Baisden v. Barr

LOWELL A. BAISDEN, Plaintiff, v. WILLIAM P. BARR, in his official capacityas Attorney General of the United States, et al., Defendants.

No. 19-cv-3105 (KBJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

October 16, 2020

MEMORANDUM OPINION AND ORDER

On January 31, 2012, Plaintiff Lowell Baisden was sentenced to a 37-month term of imprisonment after pleading guilty to willfully attempting to evade the federal income tax that his two co-defendants owed. See Judgment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 283 (D. Neb. Jan. 31, 2012). Thus, Baisden has been convicted of "a crime punishable by imprisonment for a term exceeding one year[,]" and, as a result, he is now prohibited from possessing "any firearm or ammunition" under federal law. 18 U.S.C. § 922(g)(1); see also id. § 922(d)(1) (making it unlawful "to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . has been convicted . . . of[] a crime punishable by imprisonment for a term exceeding one year"). On October 3, 2019, Baisden filed the instant civil action against Defendants William P. Barr, in his official capacity as Attorney General of the United States, and Regina Lombardo, in her official capacity as Acting Deputy Director of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") (collectively, "Defendants"), to seek "declaratory and injunctive relief" (see Compl., ECF No. 1, ¶ 1) that allows him to possess a firearm pursuant to the statutory exemption for "offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices[,]" 18 U.S.C. § 921(a)(20)(A).

Before this Court at present is the government's motion to dismiss Baisden's complaint (see Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 6), which Baisden opposes (see Pl.'s Opp'n to Def.'s Mot. ("Pl's Opp'n"), ECF No. 8). In the motion to dismiss, the government argues that Baisden has failed to allege facts that demonstrate that he has Article III standing (see Def.'s Mot. at 9-13), and that, in any event, Baisden has not stated a claim on which relief can be granted, because federal tax evasion does not fall within the statutory exception to the federal prohibition on possession of firearms by felons (see id. 13-20).¹

For the reasons explained below, this Court agrees with the government that, given the factual allegations contained in Baisden's complaint, Baisden has yet to allege any cognizable, non-speculative injury that is capable of supporting Article III standing. Consequently, Defendants' motion to dismiss will be GRANTED, and Baisden will be provided with an opportunity to amend his complaint and attempt to cure this defect, such that the Court may exercise subject-matter jurisdiction over his claims consistent with its Article III authority.

I. BACKGROUND²

In 2009, Baisden was a resident of Bakersfield, California, and was a licensed certified public accountant ("CPA") in California. See Indictment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶ 3 (D. Neb. Mar. 20, 2009). In this capacity, Baisden provided accounting, tax preparation, and consulting services to clients in California, Nebraska, and other states. See id. In 2004, in conjunction with preparing tax returns for a married couple, Baisden "submitted false tax returns in an effort to evade the income tax owed by the couple to the United States." United States v. Baisden, 713 F.3d 450, 452 (8th Cir. 2013).

On March 20, 2009, a grand jury indicted Baisden on five criminal counts, including willfully attempting to evade and defeat the income tax due for the married couple in the amount of $236,217, in violation of 26 U.S.C. § 7201, and 18 U.S.C. § 2. See Indictment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶¶ 30-31 (D. Neb. Mar. 20, 2009). Baisden pleaded guilty to this charge on January 31, 2012, in exchange for the government dismissing the remaining counts in the indictment, see Plea Agreement, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 223, at 1 (D. Neb. Oct. 3, 2011), and the district court sentenced him to a term of 37 months of imprisonment, see Judgment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 283, at 1 (D. Neb. Jan. 31, 2012). Baisden served his term of incarceration at Taft Correctional Institute in California, and was released on July 8, 2014. (See Compl.¶ 31.) Shortly thereafter, jurisdiction over his criminal case was transferred to the Eastern District of California, see Transfer of Jurisdiction, United States v. Baisden, No. 1:15-cr-3, ECF No. 2 (E.D. Cal. Jan. 8, 2015), and the associated period of supervised release was terminated on June 16, 2016 (see Compl. ¶ 35).

Baisden filed the instant lawsuit, pro se, against the Attorney General and ATF on October 3, 2019. (See Compl. at 1.) The complaint includes a long and detailed recitation of the civil and criminal tax-related actions that the United States brought against Baisden and his co-defendants between 2002 and 2016, which are not relevant for purposes of the instant dispute. (See generally id. ¶¶ 4-38, 48-67.) The complaint also discusses, at times verbatim, the standing analysis in Reyes v. Sessions, 342 F. Supp. 3d 141 (D.D.C. 2018)—a case that similarly involved a convicted felon's challenge to the federal ban on firearms possession. (See Compl. ¶¶ 39-44.) In particular, Baisden's complaint recounts that the court in Reyes held that the plaintiff had alleged "the injury of not being able to purchase or obtain firearms" (id. ¶ 42), and that he had "pleaded sufficient facts to establish [that] injury in fact" (id. ¶ 43)—findings that Baisden says apply to his case as well (see id. ¶ 44 ("Baisden possesses this same standing.")). Baisden's complaint also states that he is seeking "declaratory and injunctive relief in regard to the complete denial, under Section 922 of Title 18 of United States Code, of [his] Second Amendment right to keep and bear arms solely and exclusively as a result of his 2011 conviction for aiding and abetting federal income tax evasion offense." (Id. ¶ 1.)

On January 17, 2020, Defendants filed a motion to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. (See Defs.' Mot., ECF No.6; see also Reply Mem. in Supp. of Defs.' Mot. ("Defs.' Reply"), ECF No. 9.) Specifically, Defendants argue that Baisden lacks Article III standing, for two reasons: first, because he has not alleged any "particularized and non-conjectural injury" such as any plans to own a firearm (see Defs.' Reply at 10); and, second, because any claimed injury by operation of the challenged federal laws is neither fairly traceable to those laws nor redressable by a favorable ruling in this case, given that "an independent statute in California, Plaintiff's state of residence, specifically bars him from possessing a firearm due to his felony conviction" (Defs.' Mot. at 3). Additionally, the government argues that, "even if Plaintiff had standing to challenge the application of federal law to him, his claim fails as a matter of law[,]" because "the primary purpose and the elements of the federal tax evasion statute demonstrate[] that it is designed primarily to deter and punish loss of revenues to the United States Treasury, rather than to address competitive harm or economic harm to consumers[,]" and, therefore, Baisden's "conviction for tax evasion does not fall within the scope of the statutory business practices exception." (Id. at 3-4.)

Baisden opposes the government's motion. His response brief contends that he has Article III standing because he "is living with his relatives in both California and Ohio" (Pl.'s Opp'n at 5), and, "last year, [he] realized that he live[d] in Ohio long enough to qualify under state law to exercise his gun rights" (id. at 6), which means that, "but for his 2011 Federal conviction, Baisden is being currently prevented from exercising his constitutionally-protected gun rights in Ohio where Baisden can use guns today" (id. at 7). In support of constitutional standing, Baisden also argues that he would be permitted to own a firearm under the laws of at least twenty other states, andthat he "will have gun rights in the future" in six additional states. (Id. at 8.) Moreover, on the merits, Baisden takes the position that his crime of conviction—aiding and abetting tax evasion—is designed primarily to address economic harm to consumers, and thus qualifies under the business practices exception. (See id. at 9-12.)

The government filed its reply brief on February 10, 2020 (see Defs.' Reply, ECF No. 9), and Baisden filed an opposed motion for leave to file a surreply on February 20, 2020 (see Pl.'s Mot. for Leave to File a Surreply ("Pl.'s Surreply"), ECF No. 10; see also Defs.' Mem. in Opp'n to Pl.'s Surreply, ECF No. 11; Pl.'s Reply to Pl.'s Surreply, ECF No. 12).³ These motions are now ripe for decision.

II. LEGAL STANDARDS

A. Rule 12(b)(1) Motions To Dismiss For Lack Of Jurisdiction

The doctrines of standing, mootness, and ripeness are "[t]hree inter-related" doctrines of justiciability that determine the "constitutional boundaries" of a court's jurisdiction. Worth v. Jackson, 451 F.3d 854, 855-57 (D.C. Cir. 2006). "Under Rule 12(b)(1), it is to be presumed that a cause lies outside the federal courts' limited jurisdiction, unless the plaintiff establishes by a preponderance of the evidence that the Court possesses jurisdiction," Muhammad v. F.D.I.C., 751 F. Supp. 2d 114, 118 (D.D.C. 2010) (internal quotation marks, citations, and alteration omitted), and thus Rule 12(b)(1) imposes on the court an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority[,]" Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005) (internal quotation marks and citations omitted)).

When ruling on a Rule...