleged or legal conclusions that are cast as factual allegations[,]” Rann v. Chao,

154 F. Supp. 2d 61, 64 (D.D.C. 2001).

III. ANALYSIS

A. Plaintiff’s Individual-Capacity Claims

As an initial matter, Plaintiff states that “all defendants are being sued in their

individual and official capacities as U.S. Government officials, individual persons

and/or as agents, government contractors or other servents [sic] of the United States[.]”

(Compl. at 5.) He invokes the All Writs Act, 28 U.S.C. § 1651; the FOIA, 5 U.S.C.

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§ 552; the Privacy Act, 5 U.S.C. § 552a; the Declaratory Judgment Act, 28 U.S.C. §

2201; and the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, 1986, 1988. (Id.) But this

Court concludes that there is no legal basis upon which Plaintiff can sue the defendants

named in this lawsuit in their personal capacities.

To begin with, the organizational defendants—including the United States and its

agencies, the Senate, and ICAAN—are not subject to suit in their “individual”

capacities because “[p]ersonal-capacity suits seek to impose personal liability upon a

government official for actions he takes under color of state law.” Kentucky v. Graham,

473 U.S. 159, 165 (1985) (emphasis added). Turning to the individual defendants

named in the complaint, President Obama, Attorney General Eric Holder, and

Commerce Secretary Penny Pritzker (who assumed office on June 26, 2013) cannot be

held personally liable under Section 1983, because, by its terms, that statute does not

apply to federal officials. See 42 U.S.C. § 1983 (creating a cause of action for

deprivation of constitutional rights by any person acting “under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of

Columbia.”) Nor can those individuals be held personally liable under any of the other

statutes Plaintiff has invoked. See Johnson v. Exec. Off. for United States Attorneys,

310 F.3d 771, 777 (D.C. Cir. 2002) (FOIA provides no private right of action against

individuals); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006)

(concluding that “the district court properly dismissed the named individual defendants

because no cause of action exists that would entitle appellant to relief from them under

the Privacy Act or FOIA” (citations omitted)); see also Ali v. Rumsfeld, 649 F.3d 762,

778 (D.C. Cir. 2011) (“It is a well-established rule that the Declaratory Judgment Act is

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not an independent source of federal jurisdiction [; r]ather, the availability of

declaratory relief presupposes the existence of a judicially remediable right.” (internal

quotation marks, alterations, and citations omitted)); West v. Spellings, 480 F. Supp. 2d

213, 218 (D.D.C. 2007) (The All Writs Act “itself is not a grant of jurisdiction, and

does not provide a basis for [a] cause of action.” (internal quotation marks and citation

omitted)). In any event, the complaint’s personal-capacity claims with respect to these

defendants are so lacking in factual or legal support as to warrant dismissal under Rule

12(b)(1). See Tooley v. Napolitano, 586 F.3d 1006, 1009 (D.C. Cir. 2009) (“A

complaint may be dismissed on jurisdictional grounds when it is patently insubstantial,

presenting no federal question suitable for decision.” (internal quotation marks and

citation omitted)).

Accordingly, to the extent that Plaintiff intended to sue the Federal Defendants

named in the complaint in their personal capacities, those claims must be dismissed.

B. Plaintiff’s Claims Against The United States

1. Sovereign Immunity Bars Plaintiff’s Claims Against the United
States For Monetary Damages

With respect to Plaintiff’s claim for money damages against the federal agencies,

the United States Senate, and the above named high-level officials in their official

capacities, the Court notes that sovereign immunity ordinarily shields the federal

government, its agencies, and its officials from lawsuits. See FDIC v. Meyer, 510 U.S.

471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government

and its agencies from suit.” (citations omitted)). Sovereign immunity is “‘jurisdictional

in nature[,]’” Am. Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72, 79

(D.D.C. 2012) (quoting Meyer, 510 U.S. at 475) (other citations omitted), and although

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the government may waive immunity, such a waiver “must be unequivocally expressed

in statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)

(citations omitted).

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, waives the

sovereign immunity of the United States with respect to “claims arising from certain

torts committed by federal employees in the scope of their employment.” Sloan v.

Dep’t of Housing & Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001) (citing 28 U.S.C.

§§ 1346(b), 2674); see also Peter B. v. United States, 579 F. Supp. 2d 78, 82 (D.D.C.

2008) (“The [FTCA] waives the sovereign immunity of the United States with respect

to some, but not all, torts.”) (internal quotation marks and citations omitted). The

FTCA generally states that “[t]he United States shall be liable, respecting the provisions

of this title relating to tort claims, in the same manner and to the same extent as a

private individual under like circumstances[.]” 28 U.S.C. § 2674. However, the United

States has not consented to be sued for damages based either on constitutional

violations, see Meyer, 510 U.S. at 476-78, or on its failure “to carry out a federal

statutory duty in the conduct of its own affairs.” Hornbeck Offshore Transp., LLC v.

United States, 569 F.3d 506, 509 (D.C. Cir. 2009) (citation and internal quotation marks

omitted).

Among other things, the instant complaint at best alleges claims for money

damages against the United States and its agencies for violating the FOIA (Count 1) and

also for violating Plaintiff’s rights under the Constitution’s equal protection clause

(Count 2)—neither of which is cognizable under the FTCA. See Meyer, 510 U.S. at

476-78. Plaintiff cannot state any tort claim for monetary damages regarding any FOIA

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request he may have made because “no money damages are available under FOIA. The

sole remedy available to a requester is injunctive relief[.]” Roman v. Nat’l

Reconnaissance Off., 952 F. Supp. 2d 159, 163 (D.D.C. 2013). Furthermore, there is no

waiver of sovereign immunity for constitutional violations, as explained above, and

regardless, any tort claim is foreclosed because Plaintiff has not indicated that he has

exhausted his FTCA administrative remedies by “first present[ing] the claim to the

appropriate Federal agency[.]” 28 U.S.C. § 2675; see also Abdurrahman v. Engstrom,

168 F. App’x 445, 445 (D.C. Cir. 2005) (per curiam) (affirming the district court’s

dismissal of unexhausted FTCA claim “for lack of subject matter jurisdiction”).

Consequently, it is clear beyond cavil that the FTCA’s waiver does not apply

with respect to Plaintiff’s claims, and sovereign immunity bars any claim for money

damages against the United States (including the U.S. Senate) and its agencies. See

McLean v. United States, 566 F.3d 391, 401 (4th Cir. 2009) (“[S]overeign immunity

extends to the United States Congress when it is sued as a branch of the government.”

(citing Keener v. Congress, 467 F.2d 952, 953 (5th Cir. 1972) (per curiam))). 4

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The Court will not address whether the Speech or Debate Clause precludes Plaintiff’s claims against
the Senate, given that an individual legislator has not been sued. See Fields v. Off. of Eddie Bernice
Johnson, 459 F.3d 1, 9 (D.C. Cir. 2006) (“The Speech or Debate Clause protects a Member’s conduct if
it is an integral ‘part of . . . the due functioning of the [legislative] process.’”) (quoting United States v.
Brewster, 408 U.S. 501, 516 (1972)). The Court notes, however, that plaintiff has not disputed
Defendants’ argument that the Clause shields the U.S. Senate from this lawsuit. (See Def.’s Mem. at
15-16; Feb. 18, 2014 Order (advising plaintiff that his failure to respond to dispositive motion could
result in matter being treated as conceded)). See also Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (stating that “[i]t is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded”), aff'd 98 F. App’x 8 (D.C. Cir. 2004).

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 2. The Derivative Jurisdiction Doctrine Bars All Of Plaintiff’s Claims
Against The Federal Defendants

An independent jurisdictional bar—the derivative jurisdiction doctrine—likewise

compels dismissal of all of Plaintiff’s claims against the Federal Defendants, including

his claims for equitable relief. (See, e.g., Compl. at 37 (requesting that the Court “issue

an Order and Injunction that permits [] the Plaintiff(s) Dr. Kennan Cofield . . . [to] have

the right to compete fairly and equally . . . without obstruction from the United States

government”)). As the Supreme Court has explained, “[t]he jurisdiction of the federal

court on removal is, in a limited sense, a derivative jurisdiction.” Lambert Run Coal

Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922); see also Palmer v. City Nat’l

Bank of W. Va., 498 F.3d 236, 244 (4th Cir. 2007) (“The derivative-jurisdiction doctrine

arises from the theory that a federal court’s jurisdiction over a removed case derives

from the jurisdiction of the state court from which the case originated.”). “To

determine whether this Court lacks subject matter jurisdiction by virtue of the doctrine

of derivative jurisdiction, the threshold determination is whether, prior to removal, the

Superior Court for the District of Columbia had jurisdiction of the subject matter or of

the parties.” McKoy-Shields, 2012 WL 1076195, at *2. If the Superior Court did not,

this Court cannot “acquire” jurisdiction upon removal, even if Plaintiff could have filed

his complaint in federal court in the first instance. Lambert Run Coal, 258 U.S. at 382.

As discussed supra in Section III.B.1, Plaintiff’s claim for monetary damages against

the Federal Defendants must be brought under the FTCA, which not only waives

sovereign immunity under some circumstances but also confers “exclusive” jurisdiction

in the federal courts. 28 U.S.C. §§ 1346(b), 2679(a). The federal courts likewise have

exclusive jurisdiction over any claim Plaintiff may be asserting under the FOIA and the

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Privacy Act. See 5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a(g)(5). And both the All

Writs Act and the Declaratory Judgment Act—the remaining statutory sources for

obtaining the equitable relief Plaintiff seeks—also confer jurisdiction exclusively in the

federal courts. See 28 U.S.C. §§ 1651, 2201. This means that the Superior Court did

not have jurisdiction over Plaintiffs’ claims against the Federal Defendants in the first

place, and given that this matter was removed to federal court under 28 U.S.C. §§ 1442

and 1446, this Court cannot assert jurisdiction over them on removal. 5

C. Defendant’s Non-Jurisdictional Arguments For Dismissal

Having concluded that this Court lacks jurisdiction over Plaintiff’s claims

against the Federal Defendants, this Court will not address the Defendants’ other

grounds for dismissal, including the more complicated question of whether Plaintiff

lacks standing to sue as to Count 2 of the Complaint. 6 Judges in this jurisdiction have

remanded removed cases to Superior Court to resolve remaining issues after a finding

that the derivative jurisdiction doctrine precludes the Court’s exercise of jurisdiction

5
Section 1442 of Title 28 of the United States Code has long been interpreted to require that the
jurisdiction of the federal court be assessed in part relative to the jurisdiction of the state court from
which the case was removed. Such is not the case for removals effectuated under section 1441, which
contains specific language to the effect that the derivative jurisdiction doctrine shall not apply. See 28
U.S.C. § 1441(f) (stating that “[t]he court to which a civil action is removed under this section is not
precluded from hearing and determining any claim in such civil action because the State court from
which such civil action is removed did not have jurisdiction over that claim”). “Although Congress has
chosen to abrogate the derivative jurisdiction doctrine for removals effectuated under 28 U.S.C § 1441,
application of the derivative jurisdiction doctrine remains valid where, like here, cases are removed
under 28 U.S.C § 1442.” McKoy-Shields, 2012 WL 1076195, at *2 (citations omitted).
6
As far as standing is concerned, the Supreme Court has instructed that, “[a]t the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a
motion to dismiss [as opposed to a motion for summary judgment], we ‘presume that general
allegations embrace those specific facts that are necessary to support the claim.’” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 889
(1990)). But the Supreme Court has also “held that when the asserted harm is a ‘generalized grievance’
shared in substantially equal measure by all or a large class of citizens, that harm alone normally does
not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted;
internal quotation mark in original). Although the allegations of the complaint appear to fall into the
general grievance category, this Court cannot state with certainty that, if given the opportunity to
amend the complaint to clarify Count 2, Plaintiff would be unable to satisfy the standing requirement.

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over a plaintiff’s claims, see, e.g., McKoy-Shields, 2012 WL 1076195, at *2-3, and this

Court finds no reason to depart from that practice here.

IV. CONCLUSION

For the reasons stated above, this Court concludes that it lacks jurisdiction over

Plaintiff’s claims against the Federal Defendants. As a result, as set forth in the order

that accompanies this opinion, the Federal Defendants’ motion to dismiss the claims

against them under Rule 12(b)(1) is GRANTED, and the remainder of this action is

REMANDED to the Superior Court of the District of Columbia.

Date: August 20, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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