United States District Court, W.D. Virginia, Lynchburg Division
Paul Valois, James River Legal Associates, Lynchburg,
Virginia, for Plaintiff;
Day Rottenborn and Krista Consiglio, Assistant United States
Attorneys, Roanoke, Virginia, for Defendant Thomas T. Cullen.
OPINION AND ORDER
P. Jones United States District Judge
action for violation of civil rights under 42 U.S.C. §
1983, one of the defendants, Thomas T. Cullen, United States
Attorney for the Western District of Virginia, has moved to
dismiss the claim against him made in the plaintiff's
First Amended Complaint. I will grant the
plaintiff, Les Christopher Burns, contends in his First
Amended Complaint that a deputy sheriff of Bedford County and
a former assistant United States Attorney conspired to
violate his civil rights by manufacturing false evidence
against him in a federal criminal prosecution. As to U.S.
Attorney Cullen, he is sued in his official capacity and
charged in Count Seven of the First Amended Complaint with
maintaining a policy or custom of hiding exculpatory evidence
from courts, in violation of the Constitution. Nominal
damages, a declaratory judgment, and attorneys' fees are
sought, as well as prospective injunctive relief.
Attorney Cullen contends that the First Amended Complaint
should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(1) because the court lacks subject-matter
jurisdiction over Burns' claim against him. He asserts
that the court lacks subject-matter jurisdiction because the
United States has not waived its sovereign immunity and
because Burns cannot establish standing in his claim against
U.S. Attorney Cullen. In addition, U.S. Attorney Cullen moves
to dismiss Burns' claim against him pursuant to Federal
Rule of Civil Procedure 12(b)(6) because Burns has failed to
state a claim against him.
courts have limited jurisdiction and are empowered to act
only in the specific instances authorized by Congress.
Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968).
The court must determine questions of subject-matter
jurisdiction before it can address the merits of a case.
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94-95 (1998). Thus, when a party moves to dismiss
for lack of subject-matter jurisdiction and for failure to
state a claim, the court must address the question of
subject-matter jurisdiction first. Bell v. Hood, 327
U.S. 678, 682 (1946).
contended by U.S. Attorney Cullen, I find that the court
lacks subject-matter jurisdiction because the United States
has not waived its sovereign immunity. Federal courts do not
have jurisdiction over actions against the United States
unless Congress has expressly waived the United States'
sovereign immunity. United States v. Sherwood, 312
U.S. 584, 586-87 (1941). Suits against federal officials in
their official capacity are suits against the United States.
Portsmouth Redev. & Hous. Auth. v. Pierce, 706
F.2d 471, 473 (4th Cir. 1983). Thus, federal officials sued
in their official capacity may assert the United States'
sovereign immunity. Lewis v. Clarke, 137 S.Ct. 1285,
1290-91 (2017). “A waiver of the Federal
Government's sovereign immunity must be unequivocally
expressed in statutory text . . . and will not be
implied.” Lane v. Pena, 518 U.S. 187, 192
First Amended Complaint is against U.S. Attorney Cullen in
his official capacity, and therefore it is against the United
States. Thus, there must be an express waiver of the United
States' sovereign immunity for the court to have
jurisdiction over Burns' suit against U.S. Attorney
Cullen. Although Burns alleges in his First Amended Complaint
that the court has jurisdiction under 28 U.S.C. § 1331,
this statute “is not a general waiver of sovereign
immunity.” Randall v. United States, 95 F.3d
339, 345 (4th Cir. 1996) (quoting Coggeshall Dev. Corp.
v. Diamond, 884 F.2d 1, 4 (1st Cir. 1989)). The only
other statute that Burns cites, 42 U.S.C. § 1983, does
not waive the United States' sovereign immunity because
it creates liability only against persons exercising power
“possessed by virtue of state law.” West v.
Atkins, 487 U.S. 42, 48-49 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)). U.S.
Attorney Cullen exercises his authority by virtue of federal,
rather than state, law. Accordingly, Burns' First Amended
Complaint does not state a waiver of the United States'
sovereign immunity, and the court lacks subject-matter
jurisdiction over it.
find that the court lacks subject-matter jurisdiction because
Burns cannot establish standing in his claim against U.S.
Attorney Cullen. Federal courts' jurisdiction extends
only to “cases” and “controversies, ”
and no case or controversy exists if a plaintiff lacks
standing to sue. Raines v. Byrd, 521 U.S. 811, 818
(1997). To establish standing, plaintiffs must show (1) that
they have suffered a concrete and particularized
injury-in-fact, or they will suffer an imminent injury, (2)
that is fairly traceable to the challenged conduct of the
defendant and (3) that is likely to be redressed by a
favorable judicial decision. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992).
that the plaintiff was exposed to illegal conduct in the past
“does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.” O'Shea v.
Littleton, 414 U.S. 488, 495-96 (1974). Further, where
“the prospect of future injury rests on the likelihood
that [the plaintiff] will again be arrested for and charged
with violations of the criminal law and will again be
subjected to [the challenged practices], ” the
case-or-controversy requirement is not satisfied.
Id. at 496. Such an allegation does not establish
that the plaintiff will suffer an imminent injury. See
Id. at 497 (finding that injury was not sufficiently
real and immediate because the court assumed “that
respondents will conduct their activities within the law and
so avoid prosecution and conviction as well as exposure to
the challenged course of conduct said to be followed”).
First Amended Complaint does not establish his standing to
sue U.S. Attorney Cullen because it does not show a concrete
and particularized injury-in-fact or an imminent injury.
Burns does not allege any continuing, present adverse effects
of the illegal conduct to which he was exposed in the past.
Further, Burns' allegation that “it is likely that
he will interact with and be exposed to the policies and
customs of the United States Attorney's Office, ”
Am. Compl. ¶ 91, ECF No. 4, does not establish a
sufficiently imminent injury. I assume that Burns will
conduct his activities within the law and so avoid exposure
to the challenged policies and customs. Accordingly,