United States District Court, M.D. Tennessee, Nashville Division
February 18, 2015
LOUIE E. JOHNSTON, JR., Plaintiff,
Judge Aleta A. Trauger LUCIEN C. GEISE, Executive Director, Tennessee General Assembly's Fiscal Review Commission, and JOHN DOE(S), Defendants
Louie E. Johnston, Jr., Plaintiff, Pro se, Nashville, TN.
For Lucien D. Geise, Defendant: Heather Cairns Ross, LEAD ATTORNEY, Tennessee Attorney General's Office, Nashville, TN.
MEMORANDUM AND ORDER
ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE.
On December 16, 2014, the Magistrate Judge issued a Report and Recommendation (" R& R" ) (Docket No. 39), which recommends that (1) the Motion to Dismiss (Docket No. 20) filed by Defendant Lucien C. Geise (" Geise" ) be granted, and (2) the two pending Motions for Temporary Restraining Order filed by pro se Plaintiff Louie E. Johnston, Jr. (" Johnston" ) be terminated as moot. Johnston has filed Objections (Docket No. 40), to which Geise has filed a Response in opposition. (Docket No. 41). For the following reasons, the court will overrule the Objections, accept and adopt the R& R, grant the Motion to Dismiss, and terminate the Motions for Temporary Restraining Order as moot.
When a magistrate judge issues a report and recommendation regarding a dispositive pretrial matter, the district court must review de novo any portion of the report and recommendation to which a specific objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the report in general is not sufficient and will result in waiver of further review. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
FACTS AND PROCEDURAL BACKGROUND
Johnston is a Tennessee resident. He describes himself as a " Constitutionalist Author/Historian who invested substantial personal time and resources since 2010 working with hundreds of [s]tate [l]egislators in 28 [s]tates to author [l]egslation involving [d]ual [s]overeignty issues." (Docket No. 1 at p. 1.) Johnston claims to have a " Constitutionalist expert reputation with [l]egislators." ( Id.) Johnston has published books entitled " THE Christian Nation Revolution, Regeneration" and " States are Sovereign . . . sometimes they have to act like it" that together include a number of proposed state laws based upon theories of state resistance to federal authority. ( Id. at pp. 1, 11-12.) Johnston claims to have spoken to " citizens groups in multiple states," to have appeared on " radio broadcasts nationally," and to have appeared on " television programs broadcast on multiple networks, including Fox," to speak about " God and [c]ountry, Constitutionalist content." ( Id.) Johnston is not in any way a member of, or employed by, any branch of the Tennessee state government. ( Id., passim )
Geise is the Executive Director of the Fiscal Review Committee (" FRC" ) of the Tennessee General Assembly. The FRC is responsible for certifying " fiscal notes" on all general bills in Tennessee. A fiscal note is a budgeting tool that estimates, in dollars where possible, the anticipated change in revenue, expenditures, or fiscal liability under the provisions of a proposed bill. Tenn. Code Ann. § 3-2-107. Stated differently, a fiscal note sets forth an estimate of the impact of a proposed bill on the state budget. After a fiscal note is prepared by FRC staff via consultation with various executive departments, Geise approves and certifies the accuracy of the information contained therein and publishes the fiscal note to bill sponsors and general public. (Docket No. 1 at p. 2.)
Johnston authored a piece of legislation intended to " codify [s]tate grievances regarding 10 specific unconstitutional elements of the [Patient Protection and Affordable Care Act], aka Obamacare, perceived harmful to [s]tate citizens." (Docket No. 1 at p. 8.) The legislation achieved its goals by means of " state interposition," which is described by Johnston as " an honorable legal resistance to perceived [f]ederal tyranny" and " not yielding to Federal encroachment or tyranny." ( Id.) Under the theory of interposition, a state " interposes" itself between the federal government and the people of that state by taking action to prevent the implementation of a federal law that the state considers unconstitutional and also criminalizes attempts to interfere with the state's interposition efforts. ( Id. at p. 8.) Johnston's
legislation was intended to prevent implementation of the Patient Protection and Affordable Care Act (" ACA" ) in Tennessee by using state interposition to declare the ACA unconstitutional and to mandate state penalties for anyone who interfered with Tennessee's refusal to comply with the ACA. ( Id.)
Johnston's proposed legislation was introduced in the Tennessee Senate by State Senator Jim Summerville (SB2450) and in the Tennessee House by Representative Susan Lynn (HB2440). ( Id. at p. 7.) The bills did not refer to Johnston. ( See Docket No. 1, Exs. 1, 2, 22, 23.) The Senate version of the bill was referred to the Senate Commerce and Labor Committee (" CLC" ). ( Id.) The FRC prepared a fiscal note (" Fiscal Note" ) for the interposition bill by consulting with, inter alia, the Tennessee Department of Health, TennCare, and the Tennessee Benefits Administration (Finance and Commerce). ( Id. at p. 9 and Exs. 11-18.) The Fiscal Note explained that the conclusions contained therein were premised upon a number of unknown factors, potential implications and possible occurrences, and, therefore, the Fiscal Note stated that the " exact fiscal impact [of the interposition bill] cannot be determined."  (Docket No 20, Ex. 1) The Fiscal Note nevertheless sets forth an estimate of (1) federal funds which could be jeopardized, (2) potential federal penalties, (3) potential reimbursements that may be owed by Tennessee, (4) potential lost cost savings to Tennessee, and (5) potential impacts to commerce in Tennessee, which together exceeded thirty-two billion dollars. ( Id.; Docket No. 1 at 14-18.) As such, the FRC's thirty-two billion dollar estimate represented an amount that might be reached if the federal government were to find Tennessee to be noncompliant with the ACA based on state interposition, and Tennessee were to suffer all potential negative economic events as a result. ( Id.) Geise certified the accuracy of the Fiscal Note. ( Id. at p. 8.)
Johnston disagreed with the estimate contained in the Fiscal Note. Johnston believed that state interposition by Tennessee was " honorable" and " legal" and that Geise was ignoring " [s]tate [i]nterposition to resolve specific perceived illegal acts of the [f]ederal [g]overnment as a basic Constitutional right." ( Id. at p. 21.) Johnston further believed that no financial penalties or losses were likely, given various Tennessee laws and court rulings. ( Id.) In short, Johnston believed Geise (1) " [knew] better," (2) had " crossed the line personally," (3) had submitted a " fraudulent" Fiscal Note to deprive Tennessee of " the Republican form of government guaranteed by the U.S. Constitution in Article IV, Section 4," and (4) was " approv[ing] the [f]ederal invasion" of Tennessee. ( Id. at pp. 9-10, 21.) Johnston advised Geise and the members of the CLC of the perceived errors in the Fiscal Note, but Geise did not correct it. ( Id. at pp. 3, 5, 9-10, 18, 21-22.) Johnston and Geise both testified before the CLC. ( Id. at pp. 9-10, 15.) Certain Senators called the Fiscal Note " ridiculous." ( Id. at p. 15.) Johnston's bill failed in the CLC. ( Id. at p. 3.)
On July 3, 2014, Johnston filed his Complaint in this court, seeking compensatory and punitive damages under various federal constitutional provisions (Article IV, Sec. 4; and the First, Ninth, Tenth and Fourteenth Amendments) and federal statutes (18 U.S.C. § § 1018, 1343; 28 U.S.C. § § 1343, 4101; 42 U.S.C. § § 1983, 1985-86; 47 U.S.C. § 230), as well as under Tennessee constitutional provisions and statutes, alleging civil rights violations, fraud, and defamation. ( Id. at pp. 6, 13, 17-44, 54-57.) Johnston also seeks immediate injunctive relief to prevent Geise from certifying fiscal notes based on " possibilities or contingencies." ( Id. at p. 54.) The court referred this case to the Magistrate Judge on July 15, 2014. (Docket No. 7.) On August 5, 2014, Geise filed the Motion to Dismiss. (Docket No. 20.) On August 27, 2014, Johnston filed a Response. (Docket No. 30.) The Magistrate Judge issued the R& R on December 16, 2014. (Docket No. 39.) On December 30, 2014, Johnston filed Objections. (Docket No. 40.) On January 5, 2015, Geise filed a Response, incorporating all arguments contained in the Motion to Dismiss. (Docket No. 41.)
In addition, Johnston has filed two Motions for Temporary Restraining Order in this action. The first was contemporaneously filed with the Complaint on July 3, 2014. (Docket No. 2.) In it, Johnston sought (1) the same injunctive relief requested in the Complaint concerning certification of future fiscal notes based on " possibilities or contingencies," and (2) removal of any such information from the Fiscal Note. ( Id.) The second, filed on August 27, 2014, is duplicative of the first. (Docket No. 31.)
" Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack or a factual attack." GentekBldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests subject matter jurisdiction factually, such as questioning whether a party has standing to sue, the court must " weigh the evidence" in order to determine whether it has power to hear the case. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); IPXpharma, LLC v. Millennium Pharms., Inc., No. 3:14-cv-1545, 2014 WL 6977662, at *4 (M.D. Tenn. Dec. 9, 2014). When the facts are disputed, " [t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary." Cooley v. United States, 791 F.Supp. 1294, 1298 (E.D. Tenn. 1992), aff'd sub nom., Myers v. United States, 17 F.3d 890 (6th Cir. 1994). The court can do so without converting the motion into a motion for summary judgment. Id. When this occurs, no presumptive truth applies to a plaintiff' s factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In the end, the party asserting jurisdiction always bears the burden of establishing jurisdiction. Sun Entm't Corp. v. Music World Music, LLC, No. 3:1100625, 2012 WL 2812681, at *1 (M.D. Tenn. July 10, 2012).
MOTION TO DISMISS
I. The Motion to Dismiss and the R& R
Geise makes several arguments in support of the Motion to Dismiss. First, Geise contends that the Eleventh Amendment and the doctrine of sovereign immunity bar Johnston's claims against Geise in his official capacity as a state government official. (Docket No. 21 at pp. 6-7.) Second, Geise argues that Johnston's federal claims against Geise in his individual capacity
must be dismissed because there is no case or controversy to be adjudicated. ( Id. at pp. 5-6, 1112.) More specifically, Geise contends that Johnston has no standing to bring his individual claims - for money damages or injunctive relief -- because Johnston fails to allege either any (1) action taken against him or (2) personal injury or damage. ( Id.) Furthermore, Geise argues that Johnston fails to state any substantive claim under federal or state statutes or state common law theories of liability. ( Id. at pp. 7-10.)
Johnston's Response to the Motion to Dismiss begins with a lengthy discussion of the concept of state interposition and its proposed application in Tennessee. (Docket No. 30 at pp. 1-5.) Johnston repeatedly accuses Geise of " fraudulent" activities in connection with the Fiscal Note, and he suggests that the core issues at the motion to dismiss stage are Geise's " incontrovertible" malicious acts. ( Id. at pp. 6-10.) Johnston's Response is at times incomprehensible, and he repeatedly claims to have conclusively " proved" his case. ( Id. at pp. 19.) Johnston fails to address any of the primary legal arguments made in support of the Motion to Dismiss. ( Id.)
In the R& R, the Magistrate Judge found that, to the extent plaintiff brings claims against Geise in his official capacity, such suits are barred by the Eleventh Amendment and the doctrine of sovereign immunity. (Docket No. 39 at p. 7.) Regarding claims against Geise in his individual capacity, the Magistrate Judge found that there is no subject matter jurisdiction because Johnston does not meet the minimum constitutional requirements of standing. ( Id. at pp. 3-5.) The Magistrate Judge concluded that most of the injuries alleged by Johnston are insufficient to satisfy the existence of an injury-in-fact, primarily because Johnston only alleges a generalized grievance about government that is shared by other citizens of Tennessee. ( Id. at p. 4.) The Magistrate Judge further found that the allegation that the Fiscal Note will injure Johnston's efforts to get interposition bills passed in other states is too attenuated and speculative to establish standing. ( Id. at pp. 4-5.) The Magistrate Judge also concluded that the loss of personal investments of time and effort spent educating Tennessee legislators as to interposition is an insufficient injury, because the passage of a bill is not a legally protected interest. ( Id. at p. 5.)
The Magistrate Judge discussed two other alleged injuries -- reputational damage and loss of donations and other support -- and concluded that, even if these qualified as injuries-in-fact, Johnston fails to allege facts sufficient to establish the causation and redressability aspects of standing. ( Id. at p. 6.) The Magistrate Judge found this to be true because (1) the Complaint does not allege that the harm to Johnston's reputation or decreases in support were caused by the purportedly " fraudulent" aspects of the Fiscal Note, and (2) even if causation were assumed, Johnston cannot show how a favorable decision from the court would redress his injury because the interposition bill's passage would depend upon the actions of other parties. ( Id.) Finally, the Magistrate Judge found that, even if Johnston had a redressable past injury, Johnston's request for injunctive relief could not survive either (1) sovereign immunity or (2) a lack of standing resulting from an absence
of injury-in-fact concerning future fiscal notes. ( Id. at p. 8.)
Accordingly, the Magistrate Judge recommended that (1) the Motion to Dismiss be granted under Rule 12(b)(1), (2) all federal claims be dismissed for lack of standing, (3) jurisdiction over Johnston's remaining state law claims be declined, and (4) the Motions for Temporary Restraining Order be terminated as moot. ( Id. at p. 9.)
II. The Objections
The Objections are far from a model of clarity. Because the plaintiff is proceeding pro se, the court liberally construes the Objections as follows.
Johnston generally objects to the Magistrate Judge's conclusions concerning standing. (Docket No. 40 at pp. 1-3.) Johnston argues that he had demonstrated injury-in-fact because he has been " denied due process to present his [b]ill for fair consideration by the state legislature, to fully vet the [b]ill in due process, to obtain debate, harness the intellectual capital of all Tennessee [s]tate [legislators, to produce the strongest [b]ill fully vetted to the [s]tate [l]egislators in both [h]ouses for their votes of approval or disapproval accordingly." ( Id. at pp. 1-2.) Johnston contends that this injury-in-fact is " in no way diminished by the collateral injury to all citizens of Tennessee." ( Id. at p. 2.) In addition, Johnston argues that both (1) " loss of book sales" and " speaking engagement credibility," and (2) lost value of " considerable personal investments" in advocating for the interposition bill, are sufficient injuries to confer standing. ( Id.)
Johnston also objects to the findings of the Magistrate Judge as to lack of causation and redressability. ( Id.) Johnston contends that his alleged injuries are " caused solely by the denial of due process and violation of Constitution and [c]ivil [r]ights due solely to the [fraudulent Fiscal Note caused solely by [Geise] personally." ( Id.) As to redressability, Johnston makes contradictory arguments. On the one hand, Johnston argues that his claims " do not hinge whatsoever on passage of a Bill." ( Id.) On the other hand, Johnston contends that, upon his victory in this lawsuit, Tennessee legislators will " beyond any reasonable doubt" pass the interposition bill, thereby " permitting] redressability of injury." ( Id. at 4.)
Johnston also takes issue with the Magistrate Judge's observation that it is difficult to find any reputational injury to Johnston. Johnston contends that the Magistrate Judge " ignored totally the numerous, incontrovertible, unchallenged, [sic] documentation specifically in Plaintiff Exhibits PROVING [Geise's] [fraudulent Fiscal Note in writing to [Geise] and openly copied to every member of the [CLC], who openly agreed on video that the Fiscal Notes had no other purpose than to kill the [b]ill, denying Plaintiff due process as stated previously herein ab initio, ad infinitum."  ( Id. at p. 10.)
In Response to the Objections, Geise directs the court to his prior arguments in support of the Motion to Dismiss and in opposition to the Motions for Temporary Restraining Order. ( See Docket No. 41.)
Based upon the Objections, the court has independently considered the pending Motion to Dismiss and evaluated whether the allegations of the Complaint are sufficient to establish standing.
Article III of the Constitution gives the federal courts jurisdiction only over " cases and controversies," of which the component of standing is an " essential and unchanging part." Lujan v. Defenders of Wildlife, 504 U.S. 555');">504 U.S. 555, 560, 112 S.Ct. 2130');">112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party seeking to invoke the court's jurisdiction must establish the necessary standing to sue before the court may consider the merits of that party's cause of action. Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). A plaintiff is required to show standing to sue at each stage in the litigation. Lujan, 504 U.S. at 561-62. The standing inquiry invokes both constitutional and prudential limitations on federal court jurisdiction. Id. at 573-74; Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing under the Constitution, a plaintiff must show that: (1) he 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 the relief requested. Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 2014 WL 4357498, at *3 (6th Cir. Sept. 4, 2014) (citing Lujan, 504 U.S. at 560-61; Klein v. U.S. Dep't of Energy, 753 F.3d 576, 579 (6th Cir. 2014)); see also Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). These mandatory minimum constitutional requirements -- commonly known as (1) injury-in-fact, (2) causation, and (3) redressability -- apply in every case.
The Supreme Court has also held that, based upon co-extensive prudential standing principles, an alleged injury that is " a generalized grievance shared in substantially equal measure by all or a large class of citizens" does not constitute a specific injury-in-fact that warrants the exercise of a federal court's subject matter jurisdiction. Warth, 422 U.S. at 499. Thus, " a plaintiff raising only a generally available grievance about government . . . and seeking relief that no more directly and tangibly benefits him than it does the public at large . . . does
not state [an injury-in-fact sufficient to establish] an Article III case or controversy." Lujan, 504 U.S. at 573-74; see also id. (collecting numerous cases dismissed by the Supreme Court based on the insufficiency of citizen or taxpayer standing to confer jurisdiction over lawsuits generally alleging improper or unconstitutional governance and noting that " the right, possessed by every citizen, to require that the government be administered according to law and that public moneys not be wasted" does not alone entitle a private citizen to institute an action in the federal courts); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (noting the general prohibition on a litigant's raising another person's legal rights and the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches of government); Mass v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (noting that " standing cannot be predicated upon an injury the plaintiff suffers in some indefinite way in common with people generally" ); Tyler v. Judges of Court of Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 45 L.Ed. 252 (1900) ( " Even in a proceeding which he prosecutes for the benefit of the public, the plaintiff must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens." ); Fialka-Feldman v. Oakland Univ. Bd. Of Trustees, 639 F.3d 711, 715 (6th Cir. 2011) (observing that matters of public interest are the arena in which the federal court must be most vigilant about the " case or controversy" requirement) (citing Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L.Rev. 1002, 1007 (1924) (describing advisory opinions as " ghosts that slay" )); Hooker v. Fed. Election Comm'n, 21 Fed.Appx. 402, 406 (6th Cir. 2001) (finding general claims regarding the election process to be an apt example of the type of general, non-concrete allegations that the Supreme Court adverted to in Warth ); Hooker v. Fed. Election Comm'n, 92 F.Supp.2d 740, 742-43 (M.D. Tenn. 2000) (citing Warth and noting that limitations on the litigation of generalized grievances are necessary because otherwise " the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights" ); Hooker v. Sasser, 893 F.Supp. 764, 767-68 (M.D. Tenn. 1995) (where alleged injuries were common to all state voters, finding that there was insufficient factual specificity to allow the court to make a decision and redress those injuries and that doing so would constitute interference with the legislative branch of government).
Applying these principles, the court finds that Johnston's alleged injuries fail to meet the constitutional and prudential requirements necessary to establish standing. Johnston does not allege any action taken against him. Neither the interposition bill considered by the Tennessee legislature nor the Fiscal Note make any reference to Johnston. As such, Johnston is not himself a particular victim of the actions of which he complains. Rather, the alleged violations are generalized grievances concerning governmental actions purportedly taken to the detriment of the Tennessee citizenry. Indeed, there is no allegation sufficient to establish that the primary relief sought by Johnston -- forcing Geise to correct the Fiscal Note -- would address an injury to Johnston, as opposed to one of the general public.
Moreover, the Complaint as a whole fundamentally concerns the general legislative process in Tennessee. Johnston's core allegation -- repeated many times throughout the Complaint and the Objections -- is that
Geise violated due process by certifying a fraudulent Fiscal Note that caused the failure of Johnston's interposition bill (the passage of which would have purportedly been a benefit to the citizens of Tennessee). This is a general complaint of disappointment about the legislative process in Tennessee that encompasses the operation of the FRC, the process for the issuance of fiscal notes, and the role the Fiscal Note played in the consideration of certain proposed legislation by Tennessee legislators. In sum, Johnston seeks to force Geise to administer the laws in a particular manner in the hope of enabling the Tennessee legislature to pass bills in a particular manner. While attempting to remedy general grievances involving the consideration of citizen-authored bills in this way may be admirable, it does not confer standing for purposes of subject-matter jurisdiction. To the contrary, Johnston's complaints raise precisely the type of public interest issues (whether meritorious or not) that are best resolved by the Tennessee legislature, or by Tennessee voters, as opposed to becoming the subject of an advisory opinion from a federal court.
Furthermore, the fact that Johnston may have invested personal resources into working for passage of the interposition bill does not transform a fundamentally generalized grievance into a personal one. Because passage of a bill is subject to the whims of the political process, that alone is not a protected interest that can be the subject of an injury-in-fact. Indeed, Johnston has no particular right to passage of the interposition bill, just as other citizens have no particular right to the passage of other legislation. The failure of a piece of legislation does not, by itself, cause an injury that confers standing on supporters of that legislation.
The court also notes that, even if Johnston's lost investments of time and energy were somehow to constitute an injury-in-fact, Johnston could not overcome a lack of redressability. Redressability is lacking where it depends on " the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." Lujan, 504 U.S. at 562. Here, the interposition bill authored by Johnston had been introduced by legislators under their own names. The bill was under consideration by legislators in the CLC. Even if the court were to order Geise to correct the Fiscal Note, the future of the interposition bill would be in the hands of independent legislators not before this court - individuals whose actions the court cannot control or predict. There is no guarantee that the interposition bill would pass out of committee, pass one or both houses of the Tennessee legislature, or be signed into law by the Tennessee governor. But whatever the eventual outcome, the future of the bill would " hinge on the response . . . of others."  Id.
The court agrees with the Magistrate Judge that only two alleged injuries-in-fact require additional discussion. Specifically, Johnston alleges that Geise's certification of the " fraudulent" Fiscal Note caused Johnston to suffer (1) injury to his reputation and (2) loss of donations or other financial support ( e.g., book sales). (See Docket No. 1, pp. 11-12.) Setting aside the fact that these allegations are of the most vague nature, and assuming them to be true for purposes of the Motion to Dismiss, these allegations do not meet the causation requirement of standing. Johnston
does not sufficiently allege how the issuance of a purportedly fraudulent Fiscal Note by Geise to the members of the CLC has had a negative impact on Johnston's reputation as a constitutional expert. Likewise, Johnston does not sufficiently allege how (or why) the fraudulent Fiscal Note caused Johnston (as opposed to, e.g., Tennessee legislators who voted on the interposition bill) to receive less financial support. Indeed, Johnston describes himself as a successful constitutionalist and historian who continues to engage in attempts to pass interposition bills in twenty-eight states and who has sold books and made media appearances based on his overall body of work, as opposed to any actions specific to Tennessee. Put simply, Johnston offers insufficient factual allegations as to how Geise's actions caused him any personal loss of reputation or financial support. Furthermore, even if the court were to find that Johnston has properly alleged injury-in-fact and causation as to reputational harm and loss of financial support, Johnston fails to sufficiently allege how his claims concerning the allegedly fraudulent nature of the Fiscal Note would redress those losses; the evaluation of Johnston's reputation and decisions as to whether to financially support him would be made by third parties over whom the court has no control.
After a de novo review of the issues, the court finds that the Objections offer no basis in fact or law to disturb the Magistrate Judge's R& R.  In sum, the Complaint fails to meet the requirements for standing. Most of Johnston's alleged injuries are merely generalized grievances resulting from an unsuccessful foray into the Tennessee legislative process, and as such there exists insufficient injury-in-fact under the Constitution and prudential principles. The Complaint also cannot overcome a fatal lack of causation and redressability concerning Johnston's alleged injuries of diminished reputation and loss of financial support. Accordingly, the Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The court, therefore, will terminate the Motions for Temporary Restraining Order as moot. Finally, having dismissed all of the federal claims against Geise, the court will decline to exercise jurisdiction over Johnston's remaining state law claims.
For these reasons, the court finds as follows:
1. Plaintiff Louie E. Johnston, Jr.'s Objections (Docket No. 40) are OVERRULED.
2. The Magistrate Judge's Report and Recommendation (Docket No. 39) is ACCEPTED AND ADOPTED.
3. Defendant Lucien D. Geise's Motion to Dismiss (Docket No. 20) is GRANTED.
4. This matter is DISMISSED as follows:
a. All federal claims are dismissed WITH PREJUDICE; and
b. All remaining state law claims are dismissed WITHOUT PREJUDICE.
5. Plaintiff Louie E. Johnston's Motions for Temporary Restraining Order (Docket Nos. 2, 31) are TERMINATED as moot.
6. This Order shall constitute the final judgment in this case. The Clerk of Court shall close the case for all purposes.
It is so ORDERED.
REPORT AND RECOMMENDATION
Joe B. Brown, United
States Magistrate Judge.
Before the court are Mr. Louie E. Johnston, Jr.'s (Plaintiff's) two motions for a temporary restraining order (TRO) filed July 3, 2014 and August 27, 2014 (Docs. 2; 31). Also before the court is Mr. Lucien D. Geise's (Defendant's) motion to dismiss for failure to state a claim and for lack of jurisdiction with a supporting attachment filed August 5, 2014 (Docs. 20; 21). For the reasons explained below, the Magistrate Judge RECOMMENDS that Defendant's motion to dismiss be GRANTED and all federal claims be dismissed for lack of standing. The Magistrate Judge further RECOMMENDS that the court not retain jurisdiction over state claims and all state claims be DISMISSED without prejudice. The Magistrate Judge RECOMMENDS that Plaintiff's motions for TROs be TERMINATED as moot.
Plaintiff, proceeding pro se, is a Tennessee resident and author of a Tennessee state legislative bill, Senate Bill 2450/House Bill 2440 (the bill). The bill, if enacted, would codify grievances regarding elements of the federal Patient Protection and Affordable Care Act (PPACA) for the purpose of state interposition (Docs. 1, pp. 7-8; 1-1, pp. 4-12). Plaintiff defines interposition as an " honorable process of codifying grievances with supporting legal positions" that the state can commence instead of filing a federal lawsuit (Doc. 1, p. 8). Under such interposition, the state would defend the status quo (and not implement any offending federal statute) until all the grievances are resolved through negotiations or a judicial ruling on the merits of the grievances (Doc. 1, p. 8). In this case, the bill would also make it a crime to interfere with the state's interposition of the PPACA, presumably by implementing or enforcing the PPACA in Tennessee, until the specified grievances are addressed or resolved (Doc. 1, p. 8).
Defendant is the Executive Director of the fiscal review committee for the Tennessee General Assembly and is responsible for certifying fiscal notes on all general bills (Doc. 20, p. 1). Tenn. Code Ann. § 3-2-107 requires that a fiscal note be attached to all general bills brought before the General Assembly that " shall, if possible, include an estimate in dollars of the anticipated change in revenue, expenditures, or fiscal liability under the provisions of the bill or resolution." The fiscal review committee obtained potential fiscal impact information on the bill from numerous executive departments (Doc. 20, p. 3). Defendant certified a fiscal note that included an estimate of penalties exceeding $32 billion should the federal government find Tennessee noncompliant with federal law based on the process of interposition under the bill (Doc. 1-1, pp. 14-18). Plaintiff, however, disagreed with this estimate, believing that no penalties would be possible or likely given U.S. Supreme Court rulings and the Tennessee Health Freedom Act of 2011 (Doc. 1, p. 21). Plaintiff advised Defendant of the perceived errors in the fiscal note, but Defendant did not correct the original fiscal note (Docs. 1, pp. 9-10; 20, p. 1). Plaintiff claims that the
bill failed in the Senate's Commerce and Labor Committee due to the " fraudulent" fiscal note (Doc. 1, p. 3).
Plaintiff sues for compensatory and punitive damages (Doc. 1, p. 13) under various federal constitutional provisions (Article IV, Sec. 4; and the First, Ninth, Tenth and Fourteenth Amendments) and federal statutes (18 U.S.C. § § 1018, 1343; 28 U.S.C. § § 1343, 4101; 42 U.S.C. § § 1983, 1985-86; 47 U.S.C. § 230), as well as under Tennessee constitutional provisions and statutes, alleging civil rights violations, fraud, and defamation (Doc. 1, pp. 6, 17-44, 54-57). Plaintiff also seeks immediate injunctive relief to prevent Defendant from certifying fiscal notes based on conjecture (Doc. 1, pp. 6, 54). The District Judge referred this case to the Magistrate Judge by the Order dated July 15, 2014 (Doc. 7). Defendant moves to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim (Doc. 20, p. 2). Therefore, the matter is properly before the court.
II. LEGAL STANDARD
If a party lacks constitutional standing, then the court should dismiss the claim for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007) (citation omitted) (" If Plaintiffs cannot establish constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction." ).
A. There is No Subject-Matter Jurisdiction Because Plaintiff Does Not Meet the Minimum Constitutional Requirements of Standing.
The power of federal courts to hear and decide cases is defined by Article III of the U.S. Constitution and by federal statutes pursuant to Article III. Importantly, the doctrine of Article III standing requires that (1) " the plaintiff must have suffered an 'injury in fact'" ; (2) " there must be a causal connection between the injury and . . . the challenged action of the defendant" ; and (3) " it must be 'likely' . . ., that the injury will be 'redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555');">504 U.S. 555, 560-61, 112 S.Ct. 2130');">112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted). Plaintiff bears the burden of proving that he has standing. See Lujan, 504 U.S. at 561. While, at this stage, " general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan, 504 U.S. at 561 (citation omitted).
Overall, Plaintiff's injuries are insufficient to establish standing. Most of the injuries that Plaintiff alleges are insufficient to satisfy even the existence of an injury-in-fact. For example, Plaintiff argues that he has been denied due process of law because the bill, which would achieve due process in Tennessee, was not passed due to Defendant's " fraudulent" fiscal note (Doc. 1, pp. 9; 18; 21). Putting aside issues of causation and redressability, this injury is a generalized injury, shared by all the citizens of Tennessee, and is insufficient to establish the injury-in-fact element of standing. See Lujan, 504 U.S. at 573-74 (" [A] plaintiff raising only a generally available grievance about government . . ., and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy." ). In fact, Plaintiff admits that these injuries are shared by all citizens when he complains that the Defendant's " fraudulent" fiscal notes are " killing legislation, depriving Plaintiff, Legislators,
and citizens of the honest services of Legislators." (Doc. 1, p. 3). This shortcoming also applies to Plaintiff's generalized injury stemming from the sheer " fraudulent" nature of Defendant's fiscal note. Finally, this shortcoming applies to any injury stemming from future " fraudulent" fiscal notes.
Similarly, Plaintiff argues that the " fraudulent" fiscal note will further injure him as he is in the process of proposing similar legislation in twenty-eight state legislatures, and he believes that Tennessee's failure to pass the bill will result in other states doing the same (Doc. 1, p. 11). Again, putting aside issues of causation and redressability, this potential future injury is insufficient to satisfy the requirements of standing because it is simply too attenuated and speculative.
In addition, Plaintiff argues that he has lost considerable personal investments through hundreds of hours in time and effort spent educating Tennessee legislators on the bill (Doc. 1, p. 12). Although this injury is specific to Plaintiff, it is again not sufficient to satisfy the requirements of standing. The passage of a bill is not a legally protected interest. People invest in supporting proposed bills every day, and the mere fact that the bill fails to pass does not grant these individuals standing.
In the end, there are only two injuries cited by Plaintiff that warrant further discussion. Plaintiff argues that Defendant's fraudulent fiscal note caused Plaintiff to suffer: (1) reputational damage and (2) loss of donations and other support (Doc. 1, pp. 11-12). Plaintiff has not specified any broadcast cancellations nor has he pointed to specific decreases in donation support, but, for the purposes of this Report and Recommendation (R& R), the Magistrate Judge assumes that Plaintiff's statements regarding these injuries are true at this stage.
However, even if the court recognizes these particularized injuries and assumes that Plaintiff can allege sufficient facts to demonstrate them, Plaintiff still fails to establish causation and redressability. For one, Plaintiff does not show that the harm to his reputation and the decreases in support were caused by the " fraudulent" aspects of Defendant's fiscal note.
Finally, even if we assume that it was Defendant's " fraudulent" fiscal note that caused donors and other supporters to view the bill as unlikely to pass, then Plaintiff would still have to show how a favorable decision from this court would redress his injuries. Even without a " fraudulent" fiscal note, Plaintiff's bill might still fail, as the bill's passage is dependent on the actions of third parties, such as the committee members who decide whether to move the bill forward and ultimately the state legislators who vote on the bill. In essence, the redressability of Plaintiff's injuries " hinge[s] on the response . . . of others" and the existence of this element of standing will depend on " the unfettered choices made by independent actors not before the courts and
whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict . . . ." Lujan, 504 U.S. at 562 (internal citations omitted). Hence, " it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury." Lujan, 504 U.S. at 562. Simply put, Plaintiff has not met this difficult burden.
Because Plaintiff does not meet the constitutional minimum requirements of standing, his entire claim must be dismissed for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
B. Other Grounds for Dismissal
Defendant cites additional grounds on which the claim should be dismissed. Because the Magistrate Judge finds that the entire claim must be dismissed for lack of subject-matter jurisdiction, this R& R does not discuss these additional grounds in detail. Instead, this R& R makes a few observations below.
1. Failure to State a Claim.
To the extent that any statutes appear to confer standing, the Court still cannot ignore the constitutional minimum requirements of standing. Nonetheless, a review of the federal statutes Plaintiff is suing under also suggests that Plaintiff has not met statutory standing. Hence, Plaintiff's statutory claims could also be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Anarion Investments, LLC v. Carrington Mortgage Servs., 33 F.Supp.3d 927, 2014 WL 3556026, at *7 (M.D. Tenn. 2014).
2. Eleventh Amendment's Doctrine of Sovereign Immunity.
Plaintiff does not make it clear whether he is suing Defendant in his official or individual capacity. To the extent that Plaintiff is suing Defendant in his official capacity for money damages or equitable relief, those suits are barred.  See Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890); State of Louisiana ex rel. Elliott v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448, 4 Ky.L.Rptr. 915 (1883). The U.S. Supreme Court has ruled, however, that federal courts may enjoin state officials from violating federal law in certain cases. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). It does not appear to be the case that Congress wished to abrogate state sovereign immunity in these circumstances through the statutes that Plaintiff cites.
3. Plaintiff's State Law Claims.
Plaintiff also alleges various state constitutional and statutory claims. Because the Magistrate Judge recommends dismissal of all federal claims, the state law claims should be dismissed because they alone cannot sustain an action in federal court. To the extent relevant, the Magistrate Judge would also not recommend that the court exercise supplemental jurisdiction over any remaining state law claims. The
issues would involve the application of Tennessee law, and, given the early stage of this case, it would not be in the interest of judicial economy for the court to adjudicate these claims. See Anarion Investments, LLC, 33 F.Supp.3d 927, 2014 WL 3556026, at *8. Hence, these claims should be dismissed without prejudice.
4. Plaintiff's Requested Injunctive Relief.
It is likely that Plaintiff's requested injunctive relief, preventing Defendant in his official capacity from certifying " fraudulent" or otherwise conjectural fiscal notes, would be barred under the doctrine of sovereign immunity. Plaintiff's argument for why injunctive relief is necessary rests on interpreting the fiscal note requirements under Tenn. Code Ann. § 3-2-107 (Docs. 2, pp. 2-3; 31, pp. 2-3). However, states and state officials may not be sued in federal court for violations of state law committed in their official capacity regardless of the relief sought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In addition, even if the Plaintiff could construe the requested injunctive relief as an ongoing violation of federal law to support prospective relief, Plaintiff would lack standing. As the U.S. Supreme Court confirmed in Lujan v. Defenders of Wildlife, " [p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." See Lujan, 504 U.S. at 564 (internal citations omitted). Even if Plaintiff could establish an injury from this " fraudulent" fiscal note, Plaintiff would still not necessarily establish an injury-in-fact relating to any future fiscal notes that would support his request for injunctive relief.
For the reasons explained above, the Magistrate Judge RECOMMENDS that Defendant's motion to dismiss be GRANTED and all federal claims be dismissed for lack of standing. The Magistrate Judge further RECOMMENDS that the court not retain jurisdiction over state claims and all state claims be DISMISSED without prejudice. The Magistrate Judge RECOMMENDS that Plaintiff's motions for TROs be TERMINATED as moot.
Under Rule 72(b), Fed. R. Civ. P., the parties have fourteen (14) days from service of this R& R within which to file with the District Court any written objections to the proposed findings and recommendations made herein. Any party opposing shall have fourteen (14) days from receipt of any objections filed regarding this R& R within which to file a response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this R& R may constitute a waiver of further appeal of this R& R. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435, reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986).