Goico v. United States Government et al
Filing
37
MEMORANDUM AND ORDER granting 31 Motion to Dismiss; denying 4 Motion for Preliminary Injunction. Signed by District Judge John W. Broomes on 9/28/2020.Mailed to pro se party Peter Mario Goico to 1254 N Pine Grove Ct Wichita, KS 67212 by regular mail. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PETER MARIO GOICO,
Plaintiff,
v.
Case No. 20-1025-JWB
UNITED STATES GOVERNMENT; DONALD TRUMP,
President of the United States; WILLIAM BARR,
Attorney General of the United States; and STEPHEN HAHN,
the Commissioner of Food and Drug Association,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s motion for preliminary injunction (Doc. 4) and
Defendants’ motion to dismiss (Doc. 31). The motions have been fully briefed and are ripe for
decision. (Docs. 32, 33, 35, 36.) For the reasons set forth herein, Defendants’ motion to dismiss
is GRANTED and Plaintiff’s motion for preliminary injunction is DENIED.
I.
Background and Procedural History
On January 30, 2020, Plaintiff Peter Goico, proceeding pro se, filed a complaint against
President Donald Trump, William Barr, the Attorney General of the United States, and the United
States Government. (Doc. 1.) Essentially, Plaintiff alleges that President Trump, by executive
order on January 31, 2019, “unilaterally banned all flavored vapes (without congressional
approval) and further declared that every vaping product has already been illegal and will remain
so until the FDA says otherwise.” (Doc. 1 at 2.) Plaintiff further alleges that he has been denied
access to vaping because the industry is collapsing and seeks injunctive relief in the form of an
order prohibiting the enforcement of Trump’s decree. Plaintiff alleges that the government has
unfairly targeted vape customers and treats them differently than marijuana consumers. Plaintiff
alleges that he can be arrested under Trump’s executive order for admitting that he has vaped. (Id.
at 3.) Plaintiff brings claims pursuant to 42 U.S.C. § 1985 and the Fifth, Eighth, and Fourteenth
Amendments.
On the same date that he filed his complaint, Plaintiff moved for injunctive relief. (Doc.
4.) Plaintiff’s motion argues that the federal government has allowed exceptions to the federal
drug policy by not enforcing marijuana laws and that those same exceptions should be allowed for
vaping. On April 28, Plaintiff filed an amended complaint to add Stephen Hahn, the Commissioner
of Food and Drug Association, as a defendant. (Doc. 18.) Besides the addition of a new defendant,
there are no substantive changes to the amended complaint.
After filing his amended complaint, Plaintiff filed returns showing service.
Those
documents show that the Department of Justice was served at 950 Pennsylvania Avenue in
Washington, D.C. on May 13, 2020, and that President Trump’s summons was delivered to the
White House on May 9, 2020. (Doc. 21.) Defendant Stephan Hahn was served on June 18, 2020.
(Doc. 23.) The returns show that the summonses were sent by “Goico” at the same address listed
on this court’s docket sheet for Plaintiff. (Docs. 21, 23.) After serving those Defendants, Plaintiff
moved for default judgment. As noted in this court’s order denying Plaintiff’s motion, Plaintiff
had failed to serve the United States as required by Fed. R. Civ. P. 4(i). (Doc. 26.) A summons
was then issued by the clerk to Plaintiff so that he could serve the United States. Plaintiff then
filed a notice that he had served the United States. (Doc. 27.) Plaintiff has informed the court that
he personally sent the summonses to Defendants by mail. (Doc. 35 at 1.)
Defendants move for dismissal on the basis that Plaintiff failed to properly serve
Defendants, Plaintiff lacks standing to assert his claim, and Plaintiff has failed to state a claim.
2
II.
Standards
A. Fed. R. Civ. P. 12(b)(5)
Motions to dismiss for insufficient service of process are governed by Federal Rule of Civil
Procedure 12(b)(5). If service of process is insufficient under Federal Rule of Civil Procedure 4, a
federal court is without personal jurisdiction over that defendant. Rivera v. Riley Cnty. Law Bd.,
No. 11-cv-02067-JAR-JPO, 2011 WL 4686554, at *2 (D. Kan. Oct. 4, 2011) (citing Blackmon v.
U.S.D. 259 Sch. Dist., 769 F. Supp. 2d 1267, 1273 (D. Kan. 2011)). “Once a defendant challenges
service of process in a motion to dismiss under 12(b)(5), the burden falls on the plaintiff to show
[he] has satisfied the statutory and due process requirements with service of process.” Id.
B. Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
“Different standards apply to a motion to dismiss based on lack of subject matter
jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule
12(b)(6).” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). When the
court is faced with a motion invoking both Rule 12(b)(1) and 12(b)(6), the court must first
determine that it has subject matter jurisdiction over the controversy before reviewing the merits
of the case under Rule 12(b)(6). Bell v. Hood, 327 U.S. 678, 682 (1946). Because federal courts
are courts of limited jurisdiction, a presumption exists against jurisdiction, and “the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms:
(1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction;
or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” City of
Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal quotation and
3
citation omitted). If the motion challenges the sufficiency of the complaint's jurisdictional
allegations, the court must accept all such allegations as true. Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995). If there is a challenge to the actual facts, the court “may not presume the
truthfulness of the complaint’s factual allegations. Id. at 1003. The court has discretion to allow
affidavits and other documents to resolve disputed facts. Id.; see also Cochran v. City of Wichita,
No. 18-1007-JWB, 2018 WL 3772681, at *2 (D. Kan. Aug. 9, 2018).
If the court has subject matter jurisdiction under the foregoing standards, it will then
address arguments raised under Rule 12(b)(6). In order to withstand a motion to dismiss for failure
to state a claim under Rule 12(b)(6), a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)). All wellpleaded facts and the reasonable inferences derived from those facts are viewed in the light most
favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court’s consideration. Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
III.
Analysis
A. Insufficient Service
Defendants initially argue that Plaintiff has failed to properly serve them because Plaintiff
personally mailed the summons to each individual Defendant and the United States Attorney’s
Office for the District of Kansas. Rule 4(c)(2) of the Federal Rules of Civil Procedure states that
service of a summons may be carried out by “any person who is at least 18 years old and not a
party.” In this district, service is defective when a plaintiff mails the summons himself. Constien
v. U.S., 628 F.3d 1207, 1213-15 (10th Cir. 2010).
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Here, Plaintiff admits that he placed the summons in the mail himself based on instructions
from the clerk’s office and because he could not afford to pay someone to do it. Plaintiff argues
that Defendants should waive the service requirement because Plaintiff will just refile if the case
is dismissed for lack of proper service. “The government cannot waive service of process.” Id. at
1213. Because Plaintiff personally mailed the summons, the court finds that the summonses are
defective pursuant to Rule 4(c)(2). Id.; see also Shophar v. United States, No. 19-04052-HLTKGG, 2019 WL 3573575, at *1 (D. Kan. Aug. 6, 2019).
When the court determines that service is insufficient, but it is curable, the court should
quash the service and provide Plaintiff with an opportunity to re-serve. Betts v. City of Greeley,
Colo., 46 F.3d 1150, 1995 WL 18279, at *2 (10th Cir. Jan. 18, 1995); Rader v. U.S.D. 259 Wichita
Pub. Sch., No. CIV.A. 10-4118-KHV, 2011 WL 2144834, at *2 (D. Kan. May 31, 2011). Given
that this issue is limited to Plaintiff personally mailing the summonses, it is feasible that Plaintiff
could effectuate proper service. Defendants, however, also argue that this court lacks subject
matter jurisdiction due to Plaintiff’s lack of standing. For this reason, the court will address
Defendants’ arguments regarding standing to determine whether it will be futile to afford Plaintiff
another opportunity to effect service. See Hall v. State Farm Ins., 2018 WL 2102310, at *1 (D.
Kan. May 7, 2018).
B. Standing
Defendants argue that Plaintiff lacks standing because the purported executive order he is
seeking to enjoin is nonexistent. In response, Plaintiff asserts that there is such an executive order
and cites to two news articles in which he claims President Trump threatened to enter such an
order.
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This court’s “judicial Power” extends only to “Cases” and “Controversies.” U.S. Const.
art. III, § 2. Therefore, to establish a justiciable case or controversy, Plaintiff must have standing
to bring suit. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The Supreme Court has
held that standing requires a plaintiff to show that he “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. Defendants argue that these elements cannot be met as the
executive order Plaintiff claims caused an injury and that he seeks to enjoin does not exist.
In response to Defendants’ motion, Plaintiff argues that the President “announced an
executive order banning flavored vapes and requiring FDA approval.” (Doc. 35 at 1)(emphasis in
original). In support, Plaintiff has attached “two articles confirming this.” (Id.) The first article
is titled “Trump Administration Announces Stripped-Down Regulations on Flavored Vaping
Products.” (Id. at Exh. 1.) The article states that some but not all flavored e-cigarettes will be
removed from the market. Although Plaintiff has not attempted to authenticate the exhibit, the
article appears to come from www.time.com. The second article is titled “Trump abandons
sweeping vape ban with new slimmed-down rules.” (Id. at Exh. 2.) It states that federal rules will
be released but that they include “carveouts that will allow some products to remain on the
market.” (Id.)
Again, Plaintiff has not authenticated the exhibit, but it appears to have been
accessible on www.politico.com. Neither article states that President Trump signed an executive
order regarding vaping.
This court may take judicial notice of executive orders. See Democracy Forward Found.
v. White House Office of Am. Innovation, 356 F. Supp.3d 61, 69, n. 6 (D.D.C. 2019) (citing Dennis
v. United States, 339 U.S. 162, 169 (1950) (explaining that the Court could “[o]f course” take
notice of an executive order relevant to the case). Executive orders are published in the Federal
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Register. See National Archives, Office of the Federal Register, Executive Orders (“After the
President signs an Executive order, the White House sends it to the Office of the Federal Register
(OFR). The OFR numbers each order consecutively as part of a series and publishes it in the daily
Federal Register shortly after receipt.”), at https://www.federalregister.gov/presidentialdocuments/executive-orders.1 President Trump has issued 185 executive orders while in office.
Id. (last visited Sept. 25, 2020). There is no executive order that was signed on December 31,
2019 (the date Plaintiff asserts the order was “announced” in his response brief) and the executive
order signed on January 31, 2019 (the date Plaintiff alleges in his amended complaint) pertains to
infrastructure projects. See Strengthening Buy-American Preferences for Infrastructure Projects,
84 Fed. Reg. 2039 (Jan. 31, 2019). Defendants contend that there is no such order and Plaintiff
has failed to identify the purported executive order. Based on a search of the executive orders
contained on the Federal Register’s website, it does not appear that such an order has been entered.
It is Plaintiff’s burden to demonstrate standing. Utah Animal Rights Coal. v. Salt Lake
Cty., 566 F.3d 1236, 1240 (10th Cir. 2009). Plaintiff has failed to do so. Plaintiff has alleged that
an executive order caused him injury by denying access to vaping products. Plaintiff claims that
the government unlawfully treats consumers of vaping products unfairly while marijuana
consumers have immunity from federal law. (Doc. 18 at 2.) Plaintiff seeks injunctive relief in the
form of prohibiting the enforcement of Trump’s decree. Id. Plaintiff’s claim has “no foundation
in law” as the alleged executive order is nonexistent. See Claybrook v. Slater, 111 F.3d 904, 907
(D.C. Cir. 1997). A plaintiff cannot establish standing if the alleged injury has no “foundation
upon which to premise standing.” State of Utah v. Babbitt, 137 F.3d 1193, 1214 (10th Cir. 1998)
1
The court can take judicial notice of information on government websites that is not “subject to reasonable factual
dispute and is capable of determination using sources whose accuracy cannot reasonably be questioned.” New Mexico
ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702, n.22 (10th Cir. 2009); see also Doe v. Heil, 533 F.
App'x 831, 833, n.2 (10th Cir. 2013)(taking judicial notice of a fact from a government website).
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(citing Claybrook, 111 F.3d at 907 (“[I]f the plaintiffs' claim has no foundation in law, he has no
legally protected interest and thus no standing to sue.”)). Because there is no executive order,
Plaintiff has not suffered an injury from the application of that order. Moreover, this court cannot
offer any relief as there is no executive order to enjoin.
In their motion to dismiss, Defendants assert that Plaintiff might have misunderstood the
law regarding tobacco products, which now includes vaping products. Under the Tobacco Control
Act (“TCA”), Pub. L. No. 111–31 (2009), the Food and Drug Administration (“FDA”) can regulate
tobacco products “intended for human consumption.” 21 U.S.C. §§ 321(rr)(1), 387a. Under the
TCA, manufacturers are required to receive approval before tobacco products are delivered into
interstate commerce. Nicopure Labs, LLC v. Food & Drug Admin., 266 F. Supp.3d 360, 372
(D.D.C. 2017), aff'd, 944 F.3d 267 (D.C. Cir. 2019) (citing 21 U.S.C. § 387j(a)). The statute
requires the submission of a premarket application which includes a statement of the components
of the tobacco product, the methods used in manufacturing, the packaging of the product, and other
information. 21 U.S.C. § 387j(b). The TCA also allows the FDA to deem a product to be a
“tobacco product” by regulation. 21 U.S.C. § 387a(b). That is exactly what the FDA did with
electronic cigarettes (“e-cigarettes”). “On May 10, 2016, the FDA exercised the authority
Congress conferred upon it in 21 U.S.C. § 387a(b) to deem e-cigarettes…to be ‘tobacco products’
subject to the TCA. Deeming Rule, 81 Fed. Reg. at 28,976 (‘Products that meet the statutory
definition of ‘tobacco products’ include ... ENDS (including e-cigarettes, e-hookah, e-cigars, vape
pens, advanced refillable personal vaporizers, and electronic pipes’).” Nicopure Labs, LLC, 266
F. Supp.3d at 375.
The deeming rule resulted in a significant number of products being noncompliant with the
TCA. See In re Cigar Ass’n of Am., 812 F. App’x 128, 133 (4th Cir. 2020) (discussing the FDA’s
8
decision to deem products such as cigars, pipe tobacco, and electronic nicotine delivery systems
as subject to the TCA). The deeming rule, however, does not ban the manufacture or sale of ecigarettes. Nicopure Labs, LLC, 266 F. Supp.3d at 367. As the Nicopure Labs court stated
The Court wishes to reassure the many worried vapers who followed these
proceedings closely that this case is not about banning the manufacture or sale of
the devices. That is not what the Deeming Rule does or what it was intended to
accomplish. In the Deeming Rule, the FDA simply announced that electronic
cigarettes, or electronic nicotine delivery systems (“ENDS”) would be subject to
the same set of rules and regulations that Congress had already put in place for
conventional cigarettes.
The Rule requires manufacturers to subject their products to review before
marketing them, to tell the truth when making any claims about their health
benefits, and to warn consumers about the dangers of nicotine when offering a
means to deliver the substance to consumers. In short, the manufacturers of ecigarettes are now required to tell the 30 million people who use the devices what
is actually in the liquid being vaporized and inhaled.
This case does not pose the question—which is better left to the scientific
community in any event—of whether e-cigarettes are more or less safe than
traditional cigarettes. The Rule did not purport to take the choice to use e-cigarettes
away from former smokers or other adult consumers; the issue is whether the FDA
has the authority to require that the choice be an informed one.
Id.
As pointed out by Defendants, there has been extensive litigation over the deeming rule.
The District of Columbia Court of Appeals affirmed the district court’s decision that the FDA did
not act arbitrarily in requiring e-cigarettes to be subject to the same rules as conventional cigarettes.
Nicopure Labs, LLC v. FDA, 944 F.3d 267, 281-82 (D.C. Cir. 2019). Notably, on appeal, the
appellants did not challenge the FDA’s decision to deem e-cigarettes to be “tobacco products.” Id.
at 281. The court of appeals held that the “premarket authorization pathway is a creature of
Congress not subject to challenge under the APA and, in any event, simply is not the blunt,
arbitrary instrument that the Industry portrays.” Id. at 282.
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The FDA had previously announced a new compliance policy in which it did not intend to
enforce the premarket review provision for electronic cigarettes until 2022, but that policy was
invalidated after a challenge to the policy by public health groups and doctors. Am. Acad. of
Pediatrics (AAP) v. FDA, 379 F. Supp.3d 461, 468, 497-98 (D. Md. 2019). The deadline to submit
an application for premarket review was extended to September 9, 2020, due to the COVID-19
pandemic. See AAP v. FDA, No. 18-883, Doc. 182 (D. Md. Apr. 22, 2020). Products that have a
timely application filed with the FDA “may remain on the market without being subject to FDA
enforcement actions for a period not to exceed one year from the date of application while FDA
considers the application.” Am. Acad. of Pediatrics v. FDA, 399 F. Supp.3d 479, 487 (D. Md.
2019), appeal dismissed sub nom. In re Cigar Ass'n of Am., 812 F. App'x 128 (4th Cir. 2020).
With respect to products that are on the market and applications were not timely filed, the FDA
can proceed with enforcement actions, subject to the FDA’s discretion. Id.
Therefore, under the current law, all vaping products are not being banned and removed
from stores. The new products, however, must comply with the TCA. In response to Defendants’
presentation of the status of the law, Plaintiff appears to waive any challenge2 to the deeming rule
by stating that this is “not the issue.” (Doc. 35 at 2.) Plaintiff then argues that Defendants admit
that they have a “compliance policy with impossibly high standards.” Id. Presumably, Plaintiff is
referring to the TCA’s requirements. Plaintiff argues that the government intends to enforce these
standards and this is a “de-facto ban.” Id.
Although the deeming rule and the TCA require e-cigarettes to be subject to the premarket
review process, Plaintiff has not pointed to any law that bans e-cigarettes entirely. Moreover,
although presented with the existing laws regarding e-cigarettes, the TCA and the deeming rule,
2
Plaintiff likely does not have standing to challenge the deeming rule. Faircloth v. Food & Drug Admin., No. 2:16CV-5267, 2017 WL 4319495, at *4 (S.D.W. Va. Sept. 28, 2017).
10
Plaintiff makes no argument that he is challenging those laws. Under those laws, Plaintiff has not
suffered an actual injury, such as denial of the product, as there is no outright ban on e-cigarettes
and, in fact, products that have submitted applications by September 2020 may remain on the
market for one year while their applications are pending. Am. Acad. of Pediatrics, 399 F. Supp.
3d at 487. Moreover, to the extent Plaintiff is somehow challenging the FDA’s enforcement
guidance regarding how the FDA was prioritizing the enforcement of the TCA, this guidance does
not ban e-cigarettes or other vaping products. See FDA, FDA finalizes enforcement policy on
unauthorized flavored cartridge-based e-cigarettes that appeal to children, including fruit and mint
(Jan.
2,
2020),
https://www.fda.gov/news-events/press-announcements/fda-finalizes-
enforcement-policy-unauthorized-flavored-cartridge-based-e-cigarettes-appeal-children
(“Importantly, the FDA’s enforcement priorities are not a ‘ban’ on flavored or cartridge-based
ENDS. The FDA has already accepted and begun review of several premarket applications for
flavored ENDS products through the pathway that Congress established in the Tobacco Control
Act.”)
Plaintiff has the burden to establish standing and he has not done so. Plaintiff alleges that
he has been harmed by an executive order that cannot be located on the Federal Register and he
has not established that such an order exists. Instead, Plaintiff cites to articles from two websites
but even those articles do not support Plaintiff’s claim that there is an executive order. Moreover,
Plaintiff’s conclusory allegation that he is being “denied access” is not sufficient to allege that he
suffered harm. Plaintiff has not alleged any facts to support his conclusion that he is denied access
to “vaping product[s]” (Doc. 18 at 2.) As cited by case authority and FDA statements on its
website, vaping products have not been outright banned. Those products must comply with the
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TCA and were given until just recently to do so. Plaintiff’s allegation that he is subject to arrest
is also without a basis in the law.3
Plaintiff’s brief in response to Defendants’ motion to dismiss does not provide any
additional basis to find that Plaintiff has established standing. Rather, he argues that Defendants
allow states to give drug offenders a free pass due to the failure to enforce marijuana laws by the
states and that the federal government should also stay out of the enforcement of tobacco products.
Plaintiff has previously unsuccessfully brought suit against the state of Kansas regarding marijuana
laws. See Goico v. Kansas, 773 F. App’x 1038, 1039 (10th Cir. 2019) (alleging the State’s attempts
to legalize marijuana are unconstitutional); Goico v. Kansas, No. 19-1284, 2020 WL 68375, at *1
(D. Kan. Jan. 7, 2020); Goico v. Kansas, No. 20-1026, 2020 WL 3034814, at *1 (D. Kan. June 5,
2020) (dismissing Plaintiff’s complaint that sought to “put a stop to any state efforts to reduce or
relax restrictions on marijuana…”).
Although Plaintiff’s challenge in this case is different, the result is the same. Plaintiff’s
amended complaint is subject to dismissal. Plaintiff has not met his burden to show that he has
standing. The court finds that Plaintiff’s amended complaint fails to plausibly allege that he has
suffered an injury. Plaintiff has also failed to establish that Defendants’ actions resulted in any
injury as Plaintiff has not shown that the executive order he complains of is in existence. As a
result, this court cannot offer any relief to Plaintiff.
IV.
Conclusion
This court lacks jurisdiction over Defendants due to Plaintiff’s failure to properly serve
Defendants. Although the defects in service are curable, the court further finds that Plaintiff lacks
3
As pointed out by Defendants, the Food, Drug, and Cosmetic Act does not penalize consumers, either criminally or
civilly, for possessing tobacco products. See 21 U.S.C. § 331.
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standing. Therefore, Defendants’ motion to dismiss is GRANTED. (Doc. 31.) Plaintiff’s motion
for preliminary injunction (Doc. 4) is DENIED.
IT IS SO ORDERED this 28th day of September, 2020.
____s/ John W. Broomes___________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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