United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI Chief United States District Judge.
the Court is Defendants' Motion to Dismiss
Plaintiff's Complaint [Doc. No. 26]. Plaintiff Institute
for Justice (“Institute”) has filed a response
[Doc. No. 30] and Defendants have replied [Doc. No. 31]. The
matter is fully briefed and at issue.
Institute is a nonprofit, public interest law firm that
engages in public advocacy, litigation, and strategic
research. The Institute employs two individuals with
principal job duties of lobbying and two lobbyists working
under contract. The Institute states in its Complaint [Doc.
No. 1] that one of the in-house lobbyists is registered as a
lobbyist in Oklahoma. The Institute alleges this registered
lobbyist has lobbied in Oklahoma during the year prior to
filing the instant action.
Institute's goal is to engage state and federal
government officers and employees on issues involving
licensing laws, occupational restrictions, and the influence
of special interest groups. To achieve this goal, the
Institute would like to distribute the book
“Bottleneckers: Gaming the Government for Power and
Private Profit” to officers and employees of the
legislative and executive branches of the State of Oklahoma.
edition of “Bottleneckers” that the Institute
seeks to distribute has a retail value of $15.00. The
Institute requested an advisory opinion from the Oklahoma
Ethics Commission (“OEC”) to determine the
legality of distributing this book. The OEC interpreted the
Institute's questions as:
May an executive or legislative lobbyist give to a state
officer or employee a book which the lobbyist principal may
purchase at a discounted author rate of approximately
$15?” Complaint [Doc. No. 1] at ¶ 21. The OEC
answered that Ethics Rule 5 prohibits gifting a book to a
state officer or employee if the market value is greater than
Institute claims that this restriction violates its First
Amendment rights to freedom of speech and to “petition
the government for the redress of grievances, and
specifically the right to express their ideas, hopes, and
concerns to government officers and employees.”
Complaint at ¶ 39. The Institute requests a declaratory
judgment that Ethics Rules 5.6, 5.8, 5.11, and 5.13, as
applied to the distribution of informational materials to
legislative branch officers and employees: (1)
unconstitutionally regulate political speech; and, (2)
unconstitutionally regulate petitions to the government. The
Institute also seeks a permanent injunction.
move to dismiss this case on the basis that the Institute:
(1) lacks standing as it was not a lobbyist or lobbyist
principal at the time the Complaint was filed; and, (2) fails
to state a claim for which relief can be granted. Defendants
also request that the Court decline to exercise its
discretion to entertain this declaratory judgment action. In
response to Defendants' Motion, the Institute concedes
that it was not a lobbyist or lobbyist principal at the time
the Complaint was filed, but asserts that it has since
attained that status and contends that it has properly stated
a claim for relief. Response at 6.
the Court finds that the Institute lacked standing at the
time the Complaint was filed, the Court need not address
whether the Institute has sufficiently stated a claim for
which relief can be granted.
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction takes one of two forms: a facial attack or a
factual attack. Pueblo of Jemez v. United States,
790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack
questions the sufficiency of the complaint's allegations.
Id. In reviewing a facial attack, a district court
must accept the allegations in the complaint as true.
Id. In a factual attack, the moving party may go
beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends.
Id. When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations.
Id. Instead, the court has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts.
Id. In this case, Defendants raise a factual attack
on jurisdiction and present materials outside the Complaint.
Therefore, the Court does not presume the truthfulness of the
Complaint's factual allegations.
standing is a threshold jurisdictional question” that
“must be satisfied prior to adjudication by Article III
courts” of claims brought pursuant to the Federal
Declaratory Judgment Act. Trant v. Oklahoma, 874
F.Supp.2d 1294, 1299 (W.D. Okla. 2012), aff'd, Trant
v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014).
“Standing doctrine is designed to determine
who may institute the asserted claim for
relief.” ACORN v. City of Tulsa, Okl., 835
F.2d 735, 738 (10th Cir. 1987) (quoting Action Alliance
of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.
Cir. 1986) (emphasis in original)). “Absent a plaintiff
with constitutional standing, federal courts lack
is determined at the time the action is brought . . . and we
generally look to when the complaint was first filed, not to
subsequent events' to determine if a plaintiff has
standing.” S. Utah Wilderness All. v. Palma,
707 F.3d 1143, 1153 (10th Cir. 2013) (quoting Mink v.
Suthers,482 F.3d 1244, 1253-54 (10th Cir. 2007))
(internal citation omitted); see also, Brown v.
Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (“We
measure standing as of the time the plaintiff files
suit.”). “The burden is on the plaintiff to
establish standing.” Brown, 822 F.3d at 1164
(citing Summers ...