Changizi v. Dep't of Health & Human Servs.

602 F.Supp.3d 1031

Mark CHANGIZI, et al., Plaintiffs,

v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Case No. 2:22-cv-1776

United States District Court, S.D. Ohio, Eastern Division.

Signed May 5, 2022

Angela M. Lavin, Cleveland, OH, Jay R. Carson, Frantz Ward LLP, Cleveland, OH, Jenin Younes, Pro Hac Vice, John Julian Vecchione, Pro Hac Vice, New Civil Liberties Alliance, Washington, DC, for Plaintiffs.

Kuntal Cholera, DOJ-Civ, Washington, DC, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

This matter arises on Plaintiff Mark Changizi, Daniel Kotzin, and Michael Senger's (collectively, "Plaintiffs") Motion for Preliminary Injunction (ECF No. 9) and Motion for Limited Expedited Discovery, or, in the Alternative, to Exclude Defendants’ Evidence (the "Motion to Compel") (ECF No. 27), to which Defendants Department of Health and Human Services, Surgeon General Vivek Murthy, and Secretary Xavier Becerra (collectively, "Defendants" or "HHS") have responded (ECF Nos. 31, 32). Simultaneously, HHS moves to dismiss Plaintiffs’ claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Motion to Dismiss"). (ECF No. 30.)

For the reasons stated herein, the Court GRANTS HHS’ Motion to Dismiss (ECF No. 30) and DENIES AS MOOT Plaintiffs’ Motion for Preliminary Injunction (ECF No. 9) and Motion to Compel (ECF No. 27).

I. INTRODUCTION

Plaintiffs are three Twitter users who, for the better part of the past two years, have used their respective platforms to criticize conventional government responses to the COVID-19 pandemic. Until recently, Plaintiffs allege that Twitter more or less provided a free environment for users like them, "rarely suspending" individuals who—as Plaintiffs often did—questioned the "wisdom, efficacy, and morality" of public "lockdowns and mask and vaccine mandates." By March of 2021, however, the website allegedly changed its tune, doling out suspensions for violations of its policy against "demonstrably false or misleading COVID-19 information" at a faster rate. Plaintiffs state they were ensnared in this crackdown. Now, they claim to be "heavily censored" on, or entirely banned from, the platform.

But Plaintiffs do not fault Twitter for allegedly stifling their COVID-19-related "tweets." To them, Twitter's actions were (and are) puppeteered by the federal government—or, more precisely, the executive branch of the federal government. Plaintiffs allege that, for nearly a year, members of the administration—including the Surgeon General—have waged an ostensible war against the spread of COVID-19 "misinformation" with the true intent of silencing individuals who, like them, express "opinions that diverge from the White House's messaging on COVID-19." They believe that Twitter has directly capitulated to this pressure campaign. And they contend that the public record bears this theory out.

Plaintiffs specifically rely on the days following March 3, 2022, to illustrate their point. On that date, the Surgeon General issued a Request for Information which, in relevant part, asked platforms like Twitter to voluntarily provide HHS with, inter alia , information concerning the breadth, channels, and "major sources" of "COVID-19 misinformation" (the "RFI"). Plaintiffs contend that the language of the RFI, along with "previous and contemporaneous statements" by various Biden Administration officials, effectively put companies like Twitter "on notice" that the administration is "likely to escalate" its "involvement in social media censorship"—namely, through "adverse regulatory action." This, Plaintiffs assert, prompted Twitter to again "ramp up" enforcement of its COVID-19 policy to escape the administration's crosshairs—which, in turn, led the platform to muzzle Plaintiffs’ accounts.

Plaintiffs thus accuse HHS of "instrumentalizing" or "commandeering" Twitter to both censor and "chill" online criticism of the government's pandemic response—activity which they assert infringed (and, in some respect, continues to infringe) (1) their rights under the First and Fourth Amendments of the United States Constitution, (2) the Administrative Procedure Act (the "APA"), and (3) 42 U.S.C. § 264(a). They now seek a range of declaratory and injunctive relief, including a preliminary injunction which requires HHS to both retract the RFI and abstain "from enforcing coercive policies or conditions that exert pressure upon Twitter and other technology companies to censor users."

II. MOTION TO DISMISS

HHS contends that this Court lacks subject-matter jurisdiction to adjudicate Plaintiffs’ claims because Plaintiffs do not have standing to bring them in the first place. It also contends that Plaintiffs have not sufficiently established that they are entitled to the relief they seek. Accordingly, HHS now moves to dismiss Plaintiffs’ claims in their entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 30, 31.)

A. Legal Standards

1. Rule 12(b)(1)

Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction "fall into two general categories: facial attacks and factual attacks." United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). "A facial attack is a challenge to the sufficiency of the pleading itself," whereas "[a] factual attack challenges ‘the factual existence of subject matter jurisdiction.’ " Id. The distinction between the two is significant: for facial attacks, federal courts must take the complaint's "material allegations" as true and construe them in the "light most favorable" to the non-movant; for factual attacks, no level of presumptive truthfulness is warranted. Id. Rather, "the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. However a court construes the defendant's Rule 12(b)(1) motion, one thing remains true: "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice" to defeat it. O'Bryan v. Holy See , 556 F.3d 361, 376 (6th Cir. 2009) (citing Mezibov v. Allen , 411 F.3d 712, 716 (6th Cir. 2005) ); accord Rote v. Zel Custom Mfg. LLC , 816 F.3d 383, 387 (6th Cir. 2016).

"Standing is a component of subject-matter jurisdiction." Harris v. Lexington-Fayette Urban Cnty. Gov. , 685 Fed. Appx. 470, 472 (6th Cir. 2017) (citation omitted). And it is a component that HHS, in bringing its Rule 12(b)(1) motion, contends Plaintiffs have entirely failed to establish. (ECF No. 31.) But neither HHS nor Plaintiffs identify whether HHS’ standing argument is explicitly "facial" or "factual" in nature. This is a curious oversight, given that HHS relies on various posts by Twitter officials—portions of which Plaintiffs directly reference in their complaint—as part of a larger attack on the sufficiency of Plaintiffs’ initial pleading. (See id. at PageID #211) (arguing that, contrary to Plaintiffs’ assertion otherwise, "the chronology of events, as informed by sources cited by Plaintiffs themselves, firmly undermines any inference of a causal link" between HHS’ alleged conduct and Twitter's disciplinary actions) (emphasis in original). In other words, HHS, in mounting what is more or less a facial 12(b)(1) attack, also challenges a core factual premise of Plaintiffs’ complaint: that the Surgeon General "caused" Twitter to take more severe action against COVID-19 "misinformation." (Id. ) And it uses external documents that Plaintiffs cite in their initial pleading to do so. The question, then, is whether the Court may consider HHS’ use of that evidence in its standing analysis, or whether it must solely operate on Plaintiffs’ allegations.

Generally, "[i]f an attack on subject matter jurisdiction ... implicates an element of the cause of action," courts must "confine [their] jurisdictional inquiry to the allegations in the plaintiff's complaint, no matter what evidence a defendant has submitted in attempting to disprove jurisdiction." Harris , 685 Fed. Appx. at 472 (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , 491 F.3d 320, 330 (6th Cir. 2007) ). Here, HHS’ Rule 12(b)(1) motion attacks the notion that the harm Plaintiffs allegedly suffered—the "censorship" of their Twitter accounts—is "fairly traceable" to HHS. And, as discussed below, they raise a fair point. But that point is also one which undeniably "implicates" an element of Plaintiffs’ constitutional claims—namely, whether the disciplinary measures that Twitter allegedly took amounted to "state action." See, e.g. , Manhattan Community Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1928, 204 L.Ed.2d 405 (2019) (noting that the "text and original meaning" of the First Amendment, "as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech," rather than "private abridgment of speech") (emphasis in original) (citations omitted).

Accordingly, insofar as HHS’ standing argument is concerned, the Court will cabin its "jurisdictional inquiry" to the non-conclusory allegations in Plaintiffs’ complaint, which it will accept and favorably construe. Harris , 685 Fed. App'x at 472.

2. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to 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, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Furthermore, "[a]lthough for purposes of a motion to dismiss [a court] must take all the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 677–79, 129 S.Ct....