Perez v. Becerra ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSE A. PEREZ, et al.,
Plaintiffs,
v. Case No. 1:21-cv-02039-TNM
XAVIER BECERRA, in his official capacity
as Secretary of Health and Human Services, et
al.,
Defendants.
MEMORANDUM OPINION
Proceeding pro se, Jose and Nancy Perez challenge the U.S. Department of Health and
Human Services’ COVID-19 policies on several grounds. See Sec. Amended Compl. (Compl.),
ECF No. 36. In short, the Perezes want to avoid a COVID-19 vaccination. See Compl. at 48–
49. 1 They also want the Court to rescind certain decisions of the Department, restrict its
authority over public health emergencies, and cut its research funding. See id.
The Department moves to dismiss contending, among other things, that the Perezes lack
standing. See Mot. to Dismiss, ECF No. 38. The Court agrees and will grant the Department’s
motion. The Court will also deny a motion to intervene filed by Virna Fender as Fender does not
have a legally protected interest in this action. See Mot. to Intervene, ECF No. 42.
1
All pagination refers to the page numbers generated by the Court’s CM/ECF electronic filing
system.
I.
The Perezes’ Complaint is a patchwork of factual, statutory, and constitutional
allegations that the Court struggles to piece together. Throughout the Complaint, the Perezes
return to several themes:
• The Department requires them to get vaccinated and wear masks. See, e.g.,
Compl. at 1 (claiming the federal government “is sending federal agents to knock
on doors trying to convince Americans that they must vaccinate”); see also id. at
31, 40–42, 45.
• COVID-19 vaccines are harmful. See id. at 13–21.
• The Department “abandoned” its statutory mission by “causing viruses to be
engineered [to] increase their pathogenicity.” Id. at 2; see also id. at 4, 7–13.
• The Department acts at the behest of the pharmaceutical industry and seeks to
enrich it even though cheap alternatives to vaccines exist. See id. at 21–31. The
Department facilitated this by declaring a public health emergency. See id. at 24.
• The Department claims there is a pandemic yet allows millions of undocumented,
unvaccinated aliens to enter the country. See id. at 31–32.
• The Department engaged in a “huge disinformation campaign unnecessarily
scaring the population and causing serious economic damage.” Id. at 3; see also
id. at 32–40, 42–43.
The Perezes seek a declaration that the Department lacks the authority to announce a
public health emergency and cannot force them to get vaccinated. See id. at 48–49. They ask
that the Department conduct a serological test on them for COVID-19 antibodies and, if the test
reveals none, that the Department give them the Baciel Calmette-Guerin (BCG) vaccine instead
of a vaccine designed to combat COVID-19. Id. They want the Department to inform them of
the nature and consequences of a COVID-19 vaccine as well as alternatives to the vaccine. Id.
They seek a so-called vaccine passport so they can freely travel and visit establishments that
require proof of vaccination. Id. Finally, they demand that the Department recalculate COVID-
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19 deaths and new cases under the Paperwork Reduction Act (PRA) and the Information Quality
Act (IQA) and cease gain-of-function (GOF) research.
The Department responds that the Perezes cannot show injury, causation, or
redressability as required for standing. See Defs.’ Mem. in Supp. of Mot. to Dismiss at 5–12
(Defs.’ Mem.), ECF No. 38-1. The Department’s motion is now ripe.
II.
To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of
proving that the Court has subject matter jurisdiction to hear its claims. See Arpaio v. Obama,
797 F.3d 11, 19 (D.C. Cir. 2015). That includes showing that the plaintiff has standing. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In evaluating a motion to dismiss under
Rule 12(b)(1), the Court must “accept as true all of the factual allegations contained in the
complaint” and draw all reasonable inferences in favor of the plaintiff. Brown v. Dist. of Colum.,
514 F.3d 1279, 1283 (D.C. Cir. 2008).
The Perezes proceed without counsel. This triggers special solicitude for them. “A
document filed pro se is to be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). More, courts assess a pro se complaint
“in light of all filings, including filings responsive to a motion to dismiss.” Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015).
But pro se plaintiffs must still adequately plead their complaint consistent with the edicts
of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
See Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009). The Court thus does
not accept as true legal conclusions or “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements.” Yellen v. U.S. Bank, Nat’l Ass’n, 301 F. Supp. 3d 43,
47 (D.D.C. 2018) (internal citation omitted).
III.
To establish standing, the Perezes must allege: (1) that they have suffered an injury in
fact that is both concrete and particularized and actual or imminent; (2) that the injury is fairly
traceable to the District; and (3) that a favorable decision is likely to redress the identified harm.
See Sabre, Inc. v. DOT, 429 F.3d 1113, 1117 (D.C. Cir. 2005). The Perezes bring many claims
and must show standing for each claim and each form of relief sought. See Davis v. Fed.
Election Comm’n, 554 U.S. 724, 734 (2008).
Start with injury. The Perezes’ alleged injuries fall into three broad categories. First,
vaccine- and mask-related injuries. The Perezes claim that the Department requires them to get
vaccinated, Compl. at 1; that these vaccines are harmful, id. at 13–21; that the Department
refuses to consider alternatives, id. at 21–31; and that the Perezes cannot travel without
vaccination because so many establishments require vaccine passports, id. at 4, 45. They also
argue the Department requires them to wear masks. See id. at 45.
Not so. The Perezes can show none of these injuries because they do not point to any
regulation or policy from the Department requiring them to obtain COVID-19 vaccines or wear
masks. Nor do they plausibly allege that such a requirement is imminent.
Consider vaccines first. With no requirement that the Perezes receive the vaccine, they
cannot allege injury based on their belief that the vaccine is harmful. Nor can they allege injury
based on the Department’s ostensible refusal to consider alternatives because the Perezes may
seek alternative treatments. Indeed, they detail the regimen they take to avoid COVID-19 and do
not suggest that the Department interferes. See id. at 25.
4
Consider also the Perezes’ allegations about vaccine passports. They allege that “[m]any
merchants and government entities” demand these passports before entry into certain facilities.
Id. at 46. The Perezes contend this violates their “right to travel,” the Commerce Clause, the
Rehabilitation Act, and the Americans with Disabilities Act. Id. at 4. But again, the Perezes
point to no federal policy—much less a policy of the Department—that mandates these
passports. A plaintiff can establish standing based on the actions of third parties if the federal
government’s policies had a “predictable” effect on these parties. See Dep’t of Com. v. New
York, 139 S. Ct. 2551, 2566 (2019). But the Perezes allege no facts suggesting the Department’s
approval of certain COVID-19 vaccinations had any such effect.
Now consider masks. The Perezes allege the Department “violate[s] the Perez’ right to
liberty when they demand the Perez’ wear a face mask.” Compl. at 45. The Perezes point to no
Department requirement that they wear face masks. True, the Department has required masks at
times. For example, recall the widely touted federal “mask mandate” applied to “people on
public transportation conveyances or on the premises of transportation hubs.” Ctrs. for Disease
Control and Prev., Order: Wearing of face masks while on conveyances and at transportation
hubs, Feb. 25, 2022. 2 But the Perezes do not claim they have used public transportation or been
present at transportation hubs where this mandate applies. See id. Nor do they cite any other
Department requirement that requires them to wear masks. On the contrary, the Perezes state
they do not wear masks. See Compl. at 25.
Second, injuries related to the Department’s research funding. The Perezes allege that the
Department “engineered” the virus that causes COVID-19 to “increase [its] pathogenicity.”
Compl. at 2–3, 7–13. The Department did this, the Perezes say, by supporting gain-of-function
2
Available at: https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html.
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research in Wuhan, China. See id. at 8. But these facts, even if true, do not show injury to the
Perezes in a particularized manner. An individual “seeking relief that no more directly and
tangibly benefits him than it does the public at large [] does not state an Article III case or
controversy.” Lujan, 504 U.S. at 573–74.
The relief the Perezes seek for this supposed injury underscores this point. They ask that
the Court find 18 U.S.C. § 177(b)—part of the Biological Weapons Anti-Terrorism Act of
1989—unconstitutional. Section 177(b) provides an affirmative defense to those sued by the
United States for violating restrictions on biological weapons. Declaring § 177(b)
unconstitutional would not benefit the Perezes any more than the population at large. More, this
statute has no applicability here because the United States is not suing the Perezes or anyone
else.
Third, injuries related to misinformation. The Perezes claim the Department has engaged
in a misinformation campaign that hurts the economy, exaggerates the effects of the pandemic,
and benefits pharmaceutical companies offering COVID-19 treatments. Compl. at 3, 21–40, 42–
43. The Department facilitates this misinformation campaign, in part, by declaring a public
health emergency in which they anointed “themselves the arbiters of the truth and any dissenting
doctor[] or scientist[] who opposed their narrative was a ‘dangerous disinformer’ who should
have their license revoked.” 3 Id. at 24; see also id. at 37–40.
3
The Department’s declaration of a public health emergency is undermined, say the Perezes, by
its decision to let in millions of undocumented, unvaccinated aliens. See Compl. at 31–32. But
this inconsistency—even if it exists—does not harm the Perezes. And if it did, the Perezes do
not explain how it harms them uniquely compared to any other individual. See Lujan, 504 U.S.
at 573–74 (stating that an individual “seeking relief that no more directly and tangibly benefits
him than it does the public at large [] does not state an Article III case or controversy”).
6
Once again, the Perezes do not explain how this hurts them. They allege that other
treatments are more effective against COVID-19 than vaccines. See id. at 25–31. But the
Perezes and others are free to pursue those treatments.
The Perezes also allege an informational injury, claiming the Department failed to follow
the PRA and IQA. See id. at 37–38. This harms them, they claim, because the Department is
“failing or refusing to provide the accurate information the Perez’ need for an informed consent.”
Id. at 38. But the Perezes do not want to get a COVID-19 vaccination, so they allege no scenario
in which informed consent is relevant to them. Even more, the IQA does not provide the Perezes
with any private right of action to sue. See Miss. Comm’n on Env’t Quality v. E.P.A., 790 F.3d
138, 184 (D.C. Cir. 2015) (“[A]lmost every court that has addressed an Information Quality Act
challenge has held that the statute creates no legal rights in any third parties.”) (cleaned up). Nor
does the PRA. See Alegent Health-Immanuel Med. Ctr. v. Sebelius, 34 F. Supp. 3d 160, 169
(D.D.C. 2014) (“[T]he PRA does not create a private right of action.”). 4
Without a concrete injury to themselves or the threat of such injury, the Perezes fail to
satisfy the threshold requirement of showing an injury in fact. See Lujan, 504 U.S. at 560. That
alone is enough to doom their Complaint.
4
In their opposition brief, the Perezes cite Cruzan v. Missouri Department of Health, 497 U.S.
261, 269 (1990), and Akins v. FEC, 66 F.3d 348, 351 (D.C. Cir. 1995), to show that an
informational injury can confer standing. Cruzan involved the informed consent doctrine. But
this doctrine is irrelevant here because the Department is not forcing the Perezes to receive a
vaccination nor do the Perezes want to receive one. And the D.C. Circuit vacated Aikins on
rehearing en banc. See Aikins v. FEC, 74 F.3d 287 (D.C. Cir. 1996) (en banc). Even still, the
case does not help the Perezes because there the plaintiffs sought information within the “zone of
interests” intended to be served by the statute. Akins, 66 F.3d at 351. Here, Plaintiffs do not
have a cause of action under the AQI or the PRA.
7
Even if the Perezes could show injuries, they cannot establish traceability or
redressability for most of them. Vaccine requirements, mask mandates, and vaccine passports
are typically managed at the local and state level. The Perezes thus cannot trace these
requirements to the Department. Accord Null v. U.S. Food & Drug Admin., No. CV 09-1924
(RBW), 2009 WL 10744069, at *3 (D.D.C. Nov. 10, 2009) (“[J]ust because the federal
government approved a vaccine as safe for human consumption, [it] cannot be said to be the
action that is allegedly creating the threat of the actual and imminent harm complained of by the
plaintiffs, when it is the State of New York which is actually requiring the plaintiffs to submit to
the vaccination.”). By the same token, the Court could grant the relief the Perezes seek and
South Carolina, the Perezes’ home state, could implement its own requirements for vaccines,
masks, and vaccine passports. 5 Thus, the relief the Perezes seek does not redress their alleged
injuries.
Finally, the Court observes that the Perezes failed to address the Department’s standing
arguments in their opposition to the motion to dismiss. See generally Pls.’ Reply at 40. So they
conceded these arguments. See Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015)
(“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s
arguments, the court may treat the unaddressed arguments as conceded.”); see also Stubbs v. L.
Off. of Hunter C. Piel, LLC, 148 F. Supp. 3d 2, 4 (D.D.C. 2015) (applying concession principles
5
Indeed, the Perezes recognize the independence of states when they state that South Carolina
“has adamantly objected to all federal interference with its public health laws.” Mem. in Supp.
of Am. Compl. at 4, ECF No. 24-1.
8
to a pro se litigant), aff’d, 672 F. App’x 3 (D.C. Cir. 2016). This is independent and sufficient
grounds for dismissal. 6
IV.
Finally, the Court turns to Fender’s motion to intervene. Federal Rule of Civil Procedure
24 governs this motion. The rule requires an intervenor to show, among other things, a “legally
protected interest in the action” and that “the action . . . threatens to impair that interest.”
Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (cleaned up). Fender, a nurse, claims an
interest in this litigation because her Texas employer, Conroe Health Care Center (CHCC),
requires her to get a COVID-19 vaccination as a result of the Supreme Court’s ruling in Biden v.
Missouri, 142 S. Ct. 647 (2022). Biden stayed district court injunctions against the enforcement
of a Department rule requiring COVID-19 vaccinations of staff at facilities receiving Medicare
and Medicaid funding. See id. at 650. Because CHCC receives such funding, it requires Fender
to receive a vaccine. Mot. to Intervene at 1.
Nowhere in their briefs do the Perezes discuss Biden, Medicare and Medicaid funding,
CHCC, or mandatory vaccines for healthcare workers. Fender thus has no “legally protected
interest in the action.” Karsner, 532 F.3d 876 at 885. For the same reason, dismissing this case
will not impair her ability to pursue separate legal action against the appropriate parties. See id.***
6
The Perezes do argue they have standing based on their informational injury and the Tenth
Amendment. See Pls.’ Reply at 52–54. But this is the extent of their standing argument in reply.
They do not address the Department’s argument that they fail to show injury, causation, and
redressability. See Defs.’ Mem. at 5–12. And in any event, as shown above, the IQA and the
PRA do not provide the Perezes with a cause of action.
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For all these reasons, the Court will grant the Government’s motion to dismiss and will
deny Fender’s motion to intervene. A separate Order will issue.
2022.04.13
11:15:08 -04'00'
Dated: April 13, 2022 TREVOR N. McFADDEN
United States District Judge
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