UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) KEITH R. CALDWELL, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0571 (ESH) ) ELENA KAGAN, et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff Keith R. Caldwell, Sr., who is proceeding pro se, has filed a complaint against

the former Solicitor General of the United States, Elena Kagan, the United States Attorney

General, Eric Holder, three judges of the United States Court of Appeals for the D.C. Circuit,

Douglas Howard Ginsburg, Thomas Beall Griffith and Janice Rogers Brown, and a judge of the

United States District Court for the District of Columbia, Henry H. Kennedy, Jr. seeking

$50,000,000.00 in damages. The claims against each defendant arise out of his or her role in

plaintiff’s unsuccessful lawsuit against the United States Tax Court, Caldwell v. United States

Tax Court, Civil Action No. 08-01427 (D.D.C. Oct. 27, 2008), aff’d, No. 09-5166 (D.C. Cir. Jan.

9, 2010), cert. denied, No. 09-9137 (U.S. May 3, 2010) (the “Tax Court case”).1 Although

mindful that documents filed by pro se litigants are held to less stringent standards than those

1 Although plaintiff’s complaint does not identify either the legal basis for his suit or the relief he seeks, the cover sheet he filled out and submitted to the Court when he filed his complaint includes a demand for $50,000,000.00 and cites the following legal authorities: “42 U.S.C. [§] 1981, 42 U.S.C. [§] 1983, 5th Amendment Constitution of the U.S. Violation of my right to due process of law. Violation of my civil rights.” (Civil Cover Sheet [dkt. #1].) applied to formal pleadings drafted by lawyers, Brown v. District of Columbia,

(D.C. Cir. 2008), for the reasons stated herein, plaintiff’s complaint will be dismissed

pursuant to Federal Rule of Civil Procedure 12(h)(3) for lack of subject matter jurisdiction.

I. LEGAL STANDARD

“If the [district] court determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Such a dismissal may occur “sua

sponte prior to service on the defendants . . . when . . . it is evident that the court lacks subject

matter jurisdiction.” Evans v. Suter, No. 09-5242,

, at *1 (D.C. Cir. Apr. 2,

2010); see Hurt v. U.S. Court of Appeals for the D.C. Cir., No. 07-5019,

(D.C.

Cir. Jan. 24, 2008) (“It was proper for the district court to analyze its own jurisdiction sua sponte

and dismiss the case for lack of jurisdiction.”)

A district court lacks subject matter jurisdiction when the complaint “‘is ‘patently

insubstantial,’ presenting no federal question suitable for decision.’” Tooley v. Napolitano,

(D.C. Cir. 2009) (quoting Best v. Kelly,

(D.C. Cir. 1994)); see

also Hagans v. Lavine,

(1974) (“[F]ederal courts are without power to

entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as

to be absolutely devoid of merit, wholly insubstantial, [or] obviously frivolous.”); Peters v.

Obama, Misc. No. 10-0298 (D.D.C. June 21, 2010); Watson v. United States, Civ. Act. No.

09-268,

, at *1 (D.D.C. Feb.13, 2009) (court may dismiss a case sua sponte

where the allegations are so patently frivolous that the court lacks the power to entertain the

suit). A district court also lacks subject matter jurisdiction if plaintiff cannot establish Article

III standing. See Weaver’s Cove Energy, LLC v. Rhode Island Dep’t of Environmental

2 Management,

(D.C. Cir. 2008); Lee’s Summit, MO. v. Surface Transp. Bd.,

(D.C. Cir. 2000) (“When there is doubt about a party’s constitutional standing, the

court must resolve the doubt, sua sponte if need be.”).

II. CLAIMS AGAINST FEDERAL JUDGES

Plaintiff’s Tax Court case was assigned to United States District Judge Henry H.

Kennedy, who granted the defendants’ motion to dismiss. Order, Tax Court Case (Apr. 16,

2009). Judges Ginsburg, Griffith and Brown made up the Court of Appeals panel that affirmed

Judge Kennedy’s dismissal. Caldwell v. United States Tax Court, No. 09-5166 (D.C. Cir. Jan. 9,

2010) (Ginsburg, Brown, Griffith). According to plaintif’s complaint, he is suing the district

judge on the ground that he “dismissed [the Tax Court case] based on technicalities that were

unsubstantiated,” and “ignored the part of the case record that specifically refuted the

technicalities presented to the district court.” (Compl. at 4.) He is suing the Court of Appeals

judges on the ground that “the judgment that was rendered by the Court of Appeals panel was

unsupported, unsubstantiated, and beyond the legal scope of that panel” because “[t]he absence

of qualified medical authority on the panel rendered the medical inference in the judgment,

incompetent and inept.” (Compl. at 3.)

Plaintiff’s claims against the district and court of appeals judges are patently frivolous

because federal judges are absolutely immune from lawsuits predicated, as here, for their official

acts. Forrester v. White,

(1988); Stump v. Sparkman,

(1978); Sindram v. Suda,

(D.C. Cir. 1993). Plaintiff asserts that he is

challenging each defendant’s “non-judicial acts,” but it is clear from the allegations in the

complaint that the only actions he is complaining about are judicial decisions and the judicial

3 decisionmaking process. As absolute immunity clearly protects the district court judge and the

court of appeals judges from this lawsuit, all claims against those defendants must be dismissed.2

III. CLAIMS AGAINST THE SOLICITOR GENERAL AND THE ATTORNEY GENERAL

When plaintiff filed a petition for a writ of certiorari in the United States Supreme Court,

Petition for Certiorari, Caldwell v. Unites States Tax Court, No. 09-9137 (U.S. Jan. 25, 2010),

Elena Kagan, as the Solicitor General of the United States, waived defendant’s right to file a

response to plaintiff’s petition. Plaintiff claims that Solicitor General’s waiver “facilitated the

Supreme Court’s decision to deny my petition for a Writ of Certiorari,”3 and that the denial of

the petition “denied my constitutional right to due process in that case.” (Compl. at 2.) As for

the Attorney General, Eric Holder, plaintiff claims that he “failed to provide proper oversight

and to monitor the U.S. Government’s response to the Supreme Court case.” (Compl. at 3.)

Plaintiff’s claims against the former Solicitor General and the Attorney General must be

dismissed because plaintiff cannot establish Article III standing. The “irreducible constitutional

minimum of standing contains three elements”: (1) plaintiff must have suffered an “injury in

fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b)

2 Read liberally, the complaint also seeks the removal from the bench of each of the Court of Appeals judges. (Compl. at 3 (stating that each judge “must be removed from the bench”). However, a federal district court has no power to review the decisions of another federal court, much less to remove another federal judge from office. See

, 1332 (general jurisdictional provisions); In re Marin,

(D.C. Cir. 1992); Griffin v. Higgins, Civil Action No. 99-1576,

, at *1 (D.D.C. June 18, 1999); Jackson v. Camilletti, Civil Action No. 09-1110,

, at *1 (D.D.C. June 17, 2009). 3 The complaint does not actually specify what action of the Solicitor General plaintiff is challenging, but the decision not to file a response to plaintiff’s petition for a writ of certiorari is the only involvement defendant Kagan had in plaintiff’s Tax Court case.

4 actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection

between the injury and the conduct complained of-the injury has to be fairly ... trace[able] to the

challenged action of the defendant, and not ... th[e] result [of] the independent action of some

third party not before the court”; and (3) “it must be likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife,

(1992) (internal citations and quotations omitted). Here, plaintiff’s injury – the

denial of his petition for certiorari – is not “fairly . . . traceable” to the Solicitor General’s

decision to waive its right to file a response to plaintiff’s petition for certiorari or to the Attorney

General’s “oversight” of the matter. The Supreme Court, not the Solicitor General, denied the

petition for certiorari. Nor is there any reason to assume that if the Solicitor General had filed a

response it would have supported plaintiff; to the contrary, as the opposing and prevailing party,

it is almost certain that any response filed by the Solicitor General would have opposed

plaintiff’s petition. Absent any causal connection between his injury and the Solicitor General’s

or Attorney General’s actions, plaintiff’s claims against them must be dismissed for lack of

standing.

CONCLUSION

Accordingly and for the reasons stated above, the Court will dismiss this case pursuant to

Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. An

Order consistent with this Memorandum Opinion will be issued separately.

/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: April 18, 2011

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