United States District Court, N.D. Ohio, Eastern Division
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendants U.S.
Department of Justice (“DOJ”) and U.S. Parole
Commission (“Commission”) (collectively
“defendants”) to dismiss the complaint of
plaintiff John Edward Medved (“Medved”). (Doc.
No. 12 (“Mot.”).) Medved filed a response
opposing the motion (Doc. No. 18 (“Opp'n”)),
and defendants filed a reply (Doc. No. 19
(“Reply”)). For the reasons that follow, the motion
alleges in the complaint that the defendants violated his
constitutional rights to due process and equal protection,
and his right to be free from cruel and unusual punishment,
because the Commission did not respond to his probation
officer's annual supervision reports for a number of
years, and failed to hold timely supervision termination
hearings. (Doc. No. 1 (“Compl.).) Medved seeks $400,
000.00 in damages. (Id.)
support of the motion, defendants argue that the United
States has not waived sovereign immunity with respect to
Medved's claims, thus, the Court lacks subject matter
jurisdiction and the case must be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1). (Mot. at 56.)
Standard of review
well-settled that “[a]bsent a waiver, sovereign
immunity shields the Federal Government and its agencies from
suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114
S.Ct. 996, 127 L.Ed.2d 308 (1994) (citations omitted).
“[A] waiver of the Government's sovereign immunity
will be strictly construed, in terms of its scope, in favor
of the sovereign.” Lane v. Pena, 518 U.S. 187,
192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations
omitted). “If the government has not waived its
sovereign immunity with respect to a particular claim,
federal courts lack subject matter jurisdiction over that
claim.” French v. United States, 195 F.Supp.3d
947, 952 (N.D. Ohio 2016) (citing Montez ex rel. Estate
of Hearlson v. United States, 359 F.3d 392 (6th Cir.
to subject matter jurisdiction “‘come in two
varieties: a facial attack or a factual attack.'”
Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440
(6th Cir. 2012) (quoting Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007)). A facial attack questions the sufficiency of the
pleading, in which case the court “takes the
allegations in the complaint as true, just as in a Rule
12(b)(6) motion.” Wayside Church v. Van Buren
Cnty., 847 F.3d 812, 816-17 (6th Cir. 2017) (internal
quotation marks and citations omitted). “A factual
attack, on the other hand, raises a factual controversy
requiring the district court to ‘weigh the conflicting
evidence to arrive at the factual predicate that
subject-matter does or does not exist.'”
Id. at 817 (quoting Gentek Bldg. Prods.,
Inc., 491 F.3d at 330 (further citation omitted)).
case, the nature of the attack is facial because the Court is
not required to examine the truthfulness of Medved's
allegations in order to determine the existence of subject
matter jurisdiction. See Graber v. Metro. Life Ins.
Co., 855 F.Supp.2d 673, 676 (N.D. Ohio 2012). The Court
will consider the allegations in Medved's complaint to be
true for the purpose of this analysis. The burden of
establishing jurisdiction rests with the party asserting it,
in this case, Medved. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d
391 (1994); Moir v. Greater Cleveland Reg'l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990).
contend that the Court lacks subject matter jurisdiction
because the United States has not waived its sovereign
immunity with respect to Medved's claim for money damages
for alleged violations of his constitutional rights, and
constitutional tort claims are not cognizable under the
Federal Tort Claims Act (“FTCA”). (See
Mot. at 61.)
are agencies of the federal government, and the protections
of sovereign immunity apply to federal agencies. See
Clayton v. Michigan Dep't of Corr., No. 1:05-CV-504,
2005 WL 2001183, at *2 (W.D. Mich. Aug. 17, 2005) (“As
an agency of the United States, the Department of Justice is
entitled to sovereign immunity.”) (citations omitted);
Jones v. Fulwood, 860 F.Supp.2d 16, 21 (D.D.C. 2012)
(Sovereign immunity bars a claim for money damages against
the United States Parole Commission as an arm of the federal
sovereign.) (collecting cases). “The United States has
not waived its sovereign immunity in suits for money damages
because of alleged constitutional violations.”
Sykes v. United States, 507 F. App'x 455, 462
(6th Cir. 2012) (citing among authority Blakely v. United
States, 276 F.3d 853, 870 (6th Cir. 2002)). Moreover,
federal constitutional claims are not cognizable under the
FTCA, and the United States has not waived its sovereign
immunity under the FTCA for federal constitutional claims.
Moher v. United States, 875 F.Supp.2d 739, 770 (W.D.
Mich. 2012) (citing among authority Meyer, 510 U.S.
opposition, which focuses entirely on the purported merits of
his claims, fails to respond to defendants'
jurisdictional arguments or otherwise carry his burden to
establish subject matter jurisdiction in this case.
Accordingly, defendants' motion to dismiss pursuant to
Rule 12(b)(1) is granted. See Brown v. U.S. Parole
Comm'n, Civil No. 09-2907, 2009 WL 4362743, at *2
(E.D. Pa. Dec. 2, 2009) (plaintiff's complaint against
U.S. Parole Commission for money damages for violation of his
constitutional rights under the Fourteenth Amendment