                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
MELVIN GALE,                        )
                                    )
            Plaintiff,              )
                                    )
            v.                      )                Civil Action No. 08-0792 (JR)
                                    )
UNITED STATES DEPARTMENT            )
OF JUSTICE et al.,                  )
                                    )
            Defendants.             )
____________________________________)



                                       MEMORANDUM

       Plaintiff pro se Melvin Gale, a prisoner in federal custody under sentence imposed in

1977 by the Superior Court for the District of Columbia, sues the Department of Justice, the

Parole Commission, the District of Columbia, and John Caulfield, the Warden of the local

detention facility under contract with the District. Invoking 42 U.S.C. § 1983, Gale demands

$3.5 million in damages for alleged violations of the ex post facto and due process clauses of the

Constitution (Art. I, § 9; Amend. V). The District of Columbia and the federal defendants have

each filed a motion to dismiss the complaint, and Gale has filed an opposition to each. These

motions must be granted. Warden Caulfield has not appeared in the case, but the complaint

against him will be dismissed sua sponte. See 28 U.S.C. § 1915A.
        If we were ever to reach the merits of the plaintiff’s complaint, he would lose,1 but the

case must be dismissed before we reach that point. The United States and its agencies are

immune from suit except insofar as Congress has expressly waived that immunity. Lane v. Pena,

518 U.S. 187, 192 (1996); United States v. Mitchell, 463 U.S. 206, 212 (1983). Congress has not

waived federal agencies’ immunity from suit for damages for alleged violations of the

Constitution. FDIC v. Meyer, 510 U.S. 471, 484-85 (1994). “Sovereign immunity is

jurisdictional in nature[,]” id. at 475, and Gale’s claims against the federal defendants must

accordingly be dismissed for lack of subject matter jurisdiction.

        The complaint against the District of Columbia and Warden Caulfield must be dismissed

for a different reason, namely, that it contains no factual allegations as to those defendants. Not

only does it fail to state a claim as to which relief can be granted, see Fed. R. Civ. P. 12(b)(6), it

fails to state any claim at all.

        An order of dismissal accompanies this memorandum.




                                                 JAMES ROBERTSON
                                               United States District Judge




        1
          Gale contends that it is a violation of his constitutional protection against ex post facto
laws and his right to due process that the federal defendants enforce the provisions of D.C. Code
§ 24-406(a), first enacted in 1932, and do not count the days he spent on parole before his parole
was revoked as days in fulfillment of his term of incarceration; he also characterizes the result as
an impermissible sentence imposed by an executive branch agency. See Compl. at 4-7. These
arguments were raised, litigated, and rejected long ago, in opinions cited by the litigants. There
is no need to plow this ground again. See U.S Parole Comm’n v. Noble, 711 A.2d 85 (D.C.
1998), adopting en banc U.S Parole Comm’n v. Noble, 693 A.2d 1084 (1997) (approving the
application of D.C. Code § 24-406(a) to D.C. prisoners in federal custody); see also Davis v.
Moore, 772 A.2 204, 214-15 (D.C. 2001) (approving application of § 24-406(a) to D.C. prisoners
regardless of the date of their offense).
