Kanam v. Office of the Secretary

• Court: District Court, District of Columbia
• Decided: July 8, 2020
• Docket: Civil Action No. 2020-0123
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KURT KANAM,

Plaintiff,

v. Case No. 20-cv-123 (CRC)

OFFICE OF THE SECRETARY OF EDUCATION, et al.,

Defendants.

MEMORANDUM OPINION

Michigan State University law professor Matthew Fletcher regularly takes to the Indian

law blog “Turtle Talk” to expose litigants whom he suspects of masquerading as tribal members.

A frequent target of his posts is the pro se plaintiff in this case, Kurt Kanam. No doubt

displeased with the uninvited notoriety, Kanam sued Professor Fletcher under the Civil Rights

Act of 1964 for engaging in “racially inflammatory hate speech.” And not content to stop there,

Kanam added as defendants several entities that he insists have enabled or endorsed Fletcher’s

reportage. These additional defendants include the Board of Trustees of the University of

Michigan Law School (which Kanam alleges operates the blog); the Office of the United States

Secretary of Education (which provides federal education funding to the State of Michigan); the

Office of the Governor of the State of the Michigan (which distributes federal funds to the

State’s public universities); and the Michigan State Bar Association (to which Fletcher allegedly

belongs).

Before the Court are motions to dismiss filed by the Secretary of Education and Michigan

State Bar. Finding both immune from suit, the Court will grant the motions. The remaining

defendants appear from the docket not to have been served in the six months since Kanam filed suit. The Court will separately issue an Order to Show Cause why the case should not be

dismissed as to those defendants as well for failure to effect service of process.

I. Background

In 2013, the U.S. District Court for the District of Alaska permanently enjoined Mr.

Kanam from prosecuting a lawsuit in a purported tribal court. Koniag, Inc. v. Kanam, No. 12-

cv-77, 2013 WL 11311346, at *2 (D. Alaska July 29, 2013). Professor Fletcher, who teaches

Indian law, authored several blog posts about that litigation and others that referred to Kanam as

a “fake Indian.” See, e.g., Matthew L.M. Fletcher, Ninth Circuit Dismisses Appeal of Fake

Indians and Fake Indian Court, TURTLE TALK (Aug. 26, 2015), https://turtletalk.blog/2015/08/26/

ninth-circuit-dismisses-appeal-of-fake-indians-and-fake-indian-court; Matthew L.M. Fletcher,

Oklahoma Company Sues Kurt Kanam/Kurt Weinreich (Fake Indian “Judge”), TURTLE TALK

(Jan. 29, 2014), https://turtletalk.blog/2014/01/29/oklahoma-company-sues-kurt-kanamkurt-

weinreich-fake-indian-judge. Taking umbrage, Kanam filed this lawsuit. He complains that

Professor Fletcher’s posts constitute “racially defamatory hate speech” in violation of the “1963

Civil Rights Act” and “28 USC 181.” 1 Compl. at 2–3; id. Att. A (screenshots of the offending

posts). He alleges that the “State of Michigan University School of Law” has violated the Act as

well by employing Fletcher and “allowing the operation of” the Turtle Talk blog. 2 Id. at 1–2.

1 As the Secretary and the State Bar point out, there is no “Civil Rights Act of 1963” or “28 U.S.C. § 181.” See Sec’y of Educ. Mot. Dismiss 1; Mich. St. Bar Ass’n Mot. Dismiss 2. However, construing this pro se complaint liberally, the Court will assume Kanam means the Civil Rights Act of 1964 (the “Act”), specifically Title VI, and 42 U.S.C. § 1983, which he cites on the civil cover sheet albeit with the incorrect volume number. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that pro se pleadings “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”). 2 Kanam has sued the Trustees of the University of Michigan Law School, but it appears from a cursory Google search that Professor Fletcher teaches at Michigan State University

2 Kanam also seeks to require the U.S. Secretary of Education to fulfill her “duty to enforce the

[Act]” by “withhold[ing] all future discretionary funding from the State of Michigan due to

Fletcher’s racially defamatory statements.” Id. at 2–4. Finally, he alleges that the Michigan Bar

Association has “endorsed” Fletcher’s speech by allowing his continued membership, also in

violation of the Act. Id. at 3.

The Michigan Bar Association and the Secretary of Education have each moved to

dismiss the claims against them. The Bar Association argues (1) that it is immune from suit

under the Eleventh Amendment, (2) that the Court lacks personal jurisdiction over it, (3) that the

complaint fails to state a claim, and (4) that it was not properly served. The Secretary of

Education contends that the suit is barred by sovereign immunity and that the complaint fails to

state a claim against her in any event. The Court concludes that sovereign immunity precludes

this action against both the Bar Association—as an arm of the State of Michigan—and the

Secretary of Education. It need not reach the other grounds for dismissal.

II. Legal Standards

Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of establishing, by a

preponderance the evidence, that the court has jurisdiction to hear the claims. Whiteru v. Wash.

Metro. Area Transit Auth., 258 F. Supp. 3d 175, 182 (D.D.C. 2017) (citing Lujan v. Defs. Of

Wildlife, 504 U.S. 555, 561 (1992)). Although the Court must “treat the complaint’s factual

allegations as true and must grant plaintiff the benefit of all inferences that can be derived from

the facts alleged,” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

College of Law. Regardless, it is unnecessary to decide this factual inconsistency to resolve the present motions.

3 (internal citations omitted), a court ruling on a 12(b)(1) motion should pay “closer scrutiny” to

the factual allegations and may look to documents outside the complaint to determine if

jurisdiction exists, Delta Air Lines Inc. v. Export-Import Bank of U.S., 85 F. Supp. 3d 250, 259

(D.D.C. 2015).

III. Analysis

A. Michigan State Bar Association

The Eleventh Amendment of the United States Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Eleventh Amendment immunity extends to the departments and

agencies of the States. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

Therefore, if the Michigan State Bar Association is a department or agency of the state, it is

immune, and the Court must dismiss the action against it because “there is no indication that

Congress has abrogated, or the state waived, sovereign immunity towards suits of this kind.”

Citizens Alert Regarding Env’t v. EPA, 102 F. App’x 167, 169 (D.C. Cir. 2004).

Neither the Supreme Court nor the D.C. Circuit has laid out a precise test for determining

whether an entity is a department or agency of a state, but each has offered guidance. The

Supreme Court has emphasized that the primary consideration should be whether any money

judgment would come out of the state treasury. Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 48 (1994) (“[T]he impetus for the Eleventh Amendment [was] the prevention of federal-

court judgments that must be paid out of a State’s treasury. Accordingly, Courts of Appeals have

recognized the vulnerability of the State’s purse as the most salient factor in Eleventh

Amendment determinations.” (internal citations omitted)). But the Supreme Court has also

4 indicated that lower courts should consider whether the suit would implicate the dignity of the

state. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) (“The preeminent

purpose of state sovereign immunity is to accord States the dignity that is consistent with their

status as sovereign entities.”). As a leading treatise summarizes: “Taken together, then, the

[Supreme] Court has concluded that Eleventh Amendment immunity serves two goals. First, it

preserves the state fisc. Second, it protects the dignity of the state.” 13 C. Wright & A. Miller,

Federal Practice & Procedure: Jurisdiction § 3524.2 (3d ed.). The D.C. Circuit, for its part, has

noted that “sovereign immunity attaches only to entities that are functionally equivalent to states

(often called ‘arms of the state’) or when, despite procedural technicalities, the suit effectively

operates against the state as the real party in interest.” City of Oakland ex rel. Bd. of Port

Comm’rs v. Fed. Mar. Comm’n, 724 F.3d 224, 227 (D.C. Cir. 2013) (internal citations omitted).

“These kinds of suits may offend the state’s dignity or assault its solvency no less than if the

state were itself the named defendant.” Id.

With these considerations in mind, the Court concludes that the Michigan State Bar is

immune from suit. The Sixth Circuit’s opinion in Dubuc v. Michigan Board of Law Examiners,

342 F.3d 610 (6th Cir. 2003) explains why. Even without evidence of “whether the State of

Michigan would be ultimately responsible for any monetary judgment against . . . the Bar,” the

Sixth Circuit found that the other factors “weigh in favor of finding . . . the Bar immune,”

namely “how state law defines the entity and the degree of control the state maintains over the

entity.” Dubuc, 342 F.3d at 615. Under Michigan law, the Michigan Supreme Court “has the

power to provide for the organization, government, and membership of the State Bar of

Michigan, and to adopt rules and regulations concerning the conduct and activities of the state

bar of Michigan and its members, the schedule of membership dues therein, the discipline,

5 suspension, and disbarment of its members for misconduct, and the investigation and

examination of applicants for admission to the bar.” M.C.L.A. § 600.904 (emphasis added).

Plainly, the State—through its Supreme Court—maintains extensive control over how the Bar

Association manages its members.

Moreover, Kanam has sued the Bar Association for its purported inaction in the face of a

member’s alleged misconduct. Compl. at 2–3. When it comes to regulating the conduct of its

members, however, the Bar Association is “merely [an] extension[] of the Michigan Supreme

Court.” Dubuc, 342 F.3d at 615; see also M.C.L.A. § 600.904. Permitting this suit against the

Bar Association would thus strip the Michigan Supreme Court and the State of Michigan of “the

dignity that is consistent with their status as sovereign entities.” See Fed. Mar. Comm’n, 535

U.S. at 760. Because the Bar Association is an “arm[] of the Michigan Supreme Court for all

purposes relevant to this lawsuit,” it is a “state agenc[y] immune from this lawsuit under the

Eleventh Amendment.” Dubuc, 342 F.3d at 615; see also Kish v. Mich. State Bd. of Law

Exam’rs, 999 F. Supp. 958, 964 (E.D. Mich. 1998) (finding that the Michigan State Board of

Law Examiners is a judicial agency of the state entitled to Eleventh Amendment immunity).

While other circuits differ slightly in how to determine whether an entity should receive

Eleventh Amendment immunity, many have likewise concluded that state bar associations are

immune from suit. See, e.g., Nichols v. Ala. State Bar, 815 F.3d 726, 731–33 (11th Cir. 2016);

Broening Oberg Woods Wilson & Cass, P.C. v. State Bar of Nev., 172 F.3d 875 (9th Cir. 1999);

Thiel v. State Bar of Wisc., 94 F.3d 399, 401–02 (7th Cir. 1996); Krempp v. Dobbs, 775 F.2d

1319, 1321 (5th Cir. 1985); see also Doyle v. Okla. Bar Ass’n, 787 F. Supp. 189 (W.D. Okla.

1992), judgment aff’d, 998 F.2d 1559 (10th Cir. 1993). The result can be no different here.

The Court will, accordingly, dismiss all claims against the Michigan State Bar.

6 B. Secretary of Education

“[T]he United States may not be sued without its consent” and that “consent is a

prerequisite to jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Unless a

plaintiff identifies an express waiver of this sovereign immunity, the federal government and its

agencies may not be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. King, 395

U.S. 1, 4 (1969) (a waiver of sovereign immunity “must be unequivocally expressed”). Kanam

contends that three different statutes authorize this suit and thus contain such a waiver: (1) Title

VI of the Civil Rights Act of 1964; (2) the Administrative Procedures Act (“APA”); 3 and (3) the

Declaratory Judgment Act. Compl. 2; Pl.’s Opp’n 2. He is mistaken on all counts.

Title VI states that “[n]o person in the United States shall, on the ground of race, color, or

national origin, be excluded from participation, in be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. Kanam argues that this language expressly waives sovereign immunity by providing a

private right of action to prevent an agency from allocating federal funds to an entity engaged in

discriminatory practices. But Title VI provides no such cause of action. Generally, private

plaintiffs may only use Title VI “to sue a discriminatory fund recipient to terminate the offending

discrimination;” they may not sue “the enforcing agency.” 4 Washington Legal Found. v.

Alexander, 778 F. Supp. 67, 69 (D.D.C. 1991). Title VI, therefore, does not provide Kanam a

3 Despite being raised for the first time in his opposition to the Secretary’s motion to dismiss, the Court will consider Kanam’s APA arguments. 4 A plaintiff may in rare cases sue a funding agency under Title VI where the agency has “consciously and expressly adopted a policy [abdicating] its statutory duty” by continuing to fund discriminatory educational institutions. See Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973). Even under the generous standards afforded pro se litigants, Kanam has not alleged that the Department of Education has adopted any such policy.

7 claim against the Secretary and consequently does not constitute a waiver of sovereign

immunity. See Dorsey v. Dep’t of Labor, 41 F.3d 1551, 1555 (D.C. Cir. 1994) (holding that

Title VI does not waive sovereign immunity against the federal government).

Kanam looks next to the APA, but the D.C. Circuit has foreclosed this path. While the

APA provides a limited waiver of sovereign immunity for challenges to final agency action, 5

U.S.C. § 702, it only permits review of agency action “for which there is no other adequate

remedy in a court,” id. § 704. In Washington Legal Foundation, the Circuit found that the ability

to sue an alleged discriminatory institution (there, a college) directly was “not merely adequate

but in fact the proper means for individuals to enforce Title VI,” and thus held that there was no

cause of action under the APA. 984 F.2d 483, 486 (D.C. Cir. 1993) (emphasis in original)

(quoting Women’s Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990)); see

also El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. Dep’t of Health & Human Servs., 396

F.3d 1265, 1271 (D.C. Cir. 2005) (explaining that the Circuit has “embraced the doctrinal view

disfavoring suits against federal enforcement authorities administering anti-discrimination laws”

when there are “remedies against the discriminating entity . . . adequate so as to preclude APA

review”). Because Title VI provides an adequate remedy (the implied right of action against the

allegedly discriminating institution), the APA does not provide the waiver of sovereign

immunity Kanam seeks.

Lastly, Kanam identifies the Declaratory Judgment Act as a basis for jurisdiction, but it

only “authorizes declaratory relief as a remedy.” 28 U.S.C. § 2201 (emphasis added). To obtain

declaratory relief, the plaintiff must state a separate “cognizable cause of action.” Ali v.

Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011). The Declaratory Judgment Act thus does not

provide “an independent source of federal jurisdiction” or waive sovereign immunity. Schilling

8 v. Rogers, 363 U.S. 666, 677 (1960); Walton v. Fed. Bureau of Prisons, 533 F. Supp. 2d 107,

114 (D.D.C. 2008).

Because Kanam has failed to locate an express waiver of sovereign immunity, the Court

will also dismiss all claims against the Secretary of Education.

IV. Conclusion

For the foregoing reasons, the Court will grant the Bar Association and the Secretary’s

Motions to Dismiss. A separate Order shall accompany this memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: July 8, 2020