Hebert v. Central Intelligence Agency

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

JOHN KEITH HEBERT, ET AL. CIVIL ACTION NO. 6:21-cv-00545

VERSUS JUDGE SUMMERHAYS

UNITED STATES OF AMERICA, MAGISTRATE JUDGE HANNA

ET AL.

MEMORANDUM RULING

Plaintiffs John Keith Hebert and International Defense Corporation,

proceeding pro se and in forma pauperis, filed a lengthy complaint against several

defendants. The complaint was screened under 28 U.S.C. § 1915(e)(2)(B) to

determine whether the action is frivolous, malicious, or fails to state a claim upon

which relief may be granted. This Court also undertook a sua sponte review of the

court’s subject-matter jurisdiction over this action and its personal jurisdiction over

the defendants. For the following reasons, counsel shall enroll for International

Defense Corporation and the plaintiffs shall file an amended complaint not later than

May 15, 2021.

Background

The plaintiffs alleged that John Keith Hebert is the president of International

Defense Corporation. They alleged that Mr. Hebert and his company entered into

an independent contractor service agreement with certain defendants and entered

into an independent subcontractor service agreement with the United States Central

Intelligence Agency (“CIA”). The plaintiffs alleged that, under both contracts, they

provided private security services in Afghanistan. The plaintiffs alleged that several

of the defendants failed to comply with the terms of the contracts by, among other

things, torturing Mr. Hebert in May 2014 while he was in Afghanistan, allegedly

because he was a whistleblower concerning criminal activity. The allegations set

forth in the complaint are rambling and disjointed, and the alleged torture seems to

have taken the form of trying to prevent Mr. Hebert from continuing to work in

Afghanistan and denying him permission to drive while he was working there.

The plaintiffs alleged that Mr. Hebert treated with a psychologist while in

Afghanistan and was diagnosed with unspecified anxiety disorder. They alleged that

he continued to treat with mental health professionals after he returned home to Las

Vegas. The plaintiffs alleged that members of the North Las Vegas Police

Department and the CIA office in Las Vegas assaulted Mr. Hebert with deadly

weapons when he returned home from Afghanistan in October 2015, and they

alleged that he was also assaulted by some of his neighbors.

The plaintiffs alleged that Mr. Hebert sought compensation under the Defense

Base Act for the injuries he sustained due to being tortured in Afghanistan. He was

allegedly represented in that proceeding by attorney William David Turley of the

Turley Law Firm. In February 2018, Administrative Law Judge Jennifer Gee in San

Francisco allegedly denied Mr. Hebert’s claim.

The plaintiffs claim that Mr. Hebert’s health and finances were negatively

impacted by his being tortured in Afghanistan. In this lawsuit, they sued twenty-

five defendants and asserted a variety of claims.

Law and Analysis

A. Pro Se Status

A pro se litigant’s pleadings are construed liberally1 and held to “less stringent

standards than formal pleadings drafted by lawyers.”2 However, a pro se “plaintiff

must prove, by a preponderance of the evidence, that the court has jurisdiction based

on the complaint and evidence.”3 Furthermore, a pro se plaintiff must also abide by

the rules that govern federal courts4 and properly plead sufficient facts that, when

liberally construed, state a plausible claim to relief.5 A court may dismiss a

plaintiff’s claims on its own motion under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim so long as the plaintiff has notice of the court’s intention

1 Mendoza-Tarango v. Flores, 982 F.3d 395, 399 (5th Cir. 2020); Nerren v. Livingston Police

Dept., 86 F.3d 469, 472 (5th Cir. 1996).

2 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.

Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)).

3 Dos Santos v. Belmere Ltd. Partnership, 516 Fed. App’x 401, 402-03 (5th Cir. 2013).

4 E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (citing Frazier v. Wells Fargo

Bank, N.A., 541 Fed. App’x 419, 421 (5th Cir. 2013)).

5 See Frazier v. Wells Fargo Bank, N.A., 541 Fed. App’x at 421-22.

to do so and an opportunity to respond.6 However, a court should generally allow a

pro se plaintiff an opportunity to amend his complaint before dismissing it for failure

to state a claim.7

B. International Defense Corporation Must Retain Counsel

The statute governing appearances in federal court8 has been interpreted to

mean that fictional legal persons such as corporations and partnerships cannot appear

for themselves personally; instead, they must be represented by legal counsel.9 The

same rule applies to limited liability companies10 and trusts.11 Thus, a corporation

can enter an appearance in a federal district court only through an attorney admitted

to practice before the court.12 This is true even when the person seeking to represent

6 See Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006) (citing Bazrowx v.

Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)).

7 Bazrowx v. Scott, 136 F.3d at 1054.

8 28 U.S.C. § 1654.

9 Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004) (citing Rowland v.

California Men's Colony, 506 U.S. 194, 202 (1993)).

10 See, e.g., JLM Sartor, Inc. v. CGN Energy Louisiana I, LLC, No. 15-2464, 2018 WL

3546236, at *1 (W.D. La. July 20, 2018); Citicorp Vendor Finance, Inc. v. Smile-Brite Family

Dental, L.L.C., No. 06-1205, 2007 WL 594903, at *1 (W.D. La. Feb. 20, 2007).

11 United States v. Trowbridge, 251 F.3d 157 (5th Cir. 2001) (per curiam) (citing Rowland v.

California Men's Colony, 506 U.S. at 202).

12 Southwest Express Co., Inc. v. I.C.C., 670 F.2d 53, 56 (5th Cir. 1982).

the corporation is its president and major stockholder.13 Therefore, International

must be represented by counsel in order to proceed with this lawsuit.

When a corporation appears in court without counsel, the court is required to

warn the corporation that it must obtain counsel and afford it the opportunity to cure

this defect before striking its pleadings.14 Accordingly, International will be ordered

to obtain counsel. International’s failure to comply with this order will result in the

dismissal of International’s claims.

C. Subject-Matter Jurisdiction

Federal district courts are courts of limited jurisdiction, possessing only the

power authorized by the Constitution and by statute.15 Federal courts have subject-

matter jurisdiction only over civil actions presenting a federal question16 and those

in which the amount in controversy exceeds $75,000 exclusive of interest and costs

and the parties are citizens of different states.17 A suit is presumed to lie outside a

federal court's jurisdiction until the party invoking federal-court jurisdiction

13 In re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981).

14 Memon v. Allied Domecq QSR, 385 F.3d at 874-75.

15 See, e.g., Griffin v. Lee, 621 F.3d 380, 388 (5th Cir. 2010) (quoting Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

16 28 U.S.C. § 1331.

17 28 U.S.C. § 1332.

establishes otherwise.18 Absent subject-matter jurisdiction, a federal court has no

power to adjudicate claims.19

“Federal courts, both trial and appellate, have a continuing obligation to

examine the basis for their jurisdiction. The issue may be raised by parties, or by

the court sua sponte, at any time.”20 “If the court determines. . . that it lacks subject-

matter jurisdiction, the court must dismiss the action.”21 A district court may dismiss

a case for lack of subject-matter jurisdiction on the basis of the complaint alone.22

The party asserting federal jurisdiction has the burden of proving its existence

by a preponderance of the evidence.23 Accordingly, the plaintiffs must bear that

burden in this case.

The plaintiffs alleged that the court has subject-matter jurisdiction because

their claims arise under federal law. “A suit arises under the Constitution and laws

of the United States only when the plaintiff's statement of his own cause of action

18 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citing Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. at 377).

19 Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998); Veldhoen v.

United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994).

20 MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). See, also,

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).

21 Fed. R. Civ. P. 12(h)(3).

22 St. Tammany Parish v. FEMA, 556 F.3d 307, 315 (5th Cir. 2009); Williamson v. Tucker,

645 F.2d 404, 413 (5th Cir. 1981).

23 New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008).

shows that it is based upon those laws or that Constitution.”24 “The presence or

absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

rule,’ which provides that federal jurisdiction exists only when a federal question is

presented on the face of the plaintiff's properly pleaded complaint.”25 In other words,

federal-question jurisdiction “exists when ‘a well-pleaded complaint establishes

either that federal law creates the cause of action or that the plaintiff's right to relief

necessarily depends on resolution of a substantial question of federal law.’”26

Generally, a suit arises under federal law for purposes of establishing federal-

question jurisdiction if there appears on the face of the complaint some substantial,

disputed question of federal law.27 A pro se complaint must comply with the well-

pleaded complaint rule.28

24 Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003) (quoting Louisville &

Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).

25 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). See, also, Elam v. Kansas City S.

Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011).

26 Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting Franchise Tax Bd.

v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).

27 Carpenter v. Wichita Falls Independent School Dist., 44 F.3d 362, 366 (5th Cir. 1995).

28 See, e.g., Vela v. Manning, 469 Fed. App’x 319, 321 (5th Cir. 2012); Lai v. Guller, No.

3:18-CV-1121-B-BK, 2018 WL 6174220, at *2 (N.D. Tex. Nov. 7, 2018), report and

recommendation adopted, 2018 WL 6172063 (N.D. Tex. Nov. 26, 2018); McGee v. McGee, No.

18-cv-0807, 2018 WL 3342060, at *2 (W.D. La. June 21, 2018), report and recommendation

adopted 2018 WL 3341793 (W.D. La. July 6, 2018); Allsbrook v. Osbourn, No. 18-cv-0330, 2018

WL 3041195, at *2 (W.D. La. Mar. 29, 2018), report and recommendation adopted, 2018 WL

3040018 (W.D. La. June 19, 2018).

In their complaint, the plaintiffs expressly alleged that the court has subject-

matter jurisdiction based on a federal question arising under (1) statutes addressing

treason, sedition, and subversive activities, 18 U.S.C. §§ 2381-2391; (2) the

Communist Control Law and legislative findings of fact and declarations of

necessity, 50 U.S.C. §§ 841-844; (3) the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968; (4) statutes addressing civil

rights violations, 42 U.S.C. §§ 1985 and 1986; and (5) Law of War § 18.16, which

addresses compensation for violations of the law of war. But none of these is a valid

source of subject-matter jurisdiction in this case.

1. The Treason and Sedition Claim

The plaintiffs claim that the defendants engaged in treasonous and seditious

conduct in violation of 18 U.S.C. §§ 2381-2391. These are criminal statutes.

Criminal statutes generally do not create a private right of action; therefore, there

must be a statutory basis for a private right of action to exist under a criminal

statute.29 Further, a private citizen has no constitutional right to have someone

criminally prosecuted.30 “[D]ecisions whether to prosecute or file criminal charges

are generally within the prosecutor's discretion, and, as a private citizen, [a plaintiff]

29 See Ali v. Shabazz, 8 F.3d 22, 22 (5th Cir. 1993) (per curiam) (unpublished).

30 Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). See, also, Leeke v. Timmerman, 454 U.S.

83, 85-86 (1981); Pierre v. Guidry, 75 Fed. App'x 300, 300 (5th Cir. 2003) (per curiam)

(unpublished).

has no standing to institute a federal criminal prosecution and no power to enforce a

criminal statute.”31 More particularly, there is no private right of action regarding

treason claims nor can a private individual cause a treason prosecution.32 Therefore,

these claims do not support the exercise of federal question jurisdiction.

2. The Communist Control Law Claim

The plaintiffs’ complaint attempts to assert a claim under Communist control

legislation, 50 U.S.C. § 841, et seq., which states that a person who knowingly and

willfully becomes a member of the Communist Party is subject to the Internal

Security Act of 1950, 8 U.S.C. § 156. The Internal Security Act has to do with the

deportation of aliens.33 The plaintiffs did not identify any statutory provision

creating a private right of action related to these statutes nor did they identify any

aliens who might be subject to deportation. Therefore, the plaintiffs’ citation to these

statutes does not support the exercise of federal question jurisdiction.

31 Gill v. Texas, 153 Fed. App'x 261, 262 (5th Cir. 2005) (unpublished).

32 Yazdi v. Mowad, No. EP-11-CV-016-DB, 2011 WL 13208860, at *8 (W.D. Tex. July 11,

2011).

33 Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34 (2006); Carlson v. Landon, 342 U.S. 524,

528 n. 5 (1952).

3. The RICO Claim

The Racketeering Influenced Corrupt Organizations Act (“RICO”) has both

criminal and civil components.34 “RICO affords a private right of action only to a

plaintiff who can show that he or she has been injured ‘by reason of’ a violation of

RICO's criminal prohibitions.”35 A civil RICO claim requires proof of three

elements: “(1) a person who engages in (2) a pattern of racketeering activity, (3)

connected to the acquisition, establishment, conduct, or control of an enterprise.”36

Furthermore, a pattern of racketeering activity consists of two or more predicate

criminal acts that are (1) related and (2) amount to or pose a threat of continued

criminal activity.37

Governmental entities are not capable of forming a criminal enterprise.38

“[E]very court to address the issue has found that the Federal Government and its

employees are immune from suit under the civil RICO statute.”39 Furthermore, the

34 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 253 (1989); United States v. Vasquez, 899 F.3d

363, 373 n.6 (5th Cir. 2018).

35 Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016) (citing 18 U.S.C. §

1964(c)).

36 Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007).

37 St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009) (citing Abraham v. Singh, 480

F.3d at 355).

38 Andrade v. Chojnacki, 65 F. Supp. 2d 431, 449 (W.D. Tex. 1999).

39 See McLean v. Obama, No. 15-8, 2015 WL 3966426, at *2 (E.D. La. June 30, 2015)

(collecting cases).

Fifth Circuit has rejected the idea that a federal agency can be sued under the RICO

statute.40 Accordingly, the plaintiffs cannot establish a RICO claim involving any

of the governmental entities named as defendants in the lawsuit, and their complaint

contains insufficient allegations to support a conclusion that any of the individuals

named in the suit were involved in racketeering activity. The plaintiffs have not

established that their RICO allegations provide a basis for the exercise of subject-

matter jurisdiction.

4. The Civil Rights Claims under 42 U.S.C. §§ 1985 and 1986

The plaintiffs alleged that the defendants conspired to harm them, violating

42 U.S.C. § 1986. A person is liable under 42 U.S.C. § 1986 if he neglects or refuses

to prevent the commission of an action prohibited by Section 1985. Consequently,

“a § 1986 cause of action is dependent on a claimant's successful pleading of a §

1985 claim first.”41 Section 1985 prohibits conspiracy to (1) prevent an official from

carrying out his or her lawful duties; (2) interfere with a federal court proceeding or

with a state court proceeding for the purpose of denying a citizen equal protection

of law; or (3) deprive a person or class of persons of equal protection of law. A

person seeking to assert a claim under 42 U.S.C. § 1985 must plead operative facts

40 McNeily v. United States, 6 F.3d 343, 350 (5th Cir. 1993) (citing Berger v. Pierce, 933 F.2d

393, 397 (6th Cir. 1991) (“there can be no RICO claim against the federal government.”)).

41 Beckwith v. City of Houston, 790 Fed. App'x 568, 576 (5th Cir. 2019), cert. denied 140 S.

Ct. 1127 (2020) (citing Hamilton v. Chaffin, 506 F.2d 904, 914 (5th Cir. 1975)).

upon which the claim is based; conclusory and bald allegations are inadequate.42 In

this case, however, the plaintiffs’ complaint does not contain factual allegations

sufficient to support a claim under this statute.

First, the plaintiffs did not allege that they were officials who were prevented

from carrying out their duties under Section 1985(a). Therefore, they have not stated

a Section 1985(a) claim. Second, a claim under either Section 1985(2) or Section

1985(3) must allege facts demonstrating that there was some racial or class-based,

invidiously discriminatory animus behind the alleged conspirators’ actions.43 But

there are no allegations that the defendants’ actions were motivated by Mr. Hebert’s

membership in any particular race or class. Therefore, there is no factual basis for a

claim under Section 1985(2) or 1985(3).

Because there is no factual basis in the complaint for a Section 1985 claim,

this purported claim does not support the exercise of federal-question jurisdiction.

5. The Law of War Claims

The plaintiffs claim that the defendants violated the law of war, and they seek

compensation for those violations, specifically referencing Law of War Section

42 Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987).

43 Bryant v. Military Department of Mississippi, 597 F.3d 678, 687 (5th Cir. 2010), cert.

denied, 562 U.S. 893 (2010) (regarding Section 1985(2) claims); Cantu v. Moody, 933 F.3d 414,

419 (5th Cir. 2019), cert. denied, 141 S. Ct. 112 (2020) (regarding Section 1985(3) claims). See,

also, Holdiness v. Stroud, 808 F.2d at 424.

18.16 in the complaint. The Department of Defense publishes a document styled

“Department of Defense Law of War Manual.”44 Section 1.1.1 states, in pertinent

part, that “[t]his manual is not intended to, and does not, create any right or benefit,

substantive or procedural, enforceable at law or in equity against the United States,

its departments, agencies, or other entities, its officers or employees, or any other

person.” Section 18.16 of that document is titled “Compensation for Violations of

the Law of War.” It states that violations of the law of war might make a State liable

to another State for compensation but further says that “[c]ustomary international

law and the 1949 Geneva Conventions do not provide a private right for individuals

to claim compensation directly from a State; rather, such claims are made by other

States.” A clarifying footnote states that individual men and women have no right

to claim compensation under the Geneva Conventions.

The plaintiffs did not establish that a private citizen has the right to seek

redress in federal court for violations of the law of war. Therefore, they did not

establish that they have standing to bring this lawsuit or that the court has jurisdiction

over their law-of-war claim.

44 Department of Defense Law of War Manual, June 2015 (Updated December 2016),

https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20

-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190 (last visited

Mar. 24, 2021).

6. Summary of Findings Regarding Subject-Matter Jurisdiction

The plaintiffs alleged five bases for federal-question jurisdiction, none of

which actually confer subject-matter jurisdiction on the court. However, this Court

will allow the plaintiffs an opportunity to amend their complaint to state a valid

jurisdictional basis for their lawsuit.

D. Personal Jurisdiction

Personal jurisdiction is an essential element of the jurisdiction of a district

court, without which it is powerless to proceed to an adjudication.45 Because a

judgment entered without personal jurisdiction is void, the court may raise the issue

of personal jurisdiction sua sponte46 so long as the defendant has not waived the

issue. In this case, the defendants have not yet been served; consequently, the issue

has not been waived. A plaintiff bears the burden of establishing a trial court’s

personal jurisdiction over each nonresident defendant.47 The plaintiff need only

establish a prima facie case of personal jurisdiction; proof by a preponderance of the

evidence is not required.48 When considering personal jurisdiction, the Court must

45 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584(1999).

46 System Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001)

47 Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985).

48 Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 211 (5th Cir. 1999); Jones v. Petty-Ray

Geophysical, Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir. 1992).

accept the plaintiffs “uncontroverted allegations, and resolve in [his] favor all

conflicts between the facts contained in the parties' affidavits and other

documentation.”49

“Absent a federal statute that provides for more expansive personal

jurisdiction, the personal jurisdiction of a federal district court is coterminous with

that of a court of general jurisdiction of the state in which the district court sits.”50

Personal jurisdiction over a non-resident defendant is determined by the state's long-

arm statute and the due process clause.51 Because Louisiana's long-arm statute

extends to the limits of the due process clause of the Fourteenth Amendment, the

inquiry is whether subjecting a defendant to personal jurisdiction in Louisiana would

offend due process.52 Due process is not offended if the defendant has “certain

minimum contacts with [the forum] such that the maintenance of the suit does not

offend traditional notions of fair play and substantial justice.”53

49 Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).

50 Submersible Systems v. Perforadora Central, 249 F.3d 413, 418 (5th Cir.2001).

51 ICEE Distrib., Inc. v. J&J Snack Foods, 325 F.3d 586, 591 (5th Cir. 2003).

52 ICEE Distrib., Inc. v. J&J Snack Foods, 325 F.3d at 591 (5th Cir. 2003); Dickson Marine

Inc. v. Panalpina, Inc., 179 F.3d 331, 336 (5th Cir. 1999).

53 Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d at 336 (quoting Internat'l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (internal quotation and citation omitted)).

Here, the plaintiffs sued several individuals and business entities but provided

insufficient information in their complaint to allow this Court to determine whether

the court has personal jurisdiction over the various defendants. Because the

plaintiffs are proceeding without the assistance of legal counsel, however, this Court

will allow the plaintiffs an opportunity to amend their complaint to establish personal

jurisdiction. The plaintiffs are warned that if their amended complaint lacks a

sufficient basis to establish personal jurisdiction over the named defendants, their

claims will be dismissed.

E. Screening of Complaints Filed In Forma Pauperis

The plaintiffs filed a motion for in forma pauperis status along with their

complaint. An indigent person may bring an in forma pauperis action in federal

court without paying costs.54 District courts screen such complaints and may dismiss

them at any time if the allegation of poverty is untrue or if the action is frivolous or

malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief.55 A dismissal “at any

time” includes dismissal at the initiation of the action, before the defendant has

appeared.56 This “discourage[s] the filing of, and waste of judicial and private

54 28 U.S.C. § Section 1915(a)(1).

55 28 U.S.C. § 1915(e)(2). See, also, Smilde v. Snow, 73 Fed. App'x 24, 25 (5th Cir. 2003).

56 Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

resources upon, baseless lawsuits”57 and “spare[s] prospective defendants the

inconvenience and expense of answering such complaints.”58 A court must not

dismiss a complaint simply because the facts presented by the plaintiff appear

unlikely.59 However, a complaint must allege a set of facts sufficient “to state a

claim. . . that is plausible on its face.”60 Therefore, a district court may review a

complaint and dismiss sua sponte those claims premised on meritless legal theories

and those that clearly lack any basis in fact.61

District courts are vested with especially broad discretion in determining

whether a dismissal for frivolousness is warranted in cases brought by plaintiffs in

forma pauperis,62 and dismissal is appropriate if a complaint has no “realistic chance

of ultimate success”63 or is “clearly baseless.”64 A complaint is frivolous if it “lacks

57 Neitzke v. Williams, 490 U.S. 319, 327 (1989).

58 Neitzke v. Williams, 490 U.S. at 324.

59 Denton v. Hernandez, 504 U.S. 25, 33 (1992).

60 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

61 Denton v. Hernandez, 504 U.S. at 32 (citing Neitzke v. Williams, 490 U.S. at 327).

62 Green v. McKaskle, 788 F.2d at 1119.

63 George v. King, 837 F.3d 705, 707 (5th Cir. 1988) (quoting Green v. McKaskle, 788 F.2d

at 1120).

64 Denton v. Hernandez, 504 U.S. at 32.

an arguable basis either in law or in fact.”65 A complaint lacks an arguable basis in

law when it is “based on an indisputably meritless legal theory,”66 while factually

frivolous claims are those in which the facts alleged are clearly baseless, fanciful,

fantastic, delusional, irrational, or wholly incredible.67

In determining whether a complaint filed by a plaintiff proceeding in forma

pauperis fails to state a claim, the court applies the same standard governing

dismissals under Fed. R. Civ. P. 12(b)(6).68 Thus, the court must limit itself to the

contents of the pleadings, accept all well-pleaded facts as true, view the facts in a

light most favorable to the plaintiff,69 and determine whether the plaintiff has

pleaded “enough facts to state a claim to relief that is plausible on its face.”70

Several of the plaintiffs’ claims are not plausible and should be dismissed.

Because the plaintiffs are not represented by counsel, however, they will be given

an opportunity to amend their complaint and state plausible claims.

65 Brewster v. Dretke, 587 F.3d at 767; Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).

66 Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Talib v. Gilley, 138 F.3d at 213.

67 Talib v. Gilley, 138 F.3d at 213 (clearly baseless); Horton v. Cockrell, 70 F.3d 397, 400

(5th Cir. 1995) (irrational or wholly incredible); Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995)

(fanciful, fantastic, delusional).

68 Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

69 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

70 Bell Atlantic v. Twombly, 550 U.S. at 570.

1. Defense Base Act Claim

According to the complaint, Mr. Hebert decided while he was still in

Afghanistan that he would seek compensation for his alleged injuries under the

Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq. Disability compensation

claims brought by persons employed at United States military bases abroad are

generally governed by the DBA.71 The DBA states that the Longshore and Harbor

Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq., applies to such

claims unless the DBA modifies the provisions of the LHWCA.72 One such

modification is relevant to this case. While both LHWCA and DBA claims are first

evaluated by the Benefits Review Board (“BRB”), federal appellate courts provide

judicial review of BRB decisions for LHWCA claims73 while federal district courts

review BRB decisions regarding DBA claims.74 More specifically, an appeal of a

BRB decision on a DBA claim must be directed to “the United States district court

of the judicial district wherein is located the office of the deputy commissioner

whose compensation order is involved. . . .”75

71 H.B. Zachry Co. v. Quinones, 206 F.3d 474, 476 (5th Cir. 2000).

72 See 42 U.S.C. § 1651(a).

73 33 U.S.C. § 921(c).

74 42 U.S.C. § 1653(b). See, also, H.B. Zachry Co. v. Quinones, 206 F.3d at 476;

AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1114, 1116 (5th Cir.1991).

75 41 U.S.C. § 1653(b).

In their complaint, the plaintiffs alleged that Mr. Hebert received

correspondence from an administrative law judge in San Francisco, California

regarding his DBA claim. They also specifically alleged that the administrative law

judge remanded his case in February 2018. To the extent that the plaintiffs’

complaint might be interpreted as an appeal of a BRB decision regarding his DBA

claim, it has been filed in the wrong court. It must be filed in the United States

district court for the judicial district where the BRB decision was made, which

appears to be San Francisco, California. Therefore, the plaintiffs’ DBA claim is

frivolous because it lacks both an arguable basis in law and an arguable basis in fact.

2. The Claim Against the State of California and its Franchise Tax Board

The plaintiffs named both the State of California and California’s Franchise

Tax Board as defendants in the suit. They alleged that the board attempted to collect

unpaid taxes from Mr. Hebert even though he lived in Nevada rather than California

at relevant times and further alleged that the State of California attempted to collect

unpaid taxes from Mr. Hebert for time periods when he was in Afghanistan. But

federal courts lack jurisdiction over suits against a state, a state agency, or a state

official in his official capacity unless that state has waived its sovereign immunity

or Congress has clearly abrogated it.76 Because the plaintiffs have the burden of

76 Moore v. Louisiana Bd. of Elementary and Secondary Educ., 743 F.3d 959, 963 (5th Cir.

2014).

establishing that the court has subject-matter jurisdiction, they have the burden of

citing to a statute that permits a citizen to sue the State of California and its Franchise

Tax Board in federal court. Because they have not done so, the plaintiffs have not

stated a plausible claim against the State of California or its Franchise Tax Board.

3. The Claims Against the CIA, The IRS, and the USPS

As sovereign, the United States is immune from suit unless it consents to be

sued.77 Thus, the United States and its agencies are immune from suit unless

immunity has been expressly waived.78 Any suit against the United States that does

not fall within an express waiver of its sovereign immunity must be dismissed for

lack of jurisdiction.79 Consequently, a party suing the United States must cite the

specific statute that waived the United States’ sovereign immunity.80 The burden is

on the party asserting the claim against the United States to show consent to suit.81

Here, the plaintiffs must shoulder that burden.

77 Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994); Broussard v. United States, 989

F.2d 171, 174 (5th Cir. 1993).

78 F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). See, also, In re Supreme Beef Processors,

Inc., 468 F.3d 248, 252 (5th Cir. 2006).

79 United States v. Dalm, 494 U.S. 596, 608 (1990). See, also, Ashford v. United States, 463

Fed. App’x 387, 389 (5th Cir. 2012).

80 Lundeen v. Mineta, 291 F.3d 300, 304 (5th Cir. 2002).

81 Lundeen v. Mineta, 291 F.3d at 304.

a. The CIA

Constitutional and civil rights claims against the CIA are barred by federal

sovereign immunity.82 Therefore, the plaintiffs’ constitutional and civil rights

claims against the CIA lack an arguable basis in fact or law and, consequently, are

frivolous and should be dismissed. If the plaintiffs are seeking to assert any other

types of claims against the CIA, they have the burden of identifying a statute that

permits a private cause of action against the CIA. So far, no such statute has been

identified.

b. The Post Office

The plaintiffs alleged that they did not receive all of their mail, and they

asserted a claim against The United States Postal Service Headquarters. But

sovereign immunity shields the federal government from any claim arising out of

the loss, miscarriage, or negligent transmission of letters or postal matter.83

Therefore, the court lacks subject-matter jurisdiction over this claim. Further,

because this claim lacks an arguable basis in law and fact, it is frivolous and should

be dismissed.

82 Torres v. County of Webb, 150 Fed. App’x 286, 291 (5th Cir. 2005) (citing Affiliated

Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999)).

83 28 U.S.C. § 2680(b); Ruiz v. U.S., 160 F.3d 273, 275 (5th Cir. 1998); Ins. Co. of N. Am. v.

United States Postal Serv., 675 F.2d 756, 759 (5th Cir. 1982).

c. The Internal Revenue Service and The United States Department of the

Treasury

The plaintiffs asserted claims against the Internal Revenue Service and the

United States Department of the Treasury, alleging that they are seeking to collect

taxes owed by them for years during which Mr. Hebert was allegedly being tortured

in Afghanistan. In order to sue the Internal Revenue Service or the Department of

the Treasury, which are agencies of the United States Government, there must be a

waiver of sovereign immunity. The Internal Revenue Service Code has a conditional

waiver of sovereign immunity in 26 U.S.C. § 7433, but this provision contains terms

which must be complied with in order to invoke the waiver, including exhaustion of

administrative remedies, mitigation of damages, and a two-year statute of

limitations.84 The plaintiffs have not shown that they have met any of these terms.

In fact, the complaint alleged that Mr. Hebert returned home from Afghanistan for

the last time in October 2015, which is more than two years before the lawsuit was

filed. “If a waiver of sovereign immunity contains a limitations period, a plaintiff's

failure to timely file suit deprives the court of jurisdiction.”85 Accordingly, the

plaintiffs cannot state a claim against the United States in connection with the tax

claim because their claim is untimely and, consequently, is jurisdictionally barred.

84 26 U.S.C. § 7433(d).

85 Gandy v. United States, 234 F.3d 281, 283 (5th Cir.2000); see also Dunn–McCampbell

Royalty Interest, Inc. v. National Park Serv., 112 F.3d 1283, 1287 (5th Cir.1997).

Furthermore, the plaintiffs’ claim against the IRS lacks an arguable basis in law and

fact; therefore, it is frivolous and should be dismissed.

d. The Claims Against Federal Employees

The plaintiffs asserted claims against several individuals, many of whom are

stated to be employees of the federal government or one of its agencies. The Federal

Tort Claims Act (“FTCA”)86 “grants a limited waiver of sovereign immunity for tort

suits brought against the United States or its agencies”87 due to negligent or wrongful

acts or omissions by government employees.88 The FTCA confers on federal courts

exclusive jurisdiction of civil actions based on such claims.89

The plaintiffs did not mention the FTCA in their complaint. But, to the extent

that they might be asserting claims against the persons or agencies named as

defendants under the FTCA, then these actually are claims against the United States,

which should be substituted as the defendant in place of the named agencies and

86 28 U.S.C. § 1346.

87 Pleasant v. United States ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445,

448 (5th Cir. 2014) (per curiam) (citing 28 U.S.C. §§ 2674, 2679(a)).

88 28 U.S.C. § 1346(b).

89 28 U.S.C. § 1346(b)(1). See, also, Esquivel-Solis v. United States, 472 Fed. App’x 338,

339 (5th Cir. 2012).

individuals90 since an FTCA claim brought against a federal agency or employee

rather than the United States shall be dismissed for want of jurisdiction.91

Also, as a prerequisite to the government's waiving its sovereign immunity

under the FTCA, such claims must be presented to the appropriate federal agency

and denied by the agency in writing.92 FTCA claims must be brought before the

appropriate administrative agency within two years after the claim accrues and suit

must be brought not more than six months after a denial of the administrative claim.93

The plaintiffs bear the burden of showing that they exhausted their administrative

remedies and filed suit within the statutory time limit.

e. Constitutional Claims

The plaintiffs alleged that the defendants violated certain of their

Constitutional rights, including rights guaranteed by the First, Fourth, Fifth, Eight,

Thirteenth, and Fourteenth Amendments. First, the Eighth Amendment applies only

to convicted prisoners.94 The plaintiffs have not alleged that they have been

90 28 U.S.C. § 2679(d)(2). See, also, Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988).

91 Galvin v. OSHA, 860 F.2d at 183.

92 Pleasant v. U.S. ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d at 448 (citing 28

U.S.C. § 2675(a)).

93 Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (citing 28 U.S.C. § 2401(b)).

94 See Jacobs v. W. Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000); Hare v. City

of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996).

convicted of any crimes. Accordingly, the Eighth Amendment claim is frivolous

and should be dismissed with prejudice.

Second, the United States has not waived sovereign immunity for claims

alleging constitutional violations.95 Therefore, the plaintiffs’ claims against the

United States, its officials, or its employees in their official capacities are barred by

the doctrine of sovereign immunity.96

Third, a plaintiff may assert a claim that a federal official violated his

constitutional rights, but such a claim may only be asserted against government

officers in their individual capacities.97 Here, the plaintiffs did not sufficiently

identify the specific individual government agents or employees whose actions they

are complaining about nor did they set forth a sufficient factual basis for the claimed

Constitutional deprivations. Therefore, this Court concludes that the plaintiffs did

not state a Bivens claim that the court can remedy.

95 Garcia v. United States, 666 F.2d 960, 966 (5th Cir. 1982); Brown v. United States, 653

F.2d 196, 199 (5th Cir. 1981)

96 See Gibson v. Federal Bureau of Prisons, 121 Fed. App’x 549, 551 (5th Cir. 2004)

(unpublished).

97 Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.

1999).

f. Summary of Findings Regarding Subject-Matter Jurisdiction

The plaintiffs asserted several claims that lack an arguable legal or factual

basis and, consequently, are frivolous. However, because they are not represented

by counsel, this Court will allow the plaintiffs an opportunity to amend their

complaint to state plausible claims. Should the plaintiffs fail to remedy this

deficiency, however, their claims will be dismissed.

Conclusion

For the foregoing reasons,

IT IS ORDERED that plaintiff International Defense Corporation shall retain

counsel, and its counsel shall appear in this lawsuit not later than May 15, 2021.

IT IS FURTHER ORDERED that the plaintiffs shall file an amended

complaint not later than May 15, 2021. The amended complaint shall state a valid

basis for subject-matter jurisdiction, establish personal jurisdiction, and omit all

claims lacking an arguable basis in law and fact. The amended complaint will be

reviewed and screened in the same way that the original complaint was reviewed

and screened.

Signed at Lafayette, Louisiana, this 16th day of April 2021.

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UNITED STATES MAGISTRATE IUDGE

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