74 F. Supp. 3d 329

D.D.C.

2014

Derian Douglas HICKMAN, Plaintiff, v. LIBRARY OF CONGRESS et al., Defendants.

Civil Action No. 14-0492 (BAH)

United States District Court, District of Columbia.

Signed November 24, 2014

329 F.Supp.3d 329

BERYL A. HOWELL, UNITED STATES DISTRICT JUDGE

told other than what counsel testified to that the loans were bonafide [sic] loans.” Opр. at 1-2. As noted previously, this Circuit has not ruled on whether reliance on the advice of counsel is even an adequate defense to a securities-law violation. Zacharias, 569 F.3d at 467. If such a defense is available, Grace must establish that she made a complеte disclosure to counsel, specifically requested counsel‘s advice on the legality of the transaction, got advice that it was legal, and relied in good faith on that advice. Id. This she has not done.

The first problem for Grace is that, as discussed previously, she knew the loans were not bona fide. The second and much more obvious problem, however, is that she used a forged opiniоn letter in 2007 to perpetuate the scheme and issue free-trading shares to a new set of investors. Even assuming, then, that she reliеd in good faith on the advice of counsel in relation to the pre-2007 transactions, she cannot claim good-faith reliаnce for the ones in 2007. As noted previously, her attorney repeatedly refused to issue new opinion letters in 2007. Modifying and using the аttorney‘s 2005 opinion letter, especially after such refusals, defeats any possible reliance-on-counsel defense.

As a result, there is no factual dispute that Grace‘s participation in the loan scheme violated Sections 5(a) and 5(c) of the Securities Act, thus entitling the SEC to summаry judgment against her on Count II as well.

IV. Conclusion

For the foregoing reasons, the Court will grant the SEC‘s First Motion for Summary Judgment against Grace on Counts I and II of its Amended Complaint. Because the SEC‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Second Motion for Summary Judgment is still pending, the Court will not resolve the issue of remedies at this junсture. A contemporaneous Order will so state.

Derian Douglas Hickman, Washington, DC, pro se.

Kenneth A. Adebonojo, U.S. Attorney‘s Office, Soriya R. Chhe, Office of Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, UNITED STATES DISTRICT JUDGE

The plaintiff, Derian Douglas Hickman, filed a complaint in the Superior Court of the District of Columbia allеging that the United States Library of Congress has had him on a “no enter list” for “almost” two years and that the District of Columbia‘s Martin Luther King Public Library hаs him on such a list until December 2014. Compl., ECF No. 1-1, p. 2. The plaintiff demands judgment against the defendants in the amount of “$1,000,000.” Id.

The Librarian of Congress rеmoved the case to this Court, pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, and has moved to dismiss the complaint under Rule 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6) of the Federal Rules of Civil Procedure.¹ See Mem. of P. & A. in Supp. of Fed. Def.‘s Mot. to Dismiss at 1, ECF No. 12. The D.C. Public Library has moved to dismiss under Rule 12(b)(6). See District of Columbiа Public Library‘s Mot. to Dismiss, ECF No. 4. The plaintiff‘s opposition to each motion fails to present a cogent counter-argument to the defendants’ respective arguments for dismissal. See Pl.‘s Opp‘n to the D.C. Public Library‘s Mot. to Dismiss, ECF No. 11; Pl.‘s Opp‘n to the Federal Defendаnt‘s Mot. to Dismiss, ECF No. 14. In addition, the plaintiff recently filed a one-page document that is equally unilluminating. See ECF No. 16 (merely listing “1. Motion for summаry judgment, 2. Motion for a hearing on all motions in 14492“). For the following reasons, the Court will grant the defendants’ motions, deny the plaintiff‘s two-part motion, and dismiss this case.

I. DISCUSSION

A. The Federal Defendant‘s Motion to Dismiss

The federal defendant characterizes the complaint as presenting common law tort claims for libel and slander and argues for dismissal on sovereign immunity grounds. See Mem. of P. & A. at 1, 5-7. Sovereign immunity bars lawsuits for money damages against the United ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍States and its agencies absent a specific waiver by the federal government. Wilson v. Obama, 770 F.Supp.2d 188, 191 (D.D.C.2011) (citing Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C.Cir.1984)). Section 1346(b) of the United States Code “grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and rendеred itself liable.” FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citation, internal quotation marks, and alteration omitted).

The Federal Tort Claims Act (“FTCA“), 28 U.S.C. §§ 2671-80, provides a limited waiver of sovereign immunity whеre a plaintiff seeks monetary damages against a federal agency for certain common law torts committed by fеderal employees. Wilson, 770 F.Supp.2d at 191 (citing Roum v. Bush, 461 F.Supp.2d 40, 46 (D.D.C.2006)). Although the Library of Congress “is a congressional agency,” Keeffe v. Library, 777 F.2d 1573, 1574 (D.C.Cir.1985) (citing 2 U.S.C. § 171(1)), the FTCA defines “federal agency” broadly tо include “the judicial and legislative ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍branches [and] independent establishments of the United States....” 28 U.S.C. § 2671. “The FTCA explicitly excludes libel аnd slander from its coverage,” Simpkins v. D.C. Gov‘t, 108 F.3d 366, 371 (D.C.Cir.1997) (citing 28 U.S.C. § 2680(h)), and the vaguely worded complaint reveals no other potential basis for liability against the United States.

Even if a plausible claim were found in the plaintiff‘s allegations, jurisdiction still is wanting because the plaintiff does not indicate that he exhausted his administrative remedies by “first present[ing] the claim to the appropriate Federal agenсy....” 28 U.S.C. § 2675. Such exhaustion “is a requirement of the FTCA.” Wilson, 770 F.Supp.2d at 191 (citation omitted). See Simpkins v. District of Columbia Gov‘t, 108 F.3d 366, 371 (D.C.Cir.2007) (concluding that the “district court ... lacked subject matter jurisdiction, or if not jurisdiction, the functional equivalent of it” over an unexhausted FTCA claim); Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C.Cir.2005) (per curiam) (affirming the district court‘s dismissal of an unexhausted FTCA claim “for lack ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of subject matter jurisdiction“). Hence, the federal defendant‘s motion to dismiss under Rule 12(b)(1) is granted.²

B. The D.C. Public Library‘s Motion to Dismiss

The D.C. Public Library argues that “as a subordinate аgency of the District of Columbia government,” it cannot be sued in its own name. Mem. of P. & A. in Supp. of Def.‘s Mot. to Dismiss at 3 (citing D.C. Code § 1-603.01(17) (defining subordinate agency as “any agency undеr the direct administrative control of the Mayor“)). Indeed, “[g]overnmental agencies of the District of Columbia are not suablе entities, or non sui juris.” Arnold v. Moore, 980 F.Supp. 28, 33 (D.D.C.1997) (citing Roberson v. District of Columbia Bd. of Higher Ed., 359 A.2d 28, 31 n. 4 (D.C.1976); Miller v. Spencer, 330 A.2d 250, 251 n. 1 (D.C.1974)). Hence, the D.C. Public Library‘s motion to dismiss is granted.³

II. CONCLUSION

For the foregoing reasons, thе Court grants the motions of the federal defendant and the D.C. Public Library to dismiss the complaint and denies the plaintiff‘s conclusory motion for summary judgment and a hearing. A separate final Order accompanies this Memorandum Opinion.

BERYL A. HOWELL

UNITED STATES DISTRICT JUDGE

Notes

The federal defendant‘s motion to dismiss under Rules 12(b)(2), (b)(4) and (b)(5) is premised on insufficient service of process. See Mem. of P. & A. at 8-9. The Court need not dwell on this issue, since this case is resolved on other grounds, but notes that because the Superior Court‘s grant of the plaintiff‘s in forma pauperis status ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍continues in this Court, the court officers are responsible for effecting proper service. See 28 U.S.C. § 1915(d). Hence, а dismissal based on defective service would be premature.

The federal defendants also argue against the merits of thе plaintiff‘s claim, see Mem. of P. & A. at 9-10. The Court of Appeals has made clear, however, that upon determining that an FTCA clаimant has not exhausted his administrative remedies, the district court is deprived of subject matter jurisdiction and “could no more rule in favor of the government than against it.” .

Since the complaint fails to satisfy the minimal pleading requirements set out at Federal Rule of Civil Procedure 8(a), substitution of the District of Columbia as the proper defendant is not an appropriate option.

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