Brass v. Biden

• Decision Date: 22 September 2022
• Docket Number: Civil Action 21-cv-02778-CNS-MEH
• Parties: BRIAN BRASS, Plaintiff, v. JOSEPH BIDEN, President of the United States, and GINA M. RAIMONDO, Secretary of the U.S. Department of Commerce, Defendants.
• Court: U.S. District Court — District of Colorado

BRIAN BRASS, Plaintiff,
v.
JOSEPH BIDEN, President of the United States, and GINA M. RAIMONDO, Secretary of the U.S. Department of Commerce, Defendants.

Civil Action No. 21-cv-02778-CNS-MEH

United States District Court, D. Colorado

September 22, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendants' Motion to Dismiss. ECF 25. Plaintiff brings this lawsuit against Defendants alleging violations of his constitutional rights under the Fourth Amendment. Defendants move for dismissal on the basis of Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Motion is fully briefed, and the Court finds that oral argument will not materially assist in its adjudication. The Court respectfully recommends granting the Motion.

BACKGROUND

For the purposes of this recommendation, the Court accepts as true the factual allegations- as opposed to any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in his Complaint. ECF 1; see generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (accepting as true a plaintiff's factual allegations for purposes of Fed.R.Civ.P. 12(b)(6) analysis).

The subject of Plaintiff's lawsuit is a Presidential Executive Order, titled Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, No. 14,043, 86 Fed.Reg. 50989

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(Sept. 9, 2021) (“EO 14043”). President Biden signed EO 14043 on September 9, 2021. Id. It requires each agency to “implement, to the extent consistent with applicable law, a program to require COVID vaccination for all of its Federal employees, with exceptions only as required by law.” Id. Plaintiff is a federal employee at the National Institute of Standards and Technology, or NIST, an agency under the U.S. Department of Commerce, of which Defendant Gina Raimondo is the Secretary. ECF 35 at 2. Plaintiff has submitted an exemption request from EO 14043's vaccine mandate. ECF 25-1. While awaiting a decision on this request, Plaintiff will not be subject to adverse action for not receiving the vaccine. Id.

Plaintiff challenges EO 14043 for three reasons. ECF 1. First, he asserts EO 14043 lacks any constitutional or statutory authority. Id. at 3. Second, he claims EO 14043 violates his Fourth Amendment right to be secure in his person. Id. at 3-4. Finally, he objects to EO 14043 because he is “subject to or threatened with disciplinary action[]. . . includ[ing] termination of employment.” Id. at 4. Plaintiff asks this Court to invalidate EO 14043. Id. at 4-5.

The Court also includes for consideration Plaintiff's filings of ECF 51, 53, 59, 62, and 64. The Court does so for the sake of thoroughness to the extent they lend insight or additional information about Plaintiff's circumstances and claim for relief.

LEGAL STANDARDS

I. Fed.R.Civ.P. 12(b)(1)

Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing that federal courts are courts of limited jurisdiction and may only exercise jurisdiction when

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specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Id. (quoting Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Pueblo of Jemez, 790 F.3d at 1151. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint a district court must accept the allegations in the complaint as true

Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present Motion is a facial attack on subject matter jurisdiction; therefore, the Court will accept the truthfulness of the Complaint's factual allegations.

II. Fed.R.Civ.P. 12(b)(6)

The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”

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Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).

III. Treatment of a Pro Se Plaintiff's Complaint

A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. U.S., 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).

ANALYSIS

Plaintiff leaves unclear what legal authority permits him to sue Defendants. It appears that he is attempting to bring a claim directly under the United States Constitution, specifically the

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Fourth Amendment. Defendants raise three issues in their Motion. ECF 25. First, the Court...