Haan v. Noem

Filing 7

ORDER OF DISMISSAL granting 3 Motion to Dismiss. Signed by Charles B. Kornmann on October 17, 2013. (DLC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

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CHARLES W. HAAN
Plaintiff,
-vs­
KRISTI NOEM,
U.S. Representative for South Dakota,
Defendant.

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CIV 13-1009

ORDER OF DISMISSAL

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Charles W. Haan, dissatisfied with Congresswoman Noem's job performance and
voting record, mailed a copy of his state court complaint by first-class mail on January 23,
2013, but did not file his summons or complaint with the state court at that time. Mr.
Haan was mistaken as to what constituted proper service of process. He then filed his
complaint on March 4, 20l3, in the Third Judicial Circuit of the South Dakota Unified
Judicial System. On March 8, 2013, the sheriffs department hand-delivered a copy of the
complaint to an office of Congresswoman Noem in Watertown, South Dakota, possibly
completing a proper service of process.
On March 27, 20l3, Kristi Noem filed a notice of removal pursuant to 28 U.S.c.
§§ 1442 and 1446, and moved to dismiss this action. Acting as an "officer of the United
States," Congresswoman Noem's Notice of Removal is proper. Williams v. Brooks, 945
F.2d l322,l325 n.2 (5 th Cir. 1991) ("[RJemoval is proper under section l442(a)(l)... as a
congressman is an 'officer of the United States' within the meaning of that subsection.").
The Speech or Debate Clause, U.S. Const. Art. I, § 6, cl. 1 provides that, "for any
Speech or Debate in either House, [Senators and Representatives J shall not be questioned

in any other Place." This clause has been interpreted to offer absolute immunity to
"legislators acting within the sphere oflegitimate legislative activity," Eastland v. United
States Servicemen's Fund 421 U.S. 491,503 (1975), which encompasses all activities that
are:
'an integral part of 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.'
Id. at 504 (quoting Gravel v. United States. 408 U.S. 606,625 (1972)). When examining

whether a given act is within the legitimate legislative sphere, courts must read the
Speech or Debate Clause "broadly to effectuate its purposes." United States v. Johnson,
383 U.S. 169, 180 (1966).
Congresswoman Noem's voting record, a "purely legislative activity," must be
protected and is absolutely immune from a civil complaint in court. The Speech or
Debate Clause "is intended to allow Senators and Representatives to speak and vote their
conscience without fear of retribution." (citing GraveL 408 U.S. at 616).
Congresswoman Noem also moved to dismiss because the court lacks subject matter
jurisdiction. Pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing subject
matter jurisdiction. Charles W. Haan lacks Article III standing.
Standing is a jurisdictional prerequisite to suit in federal court. To establish
standing, plaintiff must allege: (1) an actual or threatened injury, (2) resulting from the
action challenged, which is (3) likely to be redressable in a judicial action. See Valley
Forge Christian CoIl. v. Ams. United for Separation of Church and State, Inc., 454 U.S.
464, 475-76 (1982), and Lujan v. Defenders of Wildlife, 504 U.S. 555,560 (1992).
Mr. Haan bears the burden of establishing the elements of standing, and "each
element must be supported in the same way as any other matter on which the plaintiff
bears the burden of proof." Lujan. 504 U.S. at 561. Mr. Haan's theory as to injury is that,
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by voting to raise the debt ceiling, Congresswoman Noem breached her duties and
promises, and raised Mr. Haan's individual citizen's share of the national debt from
$42,000 to $55,000. This contention has no merit because there is no showing of injury.
For example, Mr. Haan may never be required to pay income taxes to retire the national
debt. He may not live long enough to pay anything. All his claims are pure speculation
and not redressable. "Standing has been rejected" where "the alleged injury is not
'concrete and particularized; but instead a grievance the taxpayer suffers in some
indefinite way in common with people generally.'" (quoting Lujan and Massachusetts v.
Mellon, 262 U.S. 447, 488 (1923)). Mr. Haan fails to demonstrate an injury which is
sufficiently particular and concrete to grant him standing.
Defendant argues that Mr. Haan has failed to state a claim for which relief can be
granted by judicial decision. Mr. Haan's complaint is based on his apparent
dissatisfaction with Congresswoman Noem's job performance. Haan states that the
Congresswoman had a duty to legislate consistent with Mr. Haan's political preferences,
and that she breached such a duty. Adams v. Richardson, 871 F. Supp 43, 45 (D.D.C.
1994), states that "Plaintiff has no constitutional right to have [his] Congressman... make
particular decisions or take particular actions." See also Lance v. Coffman, 549 U.S.
437,439 (2007) (reaffirming "lengthy pedigree" of Supreme Court's refusal "to serve as a
forum for general grievances" about government); Newell v. Brown. 981 F.2d 880,887
(6 th Cir. 1992) (upholding dismissal of claim against Congressman arising out of service
to constituent, stating that "[ fJor the federal judiciary to subject members of Congress to
liability for simply doing their jobs would be unthinkable"), cert denied, 510 U.S. 842
(1993).
The specific relief Mr. Haan is seeking, in particular, is that the Congresswoman
be ordered to resign or be removed from office as a U.S. Congressperson. This court
lacks the authority to grant such relief. The authority to discipline Members of the House
and to remove them from office is textually committed by the Constitution to each house
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of congress, and not the judiciary. See U.S. Const. art. I § 5, cl. 2 ("Each House may...
punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds,
expel a Member.")
Mr. Haan's suit against Congresswoman Noem is also barred by sovereign
immunity. "The United States, as sovereign, is immune from suit save as it consents to be
sued, and the terms ofits consent to be sued in any court define that court's jurisdiction to
entertain the suit." United States v. Sherwood. 312 U.S. 584, 586 (1941). This immunity
extends to Members of Congress, such as Congresswoman Noem, when sued in an
official capacity. See Keener v. Congress. 467 F.2d 952, 953 (5 th Cir. 1972). Sovereign
immunity precludes the exercise ofjurisdiction over Congresswomen Noem, absent an
"unequivocally expressed" waiver of that immunity. United States v. King. 395 U.S. 1,4
(1969).
Pursuant to 28 U.S.c. § 1915(e)(2)(b)(I), this court has "the authority to dismiss a
claim based on an indisputably meritless legal theory." Denton v. Hernandez. 504 U.S.
25, 32 (1992).
Mr. Haan has failed to respond to any of Congresswoman Noem's arguments
regarding his lack of Article III standing, the applicability of sovereign immunity, his
failure to state a claim for which relief can be granted, and the facially frivolous nature of
his complaint under 28 U.S.c. § 1915(e)(2)(b)(I). Because Mr. Haan has not responded
substantively to these arguments, the court can and should treat them as conceded and
waived. See Nev. Comm'n on Ethics v. Carrigan, 131 S. Ct. 2343, 2351 (2011), and
Bancoult v. McNamara. 277 F. Supp. 2d 144, 149 (D.D.C. 2002) ("[I]fthe opposing party
files a responsive memorandum, but fails to address certain arguments made by the
moving party, the court may treat those arguments as conceded, even when the result is
dismissal of the entire case").

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Now, therefore,

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IT IS ORDERED as follows:
(1) The defendant's motion to dismiss, Doc. 3, is granted and the action is

dismissed on the merits and with prejudice.
(2) Costs shall be taxed against plaintiff.

Dated this

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October, 2013.
of

BY THE COURT:

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CHARLES B. KORNMANN

United States District Judge

ATTEST:

JOE HAAS, CLERK

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(SEAL)

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