United States v. Dillard

• Citation: 884 F.Supp.2d 1177
• Decision Date: 07 August 2012
• Docket Number: Case No. 11–1098–JTM.
• Parties: UNITED STATES of America, Plaintiff, v. Angel DILLARD, Defendant.
• Court: U.S. District Court — District of Kansas

884 F.Supp.2d 1177

UNITED STATES of America, Plaintiff,

v.Angel DILLARD, Defendant.

Case No. 11–1098–JTM.

United States District Court, D. Kansas.

Aug. 7, 2012.

Aaron Fleisher, Washington, DC, Barry R. Grissom, United States Attorney's Office, Kansas City, KS, for Plaintiff.

Donald A. McKinney, McKinney Law Offices, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

This is an action by the government alleging that the defendant violated the Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248 by sending a threatening letter to Dr. Mila Means, a physician undergoing training to provide abortion services. The court has previously denied the government's request for injunctive relief (Dkt. 16), and denied Dillard's motion to dismiss the action. (Dkt. 30).

Four motions are before the court. The government has moved for a trial by jury and to dismiss Dillard's counterclaim. Dillard has moved to dismiss the action or for summary judgment, on the grounds that Dr. Means is not presently providing abortions services. Dillard also moves to amend her complaint to restate her counterclaim. For the reasons stated herein, the court grants the motions of the government, and denies the motions of the defendant.

Trial by Jury

The government has moved for a trial by jury. (Dkt. 33). The government agrees that this request was not timely under Fed.R.Civ.Pr. 38(b), which provides that a party seeking trial by jury should serve its written demand “no later than 14 days after the last pleading directed to the issue is served,” but emphasizes the strong preference accorded to trials by jury, and argues that there remains sufficient time before trial to remove any potential prejudice to the defendant.

The defendant argues that the court should deny the request, and gives particular emphasis to Judge Lungstrum's decision in School–Link Technologies v. Applied Resources, 471 F.Supp.2d 1101 (D.Kan.2007) to strike a late request for jury trial, but the court finds that case distinctive. In that case, the court stressed that the defendant had waited 18 months after the initial round of pleading before filing its request for jury trial, the defendant offered no rationale for the delay, and indeed had not even filed a response to the plaintiff's motion to strike. Most importantly, the court stressed that even with the delay, it “would ordinarily be inclined to grant a belated request for a jury trial,” but that the case involved complex claims relating to transaction involving the sale of computer hardware. 471 F.Supp.2d at 1121.

This is not a negligence case or an employment discrimination case where the jury can be fairly easily tasked with its role as the finder of facts. Instead, this is a commercial transaction which involves a multitude of mixed questions of law and fact. Many of the issues involve complex, interrelated, and potentially confusing facts, legal standards, and remedies.

Id.

The present case, by contrast, involves a delay much shorter in the length, ¹ and ultimately turns on a classic factual question of whether a given communication is a true threat of violence. Courts typically resolve the existence of a true threat as a question of fact, resolved through the use of a jury verdict. See, e.g., United States v. White, 670 F.3d 498, 512 (4th Cir.2012) (“[t]he question of whether White's communications ... were true threats ... is a jury question”).

Lastly, the defendant argues that “[t]here is probably ... no issue more emotionally charged and divisive than the abortion issue,” and that as a result the matter “is especially ill-suited for a jury.” (Dkt. 37, at 4).

The court disagrees. First, the defendant's concern may be appropriately addressed by careful voir dire and jury instruction, rather than by disregarding the strong preference for trial by jury. Notably, while numerous FACE decisions reflect the existence of a trial by jury, see e.g., Planned Parenthood of Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir.2002) (finding jury verdict supported by substantial evidence), defendant has not cited a single case holding that the issue of abortion is so incendiary that the matter must be removed from a jury's consideration. Finally, defendant identifies no prejudice arising from the delay itself.

“[A]bsent strong and compelling reasons to the contrary, a district court should exercise its discretion under Rule 39(b) and grant a jury trial.” Nissan Motor Corp. in U.S.A. v. Burciaga, 982 F.2d 408, 409 (10th Cir.1992) (per curiam). This is a high standard, and the court finds that it is not met here, notwithstanding the dilatory nature of the government's motion.

The court finds no prejudice arising from the delay. Trial is scheduled for February 5, 2013, and the parties have ample opportunity to prepare for a jury trial. No strong or compelling reason exists to justify removing from the hands of the jury the resolution of the facts of the case.

Government's Motion to Dismiss

Dillard has counterclaimed against the government, alleging that it has violated her rights under the First, Fourth, Fifth, and Fourteenth Amendments, and that it has interfered with her access to a religious institution in violation of the Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. § 248. The government has moved to dismiss Dillard's counterclaims for a lack of subject matter jurisdiction, as well as failure to state a cause of action.

The government argues that Dillard fails to cite any grounds for finding a waiver of sovereign immunity in her Answer. It contends that the counterclaim cannot be grounded on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1); 2671–2680 (2006), as that Act provides no authority for a waiver of immunity as to federal constitutional tort claims, FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), or for claims of violations of state constitutional rights. Franklin Savings v. United States, 180 F.3d 1124, 1139 (10th Cir.1999). Further, it argues, nothing in FACE itself shows any intent to waive sovereign immunity, and suggests that at most Dillard might assert for malicious prosecution, but that any such claim would be unripe prior to the resolution of this action.

The government acknowledges that while Dillard might otherwise be able to assert her non-damage claims under the Administrative Procedures Act (5 U.S.C. § 702), the counterclaim should still be dismissed because it is pled in only the most conclusory fashion. Accordingly, it argues that the counterclaim fails to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (claim must provide “more than labels and conclusions”); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)( Twombly standard requires claim contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”).

Further, to the extent that Dillard does explain her claim—that the proposed barrier zone might prevent her from attending a church within that zone—the government argues that Dillard cannot premise any claim under FACE, as the two supposedly relevant provisions are inapplicable. Section § 248(d)(1)² merely provides a rule of construction for the interpreting the acts prohibited in the operative portion of the Act; it does not authorize a separate right of action. Section § 248(a)(2) prohibitsan infringement of First Amendment freedoms “by force or threat of force or by physical obstruction.” The government has here commenced a civil action under FACE, an action which is explicitly authorized by FACE, and which is actively overseen by this court. There is no credible allegation that the United States has threatened violence against Dillard or has physically obstructed her. If the government secures its desired result, it will be through the rule of law rather than by the methods condemned in Section § 248(a)(2). Further, any claim under the First Amendment would be premature, since the court can simply tailor any resulting remedy to preserve any First Amendment rights for the plaintiff.

Dillard responds by asserting several different grounds for inferring a waiver of sovereign immunity: (1) the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb–1); (2) the Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202); (3) the Little Tucker Act (28 U.S.C. § 1346(a)(2)); (4) under 28 U.S.C. § 1331 and 1367; and (5) under the Administrative Procedures Act (5 U.S.C. § 702).³

The court finds that leave to amend should be denied, and the counterclaims dismissed. While “RFRA provides a statutory claim to individuals whose religious exercise is burdened by the federal government,” United States v. Wilgus, 638 F.3d 1274 (10th Cir.2011), it does not waive sovereign immunity as claims for monetary damages. Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir.2012); Webman v. Federal Bureau of Prisons, 441 F.3d 1022 (D.C.Cir.2006). In addition, in resolving a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA)—which contains an authorization for action seeking “appropriate relief” identical to RFRA—the Supreme Court has held the United States had not waived sovereign immunity as to claims for monetary damages, as the language “is not the unequivocal expression of state consent [to waiver] that our precedents require.” Sossamon v. Texas, ––– U.S. ––––, 131 S.Ct. 1651, 1659, 179 L.Ed.2d 700 (2011).

The defendant's reliance on Tucker Act is misplaced, since the Act

does not create any substantive right enforceable against the United States for money damages. A substantive right must be found in some other source of law, such as the Constitution, or any Act of Congress, or any regulation of an executive department. Not every claim...