Durbin v. Pelosi

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JOHN PAUL DURBIN, Plaintiff, v. NANCY PATRICIA PELOSI, et al., Defendants.

No. 22-cv-3222 (CRC)

United States District Court, District of Columbia

September 11, 2023

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

During 2021 and 2022, Plaintiff John Paul Durbin alleges that he attempted to access several congressional office buildings but was denied entry due to temporary COVID-19 restrictions. Durbin responded by filing this pro se action in October 2022 against congressional leadership, the House and Senate Sergeants at Arms, and the Chief of Capitol Police contending that these restrictions violated his First Amendment rights and requesting injunctive relief. Early in 2023, however, the House and Senate Sergeants at Arms rescinded the COVID-19 restrictions and re-opened Capitol buildings to the public. Because these voluntary recissions cure Durbin's only cognizable injury and because it is entirely speculative that he will be denied access to congressional office buildings in the future, the Court grants the Defendants' motion to dismiss this case as moot.

I. Background

Durbin is a “self-employed, unaffiliated journalist” from Ohio. Compl. at 15. Dismayed with national politics Durbin sought to travel to the United States Capitol to present members of Congress with petitions for redress on a myriad of grievances ranging from Congress's failure to pass annual appropriations bills to its purported violation of the debt limit. Id. at 3, 7-8. But these efforts were allegedly foiled when Durbin was refused access to several congressional office buildings in October 2021 based on “ongoing Covid-19” and “post-January 6th concerns.” Id. at 5. The following October, Durbin renewed his efforts by calling the Capitol Visitors Center, but he was told that “[n]o citizens not on tours or lacking previously scheduled access[] with members of Congress [were being] permitted into the Capitol” at that time. Id. Durbin visited the U.S. Capitol Police website the following Monday and found a banner on the homepage reading: “Due to the ongoing COVID-19 pandemic, the U.S. Capitol Building and Congressional Office Buildings remain closed to the public.” Id. When he re-dialed the Capitol Visitors Center two days later, Durbin was again informed that the public was not currently permitted to visit congressional office buildings without prior approval. Id.

The next day, Durbin filed this lawsuit claiming that these restrictions on accessing the Capitol violated his First Amendment rights. Id. at 3. In his request for relief, Durbin asked that the Court “instruct the Capitol Police force, its officers and administrative personnel, along with any other congressional staffers or officers, to make immediate, written accommodations so that the Plaintiff may travel from Ohio, confident in his access to any and all congressional office[] buildings, halls and corridors, during normal working hours.” Id. at 15. Durbin also requested “credentials from the Capitol Police for a permanent badge-of-access, currently available to credentialed members of the corporate media,” contending that he is “unable to comply with the ordinary, burdensome requirements for credentials for ‘approved' corporate media, owing to his status as an unknown and unaffiliated citizen-advocate-journalist.” Id.

In late December, the relevant circumstances changed when both the House and Senate Sergeants at Arms lifted the existing COVID-19 health and safety restrictions on Capitol access. See Mot. Dismiss at 1. The “order regarding reopening of Senate Office Buildings” began by stating that “the Senate Office Buildings have remained temporarily closed since the order of the Sergeant at Arms of the Senate on May 16, 2020.” Mot. Dismiss, Ex. B at 1. It then declared that, effective January 3, 2023, “the Senate Office Buildings shall . . . be reopened for regular business, consistent with the necessary operational and security precautions that must be taken to ensure the safety and security of Senators, staff, and visitors” and specified that “[a]ll prior or other orders that are inconsistent with this order are hereby rescinded and revoked.” Id. The “order rescinding restrictions concerning access to the House Office Buildings” similarly announced that “all restrictions concerning access to the House Office Buildings promulgated from March 2020 to December 2022 are hereby rescinded” as of January 3 at 12:01 a.m. Mot. Dismiss, Ex. A.

Accordingly, the Defendants in this action responded to Durbin's complaint two months later by moving to dismiss the case as moot under Federal Rule of Civil Procedure 12(b)(1). The Court now addresses that motion.

II. Legal Standards

A party may move under Rule 12(b)(1) to dismiss an action for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). A motion to dismiss as moot “is properly brought under Rule 12(b)(1) because mootness itself deprives the court of jurisdiction.” Indian River Cnty. v. Rogoff 254 F.Supp.3d 15, 18 (D.D.C. 2017). “Unlike some jurisdictional questions such as standing or ripeness, the party asserting mootness . . . bears the initial heavy burden of establishing that the case is moot.” Atlas Brew Works, LLC v. Barr, 391 F.Supp.3d 6, 11 (D.D.C. 2019) (citation and quotation marks omitted). When evaluating a motion to dismiss, “the Court must treat the complaint's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Indian River Cnty., 254 F.Supp.3d at 18 (internal quotation marks omitted). “But because the Court has an ‘affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority,'” id. (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001)), the “[p]laintiff['s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion” for failure to state a claim, id. (quoting Delta Air Lines, Inc. v. Export-Import Bank of U.S., 85 F.Supp.3d 250, 259 (D.D.C. 2015)). In doing so, a court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Id. (internal quotation marks omitted).

Additionally, a court “may sua sponte dismiss a claim . . . where it is patently obvious that the plaintiff cannot possibly prevail based on the facts alleged in the complaint.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 127 (D.C. Cir. 2012) (internal quotation marks omitted). This is especially true when a court believes that the plaintiff lacks standing to pursue his or her case. See Lee's Summit v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000) (“When there is doubt about a party's constitutional standing, the court must resolve the doubt, sua sponte if need be.”).

Although filings by pro se litigants are “held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), “the complaint must still present a claim on which the Court can grant relief,” Smith v. Scalia, 44 F.Supp.3d 28, 36 (D.D.C. 2014) (internal quotation marks omitted). And, importantly here, “the requirement that courts liberally interpret pro se pleadings does not dispense with the constitutional requirement of standing.” Strunk v. Obama, 880 F.Supp.2d 1, 3 (D.D.C. 2011).

III. Analysis

Durbin's First Amendment claim is moot because he can now visit congressional office buildings during normal business hours unencumbered by the prior health and safety restrictions, and no exception to mootness applies that would allow the Court to consider this no-longer live case or controversy. To the extent that Durbin attempts to rewrite his complaint to broaden his objections beyond the temporary COVID-19 restrictions, these efforts fail because his claim of future injury based on these ill-defined additional policies is too speculative to serve as the basis for Article III standing. Similarly, although Defendants' motion to dismiss does not address the matter, the Court finds that it must dismiss Durbin's request for media credentials because he has not shown he would suffer a concrete injury traceable to the Defendants in the absence of this extraordinary relief.

a. Mootness

“Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983). The Constitution's case or controversy requirement “means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citation and quotation marks omitted). “A case becomes moot- and therefore no longer a ‘Case' or ‘Controversy' for purposes of Article III-when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation and quotation marks omitted). Even if a case is live at the time a plaintiff files the complaint, “[a]n intervening event may render a claim moot if there is no reasonable expectation that the conduct will recur.” Leonard v. U.S. Dep't of Defense, 38 F.Supp.3d 99, 104 (D.D.C. 2014) (citing Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002)). This is one of those cases.

The Sergeants at Arms' revocation of the COVID-19 restrictions in December 2022 granted Durbin the relief he sought. Durbin has alleged that he was denied access to the Capitol buildings in 2021 and 2022 because-as the Capitol Visiting...