Blair v. Pruitt, 11-CV-407-TCK-FHM

• Decision Date: 24 February 2012
• Docket Number: No. 11-CV-407-TCK-FHM,11-CV-407-TCK-FHM
• Parties: WILLIAM LEE BLAIR, Plaintiff, v. E. SCOTT PRUITT, Oklahoma State Attorney General, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

WILLIAM LEE BLAIR, Plaintiff,

v.E. SCOTT PRUITT, Oklahoma State Attorney General, Defendant.

No. 11-CV-407-TCK-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: February 24, 2012

OPINION AND ORDER

Before the Court is Defendant E. Scott Pruitt's Motion to Dismiss (Doc. 4), wherein Defendant moves to dismiss Plaintiff's Petition for Writ of Mandamus ("Petition") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Rule 12(b)(1)" and "Rule 12(b)(6)").¹

I. Background

On June 29, 2011, Plaintiff filed his Petition, which is premised upon the contention that Attorney General Opinion Number 09-31 ("the Attorney General Opinion") is in error. See Okla. A.G. Opin. No. 09-31, 2009 WL 4092488 (Nov. 17, 2009). The Attorney General Opinion, authored by the previous Attorney General, Drew Edmondson, was issued in response to the following three questions from Lloyd L. Fields, the then-Commissioner of the Oklahoma Department of Labor:

1. Does [Okla. Stat. tit. 40, §165.2], which provides for the payment of wages due an employee by electronic means, allow employers to compel employees to accept such payment by (1) direct deposit, or (2) payroll cards or other electronic means?

2. If employers may compel payment of wages by electronic means, would such employers still be required to give employees a written or printed itemized statement of deductions for each pay period under [Okla. Stat. tit. 40, §165.2]?

3. If employers may compel payment of wages by electronic means, would such employers still be required to issue payment in full, without discount?

2009 WL 4092488 at *1. In answering the Labor Commissioner's questions, Attorney General Edmondson considered the application of the federal Electronic Fund Transfer Act, 15 U.S.C. 1693-1693r ("EFTA"). Attorney General Edmondson concluded that the electronic payment of wages to an employee is governed by EFTA, and although EFTA permitted an employer to require an employee to receive wages by electronic payment, it could only make such a requirement "as long as the employee is allowed to choose the depository financial institution." 2009 WL 4092488 at *5.

Plaintiff's Petition contends the Attorney General Opinion is in error because:

According to [the Attorney General Opinion], the only choice the original account holder has is the choice of financial institution under 15 U.S.C. 1639k(2), 12 C.F.R.205.10 e(2). This is false. There is no deliberate omission of 15 U.S.C. 1639k(1), 12C.F.R. 205.10 e(1) which are nondiscretionary and enforces the voluntary requirement of the law and regulation as to the participation contrary to [the Attorney General Opinion].

(Pet. 1.) Plaintiff also contends that Reynolds v. Advance Alarms, Inc., 232 P.3d 907 (Okla. 2009), demonstrates that the Attorney General Opinion is in error. (Id.) Plaintiff's Petition thus seeks an order from this Court directing Defendant to: (1) reconsider the Attorney General Opinion; (2) require the Oklahoma Department of Labor to "immediately implemen[t]" unidentified changes, (Pet. 1); (3) "[i]nvestigate and prosecute all related violations of [the EFTA] by all governmental and business entities which implemented mandatory direct deposit," (id..); (4) ensure "compliance to the voluntary nature of the law and regulation," (id.); (5) "[m]ake restitution in those cases arising out of the inequity created by the misrepresentation," (id.); and (6) "review all opinions presented by former Attorney General [Drew Edmondson]," (id.).

Defendant has moved to dismiss Plaintiff's Petition, arguing that: (1) Plaintiff lacks constitutional standing; (2) Plaintiff's Petition does not state a claim for relief; (3) Defendant enjoys sovereign immunity from suit; and (4) Plaintiff has failed to exhaust administrative remedies and has failed to plead facts entitling him to a Writ of Mandamus. Because the Court finds thatPlaintiff's Petition should be dismissed for lack of standing, it will not address Defendant's remaining arguments.

II. Rule 12(b)(1) Standard

Federal courts are courts of limited jurisdiction and may exercise jurisdiction only when specifically authorized to do so. Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). "A court lacking jurisdiction must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 280 (D. Kan. 1995). The party seeking to invoke a federal court's jurisdiction sustains the burden of establishing that such jurisdiction is proper. Winnebago Tribe of Neb. v. Kline, 297 F. Supp. 2d 1291, 1299 (D. Kan. 2004). When federal jurisdiction is challenged, the plaintiff bears the burden of showing why the case should not be dismissed. Id. In this case, Defendant argues, inter alia, that the Court lacks subject matter jurisdiction because Plaintiff does not have standing.

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take one of two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). "First, a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction." Id. "In reviewing a facial attack, the district court must accept the allegations in the complaint as true." Id. "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based." Id. "In reviewing a factual attack, a court has 'wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.'" Id. (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995)). "In the course of a factual attack under Rule 12(b)(1), a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion." Stuart, 271 F.3d at 1225. In this case, Defendant's motion to dismiss for lack of standingis a facial attack on Plaintiff's Petition, not a factual one, so the Court accepts the allegations in the Petition as true. See Onyx Prop. LLC v. Bd. of Cnty. Comm'rs of Elbert Cnty., No. 10-cv-01482-LTB-KLM, 2011 WL 588097, at *2 (D. Colo. Feb. 9, 2011) (treating motion to dismiss for lack of standing as facial attack on the complaint).

III. Discussion

Defendant's Motion to Dismiss is based, in part, on the contention that Plaintiff lacks constitutional standing to bring suit. To establish constitutional standing under Article III of the United States Constitution, a plaintiff bears the burden of demonstrating:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). When a court makes an inquiry as to a party's standing, the court must accept as true all material allegations of the complaint, and any other particularized allegations of fact in affidavits or in amendments to the complaint. Osage Nation v. Okla. ex rel. Okla. Tax Comm'n, 597 F. Supp. 2d 1250, 1253 (N.D. Okla. 2009) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). "If, after this opportunity [to present facts to support standing], the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." Osage Nation, 597 F. Supp. 2d at 1253 (citing Warth, 422 U.S. at 501-02).

The Court agrees with Defendant that Plaintiff's Petition fails to include any facts demonstrating the elements required for standing. Specifically, the Petition is devoid of facts from which to infer that Plaintiff has been injured or harmed by the Attorney General Opinion. Although Plaintiff's Petition evidences disagreement with the Attorney General Opini...