Olson v. Social Security Administration et al

Filing 40

ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS; granting 17 Motion to Substitute Party; granting in part and denying in part 17 Motion to Dismiss for Lack of Jurisdiction; granting 17 Motion to Dismiss for Failure to State a Claim; and granting 17 Motion to Dismiss Without Prejudice by Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Kevin L. Olson,
Plaintiff,

Case No. 3:16-cv-93

-vs-

ORDER ADOPTING REPORT AND
RECOMMENDATION

Social Security Administration, Nancy
A. Berryhill, Acting Commissioner, and
Department of the Treasury, Steven T.
Mnuchin, Secretary of the Treasury,
Defendants.
Pursuant to 28 U.S.C. § 636, the court has received a Report and Recommendation
from the Honorable Alice R. Senechal, United States Magistrate Judge.1 The Report and
Recommendation recommends that the defendants’ motion to substitute the United States
as the sole defendant be granted and that Olson’s complaint be dismissed in its entirety
without prejudice. Olson timely filed objections to the Report and Recommendation.2 The
United States responded to the objections on March 21, 2017. The written submissions that
have been authorized by the magistrate judge are now complete.
In his objections, Olson claims the magistrate judge improperly sequenced and
commingled the “Acts, Laws, and Relief” he relies on in his documents; he generally objects
to the magistrate judge’s finding that the United States should be the sole defendant in this
action; he asserts the magistrate judge failed to distinguish two “conditions of ‘official
capacities’”, namely ministerial duties by oath and discretionary duties of office; he believes
the magistrate judge improperly applied the doctrine of sovereign immunity; he repeats
1

Doc. #35.

2

Doc. #36.

1

previous arguments he made in the documents already on file with the court; and he
requests that all motions by the defendants be denied and that he be granted his requested
relief. The undersigned reviews objections to the Report and Recommendation de novo.
Olson has commenced this action challenging the constitutionality of religious
exemptions contained in the Patient Protection and Affordable Care Act (“ACA”) and the
Federal Insurance Contributions Act (“FICA”). A careful review of Olson’s submissions and
the applicable case law establishes that Olson has failed to state a plausible claim that would
entitle him to relief under the ACA or FICA. The court has considered the case law, Olson’s
objections, the magistrate judge’s Report and Recommendation, and the entire record.
Upon review, the court finds the magistrate judge’s analysis and recommendations for
disposition are appropriate. None of Olson’s objections persuade the undersigned that the
magistrate judge erred in her recommendations for disposition. The undersigned hereby
adopts the Report and Recommendation in its entirety. For the reasons stated therein, IT
IS HEREBY ORDERED as follows:
(1)

The defendants’ motion to substitute the United States3 as the sole defendant
is GRANTED.

(2)

The defendants’ motion to dismiss for lack of subject matter jurisdiction4 is
GRANTED as to (a) any Bivens claims, (b) Olson’s claim for refunds of the
SRP and FICA/SECA taxes, (c) Olson’s claim for monetary damages, (d)
Olson’s claim for injunctive and declaratory relief under the FICA/SECA, and
(e) any ADA claims.

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Doc. #17.

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Doc. #17.

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(3)

The defendants’ motion to dismiss for lack of subject matter jurisdiction5 is
DENIED as to Olson’s claims for injunctive and declaratory relief regarding
the ACA.

(4)

The defendants’ motion to dismiss for failure to state a claim6 is GRANTED
as to (a) Olson’s claim that the SRP is an unconstitutional tax, (b) Olson’s
Establishment Clause claim regarding the ACA, (c) Olson’s Free Exercise
Clause claim regarding the ACA, and (d) his Equal Protection Clause claim
regarding the ACA.

(5)

The defendants’ motion to dismiss for lack of personal jurisdiction and
insufficient service of process7, or alternatively for failure to state a claim is
GRANTED as to all claims raised against other governmental entities and
employees.

(6)

Any claims raised after the filing of the complaint or supplement to the
complaint have not been properly pled, and even if properly pled, the claims
fail to state a plausible claim and are subject to dismissal.

(7)

Olson’s complaint is DISMISSED in its entirely without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 22nd day of March, 2017.
/s/ Ralph R. Erickson
Ralph R. Erickson, District Judge
United States District Court

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Doc. #17.

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Doc. #17.

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Doc. #17.

3