United States District Court, M.D. Tennessee, Nashville Division
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 ...