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United States District Court, D. KansasOct 9, 2003
CIVIL ACTION No. 03-2232-KHV (D. Kan. Oct. 9, 2003)


October 9, 2003


Brian K. Kegerreis, a public school teacher, brings suit against the United States of America. Plaintiff seeks a declaration that the No Child Left Behind Act of 2001, Pub.L. No. 107-110, 115 Stat. 1425 (2002), is unconstitutional. This matter is before the Court on the United States Of America's Motion To Dismiss (Doc. #7) filed August 4, 2003. For reasons set forth below, the Court sustains defendant's motion.

Standards For Motions To Dismiss Under Rule 12(b)(1)

The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS. 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding inwhichit becomes apparent that jurisdiction is lacking."Scheidemanv. Shawnee County Bd. of County Comm'rs. 895 F. Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper,see id, and he must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League. 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).

Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of the allegations in the complaint.See Holt v. United States. 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendant's motion falls within the former category because the Court need not consider evidence outside the complaint.

The Court affords a pro se plaintiffsome leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must followthe same procedural rules as other litigants. See Hughes v. Rowe. 449 U.S. 5, 9 (1980); Greeny. Dorrell. 969 F.2d 915, 917 (10th Cir. 1992), cert. denied. 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant See Hall v. Bellmon 935 F.2d 1106, 1110 (10th Cir. 1991).

Factual Background

Plaintiffs complaint, as supplemented by his response to defendant's motion to dismiss, alleges the following facts:

Plaintiff teaches at a public school which is subject to the No Child Left Behind Act of 2001 ("NCLB Act"). In part, the NCLB Act requires that by 2014, all children in public schools achieve certain minimum scores on standardized tests. If all children at a particular school do not achieve satisfactory test scores by the statutory deadline, the government can penalize the school, restructure it or even privatize it. In the interim, schools must meet yearly requirements which are primarily based on student test scores. Plaintiff alleges that the NCLB Act is unfair and unconstitutional because it seeks to hold only school personnel accountable if students at a particular school do not achieve satisfactory test scores.

On May 15, 2003, plaintiff filed suit against the United States. Defendant asks the Court to dismiss plaintiffs complaint for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted.


The United States argues that the Court lacks subject matter jurisdiction over plaintiffs claim because it has not waived sovereign immunity for his claim. Sovereign immunity generally bars suits against the United States unless the government has expressly waived its immunity. See Nat'1 Commodity Barter Ass'n v. Gibbs. 886 F.2d 1240, 1245-46 (10th Cir. 1989). "A party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction and a specific statute containing a waiver of the government's immunity from suit." Thomas v. Pierce. 662 F. Supp. 519, 523 (D. Kan. 1987).

Plaintiff asserts that federal courts are the appropriate forum to review and overturn federal laws. Liberally construing plaintiffs complaint and briefing, it appears that plaintiff asserts subject matter jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and 18 U.S.C. § 241 (criminal offense for conspiracy to violate civil rights).

18 U.S.C. § 241 prohibits participation in a conspiracy "to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same."

Generaljurisdictiona! statutes such as 28 U.S.C. § 1331 do not waive the government's sovereign immunity. See Wyoming v. United States. 279 F.3d 1214, 1225 (10th Cir. 2002); Fostvedt v. United States. 978 F.2d 1201, 1203 (10th Cir. 1992); Lonsdale v. United States. 919 F.2d 1440, 1444 (10th Cir. 1990). Moreover, 18 U.S.C. § 241 does not authorize a private civil cause of action, see Kelly v. Rockefeller. 69 Fed. Appx. 414, 415, 2003 WL 21386338, at *2 (10th Cir. June 17, 2003);Newcomb v. Ingle. 827 F.2d 675, 677 n. 1 (10th Cir. 1987):Waltonv. Shanelec. 1998 WL 982886, at *2 (D. Kan. Aug. 12, 1998), and therefore does not waive the government's sovereign immunity.

Plaintiff has failed to showthat the government has waived sovereign immunity with respect to his claim. To avoid the doctrine of sovereign immunity and seek a declaration that the NCLB Act is unconstitutional, plaintiff must file suit against the officer of the agency charged with enforcement of the statute, i.e. the Secretary of the Department of Education. See Dugan v. Rank. 372 U.S. 609, 621-22 (1963); Tenneco Oil Co. v. Sac Fox Tribe. 725 F.2d 572, 574 (10th Cir. 1984) (claim that law is unconstitutional is exception to doctrine of sovereign immunity; claim may be directed against individuals who enforce such law): see also Kelley v. United States. 69 F.3d 1503, 1507 (10th Cir. 1995) (doctrine of sovereign immunity does not apply in declaratory or injunctive suits against federal entities or officials seeking to enjoin enforcement of unconstitutional statute). Ordinarily, the Court would substitute the head of the appropriate agency for the United States. Here, however, plaintiff has not shown a justiciable case or controversy between himself and the Department of Education.

The Supreme Court has repeatedly cautioned that "the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary." Hodel v. Va. Surface Min. Reclamation Ass'n. Inc., 452 U.S. 264, 294-95 (1981). To satisfy the constitutional minimum requirements of Article III's case or controversy requirement, plaintiff must show (1) that he has suffered "injury in fact" that is "concrete" rather than "conjectural or hypothetical;" (2) that the facts reveal a "causal connection between the injury and the conduct complained of;" and (3) that it is "likely" and not merely "speculative" that the injury complained of will be "redressed by a favorable decision." Horstkoetter v. Dep't of Pub. Safety. 159 F.3d 1265, 1279 (10th Cir. 1998) (citing Lujan v. Defenders ofWildlife. 504 U.S. 555, 560-61 (1992)): Committee to Save the Rio Hondo v. Lucero. 102 F.3d 445, 447 (10th Cir. 1996). Plaintiff complains that the standards set forth in the NCLB Act cannot be met and the Act will unfairly penalize himand fellowpublic school teachers. Plaintiffs alleged injury is hypothetical and depends on (1) the performance of students at his school on standardized tests over the next 11 years and (2) the Department of Education's future choice of any remedy to be imposed as a result of student test scores. Plaintiff has not articulated how the NCLB Act presently violates his constitutional rights. Accordingly, he cannot maintain a claim against the Secretaryofthe Department ofEducation. For these reasons, the Court sustains defendant's motion to dismiss.

The Supreme Court has carved out a limitedexceptionto these requirements where plaintiff challenges the facial validity of a law impacting speech protected by the First Amendment. See Sec'y of State v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984). Plaintiff has not alleged that the NCLB Act impacts his right to free speech.

IT IS THEREFORE ORDERED that the United States Of America's MotionTo Dismiss (Doc. #7) filed August 4, 2003 be and hereby is SUSTAINED.