Docket Item 9

Filed on 26-Mar-2010, docket item 9 in the matter of Sollars v. Reid et al. is the Defendants' Brief in Support of Defendants' Motion to Dismiss. The motion supported by this brief was denied on 02-Apr-2010.

This brief is an example of both cut-and-paste technology and over-the-top argument. It appropriately references Nerds on Call, Inc..

Transcript

The original document is archived and a transcript appears below.

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INTRODUCTION

Plaintiff Albert Sollars filed this action against eight United States Senators1) (collectively the “Senate Defendants”) and 150 unnamed pseudonym defendants “to be named later”2), claiming that the negotiations among the Senate Defendants regarding the content of then-pending health care legislation violated the federal bribery statute, 18 U.S.C. § 201. While plaintiff’s amended complaint makes clear his displeasure with the legislative process in Congress on this legislation, it makes no allegations that plaintiff himself has suffered a concrete, particularized injury-in-fact caused by the Senate Defendants, it asserts no recognized cause of action, and it seeks relief of a wholly unprecedented nature – millions of dollars in damages against Members of Congress solely for their having voted in favor of pending legislation.

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Accordingly, for the following four reasons, this civil action is beyond the jurisdiction of the federal courts and is legally meritless and, thus, must be dismissed.

First, plaintiff lacks Article III standing as the amended complaint fails to plead facts that, if true, could demonstrate that plaintiff has suffered any concrete injury to a legally protected interest that is fairly traceable to the Senate Defendants and likely to be redressed by a favorable judicial decision. Indeed, plaintiff has not offered even a single allegation that he has suffered any legally cognizable injury-in-fact that this Court could remedy. Second, plaintiff’s suit challenging the alleged legislative actions of the Senate Defendants is barred by the Speech or Debate Clause of the Constitution, which absolutely protects Members of Congress from suit for actions taken in the legislative sphere. Negotiation by Senators over legislation pending before the Senate lies at the very heart of the legislative sphere protected by the Clause.

Third, plaintiff has not alleged any facts that establish either that this Court has personal jurisdiction over the Senate Defendants (none of whom represents Indiana or resides in this state) or that venue is proper in this District. Finally, plaintiff fails to state a claim on the face of the amended complaint because the federal bribery statute, 18 U.S.C. § 201, does not provide a private cause of action.

For these reasons, plaintiff’s amended complaint against the Senate Defendants should be dismissed with prejudice.3)

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BACKGROUND

A. Plaintiff’s Allegations

Plaintiff’s amended complaint alleges that Senator Reid, the Majority Leader of the Senate, agreed to add provisions to health care legislation before the Senate that would benefit states represented by the other Senate Defendants in order to secure the votes of those Senators in favor of the legislation. See Amended Complaint #1, docket # 5 [hereinafter “Am. Compl.”] ¶¶ 4-11. The amended complaint further alleges that such negotiations constituted providing a thing of value for the performance of an official act in violation of the federal bribery statute, 18 U.S.C. § 201. Id. ¶¶ 3-4. That statutory provision is the only legal claim that plaintiff asserts in his amended complaint. For relief, plaintiff originally requested an emergency injunction to prevent the Senate from further considering or voting on the health care legislation, and also asked that the Attorney General initiate an investigation of these Senators for allegedly violating the bribery statute. See Complaint, docket # 1, at 1. In amending his complaint, plaintiff seeks $50,000,000 in damages from each Senate Defendant. Am. Compl. ¶ 3.

B. Procedural Background

Plaintiff filed this case on December 23, 2009. Along with the complaint, plaintiff moved for an emergency injunction to prevent the Senate from voting on legislation thenpending before it. The Court denied that motion, finding that plaintiff had not “cited any statute, rule, or law that would authorize this Court to grant the requested relief[.]” See Order 12/23/2009, Docket # 4. Plaintiff subsequently filed the amended complaint, substituting the claim for damages against the Senate Defendants for the original complaint’s request for injunctive relief.

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ARGUMENT

I. Plaintiff Lacks Standing to Bring This Suit.

“Article III of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Col. v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). Indeed, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (citation omitted). Vital to Article III’s case or controversy limitation on judicial power is the requirement that a plaintiff must have standing to invoke federal court jurisdiction. See Valley Forge, 454 U.S. at 471-73; Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7 Cir. 2009) (“Standing is an essential component of A th rticle III’s case-or-controversy requirement.”). “‘In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or particular issues.’” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

A party seeking to invoke a federal court’s jurisdiction bears the burden of establishing his standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Apex Digital, Inc., 572 F.3d at 443. To satisfy that burden, a plaintiff must allege facts demonstrating the three elements that form the “irreducible constitutional minimum of standing” under Article III: (1) that he or she “ha[s] suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical;” (2) that the injury was caused by, or is “fairly . . . trace[able] to the challenged action of the defendant”; and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (internal quotation

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marks and citations omitted); accord Perry, 186 F.3d at 829. If a plaintiff fails to satisfy the prerequisites for Article III standing, the Court lacks jurisdiction and must dismiss the amended complaint. See Valley Forge, 454 U.S. at 475-76 (“Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States.”).

Plaintiff’s amended complaint fails to meet any of the prongs of standing. Not only does the amended complaint fail to articulate a harm that could qualify as an injury to a legally protected interest, but it fails even to allege that plaintiff has suffered any injury at all. Indeed, the only allegations in the amended complaint that relate to plaintiff at all are his opinions that the legislative process “stinks to high heaven,” that it “must be stopped . . . or the United States government and legal systems will unravel at the seams, ” Am. Compl. ¶ 12, and that “citizens of the United States deserve better conduct from Members of Congress and their President.” Id. ¶ 13. Such disapproval of government action, however, is not a substitute for a concrete and particularized “injury-in-fact” required by Article III. As the Supreme Court has explained, “a plaintiff raising only a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, 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.” Lujan, 504 U.S. at 573-74.

Plaintiff has also not demonstrated how any potential injury to him is traceable to legislative negotiations among the Senate Defendants. Even if the enactment of this legislation could cause concrete harm to plaintiff, which he has not alleged, any such injury would not be directly traceable to these eight Senators. Such lawmaking requires bicameral action – not to mention presentation to the President, U.S. Const. art. I, § 7, see I.N.S. v. Chadha, 462 U.S. 919, 945-49 (1983) – and 435 House Members and 92 other Senators can vote on legislation. Hence,

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the passage (or defeat) of any legislation by the collective bodies of the House and Senate cannot be attributed to a mere handful of Members from one Chamber.

Finally, plaintiff’s failure to allege any injury precludes him from satisfying the redressability prong of the standing test (as what “harm” would be “redressed”?). Further, even if he had alleged an injury-in-fact, plaintiff has not articulated how his claim for damages would be likely to redress any of his concerns with the legislative process that underlie his suit.

In sum, plaintiff’s amended complaint wholly fails to allege, much less establish, a legally cognizable injury-in-fact fairly traceable to the Senate Defendants that could be redressed by this suit, and, thus, plaintiff lacks Article III standing and this action must be dismissed.

II. Plaintiff’s Suit Challenging the Legislative Actions of the Senate Defendants Is Barred by the Speech or Debate Clause of the Constitution.

The Speech or Debate Clause provides that, “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, §6, cl. 1. “[T]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.” Gravel v. United States, 408 U.S. 606, 617 (1972). The Clause is designed to “insure that the legislative function the Constitution allocates to Congress may be performed independently,” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502 (1975), “without regard to the distractions of private civil litigation,” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995), thereby “reinforcing the separation of powers so deliberately established by the Founders.” United States v. Johnson, 383 U.S. 169, 178 (1966). Because of its importance to the Legislative Branch’s constitutional functions, the Supreme Court has consistently “read the Speech or Debate Clause broadly to effectuate its purposes.” Eastland, 421 U.S. at 501.

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The Clause provides immunity from suit for all actions “within the sphere of legitimate legislative activity,” id. at 501; accord Gravel, 408 U.S. at 618, which encompasses “anything ‘generally done in a session of the House by one of its members in relation to the business before it.’” Doe v. McMillan, 412 U.S. 306, 311 (1973) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881)). The Clause precludes inquiry into “the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625.

Furthermore, as the Supreme Court has made clear, the immunity provided by the Clause serves not merely as “a defense on the merits[,] but also protects a legislator from the burden of defending himself.” Powell v. McCormack, 395 U.S. 486, 502-03 (1969); Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam).4). The Clause similarly protects against suits for declaratory judgments. See Consumers Union, 446 U.S. at 732 & n.10 (establishing that common-law legislative immunity, like that of the Speech or Debate Clause, “is equally applicable to . . . actions seeking declaratory or injunctive relief”); see also Eastland, 421 U.S. at 496, 512 (directing district court to dismiss complaint seeking injunctive and declaratory relief as barred by Speech or Debate Clause).)) Thus, “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.” Eastland, 421 U.S. at 503.

The actions of the Senate Defendants that plaintiff challenges fall squarely within the protections of the Speech or Debate Clause. Plaintiff alleges that the Senate Defendants engaged in negotiations over the content of pending legislation and over whether those Senators would support that legislation. Am. Compl. ¶¶ 3-11. Such activity is at the core of “the deliberative

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and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation,” Gravel, 408 U.S. at 625, that the Supreme Court has recognized as within the “legitimate legislative sphere” of activity protected by the Speech or Debate Clause. Thus, the Clause precludes plaintiff’s suit.

Plaintiff’s allegation that the Senate Defendants’ actions were motivated by concerns he deems improper – that the Senators’ decision whether to vote in favor of the legislation depended solely on whether it contained provisions that would benefit their own states – does not affect the absolute bar provided by the Speech or Debate Clause. The Supreme Court has made clear that “the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” Eastland, 421 U.S. at 508 (quoting United States v. Brewster, 408 U.S. 501, 525 (1972)) (emphasis added).

Accordingly, plaintiffs’ amended complaint challenging the legislative actions of the Senate Defendants is barred by the Speech or Debate Clause and must be dismissed.5). To the extent plaintiff’s claim for damages is asserted against the Senate Defendants in their individual capacities, that claim would be barred by qualified immunity as the Senate Defendants’ alleged negotiations over legislation did not violate any clearly established right of plaintiff’s. See Walker v. Jones, 733 F.2d 923, 932 (D.C. Cir. 1984) (“Members of Congress may assert the same qualified immunity available to executive officials.”).))

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III. The Court Lacks Personal Jurisdiction Over the Senate Defendants and Venue Is Improper in This District.

A. Plaintiffs [SIC] Have Alleged No Facts That Would Establish Personal Jurisdiction Over the Senate Defendants in This Court.

A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant, as in this case, bears “the burden of demonstrating the existence of personal jurisdiction.” RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). Plaintiff fails to meet this burden as the amended complaint does not allege sufficient facts demonstrating that the Court has personal jurisdiction over the Senate Defendants.

A federal court’s jurisdiction over a person can be based on either a federal statute or the law of the forum in which the District Court sits. Here, no applicable federal statute expands this Court’s jurisdiction; accordingly, personal jurisdiction over the defendants can be obtained only if they are subject to the personal jurisdiction of the Indiana courts under Indiana law. See Nerds on Call, Inc. (Indiana) v. Nerds on Call, Inc. (California), 598 F. Supp. 2d 913, 915 (S.D. Ind. 2008). The Indiana “long-arm statute,” Indiana Rule of Trial Procedure 4.4, permits the state’s courts to exercise jurisdiction over nonresident defendants who commit certain specific acts and also to “exercise jurisdiction on any basis not inconsistent with the Constitutions of this state or the United States.” Indiana Rule of Trial Procedure 4.4(A). Accordingly, “[b]ecause Indiana’s long-arm statute is co-extensive with the limits of federal due process, the court applies federal due process standards” in determining whether an Indiana court can exercise personal jurisdiction over a nonresident. Nerds on Call, Inc., 598 F. Supp. at 915; see also American Commercial Lines, LLC v. Northeast Maritime Institute, Inc., 588 F. Supp. 2d 935, 942 (S.D. Ind. 2008) (“The sole question before us is whether due process would be offended were we to exercise personal jurisdiction over [the non-resident defendant].”).

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Under the Due Process Clause, “[a] defendant must have ‘certain minimum contacts with [the state] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”’” RAR, Inc., 107 F.3d at 1277 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Plaintiff has made no allegations that the Senate Defendants have minimum contacts with Indiana. None of the Senate Defendants represents Indiana, and all of plaintiff’s allegations regarding them involve their legislative actions related to legislation pending in Congress. Those actions took place in Washington, D.C., not Indiana. Nor have any of the defendants “purposefully availed” themselves of Indiana in matters that are the subject of this suit. See Jennings v. A.C. Hydraulic A/S, 383 F.3d 546, 549 (7th Cir. 2004) (“[U]nder the familiar ‘minimum contacts’ analysis, a plaintiff must show that the defendant has purposefully availed itself of the privilege of conducting activities within the forum state.”). Accordingly, plaintiff fails to establish the minimum contacts between the Senate Defendants and Indiana necessary to permit the Court to exercise jurisdiction over them consistent with due process. Furthermore, “traditional notions of fair play and substantial justice” would be offended by hauling non-Indiana Senators into Indiana courts on claims deriving solely from the Senators’ legislative actions in Washington, D.C. Consequently, exercising personal jurisdiction over the Senate Defendants would not comport with the requirements of due process.

B. Venue Is Improper in This District.

Dismissal of the amended complaint is also required because venue is improper in the Northern District of Indiana. “On a motion to dismiss for improper venue the plaintiff bears the burden of establishing that the venue it has chosen is proper.” Rotec Industries, Inc. v. Aecon Group, Inc., 436 F. Supp. 2d 931, 933 (N.D. Ill. 2006). The amended complaint’s allegations provide no basis for venue in this District under the general venue statute, 28 U.S.C. § 1391.

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First, subsection 1391(e), regarding actions against agencies, officers, and employees of the United States, applies only to the executive branch and not to the Senate Defendants. See Duplantier v. United States, 606 F.2d 654, 664 (5 th Cir. 1979) (“Section 1391(e)’s reach should not be expanded beyond the executive branch. To do so might bring about absurd consequences.”); King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) (per curiam) (28 U.S.C. § 1391(e) “only applies to suits against officers of the executive branch”); Liberation News Serv. v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970).

That leaves subsection 1391(b) as the only potentially applicable venue provision. Venue does not exist in this District under § 1391(b) because (1) none of the defendants to this action resides in this jurisdiction, nor do they all reside in the same state; (2) a substantial part of the events giving rise to plaintiff’s claims against defendants did not arise or occur in this judicial district, but rather in Washington, D.C., as described previously; and (3) there is another district, the District of Columbia, where (absent the other obstacles to this suit) venue could lie. Thus, the amended complaint should be dismissed for improper venue.

IV. The Amended Complaint Fails to State a Claim as There Is No Private Cause of Action Under 18 U.S.C. § 201.

Plaintiffs’ sole legal claim is that the Senate Defendants’ negotiations over provisions in legislation violated the federal bribery statute, 18 U.S.C. § 201. Am. Compl. ¶ 3. This allegation fails to state a claim upon which relief can be granted. Section 201 of title 18 of the United States Code is a criminal provision; it provides no private right of action for civil plaintiffs to sue defendants. See Ray v. Proxmire, 581 F.2d 998, 1001 (D.C. Cir. 1978) (per curiam) (18 U.S.C. § 201 does not create a “privately-enforceable right”); cf. also United States v. Ray, 238 F.3d 828, 834 (7th Cir. 2001) (“[18 U.S.C. § 201©(2)] creates criminal liability, not a private right of

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action or rule of evidence.”). Accordingly, plaintiff’s amended complaint alleging that the Senate Defendants violated 18 U.S.C. § 201 fails to state a claim and should be dismissed.

CONCLUSION

For the foregoing reasons, plaintiff’s amended complaint against the Senate Defendants should be dismissed with prejudice.

1) Senators Harry Reid, Bernie Sanders, Mary Landrieu, Ben 1 Nelson, Patrick Leahy, Christopher Dodd, Max Baucus, and Bill Nelson.
2) Listed in the caption of the Amended Complaint as “John and Mary Doe unspecified defendants, 1 thru 150, to be named later.”
3) The threshold grounds set forth above requiring dismissal of the amended complaint as a matter of law eliminate any basis for the Court to address the merits of plaintiff’s claims. Recognizing that on a motion to dismiss, the Court must accept allegations in a complaint as true, Shawnee Trail Conservancy v. U.S. Dep’t of Agriculture, 222 F.3d 383, 385 (7th Cir. 2000), Senate Defendants state for the record that plaintiff’s allegations of corrupt conduct are baseless and unfounded and are denied.
4) The Clause’s immunity covers all civil actions, “whether for an injunction or damages.” Eastland, 421 U.S. at 503; see also Nat’l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 630 (1st Cir. 1995) (legislative immunity protects legislators “‘from suits for either prospective relief or damages’” (quoting Supreme Court of Virginia v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731 (1980
5) In addition to the immunity provided under t 5 he Speech or Debate Clause, the Senate Defendants are also shielded from plaintiff’s suit by sovereign immunity. Plaintiff’s suit challenges the official actions of the Senate Defendants with regard to pending legislation. Such a suit against individual government officials in their official capacities is equivalent to a suit against the government and is barred by sovereign immunity. See Keener v. Congress, 467 F.2d 952, 953 (5th Cir. 1972) (affirming dismissal because Congress “is protected from suit by sovereign immunity”); Rockefeller v. Bingaman, 234 Fed. Appx. 852, 855 (10th Cir. 2007) (affirming dismissal of suit against Senator and Representative in their official capacities on sovereign immunity grounds); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985