Nicholas v. Trump

Background

On October 3, 2018, the federal government conducted the first nationwide test of the Presidential Alert system. The test message appeared on mobile phones with a “Presidential Alert” header, a loud alarm, and a vibration. The message stated: “THIS IS A TEST of the National Wireless Emergency Alert System. No action is needed.” The plaintiffs received the alert, and two of them considered it disruptive.

The plaintiffs sued Donald J. Trump, William B. Long, Ajit Pai, the Federal Emergency Management Agency (FEMA), and the Federal Communications Commission (FCC). They alleged that the Presidential Alert system violated the First and Fifth Amendments by invading privacy, compelling people to convey government speech, compelling people to receive unwanted information, and interfering with a parent’s right to direct a child’s upbringing. They also alleged that FEMA and the FCC violated the Administrative Procedure Act (APA) by authorizing and implementing the October 3 test. The plaintiffs initially filed the case without lawyers and later obtained counsel.

Defendants’ Motion

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal when a federal court lacks subject-matter jurisdiction. They argued that the plaintiffs lacked Article III standing to pursue prospective relief. Standing requires a plaintiff to show a concrete injury that is fairly traceable to the challenged conduct and likely to be addressed by the requested relief.

The defendants also argued that the APA claim was barred. The plaintiffs principally challenged the FCC’s July 20, 2018 limited waiver allowing FEMA to conduct the Presidential Alert test. Under 47 U.S.C. § 402(a) and related provisions, challenges to final FCC orders must be brought in a court of appeals within 60 days. The parties agreed that the July 20 waiver was a final order.

Constitutional Claims and Standing

Judge Failla ruled that the plaintiffs had not shown a sufficiently likely future injury from another Presidential Alert test. The statute requiring periodic nationwide tests of the Integrated Public Alert and Warning System did not require FEMA to test the Wireless Emergency Alerts system or the Presidential Alert classification. FEMA could satisfy the nationwide-testing requirement through the Emergency Alert System, which is also tested nationwide.

The court also rejected the argument that FEMA’s prior test and statements about the test’s necessity created a substantial risk of another Presidential Alert test. The court noted that only one such test had occurred since the relevant statutory requirement was enacted, that FEMA needed another FCC waiver to conduct a test, and that no federal agency or official had expressed an intention to conduct another test soon.

The plaintiffs separately argued that the President could issue a Presidential Alert at any time. The court rejected that theory as speculative, noting that there was no history of the President issuing such an alert and that the plaintiffs’ theory depended on an assumption that the Presidential Alert system would be abused. The court therefore concluded that the plaintiffs lacked standing to bring their constitutional claims.

APA Claim

The court ruled that the APA did not provide a route for challenging the FCC’s waiver order. The APA generally waives federal sovereign immunity for certain non-money-damages claims, but not when another statute expressly or implicitly forbids the requested relief. The court held that the statutes governing review of FCC orders assigned exclusive jurisdiction over the validity of final FCC orders to the courts of appeals and required a challenge within 60 days.

Because the plaintiffs filed their original complaint more than 60 days after the FCC issued the July 20, 2018 waiver, the district court held that it could not review the APA challenge to that order. The court stated that, to the extent the plaintiffs also challenged the completed October 3 test itself under the APA, that claim was moot because the completed test could not be undone.

Disposition

Judge Failla concluded that the court lacked subject-matter jurisdiction because the plaintiffs had not plausibly alleged a future injury supporting standing and because the APA did not permit their challenge to the FCC waiver order. The court granted the defendants’ motion to dismiss, terminated the pending motions, adjourned the remaining dates, and closed the case.