UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PETER SOUDERS,
Plaintiff,
v.
Civil Action No. 25-3924 (TJK)
DEPARTMENT OF HOMELAND SECURITY et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Peter Souders was fired from his job with a U.S. Coast Guard contractor in September
2025. He alleges that federal officials forced his employer to fire him because of comments he
posted on social media about the murder of conservative activist and organizer Charlie Kirk. So
Souders sued those officials and their respective agencies. He brings three claims for relief, asserting first, that Defendants retaliated against him for protected speech in violation of the First
Amendment; second, that he is entitled to a declaratory judgment; and third, that he deserves a
writ of mandamus. Defendants move to dismiss the complaint in its entirety, either for lack of
jurisdiction or because Souders has failed to state a claim. For the reasons explained below, the
Court disagrees with Defendants that Souders’s First Amendment claim sounds in contract and so
belongs in the Court of Federal Claims. That said, the Court will dismiss Souders’s second and
third claims because neither can be maintained as a standalone cause of action. So the Court will
grant Defendants’ motion in part and deny it in part.
I. Background
Before his termination, Souders worked as an engineer and project manager for Advanced
Concepts Enterprises, Inc. (“ACES”), a contractor for the United States Coast Guard—an agency of the U.S. Department of Homeland Security (“DHS”). See ECF No. 1 (“Compl.”) at ¶ 11. In
this role, Souders “worked on projects related to communications technology at Coast Guard
Headquarters in Washington, DC.” Id. During his tenure, Souders says that “[he] received nothing
but” “praise” and “positive feedback [from] . . . the Coast Guard.” Id. ¶ 22.
About two months after Souders joined ACES, conservative activist and organizer Kirk
was shot and killed while speaking at a college event in Orem, Utah. See Utah Valley Shooting
Updates, Fed. Bureau of Investigation, https://www.fbi.gov/news/press-releases/utah-valleyshooting-updates (last updated Sept. 12, 2025).1 Souders alleges that he was among those who
published “social media posts relating to Charlie Kirk on Facebook” after the shooting. Compl.
¶ 27. Those posts—whatever they said—allegedly did not sit well with officials at the Departments of Defense and Homeland Security. See id. ¶¶ 23–29. Indeed, Souders alleges that the
following week, Michael Cogar, Deputy Assistant Secretary of Defense for Civilian Personnel
Policy, contacted Greyson McGill, Chief of Staff for DHS’s Under Secretary for Management,
about “inappropriate behavior” by a “[Coast Guard] contractor.” Id. ¶ 23. McGill responded that
he would “take care of the . . . matter.” Id. He then allegedly emailed DHS staff about “a social
media post linked to . . . Souders” and ordered them to “offboard[]” Souders “without delay.” Id.
¶¶ 24, 26.
Days later, Souders says his employer, ACES, got “an email from the federal government
directing that Souders’s work for the Coast Guard be terminated.” Compl. ¶ 31. ACES told Souders that its hands were tied; because the company “had employed [him] to work as a Coast Guard
1
Souders only alludes to this fact in the complaint, see Compl. ¶ 39, but the Court may take judicial notice of it. “In determining whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
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contractor, [it] would have to terminate his employment.” Id. ¶ 33.
Two months later, Souders sued Cogar and McGill, the Departments of Defense and Homeland Security, and the officials in charge of those agencies. See generally Compl. ¶¶ 11–17.
Count I alleges that Defendants unlawfully retaliated against him for protected speech in violation
of the First Amendment. See Compl. ¶¶ 37–42. Count II seeks a declaration that Defendants acted
unlawfully and outside the scope of their authority. See id. ¶¶ 43–44. And Count III seeks, in the
alternative, a writ of mandamus commanding Defendants to “refrain from ordering [Souders’s]
termination . . . in retaliation for his exercise of his First Amendment rights.” Id. ¶ 45. Among
other relief, Souders seeks an order “requiring Defendants to immediately reinstate [his] ability to
work for the Coast Guard.” Compl. at 10 (Request for Relief). Defendants move to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally ECF
No. 18. They argue that the Court lacks subject-matter jurisdiction over Souders’s First Amendment retaliation claim (Count I) and mandamus claim (Count III), and that Souders’s request for
declaratory judgment (Count II) fails to state claim for relief. Id.
II. Legal Standards
“Federal [district] courts are courts of limited jurisdiction,” possessing “only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Absent subjectmatter jurisdiction over a case, the Court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S.
500, 506–07 (2006) (citation omitted); Fed. R. Civ. P. 12(h)(3). Under Rule 12(b)(1), the plaintiff
bears the burden to establish the Court’s subject-matter jurisdiction. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 (2006). In evaluating such a motion, the Court must “assume the truth
of all material factual allegations in the complaint and . . . grant[] [the] plaintiff the benefit of all
inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137,
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1139 (D.C. Cir. 2011) (cleaned up). “However, those factual allegations receive closer scrutiny
than they do in the Rule 12(b)(6) context,” and the Court “may look to documents outside of the
complaint in order to evaluate whether or not it has jurisdiction to entertain a claim.” Doe v.
WMATA, 453 F. Supp. 3d 354, 361 (D.D.C. 2020) (citation modified).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint
must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A plaintiff states a facially plausible claim when he pleads “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true “all well-pleaded
factual allegations” and “construes reasonable inferences from those allegations in the plaintiff’s
favor.” Sissel v. HHS, 760 F.3d 1, 4 (D.C. Cir. 2014). But “mere conclusory statements” are not
enough to establish a plausible claim, and courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
III. Analysis
A. The Court has Subject-Matter Jurisdiction Over Souders’s First Amendment
Retaliation Claim (Count I)
In his first count, Souders asserts that Defendants violated his rights under the First Amendment by retaliating against him for protected speech. See Compl. ¶¶ 37–42. They did so, Souders
says, by rescinding his eligibility to work for the Coast Guard and effectively forcing his employer
to terminate him. Id. ¶¶ 4, 39–42. Defendants argue that the Court lacks subject-matter jurisdiction over this claim, because it “challenge[s] . . . an employment action that arises through [Souders’s] contractual relationship with the United States,” and so it is covered by the Contract Disputes
Act (“CDA”), which requires that it be brought in the Court of Federal Claims. ECF No. 18-1 at
9.
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The parties agree that if Souders’s claim is covered by the CDA, the Court lacks jurisdiction over it. Through the Administrative Procedure Act (“APA”), “Congress has provided a limited waiver of sovereign immunity.” Crowley Gov’t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th
1099, 1105 (D.C. Cir. 2022). But that “waiver does not apply . . . if any other statute that grants
consent to suit expressly or impliedly forbids the relief which is sought.” Id. at 1106 (internal
quotation marks omitted).2 The CDA is such a statute. As relevant here, the CDA governs certain
types of government contracts, including those for “the procurement of services.” 41 U.S.C.
§ 7102(a)(2). It provides that “claim[s] by a contractor against the Federal Government relating
to a [procurement] contract shall be submitted to the [agency’s] contracting officer for a decision”
within six months of the claim’s accrual. Id. § 7103(a)(1). The contractor can appeal an adverse
decision to an agency board and, after that, to the Court of Appeals for the Federal Circuit. See id.
§§ 7104, 7107(a)(1). Alternatively, the contractor may, after receiving the contracting officer’s
decision, “bring an action directly on the claim in the United States Court of Federal Claims.” Id.
§ 7104(b). Thus, “[w]hen the CDA applies to a claim, its procedures provide the exclusive remedy
for that dispute, and this Court lacks jurisdiction to hear it.” Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 68 (D.D.C. 2009), aff’d sub nom., 637 F.3d 311 (D.C. Cir. 2011).
2
The parties do not address whether, if Souders’s claim is not covered by the CDA, the APA’s sovereign immunity waiver otherwise provides the Court jurisdiction over the claim. Putting the CDA to the side, the Court easily concludes that the APA’s waiver applies. Section 702 of the APA permits claims “seeking relief other than money damages and stating a claim that an agency or an officer or employee [of the United States] acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. Souders’s First Amendment claim for declaratory and injunctive relief fits the bill. Indeed, “sovereign immunity does not bar suits for injunctive or declaratory relief against federal officers acting unconstitutionally or beyond statutory authority.” Am. Bar Ass’n, 783 F. Supp. 3d at 243 (noting sovereign immunity does not bar a “First Amendment retaliation claim . . . for specific relief”). It does not matter that Souders does not explicitly bring this claim under the APA—as the “APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996).
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The parties also agree that the Coast Guard’s contract with ACES is a procurement contract
subject to the CDA; they dispute only whether Souders’s claim is subject to the CDA’s exclusive
review scheme. See ECF No. 19 at 11–12.3
A claim falls within the CDA’s ambit if it is “at its essence a contract [claim].” IngersollRand Co. v. United States, 780 F.2d 74, 76 (D.C. Cir. 1985) (citation modified). The two-pronged
test articulated by the D.C. Circuit in Megapulse, Inc. v. Lewis guides that inquiry. See 672 F.2d
959, 968 (D.C. Cir. 1982).4 Courts must consider (1) “the source of the rights upon which the
plaintiff bases its claims”; and (2) “the type of relief sought.” See id. The “test is conjunctive,
requiring satisfaction of both elements to provide exclusive jurisdiction to the Court of Federal
Claims.” Am. Acad. of Pediatrics v. HHS, 816 F. Supp. 3d 27, 47 (D.D.C. 2026).
The first prong is determinative here. Under that prong, the Court must determine whether
Souders asserts a violation of “rights exist[ing] prior to and apart from rights created under the
contract.” Crowley, 38 F.4th at 1107 (citation modified). Relevant to that determination is whether
“it is possible to conceive of th[e] dispute as entirely contained within the terms of the contract,”
such that “[t]he question presented by the complaint could be phrased as whether the contract
forbids termination under the[] [circumstances].” Ingersoll-Rand Co., 780 F.2d at 78.
Defendants argue that Souders’s “claims naturally arise[] under the terms of his contract”
because “he challenges the way that he was terminated, and the substantiation provided by the
3
Defendants attach the Coast Guard’s contract with ACES and its associated Statement of Work (SOW) as exhibits to their motion to dismiss. See ECF No. 18-2 (ACES contract); ECF No. 18-3 (SOW). The Court may consider these documents, and other “relevant materials outside the pleadings,” to determine its jurisdiction over Souders’s claims. Bank of Am., N.A. v. FDIC, 908 F. Supp. 2d 60, 78 (D.D.C. 2012).
4
The Megapulse test governs the jurisdictional analysis under the CDA. See Digital Sys. Grp., Inc. v. FEMA, No. 25-cv-3634, 2025 WL 3876559, at *7 & n.2 (D.D.C. Dec. 15, 2025).
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Coast Guard for [that] termination.” ECF No. 18-1 at 13. They point to a section of the Coast
Guard’s contract with ACES providing that the agency may “require the Contractor to prohibit
individuals from working on the contract if the Government deems their initial or continued employment contrary to the public interest for any reason, including, but not limited to, carelessness,
insubordination, incompetence, or security concerns.” ECF No. 18-1 at 13 (quoting ACES contract at 34). Thus, Defendants argue, Souders’s retaliation claim is essentially contractual because
it challenges the validity of his termination under those terms. See id. at 12–13.
Defendants are wrong for several reasons. First, Souders cannot invoke rights under a
contract to which he is neither a party nor a beneficiary. The contract at issue is between the Coast
Guard and Souders’s employer—ACES—not between the Coast Guard and Souders himself.
Souders insists that he “is not a party to the contracts identified by the government.” ECF No. 19
at 12. And as far as the Court can tell, he is right. Indeed, nothing in the contract or the related
Statement of Work suggests otherwise, and Defendants never offer any evidence or argument that
Souders is a party.5 And “the provisions of the CDA apply only to ‘contractors,’ i.e., ‘part[ies] to
a Government contract other than the Government’”—and “those who are not in privity of contract
with the government cannot avail themselves of the CDA’s appeal provisions.” Winter v.
FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 2009) (citation omitted). Thus, the CDA does not
apply to claims pressed against the government by a contractor’s employee like Souders. See
Lamb v. Millennium Challenge Corp., 498 F. Supp. 3d 104, 120 (D.D.C. 2020) (holding that the
CDA “[does not] permit civil actions by the employees of government contractors against the
government”); Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 404 (2d Cir. 2015) (holding that
5
Defendants do not argue that Souders is a third-party beneficiary under the contract. Even if they had, “the CDA does not permit appeals by . . . third-party beneficiaries of the prime contract.” Winter, 570 F.3d at 1371.
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the CDA “does not provide a remedy for subcontractors or employees of contractors”). For that
reason, the situation here is readily distinguishable from those cited by Defendants involving
claims asserted by prime contractors against the government. See ECF No. 18-1 at 13–14.
Second, and in any event, Souders alleges a violation of his right to engage in protected
speech under the First Amendment—not rights conferred by an employment contract. In other
words, his claim “challenges the government’s directive that he may no longer work for the Coast
Guard not because [it] violated a term of any contract . . . but because it violated the . . . First
Amendment’s Free Speech clause.” ECF No. 19 at 10 (citation modified). Thus, he obviously
asserts “rights exist[ing] prior to and apart from rights created under [any] contract.” Crowley, 38
F.4th at 1107 (citation omitted). Courts have routinely reached this conclusion in circumstances
like this one, even when the plaintiff is a prime contractor in privity with the government, who in
theory could also assert rights under a contract. See ECF No. 19 at 9–11.
For example, in Navab-Safavi v. Broad. Bd. of Governors, a federal contractor alleged that
her contract was terminated after she appeared in a YouTube video “protest[ing] U.S. involvement
in the Iraq War.” 650 F. Supp. 2d at 48. She asserted—much like Souders does here—that agency
officials violated her First Amendment rights by “terminat[ing] her contract because of her speech
as a private person on a matter of public concern.” Id. at 53. In applying Megapulse’s first prong,
the court determined that her claim was “based not on breach of contract, but on an alleged governmental infringement of constitutional rights which preexisted any contracts.” Id. at 68 (citation
modified). It did not matter, the court held, that the government had used its “contracting powers
as a means to retaliate” against the plaintiff because that alone “d[id] not transform her claim into
one arising under or relating to her contract.” Id. (citation modified). The court also emphasized
that plaintiff’s claim did not implicate “whether the contract forbids termination,” but only
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“whether the Constitution forbids it.” Id. (citation omitted). So too here.
As Souders notes, for these reasons, courts in other recent cases have similarly held that
contractor claims alleging retaliation for protected speech implicate constitutional, not contractual,
rights. See ECF No. 19 at 11; see, e.g., Am. Bar Ass’n v. DOJ, 783 F. Supp. 3d 236, 243 (D.D.C.
2025) (“Because the source of the right underlying the [contractor’s] First Amendment retaliation
claim is the Constitution, not the cooperative agreements, its claim is not essentially a contract
action.”) (internal quotation marks omitted); Am. Acad. of Pediatrics, 816 F. Supp. 3d at 47 (holding that “the source of” the contractor’s First Amendment retaliation “claim[] is not contractual in
nature since [it] arise[s] out of rights protected not by contracts but rather by statutes and the Constitution”). Thus, even if Souders were in privity with the government, his First Amendment claim
presents “‘truly independent legal grounds’ supporting the exercise of jurisdiction by this Court.”
Am. Acad. of Pediatrics, 816 F. Supp. 3d at 47 (quoting Crowley, 38 F.4th at 1107).
Both Megapulse prongs must be satisfied for a claim to fall within the exclusive jurisdiction
of the Court of Federal Claims. See Am. Acad. of Pediatrics, 816 F. Supp. 3d at 47. As alluded to
above, then, because Souders’s First Amendment claim fails the first, the Court need not consider
the second. See id. For these reasons, the Court will deny Defendants’ motion to dismiss Count I
for lack of subject-matter jurisdiction.6
6
Defendants also move to dismiss the complaint under Rule 12(b)(6)—asserting, in a single line of their motion, that Souders “pleads insufficient facts in support of [his] claims.” ECF No. 18-1 at 6–7. But apart from that bare assertion, Defendants do not otherwise argue that Count I fails to state a claim. Thus, “the Court will decline to do the government’s work for it.” de Belinay v. Mayorkas, No. 24-cv-240, 2025 WL 671120, at *7 (D.D.C. Mar. 3, 2025). “Because Defendants’ motion makes no argument to dismiss” Count I for failure to state a claim, “it will not be dismissed.” Shoaie v. Blinken, No. 24-cv-01513, 2024 WL 4697732, at *1 (D.D.C. Nov. 6, 2024).
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B. Souders’s Claim for a Declaratory Judgment Must Be Dismissed, to the Extent
It Asserts an Independent Cause of Action (Count II)
Souders’s second cause of action seeks “a declaration . . . under the Declaratory Judgment
Act . . . establish[ing] that Defendants do not have the authority to order [his] termination . . . in
retaliation for the exercise of his First Amendment rights.” Compl. ¶ 43. Defendants ask the Court
to dismiss this claim because “[t]he Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide
an independent cause of action,” and they are right. ECF No. 18-1 at 18. “The Declaratory Judgment Act, which governs declaratory actions, provides that a court ‘may declare the rights and
other legal relations of any interested party seeking such declaration.’” Sierra Club v. Palkowski,
No. 24-cv-741, 2025 WL 1492790, at *2 (D.D.C. Jan. 28, 2025) (quoting 28 U.S.C. § 2201(a)).
But “[i]t is a well-established rule that the Declaratory Judgment Act is not an independent source
of federal jurisdiction.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (internal quotation
marks omitted). Nor is “[a] count for declaratory judgment . . . cognizable as a separate cause of
action.” Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013). Id.
Rather, a request for a declaratory judgment “is more properly included in the [plaintiff’s] prayer
for relief.” Id.
Souders seemingly suggests that he can assert a standalone claim for a declaratory judgment so long as his retaliation claim survives a motion to dismiss. See ECF No. 19 at 13 (“Because
the government’s argument that this Court lacks jurisdiction over Mr. Souders’s First Amendment
claim fails, so too does its argument that Mr. Souders’s request for declaratory relief should be
dismissed.”). Not so. A declaratory judgment is a form of relief the Court may eventually award
a party that, in the first instance, pleads a plausible claim for relief. But it is not a cognizable claim
on its own. Thus, the Court will dismiss Count II to the extent that it purports to assert an independent cause of action, and construe Souders’s request for a declaratory judgment as part of his
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prayer for relief. See Elec. Priv. Info. Ctr. v. Drone Advisory Comm., 369 F. Supp. 3d 27, 38
(D.D.C. 2019), aff’d, 995 F.3d 993 (D.C. Cir. 2021).
C. Souders’s Mandamus Claim Must Be Dismissed (Count III)
Souders also requests, as an “alternative” basis for relief, a “writ of mandamus commanding Defendants to return him to the status quo ante by rescinding their order that he be terminated
from his contractor position.” Compl. ¶ 45. “The remedy of mandamus is a drastic one” and is
“invoked only in extraordinary circumstances.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189
(D.C. Cir. 2016). To show entitlement to mandamus, a petitioner “must demonstrate (1) a clear
and indisputable right to relief, (2) that the government agency or official is violating a clear duty
to act, and (3) that no adequate alternative remedy exists.” Id. at 190.
Souders’s allegations fall short on the third requirement because he has an adequate alternate remedy to obtain the relief he seeks—his First Amendment retaliation claim. Indeed, Souders
asserts his mandamus claim “[in] the alternative,” seemingly acknowledging that survival of any
other claim in the complaint would extinguish it. Compl. ¶ 45. And courts have held that mandamus claims should be dismissed where, as here, another viable claim asserted in the complaint
would afford the plaintiff the same relief. See Nat’l Sec. Couns. v. CIA, 898 F. Supp. 2d 233, 268
(D.D.C. 2012) (noting plaintiff’s “mandamus claims would still be appropriately dismissed because [other asserted claims] would provide an adequate remedy for all of the policies or practices
for which the plaintiff seeks relief”), aff’d sub nom., 969 F.3d 406 (D.C. Cir. 2020). Prevailing on
his First Amendment claim would afford Souders all the relief he seeks under the Mandamus Act—
and he makes no argument to the contrary. Thus, the Court will dismiss Count III for lack of
subject-matter jurisdiction. See Burwell, 812 F.3d at 189 (holding that the requirements for mandamus relief “are jurisdictional; unless all are met, a court must dismiss the case for lack of
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jurisdiction”).
IV. Conclusion and Order
For all these reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss, ECF
No. 18, is GRANTED IN PART and DENIED IN PART. It is further ORDERED that Count
II—to the extent it asserts an independent cause of action—and Count III are DISMISSED.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 11, 2026
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