Maxwell v. US Secretary of Defense et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Maxwell
v. 	Case No. 20-cv-1193-PB
U.S. Secretary of Defense
Chris Miller, in his official
capacity, et al.
REPORT AND RECOMMENDATION
Plaintiff Mary Maxwell, proceeding pro se, has filed an
action seeking injunctive relief to protect herself from
mandatory vaccination for COVID-19. 	Doc. No. 1. 	Since Maxwell
has paid the filing fee, her complaint, naming Acting U.S.
Secretary of Defense Chris Miller, Federal Emergency Management
Administrator Peter Gaynor, and U.S. Secretary of Health and
Human Services Alex Azar as defendants, is before the magistrate
judge to determine whether the court has subject matter
jurisdiction over her claims. 	See Fed. R. Civ. P. 12(h)(3);
LR 4.3(d)(2). 	The court construes Maxwell’s well-pled
allegations liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), but finds she has failed to allege an
actual or imminent injury in fact that confers her with Article
III standing to sue. 	Accordingly, the district judge should
dismiss the complaint for lack of lack of subject matter
jurisdiction.
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 1 of 6

2
I. 	Background
In May 2020, President Donald Trump announced Operation
Warp Speed (“OWS”) – a partnership among components of various
federal agencies with the mission of accelerating the
development, manufacture, and distribution of vaccines,
therapeutics, and diagnostics for COVID-19. 1 	See Compl. (Doc.
No. 1, ¶¶ 10, 14). 	As part of OWS, President Trump announced he
would use the military to deliver the vaccines. 	The U.S. Food
and Drug Administration approved the first vaccines to counter
COVID-19 nearly seven months later, in December 2020.
Maxwell, a Concord, New Hampshire resident, alleges that
she “utterly objects to any government-enforced regime of
vaccination” and “will refuse to take” any of the COVID-19
vaccines. 	Id. ¶ 15. 	Her complaint lists several reasons for
her decision, including, for example, that “[o]ne likely agenda
behind the vaccine is surveillance,” and that by getting a
vaccine, “she may be accepting permanent invasion of privacy”
regarding her location and health history. 	Id. ¶ 43. 	She also
claims that by accepting a vaccine, she “would be entering into
a state of worry that unpredictable side-effects would appear
later,” id. ¶ 44, and would “feel complicit in the overthrow of
our legitimate constitutional government, at both the state and
federal level, and our highly prized Bill of Rights,” id. ¶ 45.
1 See also OWS Fact Sheet, https://www.hhs.gov/coronavirus/
explaining-operation-warp-speed/index.html (last visited January
11, 2021).
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 2 of 6

3
Maxwell contends that “under a putative emergency (or
martial law),” the President “could presumably ‘declare’
vaccination mandatory.” 	Id. ¶ 10. 	She concedes, however, that
at this moment, there is “no law directing [her] to be
mandatorily injected.” 	Id. ¶ 50.
II. 	Discussion
“The Constitution limits the judicial power of the federal
courts to actual cases and controversies.” 	Katz v. Pershing,
LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing U.S. Const. Art.
III, § 2 cl. 1). 	“A case or controversy exists only when the
party soliciting federal court jurisdiction (normally, the
plaintiff) demonstrates ‘such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends.’” 	Id. (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)).
The first element for satisfying the personal stake
requirement – injury in fact – requires the plaintiff to show,
in part, “an invasion of a legally protected interest which is
. . . actual or imminent, not conjectural or hypothetical.” 	Id.
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992))
(internal citations omitted). 	As explained by the First Circuit
Court of Appeals, it is not enough that the harm could
conceivably occur “at some future time;” rather, an “actual or
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 3 of 6

4
imminent injury” demands that “the harm has either happened or
is sufficiently threatening.” 	See id. (citing Lujan, 504 U.S.
at 564).
Here, Maxwell has failed to show that any alleged injury to
her is either actual or imminent. 	As she concedes, “there is at
this moment no law directing [her] to be mandatorily injected”
with a vaccine for COVID-19. 	Compl. (Doc. No. 1, ¶ 50). 	Her
complaint does not even allege that Congress or the Executive
Branch is considering such a law. 	Further, the conclusory
allegation that the President “could presumably ‘declare’
vaccination mandatory” by “declaring a putative emergency (or
martial law),” Compl. (Doc. No. 1, ¶ 10), without any
description of concrete plans concerning how and when the
President may actually make such a declaration, does not satisfy
her burden of showing that a vaccine mandate is actual or
imminent. 	See, e.g., Lujan, 504 U.S. at 564. 	Even if it were
true that there was serious “talk” by government officials of
invoking martial law – the court stresses that Maxwell cites
nothing of evidentiary quality supporting this assertion –
Maxwell has not alleged that the President (or any federal
government officials for that matter) has expressed any
intention to use a putative emergency or martial law to declare
vaccination mandatory, or that such a declaration would
necessarily apply to Maxwell’s circumstances. 	See also Bechade
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 4 of 6

5
v. Baker, No. CV 20-11122-RGS, 2020 WL 5665554, at *2–3 (D.
Mass. Sept. 23, 2020) (finding that a Massachusetts resident
lacked standing to challenge a state executive order imposing a
mask mandate, in part, because the plaintiff had not shown that
she or her employees had “personally” been required to wear a
mask under the mandate).
In short, Maxwell’s complaint rests on “nothing more than a
bare hypothesis” that governmental entities “possibly might
push” her to be mandatorily vaccinated against COVID-19 in the
future. 	Katz, 672 F.3d at 77. 	As such, the injuries she
alleges are “conjectural or hypothetical,” not “actual or
imminent,” as Supreme Court and First Circuit precedent defines
those terms, and thus fail to confer her with Article III
standing to proceed with this action. 	Because Maxwell has not
sufficiently pled the existence of an injury in fact, the court
need not address whether Maxwell’s allegations also sufficiently
show that the named defendants are the source of her alleged
injuries, or that a favorable resolution of her claims against
the named defendants would likely redress her professed
injuries. 	See id. at 71 (“To satisfy the personal stake
requirement, a plaintiff must establish each part of a familiar
triad: injury, causation, and redressability.” (citing Lujan,
504 U.S. at 560–61) (emphasis added)).
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 5 of 6

6
III. Conclusion
For the foregoing reasons, the district judge should dismiss
Maxwell’s complaint (Doc. No. 1) in its entirety for lack of
subject matter jurisdiction. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	Failure to file
objections within the specified time waives the right to appeal
the District Court’s order. 	See United States v. De Jesus-
Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union No. 37 v.
United Nat. Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 14, 2021
cc: 	Mary Maxwell, pro se
Case 1:20-cv-01193-PB Document 3 Filed 01/14/21 Page 6 of 6