Ass'n of Am. Physicians & Surgeons v. Schiff

• Decision Date: 02 February 2021
• Docket Number: Civil Action No. 20-106 (RC)
• Citation: 518 F.Supp.3d 505
• Parties: ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, et al., Plaintiffs, v. Adam SCHIFF, in his individual capacity and his official capacity as a Member of Congress for the 28th Congressional District of California, Defendant.
• Court: U.S. District Court — District of Columbia

518 F.Supp.3d 505

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, et al., Plaintiffs,

v.Adam SCHIFF, in his individual capacity and his official capacity as a Member of Congress for the 28th Congressional District of California, Defendant.

Civil Action No. 20-106 (RC)

United States District Court, District of Columbia.

Signed February 2, 2021

Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, for Plaintiffs.

Douglas N. Letter, Sarah Edith Clouse, Todd Barry Tatelman, Brooks McKinly Hanner, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this case the Association of American Physicians and Surgeons ("AAPS") and Katarina Verrelli (together "Plaintiffs") allege that Congressman Adam Schiff violated their First Amendment rights and abused his power as a Member of Congress. Plaintiffs claim that Congressman Schiff used his position to coerce technology companies to discriminate against AAPS based on the content of AAPS's speech related to vaccines. This discrimination, they contend, limited Ms. Verrilli's ability—and the ability of those similarly situated—to conveniently access information about vaccines. According to Plaintiffs, Congressman Schiff made public statements that all but forced various technology companies, including Google, Facebook, Amazon, and Twitter, to interfere with and burden their First Amendment rights. Congressman Schiff has moved to dismiss, arguing that Plaintiffs fail to clear several jurisdictional hurdles and, in any event, fail to state a plausible claim to relief. For the reasons set forth below, the Court finds that Plaintiffs lack Article III standing and that their claims are barred by the Speech or Debate Clause of the U.S. Constitution. Accordingly, the Court grants Congressman Schiff's motion to dismiss.

II. BACKGROUND

According to the Amended Complaint, AAPS "is a not-for profit membership organization ... founded in 1943 to preserve the practice of private medicine, ethical medicine, and the patient-physician relationship." Am. Compl. ¶ 3, ECF No. 17. AAPS is "a publisher of information related to the medical field" and has members who are "physicians nationwide in nearly all types of practices and specialties" in addition to members who "do not practice medicine." Id. According to Plaintiffs, "AAPS and its physician members are not ‘anti-vaccine’ but rather favor informed consent based on disclosure of all relevant legal, medical, and economic information." Id. AAPS has published a number of articles on vaccines for well over a decade, including several more recent articles published in early 2019. See id. ¶¶ 60–61. Ms. Verrilli is a resident of New York, id. ¶ 4, who "has long been interested in accessing full information about vaccination

and using the internet for accessing information about safety and efficacy of vaccination," id. ¶ 62.

Plaintiffs take issue with several actions taken by Congressman Schiff. The Court will summarize those actions in chronological order. First, on February 14, 2019, Congressman Schiff sent letters to Google and Facebook "to encourage them to use their platforms to prevent what [Congressman] Schiff asserted to be inaccurate information on vaccines." Id. ¶ 68. The letters requested information about what actions the companies currently take to address misinformation about vaccines on their platforms. See id. ; see e.g. , Letter from Hon. Adam B. Schiff to Sundar Pichai, Chief Executive Officer, Google (Feb. 14, 2019), https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-facebook-regarding-anti-vaccine-misinformation. Second, on March 1, 2019, Congressman Schiff sent a letter to Amazon for what Plaintiffs allege was the same purpose. See Am. Compl. ¶ 69. The letter requested the same information as the letters sent on February 14. See id. ; see also Letter from Hon. Adam B. Schiff to Jeffrey Bezos, Chief Executive Officer, Amazon (Mar. 1, 2019) ("Letter to Bezos"), https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-amazon-ceo-regarding-anti-vaccine-misinformation. Third, on March 7, 2019, Congressman Schiff issued a press release that included the responses to his letters from personnel from Google and Facebook. See Am. Compl. ¶ 71. Finally, on June 13, 2019, at a hearing of the House Permanent Select Committee on Intelligence, Plaintiffs claim that Congressman Schiff, who chairs the committee, "challenged the immunity that interactive computer services have under Section 230 of the [Communication Decency Act of 1996] and asked panelists if Congress should make changes to that immunity." Id. ¶ 65. Plaintiffs allege that Congressman Schiff's statements were intended to put the technology companies "on notice that they would need to comply with Congressman Schiff's position or risk his undertaking legislative action against [ Section 230 ]." Id. ¶ 66. None of Congressman Schiff's public statements specifically mentioned AAPS.

Plaintiffs claim that a number of technology companies took several adverse actions against them because of Congressman Schiff's statements. The Court summarizes these actions in chronological order as well. First, on March 1, 2019, "Amazon removed from its platform for streaming videos the popular videos Vaxxed and Shoot ‘Em Up: The Truth About Vaccines. "¹ Id. ¶ 72. Second, on Facebook, "pursuant to new restrictions announced March 7, 2019, and released in September of 2019, a search for the URL to an AAPS article on vaccines now produces search results containing two World Health Organization links, a National Institutes of Health link, and a link for the Centers for Disease Control and Prevention." Id. ¶ 76. Third, "in May of 2019, Twitter ... now includes a pro-government disclaimer² placed above search results for an AAPS article on vaccine mandates." Id. ¶ 74. Fourth, on August 9, 2019, "Amazon suddenly announced AAPS's termination from the Amazon Associates Program."³ Id. ¶ 73. Finally, though they do not specify when this occurred, Plaintiffs claim that "[b]ecause of the dominant market power of Google,⁴ Facebook, Amazon, and Twitter, their actions against AAPS's vaccine-related materials resulting from [Congressman] Schiff's coercion has significantly depressed the internet traffic to the AAPS website." Id. ¶ 78.

Plaintiffs allege that Congressman Schiff misused the power of his office to coerce technology companies to discriminate against AAPS. Id. ¶ 88. They argue that he abused his position "by making an implied threat" against technology companies, which forced them to target AAPS based on the content of its publications. Id. ¶ 92–93. Congressman Schiff has moved to dismiss the Amended Complaint. See Def.’s Mot. Dismiss, ECF No. 19; Def.’s Mem. Supp. Mot. Dismiss ("Def.’s Mem."), ECF No. 19-1.⁵ Congressman Schiff argues that Plaintiffs lack standing, that the claims are precluded by the Speech or Debate Clause, that the claims are barred by the doctrine of sovereign immunity, that the claims are not cognizable under the Federal Tort Claims Act, and that the Amended Complaint fails to state a proper claim to relief. See generally Def.’s Mem. Plaintiffs put forth arguments that this Court does have jurisdiction to consider their claims and that the facts alleged plausibly state a claim to relief that should survive a motion to dismiss. See generally Pls.’ Mem. Supp. Opp'n Mot. Dismiss ("Pls.’ Opp'n"), ECF No. 21-2. Congressman Schiff's motion is ripe for decision.

III. LEGAL STANDARD

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts must dismiss any claim over which they lack subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(6), by contrast, requires courts to dismiss any claim upon which relief could not be granted even if jurisdiction was proper. Fed. R. Civ. P. 12(b)(6). When these two rules are invoked together, as they are here, a court must first address the issues encompassed by Rule 12(b)(1), as those issues implicate the court's ability to hear the case at all. See, e.g. , Schmidt v. U.S. Capitol Police Bd. , 826 F. Supp. 2d 59, 64–65 (D.D.C. 2011).

The burden of establishing subject matter jurisdiction "rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). In deciding whether the plaintiff has met this burden, courts " ‘accept as true all of the factual allegations contained in the complaint’ and draw all reasonable inferences" in the plaintiff's favor. Schmidt , 826 F. Supp. 2d at 65 (quoting Brown v. District of Columbia , 514 F.3d 1279, 1283 (D.C. Cir. 2008) ). However, courts need not "accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Gregorio v. Hoover , 238 F. Supp. 3d 37, 44 (D.D.C. 2017) (quoting Rann v. Chao , 154 F. Supp. 2d 61, 64 (D.D.C. 2001) ). Moreover, the allegations in the complaint " ‘bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 ). Indeed, because courts "have an independent obligation to determine whether subject-matter jurisdiction exists," Arbaugh v. Y&H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), they are not limited to the arguments raised by the parties when considering a Rule 12(b)(1) motion, and they are free to consider materials outside the pleadings, see, e.g. , Jerome Stevens Pharms. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) ; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the...