Avignone v. National Railroad Passenger Corporation

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARIO AVIGNONE,

Plaintiff,

Civil Action No. 25-2199 (RDM)

NATIONAL RAILROAD PASSENGER

CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Mario Avignone brings this case to challenge his termination by his former

employer, the National Railroad Passenger Corporation (“Amtrak”), because of his refusal to

comply with Amtrak’s COVID-19 safety measures. Originally proceeding pro se, Plaintiff filed

a complaint, an amended complaint, and a second amended complaint. Although Plaintiff has

now retained counsel, his second amended complaint remains the operative pleading. It asserts

claims under the Occupational Safety and Health Act (“OSHA Act”), the Railway Labor Act

(“RLA”), 42 U.S.C. § 1985, and the U.S. Constitution against Amtrak, a union that represents

Amtrak employees, and former President Joe Biden. Plaintiff’s claims are premised on his

contentions that Amtrak unlawfully discharged him for refusing to comply with the company’s

COVID-19 vaccination and testing requirements, despite his stated religious objection to those

policies; that the union breached its duty of fair representation by failing adequately to represent

him in his wrongful discharge hearing and by failing to challenge Amtrak’s COVID-19 policies;

that Defendants fraudulently concealed his right to refuse COVID-19 vaccination and testing;

that former President Biden’s Executive Order and related guidance requiring federal contractors to adopt COVID-19 safety measures violated several constitutional provisions and the OSHA

Act; and, finally, that Amtrak, the union, and President Biden conspired to deprive Plaintiff of

his constitutional right to refuse to comply with Amtrak’s COVID-19 policies based on his

religious beliefs. Plaintiff also seeks to bring class claims on behalf of “many other

employees . . . terminated under the same set of facts.” Dkt. 10 at 67 (SAC ¶ 305).

Amtrak and the union, Transportation Communications Union/IAM (“TCU/IAM”), each

move to dismiss. 1 Amtrak posits that Plaintiff’s second amended complaint fails to comply with

Rule 8, that each of Plaintiff’s claims against Amtrak fails as a matter of law or because Plaintiff

has failed plausibly to plead facts from which to infer a violation occurred, and that Plaintiff’s

class allegations should be stricken because Plaintiff failed to seek class certification within the

90-day window required by Local Rule 23.1. TCU/IAM, for its part, contends that Plaintiff

lacks standing to bring his representation-related claims against TCU/IAM because TCU/IAM is

not Plaintiff’s union and that any claims against Plaintiff’s union must be construed as claims for

breach of the duty of fair representation, which are barred by the six-month statute of limitations

applicable to such claims. TCU/IAM also argues that Plaintiff’s conspiracy claim is so

preposterous that it fails to present a federal question and thus must be dismissed under Rule

12(b)(1) for lack of subject-matter jurisdiction.

After Defendants filed their motions to dismiss, Plaintiff formally retained counsel, see

Dkt. 22, although some of Plaintiff’s earlier filings suggest that counsel assisted him in drafting

Former President Biden has not answered or moved to dismiss Plaintiff’s second amended complaint. Although Plaintiff now asserts that he intended to name Biden in both his individual and official capacity and that he intended to effect service on President Biden pursuant to Federal Rule of Civil Procedure 4(i), see Dkt. 42 at 2–3, Plaintiff’s second amended complaint names President Biden only in his individual capacity, see Dkt. 10 at 7, 13 (SAC ¶¶ 1, 16(b)). According to Plaintiff’s most recent filing, he has yet to serve President Biden in his individual capacity. See Dkt. 47 at 8.

his pro se pleadings, see Dkt. 14 (“I have a lawyer who is out of state helping me.”). Plaintiff,

through counsel, then opposed the pending motions to dismiss and requested leave to file a third

amended complaint, which maintains many of Plaintiff’s original allegations but seeks to add

allegations against former President Biden in his official capacity and to add the union that both

TCU/IAM and Plaintiff have identified as the correct union, UNITE HERE Local 23. See Dkt.

26 (seeking, among other things, leave to file an amended complaint to add the correct union as a

defendant); see also Dkt. 36; Dkt. 44; Dkt. 47.

After Plaintiff declined to drop TCU/IAM from the case despite acknowledging that he

was a member of UNITE HERE, TCU/IAM moved for Rule 11 sanctions against Plaintiff’s

counsel. TCU/IAM contends that counsel’s refusal to dismiss TCU/IAM, after conceding in a

filing that TCU/IAM was not Plaintiff’s union, see Dkt. 26 at 2, constitutes intentional

harassment under Rule 11(b)(1) and reflects a legal position that counsel knew or should have

known was unsupported by fact or law and for which there is no nonfrivolous argument for

changing the law in violation of Rule 11(b)(2). See Dkt. 39. Plaintiff’s counsel opposes the

motion and argues that TCU/IAM’s Rule 11 motion is “misleading” about how Amtrak

employees’ unions are structured and about the law governing Plaintiff’s claims. See Dkt. 40 at

19–20. TCU/IAM responds that Plaintiff’s arguments about the structure of the Amtrak unions

reflect a new legal theory that is not properly advanced in an opposition to a Rule 11 motion.

See Dkt. 41 at 4–5.

For the following reasons, the Court will GRANT Defendants’ motions to dismiss, Dkt.

21 & Dkt. 32, and will DISMISS Plaintiff’s second amended complaint in its entirety without

prejudice; will DENY Plaintiff’s motion for leave to file the proposed, third amended complaint,

Dkt. 44, as futile; and will DENY TCU/IAM’s motion for sanctions, Dkt. 39, but will caution

Plaintiff’s counsel that any similar behavior in the future may, as appropriate, warrant the

imposition of sanctions.

I. BACKGROUND

A. Statutory Background

1. Occupational Health and Safety Act

Congress enacted the OSHA Act in 1970 to promote “safe and healthful working

conditions” for “every working man and woman in the Nation.” 29 U.S.C. § 651(b). To achieve

these goals, the Act authorizes the Secretary of Labor, acting through the Occupational Safety

and Health Administration (“OSHA”), to promulgate rules establishing health and safety

standards, id. § 655, with which employers must comply, id. § 654(a)(2). A corporation

“engaged in a business affecting commerce who has employees” is an “employer” required to

comply with OSHA’s health and safety standards. Id. § 652(5). If, after an inspection or

investigation (which employees and their representatives may request, see id. § 657(f)(1)), the

Secretary believes that an employer has violated its statutory obligations or any of the published

health and safety standards, he may issue a citation to the employer. Id. § 658(a). If the

employer contests the citation, the Occupational Health and Safety Review Commission (“the

Commission”) must provide an opportunity for a hearing, after which the Commission must

issue an order affirming, modifying, or vacating the citation or directing other appropriate relief.

Id. § 669(c). Affected employees or representatives of affected employees may participate in

these hearings. Id. When the Commission issues a final order related to a citation, “[a]ny person

adversely affected or aggrieved by” that order may seek review by filing a petition either in a

United States court of appeals for the circuit in which the violation allegedly occurred or in the

Court of Appeals for the District of Columbia Circuit. Id. § 660(a). The Secretary may obtain

review or enforcement of a final order by the Commission in the same manner. Id. § 660(b).

The OSHA Act prohibits employers from discharging or discriminating against

employees because they have complained of health and safety violations or caused the initiation

of any proceedings under the Act. Id. § 660(c)(1). If an employee believes that he has suffered a

discriminatory discharge or other discrimination, he may file a complaint with the Secretary of

Labor within 30 days of the violation. Id. § 660(c)(2). The Secretary must investigate any such

complaint “as he deems appropriate” and, if he determines that a violation has occurred, “bring

an action in any appropriate United States district court” against the person who committed the

violation. Id. The provision says nothing about whether the employee who has suffered the

allegedly discriminatory action may also bring a suit directly in federal district court.

Separate from the provisions governing the promulgation and enforcement of health and

safety standards, the OSHA Act authorizes the Secretary of Health and Human Services (“HHS”)

to conduct research related to occupational safety and health, often in consultation with the

Secretary of Labor. See id. § 669. The Secretary of HHS must also consult with the Secretary of

Labor to develop research plans related to identifying the criteria on which the Secretary of

Labor’s occupational health and safety standards will be based, including criteria for identifying

toxic substances. Id. § 669(a)(2). To do so, the Act contemplates that the Secretary of HHS may

need to prescribe regulations requiring employers to record and report on employees’ exposure

to potentially toxic substances. See id. § 669(a)(5). The Act further authorizes the Secretary of

HHS “to establish such programs of medical examinations and tests as may be necessary for

determining the incidence of occupational illnesses and the susceptibility of employees to such

illnesses.” Id. The provision limits the HHS Secretary’s authority to research toxic substances

as follows: “Nothing in this or any other provision of this chapter shall be deemed to authorize

or require medical examination, immunization, or treatment for those who object thereto on

religious grounds, except where such is necessary for the protection of the health or safety of

others.” Id. The Act contains no provision expressly authorizing a private right of action against

employers whose own policies require medical testing or immunization.

2. Railway Labor Act

“The Railway Labor Act . . . governs labor relations in the railroad and airline

industries.” Davenport v. Int’l B’hd of Teamsters AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999).

Section 2 of the RLA gives employees “the right to organize and bargain collectively through

representatives of their own choosing, and requires employers under the Act to bargain

exclusively with the representatives so chosen.” Id. (citing 45 U.S.C. § 152). The Supreme

Court has interpreted this provision and others in the statute to imply a duty of fair representation

(“DFR”) owed by unions in these industries to their members. See Air Line Pilots Ass’n, Int’l v.

O’Neill, 499 U.S. 65, 74–76 (1991); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192,

199–203 (1944). This duty of fair representation obligates unions “to serve the interests of all

members without hostility or discrimination toward any, to exercise [their] discretion with

complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171,

177 (1967).

3. 42 U.S.C. § 1985

Section 1985 provides a private right of action against those who engage in conspiracy to

interfere with civil rights. See 42 U.S.C. § 1985. Subsection three provides that:

[i]f two or more persons in any State or Territory conspire . . . for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws . . . the

party so injured or deprived may have an action for the recovery of damages

occasioned by such injury or deprivation, against any one or more of the

conspirators.

Id. § 1985(3).

B. Factual and Procedural Background

For the purpose of resolving Defendants’ motions to dismiss, the following facts, which

are taken from Plaintiff’s second amended complaint, are accepted as true. See Am. Nat’l Ins.

Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation modified). The Court will also

consider, as appropriate, documents “incorporated in the complaint and matters [subject to]

judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997).

Plaintiff Mario Avignone was a train attendant employed for many years by Amtrak at its

Chicago station. Dkt. 10 at 12 (SAC ¶ 14). On August 11, 2021, Amtrak’s Chief Executive

Officer Bill Flynn issued a companywide letter outlining a new COVID-19 vaccination and

testing policy that Amtrak was adopting. Dkt. 10 at 26 (SAC ¶ 81); Dkt. 10-1 at 202 (SAC, Ex.

16 at 1). The policy mandated that all current employees be fully vaccinated by November 1,

2021, and further specified that anyone “who has not provided documentation of full vaccination

by” that date would “be required to submit a negative COVID-19 test result weekly.” Dkt. 10-1

at 202 (SAC, Ex. 16 at 1). But the letter also provided that employees “with a valid medical

reason that prohibits COVID-19 vaccination or testing” or with “religious reasons” for objecting

to the policy could seek reasonable accommodations. Id. at 203 (SAC, Ex. 16 at 2). Employees

with accommodations who submitted a negative COVID-19 test “weekly or more frequently, as

required” would be permitted to continue working. Id. at 204 (SAC, Ex. 16 at 3). Unvaccinated

employees who did not obtain approved accommodations would be permitted to participate in

the testing option at least on a temporary basis. Id. Noncompliant employees would first be

placed on a temporary leave of absence, but, the letter explained, “[p]rolonged failure to submit

to testing [would] be considered insubordinate, potentially resulting in termination of

employment.” Id.

On September 9, 2021, President Biden signed Executive Order 14042, which required

federal executive departments and agencies to include in their contracts clauses requiring that

federal contractors and subcontractors comply with COVID-19 safety guidance published by the

Safer Federal Workforce Task Force. Dkt. 10 at 27 (SAC ¶ 82); Dkt. 10-1 at 223 (SAC, Ex. 18

at 1). The associated guidance directed contractors to require that covered employees be

vaccinated for COVID-19 “unless legally entitled to an accommodation.” Dkt. 10-1 at 208

(SAC, Ex. 17 at 1); see also Dkt. 10 at 27 (SAC ¶ 82). The guidance further provided that

employers may be required to provide accommodations to employees who are unvaccinated

because of a disability or “sincerely held religious belief, practice, or observance.” Dkt. 10-1 at

212 (SAC, Ex. 17 at 5).

On September 21, 2021, Amtrak “informed all employees that the option to test instead

of providing evidence of . . . vaccination was eliminated and [that] all employees were mandated

to vaccinate or be placed on leave without pay.” Dkt. 10 at 27 (SAC ¶ 84). Three days later,

Plaintiff submitted to Amtrak a written notice that his religious faith required him to refuse the

COVID-19 vaccine. Id. at 28 (SAC ¶ 85). On October 28, 2021, Amtrak sent Plaintiff a letter

“approv[ing]” Plaintiff’s religious accommodation. Dkt. 10-1 at 228 (SAC, Ex. 19 at 1). The

letter informed Plaintiff that he would be placed on a 90-day unpaid personal leave of absence,

with benefits for a period of time, effective December 8, 2021. Id.; Dkt. 10 at 28 (SAC ¶ 86).

On December 14, 2021, Amtrak announced that it would resume the COVID-19 testing

option as an alternative to vaccination. Dkt. 10 at 28 (SAC ¶ 89). Six days later, Amtrak sent

Plaintiff an email informing him of the testing alternative and offering him an opportunity to end

his unpaid leave and return to work full time. Id. Plaintiff declined the offer on the grounds that

both COVID-19 testing and vaccination violated his religious beliefs, instead seeking an

accommodation that allowed his return to work if he complied only with Amtrak’s requirements

for masks and personal sanitation. Id. (SAC ¶ 90). Amtrak declined, and Plaintiff remained on

unpaid leave. Id. (SAC ¶ 91). Throughout the following months, Amtrak continued to inform

Plaintiff that he was required to comply with its COVID-19 testing program and that his refusal

might lead to disciplinary action. Id. (SAC ¶ 92); Dkt. 10-2 at 6 (SAC, Ex. 21 at 2). Plaintiff

continued to object to COVID-19 testing on religious grounds. Dkt. 10 at 29 (SAC ¶ 93).

Amtrak sent Plaintiff a letter on June 10, 2022, informing him that he was noncompliant

with the testing policy and that he had seven days to come into compliance before his

noncompliance would be considered insubordination. Id. (SAC ¶ 94); Dkt. 10-2 at 23 (SAC, Ex.

22 at 1). On June 21, Amtrak sent Plaintiff a formal notice that he was being investigated for

termination based on his noncompliance with the COVID-19 policy and directed him to attend a

virtual hearing. Dkt. 10 at 29 (SAC ¶ 95); Dkt. 10-2 at 25 (SAC, Ex. 23 at 1). Plaintiff attended

the hearing and was represented by his union representative. Dkt. 10-2 at 27 (SAC, Ex. 24 at 1).

At the hearing, Plaintiff continued to object to the COVID-19 vaccination and testing policy on

religious grounds. Dkt. 10 at 29 (SAC ¶ 96).

Amtrak issued a written decision on July 11, 2022, outlining the Hearing Officer’s

findings that Plaintiff had violated Amtrak’s COVID-19 vaccine and testing policy. Id. (SAC

¶ 97); Dkt. 10-2 at 28 (SAC, Ex. 24 at 2). Plaintiff’s employment was terminated on July 13,

2022. Dkt. 10 at 30 (SAC ¶ 98); Dkt. 10-1 at 2 (SAC, Ex. 1 at 1). On October 31, 2022, Amtrak

sent Plaintiff a letter offering him “the opportunity to be reinstated to service on a leniency basis”

with his “seniority and vacation rights restored” but without pay for time lost, conditioned on

Plaintiff “accept[ing] responsibility” for the actions that led to his termination and waiving any

claim to damages as a result of his discharge. Dkt. 10 at 28 (SAC ¶ 87); Dkt. 10-2 at 2 (SAC,

Ex. 20 at 1). Plaintiff declined the offer of reinstatement. Dkt. 10 at 28 (SAC ¶ 88).

On May 12, 2023, President Biden rescinded Executive Order 14042 and the related

guidance. Dkt. 10 at 30 (SAC ¶ 99). After he did so, Plaintiff unsuccessfully applied several

times for new positions at Amtrak. Id. (SAC ¶ 100); see Dkt. 10-2 at 30, 31 (SAC, Ex. 25 at 1,

2).

Plaintiff filed his first complaint in this action nearly three years after his termination, on

July 1, 2025. See Dkt. 1. He has amended his complaint twice, each time adding additional

defendants and allegations. See Dkt. 5 (FAC); Dkt. 10 (SAC). Plaintiff’s second amended

complaint asserts claims under the OSHA Act, D.C. law governing fraudulent concealment,

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

various federal constitutional provisions, and 42 U.S.C. § 1985(3). Plaintiff’s operative

complaint also includes “class allegations” asserting that “many other employees may have been

terminated under the same set of facts.” Dkt. 10 at 67 (SAC ¶ 305).

The same day that he filed his second amended complaint, Plaintiff moved for summary

judgment. See Dkt. 12. The Court denied that motion as premature because Defendants had not

yet answered his complaint and because Plaintiff failed to comply with the Court’s standing

order. See Min. Order (Dec. 23, 2025).

Amtrak and TCU/IAM subsequently moved to dismiss all claims under Rules 12(b)(1)

and 12(b)(6). See Dkt. 21; Dkt. 32. Amtrak argues that Plaintiff’s complaint should be

dismissed in its entirety because he has failed to comply with Rule 8’s requirement of “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Amtrak further contends that Plaintiff’s claims fail as a matter of law or for failure to

plead sufficient factual allegations to state a plausible claim for relief. TCU/IAM contends that

Plaintiff lacks standing to bring his claims against TCU/IAM because Plaintiff is not a member

of TCU/IAM but rather a different union, UNITE HERE Local 23. TCU/IAM also argues that

all of Plaintiff’s claims are repackaged claims for the breach of the duty of fair representation

and are accordingly barred by the six-month statute of limitations applicable to such claims.

After Amtrak moved to dismiss, Plaintiff retained counsel, see Dkt. 22, who sought

reconsideration of the Court’s decision denying Plaintiff’s motion for summary judgment as

premature and procedurally improper, see Dkt. 32, and who filed a consolidated brief in

opposition to both pending motions for summary judgment, see Dkt. 26. In the first of these

motions, Plaintiff’s counsel argued that the Court’s requirements outlined in its standing order

violate the Federal Rules of Civil Procedure; counsel continued to press for summary judgment

briefing and a hearing; and counsel sought leave to amend Plaintiff’s second amended complaint

“to add UnitedHere [sic] union as a new defendant based on Plaintiffs [sic] inadvertent incorrect

identification of TCU/IAM as his union when UnitedHere [sic] was actually the union to whom

he paid his dues.” Id. at 2. The Court denied Plaintiff’s motion for reconsideration because

Plaintiff’s attempt to address the merits of Plaintiff’s claims on summary judgment before the

Court has determined whether the second amended complaint properly invokes the Court’s

jurisdiction or states a claim was premature. And the Court denied Plaintiff’s motion for leave to

amend because Plaintiff’s request to amend his complaint was procedurally improper (because

Plaintiff failed to include a proposed and redlined amended complaint) and moot (because

Plaintiff had filed a superseding motion for leave to amend). See Min. Order (July 14, 2026).

TCU/IAM subsequently moved for the imposition of sanctions against Plaintiff’s counsel

under Rule 11, asserting that counsel’s refusal to dismiss TCU/IAM as a defendant despite

conceding that Plaintiff’s complaint identified the wrong union constitutes intentional

harassment under Rule 11(b)(1) and violates Rule 11(b)(2)’s requirement that attorneys submit

filings containing claims that are either “warranted by existing law or by a nonfrivolous

argument for extending, modifying, or reversing existing law or for establishing new law.” Fed.

R. Civ. P. 11(b)(2). Plaintiff’s counsel opposes that motion on the grounds that Plaintiff’s claims

are supported by law governing the scope of unions’ representative duties and that Plaintiff’s

conspiracy claim is non-frivolous. See Dkt. 40.

Plaintiff also seeks leave to file his third amended complaint to clarify that his claims

against President Biden seek to hold him liable in both his official and his individual capacities

and to add “UNITE HERE Local 43” as a defendant. See Dkt. 44. In its response, TCU/IAM

contends that “Plaintiff’s motion should . . . be denied because—even after all of this time and

after multiple filings identifying the correct union—Plaintiff is proposing to add another wrong

defendant union to this case.” Dkt. 46 at 1. As TCU/IAM points out, its previous filings had

identified UNITE HERE Local 23, rather than Local 43, as the union to which Plaintiff

belonged. Id. at 1–2. Rather than dispute TCU/IAM’s assertion, Plaintiff in reply seeks leave

“to correct that identification before filing an amended pleading,” Dkt. 47 at 5, and to add yet

another defendant, the Amtrak Service Workers Council (“ASWC”), because Plaintiff had

“recently discovered” a Seventh Circuit decision from 1993 in which ASWC was named as a

union defendant, id.at 2. Plaintiff then filed yet another proposed third amended complaint, this

time seeking to add both ASWC and UNITE HERE Local 23 as defendants. See Dkt. 48-1.

Now pending before the Court are TCU/IAM’s and Amtrak’s motions to dismiss, Dkt. 21

& Dkt. 32; TCU/IAM’s motion for Rule 11 sanctions, Dkt. 39; and Plaintiff’s motion for leave to

file a third amended complaint, Dkt. 44, all of which are ripe for the Court’s review.

II. LEGAL STANDARD

A. Motions to Dismiss

The Court may dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) upon a

defendant’s motion or sua sponte, “where the claimant cannot possibly win relief.” Baker v.

Dir., U.S. Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (citation modified). A motion to

dismiss brought under Rule 12(b)(6) is designed to “test[] the legal sufficiency of a complaint.”

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court

“must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim’ to relief, and

then determine whether the plaintiff has pleaded those elements with adequate factual support to

‘state a claim to relief that is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14,

20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Although “detailed

factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007), the facts alleged in the complaint “must be enough to raise a

right to relief above the speculative level,” id. at 555–56.

A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) seeking dismissal for lack

of subject-matter jurisdiction may take one of two different forms. First, a Rule 12(b)(1) motion

“may raise a ‘facial’ challenge to the Court’s jurisdiction.” Hale v. United States, No. 13-cv1390, 2015 WL 7760161, at *3 (D.D.C. Dec. 2, 2015). A facial challenge asks whether the

complaint alleges facts sufficient to establish the court’s jurisdiction. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992); see also Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t

of Transp., 879 F.3d 339, 346–47 (D.C. Cir. 2018). In this posture, the Court must accept the

factual allegations of the complaint as true and construe them in the light most favorable to the

non-moving party. Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (collecting

cases).

“Alternatively, a Rule 12(b)(1) motion may pose a ‘factual’ challenge to the Court’s

jurisdiction.” Hale, 2015 WL 7760161, at *3. When a motion to dismiss is framed in this

manner, “the [C]ourt may not deny the motion . . . merely by assuming the truth of the facts

alleged by the plaintiff and disputed by the defendant” but “must go beyond the pleadings and

resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the

motion to dismiss.” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.

2000). “The [C]ourt has considerable latitude in devising the procedures it will follow to ferret

out the facts pertinent to jurisdiction,” so long as it “afford[s] the nonmoving party an ample

opportunity to secure and present evidence relevant to the existence of jurisdiction.” Prakash v.

Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984) (citation modified).

Under both Rule 12(b)(6) and Rule 12(b)(1), the Court must review the sufficiency of

Plaintiff’s second amended complaint under the standards applicable to pro se pleadings. A pro

se complaint, “however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Naz v.

Wright, 177 F.4th 1242, 1246 (D.C. Cir. 2026). “This benefit is not, however, 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) (citation omitted). A pro se complaint must “still ‘present a claim on which

the Court can grant relief’ to withstand a Rule 12(b)(6) challenge.” Smith v. Scalia, 44 F. Supp.

3d 28, 36 (D.D.C. 2014) (citations omitted). Moreover, as with any other plaintiff, a pro se

plaintiff must meet his burden of establishing subject-matter jurisdiction. See, e.g., Green v.

Stuyvesant, 505 F. Supp. 2d 176, 176 (D.D.C. 2007).

B. Leave to File Amended Complaint

A plaintiff may amend his complaint once as a matter of right. See Fed. R. Civ. P.

15(a)(1). For subsequent amendments, the plaintiff must obtain either the opposing party’s

written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The Court should grant leave to

amend “freely” in the absence of circumstances “such as undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or]

futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

C. Motion for Sanctions

Rule 11 requires an attorney presenting “a pleading, written motion, or other paper” to

certify “to the best of the [attorney’s] knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances” that the material “is not being presented for any

improper purpose, such as to harass;” that “the claims, defenses, and other legal contentions are

warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing

existing law or for establishing new law;” and that “the factual contentions have evidentiary

support or, if specifically so identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b). “If, after notice and a

reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the

court may impose an appropriate sanction on any attorney, law firm, or party that violated the

rule or is responsible for the violation.” Id. 11(c).

In deciding whether to impose sanctions, the Court must consider “(1) whether each

presenting attorney ‘conducted a reasonable inquiry,’ (2) whether each presenting attorney

‘determined that [the] papers filed with the court are well grounded in fact [and] legally tenable,’

and (3) whether the papers were ‘interposed for any improper purpose.’” Jordan v. U.S. Dep’t of

Labor, 273 F. Supp. 3d 214, 241 (D.D.C. 2017) (alterations in original) (quoting Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). “Rule 11 sanctions . . . are an extreme

punishment for filing pleadings that frustrate judicial proceedings,” and, accordingly, they are

not to be imposed “lightly.” Id. “The test for sanctions under Rule 11 is an objective one that

asks whether a reasonable inquiry would have revealed that there was no basis in law or fact for

the asserted claim.” Hedgeye Risk Mgmt., LLC v. Heldman, 412 F. Supp. 3d 15, 34 (D.D.C.

2019); see Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 100 (D.D.C. 2007). The

Court must also “take into consideration that Rule 11 sanctions are a harsh punishment, and what

effect, if any, the alleged violations may have had on judicial proceedings.” Robinson-Reeder v.

Am. Council on Educ., 626 F. Supp. 2d 11, 18 (D.D.C. 2009) (citation modified).

When the Court determines that a Rule 11 violation has occurred, the Court has

discretion to select the appropriate sanction necessary to “protect the court from frivolous and

baseless filings that are not well grounded, legally untenable, or brought with the purpose of

vexatiously multiplying the proceedings.” Cobell v. Norton, 211 F.R.D. 7, 10 (D.D.C. 2002)

(citation modified). But “once the district court finds that a pleading is not well grounded in fact,

not warranted by existing law or a good faith argument for the extension, modification or

reversal of existing law, or is interposed for any improper purpose, Rule 11 requires that

sanctions of some sort be imposed.” Rafferty v. NYNEX Corp., 60 F.3d 844, 852 (D.C. Cir.

1995) (emphasis in original and citation modified).

III. ANALYSIS

The crux of Plaintiff’s complaint is that Amtrak—in response to former President Biden’s

COVID-19 Executive Order and the related guidance and without objection by TCU/IAM—

mandated that Plaintiff either receive the COVID-19 vaccine or undertake weekly COVID-19

testing as a condition of his employment, despite Plaintiff’s asserted religious objection to

vaccination and testing. Plaintiff’s operative complaint challenges Amtrak’s termination of his

employment in response to his refusal to comply with its policy, TCU/IAM’s inadequate

representation of him during his hearing and its failure to challenge Amtrak’s COVID-19 policy,

and President Biden’s COVID-19 Executive Order and related guidance, as well as President

Biden’s public statements about COVID-19 vaccines. 2 In doing so, Plaintiff asserts claims under

the OSHA Act, D.C. fraudulent concealment law, Bivens, the Railway Labor Act’s implied duty

of fair representation, 42 U.S.C. § 1985(3), and various other constitutional provisions. Plaintiff

also seeks to proceed on behalf of similarly situated Amtrak employees, although he has yet to

seek class certification.

The Court concludes that Plaintiff’s complaint must be dismissed in its entirety. With

respect to Plaintiff’s claims against TCU/IAM, the Court concludes that Plaintiff lacks standing

to sue TCU/IAM because the evidence put forth by the parties demonstrates that TCU/IAM was

not the union that represented Plaintiff and thus owed him no duty of fair representation.

Plaintiff’s fair representation claim, as well as his remaining claims against TCU/IAM that in

substance merely repackage his fair representation claim, must therefore be dismissed under

Rule 12(b)(1).

Plaintiff’s claims against former President Biden also fail, and the Court will dismiss

them sua sponte because the Court lacks jurisdiction over some and Plaintiff “cannot possibly

win relief,” Baker, 916 F.2d at 726, on the rest. To the extent Plaintiff seeks to bring his claims

against President Biden in his individual capacity for money damages, such claims are barred by

President Biden’s absolute immunity for all actions taken within the scope of his official

Plaintiff’s second amended complaint also, at times, suggests that Defendants may have committed a felony under D.C. law by “prescrib[ing]” a “medical treatment” (the COVID-19 vaccine) despite being non-physicians who are unlicensed to do so. Dkt. 10 at 21 (SAC ¶¶ 53– 54). Because D.C. criminal law does not provide a basis for the Court to grant Plaintiff relief on his civil complaint, the Court will not consider these allegations. See Agarwal v. United States, No. 18-cv-03125, 2019 WL 2476613, at *3 (D.D.C. June 13, 2019); Anderson v. Wiggins, 460 F. Supp. 2d 1, 7–8 (D.D.C. 2006).

responsibility as President. And Plaintiff’s remaining constitutional and ultra vires claims

seeking declaratory and injunctive relief based on President Biden’s Executive Order and

guidance related to COVID-19 vaccination must be dismissed as moot because both the

Executive Order and the related guidance were rescinded long ago.

As for Plaintiff’s remaining claims against Amtrak, all must be dismissed under Rule

12(b)(6). Plaintiff lacks a private right of action to pursue his OSHA Act wrongful-discharge

claim in federal court, and a Bivens remedy is unavailable against Amtrak for allegedly violating

Plaintiff’s substantive due process right to refuse the COVID-19 vaccine. Plaintiff also fails

plausibly to plead fraudulent concealment or conspiracy to deprive him of his civil rights in

violation of § 1985(3). And, because all of Plaintiff’s individual claims must be dismissed, his

putative class claims must be dismissed as well.

The Court will also deny Plaintiff’s request to file a third amended complaint because

filing the amended complaint would be futile. Plaintiff’s proposed amended complaint does not

cure any of the defects in his second amended complaint. And, although Plaintiff proposes to

add two other union defendants he alleges owed him a duty of fair representation, amending his

complaint to bring these claims against those unions would be futile because any such claims

would be time-barred.

Finally, the Court will deny TCU/IAM’s motion for sanctions. Although counsel’s

litigation conduct is troubling and reflects fundamental misunderstandings of law and lack of

care, the Court concludes that the record is insufficient to demonstrate that counsel’s refusal to

dismiss TCU/IAM constitutes intentional harassment or crosses the line from ill-advised to

sanctionable conduct. The Court cautions Plaintiff’s counsel, however, that repeated attempts to

pursue claims against concededly improper defendants—and to contrive novel and unsupported

justifications for doing so after the fact—frustrates the judicial process and will invite sanctions

if, after fair warning, counsel continues to press such claims.

A. TCU/IAM’s Motion to Dismiss

At the outset, TCU/IAM argues that Plaintiff lacks standing to bring his claims against it

because all of Plaintiff’s claims relating to TCU/IAM’s alleged actions are, in substance, claims

for breach of the duty fair representation under the Railway Labor Act and must be treated as

such. Plaintiff lacks standing to pursue those claims, TCU/IAM continues, because he was not a

member of TCU/IAM; rather, Plaintiff concedes that he was a member of different union, which

he now seeks to add as defendant.

TCU/IAM frames its argument as a factual challenge to the Court’s jurisdiction under

Rule 12(b)(1), which the Court must resolve not by accepting Plaintiff’s factual allegations as

true but, instead, by considering the relevant jurisdictional fact—here, whether Plaintiff was a

member of TCU/IAM or a different union. See Phoenix Consulting, Inc., 216 F.3d at 40.

TCU/IAM further argues that, because it moves to dismiss for lack of Article III jurisdiction, the

Court may consider materials outside the pleadings, including any undisputed facts established in

the record. All. For Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); Conf. of State

Bank Supervisors v. Off. of Comptroller of Currency, 313 F. Supp. 3d 285, 294 (D.D.C. 2018)

(citations omitted).

The requirement that a plaintiff establish his standing stems from Article III’s

requirement that federal courts decide only “Cases” and “Controversies.” See Lujan, 504 U.S. at

560. The inquiry requires a plaintiff to establish three elements: (1) that he has suffered an

“injury in fact,” (2) “that the injury is ‘fairly traceable’ to the challenged action of the

defendant,” and (3) that his injury will likely be “redressed by a favorable decision” of the Court.

Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 174 (D.C. Cir. 2012) (quoting Lujan, 504 U.S. at

560–61). “Standing must be demonstrated for each claim against each defendant.” Bodude v.

U.S. Dep’t of State, No. 25-cv-193, 2026 WL 1983309, at *2 (D.D.C. July 8, 2026) (citation

modified).

Suing the wrong defendant implicates the second prong of the standing analysis,

traceability. Here, no party disputes that Plaintiff was terminated from his employment at

Amtrak and that the termination constitutes an injury-in-fact for purposes of Article III. But, if

TCU/IAM was not Plaintiff’s union, and therefore owed him no duty of fair representation (or

any other alleged duty), Plaintiff cannot establish that his alleged injury was “caused by”

TCU/IAM. Bodude, 2026 WL 1983309, at *2 (quoting Pub. Citizen, Inc. v. Nat’l Highway

Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007)). The duty of fair representation

under the Railway Labor Act runs from a representative union only to those it represents, i.e.,

“members of its collective-bargaining unit,” Schneider Moving & Storage Co. v. Robbins, 466

U.S. 364, 376 n.22 (1984), and the duty is “coextensive with [a union’s] statutory authority to act

as the exclusive representative for all the employees within the unit,” id.; see also Allied Chem.

& Alkali Workers of Am., Loc. Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S.

157, 181 n.20 (1971) (explaining that the duty of fair representation “does not require a union

affirmatively to represent non-bargaining unit members or to take into account their interests”

when representing its members). It follows that Plaintiff’s injuries from his union’s alleged

breach of its duty by failing to advocate against Amtrak’s COVID-19 policy would not be

traceable to the conduct of a different union, which did not represent him and thus did not owe

him a duty of any kind. Cf. Karo v. San Diego Symphony Orchestra Ass’n, 762 F.2d 819, 821

(9th Cir. 1985) (“Because the union owed no duty to Karo as a nonemployee of the bargaining

unit, he lacks standing to sue for breach of such a duty.”); Souter v. Int’l Union, United Auto.,

Aerospace & Agr. Implement Workers of Am., Loc. 72, 993 F.2d 595, 597 n.1 (7th Cir. 1993)

(concluding that a plaintiff “ha[d] no standing to claim breach of the duty of fair representation,

since she was not a member of the collective bargaining unit”). The same holds true, moreover,

for Plaintiff’s remaining claims against TCU/IAM; if TCU/IAM was not Plaintiff’s union,

Plaintiff lacks standing to sue that union—as opposed to his actual union—for any and all claims

alleging that his union breached some duty it owed to him by failing to challenge Amtrak’s

COVID-19 policy through collective bargaining or litigation, see Dkt. 10 at 56 (SAC ¶ 243).

Because TCU/IAM’s defense—that is, that it was not Plaintiff’s union—is best framed as

a jurisdictional defense, the Court may resolve factual disputes, even at this early stage of the

litigation. But, as explained below, the Court need not do so, because the essential facts are

reflected in Plaintiff’s own filings and, in any event, are undisputed. Plaintiff’s second amended

complaint, to be sure, does allege that TCU/IAM was the union that represented him. See Dkt.

10 at 13, 38, 39, 42 (SAC ¶¶ 16(a), 138, 146, 165). But at least one exhibit attached to (and

incorporated into) that complaint makes TCU/IAM’s point: Exhibit 20, an unsigned offer of

reinstatement from Amtrak, lists “ASWC-UNITE HERE” as Plaintiff’s union. See Dkt. 10-2 at

2–3 (SAC, Ex. 20 at 1–2). Similarly, Exhibit 24 to Plaintiff’s second amended complaint,

Amtrak’s July 11, 2022, decision following Plaintiff’s disciplinary hearing, notes that Plaintiff

was “represented by [his] ASWC union representative Pierre Whittaker,” Dkt. 10-2 at 27 (SAC,

Ex. 24 at 1), and, in the absence of any dispute, the Court can take judicial notice of the fact that

Pierre Whittaker is the Chapter President of UNITE HERE Local 23, see Dkt. 21-2 at 11

(TCU/IAM Mot. to Dismiss, Ex. 4). Beyond Plaintiff’s own exhibits, moreover, TCU/IAM has

proffered further confirmation that TCU/IAM was not Plaintiff’s union. The evidence includes

an excerpt from the transcript of Plaintiff’s disciplinary hearing, in which Plaintiff identifies his

union representative as Pierre Whittaker, Dkt. 21-2 at 9 (TCU/IAM Mot. to Dismiss, Ex. 3 at 2),

and screenshots from Amtrak’s internal database showing that Plaintiff was listed as a member

of HERE and that his dues were deducted for “HERE Local 670,” see Dkt. 21-2 at 2–3, 5

(TCU/IAM Mot. to Dismiss, Exs. 1 & 2). Plaintiff does not dispute any of this evidence.

Ultimately, however, the Court need not rely on this uncontroverted evidence because

Plaintiff concedes that he named the wrong union in his second amended complaint. He seeks

leave “to add UnitedHere [sic] as a new defendant based on [his] inadvertent incorrect

identification of TCU/IAM as his union when UnitedHere [sic] was actual the union to whom he

paid his dues.” Dkt. 26 at 2. As he explains, he “seeks leave to amend the complaint to add the

correct union Unite Here.” Dkt. 36 at 26 (emphasis added). Plaintiff was represented by

counsel when he made this concession, and he, accordingly, should be held to it. It follows that

any breach of duty of fair representation is not fairly traceable to anything that TCU/IAM did—

or did not do.

Rather than defend the allegation that forms the basis for his existing claims against

TCU/IAM—that is, that TCU/IAM “was the union representing Plaintiff at the time of the events

outlined” in the second amended complaint, Dkt. 10 at 13 (SAC ¶ 16(a)); see also id. at 38–39

(SAC ¶¶ 138, 146)—Plaintiff shifts gears and raises two new arguments, neither of which

withstands scrutiny. He first argues that the Court should not dismiss his claims against

TCU/IAM “because Plaintiff’s complaint includes a claim for class certification wherein

Plaintiff serves as class representative for similarly situated parties who have standing to assert

the same claims against TCU/IAM.” Dkt. 26 at 2. But Supreme Court precedent establishes that

a plaintiff who is not a member of the class that he purports to represent is not a proper

representative for such claims. See E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395,

403–04 (1977). Plaintiff concedes that he is not a member of the class of Amtrak employees

represented by TCU/IAM who were allegedly harmed by its representation with respect to

Amtrak’s COVID-19 policy. And his lack of standing to bring individual claims against

TCU/IAM prevents him from bringing those same claims against TCU/IAM on behalf of

additional class members. See Hamburger v. Carefirst Bluecross Blueshield, 838 F.Supp.3d 32,

41 (D.D.C. 2026) (collecting cases).

Second, Plaintiff asserts in his opposition brief “that TCU/IAM was a signatory labor

organization to the collective bargaining agreement governing Amtrak On-Board Service

employees and participated in the negotiation, administrative, and enforcement of employment

conditions affecting Plaintiff,” Dkt. 36 at 25, and “that labor organizations may owe duties to

employees affected by their bargain authority or concerted action, even where formal

membership status is disputed,” id. at 26. Here, however, Plaintiff’s “membership status is [not]

disputed;” he concedes that he was not a member of TCU/IAM. Nor does Plaintiff cite any

authority for the proposition that a union that is party to a multilateral collective bargaining

agreement owes a duty of fair representation to an employee who is a member of a different

union, even if that union is party to the same collective bargaining agreement.

Plaintiff’s argument evolves further in his reply in support of his motion for leave to file a

third amended complaint, where he hints at the possibility that ASWC may have acted as “the

collective bargaining representative” for each of the unions and may have “delegated”

representational duties to the “constituent unions.” See Dkt. 47 at 3 (suggesting that factual

questions remain about whether ASWC, TCU/IAM, and/or UNITE HERE “owed Plaintiff

representational duties during the events giving rise to this action”). Plaintiff appears to concede,

however, that he currently lacks an evidentiary basis to support that contention at this point;

instead, he requests jurisdictional discovery on that question. See id. at 2–3 (requesting that

“Defendants produce any constitution, bylaws, joint operating agreement, side agreement,

memorandum of understanding, or other governance documents allocating representational

duties among the ASWC, TCU/IAM and UNITE HERE”). And, even if Plaintiff’s request for

discovery were properly presented in a reply in support of a different motion, the Court would

deny the request because “jurisdictional discovery is not a fishing expedition” and thus “cannot

be granted based on nothing more than conjecture or speculation as to whether jurisdictionally

relevant information would be uncovered.” Gligorov v. Nation of Brunei, 185 F.4th 1169, 1184

(D.C. Cir. 2026) (citation modified). Here, Plaintiff has not identified any specific disputed facts

that he believes these documents would likely reveal about TCU/IAM’s duties of representation.

But even putting all of these difficulties aside, Plaintiff’s evolving arguments for bringing

suit against TCU/IAM suffer from an unavoidable and dispositive problem: they bear no relation

to the allegations contained in Plaintiff’s second amended complaint or to his standing to pursue

those claims. The Court will therefore dismiss Plaintiff’s DFR claim against TCU/IAM under

Rule 12(b)(1) for lack of standing.

In addition to his DFR claim, Plaintiff’s second amended complaint asserts claims against

TCU/IAM for fraudulent concealment under D.C. law and for conspiracy to deprive Plaintiff of

his civil rights under 42 U.S.C. § 1985(3). The complaint is less clear about whether Plaintiff

also intends to bring his claim for wrongful discharge under the OSHA Act against TCU/IAM,

but, for present purposes the Court can assume that he does. In response, TCU/IAM contends

that Plaintiff lacks standing to sue TCU/IAM on these claims as well because they merely

repackage his DFR claim under a different label, and, when understood in this light, they suffer

from the same flaw that dooms his DFR claim: Plaintiff lacks standing to challenge his

representation by a union who did not represent him.

The Court agrees that Plaintiff’s fraudulent concealment claim must be dismissed as to

TCU/IAM because it is, in substance, a repackaging of Plaintiff’s DFR claim. When a plaintiff

asserts a fair representation claim “along with state claims based on similar conduct, the court

must examine whether the state law claims are preempted” by federal labor law. Williams v.

Amalgamated Transit Union Loc. 689, 245 F. Supp. 3d 129, 134 (D.D.C. 2017), aff’d, No. 17-7076, 2017 WL 4217248 (D.C. Cir. Aug. 23, 2017); see also May v. Shuttle, Inc., 129 F.3d 165,

179 (D.C. Cir. 1997) (holding that a state law claim must be dismissed as preempted by the

Railway Labor Act’s duty of fair representation when the claims are “the same”). Plaintiff’s

fraudulent concealment claim against TCU/IAM is based on his allegation that TCU/IAM had a

duty to disclose to him that he had the right to refuse to comply with Amtrak’s COVID-19

policy. See Dkt. 10 at 9, 39, 42 49 (SAC ¶¶ 7, 149–50, 169, 201–02). But, if TCU/IAM owed

Plaintiff a duty to inform him of any rights, that duty would flow from the duty of fair

representation unions owe to their members. Plaintiff’s complaint does not aver that TCU/IAM

owed him any duty other than that owed by unions to employees under the Railway Labor Act.

See Dkt. 10 at 38–43 (SAC ¶¶ 138–73).

Plaintiff’s claim of conspiracy to deprive him of his civil rights under 42 U.S.C.

§ 1985(3) poses a slightly more difficult question. Nearly all of the cases that TCU/IAM

identifies in which a court has recharacterized claims as DFR claims involve state law claims

that the court held were preempted by federal labor law, claims that required the court to

interpret the terms of a collective bargaining agreement, or both. See, e.g., Allis-Chalmers Corp.

v. Lueck, 471 U.S. 202, 220 (1985) (“We do hold that when resolution of a state-law claim is

substantially dependent upon analysis of the terms of an agreement made between the parties in a

labor contract, that claim must either be treated as a § 301 claim . . . or dismissed as pre-empted

by federal labor-contract law.”); Harris v. Amalgamated Transit Union Loc. 689, 825 F. Supp.

2d 82, 85–96 (D.D.C. 2011) (holding that state law claims were preempted by the federal

statutory duty of fair representation); Marcus v. Dolan, No. 8-cv-2181, 2008 WL 3822353, at *2

(D.N.J. Aug. 12, 2008) (same); Odell v. Kalitta Air, LLC, 678 F. Supp. 3d 904, 916–17 (E.D.

Mich. 2023), aff’d, 107 F.4th 523 (6th Cir. 2024) (dismissing federal statutory employment

discrimination claims as barred by the Railway Labor Act because they required interpreting a

collective bargaining agreement). Because Plaintiff’s § 1985(3) claim arises under federal,

rather than state, law, the Court cannot conclude that his conspiracy claim is preempted by the

Railway Labor Act as a state common-law conspiracy claim might be. Nor does Plaintiff’s claim

invoke any contract governed by federal labor contract law or require interpretation of a

collective bargaining agreement.

For support, TCU/IAM cites cases where other federal courts have treated federal claims

premised on a union’s deficient representation as DFR claims. See Garland v. US Airways, Inc.,

No. 5-cv-140, 2006 WL 3692591, at *7 (W.D. Pa. Dec. 12, 2006) (“The [union] Defendants

argue that, as to them, Plaintiff’s remaining federal claims are merely restatements of his federal

DFR claim under different headings. For the most part, I agree. As set forth above, Plaintiff

cannot avoid dismissal of his DFR claim simply by repackaging that claim under the guise of a

different cause of action.”); Seitz v. Int’l Bhd. of Teamsters, No. 23-cv-01716, 2023 WL

6883358, at *6 (N.D. Cal. Oct. 17, 2023) (explaining that, even with respect to federal claims

that are not preempted by federal labor law, “there is some logic to the notion that a fairrepresentation claim that is simply given a different label should be treated by the court as a fair26

representation claim”). Here, Plaintiff’s only basis for alleging that TCU/IAM participated in a

conspiracy is that it violated its duty of fair representation by failing to oppose Amtrak’s

COVID-19 policy, see Dkt. 10 at 61–62 (SAC ¶¶ 268–74) (contending that TCU/IAM’s alleged

breach of duty constituted “tacit agreement, material assistance, and overt participation” in the

alleged conspiracy), so his § 1985(3) claim is no different from his claim that TCU/IAM violated

the DFR. It follows that Plaintiff’s § 1985(3) claim should fail for the same reason that his DFR

claim fails. He names the wrong union, and thus any injury resulting from an alleged violation

of his union’s breach of its duty of fair representation is not traceable to TCU/IAM’s failure to

represent him.

Plaintiff’s remaining claims against TCU/IAM suffer from the same problem. To the

extent that Plaintiff intends to bring his wrongful discharge claim against TCU/IAM in addition

to Amtrak, that claim must also be dismissed for lack of standing because Plaintiff’s complaint

alleges that he was employed by Amtrak and discharged by Amtrak, rather than by TCU/IAM.

Just as TCU/IAM is the wrong defendant for Plaintiff’s DFR claim because it was not his union,

it is also the wrong defendant for Plaintiff’s wrongful discharge claim because the union was not

his employer. And, to the extent Plaintiff intends to bring a claim against TCU/IAM for

allegedly violating the OSHA Act by failing to oppose Amtrak’s COVID-19 policy or

adequately represent Plaintiff in his disciplinary hearing, that claim is no different in substance

from Plaintiff’s DFR claim and must be treated as such. Plaintiff thus lacks standing to assert his

wrongful discharge claim against TCU/IAM, which, on the undisputed record, neither

represented nor fired him. Once again, his alleged injuries are not fairly traceable to anything

that TCU/IAM did or failed to do.

Finally, the Court notes that the D.C. Circuit has yet to decide whether the failure to

name the correct union in a DFR case is best addressed as a question of Article III jurisdiction or

on the merits. For the reasons explained above, the Court is persuaded that Plaintiff’s alleged

injuries are not traceable to anything that TCU/IAM did (or did not do) and that, accordingly, the

Court is without jurisdiction to consider Plaintiff’s claims against TCU/IAM. But because the

questions of standing and the merits are so closely intertwined, and because the law is unsettled

in this circuit, the Court goes on to note that it would, in any event, reach precisely the same

conclusion on the merits. Plaintiff cannot possibly recover from a union that he concedes did not

represent him and that therefore owed him no duty of fair representation for any claim premised

the breach of that nonexistent duty. 3 Thus, whether framed as a jurisdictional or merits defense,

Plaintiff’s claims against TCU/IAM cannot stand.

The Court will, accordingly, grant TCU/IAM’s motion to dismiss in its entirety for lack

of Article III jurisdiction or, in the alternative, for failure to state a claim upon which relief can

granted.

B. Claims Against Former President Biden

Plaintiff also brings claims against former President Joe Biden for his issuance of

Executive Order 14042 and related guidance, his public statements during his presidency about

COVID-19 and vaccines, and his alleged participation in a conspiracy to deprive Plaintiff of his

civil rights by “solicit[ing] Defendants Amtrak and TCU/IM [sic] to share Biden’s and the

Pope[’]s unconstitutional objective of depriving Plaintiffs of their OSHA Act protected right to

refuse the Covid-19 vaccine.” Dkt. 10 at 58 (SAC ¶ 254). In addition to contending that the

To the extent it is necessary for the Court to treat TCU/IAM’s motion to dismiss as an uncontroverted (and, effectively, conceded) motion for summary judgment to this limited extent, the Court will do so. See Fed. R. Civ. P. 12(d).

Executive Order and related guidance violated the OSHA Act and the separation of powers, see

Dkt. 10 at 58, 65 (SAC ¶¶ 254, 290–93), Plaintiff alleges that several of President Biden’s public

statements about the COVID-19 vaccine violated the Establishment Clause of the First

Amendment by “invoke[ing] papal moral authority in support of COVID-19 vaccination” and

thus “elevat[ing] the Catholic religious moral doctrine above all other faith practices that include

refusing the Covid-19 vaccine,” Dkt. 10 at 59 (SAC ¶¶ 258–59). Plaintiff seeks money damages

against President Biden only in his individual capacity, see Dkt. 10 at 7 (SAC ¶ 1), but also

asserts equitable constitutional and ultra vires claims for declaratory and injunctive relief, see id.

at 64–66 (SAC ¶¶ 286–98). Plaintiff’s later-filed notice of clarification asserts that he intended

to assert his claims for declaratory and injunctive relief against former President Biden in his

official capacity. See Dkt. 42 at 1.

Although declaratory and injunctive relief are remedies rather than causes of action, see

Miriyeva v. U.S. Citizenship & Immigr. Servs., 9 F.4th 935, 945 (D.C. Cir. 2021); Webb v. Off. of

Mgmt. & Budget, No. 23-cv-00816, 2025 WL 958129, at *5 (D.D.C. Mar. 31, 2025), aff’d, No.

25-5127, 2026 WL 1179415 (D.C. Cir. Apr. 28, 2026), because the Court is required to construe

Plaintiff’s pro se complaint liberally, the Court will assume that Plaintiff intends to assert

implied constitutional and ultra vires causes of action. See Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 491 n.2 (2010). The Court thus understands Plaintiff’s second

amended complaint to challenge President Biden’s Executive Order 14042, related COVID-19

vaccine guidance, and identified public statements as ultra vires and in violation of the

separation of powers and the Establishment Clause. The Court further understands Plaintiff to

seek a declaratory judgment that these actions were unlawful and an injunction against future

actions to reissue, enforce, or implement these actions. See Dkt. 10 at 66 (SAC ¶¶ 297–98).

Plaintiff is far from clear about which, if any, additional claims he intends to bring

against President Biden and in what capacity he intends to assert any such claims. Plaintiff’s

wrongful discharge and fraudulent concealment claims appear to be directed against Amtrak

alone, although his second amended complaint fails to specify which defendants he intends to

name in those counts. The complaint does specify that Plaintiff’s Bivens claim is asserted

against Amtrak alone, but his opposition to Amtrak and TCU/IAM’s motions to dismiss argues

that Bivens supports a damages claim against President Biden for his allegedly unconstitutional

and ultra vires actions. See Dkt. 36 at 12. Because Plaintiff’s second amended complaint was

filed pro se, the Court will assume—at least for present purposes—that he intends to assert a

Bivens claim against President Biden. See Bestor v. FBI, 539 F. Supp. 2d 324, 330 (D.D.C.

2008) (“The court is permitted to liberally construe the pleadings of a pro se plaintiff and to

consider supplemental materials filed by a pro se litigant to clarify the claims presented.”).

Finally, Plaintiff does bring his § 1985(3) conspiracy claim against President Biden.

So construed, the Court has before it Bivens and § 1985(3) claims against President Biden

in his individual capacity seeking money damages and constitutional and ultra vires claims for

declaratory and injunctive relief against President Biden in his official capacity. 4 Both sets of

claims fail. With respect to Plaintiff’s individual-capacity damages claims, President Biden is

absolutely immune from liability because the allegedly unlawful acts fall within the scope of his

official responsibility as President. And Plaintiff’s remaining claims on which he seeks

declaratory and injunctive relief have been rendered moot by the recission of the challenged

To the extent Plaintiff seeks money damages against former President Biden in his official capacity, sovereign immunity bars any such claim. Clark v. Libr. of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984) (“Sovereign immunity, however, does bar suits for money damages against officials in their official capacity absent a specific waiver by the government.”).

Executive Order and related guidance and the lack of any reason to believe that a similar

Executive Order or guidance is forthcoming, much less that it would affect Plaintiff’s

employment. 5 See City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

1. President Biden’s Absolute Immunity from Civil Liability

It is a long-established rule that a former President of the United States “is entitled to

absolute immunity from damages liability predicated on his official acts.” Nixon v. Fitzgerald,

457 U.S. 731, 749 (1982). These acts include all acts a President takes pursuant to

“constitutional and statutory authority” in the course of performing the functions of his office.

Trump v. United States, 603 U.S. 593, 617 (2024) (citation modified). But immunity does not

apply only when a President acts pursuant to a specific constitutional or statutory mandate.

Given “the breadth of the President’s discretionary responsibilities,” including in “a broad

variety of areas, many of them highly sensitive,” the Supreme Court has recognized that

presidential immunity “extends to the outer perimeter of the President’s official responsibilities.”

Id. at 617–18 (citation modified); see also Fitzgerald, 457 U.S. at 756. That is, a former

President is immune from liability for money damages if the challenged act is “the kind of act

not manifestly or palpably beyond [the official’s] authority, but rather having more or less

connection with the general matters committed by law to his control or supervision.”

Blassingame v. Trump, 87 F.4th 1, 13 (D.C. Cir. 2023) (citation modified); Trump, 603 U.S. at

618. In drawing lines between official acts and ones beyond the outer perimeter of official

The Court may dismiss sua sponte any of Plaintiff’s claims from which President Biden is absolutely immune because, when immunity bars the suit, Plaintiff “cannot possibly win relief.” Baker, 916 F.2d at 726. The Court may also consider on its own initiative whether Plaintiff’s claims for prospective relief are moot because, as with all jurisdictional defects, the Court is obligated to dismiss the case if it determines that it lacks jurisdiction to proceed. Howell ex rel. D.H. v. District of Columbia, 522 F. Supp. 2d 57, 62 n.2 (D.D.C. 2007).

responsibility, the Supreme Court has instructed that “courts may not inquire into the President’s

motives,” Trump, 603 U.S. at 618, “[n]or may courts deem an action unofficial merely because it

allegedly violates a generally applicable law,” id. at 619.

Undoubtedly, President Biden’s issuance of Executive Order 14042 and related COVID19 guidance are the kinds of official acts that cannot support a claim for monetary liability.

Issuing an executive order addressing an international public health crisis, and providing

guidance regarding the implementation of that executive order, lie at the core of the President’s

official duties. See Trump, 603 U.S. at 622 (“The President and Vice President together are the

senior officials of the Executive Branch of government and therefore must formulate, explain,

advocate, and defend policies of the President’s administration.” (citation modified)); cf. Ctr. for

Democracy & Tech. v. Trump, 507 F. Supp. 3d 213, 225 (D.D.C. 2020) (treating an executive

order as an exercise of the President’s official duties) (citing Mississippi v. Johnson, 71 U.S. 475,

498–99) (1866)). President Biden is therefore immune from any monetary claims based on his

issuance or implementation of Executive Order 14042 and the related guidance.

With respect to President Biden’s public statements about the COVID-19 vaccine, the

scope of his immunity depends on the context of his statements and the capacity in which he

made them. See Blassingame, 87 F.4th at 15–16. Although not expressly provided by any

constitutional or statutory provision, a President’s speech “to and on behalf of the American

people” can constitute an “official” act, “even when not obviously connected to a particular

constitutional or statutory provision.” Trump, 603 U.S. at 618 (citation modified). “Indeed, a

long-recognized aspect of Presidential power is using the office’s ‘bully pulpit’ to persuade

Americans, including by speaking forcefully or critically, in ways that the President believes

would advance the public interest.” Id. at 629. Accordingly, “most of a President’s public

communications are likely to fall comfortably within the outer perimeter of his official

responsibilities.” Id. To be sure, “[t]here may . . . be contexts in which the President,

notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a

candidate or party leader.” Id. The President is not immune in all respects—or, indeed, in any

unofficial capacity—merely because he is President. But courts must endeavor to draw the line

between official and unofficial conduct based on an “objective analysis of ‘content, form, and

context.’” Id. (citation omitted).

Applying that “objective analysis” here, the Court concludes that Plaintiff’s allegations

involve exclusively statements made in President Biden’s official capacity. Plaintiff’s complaint

repeatedly challenges President Biden’s “official statements” on COVID-19 vaccines, including

his public remarks about the Executive Branch’s policies regarding the pandemic, which, as

reflected in Plaintiff’s attachments to his complaint, were posted to the official White House

website. See Dkt. 10 at 32–33 (SAC ¶¶ 114, 116, 118) (challenging “multiple official

statements” and “[o]fficial presidential remarks”); Dkt. 10-2 at 33–37 (SAC, Ex. 26) (remarks by

President Biden on the COVID-19 pandemic posted to the official White House website).

Plaintiff also challenges certain remarks President Biden made during an Easter holiday video on

April 4, 2021, which referenced public statements by Pope Francis encouraging vaccination. 6

See Dkt. 10 at 33 (SAC ¶ 120); Dkt. 10-2 at 40–41 (SAC, Ex. 27) (news report on President

Biden’s April 4, 2021, Easter video). Finally, Plaintiff challenges a public statement by

President Biden, posted on the White House website, which addresses the Supreme Court’s

Pursuant to Federal Rule of Civil Procedure 201, the Court takes judicial notice of the fact that the Easter video Plaintiff references was posted to President Biden’s official account on the social media platform X and ended with a logo attributing the video to the White House. See Fed. R. Civ. P. 201(b)(2), (c); President Biden Archived (@POTUS46Archive), X (Apr. 4, 2021, 10:30 AM), https://perma.cc/VZ25-LJEP.

decision on a Biden administration policy on workplace vaccine requirements. Dkt. 10 at 37

(SAC ¶ 133); Dkt. 10-2 at 203 (SAC, Ex. 42) (Statement by President Joe Biden on the U.S.

Supreme Court’s Decision on Vaccine Requirements).

All of these statements—which were made during President Biden’s tenure in office,

communicated through official White House channels, directed to the American public, and

related to issues of public health and national policy—were undertaken in President Biden’s

official capacity. Nothing in the “content, form, or context” of those statements even hints at

some unofficial capacity. President was not, for example, speaking as a spokesperson for the

vaccine manufacturers or as a candidate for office. He was addressing an issue of profound

national importance, during a time of crisis, and in his capacity as the Chief Executive of the

United States.

Finally, the factual allegations on which Plaintiff’s § 1985(3) claim is based—and any of

the factual allegations contained in the complaint upon which any OSHA Act and fraudulent

concealment claim could be based—involve only President Biden’s official acts in issuing

Executive Order 14042 and the related guidance and in making official statements about the

COVID-19 vaccine. Plaintiff alleges no additional facts that might plausibly raise an inference

that President Biden joined a “conspiracy” to violate Plaintiff’s rights in some unofficial

capacity. Plaintiff may disagree on policy grounds with the decisions that President Biden made,

but that is precisely the type of disagreement that absolute presidential immunity screens from

the chilling effect of private suits for damages.

The Court will, accordingly, dismiss all of Plaintiff’s claims seeking damages against

President Biden on grounds of absolute presidential immunity.

2. Mootness of Claims for Declaratory and Injunctive Relief

Turning to Plaintiff’s remaining constitutional and ultra vires claims, the Court concludes

that these claims must be dismissed because the rescission of the challenged Executive Order and

related guidance has rendered those claims moot. Article III of the Constitution limits the federal

courts to deciding only “actual, ongoing controversies.” Pub. Citizen, Inc. v. FERC, 92 F.4th

1124, 1127 (D.C. Cir. 2024) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). The mootness

doctrine thus requires a federal court to “refrain from deciding the dispute if events have so

transpired that the decision will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.” Id. (citation modified). When the

government rescinds a challenged policy, the D.C. Circuit has often held that challenges to that

policy are “classically moot for lack of a live controversy.” Akiachak Native Cmty. v. U.S. Dep’t

of Interior, 827 F.3d 100, 106 (D.C. Cir. 2016); Samma v. Dep’t of Def., 136 F.4th 1108, 1113–

14 (D.C. Cir. 2025); Larsen v. U.S. Navy, 525 F.3d 1, 4–5 (D.C. Cir. 2008). Here, there is no

dispute that President Biden rescinded the challenged Executive Order and the associated

guidance; Plaintiff’s complaint itself alleges that the rescission occurred years ago. Dkt. 10 at 30

(SAC ¶ 99). Plaintiff’s claims challenging the lawfulness of President Biden’s Executive Order

and COVID-19 vaccine guidance are thus “classically moot.” Akiachak Native Cmty., 827 F.3d

at 106.

In apparent recognition of the mootness of any claim seeking relief respecting the nowrescinded Executive Order and guidance, Plaintiff seeks a declaratory judgment and injunction

against future attempts to adopt or implement either the rescinded policies or similar future ones.

See Dkt. 10 at 66 (SAC ¶¶ 297–98). In his view, such relief is necessary because “there exists a

cognizable danger of recurrence of the same unconstitutional and unlawful conduct during future

declared emergencies.” Id. at 37 (SAC ¶ 137). To be sure, the Supreme Court and the D.C.

Circuit have recognized certain exceptions to the mootness doctrine when challenged conduct

that has ceased is likely to recur. See Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d

568, 576 (D.C. Cir. 2010) (capable-of-repetition-yet-evading-review exception); FBI v. Fikre,

601 U.S. 234, 241–42 (2024) (voluntary-cessation exception). But those exceptions require far

more than a chance that some future pandemic or other public health crisis might prompt a future

president to take a similar action, which might apply to Plaintiff’s then-current employer in a

manner that might lack an exception sufficient to protect Plaintiff’s asserted rights. See Samma,

136 F.4th at 1114; Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, 188 F.4th 400, 406–

407 (D.C. Cir. 2026). Plaintiff’s conclusory allegation that “[n]ational public-health

emergencies recur,” Dkt. 10 at 37 (SAC ¶ 137), is insufficient to permit the Court to adjudicate

the lawfulness of some hypothetical future government action, which, in order for the Court to

grant forward-looking relief on an otherwise-moot claim, must affect Plaintiff “in the same

fundamental way” as Executive Order 14042 allegedly affected him, Am. Freedom Def. Initiative

v. Wash. Metro. Area Transit Auth., 901 F.3d 356, 362 (D.C. Cir. 2018) (quoting Ne. Fla.

Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662

(1993)). The Court will not “speculate on the form of and content of some uncertain future

policy” and, based on that speculation, “render an advisory opinion” regarding events and

actions that are, at best, highly uncertain. Samma, 136 F.4th at 1114. In short, this is “precisely

the scenario that the mootness doctrine is intended to avoid.” Id.

The Court will therefore dismiss as moot Plaintiff’s official-capacity claims against

President Biden.

C. Amtrak’s Motion to Dismiss

1. Wrongful Discharge Claim

The Court turns to Plaintiff’s claims against Amtrak, beginning with his claim for

allegedly terminating his employment in violation of the OSHA Act. Although less than clear,

Plaintiff’s second amended complaint appears to aver that Amtrak’s COVID-19 policy violated

the OSHA Act in multiple respects. First, he argues that the OSHA Act authorizes only OSHA

to set minimum safety standards for employers and alleges that “vaccines are not an OSHA

authorized safety method capable of preventing the transmission of any infections disease

recognized in the workplace.” Dkt. 10 at 7–8 (SAC ¶ 3(b)); see also id. at 18–19 (SAC ¶¶ 35–

45) (allegations about COVID-19, vaccines, and OSHA’s standards regarding COVID-19 safety

and vaccination); id. at 43–44 (SAC ¶¶ 176–77) (alleging that Amtrak knew that it was mandated

by the OSHA Act “to comply with OSHA authorized and approved workplace safety standards”

and that Amtrak’s COVID-19 policy “conflicted with the OSHA minimum standards”). Second,

Plaintiff alleges that Amtrak violated his “Medical Freedom Rights” under the OSHA Act by

discharging him for refusing to comply with a vaccine and testing policy that conflicted with his

religious beliefs. Id. at 45 (SAC ¶¶ 183). Both of these contentions fail as a matter of law

because the OSHA Act does not provide a private right of action.

a. Violation of OSHA Health and Safety Standards

The Court begins with Plaintiff’s contention that Amtrak violated OSHA’s health and

safety standards by requiring COVID-19 vaccination and testing, even though neither method of

promoting workplace health and safety received OSHA approval. The OSHA Act establishes the

following administrative scheme for enforcing OSHA’s occupational health and safety standards:

First, the Secretary of Labor, acting through OSHA, may investigate and cite employers who fail

to comply with minimum safety standards. See 29 U.S.C. §§ 657, 658. Second, employees who

believe that their employer has violated a health or safety standard may participate in this process

by notifying OSHA of the violation and requesting an inspection, and employees may authorize

a representative to accompany and assist OSHA officials during any physical inspection. Id.

§ 657(e), (f)(1)–(2). Third, when employers contest these citations, they may seek a hearing

from the Commission. Id. § 659(c). Finally, “any person” who is “adversely affected or

aggrieved” by the Commission’s final decision on the citation may seek judicial review in a

United States court of appeals by filing a petition for review. Id. § 660(a); see also id. § 660(b)

(authorizing the Secretary of Labor to obtain review or enforcement of any final order of the

Commission).

Nothing in the OSHA Act authorizes an employee who believes that his or her employer

is violating minimum health and safety standards to bypass this administrative enforcement

process and to bring a civil action in federal district court. Binding precedent from the D.C.

Circuit establishes as much: the OSHA Act does not authorize employees to assert a private

cause of action against their employers for violating OSHA’s health and safety standards. Am.

Fed’n of Gov’t Emps., AFL-CIO v. Rumsfeld, 321 F.3d 139, 143 (D.C. Cir. 2003) (“[I]t is now

well established that OSHA violations do not themselves constitute a private cause of action for

breach.” (citation modified)); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d

1189, 1235 (D.C. Cir. 1980) (“Section 4(b)(4) [of the OSHA Act] bars workers from asserting a

private cause of action against employers under OSHA standards.”). To the extent Plaintiff

seeks to recover against Amtrak for its enforcement of a COVID-19 vaccination and testing

policy that allegedly failed to comply with OSHA’s health and safety standards, Plaintiff lacks a

cause of action to do so.

b. Wrongful Discharge in Violation of 29 U.S.C. § 660(c)(1)

Plaintiff separately alleges that Amtrak’s termination of his employment violated the

OSHA Act because Amtrak discriminated against him because of his religion. On Plaintiff’s

interpretation, the OSHA Act both confers on employees a right to refuse medical testing or

immunization if they object on religious grounds, and prohibits employers from discharging

employees for exercising this right. Dkt. 36 at 7. Plaintiff locates his asserted right to refuse the

COVID-19 vaccine and testing policy in 29 U.S.C. § 669(a)(5), which provides: “Nothing in

this or any other provision of this chapter shall be deemed to authorize or require medical

examination, immunization, or treatment for those who object thereto on religious grounds,

except where such is necessary for the protection of the health or safety of others.” 29 U.S.C.

§ 669(a)(5). Plaintiff contends that his discharge for refusing to comply with Amtrak’s

vaccination or testing policy (i.e., for exercising this right) violated the OSHA Act’s prohibition

on discriminating against an employee “because of the exercise by such employee on behalf of

himself or others of any right afforded by” the Act. Id. § 660(c)(1).

The Court need not decide whether § 669(a)(5) confers a freestanding right to refuse to

comply with an employer’s vaccination or testing policy, although the Court notes that the

sentence from which Plaintiff derives his purported right appears in a provision discussing the

authority of HHS to conduct research on toxic substances and includes the caveat that medical

examination or immunization may be authorized and required when “necessary for the protection

of the health or safety of others.” Id. § 669(a)(5). Whether or not § 669(a)(5) confers such a

right, Plaintiff cannot prevail because he lacks a cause of action to sue Amtrak for termination

based on that right. Under binding precedent, § 660(c) authorizes only the Secretary of Labor to

bring such claims in federal court.

In Johnson v. Interstate Management Company, LLC, the D.C. Circuit held that

§ 660(c)(2) does not contain a private right of action for employees to sue their employer for

allegedly retaliating against them for filing an OSHA complaint or exercising a right under the

OSHA Act. 849 F.3d 1093, 1096 (D.C. Cir. 2017). As with Plaintiff here, the plaintiff in

Johnson sought to enforce § 660(c)(1)’s prohibition on discharging or discriminating against an

employee who has filed a complaint or exercised his rights under the OSHA Act. Id.

Recognizing that § 660(c) contained no express private right of action for such claims, the court

in Johnson considered whether the OSHA Act contained an implied private right of action—and

held that it did not. Id. at 1097. As the court explained, “[t]he text of [§ 660(c)] specifically

addresses who may sue,” and it “grants such authority to the Secretary of Labor, not to private

parties.” Id. at 1098.

Johnson applies here and forecloses Plaintiff’s claim. Plaintiff asserts a violation of the

same provision of the OSHA Act—§ 660(c)(1)’s prohibition on retaliatory discharges—and asks

the Court to infer a private right of action from the same provision Johnson held did not contain

one. It makes no difference that Plaintiff claims that his discharge was in retaliation for asserting

his right to object to vaccination on religious grounds rather than for pursuing his right to

complain of a safety violation. Section 660(c) applies to both types of retaliation (to the extent it

addresses religion-based retaliation at all) and provides the exclusive mechanism by which

employees like Plaintiff may seek redress: filing a complaint with the Secretary. 29 U.S.C.

§ 660(c)(2). The OSHA Act does not allow Plaintiff to circumvent its administrative process by

coming straight to court, so Plaintiff’s wrongful discharge claim fails as a matter of law.

c. Availability of Alternative Causes of Action

Given the Court’s obligation to construe Plaintiff’s pro se complaint liberally, the Court

also considers whether Plaintiff has stated a claim based on some other possible cause of action.

But “[e]ven treating the Complaint with the liberality due to pro se litigants, the Court cannot

identify a workable alternative cause of action.” Brown v. FAA, No. 23-cv-2251, 2025 WL

958321, at *11 (D.D.C. Mar. 31, 2025). Plaintiff’s allegations might be understood as an attempt

to assert a claim under Title VII of the Civil Rights Act of 1964, which creates a private right of

action for employees alleging they have suffered employment discrimination on the basis of

religion. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009); 42 U.S.C. §§ 2000e-2(a). But Title

VII requires employees who allege that their employers engaged in prohibited discrimination to

exhaust administrative remedies before bringing an action in court. See Payne v. Salazar, 619

F.3d 56, 65 (D.C. Cir. 2010). Plaintiff does not even hint that he has done so, which may explain

why he does not attempt to allege a Title VII claim.

The Court will, accordingly, dismiss Plaintiff’s wrongful discharge claim.

2. Fraudulent Concealment Claim

Plaintiff’s second amended complaint also includes a claim for fraudulent concealment

under D.C. law. The elements of such a claim are “(1) a duty on behalf of the defendant to

disclose to the plaintiff a material fact; (2) failure to disclose that fact; (3) an intention to defraud

or deceive the plaintiff; (4) action taken by the plaintiff in justifiable reliance on the

concealment; and (5) damages as a result of the defendant’s concealment.” Howard Univ. v.

Watkins, 857 F. Supp. 2d 67, 75 (D.D.C. 2012). Under Federal Rule of Civil Procedure 9(b), a

plaintiff asserting a claim of fraud must “state with particularity the circumstances constituting

fraud or mistake.” Fed. R. Civ. P. 9(b). The relevant circumstances include the “‘time, place,

and content of the false misrepresentations, the fact misrepresented and what was retained or

given up as a consequence of the fraud,’ as well as the ‘identity of the individuals allegedly

involved in the fraud.’” Busby v. Cap. One, N.A., 932 F. Supp. 2d 114, 136 (D.D.C. 2013)

(cleaned up) (quoting United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d

1251, 1256 (D.C. Cir. 2004)).

Plaintiff first contends that Amtrak had a duty to disclose the existence of his purported

OSHA Act right to refuse vaccination pursuant to an OSHA regulation requiring employers to

inform employees of their OSHA rights, including their rights against retaliatory discharge under

29 U.S.C. § 660(c). Dkt. 10 at 49 (SAC ¶ 203) (citing 29 C.F.R. § 1904.35(b)(1)(iii)). Plaintiff

alleges that Amtrak never informed him of his right to refuse compliance with the vaccine and

testing policy and thus fraudulently concealed that information. Id. at 49, 50 (SAC ¶¶ 201, 205–

07). Even assuming that Plaintiff’s second amended complaint satisfied Rule 9(b)’s heightened

pleading standards—and it does not—his fraudulent concealment claim fails because Amtrak

owed him no duty to inform him of any OSHA Act right to refuse the COVID-19 vaccine or

testing.

Plaintiff relies on OSHA’s regulations governing the reporting of “work-related injuries

and illnesses” to argue that Amtrak had an affirmative duty to inform him about (1) his “right” to

refuse to comply with Amtrak’s COVID-19 policy under 29 U.S.C. § 669(a)(5) and (2) his

“optional right” to complain of his allegedly discriminatory discharge to OSHA. Id. at 49 (SAC

¶ 201). But OSHA’s regulations include no such duty. The OSHA regulations governing

employers’ obligations to inform their employees of their OSHA rights make no mention of an

employee’s right to refuse an employer’s vaccination or testing policy on religious grounds, nor

do they impose on employers an obligation to inform employees about their ability to file

complaints with the Secretary of Labor or OSHA. Instead, they merely require that employers

“inform each employee of how he or she is to report an injury or illness” to the employer,

provide employees with information about the employer’s procedure for reporting work-related

injuries and illnesses, and “inform each employee” that (i) “[e]mployees have the right to report

work-related injuries and illnesses” and (ii) “[e]mployers are prohibited from discharging or in

any manner discriminating against employees for reporting work-related injuries or illnesses.”

29 C.F.R. § 1904.35(a)(1), (b)(1)(ii), (b)(1)(iii)(A)–(B).

Plaintiff does not allege that Amtrak fraudulently concealed from him any of the

information specified in the OSHA regulation, nor has he identified any other source of law

imposing on Amtrak a duty to disclose information about filing a wrongful-discharge complaint

with OSHA or to disclose information about any rights to refuse vaccination on religious

grounds. Absent any such duty, Plaintiff’s fraudulent concealment claim cannot survive

Amtrak’s motion to dismiss.

Plaintiff also fails because, at least with respect to his claim that Amtrak owed him a duty

to inform him of his religious freedom rights, the second amended complaint fails to identify

“what was retained or given up as a consequence” of the alleged fraud. Busby, 932 F. Supp. 2d

at 136. According to Plaintiff’s complaint, he in fact asserted the right he contends was

fraudulently concealed from him: he refused to participate in Amtrak’s COVID-19 vaccination

or testing policy based on his religious objection.

For all these reasons, Plaintiff has failed to state a fraudulent concealment claim upon

which relief can be granted.

3. Bivens Claim

Plaintiff next asserts a Bivens claim against Amtrak on the grounds that Amtrak’s

COVID-19 vaccine and testing policy and related termination of his employment violated his

constitutional right to refuse unwanted vaccination and testing. See Dkt. 10 at 52, 53 (SAC

¶¶ 217–220, 225–26).

At the outset, Plaintiff contends that Amtrak is a federal government actor for

constitutional purposes. See Dkt. 10 at 52 (SAC ¶¶ 218–19) (citing Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 394 (1995); and Dep’t of Transp. v. Ass’n of Am. Railroads, 575

U.S. 43, 55 (2015)). Plaintiff is correct that the Court has held that Amtrak, despite being a forprofit corporation, see 49 U.S.C. § 24301(a), “is an agency or instrumentality of the United

States for purposes of individual rights guaranteed against the Government by the Constitution,”

Lebron, 513 U.S. at 394; see also Ass’n of Am. Railroads, 575 U.S. at 54–55. But neither the

Supreme Court nor the D.C. Circuit has ever suggested that Amtrak’s unique status as a private

entity in some respects and a government entity in others renders Amtrak a “federal agent”—that

is, an “individual [federal] official[,]” Carlson v. Green, 446 U.S. 14, 20 (1980)—against whom

Bivens remedies may be sought. For present purposes, however, the Court need not reach that

novel argument because, regardless of Amtrak’s status, Plaintiff lacks a Bivens remedy for a

government instrumentality’s alleged violation of his purported substantive due process right to

refuse COVID-19 vaccination and testing.

In Bivens, the Supreme Court allowed an individual to recover against federal officials

who violated his Fourth Amendment right against unlawful search and seizure. 403 U.S. at 397.

Although no statute provided a cause of action or authorized a damages remedy, the Court

inferred a cause of action from the Fourth Amendment itself and held that the plaintiff’s

demonstration of the Fourth Amendment injury established his entitlement to money damages.

Id. But Bivens does not authorize a plaintiff to seek damages for an alleged constitutional

violation of any kind. To date, the Supreme Court has recognized a damages remedy against

federal officials for constitutional violations in only three contexts: Bivens itself, which involved

a claim against agents of the Federal Bureau of Narcotics for an unlawful arrest and search of the

plaintiff’s apartment, 403 U.S. at 389, 395, and two others, a claim against a member of

Congress for discrimination in violation of the Fifth Amendment, Davis v. Passman, 442 U.S.

228, 234 (1979), and a claim against prison officials for cruel and unusual punishment in

violation of the Eighth Amendment, Carlson, 446 U.S. at 17.

The Supreme Court has not extended Bivens beyond those three contexts in the nearly

fifty years since. Instead, the Court has recently instructed that “recognizing a cause of action

under Bivens is a disfavored judicial activity.” Egbert v. Boule, 596 U.S. 482, 491 (2022)

(citation modified). In deciding whether to undertake this disfavored recognition of a nonstatutory cause of action for damages, the Court must first determine “whether the case presents

a new Bivens context”—that is, whether the case is “meaningfully different from the three cases”

in which the Supreme Court has already recognized Bivens remedies. Id. at 492. If authorizing a

remedy would extend Bivens to a new context, the remedy is then unavailable if there are

“special factors” counseling against extension, such as if “Congress [] has provided, or

authorized the Executive to provide, an alternative remedial structure” or if there is “uncertainty”

about the “systemwide consequences” recognizing a new Bivens action would produce. Id. at

493 (internal quotation marks omitted).

This case presents a “new context” for purposes of the Bivens inquiry. “What constitutes

a ‘new context’ is exceedingly broad.” Buchanan v. Barr, 71 F.4th 1003, 1008 (D.C. Cir. 2023).

Meaningful differences that present a “new context” include “the rank of the officers involved;

the constitutional right at issue; the generality or specificity of the official action; the extent of

judicial guidance as to how an officer should respond to the problem or emergency to be

confronted; [and] the statutory or other legal mandate under which the officer was operating.”

Ziglar v. Abbasi, 582 U.S. 120, 140 (2017).

This case presents a new Bivens context in at least two respects. First, and most

obviously, Plaintiff’s claim is premised on a constitutional right not addressed by any of the three

Supreme Court cases authorizing a Bivens remedy. Plaintiff’s second amended complaint asserts

a substantive-due-process right to refuse unwanted medical treatment, including the COVID-19

vaccine and tests. 7 Dkt. 10 at 52 (SAC ¶ 220). That Plaintiff’s claim would require the Court

both to extend Bivens to the substantive-due-process context and to recognize a substantive-dueprocess right to refuse the COVID-19 vaccine (or testing) as a condition of employment renders

this case “meaningfully different” from the three cases in which the Court has recognized Bivens

remedies. Egbert, 596 U.S. at 492. Moreover, recognizing a Bivens remedy in this case would

present an additional new context in that it would require the Court to authorize a remedy not

against an individual federal official but rather against Amtrak itself. See Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 71–72 (2001) (declining to extend Bivens to allow “a suit against private

corporations acting under color of federal law”); FDIC v. Meyer, 510 U.S. 471, 484–85 (1994)

(declining to recognize a Bivens remedy against a federal agency). Recognizing a Bivens remedy

here would thus require the Court to extend Bivens not only to encompass a new constitutional

right but also to a “new category of defendants.” Ziglar, 582 U.S. at 135.

This novelty alone may constitute a “special factor” requiring the Court to hesitate before

extending Bivens as Plaintiff requests. After all, it would be difficult for the Court to predict the

“systemwide” consequences of authorizing a federal damages remedy against corporations like

Amtrak for substantive-due-process violations premised on vaccine policies. Egbert, 596 U.S. at

Plaintiff also appears to base his Bivens claim on his alleged statutory rights under the OSHA Act, see Dkt. 10 at 53 (SAC ¶¶ 221–25), but because Bivens remedies are implied in the Constitution and thus available only for constitutional violations, see Ziglar, 582 U.S. at 132, the Court will disregard such assertions.

493. But another special factor also prevents the Court from expanding Bivens to encompass

Plaintiff’s claim: Congress has already authorized alternative remedial schemes for religious

discrimination claims of this sort.

Two statutory schemes arguably provide relief for the types of claims Plaintiff seeks to

bring. 8 First, to the extent Plaintiff seeks relief for discharge in violation of the OSHA Act,

Congress has provided him an administrative remedy for discriminatory discharge. See 29

U.S.C. § 660(c)(2). Employees in Plaintiff’s position may obtain relief for wrongful discharge in

violation of the OSHA Act by filing a complaint with the Secretary of Labor, who will

investigate the alleged violation and may bring a civil action to redress it. See id. Second,

Plaintiff’s claim of religious discrimination would, at least arguably, be cognizable under Title

VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of

religion and which provides both administrative remedies and a private right of action to remedy

violations. See 42 U.S.C. §§ 2000e-2(a), 2000e-5(f)(1). True, Plaintiff’s ability to take

advantage of these alternative remedial schemes may now be limited by his failure to pursue his

administrative remedies within the relevant limitations periods. See 29 U.S.C. § 660(c)(2)

(requiring that a complaint of wrongful discharge in violation of the OSHA Act be filed within

30 days after the violation occurs); 42 U.S.C. § 2000e-5(e)(1) (requiring administrative charges

Although the Religious Freedom Restoration Act (“RFRA”) authorizes an affected person to bring an action for “appropriate relief against a government” for burdening his or her religious exercise, 42 U.S.C. § 2000bb-1(c), RFRA defines “government” to include agencies, instrumentalities, and officials “of the United States,” id. § 2000bb-2(1), and Congress has specified that Amtrak “is not a department, agency, or instrumentality of the United States Government,” 49 U.S.C. § 24301. Although Congress lacks the authority to define the scope of governmental status for purposes of the Bill of Rights, it undoubtedly has the authority to do so for purposes of the statutes it enacts. See Lebron, 513 U.S. at 392 (statutory definition “is assuredly dispositive of Amtrak’s status as a Government entity for purposes of matters that are within Congress’s control”). RFRA thus does not provide Plaintiff a remedy against Amtrak for burdening his religious freedoms.

under Title VII be filed within either 180 or 300 days of the alleged violation). But the

availability of alternative mechanisms for protecting the asserted constitutional interests at stake

counsels against authorizing a Bivens remedy here, even if such relief would be less than that

afforded by a Bivens remedy and even if Plaintiff himself is now barred from such relief because

of his failure timely to assert his rights. See Bush v. Lucas, 462 U.S. 367, 378 (1983) (explaining

that Congress’s creation of alternative remedies, even incomplete ones, counsels against

extending Bivens to a new context); Kittner v. Gates, 783 F. Supp. 2d 170, 174 (D.D.C. 2011)

(collecting cases in support of the proposition that Title VII preempts Bivens claims for

employment discrimination). In fact, Congress’s decision to impose time limits on the

availability of relief and its requirement that a plaintiff first exhaust his administrative remedies

more likely reflects Congress’s considered judgment about the circumstances in which a

damages remedy should be available for such claims. Cf. United States v. Fausto, 484 U.S. 439,

448–49 (1988).

In light of these factors counseling against authorizing a Bivens remedy here, the Court

concludes that Plaintiff lacks a cause of action under Bivens to assert his constitutional claim

against Amtrak and that his Bivens claim must therefore be dismissed.

4. § 1985(3) Conspiracy Claim

Plaintiff also alleges that Defendants engaged in a conspiracy to deprive him of his civil

rights in violation of 42 U.S.C. § 1985(3). Although the Court has already dismissed this claim

against TCU/IAM and President Biden, the Court will first consider TCU/IAM’s contention that

the Court lacks subject-matter jurisdiction over this claim because the allegations of conspiracy

are “essentially fictitious,” Dkt. 21-1 at 26–27, before addressing Amtrak’s contention that the

§ 1985(3) fails under Rule 12(b)(6), see Dkt. 32-1 at 25–27. The Court disagrees with

TCU/IAM that Plaintiff’s claim is so devoid of substance as not to present a federal question, but

the Court agrees with Amtrak that Plaintiff has nonetheless failed to state a claim.

a. Subject-Matter Jurisdiction

A federal district court may dismiss a claim for lack of subject-matter jurisdiction under

Rule 12(b)(1) if the claim “is patently insubstantial,” Neitzke v. Williams, 490 U.S. 319, 327 n.6

(1989), or “essentially fictitious,” Hagans v. Lavine, 415 U.S. 528, 537 (1974) (citation

modified). The D.C. Circuit has instructed that this doctrine should be reserved for claims in

which the factual allegations are “clearly fanciful,” such as claims involving “bizarre conspiracy

theories, any fantastic government manipulations of their will or mind, [or] any sort of

supernatural intervention.” Best v. Kelly, 39 F.3d 328, 330–31 (D.C. Cir. 1994). Although legal

claims might be so insubstantial as to deprive the Court of jurisdiction if “prior decisions

inescapably render [them] frivolous,” claims that are merely “of doubtful or questionable merit”

should instead be reviewed under Rule 12(b)(6)’s standard. Ord v. District of Columbia, 587

F.3d 1136, 1144 (D.C. Cir. 2009) (quoting Hagans, 415 U.S. at 538); see also Best, 39 F.3d at

331 (“If the district court viewed the remaining portion of plaintiffs’ complaint as legally

frivolous, . . . the proper course would have been to grant the defendant’s Rule 12(b)(6)

motion.”).

Although far-fetched, Plaintiff’s conspiracy claim does not involve allegations so fanciful

as to warrant dismissal for lack of subject-matter jurisdiction. The factual allegations on which

Plaintiff’s conspiracy claim is based are that President Biden issued an Executive Order

requiring that federal contractors adopt COVID-19 vaccine policies, that Amtrak did in fact

adopt a COVID-19 vaccination and testing policy, and that TCU/IAM failed to challenge that

policy in breach of its duty of fair representation. See Dkt. 10 at 58–62 (SAC ¶¶ 254–74). Even

if Plaintiff’s conspiracy claim borders on frivolous, his allegations are not as fanciful as “claims

about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

Tooley v. Napolitano, 586 F.3d 1006, 1009 (D.C. Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 696 (2009) (Souter, J., dissenting)). The Court will, accordingly, review Plaintiff’s

§ 1985(3) claim under Rule 12(b)(6)’s standard.

b. Failure to State a Claim

Even if not based on allegations of the “little green men” variety, Plaintiff’s conspiracy

claim fails as a matter of law. “An essential element of any conspiracy claim is the existence of

some actual conspiracy”—i.e., a “combination of two or more persons acting in concert to

commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of

which is an agreement between the parties to inflict a wrong against or injury upon another, and

an overt act that results in damage.” McManus v. District of Columbia, 530 F. Supp. 2d 46, 74

(D.D.C. 2007) (emphasis in original and citation modified). To survive a Rule 12(b)(6) motion,

a plaintiff alleging a conspiracy claim may not simply recite the elements of the cause of action;

he must plead “enough factual matter (taken as true) to suggest that an agreement was made.”

Twombly, 550 U.S. at 556.

Here, Plaintiff’s § 1985(3) conspiracy claim fails because the second amended complaint

includes nothing more than conclusory allegations that Defendants formed any agreement to

deprive him of his civil rights. The complaint does not allege any facts from which one could

plausibly infer that Defendants ever communicated with one another about President Biden’s

Executive Order or Amtrak’s COVID-19 vaccination policy, let alone that they entered into an

agreement, tacit or otherwise, to deprive Plaintiff of any rights. Cf. McManus, 530 F. Sup. 2d at

75 (“Plaintiffs fail to allege the existence of any events, conversations, or documents indicating

that there was ever an agreement or meeting of the minds between any of the defendants to

violate Plaintiffs’ due process rights or any other civil or constitutional rights.” (citation

modified)). Instead of alleging that the parties entered into an agreement of any kind, Plaintiff

maintains that President Biden’s issuance of the Executive Order constituted a solicitation of the

allegedly unlawful COVID-19 vaccination policy, see Dkt. 10 at 58 (SAC ¶ 254), and that

Amtrak’s subsequent issuance of the policy “formed a[] meeting of the minds with Biden” to

deprive Plaintiff of his rights, id. at 59 (SAC ¶ 261). But an Executive Order requiring

government agencies and contractors to comply with certain workplace safety requirements is no

more a “conspiracy”—or even an “agreement”—than an act of Congress or an agency regulation

imposing any other safety requirements.

Plaintiff’s § 1985(3) claim fails for an additional reason. A plaintiff seeking relief under

that provision must not only allege that the defendants engaged in a conspiracy but also that the

alleged conspiracy “was motivated by some class-based invidiously discriminatory animus.”

McManus, 530 F. Supp. 2d at 75 (citing United Bhd. of Carpenters and Joiners of Am. v. Scott,

463 U.S. 825, 835 (1983)). Plaintiff’s second amended complaint contains no allegations,

conclusory or otherwise, supporting this “essential element.” Id. Accordingly, even if Plaintiff’s

complaint contained factual material from which one could infer that Defendants entered into an

agreement of some kind, Plaintiff’s complaint fails to allege that any such agreement was to

deprive Plaintiff of his rights for discriminatory reasons.

5. Class Allegations

Plaintiff’s second amended complaint also contains class allegations on behalf of other

Amtrak employees who “may have been terminated under the same set of facts.” Dkt. 10 at 67

(SAC ¶ 305). As Amtrak points out, Plaintiff did not file a motion for class certification within

the 90-day period after filing his complaint required by the local rules. See L. Civ. R. 23.1(b).

And, even if Plaintiff had timely moved for class certification, the dismissal of his individual

claims requires dismissal of his class claims as well. See Hamburger, 838 F. Supp. 3d at 41

(collecting cases).

6. Compliance with Rule 8

Finally, Amtrak argues that the Court should dismiss Plaintiff’s entire second amended

complaint with prejudice for failure to comply with Federal Rule of Civil Procedure 8, which

requires that a complaint contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of the rule is to provide the

Court and the adverse parties fair notice of a plaintiff’s claims, and, accordingly, it requires that

the “[t]he court or opposing party [] be able to understand whether a valid claim is alleged and if

so what it is.” Poblete v. Indymac Bank, 657 F. Supp. 2d 86, 96 (D.D.C. 2009) (citation

modified). The “proper length and level of clarity for a pleading . . . is largely a matter that is

left for the discretion of the trial court” and varies based on “the nature of the action, the relief

sought,” and “other pragmatic matters.” 5 Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 1217 (3d ed. 2004). But decisions in this district have routinely

concluded that complaints containing “excessively lengthy recitation of events and myriad

seemingly irrelevant descriptions” make it “nearly impossible to discern the essential facts”

underlying the plaintiff’s legal claims. Jiggetts v. District of Columbia, 319 F.R.D. 408, 415

(D.D.C. 2017) aff’d sub nom. Cooper v. District of Columbia, No. 17-7021, 2017 WL 5664737

(D.C. Cir. Nov. 1, 2017); see also T.M. v. District of Columbia, 961 F. Supp. 2d 169, 175 n.4

(D.D.C. 2013) (collecting cases); Brown v. Califano, 75 F.R.D. 497, 499 (D.D.C. 1977) (same).

Plaintiff’s second amended complaint is excessively long and unclear. He inconsistently

identifies or conflates the bases for his claims and fails to specify which claims he seeks to assert

against which defendants. His complaint includes detours into the history of OSHA standards

related to respiratory hazards, see Dkt. 10 at 16–17 (SAC ¶¶ 33–33) 9; theories of how “PlantBased Lifestyle Medicine or the use of plant foods” can be used as treatment for COVID-19,

Dkt. 10 at 20 (SAC ¶ 47); recitations about the Food and Drug Administration’s and Center for

Disease Control’s regulation and guidance on vaccines, Dkt. 10 at 20–21 (SAC ¶¶ 48–51); and

descriptions of Pope Francis’s public statements on COVID-19 vaccination, Dkt. 10 at 34–36

(SAC ¶ 122–30). Moreover, unwilling to rest on his 211 paragraphs of allegations, Plaintiff

attached hundreds of pages of exhibits to his second amended complaint, many of which bear no

obvious relevance to his claims. See, e.g., Dkt. 10-1 at 151–53 (SAC, Ex. 11) (out-of-context

excerpts of a Department of Labor response to an emergency mandamus petition in the D.C.

Circuit); Dkt. 10-1 at 175 (SAC, Ex. 12) (article on the effect of a plant-based diet on

inflammation); Dkt. 10-1 at 183–84 (SAC, Ex. 13) (World Health Organization overview of the

2009–2010 Influenza A (H1N1) pandemic); Dkt. 10-2 at 206–07 (SAC, Ex. 43) (publication by

the Vatican’s Congregation for the Doctrine of the Faith on the morality of COVID-19 vaccines).

Despite these numerous difficulties, the Court is required to hold pro se complaints to a

less stringent standard than pleadings drafted by lawyers, see Erickson, 551 U.S. at 94, and,

accordingly, has done its best to parse Plaintiff’s claims and to explain why his claims—as the

Court understands them—fail as a matter of law. See T.M, 961 F. Supp. 2d at 175 (“[D]ismissal

under Rule 8 is typically reserved for complaints that are so excessively long as to be

unmanageable, or so poorly conceived and drafted that it is difficult to decipher a coherent,

viable cause of action.”). In doing so, the Court has not addressed each and every passing

reference to a statute, constitutional provision, or conceivable cause of action, including

Plaintiff’s complaint appears to be misnumbered, with multiple paragraphs labeled 32 and 33 on the same page. Here, the Court intends to reference both paragraphs labeled 33 on the same page.

Plaintiff’s “musings that extend far beyond the scope of the claims for relief” that he has

specified. Poblete, 657 F. Supp. 2d at 96. “[B]ald references to sources of relief fall far short of

the specificity that Rule 8 requires,” id., and Plaintiff’s second amended complaint fails to

provide sufficient factual allegations for either the Court or Defendants to discern whether

Plaintiff intends to press claims for relief beyond those the Court has already discussed. Nor has

Plaintiff clarified any such additional claims in his counseled opposition to Defendants’ motions

to dismiss, see Dkt. 36, or in his requests for leave to file a third amended complaint, see Dkt. 44,

Dkt. 47.

Accordingly, to the extent Plaintiff has attempted to plead claims for relief beyond those

the Court has already rejected, the Court concludes that such claims must be dismissed without

prejudice for failure to comply with Rule 8. But because Plaintiff filed his second amended

complaint before counsel appeared on his behalf, the Court will decline Amtrak’s invitation to

dismiss the second amended complaint with prejudice. The Court cautions counsel, however,

that any further filings in this case must take the analysis set forth above into account and must

comply with Rule 11.

D. Motion to File a Third Amended Complaint

Having concluded that Plaintiff’s second amended complaint must be dismissed without

prejudice, the Court considers Plaintiff’s request for leave to file a third amended complaint. See

Dkt. 44. In doing so, the Court considers the most recent version of Plaintiff’s proposed third

amended complaint, Dkt. 48-1, which Plaintiff filed after TCU/IAM pointed out that the

proposed complaint attached to Plaintiff’s motion, once again, identified the incorrect union

defendant, see Dkt. 44 (seeking to add “UNITE HERE Local 43” as a defendant); Dkt. 46 at 1–2

(explaining that Plaintiff is a member of UNITE HERE Local 23 rather than Local 43). In

replying to TCU/IAM’s opposition, Plaintiff requested that the Court grant him leave to correct

this error and to add ASWC as a defendant because counsel “recently discovered” a Seventh

Circuit decision from 1993 in which ASWC was named as a defendant in a Railway Labor Act

dispute. Dkt. 47 at 2–3. Plaintiff then filed a revised proposed third amended complaint making

these changes, see Dkt. 48, which the Court will treat as superseding Plaintiff’s previously filed

proposed third amended complaint. But even in that revised version of Plaintiff’s proposed, third

amended complaint, he continues to name TCU/IAM as a party, along with UNITE HERE Local

23 and ASWC.

Rule 15(a)(2) instructs that the Court “should freely give leave” to amend a pleading

“when justice so requires.” Fed. R. Civ. P. 15(a)(2). But “leave to amend should be denied

when amendment would be futile.” Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99, 126

(D.D.C. 2015). Amendment is futile when “the proposed claim would not survive a motion to

dismiss.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).

The Court concludes that granting Plaintiff leave to file his third amended complaint

would be futile. Plaintiff’s proposed third amended complaint does not cure any of the defects

the Court has identified with Plaintiff’s second amended complaint. Instead, it continues to

assert several claims over which the Court lacks jurisdiction or that fail under Rule 12(b)(6).

Plaintiff has not provided any additional factual information that would support his standing to

sue TCU/IAM; his claims against President Biden remain barred by official immunity or are

moot; and he continues to lack a private right of action under the OSHA Act and a remedy under

Bivens for Amtrak’s allegedly unconstitutional policy. Plaintiff has also failed to add any

additional factual allegations that render his § 1985(3) conspiracy claim more than speculative.

Accordingly, the majority of Plaintiff’s revised third amended complaint would not survive a

motion to dismiss for the same reasons his second amended complaint warrants dismissal.

Plaintiff’s revised proposed third amended complaint, Dkt. 48-1, does differ from his

second amended complaint in three relevant respects, none of which salvages his suit. First, the

proposed third amended complaint names President Biden in his official capacity. See Dkt. 48-1

at 15 (Proposed TAC ¶ 16(c)). Second, it proposes to add both UNITE HERE Local 23 and

ASWC as union defendants on all claims Plaintiff initially brought against TCU/IAM. Id. at 16

(Proposed TAC ¶¶ 16(d), (f)). And third, Plaintiff has included additional factual allegations

related to his fraudulent concealment claim, namely that Defendants made false representations

that the COVID-19 vaccine would prevent transmission of the virus and that vaccination was

necessary to protect others from infection. See id. at 36–37, 56–57 (Proposed TAC ¶¶ 15(a)–

115(f), 206(a)–206(d)). 10 The Court will address each of these proposed revisions in turn.

First, Plaintiff’s proposal to name President Biden as a defendant in his official capacity

would be futile because, as the Court has already explained, all of Plaintiff’s official-capacity

claims against President Biden are either barred by sovereign immunity to the extent he seeks

damages, see Clark, 750 F.2d at 103, or are moot to the extent he seeks prospective declaratory

or injunctive relief, see supra pp. 35–36. Nothing in Plaintiff’s proposed third amended

complaint cures these defects, nor could it. No waiver of sovereign immunity allows a plaintiff

to sue the (present or former) President of the United States for damages arising out of allegedly

unlawful Executive Orders, and no exception to mootness applies to preserve a live controversy

with respect to these long-since rescinded policies.

With respect to Plaintiff’s proposal to add ASWC and UNITE HERE Local 23 as

additional union defendants, the Court concludes that Plaintiff’s claims would not survive a

The Court again refers to the paragraph numbering in Plaintiff’s revised proposed third amended complaint, even though some paragraphs appear to be misnumbered.

motion to dismiss. To start, it appears that Plaintiff remains confused about which union to

name—or, at least, has shown a lack of care in drafting the proposed, third amended complaint.

Although he refers to UNITE HERE Local 23 in the body of the complaint, he continues to name

UNITE HERE 43 in the caption. But even assuming Plaintiff has finally identified the correct

union defendant against which to bring his claims, his claims against that union—or any other

union—are seemingly time barred. Plaintiff presses claims against the union defendants on the

same grounds that he asserted against TCU/IAM: breach of the duty of fair representation,

wrongful discharge in violation of the OSHA Act, fraudulent concealment under D.C. law, and

conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3). As the Court has

already explained, Plaintiff’s non-DFR claims are all, in substance, repackagings of his DFR

claim because they are all premised on the union defendants’ alleged failure to satisfy their duty

of representation, rather than on independent factual allegations. See supra pp. 25–28. And,

once Plaintiff’s claims are properly characterized, the Court would need to apply the applicable

statute of limitations, which has long-since expired.

Claims under the Railway Labor Act for breach of the duty of fair representation are

subject to a six-month statute of limitations. Emory v. United Air Lines, Inc., 720 F.3d 915, 931

(D.C. Cir. 2013). Plaintiff’s complaint alleges that Amtrak adopted its COVID-19 vaccination

policy in August 2021, Dkt. 48-1 at 30 (Proposed TAC ¶ 81), and that he was discharged on July

13, 2022, following the disciplinary hearing in which he was represented by his union, id. at 33

(Proposed TAC ¶ 98). The allegedly unlawful acts on which Plaintiff’s claims are based thus

occurred between three and four years before he filed his initial complaint, see Dkt. 1 (Compl.),

and he fails to identify any basis for even arguing that the statute of limitation was tolled Thus,

even giving Plaintiff the benefit of the relation-back doctrine, his DFR claims are time-barred,

and granting him leave to amend his complaint to add these claims would be futile.

Finally, Plaintiff’s proposed additional allegations of misrepresentation do not salvage his

fraudulent-concealment claim. Even assuming that Amtrak owed Plaintiff a duty to disclose the

information Plaintiff contends it fraudulently concealed—and, as explained above, Plaintiff has

failed to allege facts sufficient to sustain such a claim—his revised, proposed third amended

complaint still fails to state a claim upon which relief can be granted. Although Plaintiff’s

allegations provide somewhat greater specificity regarding representations Plaintiff contends

were fraudulent, Plaintiff still cannot succeed because his proposed revised complaint does not

allege that Amtrak made such representations, even if false, with the intent to defraud him or that

he took any action in justifiable reliance on such representations. Plaintiff alleges only that

Amtrak and the union defendants “relied upon and repeated” federal officials’ allegedly untrue

representations that the COVID-19 vaccine would prevent transmission of the virus and

concealed the scientific evidence to the contrary. Dkt. 48-1 at 37 (Proposed TAC ¶ 115(c)); see

also id. at 56–57 (Proposed TAC ¶¶ 206(a)–206(d)). To make out a fraudulent concealment

claim, however, Plaintiff must allege not only that Amtrak made false representations or

omissions but also that Amtrak did so with the intent to defraud, Howard Univ., 857 F. Supp. 2d

at 75, and that he relied on those representations or omissions. Here, far from alleging that

Amtrak intended to defraud or that he relied on Amtrak’s intentionally false statements, Plaintiff

alleges that Amtrak followed federal policy and that he refused to comply with Amtrak’s

COVID-19 vaccine policy for reasons wholly unrelated to any representations regarding the

efficacy of vaccines in preventing the spread of the virus. Granting Plaintiff leave to amend his

complaint with respect to his fraudulent concealment claim would therefore be futile.

For the foregoing reasons, the Court will deny Plaintiff’s motion for leave to file a third

amended complaint as futile.

E. Motion for Sanctions

That leaves TCU/IAM’s motion for sanctions against Plaintiff’s counsel, Jo SaintGeorge, for her refusal to dismiss TCU/IAM as a defendant, even though she is—and has long

been—aware that TCU/IAM was not Plaintiff’s union. See Dkt. 39. TCU/IAM’s motion

satisfies the procedural requirements for seeking sanctions. TCU/IAM represents that on

February 26, 2026, it served Ms. Saint-George with a copy of its motion and provided the

requisite 21 days to resolve the issue in good faith before filing the motion with the Court. Dkt.

39 at 2; see also Fed. R. Civ. P. 11(c)(2). Ms. Saint-George did not voluntarily dismiss

TCU/IAM nor seek leave to amend Plaintiff’s complaint to remove the claims against TCU/IAM

within the 21-day period contemplated by Rule 11, and TCU/IAM filed this motion on March

31, 2026, see Dkt. 39.

As TCU/IAM acknowledges, Plaintiff named TCU/IAM as a defendant in this action

before Ms. Saint-George officially appeared as counsel, when he was proceeding pro se.

Although there is reason to believe that Ms. Saint-George was advising Plaintiff at the time he

filed the second amended complaint, she did not sign, file, or submit the pleading to the Court for

purposes of Rule 11. See Fed. R. Civ. P. 11(b). She has, however, “advocat[ed]” for retaining

TCU/IAM as a defendant, id., and has declined entreaties to drop TCU/IAM from the case,

despite knowing that TCU/IAM was not Plaintiff’s union. Based on this refusal to drop

TCU/IAM from the case, TCU/IAM seeks sanctions. Dkt. 39-1. As TCU/IAM stresses, not only

should Ms. Saint-George have known that TCU/IAM was not Plaintiff’s union, she

acknowledged that Plaintiff “inadvertent[ly]” named the “incorrect” union, Dkt. 26 at 2, yet has

repeatedly declined to drop TCU/IAM from the suit.

Although a close question, the Court is unpersuaded that Ms. Saint-George’s actions to

date warrant the imposition of sanctions. The question is a close because (at least at times) Ms.

Saint-George has abandoned the demonstrably false allegation that TCU/IAM “was the union

representing Plaintiff at the time of the events outlined” in the second amended complaint, Dkt.

10 at 13 (SAC ¶ 16(a)), and has sought to defend Plaintiff’s decision to name TCU/IAM as a

party on alternative grounds, Dkt. 26 at 2; Dkt. 36 at 25–26. At other times, however, she has

continued to submit pleadings that allege (or that seek to allege) that TCU/IAM “was the union

representing Plaintiff,” Dkt. 48-1 at 15 (Proposed TAC ¶ 16(a)). Moreover, the alternative

grounds that she has identified—the contention that Plaintiff’s assertion of class action

allegations might permit him to bring claims against other unions on behalf of similarly situated

Amtrak employees, Dkt. 26 at 2, and the contention that TCU/IAM owed Plaintiff a statutory

duty under the RLA because it was a signatory to the same collective bargaining agreement as

UNITE HERE and ASWC and because fair representation duties may extend beyond formal

membership, Dkt. 36 at 25–26—are either frivolous or unsupported by any authority cited in

Plaintiff’s pleadings.

Up to this point, the Court is prepared to attribute Ms. Saint-George’s conduct to a lack of

care and to her effort to find some post-hoc rationalization for mistakenly naming TCU/IAM as a

defendant. Neither explanation is laudable, and repeated failings of this type may warrant the

imposition of sanctions. But, on the current record, the Court is unpersuaded that counsel is

engaged in a pattern of intentional harassment. The question, then, is whether Plaintiff’s counsel

has presented pleadings to the Court that include factual allegations unsupported by reasonable

inquiry or that are premised on legal theories that are unsupported by “existing law or by a

nonfrivolous argument for extending, modifying, or reversing existing law or for establishing

new law.” Fed. R. Civ. P. 11(b). In this respect, the Court notes that counsel may (or may not)

have helped Plaintiff prepare his pro se filings, including his second amended complaint, but she

did not sign, file, or submit those pleadings. Nor has she advocated for those filings by arguing,

in the face of the uncontroverted evidence, that TCU/IAM was Plaintiff’s union; to the contrary,

as TCU/IAM stresses, she has conceded the point. To be sure, she has carelessly included

allegations asserting the TCU/IAM was Plaintiff’s union in both versions of her proposed, third

amended complaint, but the union has not moved for sanctions—or sent counsel a Rule 11

letter—regarding that carelessness.

That leaves the question whether the legal theories that she now invokes find support in

any existing law or in any nonfrivolous argument for establishing new law. Her argument that

Plaintiff’s class allegations somehow support claims against a union that did not represent

Plaintiff arguably fails that test. As explained above, under well-established law, a plaintiff who

is not a member of the class that he purports to represent cannot bring claims on behalf of that

class, and Plaintiff’s counsel offers no argument for revisiting that established law. But it

appears that Plaintiff has also abandoned that misguided theory for suing TCU/IAM, and she

now argues that ASWC, TCU/IAM, and UNITE HERE somehow represented their members in

some collective manner and that, as a result, TCU/IAM may have owed a duty of fair

representation to members of UNITE HERE. Plaintiff’s counsel cites no authority for that novel

theory, nor does she recite any facts that might support it. In short, she arguably falls short on

both prongs of the Rule 11 test.

Refocused in this manner, the problem with TCU/IAM’s motion for sanctions is that

TCU/IAM did not serve a Rule 11 letter on Plaintiff’s counsel requesting that she withdraw her

most recent theory of liability, which concedes that Plaintiff was not a member of TCU/IAM,

before facing sanctions. To be sure, the union has been steadfast in urging counsel to drop her

claims against it, and Plaintiff’s counsel has been equally steadfast in her refusal to do so. But

given the relevant background, including the fact that counsel did not file the second amended

complaint and promptly (albeit imperfectly) conceded that Plaintiff was not a member of

TCU/IAM, the Court is prepared to give Plaintiff’s counsel one last warning—and one last

chance—before imposing sanctions. It is safe to assume, however, that the repeated pursuit of

claims against a union that did not represent Plaintiff based on legal theories that find no support

in the facts or law can—and eventually will—constitute an abuse of the judicial process for

which sanctions are warranted. See Wallace v. Saffa, No. 6-cv-402, 2007 WL 1020791, at *2

(D.D.C. Mar. 30, 2007).

The Court will, accordingly, deny TUC/IAM’s motion for Rule 11 sanctions but cautions

counsel that any continued conduct of the type discussed above will, as appropriate, result in the

imposition of sanctions. Rule 11 requires a lawyer to do more than spin out some theory—or

some words that sound like a theory—that might conceivably correct a previous misstep in a

case, without any factual or legal support for that theory or those words. In order to ensure

counsel’s attention to her responsibilities, the Court will require Plaintiff’s counsel to include a

separate certification in all future filings affirming that each complies with the dictates of Rule

11. Although that certification is implicit whenever an attorney (or unrepresented party) files “a

pleading, written motion, or other paper,” Fed. R. Civ. P. 11(b), counsel’s conduct to date

warrants repeated reminder of this obligation.

CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ motions to dismiss, Dkt.

21 & Dkt. 32, will DISMISS Plaintiff’s second amended complaint, Dkt. 10, will DENY

Plaintiff’s motion for leave to file a third amended complaint, Dkt. 44, and will DENY

TCU/IAM’s motion for sanctions, Dkt. 39. Unless Plaintiff moves for leave to file a further

amended complaint that addresses the substantial (and perhaps insurmountable) difficulties

identified herein (and that certifies that the new, proposed complaint satisfies the requirements of

Rule 11) on or before November 6, 2026, the Court will enter final judgment.

SO ORDERED.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: October 19, 2026

Avignone v. National Railroad Passenger Corporation

Authorities cited

Opinion · public domain