Davidson v. United States Department of State

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LAWRENCE U. DAVIDSON, III, :
:
Plaintiff, : Civil Action No.: 14-01358 (RC)
:
v. : Re Document Nos.: 7, 13
:
UNITED STATES DEPARTMENT OF :
STATE, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION TO TEST SUFFICIENCY OF ANSWER

I. INTRODUCTION

Plaintiff, Mr. Lawrence U. Davidson, III, pro se, has brought this action against the U.S.

Department of State and sixteen individuals who are current or former employees thereof

(“Defendants”), in their official and individual capacities. Mr. Davidson seeks both injunctive

relief and monetary damages in connection with Department of State’s refusal to provide him

with diplomatic assistance in collecting an alleged debt that the former government of Libya

owes him. Currently before the Court is Defendants’ partial motion to dismiss, or in the

alternative, for summary judgment. 1 Also pending is Mr. Davidson’s motion to test the

sufficiency of Defendants’ answer. For the reasons discussed below, the Court will grant

Defendants’ motion and dismiss Mr. Davidson’s claims seeking mandamus relief and monetary

1
Although Mr. Davidson has also challenged Defendants’ responses to his FOIA
requests, Defendants answered those claims and have not moved to dismiss them or for summary
judgment in its favor. See Defs.’ Partial Mot. Dismiss or Alternative Summ. J. (“Defs.’ Partial
Mot.”) at 3 n.4, ECF No. 7.
damages, enter judgment on the Administrative Procedure Act (“APA”) claims, and deny Mr.

Davidson’s motion to test the sufficiency of Defendants’ answer.

II. FACTUAL BACKGROUND

According to the Complaint, Plaintiff, Mr. Lawrence U. Davidson, III, is a U.S. citizen

and the sole proprietor of Export Strategic Alliance (“ESA”), which is a “for[-]profit

synchronistic multidisciplinary economic generator.” Compl. ¶ 7, ECF No. 1. Mr. Davidson

contracted with the Great Socialist Peoples Libya Arab Jamahiriya (“Jamahiriya”) to deliver

medicines valued at $70 million and 12 million metric tons of foodstuffs valued at $4.5 billion.

Id. In consideration for the delivery, Jamahiriya promised to pay Mr. Davidson $28 million,

which, to this date, remains unpaid. Id.

In November 2011, Mr. Davidson sought payment from Jamahiriya and its successor

entities within the Temporary Financing Mechanism, the National Transitional

Council/Government and Republic of Libya, as well as the Libyan Embassy in Washington,

D.C., by submitting a detailed invoice via letter, fax, and email. Id. ¶ 23. He received no

response, however, besides an electronic acknowledgement that the invoices were received. Id.

As early as September 2012, Mr. Davidson turned to the Department of State, hoping to receive

assistance through diplomatic channels. Id. ¶ 24. Specifically, he submitted requests for

“commercial diplomacy, or in the alternative a ‘Letter d’Marche,’” a formal diplomatic

communication. Id. ¶ 26. In the requests, he explained that he had “exhausted all reasonable and

rational local . . . remedies,” such as contacting cabinet officials and prime ministers. Id. ¶ 29.

In December 2013, Mr. Davidson received a letter from Defendant Susannah Cooper,

Director of the Office of Maghreb Affairs in the Bureau of Near Eastern Affairs, noting that “the

primary responsibility for resolution of such disputes remains with the U.S. citizen” and that Mr.
Davidson may wish to “consider engaging local counsel or bringing the dispute directly to the

attention of the Libyan government.” Defs.’ Partial Mot. Dismiss or Alternative Summ. J.

(“Defs.’ Partial Mot.”) at 6, ECF No. 7. In the same letter, Defendant Cooper provided an

address for contacting the U.S. Embassy in Libya. Id.

In February 2014, Defendant Cooper once again responded to Mr. Davidson’s continued

requests by reminding him that “the primary responsibility for the resolution of disputes is on

U.S. citizens,” and requested that Mr. Davidson show the steps he had taken in order to exhaust

local legal remedies in Libya. Id. Ex. 7 at 2, ECF No. 7-7. On April 3, 2014, Defendant Cooper

sent another letter instructing Mr. Davidson that he “must exhaust local remedies” and that it is

his primary responsibility, not the Department of State’s, to resolve the disputes. Id. at 4. The

letter also noted that the United States Embassy in Libya “has confirmed that there are readily

available legal resources for international companies in Libya.” Id.

Thereafter, Mr. Davidson instituted this action against Defendants, suing them in both

their official and individual capacities. He alleges that “defendants individually had a duty to

provide plaintiff with diplomatic services in the nature of commercial diplomacy more

selectively a Letter D’Marche directed to the government of Libya as then existing to address an

outstanding invoice for services rendered to the previous administration (Jamarihiya).” Compl. ¶

43. In the Complaint, Mr. Davidson requests four specific remedies. First, he seeks injunctive

relief “directing the State Department pursuant to authorities cited herein for commercial

diplomacy,” or more specifically, to send an official diplomatic communication to the Libyan

government on his behalf. Compl. at 16. Second, Mr. Davidson seeks a declaratory judgment

directing the Department of State to “comply with the plaintiff’s Freedom of Information [Act]

request in a timely manner.” Id. Third, Mr. Davidson seeks compensatory damages from
Defendants, in the amount of 8% per annum for the unpaid value for the goods and services he

provided to Jamarihiya. Id. Fourth, he seeks litigation costs in connection with this action. Id.

Defendants filed a partial motion to dismiss, or in the alternative for summary judgment,

addressing the claims other than the Freedom of Information Act (“FOIA”) claims. See Defs.’

Partial Mot. As to Mr. Davidson’s claims seeking a writ of mandamus and monetary damages,

the motion argues that they should be dismissed for lack of subject matter jurisdiction and failure

to state a claim upon which relief can be granted. Id. at 10–24. As to the APA claims, the

motion moves to dismiss for failure to state a claim on the 5 U.S.C. § 706(1) claim, and for

summary judgment on the 5 U.S.C. § 706(2) claim. Id. at 24–28. Defendants also filed an

answer to Mr. Davidson’s FOIA claims. See Answer, ECF No. 8.

Mr. Davidson filed a response to Defendants’ motion and also moved to test the

sufficiency of Defendants’ answer pursuant to Federal Rules of Civil Procedure 7(b), 8(b)(3) and

(4), and 11(b). See Pl.’s Mot. Test Sufficiency Answer (“Pl.’s Mot.”) at 4, ECF No. 12. Both

motions are now ripe for decision.

III. ANALYSIS

A. Standard of Review

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (Rule 12(b)(1))

Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of

establishing that a court has jurisdiction over his claim. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 103–04 (1998) (standing and Article III jurisdiction); Moms Against Mercury

v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007) (subject-matter jurisdiction). In determining
whether jurisdiction exists, a court may “consider the complaint supplemented by undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (citations omitted).

“If sovereign immunity has not been waived, a claim is subject to dismissal under Rule

12(b)(1) for lack of subject matter jurisdiction.” Clayton v. District of Columbia, 931 F. Supp.

2d 192, 200 (D.D.C. 2013) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign

immunity is jurisdictional in nature.”)). Courts “may not find a waiver unless Congress’ intent is

unequivocally expressed in the relevant statute.” Hubbard v. Adm’r, E.P.A., 982 F.2d 531, 532

(D.C. Cir. 1992) (citation and internal quotation marks omitted).

2. Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6))

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes

that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s

favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It

is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp.

2d 25, 28–29 (D.D.C. 2010).
 Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citations

omitted). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556

U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a

court presume the veracity of the legal conclusions that are couched as factual allegations. See

Twombly, 550 U.S. at 555.

A pro se complaint is held to “less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). But even pro se litigants “must plead factual matter that permits the court to infer

more than the mere possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir.

2011) (internal citations and quotation marks omitted). Moreover, “[a] pro se complaint, like

any other, must present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d

1305, 1308 (D.C. Cir. 1981).

3. Summary Judgment (Rule 56)

Typically, a court may grant summary judgment when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive
outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the

non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).

With respect to APA claims, the summary judgment standard is different, “because of the

limited role of a court in reviewing the administrative record.” Kadi v. Geithner, 42 F. Supp. 3d

1, 8 (D.D.C. 2012). When assessing a summary judgment motion in an APA case, “the district

judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083

(D.C. Cir. 2001). “The entire case on review is a question of law, and only a question of law.”

Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). “In such a

case, summary judgment merely serves as the mechanism for deciding, as a matter of law,

whether the agency action is supported by the administrative record and otherwise consistent

with the APA standard of review.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 106 (D.D.C.

2011).

B. Claims Against the Department of State and Defendants in Their Official Capacities

The Court first considers Mr. Davidson’s claims for injunctive relief and monetary

damages against the Department of State and Defendants in their official capacities. For the

reasons below, the Court dismisses the claims seeking a writ of mandamus and monetary

damages, and enters judgment on the APA claims, under 5 U.S.C. § 706(1) and 706(2). 2

2
For Mr. Davidson’s claim under section 706(1), Defendants suggest that its motion be
treated as a Rule 12(b)(6) motion to dismiss. See Defs.’ Partial Mot. at 16–17. The Court finds
that treating the motion as one for summary judgment is more consistent with prior case law
under Section 706(1). See e.g., Ass’n of Civilian Technicians, Inc. v. United States, 603 F.3d
989, 995 (D.C. Cir. 2010) (affirming district court’s decision to grant motion for summary
judgment on plaintiff’s APA claims under 5 U.S.C. § 706(1)).
 1. Plaintiff is Not Entitled to Mandamus or Injunctive Relief

a. Mandamus Relief

First, Mr. Davidson seeks mandamus relief pursuant to 28 U.S.C. § 1361, asking this

Court to compel Defendants to undertake commercial diplomacy, specifically by providing a

formal government-to-government diplomatic communication with the Libyan government.

Compl. at 16. Defendants argue that undertaking “specific acts of commercial diplomacy” is

“inherently discretionary in nature,” and should not be subject to mandamus. Defs.’ Partial Mot.

at 16.

The Mandamus Act confers jurisdiction on the district court over actions “in the nature of

mandamus to compel an officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 (2015). Because mandamus is a

“drastic” form of relief, jurisdiction for such relief is “strictly confined.” See In re Cheney, 406

F.3d 723, 729 (D.C. Cir. 2005); see also 13th Regional Corp. v. U.S. Dep’t. of Interior, 654 F.2d

758, 760 (D.C. Cir. 1980) (explaining that mandamus relief may engender “potential conflict

between the branches of government”). Therefore, relief through mandamus may only be

granted where: (1) the plaintiff has a “clear right to relief”; (2) the defendant has a “clear duty to

act”; and (3) there is “no other adequate remedy available” to the plaintiff. Walpin v. Corp. for

Nat. & Cmty. Servs., 630 F.3d 184, 187 (D.C. Cir. 2011) (quoting Baptist Mem’l Hosp. v.

Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010)). Even where these requirements are met, the issuing

court, “in the exercise of its discretion, must be satisfied that [mandamus relief] is appropriate

under the circumstances.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004)

(citation omitted). Among other reasons, the court generally refrains from granting the relief
when it “threaten[s] the separation of powers by embarrassing the executive arm of the

Government.” Id. (internal quotation marks omitted).

None of the authorities cited by Mr. Davidson imposes on Defendants a “clear duty to

act.” Walpin, 630 F.3d at 187. Mr. Davidson points to various grounds, including Executive

Orders 13534 and 12674, which allegedly give rise to the “positive duty to provide commercial

diplomacy.” 3 Compl. ¶¶ 35–39. Executive Order 13534 directs the Export Promotion Cabinet,

of which the Secretary of State is a member, to “promote Federal resources . . . to assist exports

by U.S. companies,” and “develop a framework for promoting services trade, including the

necessary policy and export promotion tools.” Exec. Order No. 13534, 3 C.F.R. 198, 200

(2010). The supposed duty to promote resources and develop a framework cannot be construed

to impose a “clear duty” to provide diplomatic assistance for collection of a debt arising from a

private contract. A fortiori, nowhere does the order explain what kind of diplomatic assistance

the Department of State must provide. The lack of specificity of the alleged duty imposed in the

order suggests that the purpose of the order is to give guidelines with respect to the government’s

goal of promoting exports, rather than to mandate a “nondiscretionary duty” that must be carried

out as long as certain conditions are met. See Heckler v. Ringer, 466 U.S. 602, 616 (1984); see

also In re Cheney, 406 F.3d at 729 (requiring that plaintiff demonstrate that defendants’ duty

stems from “compelling” legal grounds). Mr. Davidson also cites several parts of Executive

Order 12674. Compl. ¶¶ 35–36. That order, however, addresses principles of ethical conduct for

3
Mr. Davidson also cites Executive Order 126741, Executive Order 13160 and “National
Export Initiative.” Executive Order 126741 does not exist. Executive Order 13160 addresses
discrimination in the education setting, which is completely irrelevant to Mr. Davidson’s claim.
See Exec. Order No. 13160, 3 C.F.R. 279 (2001). Lastly, the “National Export Initiative” refers
to Executive Order 13534, which the Court addresses in this opinion, although the Complaint
treats the two as independent sources. See Compl. ¶¶ 35–36.
government officers and employees, which are irrelevant to Mr. Davidson’s claims. 4 See Exec.

Order No. 12674, 3 C.F.R. 215 (1990).

Therefore, the Court dismisses Mr. Davidson’s mandamus claim under 12(b)(6), for

failure to state a claim. Walpin, 630 F.3d at 188 (affirming district court's dismissal for failure to

state a claim where plaintiff failed to satisfy In re Cheney factors).

b. APA

The Court next considers whether Mr. Davidson’s claims for injunctive relief under the

APA can survive Defendants’ motion. 5

Section 706(1) of the APA directs the court to “compel agency action unlawfully

withheld.” 5 U.S.C. § 706(1) (2015). A claim under the “unlawfully withheld” provision can

proceed only if it contends that the government agency failed to take a “discrete agency action

that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). The

Complaint seems to allege that the Department of State was under a duty to assist exports by

U.S. companies, and that, as a logical extension, the Department of State must engage in

commercial diplomacy with Libyan government on Mr. Davidson’s behalf. See Compl. ¶ 35.

4
Specifically, Executive Order 12674 mandates that government employees “put forth
honest effort” in carrying out their duties, 3 C.F.R. 215, § 101(e), remain impartial in their
treatment of “any private organization or individual,” id. (h), refrain from engaging in “outside
employment or activities” that are not compatible with their official duties, id. (j), and “endeavor
to avoid any actions creating the appearance that they are violating the law or the ethical
standards promulgated pursuant to this order,” id. (n).
5
Although Mr. Davidson failed to specifically raise an APA claim, the Complaint, by
referring to certain acts as “arbitrary and capricious,” see, e.g., Compl. ¶ 31, suggests that such a
claim is intended. Therefore, the Court will construe the pro se complaint liberally and consider
Mr. Davidson’s APA claim as if it were properly asserted. See Erickson, 551 U.S. at 94.
 The Court does not find a basis for the claim that the Department of State was “required”

to provide commercial diplomacy through an official diplomatic communication. Norton, 542

U.S. at 64. As set forth above, Mr. Davidson grounds his claim, in part, on Executive Order

13534, which, according to Mr. Davidson, imposes certain duties with respect to assisting

exports by U.S. companies. See Compl. ¶ 35. Executive Order 13534, however, does not

preclude Defendants’ discretion with respect to Mr. Davidson’s request. In re Long-Distance

Tel. Serv. Fed. Excise Tax Refund Litig., 751 F.3d 629, 634 (D.C. Cir. 2014) (explaining that

Section 706(1) of the APA applies only to “discrete action that is legally required about which an

official had no discretion whatever” (citing Norton, 542 U.S. at 63–64)) (cert. denied sub nom.

Cohen v. United States, 135 S. Ct. 946 (2015)). Although the order mentions the duty to assist

exports by U.S. companies, how to fulfill that duty is largely left for Defendants to decide.

Further, the Department of State did provide assistance to Mr. Davidson, by providing

contact information for the Embassy of Libya in Washington. D.C., see Defs.’ Partial Mot. Ex. 3,

ECF No. 7-3, confirming with the U.S. Embassy in Tripoli that “there are readily available legal

recourses for international companies in Libya . . . to process commercial disputes,” id. Ex. 6,

and providing a list of local attorneys in Libya, id. Whether or not Mr. Davidson found such

assistance helpful, nothing suggests that Defendants were required to respond differently than

they did. Therefore, Mr. Davidson’s claim that the Department of State “unlawfully withheld”

the provision of commercial diplomacy through a diplomatic communication fails.

Section 706(2) of the APA directs that the court “hold unlawful and set aside agency

action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary-and-capricious

standard of review is “very deferential.” Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105
(D.C. Cir. 2009). Therefore, the court will generally defer to the wisdom of the agency as long

as the action is supported by “reasoned decisionmaking.” 6 Fox v. Clinton, 684 F.3d 67, 75 (D.C.

Cir. 2012); see also Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422

(1983) (explaining that the agency’s decision need not be “the only reasonable one, or even . . .

the result [the court] would have reached”) (quoting Unemployment Comp. Comm’n v. Aragon,

329 U.S. 143, 153 (1946)). “Moreover, the party challenging an agency's action as arbitrary and

capricious bears the burden of proof.” See San Luis Obispo Mothers for Peace v. U.S. Nuclear

Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).

The Complaint seems to allege that Defendants’ refusal to grant Mr. Davidson’s request,

or, in the alternative, the Department of State’s letters suggesting that there are potential legal

resources in Libya, was “arbitrary and capricious.” Compl. ¶¶ 31–33. Specifically, the

Complaint contends that the “positions of the various named defendants are untenable as being

arbitrary; capricious . . . causing [Mr. Davidson] denied access to his funds to his detriment.” Id.

¶ 33. For the reasons below, the Court concludes that Defendants neither acted in an arbitrary or

capricious manner nor abused their discretion.

First, Defendants were acting in accordance with the official manual that sets out the

procedure for providing “assistance to citizens involved in commercial, investment, and other

business related disputes abroad.” Defs.’ Partial Mot. 26. The State Department Foreign Service

Affairs Manual (“the Manual”) cautions against recommending or advising a specific course of

action to the U.S. citizens involved in a private commercial disputes, “apart from advising them

6
To the extent that Mr. Davidson seeks to compel Defendants to engage in foreign policy
functions, an exception to the APA applies. See 5 U.S.C. § 554(a)(4). However, the Court need
not address the issue of whether such exception applies to this case because it concludes that
Defendants’ actions were supported by “reasoned decisionmaking.” Fox, 684 F.3d at 75.
in general terms to pursue on their own behalf available avenues of redress.” Defs.’ Partial Mot.

Ex. 6 at 2, ECF No. 7-6. The Manual explains that providing specific advice or direction on

“how best to resolve a dispute” could make the Department of State vulnerable to legal actions.

Id. For cases where “the contract party is a government or a government-owned entity,” as in the

instant case, the Manual acknowledges that the appropriate assistance is “more complex.” Id.

Specifically, it recognizes that “such cases may merit treatment akin to that afforded . . . with

investment disputes,” and the Department of State can support the investor with a more

affirmative action such as encouraging a negotiated settlement. Id. at 3. The Manual makes

clear, however, that the party to the contract still “bears the primary responsibility” in respect to

the matter, and requires that he or she “pursue all available local remedies” before the

Department of State “takes a position on the merits of the investor’s dispute with the host

government.” Id. Further, the Manual notes that “diplomatic representations to the host

government” remain discretionary even when the requesting party has no available local remedy.

Id. at 4.

In the letters responding to Mr. Davidson’s request for commercial diplomacy, Defendant

Cooper advised that Mr. Davidson “had primary responsibility for the resolution of the dispute,”

and provided him with “contact information for the Embassy of Libya in Washington, D.C.”

Defs.’ Partial. Mot. at 27. Further, Defendant Cooper provided Mr. Davidson with the “list of

local attorneys,” and the name of an attorney who maintains a website in English. Id. Ex. 7 at 4.

When Mr. Davidson insisted that he had exhausted all local remedies, Defendant Cooper, as

authorized by the Manual, used her discretion not to engage in commercial diplomacy with the

Libyan government, and first requested that Mr. Davidson provide evidence of efforts he had
made on his own behalf. Id. at 2 (requesting information regarding “steps [Mr. Davidson had]

taken to resolve [the] dispute, including any steps taken to pursue local remedies in Libya”).

Second, the Court is not persuaded by Mr. Davidson’s implicit contention that the

Manual itself is “neither logical nor rational.” See Clinton, 684 F.3d at 80. Mr. Davidson asserts

that the Manual conflicts with the “various Executive Orders” that he alleges to be “controlling.”

Pl.’s Response to Defs.’ Mot. Dismiss or Alternative Summ. J. (“Pl.’s Response”) at 11, ECF

No. 12. As discussed above, however, nothing in the cited authorities precludes the Department

of State’s exercise of discretion in taking an official action in the current situation. Bearing in

mind that the arbitrary-or-capricious standard of review is “very deferential,” Rural Cellular

Ass’n, 588 F.3d at 1105, the Court defers to the Department of State’s reasoning that

guaranteeing resolution of commercial disputes abroad is primarily the responsibility of the

contracting parties, and that the Department of State has broad discretion in how it utilizes its

resources in assisting the parties to such disputes. Mr. Davidson has presented no evidence nor

made any factual allegations indicating that such broad discretion was abused in this case.

Therefore, the Department of State’s response to Mr. Davidson’s request was not arbitrary or

capricious, nor is there any viable claim that the Department of State abused its discretion.

2. Plaintiff is Not Entitled to Monetary Damages

Mr. Davidson also claims monetary damages against Defendants in their official

capacities, in the amount of eight percent per annum of the payment that has not been collected.

See Compl. at 16. However, sovereign immunity bars this request unless there exists a waiver

unequivocally expressed in the relevant statute. Hubbard, 982 F.2d at 532. Here, Mr. Davidson
fails to show that any waiver to sovereign immunity applies. 7 Although the APA contains an

express waiver of sovereign immunity, such waiver is applicable only to a claim “seeking relief

other than money damages.” 8 5 U.S.C. § 702 (1976). Therefore, the claim is dismissed under

Rule 12(b)(1) for lack of subject matter jurisdiction. See Clayton, 931 F. Supp. 2d at 200.

C. Claims Against Defendants in Their Individual Capacities

Mr. Davidson next seeks injunctive relief and monetary damages against Defendants in

their individual capacities. For the reasons below, the Court dismisses both claims under Rule

12(b)(6) for failure to state a claim upon which relief can be granted.

1. Plaintiff is Not Entitled to Injunctive Relief

First, Mr. Davidson seeks injunctive relief against Defendants in their individual

capacities. It is well established that “there is no basis for suing a government official for

declaratory and injunctive relief in his or her individual or personal capacity.” Hatfill v.

7
The only conceivable waiver of sovereign immunity that could arguably be applicable
in this case is the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Even assuming Mr. Davidson
had alleged an underlying tort, however, the waiver is not available in the current case because it
requires, as a prerequisite to “[a]n action . . . instituted upon a claim against the United States for
money damages,” that “the claimant shall have first submitted [an administrative] claim to the
appropriate Federal agency and his claim shall have been finally denied by the agency in
writing.” 28 U.S.C. § 2675(a) (1966); see also Simpkins v. D.C. Gov't, 108 F.3d 366, 370 (D.C.
Cir. 1997). Plaintiff has failed to meet this prerequisite, and thus his claim for money damages
must be dismissed.
8
Here, Plaintiff is seeking “compensatory damages” for the unpaid contract amount, not
“specific relief” for an award of funds that he is allegedly entitled to under a statute. See Compl.
16; see also Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) (explaining that
compensatory damages are “given to the plaintiff to substitute for a suffered loss” whereas
specific relief is an “attempt to give the plaintiff the very thing to which he was entitled”)
(citation omitted). Because Mr. Davidson contracted with Jamahiriya, not with the Department
of State, there is no specific relief to claim.
Gonzales, 519 F. Supp. 2d 13, 19 (D.D.C. 2007); accord Feit v. Ward, 886 F.2d 848, 858 (7th

Cir. 1989) (finding that a declaration that the challenged policy was unconstitutional and an

injunction barring the defendants from implementing the policy in the future “can be obtained

only from the defendants in their official capacities, not as private individuals”); see also Cmty.

Mental Health Servs. of Belmont v. Mental Health and Recovery Bd. Serving Belmont, Harrison

& Monroe Counties, 150 F. App’x 389, 401 (6th Cir. 2005); Ameritech Corp. v. McCann, 297

F.3d 582, 586 (7th Cir. 2002); Frank v. Relin, 1 F.3d 1317, 1327 (2nd Cir. 1993); Del Raine v.

Carlson, 826 F.2d 698, 703 (7th Cir. 1987). “[O]nly by acting as a government official (not as

an individual acting personally), can a public official's compliance with a court decree remedy

the governmental action, policy or practice that is being challenged.” Hatfill, 519 F. Supp. 2d at

26.

Because Mr. Davidson’s claim for injunctive relief cannot be maintained against

Defendants in their individual capacities, the Court dismisses the claim under 12(b)(6) for failure

to state a claim upon which relief can be granted.

2. Plaintiff is Not Entitled to Monetary Damages

Next, the Court considers Mr. Davidson’s monetary damages claim against Defendants in

their individual capacities, which the Court will construe as a Bivens claim. See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). According to the

Complaint, Defendants had a “positive duty to provide commercial diplomacy,” and Mr.

Davidson was “adversely affected by . . . failure on the part of the defendants in the amount . . .

of $28 million.” Compl. ¶¶ 39–40. In response, Defendants raise three distinct defenses to Mr.

Davidson’s Bivens claim. First, Defendants argue that Mr. Davidson failed to effect proper
service. Defs.’ Partial Mot. 10–12. Second, Defendants argue that the Court should not extend

Bivens to cover Mr. Davidson’s claims. Id. at 23–24. Third, Defendants argue that they are

entitled to qualified immunity. Id. at 18–22. The Court agrees.

To serve a U.S. officer or employee in his or her individual capacity, Federal Rules of

Civil Procedure require that a party “serve the United States and also serve the officer or

employee.” Fed. R. Civ. P. 4(i)(3). When serving an employee in a judicial district of the

United States, the server must: (1) deliver a copy of summons and the complaint to the individual

personally, (2) leave a copy of summons and complaint at the individual’s dwelling or usual

place of abode with someone of suitable age and discretion who resides there, or (3) deliver a

copy of each to an agent authorized by appointment or by law to receive service of process. 9 Id.

4(e)(2).

Mr. Davidson, through a process server, delivered a copy of the Complaint and summons

to an individual named Mary Reddy, an employee of the Department of State, who signed and

9
Rule 4(e) also provides that a plaintiff may effect service by “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district court
is located or where service is made.” Fed. R. Civ. P 4(e)(1). The applicable Civil Rules of the
Superior Court of the District of Columbia permit service to be effected by “mailing a copy of
the summons, complaint and initial order to the person by registered or certified mail, return
receipt requested.” D.C. Super. Ct. R. Civ. P. 4(c)(3). For service by mail, the same Rules
require a return receipt signed by either the defendant or another individual with an
accompanying affidavit establishing that the individual is authorized to receive service of
process. Id. 4(l)(2); see also Wilson-Greene v. Dep’t of Youth Rehab. Servs., No. 06 CV 2262
RJL, 2007 WL 2007557, at *2 (D.D.C. July 9, 2007) (concluding that service was improper
when plaintiff had offered no evidence that mailed service was received by the defendants or
persons authorized to receive it). Mr. Davidson has not provided the Court with any proof of
receipt of the alleged service by mail, either by Defendants, or by a person authorized to receive
service of process. See ECF No. 2. Therefore, service was improper under the law of the
District of Columbia.
delivered them to the appropriate offices. Pl.’s Response, 7. Delivering the complaint and

summons to a workplace colleague, however, does not fall into any of the above methods, and is

not in compliance with the rule. See Leichtman v. Koons, 527 A.2d 745, 746 (D.C. 1987)

(finding the service insufficient where a copy of summons and complaint was left at defendant’s

office in defendant’s absence); see also Chen v. District of Columbia, 256 F.R.D. 263, 266

(D.D.C. 2009) (finding the service insufficient where a copy of summons and complaint was

mailed to defendants’ workplace, and non-defendant employee who received the copy was not

authorized to receive service on behalf of defendants). Mr. Davidson has not provided any

evidence that Ms. Reddy was authorized to accept personal service for individual capacity suits

by any of the individual Defendants.

While insufficient service would warrant dismissal of the plaintiff’s Bivens claim without

prejudice, see Fed. R. Civ. P. 4(m), the court has discretion to “proceed to evaluate the merits”

for a 12(b)(6) determination. See Simpkins v. D.C. Gov’t, 108 F.3d 366, 369–70 (D.C. Cir. 1997)

(upholding the district court decision to proceed and dismiss a Bivens claim under 12(b)(6)

despite the insufficiency of the service, when the claim is “insubstantial” and “imposes undue

burdens on the officer being sued”); see also Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725,

726 (D.C. Cir. 1990) (upholding district court’s sua sponte dismissal of a complaint for failure to

state a cause of action where defendant had not been served).

In the instant case, dismissal under Rule 12(b)(6) is appropriate because allowing a

second chance would merely “delay[] the inevitable.” 10 Simpkins, 108 F.3d at 370. First, the

Court agrees with Defendants’ argument that it would be inappropriate to extend the reasoning of

10
Defendants also suggest that this Court lacks personal jurisdiction. See Defs.’ Partial
Mot. at 10. But because Defendants’ main argument is insufficiency of service, the Court
declines to address personal jurisdiction.
Bivens to cover Mr. Davidson’s claim. In Bivens, the Supreme Court recognized an implied

constitutional cause of action against agents of the Federal Bureau of Narcotics when their

warrantless entry, search and arrest violated the plaintiff’s Fourth Amendment rights. Bivens,

403 U.S. at 389. The Court has extended the implied cause of action to non-Fourth Amendment

cases as well. See Davis v. Passman, 442 U.S. 228, 248–49 (1979) (Extending Bivens to a case

involving violation of the due process clause of the Fifth Amendment); Carlson v. Green, 446

U.S. 14, 17 (1980) (Extending Bivens to a case involving an Eighth Amendment violation).

When a claim seeks expansion of Bivens liability to a context outside the Fourth Amendment, the

court will engage in a two-part inquiry: (1) whether an alternative remedial scheme was available

to the plaintiff and (2) if not, whether special factors counsel hesitation before extending the

liability. See Bush v. Lucas, 462 U.S. 367, 375–78 (1983).

Foreign policy considerations have long been recognized as special factors counselling

hesitation before extending the Bivens liability, especially if such an extension can have

“significant and deleterious consequences for the United States in conducting activities beyond

its boundaries.” See generally United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990).

The decision of whether the United States should take diplomatic action against a foreign

government necessarily implicates important foreign policy considerations such as avoiding an

international dispute. Commercial disputes involving a foreign government entity are not

uncommon. Extending Bivens to the instant case would, in effect, expose the Department of

State to burdensome litigation, significantly constraining its ability “to respond to foreign

situations involving [the United States’] national interest.” Id. at 273–74.

Extending Bivens is even less justified in the instant case because Mr. Davidson has

failed to identify any statutory or constitutional basis of his alleged injury. Cf. Passman, 442
U.S. at 248–49 (Fifth Amendment violation); Carlson, 446 U.S. at 17 (Eighth Amendment

violation). 11

Second, “even if this Court were to entertain [the] Bivens claim,” the Complaint “fails to

state a claim that can withstand the defense of qualified immunity.” Hartley v. Wilfert, 918 F.

Supp. 2d 45, 49 (D.D.C. 2013). The doctrine of qualified immunity provides that a federal

employee defendant is immune from liability for civil damages unless the plaintiff establishes

that: (1) the defendant’s conduct violated the Constitution and (2) the constitutional right that

was violated was so “clearly established . . . [that] a reasonable person would have known” of the

right. Pearson v. Callahan, 555 U.S. 223, 231–32 (2009). The court may exercise discretion in

deciding “which of the two prongs . . . should be addressed first,” considering the facts of the

case. Id. at 236.

The Court is not persuaded by the contention that Mr. Davidson had a “clearly

established” constitutional right in respect to commercial diplomacy. Id. at 232. As discussed

above, Mr. Davidson fails to cite any Constitutional or statutory provision that entitles him to the

specific form of commercial diplomacy he has requested from the Department of State. To the

contrary, the official manual and Executive Orders explicitly allow Defendants to exercise broad

discretion with respect to Mr. Davidson’s request. Because Defendants were acting within the

authorized bounds of discretion, the position that the “the unlawfulness” of Defendants action

was “apparent in the light of pre-existing law” is untenable. Hartley, 918 F. Supp. 2d at 56

11
Mr. Davidson also seeks relief pursuant to 42 U.S.C. § 1983. Compl. at 4. As
Defendants correctly point out, however, section 1983 applies only to state officials acting under
color of state law. See, e.g., District of Columbia v. Carter, 409 U.S. 418, 424 (1973); see also
Abramson v. Bennett, 707 F. Supp. 13, 16 (D.D.C. 1989) aff’d sub nom. Abramson v. Cavazos,
889 F.2d 291 (D.C. Cir. 1989). Here, Defendants are federal officials acting under color of
federal law.
(internal quotation mark omitted). Therefore, the Court dismisses Mr. Davidson’s Bivens claim

under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. 12

D. Plaintiff’s Motion to Test Sufficiency of Answer

Lastly, the Court considers Mr. Davidson’s pending motion to test the sufficiency of

Defendants’ answer. The motion contends that the answer “relates only to plaintiff’s FOI[A]

claim” and fails to respond to allegations 8 through 21 of the Complaint. See Pl.’s Mot. at 5.

Mr. Davidson misunderstands Defendants’ obligations at this stage in the litigation.

Defendants addressed the allegations 8 through 21 in their dispositive motion. See Defs.’ Partial

Mot. In fact, Defendants’ Answer explicitly states that the Answer addresses only the FOIA

claims. See Answer at 1, ECF No. 8. Defendants need not address the non-FOIA claims in their

responsive pleading unless and until the Court “denies the motion or postpones its disposition

until trial.” Fed. R. Civ. P. 12(a)(4)(A); see also Hamilton v. Sanofi-Aventis U.S., Inc., 628 F.

Supp. 2d 59, 62 n.2 (D.D.C. 2009) (explaining that defendant’s failure to answer a part of

complaint within the specified time limit did not result in a default because filing a motion to

dismiss “delay[ed] the submission of an answer until the motion is denied or its disposition is

postponed until trial”). Therefore, the Court denies Mr. Davidson’s motion.

12
No other authorities Mr. Davidson cites in his Complaint provides him with a cause of
action relevant to this case. Specifically, the two criminal statutes cited in the Complaint do not
provide a cause of action to any of his allegations, 18 U.S.C. § 201 (1994) (defining bribery of
public officials and witnesses as a crime); 18 U.S.C. § 20 (2009) (defining “financial institute”
within the context of Title 18), nor do several Office of Governmental Ethics regulations therein,
see generally, 5 C.F.R. § 2634.102 (2015).
 IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the defendants’ partial motion to

dismiss or in the alternative for summary judgment is GRANTED, and the Plaintiff’s motion to

test the sufficiency of the answer is DENIED. As a result, all of Plaintiff’s non-FOIA claims are

dismissed. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: July 7, 2015 RUDOLPH CONTRERAS
United States District Judge