Morrill v. Aarhaus et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00199-PAB-KAS
DAVID MORRILL,
Plaintiff,
v.
ALYSSA AARHAUS, 89th Troop Command Commander, Colorado National Guard,
BREN ROGERS, Assistant Adjutant General (Army), Colorado National Guard, in their
official capacity,
CHARLES BEATTY, Former Chief of Staff (Army), Colorado National Guard, in his
official capacity,
VIRGINIA USHER, Investigating Officer, Colorado National Guard, in her official
capacity,
KELSIE MCCALLUM, 101st Army Band Commander, Colorado National Guard, in her
official capacity, and
JASON BYRNES, 101st Army Band First Sergeant, Colorado National Guard, in his
official capacity,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendants’ Motion to Dismiss Amended
Complaint [#41] (the “Motion”). Plaintiff, who proceeds in this matter pro se,1 filed a
Response [#50] in opposition to the Motion [#41] and Defendants filed a Reply [#55]. On
October 10, 2024, Plaintiff filed an Amended Complaint [#56] without an accompanying
motion, which the Court struck due to Plaintiff’s failure to comply with Fed. R. Civ. P.
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972). In doing so, the Court should neither be the pro se litigant's advocate nor “supply
additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same
procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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15(a). See Minute Order [#58]. Plaintiff has not attempted to amend his complaint again,
so the Amended Complaint [#32] remains the operative complaint and the Motion to
Dismiss [#41] is not moot. The Court has reviewed the briefs, the entire case file, and the
applicable law. For the following reasons, the Court RECOMMENDS that the Motion [#41]
be GRANTED and that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE based
on lack of Article III standing and Eleventh Amendment immunity.
I. Background2
Plaintiff is a part-time sergeant first class and operations sergeant in the Colorado
National Guard (“CO National Guard”). Am. Compl. [#32], ¶ 3. Defendant Alyssa Aarhaus
is Plaintiff’s brigade-level commander at the CO National Guard’s 89 th Troop Command
brigade. Id., ¶ 22. Defendant Bren Rogers is a CO National Guard Assistant Adjutant
General. Id., ¶ 23. Defendant Charles Beatty is CO National Guard’s former Chief of Staff
(Army). Id., ¶ 24. Defendant Virginia Usher is the CO National Guard’s Major who
investigated Plaintiff’s statements and concluded that he had violated two sections of the
Colorado Code of Military Justice (the “Military Justice Code”). Id., ¶¶ 6, 25. Defendant
Kelsie McCallum is Plaintiff’s commander. Id., ¶ 26. Defendant Jason Byrnes is Plaintiff’s
“first-line leader”. Id., ¶ 27.
On March 11, 2022, Plaintiff “participated in an online video discussion as part of
his 	religious 	ministry 	activity, 	discussing 	controversial 	issues 	from 	a 	conservative
2 For the purposes of resolving the Motion [#41], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in Plaintiff’s Amended Complaint [#32]. See Shero v.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The Court has also considered the exhibits Plaintiff attached to his
Complaint. See Hall, 935 F.2d at 1112 (“A written document that is attached to the complaint as
an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6)
dismissal.”) (citations omitted).
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Christian perspective including politics, current events, and religious news.” Id. at ¶ 3.
Plaintiff’s co-host, JD Hall, identified Plaintiff as “in the Army now” and asked him his
military rank, to which Plaintiff responded “E-7, Sergeant First Class.” Transcript Excerpts
[#32-2] at 1.3 Later in the same interview, Plaintiff was asked about fake hate crimes and
brought up George Floyd, stating that “[t]here was no evidence from that at all that race
was a factor. But because the because the, you know, victim if you want to call him that
was black and there were white officers… There were actually mostly multicultural officers
involved[.]” Id. Later, Plaintiff responded to a question about Vice President Kamala
Harris, stating that “[s]he is so, so stupid. I can’t believe how stupid she is. I mean, this is
a lawyer, right? She’s a lawyer. She supposedly speaks for a living, and she’s a US
Senator. And she’s . . . she’s . . . it’s like she’s trying to be dumber than Joe Biden.” Id.
He asked “is she trying to see how much the country will tolerate because of her skin
color? I’m curious. It’s just like, ‘Well, I know . . . I know I’m not a dumb, dumb blonde
bimbo, but I can try. So let me get in this press conference with some European leaders
and just sort of giggle my way through it[.]” Id. Plaintiff then “mocked the speech patterns
of a public figure, theological opponent and internet personality, Kyle J. Howard.” Am.
Compl. [#32], ¶ 3; see also Transcript Excerpts [#32-2] at 2.
CO National Guard officers became aware of the video and, on March 16, 2022,
Plaintiff’s “unit commander” informed him that the video was required to include a
disclaimer that his views did not reflect those of the Army or the CO National Guard,
based on a September 15, 2021 memorandum from CO National Guard Adjutant General
3 Plaintiff’s attached Transcript Excerpts [#32-2] are not official or authenticated and Plaintiff did
not submit an audio or video recording for the Court’s consideration. However, because
Defendants do not challenge their accuracy, the Court accepts the Transcript Excerpts [#32-2] as
true and accurate for purposes of this Recommendation.
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Laura Clellan. Am. Compl. [#32], ¶ 5. Plaintiff “explained to his commander that the [CO
National Guard] instruction requiring the disclaimer was invalid as it did not properly apply
cited regulations, yet [he] added the requested verbiage to the video’s description to
accommodate . . . the request.” Id. On April 6, 2022, Defendant Beatty, CO National
Guard’s then-Chief of Staff (Army), appointed Defendant Usher to officially investigate
Plaintiff’s statements in the video. Id., ¶ 6.
Defendant Usher reviewed the video and concluded that Plaintiff’s comments
about George Floyd, fake hate crimes, Vice President Harris, and President Biden, as
well as his mocking of Kyle J. Howard’s pronunciation of “racial trauma” violated the
Military Justice Code, Colo. Rev. Stat. § 28-3.1-549, Cognizance of Disreputable
Conduct. Report of Proceedings [#32-6] at 2, 4 (authenticated by Defendant Usher). She
also concluded that Plaintiff’s comments were contemptuous of the President of the
United States, in violation of Military Justice Code, Colo. Rev. Stat. § 28-3.1-512,
Contempt Toward Officials. Id. at 2. Defendant Usher acknowledged that Plaintiff had
added a disclaimer but found that this “did not absolve him from the public comments he
made” in violation of the Military Justice Code. Id. at 3. She “recommended that the unit
Commander administer a non-judicial punishment . . . to reduce [Plaintiff] in rank and/or
require [him to] submit his request to retire.” Id.
On December 3, 2022, Defendant Aarhaus executed a non-judicial punishment
against Plaintiff, “demoting him from Sergeant First Class to Staff Sergeant with a six-
month suspension of the punishment contingent on Plaintiff committing no further
infractions.” Am. Compl. [#32], ¶ 10. She also wrote Plaintiff an official memorandum
containing a Letter of Reprimand (“Reprimand”). Id.; Mem. and Reprimand [#32-10].
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Plaintiff 	appealed 	the 	decision. 	Am. 	Compl. 	[#32], 	¶ 	10; 	Appeal 	of 	Non-Judicial
Punishment and Reprimand [#32-11]. He alleges that CO National Guard Attorney
Advisor Captain Nicholas Hancock, a non-party, responded to an appeal-related email
from Plaintiff’s counsel, and “indicat[ed] that, as part of Defendant Aarhaus’s punishment
of Plaintiff, the [Reprimand] ‘could be attached to the [non-judicial punishment] paperwork
and submitted to [Plaintiff’s permanent record] along with the rest of the [non-judicial
punishment] paperwork[.’]” See Am. Compl. [#32], ¶ 11 (quoting Hancock Email [#32-14]
at 1).
Meanwhile, on January 6, 2023, Plaintiff’s commander, Defendant McCallum, and
his immediate supervisor, Defendant Byrnes, “submitted a service evaluation . . . which
remarked that Plaintiff ‘experienced problems with higher-echelon officers during rating
period’ and rated Plaintiff least qualified and last versus other equally ranked soldiers.”
Am. Compl. [#32], ¶ 12; NCO Eval. Report [#32-12]. Finally, on September 7, 2023,
Plaintiff was notified that Defendant Rogers had denied his appeal. Am. Compl. [#32], ¶
13.
Plaintiff “challenges the overbroad, constitutionally-violative [sic], and extrajudicial
application of the Colorado Military Code by Defendants, as their application egregiously
violates [his] First Amendment speech and religious freedoms of the Plaintiff[.]” Id., ¶ 14.
Plaintiff “also claims ongoing, severe, and irreparable reputational and emotional harm
resulting from being defamed as a racist by trusted military leadership[.]” Id., ¶ 15. He
sues each Defendant in their “official capacity” only. Id., ¶¶ 22-27.4
4 In his stricken Proposed Amended Complaint [#56], Plaintiff added new allegations against the
Defendants in their individual capacities, confirming that the operative Amended Complaint [#32]
lodges only official-capacity claims. See Red-Lined Prop. Second Am. Compl. [#56-1] at 1.
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Plaintiff contends that the Military Justice Code does not apply because he was
“not on military orders, not on duty, not in uniform, and in a non-military context consistent
with his ongoing work in religious and political media.” Id., ¶ 29. He alleges that Defendant
Aarhaus “chastised and shamed” him “for the content of his speech and for not ‘being a
non-commissioned officer 24/7’” before handing him the Reprimand. Id., ¶ 32. He alleges
that Defendant Rogers took nearly nine months to decide his appeal despite regulations
requiring prompt decision. Id., ¶ 33. He alleges that Defendants McCallum and Byrnes
submitted a negative NCO Evaluation Report, which Defendant Byrnes eventually
changed from “met standard” to “exceeded standard,” but that Defendant Byrnes refused
to remove language indicating “ongoing problems” with higher-echelon officers, claiming
that Plaintiff’s appeal was “harming the unit.” Id., ¶ 34.
Plaintiff alleges that he suffers “continuing concrete harms and constitutional
harms due to the chilling effect of knowing the viewpoint and content of his off-duty speech
may at any time subject him to targeting, punishment and extraordinary damage to his
reputation and character by Defendants.” Id., ¶ 35. He claims “irreparable harm done to
[his] reputation, character, mental and emotional wellbeing, and income potential[.]” Id.
Later, Plaintiff alleges that “the [non-judicial punishment] and official Memo of Reprimand
smearing [him] as a racist remains a potential negative mark on Plaintiff’s career.” Id., ¶
41. He alleges that “Defendant Aarhaus negligently and maliciously published defamatory
statements 	of 	fact 	about 	Plaintiff, 	a 	soldier 	under 	her 	command, 	in 	an 	official
memorandum which, according to [CO National Guard] attorneys, can be placed in
Plaintiff’s permanent military record.” Id., ¶ 54. Plaintiff asserts that “Defendants’ violation
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of [his] free speech rights by way of an officially published accusation of racism is the
proximate cause of the irreparable and ongoing damages done to Plaintiff.” Id., ¶ 59.
Plaintiff asserts three claims: (1) First Amendment – Freedom of Speech, Press;
(2) Declaratory Relief; and (3) Compensatory and Exemplary Damages. Id. at 14, 20, 21.
Plaintiff alleges that the Eleventh Amendment is inapplicable because the CO National
Guard is “a federal rather than a state entity.” Id., ¶ 63. He seeks $10,000,000 in monetary
damages, as well as declaratory relief and the compelled issuance of a “written
declaration countermanding the content of the [Reprimand].” Id., ¶¶ 66-73. Defendants
move to dismiss Plaintiff’s claims against them under Rule 12(b)(1) for lack of subject
matter jurisdiction. See Motion [#41] at 2.
II. Legal Standards
A. 	Rule 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). “The party invoking federal
jurisdiction has the burden to establish that it is proper, and there is a presumption against
its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotation marks omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen Enters.,
II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially attack the
complaint’s allegations as to the existence of subject matter jurisdiction, or (2) go beyond
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allegations contained in the complaint by presenting evidence to challenge the factual
basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (internal citation and quotation marks
omitted). “When resolving a facial attack on the allegations of subject matter jurisdiction,
a court must accept the allegations in the complaint as true.” Graff, 65 F.4th at 507 (citing
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). However, the Court is not
“bound by conclusory allegations, unwarranted inferences, or legal conclusions.” Turner
v. United States, 501 F. App’x 840, 842 (10th Cir. 2012) (quoting Hackford v. Babbitt, 14
F.3d 1457, 1465 (10th Cir. 1994)). Additionally, when “a party attacks the factual basis
for subject matter jurisdiction, the court may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed jurisdictional
facts.” SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1275 (10th
Cir. 1997).
III. Analysis
Defendants move to dismiss Plaintiff’s Amended Complaint [#32] under Rule
12(b)(1) and Rule 12(b)(6), arguing that (1) his claims are barred by sovereign immunity;
(2) he lacks standing; and (3) his claims are barred under the Feres and Lindenau
doctrines. See Motion [#41] at 6-35. They also argue that he has failed to state a claim
under 42 U.S.C. § 1983 because Defendants, in their official capacities, are not “persons”
for purposes of money damages and injunctive relief is not cognizable. Id. at 35-36.
Because the Court finds that Plaintiff’s retrospective claims are barred by sovereign
immunity and his prospective claims are barred due to lack of Article III standing, it lacks
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subject matter jurisdiction and cannot apply the Feres or Lindenau doctrines or consider
Defendants’ Rule 12(b)(6) arguments.
A. 	Eleventh Amendment Immunity
Official capacity suits “generally represent only another way of pleading an action
against an entity of which an officer is an agent[.]” Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690 n.55 (1978). In all respects other than name, an official-capacity suit is
treated as a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing
Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). Because the entity is the real party in
interest, officers sued in their official capacity may invoke “forms of sovereign immunity
that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167;
see also Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1233 (10th Cir.
2010) (“When a state official is sued in his or her official capacity, the Eleventh
Amendment bars retrospective relief, usually in the form of money damages, because
any such judgment is deemed directed at the state as the real party in interest rather than
the nominal officer.”) (citing Edelman v. Jordan, 415 U.S. 651, 664-71 (1974)).
There are three exceptions to Eleventh Amendment immunity: (1) a State may
consent to suit in federal court; (2) Congress may abrogate the states’ Eleventh
Amendment immunity; and (3) the doctrine of Ex parte Young, which allows suit for
prospective relief against individual state officers in their official capacities for an ongoing
violation of federal law. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th
Cir. 2012); see also Ex parte Young, 209 U.S. 123 (1908). The Ex parte Young exception
is narrow; it “may not be used to obtain a declaration that a state officer has violated a
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plaintiff’s federal rights in the past.” Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d
487, 495 (10th Cir. 1998).
Here, Plaintiff has filed suit against CO National Guard officers in their official
capacities only. See Am. Compl. [#32], ¶¶ 22-27. The Tenth Circuit has held that a State’s
National Guard is an “arm of the state” that is entitled to Eleventh Amendment immunity.
See Hefley v. Textron, Inc., 713 F.2d 1487, 1493 (10th Cir. 1983) (holding that the Kansas
Army National Guard was “an arm of the state and entitled to any immunity which the
state possesses.”) (citations omitted). Thus, the CO National Guard Defendants sued in
their official capacities are entitled to Eleventh Amendment immunity. Id.
The first two Eleventh Amendment exceptions are inapplicable. Plaintiff does not
argue that the CO National Guard has waived immunity or consented to be sued, and 42
U.S.C. § 1983 does not constitute a congressional abrogation of state sovereign
immunity. See Davis v. California, 734 F. App’x 560, 564 (10th Cir. 2018) (“Section 1983
. . . does not abrogate the states’ sovereign immunity and neither the states nor their
agencies qualify as ‘persons’ under § 1983.”) (citations omitted). The third exception, Ex
parte 	Young, 	only 	applies 	to 	prospective 	injunctive 	relief, 	not 	compensatory 	or
retrospective declaratory relief. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 145-46 (1993); Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019).
Accordingly, Eleventh Amendment immunity bars Plaintiff’s claims for compensatory and
retrospective declaratory relief.
Plaintiff insists that the Court must accept as true his allegation “that this Court
possesses subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361
because of federal questions and deprivation of constitutional rights.” Response [#50] at
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11 (citing Am. Compl. [#32], ¶ 16). However, when considering Defendants’ facial
Eleventh Amendment attack on subject matter jurisdiction, the Court is not bound to
accept conclusory allegations, unwarranted inferences, or legal conclusions. Cf. Turner,
501 F. App’x at 842 (citation omitted). The Court need not credit Plaintiff’s assertions that
the Eleventh Amendment does not apply to the CO National Guard and that the CO
National Guard is a federal, rather than state, entity. See Am. Compl. [#32], ¶ 63. The
Eleventh Amendment applies because the CO National Guard is an arm of the State of
Colorado. See Hefley, 713 F.2d at 1493.
Accordingly, the 	Court 	recommends 	that Plaintiff’s 	claims 	for retrospective
declaratory relief or monetary damages be dismissed without prejudice on Eleventh
Amendment immunity grounds. See Rural Water Sewer & Solid Waste Mgmt., Dist. No.
1, Logan Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011) (“[A] dismissal
on sovereign immunity grounds or for lack of standing must be without prejudice.”).
B. 	Prospective Claims for Relief
1. 	Standing
Article III’s case-or-controversy requirement cannot be satisfied without standing.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Article III standing has three
elements. Id. at 560-61. First, the plaintiff must have suffered an “injury in fact,” i.e., a
concrete and particularized 	injury that 	is “actual or 	imminent, not 	‘conjectural’ 	or
‘hypothetical.’” Id. at 560. Second, a causal connection must exist between the alleged
injury. Id. at 560-61. Finally, it must be likely, rather than speculative, that a favorable
court decision will redress the injury. Id. at 561. The party invoking the federal court’s
jurisdiction bears the burden of establishing these elements. Id. Because each element
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is “an indispensable part of [a] plaintiff’s case, each element must be supported in the
same way as any other matter on which [a] plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the litigation.”
Id. at 561.
Whether a plaintiff seeks prospective or retrospective relief impacts how the “injury
in fact” requirement is satisfied. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir.
2004) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). Past injuries may
establish standing for retrospective relief, but claims for prospective relief require a
continuing or threatened future injury. PeTA, People for the Ethical Treatment of Animals
v. Rasmussen, 298 F.3d 1198, 1202-03 (10th Cir. 2002) (citing Horstkoetter v. Dep’t of
Pub. Safety, 159 F.3d 1265, 1277 (10th Cir. 1988)). “A claimed injury that is contingent
upon speculation or conjecture is beyond the bounds of a federal court’s jurisdiction.”
Tandy, 380 F.3d at 1284 (citing Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). While
past wrongs bear on whether a real and immediate threat of repeated injury exists, they
are insufficient to show an existing controversy under Article III, “if unaccompanied by any
continuing, present adverse effects.” Lyons, 461 U.S. at 102-03 (internal citation and
quotation omitted).
“In the First Amendment context, the Supreme Court has recognized a ‘lessening
of prudential limitations on standing’ due to the difficulty of showing an injury-in-fact for
certain First Amendment claims[.]” Rio Grande Found. v. Oliver, 57 F.4th 1147, 1160
(10th Cir. 2023) (citing Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956
(1984)). Thus, a chilling effect on a plaintiff’s exercise of First Amendment rights may
amount to an injury in fact if it “arise[s] from an objectively justified fear of real
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consequences[.]” D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004). Plaintiffs seeking
prospective 	relief 	based 	on 	a 	“chilling 	effect” 	on 	speech 	can 	satisfy 	Article 	III’s
requirement of a “concrete and particularized” injury by: “(1) evidence that in the past they
have engaged in the type of speech affected by the challenged government action; (2)
affidavits or testimony stating a present desire, though no specific plans, to engage in
such speech; and (3) a plausible claim that they presently have no intention to do so
because of a credible threat that the statute will be enforced.” Initiative & Referendum
Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (emphasis in original) (the “Walker
factors”).
2. 	Plaintiff’s Claims
The Court first considers whether Plaintiff has shown continuing or imminent future
harm, as he must to establish standing for prospective relief, arising from three past
alleged incidents: (1) the non-judicial punishment imposed by Defendant Aarhaus; (2) the
Evaluation Report completed by Defendants McCallum and Byrnes; and (3) Defendant
Aarhaus’s creation of the “Reprimand” letter. Am. Compl. [#32], ¶¶ 10, 12, 34, 41.
Regarding the non-judicial punishment, Defendant Aarhaus imposed on Plaintiff a
demotion in rank “with a six-month suspension of the punishment contingent on Plaintiff
committing no further infractions.” Am. Compl. [#32], ¶ 10. However, Plaintiff does not
allege that that suspended punishment ever went into effect or that he ever lost rank,
even temporarily. Given that the six-month period has long passed, Plaintiff has not
shown that this non-judicial punishment constitutes an ongoing or imminent injury.
Moreover, since Plaintiff has not alleged that the punishment ever went into effect, there
is no continuing harm for the Court to redress. Cf. Nova Health Sys. v. Gandy, 416 F.3d
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1149, 1169 (10th Cir. 2005) (“[I]t must be the effect of the court’s judgment on the
defendant that redresses the plaintiff’s injury, whether directly or indirectly.”) (citations
omitted); Lyons, 461 U.S. at 102 (stating that past conduct does not give rise to a present
case or controversy regarding injunctive relief “if unaccompanied by any continuing,
present adverse effects”) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).
Regarding the Evaluation Report, Plaintiff alleges that Defendants McCallum and
Byrnes submitted a service evaluation that ended up in his permanent military record.
Am. Compl. [#32], ¶ 12; NCO Eval. Report [#32-12] at 2. In part, the Evaluation Report
[#32-12] states that Plaintiff “Exceeded Standard” in all areas except that he only “Met
Standard” in the area of “Achieves: (Gets results).” NCO Eval. Report [#32-12] at 2. This
lower ranking was attributed, in part, to “did not complete [Training] and Evaluation
Outline for MPT or Unit AAR over Annual Training as instructed,” which has no clear
connection to Plaintiff’s speech or Defendant Aarhaus’s non-judicial punishment. Id. Even
so, Plaintiff’s overall performance was rated as “exceeded standard,” though Defendants
McCallum and Byrnes noted that he “experienced problems with higher-echelon officers
during the rating period,” and Plaintiff was rated third of three Sergeants First Class. Id.
However, as Defendants note, Plaintiff does not explain how this overall positive
evaluation could negatively impact his reputation or career prospects, and any future
harm based on the Evaluation Report [#32-12] is purely speculative. See Motion [#41] at
20-21 (citing McNaught v. Nolen, 76 F.4th 764, 771-72 (8th Cir. 2023) (finding that briefly
suspended pilot had failed to establish Article III standing because “[e]ven assuming the
14-day suspension would be damaging to her job prospects, [the plaintiff’s] claims of
future harm are hardly ‘real and immediate’”)). Plaintiff has not plausibly alleged that the
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Evaluation Report’s publication in his permanent record poses a concrete, particularized
risk of future harm.
Finally, Plaintiff contends that he suffers ongoing harm due to Defendant Aarhaus’s
“officially published accusation of racism,” i.e. the Reprimand, but he does not allege that
the Reprimand has been published or disseminated beyond the individuals directly
involved in his non-judicial punishment, investigation, and appeal. As a result, his stated
ongoing harms are speculative and theoretical. See Am. Compl. [#32], ¶ 41 (alleging that
the non-judicial punishment and Reprimand “remain[] a potential negative mark on
Plaintiff’s career”; id. ¶ 41 (alleging that “an official memorandum” containing accusations
of racism “can be placed in Plaintiff’s permanent military record,” according to CO
National Guard attorneys) (emphasis added).5 A potential negative mark on Plaintiff’s
career, a defamatory statement that could be placed in Plaintiff’s permanent record, and
a demotion that never went into effect are not “certainly impending” injuries in fact. Tandy,
380 F.3d at 1283; see also TransUnion LLC v. Ramirez, 594 U.S. 413, 439 (2021) (finding
an absence of concrete harm arising from the existence of inaccurate information in
consumer credit files which were not disseminated); McNaught, 76 F.4th at 772 (stating
that “concrete reputational harm typically requires disclosure of harmful information to
third parties”). Plaintiff has not plausibly alleged that the Reprimand’s mere existence
5 As part of his prayer for relief, Plaintiff asks the Court to “mandat[e] Defendants remove the
Letter of Reprimand (LOR) memorandum via a written declaration countermanding the content of
the LOR[.]” Am. Compl. [#32], ¶ 70. Even on a liberal construction, this phrase does not assert
that the Reprimand is in Plaintiff’s permanent file or that it has been or will be disseminated to
anyone other than those involved in the non-judicial punishment. Even if it were placed in his
permanent file, without allegations of threatened dissemination, Plaintiff has not plausibly alleged
either a concrete and particularized injury or a real and immediate risk of future harm. Cf.
TransUnion, 594 U.S. at 439 (stating that the mere existence of inaccurate information in a file
does not, alone, constitute a concrete harm).
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threatens him with “actual or imminent” injury now or in the future. Lujan, 504 U.S. at 560.
In summary, Plaintiff has not shown that any of the three alleged past incidents cause
him ongoing or future harm that the Court could redress through the granting of
prospective relief.
Each of these past alleged incidents fail to support plausible allegations of ongoing
harm to establish Article III standing. Plaintiff’s general allegations of “irreparable harm to
[his] reputation, character, emotional and mental health, [and] current and future income
earning potential” are unsubstantiated and speculative, unconnected to any factual
averments. Am. Compl. [#32], ¶ 71. He asks the Court to “enjoin[ ] Defendants from taking
adverse action or withholding favorable action against [him] based in whole or in part on
the exercise of his First Amendment rights,” but he does not identify any ongoing or
threatened action. Id., ¶ 70. Simply put, Plaintiff fails to allege a plausible “concrete and
particularized injury” from a chilling effect on his speech. Rather, Plaintiff’s “stated intent
to continue his journalistic activities,” Response [#50] at 13, directly contradicts any
allegation that he “presently [has] no intention to [engage in those activities] because of
a credible threat” that the Military Justice Code will be enforced in the future. Walker, 450
F.3d at 1089. Plaintiff’s general allegations of ongoing harm lack any factual support, and
without a specifically identified injury in fact, the Court cannot find Article III standing. See
D.L.S., 374 F.3d at 975 (holding that the “unsupported claims of a subjective ‘chill’ are . .
. insufficient to support standing.”).
In summary, Plaintiff has not shown an ongoing or imminently threatened future
injury or a chill to his First Amendment rights, therefore, he has failed to demonstrate
Article III standing for prospective relief. Accordingly, the Court recommends that
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Plaintiff’s claims for prospective relief be dismissed without prejudice due to lack of
Article III standing. See Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1, 654 F.3d
at 1069 n.9 (10th Cir. 2011) (“[A] dismissal on sovereign immunity grounds or for lack of
standing must be without prejudice.”).
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that Defendants’ Motion to Dismiss Amended
Complaint [#41] be GRANTED.
IT 	IS 	FURTHER 	RECOMMENDED 	that 	Plaintiff’s 	claims 	be 	DISMISSED
WITHOUT PREJUDICE due to lack of subject matter jurisdiction.6
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
6 Specifically, Plaintiff’s retrospective claims are barred by Eleventh Amendment immunity while
he lacks standing to pursue his claims seeking prospective relief. Cf. Collins v. Daniels, 916 F.3d
1302, 1315 (10th Cir. 2019) (finding that the plaintiff lacked standing to seek prospective relief),
1316 (finding that Eleventh Amendment immunity barred Plaintiff’s claims for retrospective relief).
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recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: November 26, 2024 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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