Fifth Circuit Renders Important Subject Matter Jurisdiction Opinion ...

Just in time for the holidays, the Fifth Circuit has released THE MOST BIZARRE OPINION OF THE YEAR. A lawyer claiming to be a Deity and a Monarch brought suit against the United States and the State of Louisiana on behalf of the Atakapa Indian de Creole Nation. The District Court sensibly dismissed the suit based on sovereign immunity. However, the Fifth Circuit chose to affirm the decision on the ground that the suit was so completely frivolous that the federal courts lacked jurisdiction to even entertain it. Atakapa Indian de Creole Nation, No. 19-30032 (5th Cir. 12/10/19), which can be found here.

This action was originally brought as a habeas corpus proceeding by Edward Moses, Jr., a lawyer who calls himself the trustee of the “Atakapa Indian de Creole Nation.” This group is not a federally recognized Indian tribe, and its precise nature is unclear. See Indian Entities Recognized by and Eligible To Receive Services from the United States Bureau of Indian Affairs, 84 Fed. Reg. 1200 (Feb. 1, 2019). The initial complaint alleged the Atakapa “are being held as wards of the State through the Louisiana Governor’s Office of Indian Affairs” and “in pupilage under the United States,” and sought formal recognition as “indigenous to Louisiana.” The claims were based on a gumbo of federal and state laws, including eighteenth-century federal treaties with France and Spain, as well as sources such as the “Pactum De Singularis Caelum, [or] the Covenant of One Heaven.” The plaintiff subsequently filed something resembling an amended complaint, which sought to reclassify the action as a “libel suit” under maritime jurisdiction.

Some claims are so insubstantial, implausible or otherwise completely devoid of merit as not to involve a federal controversy. Federal courts lack power to entertain these wholly insubstantial and frivolous claims. Determining whether a claim is wholly insubstantial and frivolous requires asking whether it is obviously without merit or whether the claim’s unsoundness so clearly results from the previous decisions of (the Supreme Court) as to foreclose the subject. (cleaned up).

The pleadings speak for themselves. To begin with, the Atakapa’s counsel, Edward Moses, Jr.—who appears to be the real plaintiff—refers to himself throughout under such titles as: “His Majesty,” “[T]he Christian King de Orleans,” “[T]he God of the Earth Realm,” and the “Trust Protector of the American Indian Tribe of הֶשׁמ Moses” (bold and Hebrew script in original).

The plaintiff’s claims are no less bizarre. For instance, the original complaint alleges, without any explanation, that the Atakapa are being held in “pupilage” by the United States and as “wards” of Louisiana. The first amended complaint seeks a “declaration of rights guaranteed . . . by the 1795 Spanish Treaty with the Catholic Majesty of Spain and the 1800 French Treaty with the former Christian Majesty of France.” The proposed second amended complaint attempts to name these additional defendants: Secretary of the Interior Ryan Zinke, Attorney General Jeff Sessions, King Felipe VI of Spain, Prime Minister Justin Trudeau of Canada, President Emmanuel Macron of France, Chancellor Angela Merkel of Germany, Prime Minister Theresa May of the United Kingdom, Pope Francis, President Xi Jinping of China, President Abdel Fattah el-Sisi of Egypt, Prime Minister Fayez al-Sarraj of Libya, President George Weah of Liberia, Prime Minister Antonio Costa of Portugal, and President Donald J. Trump. That same document also alleges that the United States and Louisiana seek to monopolize “intergalactic foreign trade.” This was no typographical error: the plaintiff continues to argue on appeal that the defendants are attempting to “monopoliz[e] . . . domestic, international and intergalactic commercial markets.”

We will not try to decipher what any of this means. To do so might suggest that these arguments have some colorable merit. Despite all this, jurisdiction would still lie if the plaintiff presented a non-frivolous federal question. We find none. For example, the plaintiff asserts various antitrust violations, but fails to allege any colorable basis for them. The best he can do is to allege anticompetitive behavior by Thompson Reuters. He seeks an injunction, not to stop anything defendants are doing to the Atakapa, but instead to “restrain[ ] the Doctrine of Discovery and the Doctrine of Conquest more commonly known as the Doctrine of White Supremacy.” Many of the arguments depend, not on the alleged violation of any federal statute or rule, but instead on the assertion that “[t]he 1803 Louisiana Purchase Treaty is not ‘Law of the Land.’” (partially cleaned up).

The opinion was written by Stuart Duncan Kyle, a Trump appointee who was confirmed on a party line vote. Some pundits and Senators were concerned that his prior work on religious liberty issues might lead to bias on the bench. However, those concerns were clearly unwarranted in this case. I also like Judge Kyle because he uses the "cleaned up" parenthetical which I have started using in my own writing.

While it is fun to revel in the sheer silliness of this opinion, it does raise an important question. The trial court had warned the Plaintiff that he was in danger of being sanctioned under Rule 11. However, if the Court never had subject matter jurisdiction to begin with, did it have the power to impose sanctions? 

As it turns out, the Supreme Court has answered this question. A court which lacks subject matter jurisdiction may impose Rule 11 sanctions, although it may not find a party in civil contempt. The Court explained:

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