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Davidson v. United States Dep't of State

United States District Court, D. Columbia.

July 7, 2015

LAWRENCE U. DAVIDSON, III, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants

Page 184

LAWRENCE U. DAVIDSON, III, Plaintiff, Pro se, Charlotte, NC.

For UNITED STATES STATE DEPARTMENT, JOHN F. KERRY, Personally and in his official capacity as Secretary of State, WENDY SHERMAN, Personally and in her official capacity as Under Secretary for Political Affairs, GENE CRETZ, Personally and in his official capacity as Ambassador to Libya, SUSANNAH COOPER, Personally and in her official capacity as Director Office of Maghreb Affairs, WILLIAM V. ROEBUCK, Personally and in his capacity as Charge d'Affair, Libya, CARLOS DEJUANA, Personally and in his official capacity as Special Assistant, ANDREW MCDONALD, Personally and in his official capacity with the U.S. State Department, EVYENIA SIDERAS, Personally and in her official capacity as Deputy Director Maghreb Affairs, BETH JONES, Personally and in her official capacity as Acting Assistant Secretary of State for Bureau of Near Eastern Affairs, LYDIA SIZER, Personally and in her official capacity with the U.S. State Department, ALLYCE N. ABDALLA, Personally and in her official capacity as Maghreb Affairs, ANNE SLACK, Personally and in her official capacity as Deputy Director, KIMBERLY BELL, Personally and in her official capacity as National Export Initiative, ELIZABETH LITCHFIELD, Personally and in her official capacity as Libyan Desk Officer, NANTHANIEL MASON, Personally and in his official capacity as Commercial Attache Libyan Embassy, CHRISTOPHER WILKENS, Personally and in his official capacity as North Africa Desk Officer, UNNAMED INDIVIDUALS, In Freedom Of Information Division, Defendants: Benton Gregory Peterson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 185

Re Document Nos.: 7, 13

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

Granting Defendants' Partial Motion to Dismiss or in the Alternative for Summary Judgment; Denying Plaintiff's Motion to Test Sufficiency of Answer

I. INTRODUCTION

Plaintiff, Mr. Lawrence U. Davidson, III, pro se, has brought this action against the U.S. Department of State and sixteen individuals who are current or former employees thereof (" Defendants" ), in their official and individual capacities. Mr. Davidson seeks both injunctive relief and monetary damages in connection with Department of State's refusal to provide him with diplomatic assistance in collecting an alleged debt that the former government of Libya owes him. Currently before the Court is Defendants' partial motion to dismiss, or in the alternative, for summary judgment.[1] Also pending is

Page 186

Mr. Davidson's motion to test the sufficiency of Defendants' answer. For the reasons discussed below, the Court will grant Defendants' motion and dismiss Mr. Davidson's claims seeking mandamus relief and monetary damages, enter judgment on the Administrative Procedure Act (" APA" ) claims, and deny Mr. Davidson's motion to test the sufficiency of Defendants' answer.

II. FACTUAL BACKGROUND

According to the Complaint, Plaintiff, Mr. Lawrence U. Davidson, III, is a U.S. citizen and the sole proprietor of Export Strategic Alliance (" ESA" ), which is a " for[-]profit synchronistic multidisciplinary economic generator." Compl. ¶ 7, ECF No. 1. Mr. Davidson contracted with the Great Socialist Peoples Libya Arab Jamahiriya (" Jamahiriya" ) to deliver medicines valued at $70 million and 12 million metric tons of foodstuffs valued at $4.5 billion. Id. In consideration for the delivery, Jamahiriya promised to pay Mr. Davidson $28 million, which, to this date, remains unpaid. Id.

In November 2011, Mr. Davidson sought payment from Jamahiriya and its successor entities within the Temporary Financing Mechanism, the National Transitional Council/Government and Republic of Libya, as well as the Libyan Embassy in Washington, D.C., by submitting a detailed invoice via letter, fax, and email. Id. ¶ 23. He received no response, however, besides an electronic acknowledgement that the invoices were received. Id. As early as September 2012, Mr. Davidson turned to the Department of State, hoping to receive assistance through diplomatic channels. Id. ¶ 24. Specifically, he submitted requests for " commercial diplomacy, or in the alternative a 'Letter d'Marche,'" a formal diplomatic communication. Id. ¶ 26. In the requests, he explained that he had " exhausted all reasonable and rational local . . . remedies," such as contacting cabinet officials and prime ministers. Id. ¶ 29.

In December 2013, Mr. Davidson received a letter from Defendant Susannah Cooper, Director of the Office of Maghreb Affairs in the Bureau of Near Eastern Affairs, noting that " the primary responsibility for resolution of such disputes remains with the U.S. citizen" and that Mr. Davidson may wish to " consider engaging local counsel or bringing the dispute directly to the attention of the Libyan government." Defs.' Partial Mot. Dismiss or Alternative Summ. J. (" Defs.' Partial Mot." ) at 6, ECF No. 7. In the same letter, Defendant Cooper provided an address for contacting the U.S. Embassy in Libya. Id.

In February 2014, Defendant Cooper once again responded to Mr. Davidson's continued requests by reminding him that " the primary responsibility for the resolution of disputes is on U.S. citizens," and requested that Mr. Davidson show the steps he had taken in order to exhaust local legal remedies in Libya. Id. Ex. 7 at 2, ECF No. 7-7. On April 3, 2014, Defendant Cooper sent another letter instructing Mr. Davidson that he " must exhaust local remedies" and that it is his primary responsibility, not the Department of State's, to resolve the disputes. Id. at 4. The letter also noted that the United States Embassy in Libya " has confirmed that there are readily available legal resources for international companies in Libya." Id.

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Thereafter, Mr. Davidson instituted this action against Defendants, suing them in both their official and individual capacities. He alleges that " defendants individually had a duty to provide plaintiff with diplomatic services in the nature of commercial diplomacy more selectively a Letter D'Marche directed to the government of Libya as then existing to address an outstanding invoice for services rendered to the previous administration (Jamarihiya)." Compl. ¶ 43. In the Complaint, Mr. Davidson requests four specific remedies. First, he seeks injunctive relief " directing the State Department pursuant to authorities cited herein for commercial diplomacy," or more specifically, to send an official diplomatic communication to the Libyan government on his behalf. Compl. at 16. Second, Mr. Davidson seeks a declaratory judgment directing the Department of State to " comply with the plaintiff's Freedom of Information [Act] request in a timely manner." Id. Third, Mr. Davidson seeks compensatory damages from Defendants, in the amount of 8% per annum for the unpaid value for the goods and services he provided to Jamarihiya. Id. Fourth, he seeks litigation costs in connection with this action. Id.

Defendants filed a partial motion to dismiss, or in the alternative for summary judgment, addressing the claims other than the Freedom of Information Act (" FOIA" ) claims. See Defs.' Partial Mot. As to Mr. Davidson's claims seeking a writ of mandamus and monetary damages, the motion argues that they should be dismissed for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Id. at 10-24. As to the APA claims, the motion moves to dismiss for failure to state a claim on the 5 U.S.C. § 706(1) claim, and for summary judgment on the 5 U.S.C. § 706(2) claim. Id. at 24-28. Defendants also filed an answer to Mr. Davidson's FOIA claims. See Answer, ECF No. 8.

Mr. Davidson filed a response to Defendants' motion and also moved to test the sufficiency of Defendants' answer pursuant to Federal Rules of Civil Procedure 7(b), 8(b)(3) and (4), and 11(b). See Pl.'s Mot. Test Sufficiency Answer (" Pl.'s Mot." ) at 4, ECF No. 12. Both motions are now ripe for decision.

III. ANALYSIS

A. Standard of Review

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (Rule 12(b)(1))

Federal courts are courts of limited jurisdiction, and the law presumes that " a cause lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of establishing that a court has jurisdiction over his claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (standing and Article III jurisdiction); Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S. App.D.C. 18 (D.C. Cir. 2007) (subject-matter jurisdiction). In determining whether jurisdiction exists, a court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S. App.D.C. 72 (D.C. Cir. 2003) (citations omitted).

" If sovereign immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction." Clayton v. District of Columbia, 931 F.Supp.2d 192, 200 (D.D.C. 2013) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475,

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114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (" Sovereign immunity is jurisdictional in nature." )). Courts " may not find a waiver unless Congress' intent is unequivocally expressed in the relevant statute." Hubbard v. Administrator, EPA, 982 F.2d 531, 532, 299 U.S. App.D.C. 143 (D.C. Cir. ...


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