Pontious v. U.S. Department of Justice ( 2023 )

Appellate Case: 22-6073 Document: 010110804134 Date Filed: 01/26/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 26, 2023
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Christopher M. Wolpert
Clerk of Court
GLEN A. PONTIOUS,
Plaintiff - Appellant,
v. No. 22-6073
(D.C. No. 5:21-CV-00088-G)
U.S. DEPARTMENT OF JUSTICE, (W.D. Okla.)
Defendant - Appellee.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.
_________________________________
In this challenge to the 2020 U.S. Presidential Election, Glen A. Pontious appeals
pro se from a district court order dismissing his amended complaint for lack of subject
matter jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
In an amended complaint filed in federal district court in 2021, Mr. Pontious
claimed that the Department of Justice (DOJ) was “derelict in [its] duties” for “allow[ing]
Joe Biden to run for office,” given “[a]pperent [sic] high crimes and misdeanors’s [sic],
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 22-6073 Document: 010110804134 Date Filed: 01/26/2023 Page: 2
conflict of interest[.]” R. at 28 (capitalization omitted). He alleged it was “not fair . . .
that [former President Donald Trump] was interfeared [sic] with by . . . frivolous
impeachment.” R. at 31 (capitalization omitted). For relief, he sought $48 million in
damages and to “remove the Current U.S. Presidential administration via nullification
and voiding the 2020 U.S. Presidential Election and criminaly [sic] prosecute those who
brought the fraudlent [sic] charges against President Donald Trump.” R. at 36
(capitalization omitted).
On the DOJ’s motion, the district court dismissed the amended complaint because
Mr. Pontious failed to identify a waiver of the DOJ’s immunity from suit. See Normandy
Apartments, Ltd. v. U.S. Dep’t of Hous. & Urb. Dev., 554 F.3d 1290, 1295 (10th Cir.
2009) (“Sovereign immunity generally shields the United States, its agencies, and its
officers acting in their official capacity from suit.”).
Mr. Pontious appealed and filed motions in this court asserting, among other
things, that the DOJ is “supporting and aiding in treason by sedition,” Mot. for
Emergency Hr’g at 1 (filed Aug. 12, 2022) (capitalization omitted), and has conspired
with Facebook CEO Mark Zuckerberg to commit “Treason[] and Mutiny[] against
President Donald J Trump,” Mot. at 3 (filed Sept. 9, 2022).
DISCUSSION
I. Standards of Review
“We review de novo the district court’s dismissal based on sovereign immunity.”
Mojsilovic v. Okla. ex rel. Bd. of Regents for Univ. of Okla., 841 F.3d 1129, 1131
(10th Cir. 2016). Because Mr. Pontius proceeds pro se, we construe his arguments
liberally, but we “cannot take on the responsibility of serving as [his] attorney in
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constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
II. Sovereign Immunity
“The defense of sovereign immunity is jurisdictional in nature, depriving courts of
subject-matter jurisdiction where applicable.” Normandy Apartments, 554 F.3d at 1295.
Thus, the party seeking to assert a claim against the government must identify a specific
waiver of sovereign immunity to establish jurisdiction. See id. The waiver “must be
unequivocally expressed in statutory text and will not be implied.” Lane v. Pena, 518
U.S. 187, 192 (1996) (citation omitted).
Like the district court, we can find no reference in Mr. Pontius’s amended
complaint either to the DOJ’s immunity or to any statute capable of waiving that
immunity. In his district court brief opposing the DOJ’s motion to dismiss, Mr. Pontius
claimed that the constitutional right to petition the government nullified the DOJ’s
immunity, and that by being on social-media “[p]latforms,” the government “signed [its]
[s]overeign immunity away.” R. at 64. The district court correctly rejected both
arguments. See Christensen v. Ward, 916 F.2d 1462, 1472-73 (10th Cir. 1990)
(determining that the doctrine of sovereign immunity is consistent with the First
Amendment right to petition the government for a redress of grievances); Return Mail,
Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1862 (2019) (“Congress must unequivocally
express any waiver of sovereign immunity for that waiver to be effective.”).
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On appeal, Mr. Pontius provides no coherent, relevant argument regarding a
waiver of sovereign immunity.1 Indeed, his appellate brief is rife with implausible,
incomprehensible, and/or prolix allegations against various public and private figures and
institutions. See, e.g., Aplt. Br. at 12 (referencing “Nazi king rules” and declaring
“[t]here is no rule of law[] in North America only dictatorship by corrupt agencies of an
illegimate [sic] government protected under the color of law by judges” (capitalization
omitted)). Briefing of this nature waives appellate review. See Garrett, 425 F.3d at 841(holding that pro se litigant’s “conclusory allegations with no citations to the record or
any legal authority for support,” together with his disrespectful comments about the
district judge’s integrity, “disentitle[d] him to [appellate] review”); Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived.”).
CONCLUSION
We affirm the district court’s judgment. We deny Mr. Pontius’s pending motions.
See Fed. R. App. P. 27(a)(2)(A) (requiring that motions identify supporting legal
argument).
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
1
To the extent Mr. Pontius cites 18 U.S.C. §§ 287 and 2071(b), neither statute
waives the DOJ’s immunity from his civil suit. See 18 U.S.C. § 287 (providing
criminal penalties for presenting a “false, fictitious, or fraudulent” “claim upon or
against the United States, or any department or agency thereof”); id. § 2071(b)
(providing criminal penalties and forfeiture of office if a records custodian
unlawfully removes or destroys a record).
4