BERUTTI v. WOLFSON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RONALD A. BERUTTI and No. 2:22-CV-4661

MURRAY-NOLAN BERUTTI LLC,

on their own behalves and on behalf of (Chief Judge Brann)*

all other members admitted to the Bar

of the United States District Court for

the District of New Jersey, including

those admitted pro hac vice,

Plaintiffs,

v.

The HONORABLE RENÉE MARIE

BUMB, Chief United States District

Judge of the District of New Jersey, in

her judicial capacity, and MELISSA

RHOADS, Acting Clerk of the United

States District Court for the District of

New Jersey,

Defendants.

MEMORANDUM OPINION

AUGUST 4, 2023

Federal jurisdiction can be an arcane and elusive concept. Both law students

and attorneys who consider themselves experts struggle with its many nuances. This

matter requires the Court to dive headfirst into several of those nuances, which

include whether a private party can seek prospective injunctive relief in a Bivens

* The Honorable Matthew W. Brann, Chief United States District Judge for the Middle District

action against a federal judge acting in her official capacity as a court administrator,

and whether Federal Rule of Civil Procedure 83, the Rules Enabling Act, 28 U.S.C.

§ 2072, and Article III of the Constitution of the United States grant private

individuals the right to sue courts for issuing allegedly illegal standing orders. The

parties have thoughtfully briefed this matter and elaborated on their arguments

during an in-person oral argument. But as will shortly become evident, the answer

to all of those questions is no.

Plaintiff Ronald A. Berutti and his law firm, Murray-Nolan Berutti, LLC

(collectively, “Berutti”), sue the Honorable Renée Marie Bumb and Melissa Rhoads,

in their respective official capacities as Chief United States District Judge of the

United States District Court for the District of New Jersey (the “District Court”) and

Clerk of the District Court. The basis for Berutti’s lawsuit is the District Court’s

allegedly unconstitutional standing orders governing court procedures during the

COVID-19 pandemic (the “Standing Orders”). Pursuant to the Standing Orders,

Berutti was denied admission at a federal courthouse because he did not have a

vaccination record or a negative COVID-19 test. Berutti argues that the Standing

Orders violate his “right to audience”—which he contends is protected by the

Constitution. Defendants move to dismiss Berutti’s amended pleading for lack of

subject matter jurisdiction, or alternatively, the failure to state a claim. The Court

concludes that it doesn’t have jurisdiction over Berutti’s claims, and even if it did,

he fails to state viable claims. Accordingly, Defendant’s motion will be granted, and

Berutti’s Second Amended Complaint (“SAC”) dismissed with prejudice.

I. BACKGROUND

A. Underlying Facts1

In September 2021, the Honorable Freda L. Wolfson, then Chief Judge of

District Court, issued Standing Order 2021-08, requiring individuals seeking entry

into the District Court’s courthouses to “provide acceptable proof of vaccination

against COVID-19.”2 In March 2021, Chief Judge Wolfson issued Standing Order

2021-01, which allowed individuals to provide negative COVID rapid test to enter

the District Court’s courthouses.3

On June 6, 2022, Berutti was scheduled to appear for an in-person oral

argument at the Clarkson S. Fisher Building and United States Courthouse in

Trenton, New Jersey before the Honorable Peter G. Sheridan of the District Court in

the matter of Falcone v. Dickstein.4 United States Marshals “confronted” Berutti at

the entrance to the courthouse, inquiring as to whether he had a vaccine card or

1 The facts of this matter are laid out in more detail in the Court’s January 27, 2023

Memorandum Opinion granting Defendants’ earlier motion to dismiss Berutti’s First Amended

Complaint (“FAC”). Doc. 28; Berutti v. Wolfson, 2023 WL 1071624, at *1-2 (D.N.J. Jan. 27,

2023).

2 Id. ¶ 33. Acceptable proof consisted of a physical or digital record of vaccination or proof of a

negative PCR test. Standing Order 2021-08, Doc. 1-1.

3 Standing Order 2022-01 (March 16, 2022), available at https://www.njd.uscourts.gov/

sites/njd/files/SO2022-01.pdf.

negative PCR test result.5 He did not because he was unaware of the District Court’s

Standing Orders.6

Despite his apparent lack of COVID-19 symptoms, Berutti was instructed to

wait in his vehicle for Judge Sheridan to call him.7 Judge Sheridan called and asked

if Berutti would be amenable to arguing the matter over the phone while his

adversaries and Judge Sheridan were in the courtroom.8 Berutti was not amenable to

Judge Sheridan’s proposed arrangement, maintaining that the Standing Orders

“violated his constitutional and statutory rights.”9

Judge Sheridan eventually rescheduled the hearing and heard the parties’

arguments telephonically on a later date.10 Berutti was not available on the

rescheduled date, so his partner argued the case instead.11 Ultimately, Judge

Sheridan dismissed the complaint in Falcone for lack of standing.12 In August 2022,

Chief Judge Wolfson issued Standing Order 2022-02, which rescinded the vaccine-

or-test requirement.13

5 Id. ¶¶ 18-19.

6 Id. ¶¶ 20-21.

7 Id. ¶ 22.

8 Id. ¶ 23.

9 Id. ¶ 24.

10 Berutti, 2023 WL 1071624, at *1 (citing Decl. of Ronald A. Berutti, Doc. 26-1 ¶¶ 1-5).

11 Id. (citing Berutti Decl., Doc. 26-1 ¶ 5)

12 Falcone v. Dickstein, 2022 WL 4082138, at *2-3 (D.N.J. Sept. 6, 2022).

13 Standing Order, 2022-02 (Aug. 23, 2022), available at https://www.njd.uscourts.gov/sites

B. Procedural History

Berutti eventually filed this action against Chief Judge Wolfson and William

Walsh, who then served as the Clerk of the District Court. Following the filing of

Berutti’s First Amended Complaint (“FAC”), the Honorable Michael A. Chagares,

Chief Judge of the United States Court of Appeals for the Third Circuit, reassigned

the matter to this Court and designated me to preside over this action pursuant to 28

U.S.C. § 292.14 After the matter was reassigned, both Chief Judge Wolfson and Mr.

Walsh retired from the judiciary. Pursuant to Federal Rule of Civil Procedure 25(d),

the Honorable Renée Marie Bumb and Melissa Rhoads, who respectively succeeded

Chief Judge Wolfson and Mr. Walsh, were automatically substituted as defendants.15

Following reassignment, Defendants moved to dismiss the FAC for lack of

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and

failure to state a claim under Rule 12(b)(6).16 Berutti then moved to recuse me from

hearing this matter.17 The Court granted Defendants’ motion to dismiss for lack of

subject matter jurisdiction and denied Berutti’s motion to recuse.18

Three days later, Berutti filed the SAC, which is now the operative pleading

before this Court.19 In the SAC, Berutti alleges: (1) a Bivens action for violation of

14 Doc. 8.

15 See Feb. 13, 2023 Order, Doc. 33; March 23, 2023 Order, Doc. 35.

16 Berutti, 2023 WL 1071624 at *2.

17 Id.

18 Jan. 27, 2023 Order, Doc. 29.

his First Amendment “right to audience” (Count I); a Bivens action for violation of

his Fifth Amendment right to due process (Count II); and an action for violation of

Article III of the Constitution of the United States, section 360bbb-3 of the Federal

Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., and 45 C.F.R. § 45.116(b)(8)

(Count III).20

Defendants move to dismiss the SAC on the same grounds they asserted in

their first motion to dismiss: lack of subject matter jurisdiction under Rule 12(b)(1)

and failure to state a claim under Rule 12(b)(6).21 Defendants’ motion is fully

briefed, and the Court held an in-person oral argument on July 24, 2023. Defendants’

20 Id. ¶¶ 96-108 (Count I), 109-13 (Count II), 114-17 (Count III). The Court notes several

corrections that do not appear in the filings in this matter. The SAC styles Counts I through III

as 42 U.S.C. § 1983 actions. At a status conference, the parties consented to the Court

considering Counts I and II Bivens actions rather than section 1983 actions. That is because

section 1983 does not apply to federal actors; Bivens actions are the narrower “federal analog”

to section 1983 claims against state actors that allow “victims of a constitutional violation by

a federal [official] . . . to recover damages against the official in federal court despite the

absence of any statue conferring such a right.” Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006)

(quoting Carlson v. Green, 446 U.S. 14, 18 (1980)). Berutti confirmed his consent to the

Court’s conversion of his causes of action at oral argument on July 24, 2023. See Oral Arg.

Tr., Doc. 44 at 4:15-23. In addition, the SAC identifies Chief Judge Bumb as a defendant in

her “judicial capacity.” SAC, Doc. 39 at 1. At oral argument, Berutti confirmed that he means

to sue Chief Judge Bumb in her official capacity as a public official charged with administering

the District Court. See Oral Arg. Tr., Doc. 44 at 4:2-10. That also makes sense, as judicial

immunity applies only to judicial acts, and the Court concludes that regulating the entry into

federal courthouses in response to a public health emergency is an administrative act. See

Forrester v. White, 484 U.S. 219, 227-29 (1988). Berutti also confirmed that he means to sue

Ms. Rhoads only in her official capacity, despite the SAC’s failure to identify either Ms.

Rhoads’ official or personal capacity. See FAC, Doc. 6 at 1 (no capacity identified); SAC, Doc.

30 at 1 (same); Opp., Doc. 39 (identifying Ms. Rhoads in her official capacity); MTD FAC

Opp., Doc. 26 (failing to identify Mr. Walsh/Ms. Rhoads as a Defendant entirely). Lastly,

Berutti clarified that the statute he alleges the Standing Order violated is 21 U.S.C. § 360bbb-

3, which governs Emergency Use Authority of certain medications, not 21 U.S.C. § 300bbb,

which doesn’t exist in the United States Code. See SAC, Doc. 30 ¶¶ 4, 48-56, 115 (referring to

the Emergency Use Authority of COVID-19 vaccines).

motion is now ripe for disposition. For the following reasons, Defendants’ motion is

granted in full and the SAC dismissed with prejudice.

II. LAW

A. Rule 12(b)(1)

Pursuant to Rule 12(b)(1), a party may attack a federal court’s subject matter

jurisdiction at any time.22 The best practice is to consider a Rule 12(b)(1) motion

before any other issues as a successful Rule 12(b)(1) motion means that the court

has no jurisdiction to hear the claim.23 The burden is always on the party invoking

federal jurisdiction.24

B. Rule 12(b)(6)

Under Rule 12(b)(6), the Court dismisses a complaint, in whole or in part, if

the plaintiff fails to “state a claim upon which relief can be granted.” Following the

Supreme Court of the United States’ landmark decisions Bell Atlantic Corp. v.

Twombly25 and Ashcroft v. Iqbal,26 “[t]o survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’”27

22 CNA v. United States, 535 F.3d 132, 145-46 (3d Cir. 2008).

23 Scanlin v. Soldiers & Sailors Mem’l Hosp., 2007 WL 141014, at *2 (M.D. Pa. Jan. 17, 2007)

(McClure, J.).

24 Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009).

25 550 U.S. 544 (2007).

26 556 U.S. 662 (2009).

Our Court of Appeals instructs that “[u]nder the pleading regime established

by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take

three steps”: (1) “take note of the elements the plaintiff must plead to state a claim”;

(2) “identify allegations that, because they are no more than conclusions, are not

entitled to the assumption of truth”; and (3) “assume the[] veracity” of all “well-

pleaded factual allegations” and then “determine whether they plausibly give rise to

an entitlement to relief.”28

III. ANALYSIS

Berutti suggests that “Defendants wish avoid the substantive issues of the

SAC—issues which have never been decided by this Court.”29 The Court can’t speak

to Defendants’ wishes but reminds Berutti that federal jurisdiction over his claims is

a prerequisite to the Court’s analysis of the “substantive issues” in his pleading, and

that the burden to demonstrate federal jurisdiction is his, and his alone. The Court

assesses each Count in the SAC in turn to determine whether it has jurisdiction over

them and whether they plausibly state a claim. It determines that it does not have

jurisdiction because Berutti still doesn’t have standing and the laws he purports to

bring this civil action under do not authorize him to do so. But even if the Court had

jurisdiction, Berutti’s claims fail on the merits because there is no right to audience

28 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

and the Standing Orders easily pass the tiered scrutiny analysis appropriate for

constitutional violations.

A. Berutti Does Not Have Standing

“‘To survive a motion to dismiss [for lack of standing], a complaint must

contain sufficient factual matter’ that would establish standing if accepted as true.”30

“At the pleading stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss, [the Court] ‘presumes

that general allegations embrace those specific facts that are necessary to support the

claim.’”31 Those allegations must establish that (1) the plaintiff suffered an injury in

fact, (2) that is fairly traceable to the defendants’ conduct, (3) and is likely to be

redressed by a favorable judicial determination.32 “To allege injury in fact

sufficiently, a plaintiff must claim ‘that he or she suffered an invasion of a legally

protected interest that is concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’”33 Generally, someone who suffers the invasion of their

legally protected interest suffers harm.

In its prior Memorandum Opinion, the Court concluded that Berutti lacked

standing because he failed to allege that he suffered a harm flowing from his inability

30 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

31 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife

Federation, 497 U.S. 871, 889 (1990)).

32 Cottrell v. Alcon Labs., 874 F.3d 154, 162 (3d Cir. 2017) (quoting Spokeo v. Robbins, 578 U.S.

330, 337 (2016)).

to enter the federal courthouse in Trenton and present his arguments in person,

noting that he failed to allege “any sort of physical, economic, or even reputational

harm from being denied entry to the courthouse and prevented from arguing in

person.”34

Berutti maintains that “the standing requirement does not require the

sufferance of a physical injury, economic [injury], or reputational injury.”35 He also

made clear that he’s not asserting an injury that his client in Falcone suffered and

isn’t bringing an “access to courts claim.”36 Instead, Berutti alleges that his injuries

were the: (1) “loss of [his] First Amendment rights,” and the (2) “violation of the

equal protection of the laws.”37

Berutti’s claimed First Amendment injury is the violation of his “right to

audience,” which, as Berutti explains, traces back to the thirteenth-century reign of

Edward I and protects English barristers’38 right to “appear in court on another’s

34 See Berutti, 2023 WL 1071624, at *6-7.

35 Opp., Doc. 39 at 20.

36 Id. (“The injury which is the subject of the SAC is not that of the [P]laintiffs’ client, but rather,

of the [P]laintiffs themselves.”); id. at 25 (“Defendants misconstrue [Berutti’s] First

Amendment claim as an ‘access to courts’ claim, which it is not. Rather, such claim strictly

relates to fundamental First Amendment protections afforded to attorneys who are admitted to

the Bar.” (citation omitted)).

37 Id. Berutti also claims he was injured because he was “subject to [the] allegedly illegal

Standing Orders.” Id. But the illegality of the Standing Orders is not an injury, it’s the cause

of Berutti’s other injuries.

38 England’s legal profession is bifurcated into two classes: barristers, who have “rights of

appearance in the royal courts” and “solicitors” who are analogs of present-day attorneys but

do not generally appear before English courts. See Solina v. United States, 709 F.2d 160, 166

(2d Cir. 1983). As far as the Court can tell, no United States jurisdiction observes the

behalf.”39 As Berutti concedes, there is no authority indicating that the First

Amendment protects his right to audience.40 For standing purposes, the “invasion of

a ‘legally protected interest’ does not hinge on whether the whether the conduct

alleged to violate a statute does, as a matter of law, violate the statute.”41 Indeed, a

plaintiff may have standing “even though [his asserted] interest would not be

protected by the law.”42 But even though “standing in no way depends on the merits

39 Opp., Doc. at 26-27. The one authority Berutti cites that appears to explicitly support the

recognition of the right to audience (albeit without reference to the First Amendment) is

Oklahoma Supreme Court Justice Marian P. Opala’s dissenting opinion in Cities Service Co.

v. Gulf Oil Corp., 976 P.2d 545 (Okla. 1999). In Cities Service, the court concluded that two

attorneys lacked standing to challenge a trial judge’s ruling limiting their participation in the

trial after the judge concluded that they violated her orders on various motions in limine. Id. at

546-47. Notably, the trial judge did not impose monetary sanctions on the attorneys and did

not hold them in contempt. Id. The attorneys argued they had standing to challenge the judge’s

ruling because it impaired their “legally protected interests in their professional reputations.”

Id. at 548. The court’s majority disagreed, but Justice Opala argued in dissent that the attorneys

had standing because they suffered reputational and financial injuries. Id. at 549 (explaining

that “[a]ny significant disciplinary in-court restraint clearly (a) impinges on the lawyer’s duty

to deliver untrammeled and independent service of forensic representation and (b) harms the

practitioner’s standing both with the sanctioning court as well as with the client.” (emphases

added)). Berutti acknowledges that “it certainly would be damaging to an attorney and his law

firm’s reputation if he and other attorneys in that office that litigated cases for a living were

not able to appear in court.” Opp., Doc. 39 at 20. But as he disclaims any reputational or

financial injury, Cities Service is of no help to his argument.

40 Opp., Doc. 39 at 28 (“While no binding authority exists either in favor of the right of audience

or to the contrary, all known authority supports such right as being engrained into the First

Amendment.”).

41 Cottrell, 874 F.3d at 164; accord Berutti, 2023 WL 1071624, at *7 (“Although the Court has

already concluded that Berutti has no legal basis for such a claim based on the statutes Berutti

cites to, it presumes his legal claims valid for the purposes of the standing analysis.”).

42 In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006) (cited in Cottrell, 874

F.3d at 164). Berutti presents an interesting standing problem. The “legally protected interest”

he avers Defendants invaded exists under a right whose own existence is questionable, as

of the plaintiff’s contention that particular conduct is illegal, it often turns on the

nature and source of the claim asserted.”43

But the SAC still fails to adequately allege a harm that Berutti suffered. The

Court will assume that Berutti had a “right” to appear before Judge Sheridan on June

6, 2022. If he was prevented from exercising this right, he may have an injury. But

that’s not what happened. Berutti wasn’t prevented from appearing on June 6, 2022

because, in response to his inability to enter the courthouse, Judge Sheridan

rescheduled the hearing to a later date.44 Therefore, Berutti did not suffer a harm on

June 6, 2022.

Likewise, Berutti fails to allege an equal protection injury arising out of the

events of June 6, 2022. The Supreme Court has recognized that “the denial of equal

treatment resulting from the imposition of the barrier” is sufficient for standing and

“a member of the former group seeking to challenge the barrier need not allege that

he would have obtained the benefit but for the barrier in order to establish

standing.”45 But where the benefit is “merely ‘illusory,’” losing the opportunity to

pursue it cannot confer standing.46

43 Warth v. Seldin, 422 U.S. 490, 500 (1975) (citation omitted); see also CHARLES ALAN RIGHT

& ARTHUR R. MILLER, Injury in Fact, 13A FED. PRAC. & PROC. JURIS. § 3531.4 (3d ed.) (“The

nature of First Amendment rights readily supports recognition of injury; the importance of

these rights supports recognition of rather attenuated injury.”).

44 Berutti, 2023 WL 1071624, at *1 & n.12 (citing Berutti Decl., Doc. 26-1 ¶ 5).

45 Ne. Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508

U.S. 656, 667 (1993).

46 New Jersey Television Corp. v. FCC, 393 F.3d 219, 221 (D.C. Cir. 2004) (quoting Ranger

Here, Berutti argues that under the Standing Orders, he was denied the

opportunity to enter the courthouse and deliver in-person oral advocacy while other

attorneys who had vaccination records or negative PCR tests could enter the

courthouse, even if they were in fact sick. But he wasn’t denied that opportunity

because, as discussed above, Judge Sheridan rescheduled the argument. In any event,

the manner in which an attorney presents arguments to a court on a motion to dismiss

is a procedural matter.47 The Supreme Court has expressed doubt that an “entitlement

to nothing but procedure” is insufficient to support standing.48 Berutti argues that he

was unable to obtain the benefits of in-person oral argument, which he asserts

include “seeing the body language of one’s adversaries, the witnesses, and the

[j]udge.”49 But he doesn’t allege that his inability to see Judge Sheridan or opposing

counsel would have led to a different outcome or otherwise hurt his case or him.50

The Court is doubtful that the inability to physically see the judge and one’s

47 See FCC v. WJR, 337 U.S. 265, 275-77 (1949) (explaining that the opportunity to orally argue

a matter before a court is a matter of procedural due process and that whether to grant oral

argument “varies from case to case in accordance with differing circumstances, as do other

procedural regulations”); see also United States v. One 1974 Porsche 911-S Vehicle

Identification No. 9114102550, 682 F.2d 283, 286 (1st Cir. 1982) (“There is no constitutional

right to oral argument on a summary judgment motion.” (citing Spark v. Catholic Univ., 510

F.2d 1277, 1280 (D.C. Cir. 1975); WJR, 337 U.S. at 275-77)).

48 Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764 (2005) (citing Lujan, 504 U.S.

555).

49 Opp., Doc. 39 at 29. Berutti also explains that “connecting with a jury entails seeing the jurors.”

Id. Were Berutti representing a criminal defendant in a criminal jury trial, other constitutional

injuries and rights might be at stake. But the proceeding in Falcone was not a criminal jury

trial.

50 Had he done so, he might have standing. But, as noted above, Berutti has disclaimed any injury

adversaries during an in-person oral argument on a motion to dismiss is anything

more than an illusory benefit.51 Therefore, even if Berutti lost a procedural

opportunity, that loss isn’t enough to give him standing for his claims.

Berutti also fails to show a causal link between any harm he might have

suffered as a result of the rescheduled hearing. He wasn’t able to appear at the

rescheduled hearing because of a conflict.52 He doesn’t say what the conflict was,

but there’s nothing to suggest that Berutti’s scheduling conflict was Defendants’

fault. As Defendants note, such an injury is self-inflicted and cannot serve as a basis

for standing because it fails to satisfy standing’s causality requirement.53

B. The Rules Enabling Act and Article III Do Not Grant Berutti Any

Rights Or Authorize Him to Sue For Alleged Violations

In Count III Berutti alleges a violation of Federal Rule of Procedure 83 and

the Rules Enabling Act, 28 U.S.C. § 2072, under the Bivens doctrine. Section

2072(a) authorizes the Supreme Court to “prescribe general rules of practice and

51 Cf. Ranger Cellular, 348 F.3d at 1050 (explaining that the opportunity to compete is an illusory

benefit where the plaintiff cannot show that they would have been qualified to compete for the

opportunity). Likewise, Berutti cannot show that anything he would have done at oral argument

before Judge Sheridan would have changed the outcome of Falcone, which, perhaps ironically,

was also dismissed because Berutti’s client did not have standing to assert his claims that he

was injured by the enforcement of a local school board’s mask mandate. See 2022 WL

4082138, at *2.

52 Berutti, 2023 WL 1071624, at *1-2 (citing Berutti Decl., Doc. 26-1 ¶ 5).

53 See MTD Br., Doc. 36-1 (citing Nat’l Family Planning & Reprod. Health Ass’n v. Gonzales,

468 F.3d 826, 831 (D.C. Cir. 2006) (“We have consistently held that self-inflicted harm doesn’t

satisfy the basic requirements for standing.”); Campeau v. SSA, 575 F App’x 35, 38 (3d Cir.

2014) (noting that “purely voluntary decision” did not afford “standing to seek damages under

this statute because this self-inflicted injury is not fairly traceable to the Government’s

procedure and rules of evidence for cases in the United States district courts.” But it

limits the Supreme Court’s rulemaking power by providing that its rules “shall not

abridge, enlarge or modify any substantive right.”54 Rule 83, which was created

pursuant to Rules Enabling Act, authorizes district courts to adopt local rules and

standing orders governing the court’s practice, but provides that local rules “must be

consistent with—but not duplicate—federal statutes.”

Berutti appears to argue that the Standing Orders, which were issued pursuant

to Rule 83, violate section 2072 because they impair his statutory and regulatory

rights under section 360bbb-3(e)(1)(A)(ii)(III) of the FDCA and 46 C.F.R. §

45.116(b)(8) to be free of discrimination based on his refusal to be vaccinated or

take a COVID test.55 But Bivens, the procedural vehicle Berutti seeks to use for

Count III, allows individuals to seek redress for constitutional violations committed

by individual defendants—not statutory violations allegedly committed by federal

courts or agencies.56

54 28 U.S.C. § 2072(b).

55 See SAC, Doc. 30 ¶¶ 39-56. The statute and regulation Berutti cites apply only to federal

agencies under the executive branch, not the judiciary. See 21 U.S.C. § 360bbb-3(e)(1)(A); 45

C.F.R. § 46.101. Furthermore, section 360bbb-3 only authorizes the Secretary of the United

States Department of Health and Human Services to impose certain conditions on actors in the

healthcare industry who administer EUA drugs. Berutti therefore argues that the Secretary

cannot impose such regulations on the federal courts, as that would be a violation of the

separation of powers. Accordingly, Berutti believes his only recourse is to sue the entire

District Court because the Secretary cannot. See Oral Arg. Tr., Doc. 44 at 15:19-16:12,

27:10-29:23. He is incorrect. Congress routinely enacts laws that allow executive officers to

sue in the name of United States but do not afford private individuals that same right. If Berutti

disagrees with those laws as a matter of policy, his arguments are best directed to Congress.

56 In fact, as is discussed below, it doesn’t allow private individuals to sue federal agencies or the

Instead, Berutti counters by resorting to Article III itself, attempting to

daisy-chain the three together by arguing that a violation of Rule 83 is a violation of

section 2072 is a violation of Article III.57 But even if such a legal theory were

plausible, none of the three authorities he cites grant Berutti any personal rights; nor

do they authorize him to bring a private civil action against anyone—much less

against Defendants in their official capacities. Berutti seeks to use Bivens to pursue

an alleged violation that is simply not his to pursue.58

As for Berutti’s resort to Bivens and Article III, the Court rejects that argument

as one without any basis in the law. No private individual holds a constitutional right

under Article III that can be vindicated in a civil lawsuit. Berutti fails to identify any

authority for such a novel proposition. And the Supreme Court has been increasingly

57 See Opp., Doc. 39 at 22 (“Defendants were judicial officers who promulgated and enforced the

Standing Orders, which exceeded their authority under 28 U.S.C. § 2072 and [Rule] 83. . . .

Having been derived from a [c]ongressional grant of authority to the [c]ourts so that the

[c]ourts may properly exercise their Article III authority, the Federal Rules of Civil Procedure

have the force of law and may not be disregarded.” (internal quotation marks and citations

omitted)); Oral Argument Tr., Doc. 44 at 25:8-26:6 (“Q. So what is the constitutional right at

issue in Count III? Is it a personal constitutional right you claim to hold under Article III, or is

it your due process rights under the Fifth Amendment, or is it another constitutional right that

I’ve overlooked? A. The issue is that [Chief] Judge Wolfson exceeded her Article III powers.”

(cleaned up)), 26:7-18 (“Q. Mr. Berutti, could you explain how you have a right to action to

seek relief for Chief Judge Bumb’s alleged violation of [28 U.S.C. § 2072], which is to say are

you asserting that section 2072 has a private right of action? A. I am not asserting that [section

2072] has a private right of action. I am asserting, however, that the violation of that statute

constitutes a violation of an Article III power.” (cleaned up)).

58 This argument is reminiscent of one Berutti made previously that the Court rejected. In its prior

opinion, the Court granted Defendants’ motion to dismiss Berutti’s claims because the FDCA

contains no private right of action, which deprives the Court of jurisdiction. See Berutti, 2023

WL 1071624, at *5. Section 2072 likewise contains no private right of action and Berutti

hesitant to extend Bivens to new contexts.59 This Court predicts it would decline

Berutti’s invitation to extend it to this context based on its prior precedent holding

that an individual cannot maintain a Bivens official-capacity claim. Dismissal is

accordingly appropriate.60

C. There Is No “Right to Audience”

Defendants argue that there is no right to audience.61 Berutti concedes that “no

binding authority exists either in favor of the right [to] audience or to the contrary.”62

59 See, e.g., Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (“[T]he Court has made clear that

expanding the Bivens remedy is now a ‘disfavored’ judicial activity. This is in accord with the

Court’s observation that it has ‘consistently refused to extend Bivens to any new context or

new category of defendants.’” (first quoting Iqbal, 556 U.S. at 675, then quoting Correctional

Services Corp. v. Malesko, 534 U.S. 61, 68 (2001))).

60 Defendants also argue that this matter is moot given that Chief Judge Wolfson rescinded the

testing or vaccination requirement. MTD Br., Doc. 36-1 at 13. The Court acknowledges that

developments since the last motion to dismiss have further decreased the likelihood that

Defendants will again require individuals to present a vaccination record or a negative COVID

test to enter courthouses. As each day goes by, statistics improve. See CENTERS FOR DISEASE

CONTROL AND PREVENTION, COVID DATA TRACKER, U.S. DEPARTMENT OF HEALTH AND

HUMAN SERVICES, available at https://covid.cdc.gov/covid-data-tracker (last visited June 16,

2023). But the likelihood that Defendants renew the testing or vaccination requirement is tied

to the likelihood of another wave of a more virulent COVID variant—or some other global

bio-catastrophe. As past events have indicated, the probability of a global pandemic is not a

readily determinable figure. Berutti directs the Court’s attention to the United States

Department of Health and Human Services’ extension of its declaration providing for certain

liability immunities arising out of COVID countermeasures under the Public Readiness and

Emergency Preparedness Act. See Doc. 42-1 at 1. In any event, while the Court is eternally

hopeful, it cannot say with certainty that Defendants have met the “‘heavy’, even

‘formidable,’” burden required to moot this case. United States v. Gov’t of Virgin Islands, 363

F.3d 276, 285 (3d Cir. 2004) (quoting Additionally, Defendants maintain that the Standing

Orders were lawful, which marshals in favor of a ruling on the merits. See DeJohn v. Temple

Univ., 537 F.3d 301, 309 (3d Cir. 2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 189, 190 (2000)). As will become evident, the Court agrees

with Defendants on the merits.

61 MTD Br., Doc. 36-1 at 26.

62 Opp., Doc. 39 at 28. Indeed, in discussing Berutti’s argument, the Court joins Justice Opala by

authoring the second opinion in all of American jurisprudence that references the right to

But he asserts that “all known authority” supports the proposition that this Court

should interpret the right of audience as part and parcel with the First Amendment

or incorporate it into the First Amendment.63

The Court interprets the “known authority” to which Berutti refers as three

authorities he cites to in support of his contention that the Court should recognize

the English common law right to audience: (1) Oklahoma Supreme Court Justice

Marian P. Opala’s dissenting opinion in Cities Service Co. v. Gulf Oil Corp., which

the Court already discussed above64; (2) Justice William O. Douglas’ concurring

opinion in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v.

63 Id. At oral argument, Berutti confirmed that he’s not bringing a First Amendment claim for

violation of his right to free speech. See Oral Arg. Tr., Doc. 44 at 24:1-8 (“Q. What I would

like to know is if you are alleging a violation of your right to free speech. If you are, please

direct my attention to the facts in the operative pleading, the [SAC] that supports a violation

of your free speech rights. A. Your Honor, I have not raised a free speech claim. I have raised

a right of audience claim, and I will acknowledge that. . . . Q. So you’re not alleging a violation

of your free speech rights. A. I am not—other than to the extent that the right of audience

encompasses some type of free speech, I’m not raising it particularly.” (cleaned up)). Any

effort to amend Berutti’s pleading to add a free speech claim is improper at this late juncture,

as expressed above. Regardless, amendment would be futile. To the extent that Berutti raises

a free speech claim, it fails because he has not alleged an injury for the same reasons cited

above. To the extent that Berutti has standing to allege a violation of his free speech rights, the

Court concludes that the Standing Orders are a reasonable time, place, and manner restriction

because they are content neutral and serve the important public health interest in preventing

the spread of disease. See Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 192

(3d Cir. 2008) (describing the standard for free speech claims); Berner v. Delahanty, 129 F.3d

20, 26 (1st Cir. 1997) (explaining that courthouses are nonpublic fora in which speech can be

restricted as long as the restrictions are content neutral and reasonable); Braun v. Baldwin, 346

F.3d 761, 763 (7th Cir. 2003) (same).

64 976 P.2d 545, 546-47 (Okla. 1999). The Court discussed Cities Service above with respect to

standing because that’s what the case is about. It doesn’t reference the First Amendment at all.

And even if it did, the dissent of a sole justice of the Oklahoma Supreme Court does not bind

Attorney General of Massachusetts (“Memoirs v. Massachusetts”)65; and (3) the

majority opinion in Alden v. Maine66.

In Memoirs, the Supreme Court of the United States reversed a state high court

decision concluding that Fanny Hill, an erotic novel, was obscene.67 The plurality

held that the state court below erroneously interpreted the Supreme Court’s decision

Roth v. United States by concluding that Fanny Hill was obscene despite also finding

that the novel had some literary value.68

Justice Douglas authored a cogent concurring opinion challenging the

principle that the First Amendment does not protect obscene conduct.69 Responding

to what he described as a “flood of letters” sent to his office urging him “to protect

the community or the Nation by striking down [Fanny Hill],” Justice Douglas

discussed the history of obscenity in English common law.70 He explained that even

if there was a strong common-law tradition criminalizing obscene literature, the First

Amendment rejected that approach.71 He then quoted this passage from an earlier

65 383 U.S. 413, 429-30 (1966).

66 527 U.S. 706, 733 (1999).

67 383 U.S. at 415-17. The novel at issue was Memoirs of a Woman of Pleasure, also commonly

known as Fanny Hill. Id. at 415. Fanny Hill has been recognized as “the first original English

prose pornography” and “is one of the most banned and prosecuted literary works in history,

having been successfully prosecuted in England and the United States until 1963,” when the

Supreme Court decided Memoirs. RAY BROADUS BROWNE & PAT BROWNE, THE GUIDE TO

UNITED STATES POPULAR CULTURE 273 (Popular Press 2001) (citing DAVID FAIRWEATHER

FOXON, LIBERTINE LITERATURE IN ENGLAND 1660-1745, 45 (Univ. Books 1965)).

68 See id. at 418-20.

69 383 U.S. at 427-28 (Douglas, J., concurring).

70 Id. at 427-29.

Supreme Court opinion, which is the same passage Berutti now suggests supports

his argument that the Court should recognize the English right to audience:

[T]o assume that English common law in this field became ours is to

deny the generally accepted historical belief that “one of the objects of

the Revolution was to get rid of the English common law on liberty of

speech an[d] of the press.”

More specifically, it is to forget the environment in which the First

Amendment was ratified. In presenting the proposals which were later

embodied in the Bill of Rights, James Madison, the leader in the

preparation of the First Amendment, said: “Although I know whenever

the great rights, the trial by jury, freedom of the press, or liberty of

conscience, come in question in that body (Parliament), the invasion of

them is resisted by able advocates, yet their Magna Charta does not

contain any one provision for the security of those rights, respecting

which the people of America are most alarmed. The freedom of the

press and rights of conscience, those choicest privileges of the people,

are unguarded in the British Constitution.”72

In Alden, the Supreme Court held that Congress could not use its Article I

powers to “subject nonconsenting states to private suits for damages in states

courts.”73 In doing so, the majority criticized the dissent’s argument that state

sovereign immunity must derive from either common law, which is subject to

change by legislative action, or from natural law, which cannot overcome the

sovereignty of the federal government.74 In its critique, the majority offered the

following, which Berutti now asserts supports his position:

The text and the structure of the Constitution protect various rights and

principles. Many of these, such as the right to trial by jury and the

72 Id. at 429-30 (quoting Bridges v. State of California, 314 U.S. 252, 264 (1941)) (citations

omitted) (quoted in Opp., Doc. 39 at 26).

73 527 U.S. at 712.

prohibition on unreasonable searches and seizures, derive from the

common law. The common-law lineage of these rights does not mean

they are defeasible by statute or remain mere common-law rights,

however. They are, rather, constitutional rights, and form the

fundamental law of the land.75

Berutti explains that the passage quoted from Memoirs indicates our Founding

Fathers’ interest in “preserving our basic freedoms against government interference

with the ratification of the First Amendment.”76 He argues that the passage quoted

from Alden “expanded on the concept of the Bill of Rights ensuring preservation of

English common law freedoms.”77 He is mistaken on both counts.

The Court interprets the quoted passage from Justice Douglas’ concurrence in

Memoirs to stand for the proposition that the Constitution supplanted the common

law rather than incorporating it.78 As for the passage from Alden, the Court reads it

to indicate that even though some constitutional rights had common-law progenitors,

they became fundamentally different rights once included in the Constitution.79

Neither Alden nor Justice Douglas’ concurring opinion in Memoirs indicate that

75 Id.

76 Opp., Doc. 39 at 25.

77 Id. at 26.

78 In Bridges, the case Justice Douglas quoted from in Memoirs, the Supreme Court reversed a

lower decision affirming certain individuals’ contempt convictions for publishing comments

about ongoing litigation. See 314 U.S. at 258. The Supreme Court recognized a long-held

common-law tradition of punishing individuals for statements about ongoing litigation but

concluded that the First Amendment displaced that tradition and protected such statements,

subject to specific exemptions not relevant here. See id at 263-67.

79 The Alden majority went on to say that “[a]lthough the sovereign immunity of the States

derives at least in part from the common-law tradition, the structure and history of the

Constitution make clear that the immunity exists today by constitutional design.” 527 U.S. at

courts should recognize fundamental rights that predated the constitution but were

not recognized in it.80 In sum, none of the authority Berutti cites supports his

argument that the First Amendment protects an attorney’s so-called right to

audience. To the extent Berutti invites this Court to infer the existence of a

constitutional “right to audience,” the Court declines. Accordingly, Berutti fails to

state a violation of the First Amendment as a matter of law.

D. Bivens Does Not Authorize Berutti to Sue Defendants in their

Official Capacities

Berutti styles all of his claims as Bivens claims. Bivens provides a limited

remedy for individuals seeking “damages and injunctive relief against federal

officials for violating an individual’s federal constitutional rights.”81 “However,

Bivens only authorizes suit against federal officials in their individual capacities, not

the United States and federal agencies.”82 And “[a]n action against government

officials in their official capacities,” such as this one, “constitutes an action against

80 The Court accordingly rejects Berutti’s reliance on Dobbs v. Jackson Women’s Health

Organization, 142 S. Ct. 2228 (2022) and N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.

2111 (2022). See Opp., Doc. 39 at 28. Although both of those decisions implicate history and

tradition into the constitutional analysis, they do so for rights that predated the constitution and

were included in it, unlike the right to audience.

81 Warren v. United States, 279 F. App’x 162, 163 (3d Cir. 2008) (citing Bivens, 403 U.S. at

388).

the United States.”83 Accordingly, Berutti has no right to sue Defendants in their

official capacities and his claims must be dismissed.84

E. The Standing Orders Have a Rational Basis85

Lastly, the Court turns to the merits of Berutti’s equal protection claim. Berutti

argues that the Standing Orders burden his fundamental right to audience, and

therefore strict scrutiny applies.86 Defendants respond that rational basis review

applies because there is no right to audience.87 The Court has already rejected the

right to audience. Accordingly, the proper analysis is rational basis review. Under

that standard, the Standing Orders are valid if they “rationally further[] a legitimate

83 Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (per curiam) (citing Meyer, 510 U.S. at

471).

84 As expressed above, at oral argument, Berutti confirmed that he initially filed this action

against Defendants in their official capacities. See Oral Arg. Tr. Doc. 44, at 4:2-14 (“Q. Mr.

Berutti, are you suing Chief Judge Bumb in her official capacity, judicial capacity, or both? A.

In her official capacity, which is a judicial capacity, is my understanding, not a personal

capacity, no. Q. So, you’re suing in an official capacity and a judicial capacity? A. Yes. Q. All

right. Are you suing Ms. Rhoads in her official capacity or her personal capacity? A. In her

official capacity.” (cleaned up)). He later made an oral motion to amend his pleading to

“include [claims against Chief Judge Wolfson] in her personal capacity if that would be

necessary to keep this case alive.” Id. at 4:24-5:2. The Court denies Berutti’s oral motion

because it is procedurally improper, see Fed. R. Civ. P. 15(a) (explaining the requirements to

amend one’s pleading prior to trial), and in any event, futile. Berutti’s attempt to amend his

claims comes far too late in this litigation. Moreover, there are no facts in the SAC suggesting

that either Chief Judge Wolfson or Mr. Walsh ever personally violated Berutti’s rights. Any

actions they took were taken in the course of their roles as official administrators of the District

Court.

85 Again, this analysis assumes that Berutti has standing to bring his claims and that the Court

has jurisdiction over them.

86 Opp., Doc. 39 at 31; see Connelly v. Steel Valley Sch. Dist., 706 F.3d at 213.

state purpose or interest.”88 Rational basis review “is not a license . . . to judge the

wisdom, fairness, or logic of legislative choices.”89

Berutti—in a somewhat circular fashion—first argues that the Standing

Orders do not survive rational basis review because they are unconstitutional.90 That

fails to move the mark. But he also offers a wealth of evidence suggesting that

COVID vaccines and tests are ineffective at best, and unsafe at worst. The SAC

contains thirty-eight paragraphs to that effect.91 In addition, attached to Berutti’s

original pleading are two declarations: one from a physician and another from a

biochemist. Both lodge numerous attacks at the efficacy of vaccines and cite various

scientific studies and authorities.92 Berutti cites other scientific evidence throughout

his pleadings.93 He contends that it’s irrational to allow vaccinated attorneys who

may still be infected and contagious to enter courthouses while barring healthy

unvaccinated attorneys.94

Although this Court disagrees with Berutti as to the vaccines’ efficacy and

safety, the Court’s opinion is irrelevant—as is Berutti’s. This Court’s role is not to

question the wisdom of policies adopted by administrators whether it agrees with

88 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 55 (1973) (citing McGinnis v. Royster,

410 U.S. 263, 270 (1973)).

89 Heller v. Doe by Doe, 509 U.S. 312, 319 (1993).

90 Oral Arg. Tr., Doc. 44 at 19:13-18 (“Well, it can’t possibly be a rational basis to impose an

illegal and unconstitutional mandate on somebody. That’s irrational, definitionally.”).

91 SAC, Doc. 30 ¶¶ 57-95.

92 See Decl. of Dominic M. Pedulla, M.D., Doc. 1-3; Decl. of Michael Babich, Ph.D., Doc. 1-3.

93 See, e.g., Doc. 1-10 (identifying “selected adverse events reported after COVID-19

vaccinations”).

them or not. As long as there is a rational relationship between the means and the

ends, the policy is valid. That’s the case whether the administrators in question are

responding to trivial matters or global disasters. No matter how much scientific

evidence Berutti adduces in favor of his position, Defendants’ decisions “may be

based on rational speculation unsupported by evidence or empirical data” and still

pass muster.95

Here, the Court finds that there is a rational relationship between a COVID

vaccine-or-test requirement for in-person proceedings.96 At most, Berutti has shown

that there is some scientific disagreement regarding the vaccines and tests. Chief

Judge Wolfson was well within her rights to choose the pro-vaccine side of that

debate rather than the anti. If Berutti wishes to further regulate the federal courts’

ability to govern their practices, he can take his arguments to Congress, which has

plenary authority to regulate the district courts to allow unvaccinated individuals

entry during global pandemics. Until it does, Berutti must adhere to the District

Court’s orders.

IV. CONCLUSION

95 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993).

96 A common thread that runs through Berutti’s arguments is that Defendants attempted to force

him to obtain a vaccine. That is a flawed interpretation of the facts at best and a disingenuous

interpretation at worst. The Standing Orders required a vaccination record or test result to be

physically present in the courthouse but provided for several mechanisms to otherwise

continue proceedings, such as the use of virtual appearances, drop boxes for documents, and

continuances where necessary. Similarly, Berutti’s argument that the Standing Orders

The courts are not the forum for disagreeing with policy-based decisions, even

when those decisions are made by judges in their limited capacities as court

administrators. It is clear from the Standing Orders themselves that Chief Judge

Wolfson undertook a complex balancing of several factors, turning to guidance from

both federal and state authorities, to determine the best course forward during an

uncertain time. This Court cannot and will not second-guess her decision.

Defendants’ motion is granted, and Berutti’s SAC dismissed with prejudice.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge for

the Middle District of Pennsylvania

(sitting by designation)