LeVay v. United States et al

Filing 17

ORDER Denying 16 Motion to Amend Judgment. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ROSS LEVAY,
Plaintiff,

Case No. 17-cv-10517

v.

Honorable Thomas L. Ludington

UNITED STATES, et al,
Defendants.
_______________________________________/
ORDER DENYING MOTION TO AMEND JUDGMENT
On February 17, 2017, Plaintiff Ross Levay filed a complaint alleging that the United
States and various government officials have committed gross negligence, breach of contract,
First Amendment violations, and breach of oath by failing to prevent “incitement to imminent
lawlessness” by “Radical Islamic Terrorists.” Compl. at 6–7, ECF No. 1. The case was referred
to Magistrate Judge Patricia T. Morris. ECF No. 3. On February 24, 2017, Judge Morris issued a
report recommending that the case be dismissed sua sponte because Levay lacks standing. ECF
No. 7. Levay objected to effectively every aspect of Judge Morris’s report and recommendation.
ECF No. 10. Rather than individually addressing each objection, the Court reviewed Levay’s
complaint de novo (meaning with no deference to Judge Morris’s findings) and independently
concluded that Levay’s suit was frivolous and would be dismissed. ECF No. 14. On July 21,
2017, Levy filed a “Motion to Amend Judgment.” ECF No. 16. In the motion, Levay makes
three requests: individually address each of his five objections, amend the previous order to
remove the holding that the suit is “frivolous,” and reconsider the previous refusal to allow
Levay to appeal in forma pauperis. For the following reasons, that motion will be denied.
I.

As summarized in the July 11, 2017, opinion and order:
In his complaint, Levay explains that “there have been a high and
increasing number of Islamic motivated violent acts targeting Jews and our places
of worship.” Compl. at 5, ECF No. 1. Levay is a Jew and contends that the
“incitement to imminent violence” found in the Quran and “cited by ISIS, Al
Qaeda” and others has deprived Levay of “the freedom of religious expression.”
Id.
Levay provides an extensive list of requested relief. He wishes the Court
to hold that “specific Koranic verses, presented during the trial, fail the Imminent
Lawlessness Test.” Id. at 6. He also intends to prove a “direct link to specific
Koranic verses extolling among specific Radical Islamic Terrorists as the
underlying motive, cause and essential ‘but for’ for 74 specific Radical Islamic
Terrorist attacks within the US.” Id. He desires a “formal declaration of
incompatibility between Koranic Sharia Law . . . and US Constitutional Law.” Id.
at 7. He also asks that the Court direct Congress to take action by outlawing
certain passages of the Quran, issue a federally sanctioned and edited Koran, and
withdraw tax-exempt status from mosques which do not adopt the new Quran,
and institute a “National Islamic Registry Program.”
July 11, 2017, Op. & Order at 1–2, ECF No. 14.
The Court found that Levay’s suit was frivolous for the following reasons:
First, Levay lacks standing to bring this suit. Levay’s suit seeks relief for the
threat of violence that Islamic extremism poses to him and his community. But he
does not allege injury to him personally, or an imminent, particularized threat of
future injury. See Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (holding that
standing “requires that the party seeking review be himself among the injured”).
Even if Levay did allege an actionable injury, the Court does not have the
authority to direct Congress to legislate on an issue, much less vanquish the
specter of religiously-motivated violence. See Smith & Lee Assocs., Inc. v. City of
Taylor, Mich., 102 F.3d 781, 797 (6th Cir. 1996) (explaining that federal courts
do not have the power to order Congress to enact legislation). And, more
fundamentally, Levay’s requests for a state-issued Koran, a national registry of
Muslims, and financial sanctions for rogue mosques offend basic constitutional
principles. The First Amendment forbids Congress from making a law “respecting
an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.,
Am. I.
Id. at 3–4.
II.

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Levay’s present motion is effectively a motion for reconsideration of the Court’s previous
order. Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for
reconsideration of a previous order, but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the defect will result in a different
disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 731, 733-34
(E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). “[T]he Court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris,
No. 2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).
Levay’s motion could also be construed as a request for relief under Federal Rule of Civil
Procedure 59(e). That Rule allows a party to file a “motion to alter or amend a judgment.” Id.
Motions under Rule 59(e) may be granted “if there is a clear error of law, newly discovered
evidence, an intervening change in controlling law, or to prevent manifest injustice.” GenCorp,
Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations omitted).
“Rule 59(e) motions cannot be used to present new arguments that could have been raised prior
to judgment.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008). If a party is
effectively attempting to “‘re-argue a case’ . . . the district court may well deny the Rule 59(e)
motion on that ground.” Id. (quoting Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146
F.3d 367, 374 (6th Cir. 1998)). Likewise, a Rule 59(e) motion is not an appropriate vehicle to
“‘submit evidence which could have been previously submitted in the exercise of reasonable

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diligence.’” Kenneth Henes Special Projects Procurement v. Cont’l Biomass Indus., Inc., 86 F.
Supp. 2d 721, 726 (E.D. Mich. 2000) (quoting Nagle Industries, Inc. v. Ford Motor Company,
175 F.R.D. 251, 254 (E.D. Mich. 1997)).
III.
Because there was no error in the opinion and order dismissing his complaint, Levay’s
motion will be denied. Each of his requests will be addressed in turn. First, Levay asks the Court
to “[i]ndividually address of the five objections” he previously submitted. Mot. Am. at 1, ECF
No. 16. In reality, Levay filed much more than five objections to Judge Morris’s report and
recommendation. For example, his “first objection” includes five subsections and spans 9 pages.
See Objs, ECF No. 10. Levay now faults the Court for not specifically addressing each argument
made in his 28 pages of objections. Rather than exhaustively addressing the objections, the Court
opted to simply review Levay’s entire complaint de novo. Levay implicitly challenges that
approach, asserting: “If there is any flaw in my objections, not the initial complaint, please say
so.” Mot. Am. at 1 (emphasis in original). But that argument misconstrues Levay’s burden.
Levay must providewell-pleaded factual allegations in the complaint which establish that his
right to relief rises “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Levay’s complaint, not his objections, are the operative pleading in this matter and thus
must meet federal pleading standards. See Federal Rules of Civil Procedure 7(a) & 8(a). In the
July 11, 2017, opinion and order, the Court found that “Levay does not have standing to bring
suit and requests remedies which violate the Constitution.” July 11, 2017, Op. & Order at 4.
Although not specifically addressed, none of Levay’s objections would have changed that
analysis. For purposes of clarity, the three renewed objections which Levay presents in his
motion to amend will be addressed.

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A.
First, Levay contends that he has sufficiently alleged an injury which gives rise to
standing because he has experienced “fear-based and chill-effect injuries [to his] right to freeexercise.” Mot. Am. at 2. Levay repeatedly contends that religious terrorism has had a “chilleffect” on his “own Free-Exercise rights,” but does not specifically explain what impact the
threat of religious terrorism has had on his behavior. Objs. at 2. He asks in his objections whether
“a credible threat of attack on places of worship, based on a pattern of actual recent occurrences,
[would] make one think twice about attending places of religious worship? Would a reasonable
person, [sic] consider just staying home instead of bringing their child to a place of worship?” Id.
But those questions fall short of actually demonstrating that Levay’s own right of free exercise
has been impacted by religious terrorism.
The landmark Supreme Court case on “fear-based” standing is Laird v. Tatum, 408 U.S.
1, 13 (1972). In Laird, the plaintiffs were challenging the Army’s “alleged ‘surveillance of
lawful and peaceful civilian political activity.’” Id. at 3. The Court explained that an individual’s
fear that an “agency might in the future take some other and additional action detrimental to that
individual” does in some cases create a “chilling effect” that can give rise to standing. Id. at 11.
But, the Supreme Court explained, in all cases where standing existed “the challenged exercise
of governmental power was regulatory, proscriptive, or compulsory in nature, and the
complainant was either presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging.” Id. The Supreme Court found that the plaintiffs in Laird
had not adequately alleged an injury that could give rise to standing. The Court explained that
the plaintiffs’
alleged ‘chilling’ effect may perhaps be seen as arising from respondents’ very
perception of the system as inappropriate to the Army’s role under our form of
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government, or as arising from respondents’ beliefs that it is inherently dangerous
for the military to be concerned with activities in the civilian sector, or as arising
from respondents’ less generalized yet speculative apprehensiveness that the
Army may at some future date misuse the information in some way that would
cause direct harm to respondents.
Id. at 13.
“Fear-based” injury of that sort was insufficient to create standing: “Allegations of a
subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm; ‘the federal courts established pursuant to Article III of the
Constitution do not render advisory opinions.’” Id. at 13–14 (quoting United Public Workers of
America (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947).
The fear-based injury which Levay alleges here is analogous to the injury alleged in
Laird. Levay repeatedly establishes his generalized fear that he or his loved ones may be victims
of religiously-motivated violence. But he has provided no examples of specific harm or impact
that the threat of religious violence has actually inflicted on him, personally. Nor are there any
plausible, well-pleaded allegations in the complaint which would support a finding that objective
harm to Levay is imminent. Rather, Levay’s fear is manifestly subjective and thus, as explained
in Laird, insufficiently specific to give rise to standing.
B.
Levay next argues that this Court has authority to provide Levay the remedies he seeks
because “the judiciary has usurped and taken over Congress’s legislative role, even conferred
constitutional rights, bypassing the amendment procedure. Mot. Am. at 2 (emphasis in original).
Simply put, that is not true. The Sixth Circuit has expressly addressed this issue:
Federal Courts do have jurisdiction and power to pass upon the constitutionality
of Acts of Congress, but we are not aware of any decision extending this power in
Federal Courts to order Congress to enact legislation. To do so would constitute
encroachment upon the functions of a legislative body and would violate the time-6 

honored principle of separation of powers of the three great departments of our
Government. This principle is equally applicable to the power of a Federal Judge
to order a state legislative body to enact legislation. The enactment of legislation
is not a ministerial function subject to control by mandamus, prohibition or the
injunctive powers of a court.
Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 797 (6th Cir. 1996) (quoting
Joseph Skillken & Co. v. City of Toledo, 528 F.2d 867, 878 (6th Cir. 1975)).
In his complaint, Levay requests relief which far exceeds the constitutional powers of this
or any other federal court. Unlike in the examples he cites, where federal courts overturned
federal statutes as incompatible with the Constitution, Levay asks this Court to direct Congress
to outlaw certain passages of the Quran, issue a federally sanctioned Quran, withdraw taxexempt status from mosques which do not adopt the new Quran, and institute a National Islamic
Registry Program. See Compl. at 6–8. The Court has no authority to order Congress to take
action. The very fact that Levay’s proposed remedy involves congressional action makes clear
that this Court has no authority to provide the remedy sought.
C.
Even if the Court had authority to direct Congress to take action, the remedies which
Levay requests would violate the Constitution. Levay argues that his proposed remedies do not
violate the Establishment and Free Exercise Clauses of the First Amendment because “[a]
religious belief system cannot be greater than the law of the land, the US Constitution.” Mot.
Am. at 2. But, to the contrary, the Constitution prohibits the federal government from singling
out a particular religion for hostile treatment. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984)
(explaining that the Constitution “affirmatively mandates accommodation, not merely tolerance,
of all religions, and forbids hostility towards any”). Levay argues that violence committed under
the guise of religion should not be protected by the Constitution. But he is not requesting the

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criminalization of religiously-motivated violence (because, of course, any crimes committed will
be prosecuted regardless of whether they were religiously motivated or not). Rather, Levay is
requesting, among other things, that the Court rewrite the Muslim holy book. It is difficult to
imagine greater government entanglement with religion.
IV.
For the reasons provided above and in the July 11, 2017, opinion and order, Levay’s suit
is frivolous. His legal theory is manifestly foreclosed by settled law. As such, no appeal could be
taken in good faith and Levay will not be granted leave to appeal in forma pauperis. See 28
U.S.C. § 1915(a)(3). Levay’s requests to certify the suit as non-frivolous and grant him leave to
proceed in forma pauperis will be denied.
IV.
Accordingly, it is ORDERED that Plaintiff Levay’s Motion to Amend, ECF No. 16, is
DENIED.

Dated: August 16, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 16, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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