S. U. v. Wickert, Civil Action No. 2:20-cv-00450

S. U., Plaintiff, v. MATTHEW WICKERT, in his official capacity as State Registrar, Defendant.

Civil Action No. 2:20-cv-00450

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

March 26, 2021

MEMORANDUM OPINION AND ORDER

Pending is the defendant's motion to dismiss the plaintiff's complaint, filed in this court on August 24, 2020 (ECF No. 24).

This action was previously referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission to the court of his Proposed Findings and Recommendation ("PF&R") pursuant to 28 U.S.C. § 636(b)(1)(B). See ECF No. 5. On November 10, 2020, the Magistrate Judge entered his PF&R recommending that the motion be granted and that the civil action be dismissed from the court's docket. See ECF No. 48. The plaintiff timely filed his objections on November 16, 2020. See ECF No. 49.

Upon an objection, the court reviews a PF&R de novo. Specifically, "[t]he Federal Magistrates Act requires a district court to 'make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.'" Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis in original) (quoting 28 U.S.C. § 636(b)(1)).

I. Background

Central to this motion is W. Va. Code § 16-5-10(e), which states:

For the purposes of birth registration, the woman who gives birth to the child is presumed to be the mother, unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate of birth.

W. Va. Code. § 16-5-10(e).

The Magistrate Judge's summary of the plaintiff's complaint, to which the plaintiff does not object, is as follows:

Plaintiff S.U. ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against Defendant in his official capacity as the West Virginia State Registrar, claiming that West Virginia Code § 16-5-10(e), which provides generally that a woman who gives birth to a child is presumed to be the child's mother, violates the Fourteenth Amendment to the federal Constitution. Plaintiff alleges that he is "the biological parent" of three minor children who "were conceived via in-vitro fertilization pursuant to agestational surrogacy contract." He avers that pursuant to § 16-5-10(e), the gestational surrogate was "identified" as the children's "legal mother" on their birth certificates, "and the surrogate then sought, and was granted, physical and legal custody of Plaintiff's children against his wishes."

According to Plaintiff, after the birth of the first child, he filed a petition in state circuit court "requesting a court order removing the gestational surrogate from the birth certificate and ordering the birthing hospital not to place the surrogate's name on the birth certificates of" the other two children, a set of twins the surrogate was carrying at the time. He alleges that the twins were born prematurely and he was not informed of the birth, and the children's birth certificates were filed before he was able to obtain the court order he requested. Plaintiff further alleges that the petition was later transferred to family court and converted into a petition for "custody allocation," and the family court "granted legal and physical custody of Plaintiff's biological children to their gestational surrogate . . . due to" § 16-5-10(e). He avers that he "has continued to fight for his children in state court," but "the State of West Virginia will not recognize his constitutional rights and relies simply upon . . . § 16-5-10(e)." He explains that he "requested the state circuit court to permit his wife . . . to adopt his children," but the court dismissed his petition "without a hearing" because it held that the adoption required the consent of the gestational surrogate as the children's legal mother.

Plaintiff brings both equal protection and substantive due process challenges to § 16-5-10(e). He requests that this Court declare the statute unconstitutional and enjoin Defendant from enforcing it "and any other laws that permit a gestational surrogate to be a legal parent in contrast to the biological parent's wishes." He further asks this Court to "order Defendant to amend the birth certificates of the three children to reflect only Plaintiff's name" and remove that of the gestational surrogate, to void the orders in the family court action awarding custody to the surrogate, and "give permission for law enforcement to assist Plaintiffwith securing physical custody of his children, if necessary." He also requests attorney's fees "for all court proceedings."

ECF No. 48 at 1-3 (internal citations and brackets omitted) (quoting ECF No. 1).¹

The defendant filed the current motion to dismiss arguing that the court lacked subject-matter jurisdiction for various reasons and that the action was barred by the Rooker²-Feldman³ doctrine. See ECF No. 25. Although the Magistrate Judge found the Rooker-Feldman doctrine largely inapplicable, see ECF No. 48 at 4-5, he agreed that the court lacks subject-matter jurisdiction but for reasons other than those advanced by the defendant, see id. at 5 & n.2.

The Magistrate Judge concluded that the plaintiff lacks standing to pursue his claims in federal court. See id.; see also Buscemi v. Bell, 964 F.3d 252, 258 (4th Cir. 2020) ("[Courts] must assure [them]selves of subject matter jurisdiction and may address standing sua sponte." (internal citations omitted)). The Magistrate Judge noted that theplaintiff alleges that the defendant injured him "by applying [§ 16-5-10(e)'s] presumption" - i.e., "that the woman who gives birth to a child should be listed as the child's mother on the birth certificate" - "to identify 'a gestational surrogate as the legal mother' of his children on their birth certificates," and thereby "depriv[ing] him of his rights 'to have the custody, control, and care of his own children . . . .'" EFC No. 48 at 6 (brackets omitted) (quoting ECF No. 1 at 1-2, 17-18). In other words, the plaintiff's injury is, or derives from, the identification of the gestational surrogate as the mother on his children's birth certificates.

The Magistrate Judge concluded that the plaintiff's alleged injury is not redressable, for purposes of standing, by the forms of relief he seeks. See id. at 6-8; see also Outdoor Amusement Bus. Assoc., Inc. v. Dep't of Homeland Sec., 983 F.3d 671, 680 (4th Cir. 2020) ("A plaintiff has the burden to 'demonstrate standing for each claim he seeks to press' and 'for each form of relief' sought." (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008)). With respect to the plaintiff's request for an injunction preventing the defendant from enforcing § 16-5-10(e)'s presumption, the Magistrate Judge concluded that such relief could be only prospective, at most preventing the defendant from applying the presumption whenissuing future birth certificates but not resulting in any alteration to his children's already-issued birth certificates. See ECF No. 48 at 7. With respect to the plaintiff's request that the court issue an order directing the defendant to amend his children's birth certificates to remove the gestational surrogate as the listed mother, the Magistrate Judge concluded that the plaintiff failed to identify any authority in West Virginia law permitting courts to order the specific amendment the plaintiff requests. See id. Finally, with respect to the plaintiff's request for declaratory relief, the Magistrate Judge concluded that, by itself, a request for declaratory relief is not sufficient to satisfy the redressability requirement for purposes of standing. See ECF No. 48 at 7. The Magistrate Judge accordingly recommended that the court grant the defendant's motion to dismiss and dismiss the action based on lack of standing. See id. at 9.

The plaintiff objects to the Magistrate Judge's conclusion that his alleged injury is not redressable by the three forms of relief he seeks.⁴ See ECF No. 49.

II. Legal Standard

Federal district courts are courts of limited subject-matter jurisdiction, possessing "only the jurisdiction authorized them by the United States Constitution and by federal statute." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2008). "[T]here is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Indeed, when the existence of subject matter jurisdiction is challenged in a case initiated in a federal district court, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); see also Richmond, Fredericksburg, & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). If subject-matter jurisdiction is lacking, the claim must be dismissed. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

"The standing doctrine derives from 'the Constitution's limitation on Article III courts' power to adjudicate cases and controversies'" and thus "implicates the court's subject matter jurisdiction." South Carolina v. United States, 912 F.3d 720, 726 (4th Cr. 2019) (quoting Frank Krasner Enters. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005)). "To establish Article III standing, 'a plaintiff must show (1)[he] has suffered an injury in fact . . . ; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).

"[R]egarding redressability, a plaintiff must show that the court has the power to grant the plaintiff's requested relief, and that such relief would redress the plaintiff's injury." Buscemi, 964 F.3d at 259. "An injury is redressable if it is 'likely, as opposed to...