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Taggart v. United States Department of Justice

United States District Court, E.D. Pennsylvania

May 9, 2017



          GERALD J. PAPPERT, J.

         The Court has already provided an extensive summary of the factual background and procedural history of this case. See Taggart v. United States Dep't of Justice, No. 16-04040, 2017 WL 319062, at *1-2 (E.D. Pa. Jan. 20, 2017). In that Memorandum and Order, the Court dismissed with prejudice all of Kenneth Taggart's claims against the Department of Justice (“DOJ”) and the Department of Housing and Urban Development (“HUD”) except that alleging retaliation in violation of his rights under the First Amendment. See Id. On February 3, 2017, the Departments (collectively “Government”) moved to dismiss the retaliation claim for lack of subject matter jurisdiction and failure to state a claim. (ECF No. 29.) The Government argues that to the extent Taggart seeks damages against DOJ and HUD, his claim is barred by sovereign immunity, and to the extent he seeks injunctive relief, his claim is not yet ripe. (Id.)

         The following sequence illustrates Taggart's confused, and confusing, approach to this and related prior litigation concerning the same topics.[1] On February 21, 2017, Taggart filed a purported response in opposition to the Government's motion to dismiss, along with a motion for reconsideration of the Court's January 20 decision. (ECF No. 31.) The filing did not, however, respond to the Government's motion. See (id.). The Government filed a response to Taggart's motion for reconsideration on March 7. (ECF No. 33.) On March 9, Taggart filed a motion to strike the Government's motion to dismiss. (ECF No. 34.) Because this motion was Taggart's effort to respond to the Government's February 3 motion to dismiss, it was untimely. On March 24, 2017, Taggart filed a motion to withdraw his Complaint without prejudice pursuant to Fed.R.Civ.P. 41(a)(2) or, in the alternative, for leave to amend his Complaint to add additional claims. (ECF No. 36.) The Government filed its response on April 4. (ECF No. 37). For the reasons below, the Court grants the Government's motion to dismiss and denies Taggart's motion for reconsideration, motion to strike and motion to withdraw or amend his Complaint.



         Taggart seeks damages from DOJ and HUD for allegedly retaliating against him in violation of his First Amendment rights by issuing CIDs as part of its investigation into Taggart's alleged violation of the False Claims Act. (Pl.'s Am. Compl. ¶¶ 7-8, ECF No. 6.) A plaintiff cannot sue the government for monetary damages unless there has been a waiver of sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Gary v. Pa. Human Relations Comm'n., 497 F. App'x 223, 228 (3d Cir. 2012) (same). A waiver of sovereign immunity “must be unequivocally expressed in statutory text, and will not be implied.” Good v. I.R.S., 629 F. App'x 185, 188 (3d Cir. 2015) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Because waivers of sovereign immunity must be strictly construed, “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lane, 518 U.S. at 192 (citation omitted).

         The Government has not waived sovereign immunity for claims seeking damages against federal agencies for constitutional violations. See Meyer, 510 U.S. at 484-85. Taggart relies on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 366 (1971), as the basis for subject matter jurisdiction “because of the similarity of the cases.” (ECF No. 34, at 8.) The Supreme Court, however, held that Bivens does not provide an action for damages directly against federal agencies. See Meyer, 510 U.S. at 486, 472 (holding that an “extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself” and would be inappropriate due to “special factors counselling hesitation”); see also Gary v. N.J. Dep't of Cons. Affairs Office of Cons. Prot., No. 10-3686, 2012 WL 993640, at *4 (E.D. Pa. Mar. 26, 2012), aff'd sub nom. Gary v. F.T.C., 526 F. App'x 146 (3d Cir. 2013) (“Thus, without its consent, neither the Federal Government nor its agencies can be sued for money damages or equitable relief, and this Court cannot hear those claims. . . Furthermore, the Federal Government has retained its sovereign immunity against suits alleging both constitutional violations and civil rights violations.” (citing Meyer, 510 U.S. at 473-75)). Taggart's First Amendment retaliation claim, to the extent it seeks monetary relief, is therefore barred by sovereign immunity and must be dismissed without prejudice.[2] See Onyiuke v. New Jersey, 242 F. App'x 794, 797 (3d Cir. 2007) (a dismissal of an action for lack of subject matter jurisdiction is not a decision on the merits; therefore such a dismissal should be without prejudice).


         The Government also contends that to the extent Taggart seeks injunctive relief, his claim must be dismissed pursuant to Rule 12(b)(6) because it is premature. (Gov't Mot. to Dismiss, at 9.) Taggart has asked the Court to grant him “relief to prevent defendants from violating [his] Free Speech again regarding this subject matter.” (Compl. ¶ 8.) In other words, Taggart seeks an order precluding the Government from issuing further CIDs. For the reasons discussed in the Court's prior opinion, see Taggart, 2017 WL 319062, at *9-10, this claim is not ripe.

         The Third Circuit Court of Appeals has held that ripeness is at least partially grounded in Article III's requirement of a case or controversy and unripe claims should be disposed of on a motion to dismiss. Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 n.6 (3d Cir. 1993); see also Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d Cir. 2012) (“[F]ederal courts are only empowered to decide cases and controversies as our Article III jurisprudence defines them. Ripeness is among the requirements for a case or controversy to exist.” (internal citations and quotations omitted)). Ripeness is “peculiarly a question of timing” and “its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Id. (citations omitted).

         Taggart asks the Court to enjoin future government investigations into his conduct because, in his opinion (and contrary to the Court's prior rulings), its past investigations were illegal. However, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 361 (3d Cir. 2014) (quoting City of LA. v. Lyons, 461 U.S. 95, 102 (1983)). And “to protect against a feared future event, the plaintiff must demonstrate that the probability of that future event occurring is real and substantial, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) (citations omitted). Federal courts “are without power to render an advisory opinion on a question simply because we may have to face the same question in the future.” N.L.R.B. v. Globe Sec. Servs., Inc., 548 F.2d 1115, 1118 (3d Cir. 1977) (citations omitted). Thus, “[w]here the plaintiff's action is based on a contingency, it is unlikely that the parties' interests will be sufficiently adverse to give rise to a case or controversy within the meaning of Article III.” Id. In this context, injunctions to prevent the future issuance of investigative subpoenas are disfavored. See Wearly v. F.T.C., 616 F.2d 662, 665-66 (3d Cir. 1980).

         Currently, there is neither a pending CID nor a claim against Taggart, and the parties are not “sufficiently adverse.” Until there is a credible threat that the Government will issue further CIDs, any claim Taggart has is purely speculative. See Tait v. City of Philadelphia, 639 F.Supp.2d 582, 594 (E.D. Pa. 2009), aff'd, 410 F. App'x 506 (3d Cir. 2011). Thus, to the extent Taggart requests injunctive relief as part of his First Amendment retaliation claim, the claim is not ripe and must be dismissed pursuant to Rules 12(b)(1) and 12(h)(3). The Government's motion is therefore granted and the request for injunctive relief is dismissed without prejudice. See Nextel Commc'ns of Mid-Atl., Inc. v. City of Margate, 305 F.3d 188, 190 (3d Cir. 2002) (instructing district court to dismiss claims that are not yet ripe without prejudice).


         Taggart's motion for reconsideration, filed on February 21, was untimely. (ECF No. 31.) The Court issued its opinion on January 20. (ECF No. 27.) Under Federal Rule 59(e), a motion for reconsideration must be filed “no later than 28 days after the entry of judgment.” Fed.R.Civ.P. 59(e). Taggart therefore had until February 17, 2017 to file his ...

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