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Nicholas v. Trump

United States District Court, S.D. New York

January 14, 2020

JB NICHOLAS, KRISTINE RAKOWSKY, and LIANE NIKITOVICH, Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM B. LONG, in his official capacity as Administrator of the Federal Emergency Management Agency; AJIT PAI, in his official capacity as Chairman of the Federal Communications Commission; FEDERAL EMERGENCY MANAGEMENT AGENCY; and FEDERAL COMMUNICATIONS COMMISSION, Defendants.

          OPINION AND ORDER

          KATHERINE POLK FAILLA, DISTRICT JUDGE.

         On October 3, 2018, the federal government conducted the first test of the Presidential Alert system, pushing a test message to mobile phones across the United States (the “October 3 Test”). Plaintiffs JB Nicholas, Kristine Rakowsky, and Liane Nikitovich are among the millions of Americans who received the Presidential Alert, and they have brought this action against Defendants Donald J. Trump, William B. Long, Ajit Pai, the Federal Emergency Management Agency (“FEMA”), and the Federal Communications Commission (the “FCC”) (together, “Defendants”), [1] claiming that the Presidential Alert system violates the First and Fifth Amendments of the Constitution by violating individuals' privacy, compelling individuals to convey government speech, compelling individuals to receive unwanted information, and interfering with a parent's right to direct the upbringing of her child. Plaintiffs also claim that FEMA and the FCC, in authorizing and implementing the test of the allegedly unconstitutional Presidential Alert system on October 3, 2018, acted in violation of the Administrative Procedure Act (the “APA”), 5 U.S.C. ch. 5. Defendants, in turn, have moved to dismiss the action for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth in this Opinion, Defendants' motion to dismiss is granted.

         BACKGROUND[2]

         A. Statutory and Regulatory Background

         FEMA administers the Integrated Public Alert and Warning System (“IPAWS”), which allows federal, state, tribal, and local authorities to distribute alerts and warnings about “natural disasters, acts of terrorism, and other man-made disasters or threats to public safety.” 6 U.S.C. § 321o. Other than “acts of terrorism, ” which is given a statutory definition under 6 U.S.C. § 101(18), none of the other potential triggering events for the use of IPAWS is defined. IPAWS includes four different emergency alerting systems: (i) Wireless Emergency Alerts (“WEA”); (ii) the Emergency Alert System (the “EAS”); (iii) National Oceanic and Atmospheric Administration Weather Radio; and (iv) the All-Hazards Emergency Message Collection System. (Johnson Decl. ¶ 3). Relevantly, the EAS “provides the President with the capability to provide immediate communications and information to the general public … during periods of national emergency” via radio and television systems, see 47 C.F.R. § 11.1, while WEA “refers to the voluntary emergency alert system … whereby Commercial Mobile Service Providers [“CMSPs”] may elect to transmit Alert Messages to the public, ” Id. § 10.10.

         Under FCC regulations, participating CMSPs are “required to receive and transmit four classes of Alert Messages: [i] Presidential Alert; [ii] Imminent Threat Alert; [iii] Child Abduction Emergency/AMBER Alert; and [iv] Public Safety Message” as part of the WEA system. 47 C.F.R. § 10.400. While the regulation provides specific criteria for the latter three classes of alert messages, see, e.g., Id. § 10.400(b) (providing that an imminent threat alert must meet “a minimum value for each of three CAP elements: Urgency, Severity, and Certainty”), the only description for a Presidential Alert is “an alert issued by the President of the United States or the President's authorized designee, ” Id. § 10.400(a). Moreover, participating CMSPs “may offer subscribers the capability of preventing the subscriber's device from receiving such alerts, or classes of such alerts, other than an alert issued by the President.” 47 U.S.C. § 1201(b)(2)(E) (emphasis added). Thus, the statutory and regulatory framework provides neither precise criteria limiting the triggering event for a Presidential Alert nor a means by which individuals may refuse to receive Presidential Alerts.

         Relevant to this action, FEMA is mandated to “conduct[], not less than once every 3 years, periodic nationwide tests” of IPAWS. 6 U.S.C. § 321o(b)(4)(C). However, the statute does not specify which components of IPAWS, such as the WEA system or the EAS, must be used as part of this nationwide testing. As of the date of the filing of this Opinion, FCC regulations only require participating CMSPs to support monthly tests, periodic interface testing, and State/local WEA testing, see 47 C.F.R. § 10.350(a)-(c), none of which involve the Presidential Alert classification (see Cooke Decl. ¶ 7). Indeed, FEMA cannot test the President Alert system without either obtaining a waiver order from the FCC or the FCC changing its regulations to allow such testing. (See Id. at ¶ 8). However, use of the Presidential Alert system in the case of an emergency does not require any prior waiver or other regulatory permission.

         B. Factual Background

         On July 20, 2018, the FCC granted FEMA a limited waiver in order to allow the agency to conduct a nationwide test of the WEA system using the President Alert classification. (Am. Compl. ¶ 19). On October 3, 2018, FEMA conducted the nationwide test of the Presidential Alert system. (Id. At ¶ 18). Cell phones across the country received a message with the header “Presidential Alert, ” accompanied by a loud alarm and vibration. (Id. at ¶ 20). The message stated, “THIS IS A TEST of the National Wireless Emergency Alert System. No. action is needed.” (Id.). Plaintiffs all received the alert on their phones, with two of the Plaintiffs considering the alert to be disruptive. (Id. at ¶¶ 23-27).

         C. Procedural Background

         Plaintiffs initiated this action pro se on September 26, 2018, with the filing of a Complaint and a motion for a preliminary injunction. (Dkt. #1, 3). On October 2, 2018, the Court ordered a hearing on the application for emergency relief (Dkt. #5), and on October 3, 2018, the Court held said hearing and denied Plaintiffs' motion for a preliminary injunction (Dkt. #6). On October 4, 2018, Plaintiffs engaged counsel. (Dkt. #7).

         On November 30, 2018, Plaintiffs both moved to add FEMA, the FCC, and Ajit Pai as defendants to this case (Dkt. #28) and sought to file an Amended Complaint (Dkt. #30). However, the Amended Complaint was rejected as deficient (Minute Entry of November 30, 2018), as was a subsequent attempt to file an Amended Complaint on December 4, 2018 (Dkt. # 31; Minute Entry of December 4, 2018). On December 28, 2018, the case was stayed due to a lapse in funding to the United States Department of Justice (Dkt. #33), but the stay was lifted on January 30, 2019 (Dkt. #36). On February 20, 2019, Defendants indicated that they had no opposition to amendment of the Complaint and addition of Defendants FEMA, the FCC, and Pai. (Dkt. #39). An Amended Complaint was filed that same day. (Dkt. #40-41).

         On March 20, 2019, Defendants requested a conference to discuss their anticipated motion to dismiss (Dkt. #51), to which Plaintiffs responded on March 25, 2019 (Dkt. #53). The Court set a briefing schedule for Defendants' motion to dismiss on March 27, 2019. (Dkt. #54). Defendants filed their motion to dismiss, along with supporting declarations and a memorandum, on May 10, 2019. (Dkt. #57-60). Plaintiffs filed their opposing memorandum, with supporting declarations, on June 24, 2019. (Dkt. #62-66). They then filed a supplemental letter on June 28, 2019. (Dkt. #68). Defendants filed their reply memorandum on July 15, 2019. (Dkt. #72).

         DISCUSSION

         A. Applicable Law

         1. Motions to Dismiss Under ...


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