Lipiec v. Attorney General et al

Filing 16

ORDER Granting Defendants' 9 Motion to Dismiss. Signed by District Judge Terrence G. Berg. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT EDWARD LIPIEC,
Plaintiff,

v.

Case No. 13-11123

ATTORNEY GENERAL, et al.,
Defendants.

HON. TERRENCE G. BERG
HON. MONA K. MAJZOUB
/

ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on Defendants’ June 12, 2013 motion to dismiss
the amended complaint (Dkt. 9). Plaintiff filed a response on August 29, 2013, and
later filed an “amendment to the first filing regarding the motion” (Dkt. 14) and an
“addition to previous submissions” (Dkt. 15). Having reviewed the motion and
accompanying exhibits, Plaintiffs’ responses, and the remainder of the record, the
Court finds that these documents adequately present the issues now before the
Court, and that oral argument would not aid the decision. Accordingly, the Court
will decide the motion without a hearing. E.D. Mich. LR 7.1(f)(2).
For the reasons set forth below, it is ORDERED that the Defendants’ motion to
dismiss (Dkt. 9) is GRANTED and the entire matter is DISMISSED WITH
PREJUDICE.
I.

FACTUAL BACKGROUND

This case is a challenge to Patient Protection and Affordable Care Act (“the
Act”). (Dkt. 1 at 2.) Plaintiff alleges that the “individual mandate” and its “method

of collection” conflicts with the United States Constitution. (Id.) The complaint was
submitted by pro se Plaintiff, and purports to bring claims against the Attorney
General, the United States Attorney, and the Director of Health and Human
Services.1 (Id.) Plaintiff requests that the Act be made void. (Id. at 16.)
II.

LEGAL STANDARD

Defendants’ motion is made under Federal Rule of Civil Procedure 12(b)(1) and
alternatively under Rule 12(b)(6).
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for lack of subject
matter jurisdiction. Lack of subject matter jurisdiction is a non-waivable, fatal
defect. See Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990). Plaintiff has
the burden of proving subject matter jurisdiction to survive a motion to dismiss
brought under Rule 12(b)(1). See Madison-Hughes v. Shalala, 80 F.3d 1121, 1130
(6th Cir. 1996). “A facial attack on the subject-matter jurisdiction alleged in the
complaint questions merely the sufficiency of the pleading. When reviewing a facial
attack, [the] court takes the allegations in the complaint as true . . . . If those
allegations establish federal claims, jurisdiction exists.” Gentek Bldg. Products, Inc.
v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
A Rule 12(b)(6) motion tests whether a legally sufficient claim has been pleaded
in a complaint, and provides for dismissal when a plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to

As Plaintiff identifies the “Director of Health and Human Services” as “currently Kathleen
Sebelius,” the Court assumes Plaintiff means the United States Secretary of Health and Human
Services. For similar reasons, the Court assumes that by Attorney General and United States
Attorney, Plaintiff means the Attorney General of the United States and the United States Attorney
for the Eastern District of Michigan.

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dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is
facially plausible when a plaintiff pleads factual content that permits a court to
reasonably infer that the defendant is liable for the alleged misconduct. Id. (citing
Twombly, 550 U.S. at 556). When assessing whether a plaintiff has set forth a
“plausible” claim, the district court must accept all of the complaint’s factual
allegations as true. Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001).
“Mere conclusions,” however, “are not entitled to the assumption of truth. While
legal conclusions can provide the complaint’s framework, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 664. A plaintiff must provide “more than
labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 556. Therefore, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
In ruling on a motion to dismiss, the Court may consider the complaint as well
as (1) documents that are referenced in the plaintiff’s complaint or that are central
to plaintiff’s claims, (2) matters of which a court may take judicial notice, and (3)
documents that are a matter of public record. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also Greenberg v. Life Ins. Co. of Virginia,
177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to

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dismiss that are referred to in the complaint and central to the claim are deemed to
form a part of the pleadings).
III.

ANALYSIS

Plaintiff has failed to allege facts establishing his standing to sue, and this
failure is fatal to his Complaint. See Raines v. Byrd, 521 U.S. 811, 818–19 (1997).
While his lack of standing is enough by itself to require dismissal of the complaint,
Plaintiff has also failed to state a claim upon which relief can be granted and this
deficiency cannot be cured by amendment. The entire matter is, therefore,
DISMISSED WITH PREJUDICE.
A.

Plaintiff Has Not Alleged Facts Establishing His Standing to Sue.
Plaintiff challenges the “individual mandate” provision from the Act, 26 U.S.C. §

5000A, but he has not alleged in any way how he will be harmed by that provision
or the implementation of it. He mentions burdens it will impose on him (Dkt. 1 at
2), but he does not allege sufficient facts to support those allegations. See Iqbal, 556
U.S. at 678. He has not alleged that he has been subjected to any penalty, fine, or
other harm because of the “mandate.” He has not alleged that he has been fined or
penalized, nor has he even alleged that he will be fined or penalized. It is not clear
whether he is currently insured, whether he is regularly employed, whether his
employer provides health insurance for him, whether he is not exempted from the
tax, and so on. The complaint is completely devoid of facts necessary to establish his
standing to sue.

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Plaintiff appears to argue that he has standing to sue because he is a taxpayer
and that tax dollars are being used for unconstitutional purposes. (Dkts. 12, 14.)
Plaintiff is incorrect. “A plaintiff’s status as a federal taxpayer generally does not
give rise to the kind of redressable personal injury required for Article III standing .
. . . [A] taxpayer’s interest in the disbursement of federal appropriations is too
generalized and attenuated to establish a particularized injury to the taxpayerplaintiff.” Murray v. U.S. Dept. of Treasury, 681 F.3d 744, 748 (6th Cir. 2012)
(internal quotations omitted), cert denied, 133 S. Ct. 792 (2012). While there is a
narrow exception when taxpayer-standing is permitted, this case does not meet at
least the second part of the applicable two-part test. See Flast v. Cohen, 392 U.S. 83,
102–03 (1968) (“[T]he taxpayer must establish a nexus between that status and the
precise nature of the constitutional infringement alleged. Under this requirement,
the taxpayer must show that the challenged enactment exceeds specific
constitutional limitations imposed upon the exercise of the congressional taxing and
spending power and not simply that the enactment is generally beyond the powers
delegated to Congress by Art. I, [§] 8.”)
Because Plaintiff has not alleged facts sufficient to establish his standing to sue,
this Court lacks subject-matter jurisdiction over his claims. The complaint must,
therefore, be dismissed.
B.

Plaintiff Fails to State a Claim Upon Which Relief Can Be Granted.
Plaintiff offers four arguments as to why the “individual mandate” is

unconstitutional. (Dkt. 1 at 4.) All of these arguments are groundless and fail.
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Plaintiff argues that the Individual Mandate is “not uniform as required by
Article 1 Section 8 Part 1” of the United States Constitution. (Dkt. 1 at 5–6.) This is
incorrect. While Plaintiff expressly states that his challenges to the Act are distinct
from the arguments made in National Federation of Independent Business v.
Sebelius, and are not foreclosed by that decision, he is wrong. In that case the
Supreme Court considered whether the enforcement mechanism for the “individual
mandate” was constitutional, and clearly held that “the Constitution permits such a
tax.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012). The fact
that the Court did not directly discuss Plaintiff’s specific argument does not change
the clear holding of that case. Further, as Defendants argue, the individual
mandate does not even implicate the Uniformity Clause, which is a prohibition
against taxes that are not uniformly applied geographically without a rational
basis. See United States v. Ptasynski, 462 U.S. 74, 81–86 (1983).
Plaintiff next argues that the individual mandate is “more akin to the reappropriation of property than an income tax, sales tax, sin tax, etc.; therefore
should be protections [sic] under the 5th Amendment.” This argument appears to be
saying that the individual mandate is either an illegal deprivation of property
without due process of law or a taking, in violation of the Fifth Amendment. (Dkt. 1
at 4, 7.) This is also incorrect. Again, the Supreme Court clearly held that “the
Constitution permits such a tax.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566, 2600 (2012). The fact that the Court did not directly discuss Plaintiff’s specific
argument does not change the clear holding of that case. Further, the Sixth Circuit

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Court of Appeals has also more directly rejected Plaintiff’s arguments. See U.S.
Citizens Ass’n v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013); McCarthy v. City of
Cleveland, 626 F.3d 280, 285 (6th Cir. 2010).
Plaintiff next argues that the individual mandate is an unconstitutional “ex
post facto law.” (Dkt. 1 at 4, 9.) This is also incorrect. “[A]n ex post facto law is one
that ‘imposes a punishment for an act [that] was not punishable at the time it was
committed; or imposes additional punishment to that then prescribed.’” United
States v. Brady, 88 F.3d 225, 227 (3d Cir. 1996) (quoting Cummings v. Missouri, 71
U.S. 277, 325–26 (1866)). Put another way, the Ex Post Facto Clause prohibits only
certain laws that have retroactive effect. See Johnson v. United States, 529 U.S.
694, 699 (2000). Ex post facto means “after the fact,” and the Constitution prohibits
ex post facto laws that try to criminalize an activity, after the fact, that was legal at
the time it was committed. U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1. An example
would be passing a new law making it an offense to drive without a seatbelt, and
then trying to apply that law by prosecuting people who drove without a seatbelt
before the law went into effect. The penalty related to the individual mandate
applies only to conduct that occurs after the law came into effect. Contrary to
Plaintiff’s apparent belief, the individual mandate is plainly not retroactive. The
Supreme Court clearly held that “the Constitution permits such a tax.” Nat’l Fed’n
of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012). This holding means that the
individual mandate is permitted under the Constitution, even though the Court did
not directly discuss Plaintiff’s specific argument.

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Plaintiff lastly argues that the individual mandate violates the Ninth
Amendment because it is extortionate. (Dkt. 1 at 4, 10.) The Ninth Amendment
states in full: “The enumeration in the Constitution of certain rights shall not deny
or disparage others retained by the people.” U.S. Const. amend. IX. The Ninth
Amendment “does not confer substantive rights.” Gibson v. Matthews, 926 F.2d 532,
537 (6th Cir. 1991). Therefore, Plaintiff’s argument that the individual mandate is
extortionate may not be raised as a violation of the Ninth Amendment. The
Supreme Court has held that the individual mandate’s enforcement mechanism
does not violate the Constitution. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566, 2600 (2012). The fact that the Court did not directly discuss Plaintiff’s specific
argument does not change the clear holding of that case.
CONCLUSION
Plaintiff’s complaint fails to establish his standing to sue, fails to state a claim
upon which relief can be granted, and cannot be redeemed by amendment.
Accordingly, it is ORDERED that Defendants’ motion to dismiss (Dkt. 9) is
GRANTED and the complaint is DISMISSED WITH PREJUDICE.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: March 24, 2014
Certificate of Service
I hereby certify that this Order was electronically submitted on March 24, 2014, using the
CM/ECF system, which will send notification to each party.
By: s/H. Monda for A. Chubb
Case Manager
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