Petition for Writ of Certiorari — Leander Bacon, et ux., Petitioners v. United States, et al.

No. _______

In The

Supreme Court of the United States

LEANDER BACON AND IRIS I. DICK BACON,

Petitioners,

v.

UNITED STATES OF AMERICA;

NAVY FEDERAL CREDIT UNION (“NAVY FCU);

COMMONWEALTH ASSET SERVICES, LLC,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

APPENDIX

HENRY W. MCLAUGHLIN (VSB NO. 07105)

THE LAW OFFICE OF HENRY MCLAUGHLIN, P.C.

707 EAST MAIN STREET, SUITE 1050

RICHMOND, VIRGINIA 23219

Tel. (804) 205-9020

Facsimile (804) 205-9029

Email: henry@mclaughlinvalaw.com

Counsel of Record for Petitioners

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Fourth Circuit, filed December 13, 2021 ..... A1

Judgment Order of the United States Court

of Appeals for the Fourth Circuit, filed

December 13, 2021 ................................................... A3

Order of the United States District Court for

the Eastern District of Virginia, Alexandria

Division, filed June 12, 2020 ................................... A4

Order on Rehearing of the United States

Court of Appeals for the Fourth Circuit,

filed February 22, 2022 .......................................... A24

A1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________

No. 20-1774

_________

LEANDER BACON; IRIS I. DICK BACON,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA; NAVY FEDERAL

CREDIT UNION, (“Navy FCU”);

COMMONWEALTH ASSET SERVICES, LLC,

Defendants - Appellees.

_________

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Rossie

David Alston, Jr., District Judge. (1:19-cv-01641RDA-MSN)

_________

Submitted: November 22, 2021

Decided: December 13, 2021

_________

Before QUATTLEBAUM and RUSHING, Circuit

Judges, and TRAXLER, Senior Circuit Judge.

A2

Affirmed by unpublished per curiam opinion.

_________

Henry Woods McLaughlin, III, LAW OFFICE OF

HENRY MCLAUGHLIN, P.C., Richmond, Virginia,

for Appellants. G. Zachary Terwilliger, United States

Attorney, Robert K. Coulter, Assistant United States

Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia; Caitlin M.

Kasmar, BUCKLEY LLP, Washington, D.C.; David

M. Zobel, SYKES, BOURDON, AHERN & LEVY,

PC, Virginia Beach, Virginia, for Appellees.

_________

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Leander Bacon and Iris I. Dick Bacon appeal the

district court’s order dismissing their complaint for

lack of subject matter jurisdiction in part based on

the Rooker-Feldman doctrine.* We have reviewed

the record and conclude that the court correctly

determined that it lacked jurisdiction over the

complaint on this ground. Accordingly, we affirm the

district court’s order. We dispense with oral

argument because the facts and legal contentions are

adequately presented in the materials before this

court and argument would not aid the decisional

process.

AFFIRMED

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FILED: December 13, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________

No. 20-1774

(1:19-cv-01641-RDA-MSN)

_________

LEANDER BACON; IRIS I. DICK BACON,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA; NAVY FEDERAL

CREDIT UNION, (“Navy FCU”);

COMMONWEALTH ASSET SERVICES, LLC,

Defendants - Appellees.

_________

JUDGMENT

_________

In accordance with the decision of this court, the

judgment of the district court is affirmed.

This judgment shall take effect upon issuance of

this court's mandate in accordance with Fed. R. App.

P. 41.

/s/ PATRICIA S. CONNOR, CLERK

A4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Case No. 1:19-cv-01641 (RDA/MSN)

LEANDER BACON, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

ORDER

This matter comes before the Court on

Defendant Navy Federal Credit Union’s (“Defendant

Navy FCU”) Motion to Dismiss (Dkt. 12), Defendant

United States of America’s (“Defendant USA”)

Motion to Dismiss (Dkt. 14), and Defendant

Commonwealth Asset Services, LLC’s (“Defendant

CAS”) Motion to Dismiss (Dkt. 18). Considering the

Complaint (Dkt. 1); Defendant Navy FCU’s Motion

to Dismiss and the Memorandum in Support (Dkt.

13); Defendant USA’s Motion to Dismiss and the

Memorandum in Support (Dkt. 15); Defendant CAS’

Motion to Dismiss and the Memorandum in Support

(Dkt. 19); Plaintiffs Leander Bacon’s and Iris I. Dick

Bacon’s (“Plaintiffs”) Memorandum in Opposition to

Defendant USA’s Motion to Dismiss and Defendant

Navy FCU’s Motion to Dismiss (Dkt. 22); Plaintiffs’

Memorandum in Opposition to Defendant CAS’

Motion to Dismiss (Dkt. 21); Defendant Navy FCU’s

Reply in Support of its Motion to Dismiss (Dkt. 23);

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and Defendant USA’s Reply in Support of its Motion

to Dismiss (Dkt. 24); for the reasons that follow, it is

hereby ORDERED that Defendant Navy FCU’s

Motion to Dismiss (Dkt. 12) is GRANTED;

IT IS FURTHER ORDERED that Defendant

USA’s Motion to Dismiss (Dkt. 14) is GRANTED;

IT IS FURTHER ORDERED that Defendant

CAS’ Motion to Dismiss (Dkt. 18) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiffs’

Complaint (Dkt. 1) is DISMISSED.

I. BACKGROUND

A. Factual Background

On March 28, 2014, Plaintiffs entered into a VA

Home Loan evidenced by a note secured by a deed of

trust to purchase the property located at 14

Wagoneer Lane, Stafford, Virginia 22554 (“the

Property”). Dkt. Nos. 1, 4; 1-2, 1; 1-3. Defendant

Navy FCU was the lender and the servicer of the

loan. Dkt. Nos. 1-2, 1; 1-3. The note was guaranteed

by the United States Veterans Administration

(“VA”). Dkt. 1, ¶ 11. The Plaintiffs became

delinquent on their mortgage payments. Dkt. 1-4, 1.

“A total of four foreclosure sales [were] [ ] postponed

in an attempt for [ ] [Plaintiff Leander] Bacon to gain

employment . . . .” Id.

On November 9, 2015, Defendant Navy FCU

appointed Defendant CAS as substitute trustee to

begin the foreclosure proceedings. Dkt. 1, ¶¶ 12-13.

The VA acknowledged that it “c[ould not] force

[Defendant Navy ]FCU to postpone or rescind”

foreclosure, but the VA again attempted to stall the

foreclosure sale a fifth time. Dkt. 1-4, 1. However, on

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March 20, 2017, the Property was ultimately sold in

foreclosure. Id. at ¶ 22; Dkt. 1-4, 1. At the

foreclosure sale, Defendant Navy FCU was the

highest bidder. Dkt. 1, ¶ 22. Defendant Navy FCU

then assigned its bid to the VA. Id. at ¶ 23.

Accordingly, Defendant CAS executed a trustee’s

deed conveying the title of the home to the VA. Id.

Then, on January 18, 2018, the VA filed an

unlawful detainer action against Plaintiffs in the

Stafford County General District Court located in

Stafford, Virginia. Dkt. 1, ¶ 28. That court entered a

Judgement of Possession in the VA’s favor, which

awarded the VA possession of the Property. Dkt. 1, ¶

28.

Plaintiff Leander Bacon then appealed the

decision of the Stafford County General District

Court to the Circuit Court for Stafford County. In

that appeal, Plaintiff Leander Bacon moved to

dismiss the action. Dkt. 1, ¶ 28. After the Circuit

Court for Stafford County denied the motion, that

court entered a “Final Order” awarding possession of

the home to the VA. Dkt. 1, ¶ 25.

Subsequently, Plaintiff Leander Bacon appealed

the decision of the Circuity Court for Stafford

County to the Virginia Supreme Court. Dkt. 1, ¶ 26.

On September 6, 2019, the Supreme Court of

Virginia denied Plaintiff Leander Bacon’s petition

for appeal opining that “there [was] no reversible

error in the judgment complained of.” Dkt. 1, ¶ 27;

Dkt. 13-4.

To this Court’s knowledge, to date, the Plaintiffs

continue to reside on the Property. Dkt. 1, 29.

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B. Procedural Background

On December 20, 2019, Plaintiffs filed their

Complaint in this Court. Dkt. 1. On March 16, 2020,

Defendants each filed separate motions to dismiss

Plaintiffs’ claims, each raising arguments pursuant

to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Dkt. Nos. 12; 14; 18. On March 30, 2020,

Plaintiffs opposed the motions to dismiss. Dkt. Nos.

21; 22. On April 20, 2020, Defendants Navy FCU

and USA filed their reply briefs. Dkt. Nos. 23; 24.

Defendant CAS did not file a reply brief.

This Court dispenses with oral argument as to

each motion to dismiss because the Court finds that

it would not aid in the decisional process. The matter

is now ripe for disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) allows a

defendant to move for dismissal when the court lacks

jurisdiction over the subject matter of the action.

Fed. R. Civ. P. 12(b)(1). A district court must dismiss

an action over which it lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1), (h)(3). In

considering a 12(b)(1) motion to dismiss, the burden

is on the plaintiff to prove that the federal subject

matter jurisdiction is proper. See United States v.

Hays, 515 U.S. 737, 743 (1995) (citing McNutt v.

Gen. Motors Acceptance Corp., 298 U.S. 178, 189

(1936)); Adams v. Bain, 697 F.2d 1213, 1219 (4th

Cir. 1982). There are two ways in which a defendant

may present at 12(b)(1) motion. First, as appear to

be the case in the instant matter, a defendant may

attack the complaint on its face when the complaint

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“fails to allege facts upon which subject matter

jurisdiction may be based.” Adams, 697 F.2d at 1219.

In such a case, all facts as alleged by the plaintiff are

assumed to be true. Id.

Alternatively, a 12(b)(1) motion to dismiss may

attack the existence of subject matter jurisdiction

over the case apart from the pleadings. See Williams

v. United States, 50 F.3d 299, 304 (4th Cir. 1995)

(citing Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884, 891 (3d Cir. 1977)); White v. CMA

Contr. Co., 947 F. Supp. 231, 233 (E.D. Va. 1996). In

such a case, the trial court’s “very power to hear the

case” is at issue. Mortensen, 549 F.2d at 891. The

district court is then free to weigh the evidence to

determine the existence of jurisdiction. Adams, 697

F.2d at 1219. “No presumptive truthfulness attaches

to the plaintiff’s allegations, and the existence of

disputed material facts will not preclude the trial

court from evaluating for itself the merits of

jurisdictional claims.” Mortensen, 549 F.2d at 891.

III. ANALYSIS

In the case at bar, each of the Defendants move

to dismiss Plaintiffs’ Complaint pursuant to both

Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Thus, the threshold issue is whether this

Court lacks subject matter jurisdiction. See Adkins v.

Rumsfeld, 370 F. Supp. 2d 426, 429 (E.D. Va. 2004)

(finding one of “[t]he threshold issues [were] [ ]

whether this Court ha[d] subject matter jurisdiction

over the case” where the defendants challenged the

Court’s jurisdiction pursuant to both Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6)); see also

Fed. R. Civ. P. 12(b)(1), (h)(3) (a district court must

A9

dismiss an action over which it lacks subject matter

jurisdiction). Because this Court lacks subject matter

jurisdiction, this Court will not address whether

Plaintiffs, in their Complaint, state a plausible claim

from which relief can be granted, as Defendants

argue they do. See Adkins, 370 F. Supp. 2d at 429

(“Because the Court does not have subject matter

jurisdiction and the [p]laintiffs lack standing . . . the

Court does not address whether the Complaint has

stated a claim upon which relief can be granted.”).

In support of its position that the Court lacks

subject matter jurisdiction, Defendant USA raises

three arguments. Dkt. 15; 4-5, 12-15, 18-20. First,

Defendant USA sets forth that this Court lacks

subject matter jurisdiction under the RookerFeldman doctrine. Id. at 18-20 (citing District of

Columbia Court of Appeals v. Feldman, 460 U.S.

462, 482 (1983) and Rooker v. Fidelity Tr. Co., 263

U.S. 413, (1923)).1 Second, Defendant USA argues

that this Court lacks subject matter jurisdiction

because “Plaintiff [sic.] has failed to allege a waiver

of sovereign immunity by the United States for this

action.” Id. at 4-5. Third, Defendant USA maintains

that this Court is without subject matter jurisdiction

over Plaintiffs’ claims because Plaintiffs have failed

“to meet the requirements for Article III standing.”

Id. at 12-15.

This Court will address each of Defendants’

arguments concerning this Court’s subject matter

jurisdiction in turn.

Defendants Navy FCU and CAS raise this same argument.

Dkt. 13, 7-10; 19, 13-16.

1

A10

A. The Rooker-Feldman Doctrine

The United States Court of Appeals for the

Fourth Circuit has held that “[u]nder the RookerFeldman doctrine, a ‘party losing in state court is

barred from seeking what in substance would be

appellate review of state judgment in a United

States district court.’” American Reliable Ins. Co. v.

Stillwell, 336 F.3d 311, 316 (4th Cir. 2003) (citing

Johnson v. De Grandy, 512 U.S. 997, 1005-06

(1994)). The Rooker-Feldman doctrine creates a

jurisdictional bar such that district courts do not

have subject matter jurisdiction over actions that

implicate the doctrine. See American Reliable Ins.

Co., 336 F.3d at 316 (citing Friedman’s Inc. v.

Dunlap, 290 F.3d 191, 196 (4th Cir. 2002)). This is so

because (1) “Congress . . . vested the authority to

review state court judgments in the United States

Supreme Court alone” and (2) “Congress has

empowered the federal district courts to exercise

only original jurisdiction.” American Reliable Ins.

Co., 336 F.3d at 316 (citations omitted). Accordingly,

with the exception of circumstances, which are

patently inapplicable to the case at hand, “appellate

review of state court decisions occurs first within the

state appellate system and then in the United States

Supreme Court.” Id. (citation omitted).

“‘[I]f in order to grant the federal plaintiff the

relief sought, the federal court must determine that

the state court judgment was erroneously entered or

must take action that would render the judgment

ineffectual, Rooker-Feldman is implicated.’” Smalley

v. Shapiro & Burson, LLP, No. 12-1266, 2013 WL

1613219 (4th Cir. Apr. 16, 2013) (quoting Jordahl v.

A11

Democratic Party of Virginia, 122 F.3d 192, 202

(1997) (quotations and citations omitted)).

Moreover, “[a] litigant may not circumvent these

jurisdictional mandates by instituting a federal

action which, although not styled as an appeal,

amounts to nothing more than an attempt to seek

review of the state court’s decision by” a federal

district court.” Id. (citations and internal quotations

omitted). As such, “Rooker-Feldman bars not only

direct review of issues actually decided by the state

court, but also consideration of those claims which

are ‘inextricably intertwined’ with state court

decisions.” Brown & Root, Inc. v. Breckenridge, 211

F.3d 194, 198 (4th Cir. 2000) (citing Feldman, 460

U.S. 462 486-87 (4th Cir. 2000)). Thus, litigants may

not raise claims in the federal court where the

“success on the federal claim depends upon a

determination that the state court wrongly decided

the issue before it[,]” even if such claims were not

expressly decided by the state court. Brown & Root,

Inc., 211 F.3d at 198.

In the case at bar, according to Plaintiffs’

Complaint, the Stafford County General District

Court, a Virginia state court, “entered an order

awarding possession of the [Property]” to the VA.

Dkt. 1, ¶ 28. Plaintiff Leander Bacon then appealed

the Stafford County General District Court’s decision

to the Circuit Court for Stafford County, and that

court ultimately “entered a final order” awarding

possession of the property in question to the VA. Id.

at ¶¶ 28, 25. According to his Complaint, Plaintiff

Leander Bacon then appealed the Circuit Court for

Stafford County’s judgment to the Virginia Supreme

Court, who denied Plaintiff Leander Bacon’s

petition. Id. at ¶ 27.

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Now, in Count One of their Complaint, Plaintiffs

ask this Court to “enter an order rescinding the

purported foreclosure and the purported trustee’s

deed to enjoin the VA from conducting a lock-out of

the [Plaintiffs] from [their home] by means of a writ

of possession based on the eviction order entered by

the Circuit Court [for] Stafford County.” Dkt. 1, ¶ 30.

However, this Court may not do so, pursuant to the

Rooker-Feldman doctrine. This is so because

Plaintiffs’ request, as indicated by Count One of

their Complaint, asks this Court to determine that

the Circuit Court for Stafford County’s judgment

was erroneously entered and it would require the

Court to “take action that would render the

judgment ineffectual[.]” Jordahl, 122 F.3d at 202. As

such, the Rooker-Feldman doctrine is implicated,

Jordahl, 122 F.3d at 202, and the Court must

dismiss Count One of Plaintiffs’ Complaint.

In Count Two of their Complaint, Plaintiffs

request that this Court “enter an order with the

effect of recession of the purported foreclosure and

the purported trustees’ deed and for restoration to

the [Plaintiffs] of the record ownership of the[ir]

home . . . .” Dkt. 1, 38. Though this request does not

explicitly ask this Court to invalidate the judgments

of the Virginia state courts, in order for this Court to

provide Plaintiffs the relief they request, this Court

would have to “take action that would render the

[Virginia state courts’] judgment[s] ineffectual[.]” See

Smalley, 2013 WL 1613219 at *5.

The Fourth Circuit’s decision in Smalley v.

Shapiro & Burson, LLP, instructive on this issue.

No. 12-1266, 2013 WL 1613219, at * 5 (4th Cir. Apr.

16, 2013). In Smalley, the Fourth Circuit determined

that the appellants’ claims were barred in the

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federal courts pursuant to the Rooker-Feldman

doctrine. 2013 WL 1613219, at *5. The Fourth

Circuit concluded that “[a]lthough [the] [a]ppellants

d[id] not seek to ‘undo’ the state court judgment

foreclosing on their homes, permitting the case to go

forward would, in essence, hold that the state court

judgments which held the allegedly false affidavits

sufficient to warrant foreclosure was in error.”

Smalley v. Schapiro & Burson, LLP, No. 12-1266,

2013 WL 1613219, at *5 (4th Cir. Apr. 16, 2013). The

Smalley court then went on to hold that “[t]his was

not proper under Rooker-Feldman because th[e

appellants’] federal causes of action [were]

‘inextricably intertwined’ with the state court

foreclosure actions.” Id. The court found that to hold

otherwise would do violence to the prong of the

Rooker-Feldman doctrine which “‘bars a claim that

was not actually decided by the state court but

where ‘success on the federal claim depends upon a

determination that the state court wrongly decided

the issues before it.’” Smalley, 2013 WL 1613219, at

*5 (citing Brown & Root, Inc., 211 F.3d at 198). The

Smalley court concluded that “the alleged source of

[the a]ppellants’ harm is shielded by state court

judgments that necessarily rested on a decision

about which [a]ppellants now complain; therefore,

[a]ppellants are limited to whatever relief they are

afforded in the state court system.” Id.

As the Fourth Circuit determined in Smalley,

this Court concludes that the issues Plaintiffs raise

in Count Two are “inextricably intertwined” with the

Virginia state courts’ judgments on the foreclosure of

the property in question. Therefore this Court does

not have jurisdiction over Count Two of Plaintiffs’

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Complaint. Id. As such, this Court must dismiss

Count Two.

B. Sovereign Immunity

Defendant USA contends that “Plaintiff [sic] has

[sic] failed to allege a waiver of sovereign immunity

by the United States for this action.” Dkt. 15, 5.

The Supreme Court of the United States has

opined that “[i]t is elementary that ‘[t]he United

States, as a sovereign, is immune from suit save as it

consents to be sued . . ., and the terms of its consent

to be sued in any court define that court’s

jurisdiction to entertain the suit.” United States v.

Mitchell, 445 U.S. 535, 538 (1980) (quoting United

States v. Sherwood, 312 U.S. 584, 586 (1941)).

Waiver “cannot be implied but must be

unequivocally expressed.” United States v. King, 395

U.S. 1, 4 (1969). District courts do not have subject

matter jurisdiction to “‘entertain suits against the

United States’” where there is no “clear

congressional consent” to waive sovereign immunity.

Mitchell, 445 U.S. at 538 (1980) (quoting Sherwood,

312 U.S. at 586). The Supreme Court has further

established “the traditional principle that the

Government’s consent to be sued must be construed

strictly in favor of the sovereign[.]’” United States v.

Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (quoting

McMahon v. United States, 342 U.S. 25, 27 (1951)

(internal quotations omitted)). Waivers of immunity

must not be “enlarge[d] . . . beyond what the

language requires[.]” Ruckelshaus v. Sierra Club,

463 U.S. 680, 685-86 (1983) (quoting E. Transp. Co.

v. United States, 272 US. 675, 686 (1927)).

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Plaintiffs raise a singular argument in

opposition to Defendant USA’s position. Dkt. 22, 5.

Plaintiffs oppose this argument by asserting that if

it were correct that the United States has not waived

sovereign immunity, then “the federal government

could take anyone’s land and the property owner

deprived of ownership would have no recourse.” Id.

Plaintiffs urge that, “[a]n improper taking of land is

subject to recourse and a lawsuit seeking such

recourse is not barred by sovereign immunity.” Id.

(citation omitted). In support of this position,

Plaintiffs cite to First English Evangelical Lutheran

Church of Glendale v. Los Angeles, 482 U.S. 304

(1987).

Plaintiffs’ reliance on First English Evangelical

Lutheran Church, is misplaced for several reasons.

First Evangelical Lutheran Church, concerned a

different issue than that presented in the case at

bar. The Supreme Court in First Evangelical

Lutheran Church, considered whether “a landowner

who claims that his property has been ‘taken’ by a

land-use regulation may [ ] recover damages for the

time before it is finally determined that the

regulation constitutes a ‘taking’ of his property.” 482

U.S. at 306-07. The Court ultimately held that “in

th[o]se circumstances[,] the Fifth and Fourteenth

Amendments to the United States Constitution

would require compensation for that period.” First

Evangelical Lutheran Church, 482 U.S. at 307. In

the instant matter, Plaintiffs have raised two claims

neither of which contemplate a “taking” within the

meaning of the word as discussed in the First

Evangelical Lutheran Church, matter. Compare Dkt.

1, with First English Evangelical Lutheran Church,

482 U.S. at 310-311 (discussing the question

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presented in that case). To be sure, First English

Evangelical Lutheran Church, concerned a taking

under the Fifth Amendment which provides that

“nor shall private property be taken for public use,

without just compensation[.]” 482 U.S. at 310 n. 4

(quoting U.S. CONST. amend. V). This matter does

not concern the government’s taking of a private

property for public use, nor do Plaintiffs request that

they “recover damages.” Further, this action does not

appear to implicate the Fifth Amendment at all.

Rather, it appears that Plaintiffs are attempting

to extend the holding of First Evangelical Lutheran

Church, to include the circumstances of a foreclosure

of a deed of trust, as is at issue in the case at bar.

However, this Court is not permitted to take such a

leap to find that sovereign immunity exists because

waivers of immunity must be made “unequivocally,”

United States v. King, 395 U.S. 1, 4 (1969), and may

not be “enlarged” Ruckelshaus v. Sierra Club, 463

U.S. 680, 685-86 (1983), beyond any language that

indicates any such waiver. First Evangelical

Lutheran Church, plainly does not contemplate the

question of sovereign immunity, and accordingly,

this Court will not interpret that case as doing so.

Thus, recognizing (1) that the burden is upon

Plaintiffs to demonstrate that the Court has subject

matter jurisdiction, see Hays, 515 U.S. at 743 (citing

McNutt, 298 U.S. at 189); and (2) that “the

Government’s consent to be sued must be construed

strictly in favor of the sovereign[,]’” Nordic Vill., Inc.,

503 U.S. at 34, this Court finds that in this context,

the Plaintiffs have not met their burden of

establishing that the United States has waived

sovereign immunity, and accordingly, Plaintiffs have

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failed to establish that this Court has subject matter

jurisdiction.

C. Standing

Additionally, this Court finds that Plaintiffs

have not met their burden of establishing standing.

Defendant USA contends that Plaintiffs lack

standing. Dkt. 15, 12-15. Defendant USA’s position

is that Plaintiffs have failed to satisfy the causation

and redressability requirements of Article III

standing. Id. at 15. Plaintiffs oppose Defendant

USA’s motion on this point by arguing that they

have standing “because they seek restoration rights

to their home.” Dkt. 22, 5.

It is fundamental that “Article III of the

Constitution confines the federal courts to

adjudicating actual ‘cases’ and ‘controversies.’” Allen

v. Wright, 486 U.S. 737, 749 (1984). “To establish

Article III standing, a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection

between the injury and the conduct complained of,’

and (3) a ‘likel[ihood]’ that the injury ‘will be

redressed by a favorable decision.’” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 157-58

(2014) (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992)). “The party invoking federal

jurisdiction bears the burden of establishing these

elements.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 596 (1992).

Turning to the element of causation, “[i]n order

to prove causation, a plaintiff must demonstrate that

the injury ‘fairly can be traced to the challenged

action of the defendant . . . .’” Bishop v. Bartlett, 575

F.3d 419, 425 (4th Cir. 2009) (quoting Simon v. E.

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Kentucky Welfare Rights Org., 426 U.S. 26, 41-41

(4th Cir. 2009)). Defendant USA’s maintains that

Plaintiffs have failed to establish causation because

“Plaintiffs have not alleged that they were current

on their mortgage, which is the obvious cause of the

foreclosure sale. The existence or non-existence of an

email requesting a stay for foreclosure does not

change the fact that their default was the cause of

the foreclosure.” Dkt. 15, 13 (citing Greene v. LNV

Corp., No. 3:12-cv-780, 2013 WL 1652232, at *5 (E.D.

Va. Apr. 16, 2013).

In Greene v. LNV Corp., this Court considered

whether plaintiffs had sufficiently satisfied the

element of causation required to establish Article III

standing in a situation in which the plaintiffs had

defaulted on their mortgage payments. No. 3:12-cv780, 2013 WL 1652232, at *5 (E.D. Va. Apr. 16,

2013). Although the plaintiffs in Greene pleaded that

the cause of the improper foreclosure was that the

defendant invalidly appointed a trustee, this Court

determined that such a circumstance did not

“undermine the causal event of the [plaintiffs’]

default: their failure to make payment.” Id. In

determining that the plaintiffs failed to establish

causation, this Court reasoned that

The [plaintiffs] admit that they defaulted on

the Note. In accordance with paragraph 15 of

the Deed of Trust, [the defendant] acted

within its rights in proceeding with

foreclosure. Thus, if taken as true, the

allegation that [the defendant] invalidly

appointed Glasser as trustee does not

undermine the causal event of the

[plaintiffs’] default: their failure to make

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payment. To make the case that the

Substitution of Trustee was the causal force

behind their alleged injuries rather than

their own default, the [plaintiffs] would have

to plead that the Substitution of Trustee

occurred before the default. In fact, the

pleadings are unclear as to which occurred

first. In any event, the date on which the

alleged injuries became practically inevitable

was the date on which the [the plaintiffs] fell

into arrears, not the date on which [the

defendant] executed the Substitution of

Trustee.

Id.

Plaintiffs, who bear the burden of establishing

that they have standing to bring these claims,

Warth, 422 U.S. at 518, do not contest the point that

Defendant USA raises, which is that Plaintiffs

defaulted on their mortgage. In fact, Plaintiffs have

submitted as an attachment to their Complaint,

evidence that tends to support Defendant USA’s

position that Plaintiffs defaulted on their mortgage

payments. See Dkt. 1-4, 1 (“Our office has worked

with [Plaintiff Leander] Bacon and his servicer . . . to

resolve his delinquency and help bring his mortgage

current . . . . Unfortunately, [Plaintiff Leander]

Bacon has not been able to provide definitive proof or

date that he would be able to financially afford the

mortgage in question.”) (emphasis added). Pursuant

to paragraph 22 of the Deed of Trust, and in the

absence of any argument to the contrary, it appears

that Defendant Navy FCU acted within its rights in

foreclosing on Plaintiffs’ property. Considering this,

this Court is constrained to find that Plaintiffs have

A20

not met their burden in establishing the element of

causation because they have not demonstrated that

the injury they allege – foreclosure on the Property –

may be fairly traced to any action taken by

Defendant USA, rather, the fact that the Property

was foreclosed on it attributable to their failure to

make timely payments on the mortgage.

With respect to the element of redressability, “it

must be ‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable

decision.’” Lujan, 504 U.S. at 561. Defendant USA’s

argument on this point also rests on the notion that

Plaintiffs have defaulted on their mortgage. Dkt 15,

15. Specifically, Defendant USA maintains that

“Plaintiffs’ [sic.] have not alleged that [sic.] are not in

default, and their allegations regarding whether or

not a request for stay [sic.] the foreclosure was sent

by the VA to [Defendant] Navy FCU does not affect

whether [Plaintiffs] were in default in their

mortgage payments at the time of the foreclosure.”

Id. Further, Defendant USA contends that “[s]ince

Plaintiffs do not deny that they were in default there

is nothing to be gained from the Court entering an

order reversing the foreclosure sale.” Id.

Defendant USA, in support of its position on

redressability, cites to two opinions issued by this

Court. See Dkt. 15, 14-15 (citing Harrell v. Caliber

Home Loans, Inc., 995 F. Supp. 2d 548, 554 (E.D. Va.

2014) (holding that “[t]he [c]omplaint [did] not allege

facts that [met] the redressability requirement of

Article III standing. Even if the [C]ourt were to issue

an order with everything the [p]laintiffs ask[ed] for,

unless the [p]laintiffs are able to meet the

requirements of their loan or have already done so,

they will find themselves in foreclosure again . . . .”);

A21

and Greene v. LNV Corp., 3:12-cv-780, 2013 WL

1652232, at *5 (E.D. Va. Apr. 16, 2013) (finding that

the plaintiffs failed to establish redressability where

the plaintiffs admitted that they defaulted on their

note, and therefore “[i]t [was] indeed unlikely that by

. . . reversing the foreclosure [on plaintiffs’ home]

this Court [would] prevent or even delay the

inevitable, namely, that [the defendant would]

immediately foreclose on the [plaintiffs’ property] a

second time with any paperwork deficiencies easily

resolved.”)).

As indicated above, Plaintiffs bear the burden of

establishing that they have standing. Plaintiffs have

left uncontested that they are, in fact, in default on

their mortgage. Plaintiffs merely assert that they

have standing “because they seek restoration of

rights to their home,” and that in the instant matter,

it is not apparent that recession would be futile

because “[t]here has been no [ ] finding in this case”

that Plaintiffs have a “practical way to avoid a

second foreclosure.” Dkt. 22, 5-6.

However, to be sure, it remains undisputed that

Plaintiffs have defaulted on their mortgage, and as

such, even if this Court could overcome the other

jurisdictional bars (supra, p. 13) to hear Plaintiffs’

claims, and if this Court granted the relief that

Plaintiffs request, based on the pleadings and the

arguments presented to the Court, it does not appear

that likely that Plaintiffs’ injuries would be

redressed. This is so because ultimately, it appears

that Plaintiffs defaulted on their mortgage

payments, giving Defendant Navy FCU the right to

foreclosure.

Moreover, to the extent that Plaintiffs argue that

there would be some circumstance under which they

A22

could avoid a second foreclosure, as this Court found

in Green, even if there were such a “hypothetical

scenario,” the Plaintiffs “have not alleged it in their

pleadings, and it is within neither the province nor

expertise of this Court to allege it for them.” Green,

2013 WL 1652232, at *5. In fact, Plaintiffs has

submitted to the Court evidence that indicates that

even after the foreclosure sale took place Plaintiff

Leander Bacon remained unable “to provide the

definitive proof or date that he would be able to

financially afford the mortgage in question.” Dkt. 14, 1. Thus, the evidence put forth by Plaintiffs

themselves tends to suggest that there is not a

circumstance under which they would be able to

avoid a second foreclosure in the event that the other

jurisdictional hurdles were overcome and the Court

found for Plaintiffs on the merits.

Plaintiffs do contend that had the March 20,

2017, foreclosure been postponed, Plaintiffs “would

have continued to pursue a loan modification

application.” Dkt. 1, ¶ 21. Plaintiffs suggest that this

application would have been approved, but the

Plaintiffs fail to plead any facts that would tend to

suggest that would be the case. And, what is more,

Plaintiffs have failed to indicate how they would

satisfy the requisite payments under this

hypothetically

approved

loan

modification

application. Thus, Plaintiffs’ proposition on this

point is insufficient to show that redressability

would be “likely.” This attenuated circumstance

posed by Plaintiffs is at best speculative.

As such, this Court finds that Plaintiffs have not

met their burden in establishing the element of

redressability because they have not demonstrated

that the injury they allege – foreclosure on their

A23

property – would likely be redressed by the remedy

they request.

IV. CONCLUSION

Accordingly, because Plaintiffs have failed to

meet their burden of establishing that this Court has

subject matter jurisdiction, it is hereby ORDERED

that Defendant Navy FCU’s Motion to Dismiss (Dkt.

12) is GRANTED;

IT IS FURTHER ORDERED that Defendant

USA’s Motion to Dismiss (Dkt. 14) is GRANTED;

IT IS FURTHER ORDERED that Defendant

CAS’ Motion to Dismiss (Dkt. 18) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiffs’

Complaint (Dkt. 1) is DISMISSED.

Alexandria, Virginia

June 12, 2020

/s/

Rossie D. Alston, Jr.

United States District Judge

A24

FILED: February 22, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________

No. 20-1774

(1:19-cv-01641-RDA-MSN)

_________

LEANDER BACON; IRIS I. DICK BACON,

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA; NAVY FEDERAL

CREDIT UNION, (“Navy FCU”);

COMMONWEALTH ASSET SERVICES, LLC,

Defendants - Appellees.

_________

ORDER

_________

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under

Fed. R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/ Patricia S. Connor, Clerk