Brunson v. Sotomayor

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 9, 2024
• Docket: 23-4108
• Status: Unpublished

Opinion

Appellate Case: 23-4108 Document: 010110997600 Date Filed: 02/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 9, 2024 _______________________________________ Christopher M. Wolpert Clerk of Court RALAND J. BRUNSON,

Plaintiff - Appellant,

v. No. 23-4108 (D.C. No. 1:23-CV-00042-HCN) SONIA SOTOMAYOR, in her (D. Utah) official capacity as Justice of the Supreme Court of the United States; ELENA KAGAN, in her official capacity as Justice of the Supreme Court of the United States; KETANJI BROWN JACKSON, in her official capacity as Justice of the Supreme Court of the United States; JANE DOES 1-100,

Defendants - Appellees. _______________________________________

ORDER AND JUDGMENT * _______________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. _______________________________________

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-4108 Document: 010110997600 Date Filed: 02/09/2024 Page: 2

This appeal grew out of a disagreement over the outcome in a prior

suit. In that suit, Mr. Raland Brunson challenged the outcome of the 2020

presidential election. The district court dismissed the suit, we affirmed,

and the Supreme Court denied certiorari. Mr. Brunson brought a second

suit, which we now address. In the second suit, Mr. Brunson sued three

Associate Justices of the Supreme Court (Sonia Sotomayor, Elena Kagan,

and Ketanji Brown Jackson) 1 in their official capacities for denying

certiorari in the prior case. 2

The second suit began in state court, and the three Justices removed

the action to federal district court. The district court ordered dismissal,

concluding that the Justices enjoyed sovereign immunity. We affirm.

When an action is removed from state court, the federal court

considers whether the state court had jurisdiction. If jurisdiction existed in

state court, the federal court generally acquires jurisdiction if removal is

otherwise appropriate. Lambert Run Coal Co. v. Baltimore & O.R. Co., 258

U.S. 377, 382 (1922). We call this jurisdiction “derivative” because the

federal court’s jurisdiction derives from the state court’s. See High

1 Mr. Brunson also sued 100 Jane Doe defendants, but they are not involved in this appeal. 2 Mr. Brunson claimed breach of contract, fraud, civil conspiracy, and intentional infliction of emotional distress.

2 Appellate Case: 23-4108 Document: 010110997600 Date Filed: 02/09/2024 Page: 3

Lonesome Ranch, LLC v. Bd. of Cnty. Comm’rs for Cnty. of Garfield, 61

F.4th 1225, 1239 (10th Cir. 2023).

The district court concluded that the state court had lacked

jurisdiction over Mr. Brunson’s second suit, reasoning that

• the official-capacity claims against the Justices were the equivalent of claims against the United States and

• the United States enjoys sovereign immunity.

See Hinton v. City of Elwood, Kan., 997 F.2d 774, 783 (10th Cir. 1993)

(stating that an official capacity suit is a way of asserting a claim against

the entity itself); Loeffler v. Frank, 486 U.S. 549, 554 (1988) (stating that

the federal government enjoys immunity from suit absent a waiver).

Because the official-capacity claims triggered the Justices’ sovereign

immunity, the district court concluded that

• the state court lacked jurisdiction and

• the federal district court thus lacked derivative jurisdiction.

In his reply brief, Mr. Brunson points out that derivative jurisdiction

is not required for removals under 28 U.S.C. § 1441. 28 U.S.C. § 1441(f).

Section 1441 governs removal when federal jurisdiction is based on diverse

citizenship or federal questions. But the three Justices removed the action

under 28 § U.S.C. § 1442 because they were federal officers. For removals

under § 1442, derivative jurisdiction is still required. High Lonesome

3 Appellate Case: 23-4108 Document: 010110997600 Date Filed: 02/09/2024 Page: 4

Ranch, LLC v. Bd. of Cnty. Comm’rs for Cnty. of Garfield, 61 F.4th 1225,

1239–46 (10th Cir. 2023).

Mr. Brunson argues that even if derivative jurisdiction had been

required, the state court had jurisdiction because the doctrine of sovereign

immunity violates the First Amendment’s right to petition for redress of

grievances. We addressed the same argument in Christensen v. Ward, 916

F.2d 1462, 1472–73 (10th Cir. 1990). There we rejected this argument,

reasoning that the right to petition for redress of grievances “focuses on

procedural impediments to the exercise of existing rights and does not

prevent a court from holding that a plaintiff has no remedy at law for the

injuries he may allege.” Id. at 1472.

We’re bound by our precedent in Christensen, and this precedent

requires us to recognize the federal government’s sovereign immunity. See

In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Because the

government’s sovereign immunity barred jurisdiction in state court, the

federal district court lacked derivative jurisdiction. See High Lonesome

Ranch, LLC v. Bd. of Cnty. Comm’rs for Cnty. of Garfield, 16 F.4th 1225,

1240 (10th Cir. 2023) (“Because the state trial court never had jurisdiction

over these crossclaims, upon the United States’ § 1442 removal, ‘the

federal court acquire[d] none.’” (quoting Lambert Run Coal Co. v.

Baltimore & O.R. Co., 258 U.S. 377, 382 (1922))).

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Finally, Mr. Brunson states in his reply brief that a violation of the

judicial oath vitiates the Associate Justices’ “immunity and jurisdictional

claims.” Appellant’s Reply Br. at 8. But Mr. Brunson doesn’t develop this

statement into a distinct argument, and the reply brief would have been too

late for that argument. See Nelson v. City of Albuquerque, 921 F.3d 925,

931 (10th Cir. 2019) (concluding that the appellant had waived an

argument by failing to develop it); Martin K. Eby Const. Co. v. OneBeacon

Ins. Co., 777 F.3d 1132, 1142 (10th Cir. 2015) (concluding that an

appellant waited too long to make an argument by waiting until the reply

brief).

Because the state court lacked jurisdiction, we affirm the dismissal

of the second suit.

Entered for the Court

Robert E. Bacharach Circuit Judge