Baisden v. Barr

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
LOWELL A. BAISDEN, )
)
Plaintiff, )
)
v. ) No. 19-cv-3105 (KBJ)
)
WILLIAM P. BARR, in his official )
capacity as Attorney General of the )
United States, et al., )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

On January 31, 2012, Plaintiff Lowell Baisden was sentenced to a 37-month term

of imprisonment after pleading guilty to willfully attempting to evade the federal

income tax that his two co-defendants owed. See Judgment, United States v. Baisden,

No. 4:09-cr-03031-2, ECF No. 283 (D. Neb. Jan. 31, 2012). Thus, Baisden has been

convicted of “a crime punishable by imprisonment for a term exceeding one year [,]”

and, as a result, he is now prohibited from possessing “any firearm or ammunition”

under federal law. 18 U.S.C. § 922(g)(1); see also id. § 922(d)(1) (making it unlawful

“to sell or otherwise dispose of any firearm or ammunition to any person knowing or

having reasonable cause to believe that such person . . . has been convicted . . . of[] a

crime punishable by imprisonment for a term exceeding one year ”). On October 3,

2019, Baisden filed the instant civil action against Defendants William P. Barr, in his

official capacity as Attorney General of the United States, and Regina Lombardo, in her

official capacity as Acting Deputy Director of the U.S. Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) (collectively, “Defendants”), to seek “declaratory

and injunctive relief” (see Compl., ECF No. 1, ¶ 1) that allows him to possess a firearm

pursuant to the statutory exemption for “offenses pertaining to antitrust violations,

unfair trade practices, restraints of trade, or other similar offenses relating to the

regulation of business practices[,]” 18 U.S.C. § 921(a)(20)(A).

Before this Court at present is the government’s motion to dismiss Baisden’s

complaint (see Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 6), which Baisden

opposes (see Pl.’s Opp’n to Def.’s Mot. (“Pl’s Opp’n”), ECF No. 8). In the motion to

dismiss, the government argues that Baisden has failed to allege facts that demonstrate

that he has Article III standing (see Def.’s Mot. at 9–13), and that, in any event,

Baisden has not stated a claim on which relief can be granted, because federal tax

evasion does not fall within the statutory exception to the federal prohibition on

possession of firearms by felons (see id. 13–20). 1

For the reasons explained below, this Court agrees with the government that,

given the factual allegations contained in Baisden’s complaint, Baisden has yet to

allege any cognizable, non-speculative injury that is capable of supporting Article III

standing. Consequently, Defendants’ motion to dismiss will be GRANTED, and

Baisden will be provided with an opportunity to amend his complaint and attempt to

cure this defect, such that the Court may exercise subject-matter jurisdiction over his

claims consistent with its Article III authority.

1
Page-number citations to the documents that the parties and the Court have filed refer to the page
numbers that the Court’s Electronic Case Filing (“ECF”) system automatically assigns.

2
I. BACKGROUND 2

In 2009, Baisden was a resident of Bakersfield, California, and was a licensed

certified public accountant (“CPA”) in California. See Indictment, United States v.

Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶ 3 (D. Neb. Mar. 20, 2009). In this

capacity, Baisden provided accounting, tax preparation, and consulting services to

clients in California, Nebraska, and other states. See id. In 2004, in conjunction with

preparing tax returns for a married couple, Baisden “submitted false tax returns in an

effort to evade the income tax owed by the couple to the United States. ” United States

v. Baisden, 713 F.3d 450, 452 (8th Cir. 2013).

On March 20, 2009, a grand jury indicted Baisden on five criminal counts,

including willfully attempting to evade and defeat the income tax due for the married

couple in the amount of $236,217, in violation of 26 U.S.C. § 7201, and 18 U.S.C. § 2.

See Indictment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 1, ¶¶ 30–31

(D. Neb. Mar. 20, 2009). Baisden pleaded guilty to this charge on January 31, 2012, in

exchange for the government dismissing the remaining counts in the indictment , see

Plea Agreement, United States v. Baisden, No. 4:09-cr-03031-2, ECF No. 223, at 1 (D.

Neb. Oct. 3, 2011), and the district court sentenced him to a term of 37 months of

imprisonment, see Judgment, United States v. Baisden, No. 4:09-cr-03031-2, ECF No.

283, at 1 (D. Neb. Jan. 31, 2012). Baisden served his term of incarceration at Taft

Correctional Institute in California, and was released on July 8, 2014. (See Compl.

2
The facts recited herein, which are undisputed, are drawn from the complaint, the exhibits attached to
the parties’ briefs, and publicly available court documents. See Rogers v. District of Columbia, 880 F.
Supp. 2d 163, 166 (D.D.C. 2012) (explaining that a court “may take judicial notice of public records[,]”
including court filings and docket sheets).

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¶ 31.) Shortly thereafter, jurisdiction over his criminal case was transferred to the

Eastern District of California, see Transfer of Jurisdiction, United States v. Baisden,

No. 1:15-cr-3, ECF No. 2 (E.D. Cal. Jan. 8, 2015), and the associated period of

supervised release was terminated on June 16, 2016 (see Compl. ¶ 35).

Baisden filed the instant lawsuit, pro se, against the Attorney General and ATF

on October 3, 2019. (See Compl. at 1.) The complaint includes a long and detailed

recitation of the civil and criminal tax-related actions that the United States brought

against Baisden and his co-defendants between 2002 and 2016, which are not relevant

for purposes of the instant dispute. (See generally id. ¶¶ 4–38, 48–67.) The complaint

also discusses, at times verbatim, the standing analysis in Reyes v. Sessions, 342 F.

Supp. 3d 141 (D.D.C. 2018)—a case that similarly involved a convicted felon’s

challenge to the federal ban on firearms possession. (See Compl. ¶¶ 39–44.) In

particular, Baisden’s complaint recounts that the court in Reyes held that the plaintiff

had alleged “the injury of not being able to purchase or obtain firearms” (id. ¶ 42), and

that he had “pleaded sufficient facts to establish [that] injury in fact” (id. ¶ 43)—

findings that Baisden says apply to his case as well (see id. ¶ 44 (“Baisden possesses

this same standing.”)). Baisden’s complaint also states that he is seeking “declaratory

and injunctive relief in regard to the complete denial, under Section 922 of Title 18 of

United States Code, of [his] Second Amendment right to keep and bear arms solely and

exclusively as a result of his 2011 conviction for aiding and abetting federal income tax

evasion offense.” (Id. ¶ 1.)

On January 17, 2020, Defendants filed a motion to dismiss for lack of

jurisdiction or, in the alternative, for failure to state a claim. ( See Defs.’ Mot., ECF No.

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6; see also Reply Mem. in Supp. of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 9. )

Specifically, Defendants argue that Baisden lacks Article III standing, for two reasons:

first, because he has not alleged any “particularized and non -conjectural injury” such as

any plans to own a firearm (see Defs.’ Reply at 10); and, second, because any claimed

injury by operation of the challenged federal laws is neither fairly traceable to those

laws nor redressable by a favorable ruling in this ca se, given that “an independent

statute in California, Plaintiff’s state of residence, specifically bars him from

possessing a firearm due to his felony conviction” (Defs.’ Mot. at 3). Additionally, the

government argues that, “even if Plaintiff had standing to challenge the application of

federal law to him, his claim fails as a matter of law[,]” because “the primary purpose

and the elements of the federal tax evasion statute demonstrate[] that it is designed

primarily to deter and punish loss of revenues to the United States Treasury, rather than

to address competitive harm or economic harm to consumers[,]” and, therefore,

Baisden’s “conviction for tax evasion does not fall within the scope of the statutory

business practices exception.” (Id. at 3–4.)

Baisden opposes the government’s motion. His response brief contends that he

has Article III standing because he “is living with his relatives in both California and

Ohio” (Pl.’s Opp’n at 5), and, “last year, [he] realized that he live[d] in Ohio long

enough to qualify under state law to exercise his gun rights ” (id. at 6), which means

that, “but for his 2011 Federal conviction, Baisden is being currently prevented from

exercising his constitutionally-protected gun rights in Ohio where Baisden can use guns

today” (id. at 7). In support of constitutional standing, Baisden also argues that he

would be permitted to own a firearm under the laws of at least twe nty other states, and

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that he “will have gun rights in the future” in six additional states. (Id. at 8.)

Moreover, on the merits, Baisden takes the position that his crime of conviction—

aiding and abetting tax evasion—is designed primarily to address economic harm to

consumers, and thus qualifies under the business practices exception. ( See id. at 9–12.)

The government filed its reply brief on February 10, 2020 (see Defs.’ Reply,

ECF No. 9), and Baisden filed an opposed motion for leave to file a surreply on

February 20, 2020 (see Pl.’s Mot. for Leave to File a Surreply (“Pl.’s Surreply”), ECF

No. 10; see also Defs.’ Mem. in Opp’n to Pl.’s Surreply, ECF No. 11; Pl.’s Reply to

Pl.’s Surreply, ECF No. 12). 3 These motions are now ripe for decision.

II. LEGAL STANDARDS

A. Rule 12(b)(1) Motions To Dismiss For Lack Of Jurisdiction

The doctrines of standing, mootness, and ripeness are “[t]hree inter -related”

doctrines of justiciability that determine the “constitutional boundaries” o f a court’s

jurisdiction. Worth v. Jackson, 451 F.3d 854, 855–57 (D.C. Cir. 2006). “Under Rule

12(b)(1), it is to be presumed that a cause lies outside the federal courts ’ limited

jurisdiction, unless the plaintiff establishes by a preponderance of the evidence that the

Court possesses jurisdiction,” Muhammad v. F.D.I.C., 751 F. Supp. 2d 114, 118

(D.D.C. 2010) (internal quotation marks, citations, and alteration omitted), and thus

Rule 12(b)(1) imposes on the court an “affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority[,]” Abu Ali v. Gonzales, 387 F. Supp. 2d

16, 17 (D.D.C. 2005) (internal quotation marks and citations omitted )).

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Given its conclusions regarding the insufficiency of Baisden’s injury-in-fact allegations, this Court
need not address the arguments raised in Baisden’s surreply. Therefore, his motion for leave to file a
surreply (see ECF No. 10) will be DENIED AS MOOT.

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 When ruling on a Rule 12(b)(1) motion, the court must “treat the complaint’s

factual allegations as true” and must afford the plaintiff “the benefit of all inferences

that can be derived from the facts alleged.” Delta Air Lines, Inc. v. Export–Import

Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and

citation omitted). However, those factual allegations receive “closer scrutiny” than

they would in the Rule 12(b)(6) context, Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (internal quotation marks and citation

omitted), and the Court need not “accept inferences unsupported by the facts alleged or

legal conclusions that are cast as factual allegations[,]” Rann v. Chao, 154 F. Supp. 2d

61, 64 (D.D.C. 2001). Moreover, unlike a Rule 12(b)(6) motion, a court may look to

documents outside of the complaint in order to evaluate whether or not it has

jurisdiction to entertain a claim. See Jerome Stevens Pharm., Inc. v. F.D.A., 402 F.3d

1249, 1253 (D.C. Cir. 2005).

B. Article III Standing To Sue

The doctrine of Article III standing addresses whether the plaintiff has

demonstrated “such a personal stake in the outcome of the controversy as to warrant

[the] invocation of federal-court jurisdiction.” New England Anti-Vivisection Soc’y v.

U.S. Fish & Wildlife Serv., 208 F. Supp. 3d 142, 155 (D.D.C. 2016) (quoting Summers

v. Earth Island Inst., 555 U.S. 488, 493 (2009)). “It is the responsibility of the

complainant clearly to allege facts demonstrating that he is a proper party to invoke

judicial resolution of the dispute and the exercise of the court’s remedial powers .”

Renne v. Geary, 501 U.S. 312, 316 (1991) (internal quotation marks and citation

omitted). And evaluating standing requires the court to assess whether a plaintiff has

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demonstrated the “irreducible constitutional minimum” necessary to implicate a federal

court’s subject-matter jurisdiction over a lawsuit, Spokeo, Inc. v. Robbins, 136 S. Ct.

1540, 1547 (2016) (internal quotation marks and citation omitted), which consists of

three elements: injury in fact, causation, and redressability, see Dominguez v. UAL

Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012). These Article III requirements are

“essential and unchanging[.]” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992).

First, the plaintiff must have suffered an injury in fact—“an invasion of a legally

protected interest which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and

citations omitted). “Allegations of possible future injury do not satisfy the

requirements of Art. III[,]” for a “threatened injury must be certainly impending to

constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (internal

quotation marks and citation omitted). Second, the plaintiff must allege “a causal

connection between the injury and the conduct complained of[,]” Lujan, 504 U.S. at

560; in other words, “the injury has to be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not b efore

the court[,]” id. (internal quotation marks, citation, and alterations omitted) . Notably,

“the mere possibility that causation is present is not enough; the presence of an

independent variable between either the harm and the rel ief or the harm and the conduct

makes causation sufficiently tenuous that standing should be denied.” Mideast Sys. &

China Civil Const. Saipan Joint Venture, Inc. v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir.

1986). Third, the complaint must state facts that make it “likely, as opposed to merely

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speculative, that the injury will be redressed by a favorable decision. ” Lujan, 504 U.S.

at 561 (internal quotation marks and citation omitted). Indeed, “the indirectness of the

injury . . . may make it substantially more difficult . . . to establish that, in fact, . . .

prospective relief will remove the harm.” Warth v. Seldin, 422 U.S. 490, 505 (1975).

III. ANALYSIS

In the instant case, the complaint recounts at length Baisden’s so-called “tax

mitigation work” over the course of many years (see, e.g., Compl. ¶¶ 4–38, 48–67), and

its only allusion to any injury is one paragraph that “alleges that § 922(g)(1), which

prohibits firearm possession by certain felons, and § 922(d)(1), which prohibits the sale

and transfer of firearms to certain felons, together prevent [Baisden] from acquiring a

firearm” (id. ¶ 40). The complaint also clarifies that Baisden is seeking “ a declaration

that Section 922(g)(1) and Section 922(d)(1) do not apply to bar him to acquire and

possess a firearm[,] and an entry of an order permanently enjoining [the Attorney

General] and ATF from enforcing Section 922(g)(1) and Section 922(d)(1) against

him.” (Id. ¶ 47.) A sworn statement that Baisden has submitted further states that he

“will use a gun for any lawful purpose as allowed in other states, when this Federal

firearms disability is removed.” (Baisden Decl., ECF No. 8-1, ¶ 16.) Consequently, in

the abstract, Baisden’s inability to possess a firearm lawfully might qualify as a

cognizable injury in fact under Article III. See, e.g., Medina v. Sessions, 279 F. Supp.

3d 281, 286–87 (D.D.C. 2017). But such a theoretical possibility is not a sufficient

factual basis upon which to determine that Baisden has Article III standing to bring the

claims at issue.

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 This is because, a threshold matter, Baisden’s complaint is completely silent with

respect to any specific facts concerning whether he ever owned a firearm or possessed a

permit, ever used a firearm or intended to use one, or ever wished or desired to possess

one in the future. This deficiency is a fatal one, for purposes of Article III standing,

because it is not enough merely to allege “an invasion of a legally protected interest

which is [] concrete and particularized,” but that concrete injury must also be “actual or

imminent, not conjectural or hypothetical[.]” Lujan, 504 U.S. at 560–61 (internal

quotation marks and citations omitted). To be sure, the complaints filed by pro se

plaintiffs, such as Baisden, are held “to less stringent standards than formal pleadings

drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), but the benefit

afforded to a pro se litigant regarding construction of the complaint “is not . . . a license

to ignore the Federal Rules of Civil Procedure[,]” Sturdza v. United Arab Emirates, 658

F. Supp. 2d 135, 137 (D.D.C. 2009). Thus, Baisden’s complaint must contain

allegations of fact that establish that he has an actual injury—as opposed to a purely

hypothetical one—and his later filings, such as the sworn declaration that is attached to

his brief in opposition to the government’s motion to dismiss , cannot amend his

complaint in this regard. See Mattiaccio v. DHA Grp., Inc., 908 F. Supp. 2d 136, 139

(D.D.C. 2012) (explaining that not even a pro se litigant can “amend his [c]omplaint by

way of declaration or assertions in his pleadings ”).

Notably, even if this Court were to infer from Baisden’s sworn declaration that

he has been injured due to an unspecified, generalized wish to possess a firearm in some

state, including Ohio (see Baisden Decl. ¶ 16), “[s]uch ‘some day’ intentions—without

any description of concrete plans, or indeed even any specification of when the some

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day will be—do not support a finding of the ‘actual or imminent’ injury that our cases

require.” Summers, 555 U.S. at 496 (internal citation omitted); see also Hassan v.

United States, 441 F. App’x 10, 11 (2d Cir. 2011) (holding that a naturalized citizen

who “alleges no specific steps toward, or concrete plans in furtherance of, a run for the

presidency” had not alleged an injury in fact to challenge the requirement that U.S.

Presidents be natural born citizens); Baz v. Dep’t of Homeland Sec., No. 18-cv-01013,

2019 WL 5102827, at *5 (D.D.C. Oct. 11, 2019) (holding that a plaintiff who

challenged his inclusion in a no-fly list failed to allege an injury in fact because he

“never allege[d] that he was prevented from boarding a particular flight that would

merely transit the United States” or that “he plans in the relatively near future to board

a flight that would transit U.S. airspace”).

Baisden does suggest that possessing a firearm subjects him to criminal liability

under federal law. (See Comp. ¶ 40.) But in the absence of some factual allegation that

indicates that he has a plan or a particular intention to possess a firearm, that legal bar

does not constitute a cognizable injury in fact, and this is so even though a plaintiff

need not “expose himself to liability before bringing suit to challenge the basis for the

threat[.]” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007). Indeed,

“[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by a statute, and there exists a

credible threat of prosecution thereunder, he should not be required to await and

undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United

Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (internal quotation marks and

citation omitted). Still, there must be some plausible allegation of an intention to

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engage in the proscribed conduct and, in this respect, courts look to “whether the

plaintiffs have articulated a concrete plan to violate the law in question[.]” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (internal

quotation marks and citation omitted); see also Doe Run Res. Corp. v. E.P.A., 528 F.

App’x 1, 2 (D.C. Cir. 2013) (holding that a plaintiff who had “no concrete plans” of

engaging in a certain conduct, but merely alleged that he was “exploring . . .

opportunities” to do so, had not pleaded a non-speculative injury in fact under Article

III). Here, unfortunately, Baisden’s filings are silent with respect to his plans or

intentions to possess a firearm, and as a result, he has failed to allege a cognizable

injury in fact for purposes of Article III standing.

The two cases upon which Baisden primarily relies to support his standing

argument (see, e.g., Compl. ¶ 42–44 (discussing Reyes, 342 F. Supp. 3d at 145–46);

Pl.’s Opp’n at 7 (discussing Medina, 279 F. Supp. 3d at 286–87)) do not compel a

different conclusion. The plaintiff in Medina v. Sessions alleged that he “intend[ed] to

purchase and possess firearms for sport and self-defense within his own home[,]”

Complaint, Medina v. Sessions, No. 16-cv-1718, ECF No. 1, ¶ 5 (D.D.C. Aug. 24,

2016), and, even more specifically, that he had previously purchased land in Wyoming,

possessed a Wyoming hunting license, and had hunted there using a replica of an

antique firearm for many years, see id. ¶¶ 26–33. Similarly, in Reyes v. Sessions, the

plaintiff alleged that he “desire[d] to purchase and possess firearms for defense of both

himself and his family, and for hunting[.]” Complaint, Reyes v. Sessions, No. 17-cv-

1643, ECF No. 1, ¶ 10 (D.D.C. Aug. 14, 2017). The complaint in the Reyes case also

stated that, “in August 2017, [Reyes] discussed his desire to purchase a handgun with

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two different firearms merchants[,]” and that, “[u]pon disclosing that he had been

convicted of a white collar federal felony, he was informed by both merchants that

federal law prohibits the sale of a firearm to felons and that if he checked the box on

the background check form indicating that he has been convicted of a felony, the sale

would be cancelled[.]” Id. ¶ 32. The Reyes complaint further explained that the

plaintiff thus had refrained from attempting to acquire a firearm “because, were he

successful, he would be subject to arrest, prosecution, incarceration, and fine, at

Defendants’ instigation and direction, for violating Section 922(g)(1).” Id. ¶ 30. See

also Dearth v. Holder, 641 F.3d 499, 502 (D.C. Cir. 2011) (noting how the plaintiff in

that case had “twice attempted to go through the ‘formal process’ of applying to

purchase a firearm and each time failed because of the laws and regulations he now

challenges”).

Again, in the instant case, Baisden’s complaint lacks any allegations of fact that

demonstrate that he has “concrete plans” to possess a firearm, Summers, 555 U.S. at

496, such that he can be deemed actually injured by the ban he seeks to challenge

and/or by the government’s potential application of that ban to him. Thus, the

complaint in this case is plainly insufficient to survive the government’s motion to

dismiss for lack of subject-matter jurisdiction.

IV. ORDER

For the foregoing reasons, it is hereby

ORDERED that Defendants’ motion to dismiss for lack of subject -matter

jurisdiction (see ECF No. 6) is GRANTED, and as a result Plaintiff’s complaint is

DISMISSED without prejudice. It is

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 FURTHER ORDERED that, if Plaintiff desires to file an amended complaint,

he shall do so on or before November 6, 2020; otherwise, after that date, the instant

civil action will be dismissed.

In light of these orders, it is

FURTHER ORDERED that Plaintiff’s motion for leave to file a surreply (see

ECF No. 10) is DENIED AS MOOT.

DATE: October 16, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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