Rabin v. U.S. Department of Health and Human Services

EASTERN DISTRICT OF NEW YORK CLE RK

12:21 pm, Jul 09, 2024

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NORMAN C. RABIN, CATHERINE E. RYAN, U.S. DISTRICT COURT

LISA R. WALLER, PETER D. ROSENHOLM, EASTERN DISTRICT OF NEW YORK

J. CHAD VANDERGRIFF, JOY N. MACK, LONG ISLAND OFFICE

Plaintiffs, MEMORANDUM & ORDER

23-cv-402 (JMA) (SIL)

-against-

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

and Secretary Xavier Becerra, [in his official capacity,] U.S.

DEPT. OF HOMELAND SECURITY, and DHS Secretary

Alejandro Mayorkas, U.S. DEPT. OF AGRICULTURE, and DOA

Secretary Thomas J. Vilsack, U.S. DEPT. OF ENERGY, and DOE

Secretary Jennifer M. Granholm, NATIONAL AERONAUTICS

AND SPACE ADMINISTRATION, and NASA Administrator

Bill Nelson, U.S. DEPT. OF COMMERCE, and DOC Secretary

Gina M. Raimondo, SOCIAL SECURITY ADMINISTRATION,

and SSA Acting Commissioner Dr. Kilolo Kijakazi, U.S. AGENCY

FOR INTERNATIONAL DEVELOPMENT, and USAID

Administrator Samantha Power, U.S. DEPT. OF HOUSING AND

URBAN DEVELOPMENT, and HUD Secretary Marsha L. Fudge,

U.S. DEPT. OF LABOR, and DOL Secretary Martin J. Walsh, U.S.

DEPARTMENT OF DEFENSE, DOD Secretary Lloyd J. Austin III,

U.S. DEPARTMENT OF EDUCATION, and DOEdu Secretary Dr.

Miguel Cardona, U.S. DEPARTMENT OF VETERANS AFFAIRS,

and DVA Secretary Denis R. McDonough, ENVIRONMENTAL

PROTECTION AGENCY, and EPA Administrator Michael S. Regan,

NATIONAL SCIENCE FOUNDATION, and NSF Director Dr.

Sethuraman Panchanathan, U.S. DEPARTMENT OF TRANSPORTATION,

and DOT Secretary Pete Buttigieg, U.S. DEPARTMENT OF JUSTICE,

and U.S. Attorney General Merrick B. Garland, HHS OFFICE FOR

HUMAN RESEARCH PROTECTIONS, and OHRP Acting Director

Julie Kaneshiro, [all officials are in their official capacity], and U.S.A.,

Defendants.

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AZRACK, United States District Judge:

Plaintiffs Norman Rabin, Catherine Ryan, Lisa Waller, Peter Rosenholm, J. Chad

official capacity.1 Plaintiffs’ Amended Complaint alleges that: (1) Plaintiffs are victims of ongoing

non-consensual human testing and assault technologies by the United States government; (2) the

United States government has subjected Plaintiffs—and other alleged victims—to years of illegal

“hi-tech” surveillance; and (3) Defendants’ actions as part of the “Revised Common Rule”—45

C.F.R. Part 46, the federal regulations relating to research involving human test subjects—were

arbitrary and capricious under the APA because the regulations should have, but did not, protect

victims of illegal and non-consensual surveillance.

Defendants move to dismiss Plaintiffs’ Amended Complaint with prejudice under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants argue: (1) Plaintiffs lack standing

under Article III to bring this action; (2) the Amended Complaint does not state specific allegations

of how Defendants’ notice of proposed rulemaking allegedly violated the APA; (3) to the extent

the Amended Complaint raises alleged violations of constitutional rights, the United States has not

waived sovereign immunity for such claims; and (4) Plaintiffs’ allegations rise to the level of

irrational or the wholly incredible and can only be properly dismissed as the product of delusion

or fantasy.

For the below reasons, the Court dismisses the Plaintiffs’ Amended Complaint with

prejudice.

1 The federal agency defendants include: (1) the United States Department of Health and Human Services

(“HHS”), (2) the United States Department of Homeland Security, (3) the United States Department of Agriculture,

(4) the United States Department of Energy, (5) National Aeronautics and Space Administration, (6) the United States

Department of Commerce, (8) the Social Security Administration, (9) the United States Agency for International

Development, (10) the United States Department of Housing and Urban Development, (11) the United States

Department of Labor, (12) the United States Department of Defense, (13) the United States Department of Education,

(14) the United States Department of Veterans Affairs, (15) the Environmental Protection Agency, (16) the National

Science Foundation, (17) the United States Department of Transportation, (18) the United States Department of

Justice, and (19) the United States Attorney General, the HHS Office for Human Research Protections, and the United

States of America (“Defendants”).

A. The Relevant History of the Revised Common Rule

“The Federal rules that protect people who participate in research were initially published

by the Department of Health and Human Services (‘HHS’). The first section of the HHS rules

(Subpart A) is called the Common Rule because it was simultaneously adopted by 15 Federal

departments and agencies in 1991.” See https://www.hhs.gov/ohrp/education-andoutreach/about-

research-participation/protecting-research-volunteers/principal-regulations (last visited July 8,

2024); see also 56 Fed. Reg. 28025 (June 18, 1991). In 1997, President Clinton issued a

memorandum entitled “Strengthened Protections for Human Subjects of Classified Research”

directing government agencies to develop a revised common rule to address the treatment of

human test subjects. See 62 Fed. Reg. 26369 (May 13, 1997).

The Office for Human Research Protections (“OHRP”) was created in 2000 to, among

other things, “fulfill responsibilities set forth in the Public Health Service Act” including: “(1)

developing and monitoring as well as exercising compliance oversight relative to HHS Regulations

for the protection of human subjects in research conducted or supported by any component of the

Department of Health and Human Services (‘HHS’); and (2) coordinating appropriate HHS

regulations, policies, and procedures both within HHS and in coordination with other Departments

and Agencies in the Federal Government.”3 65 Fed. Reg. 114, 37136, 37137 (June 13, 2000).

2 This Memorandum and Order draws its facts from Plaintiffs’ Amended Complaint (ECF No. 18 (“AC”));

Defendants’ Memorandum of Law in Support of their Motion to Dismiss (ECF No. 32 (“Defs.’ Mot.”)); Defendants’

Affidavits, Declarations, and Accompanying Exhibits in Support of their Motion to Dismiss (ECF No. 33-1-3);

Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (ECF No. 35 (“Pls.’ Opp.”));

Plaintiffs’ Declaration, Affidavits, Exhibits, and Appendices in Support of their Opposition to Defendants’ Motion to

Dismiss (ECF No. 39-1-7); and Defendants’ Reply Memorandum of Law in Support of their Motion to Dismiss (ECF

No. 37 (“Pls.’ Rep.”).)

3 A complete history of OHRP and the history of the Revised Common Rule, including videotaped public

hearings, may be found at: https://www.hhs.gov/ohrp/index.html (last visited July 8, 2024).

comments on seventy-four specific questions about revising the Common Rule. See 76 Fed. Reg.

44512, 44529 (“When submitting responses to the specific questions asked in this notice, please

cite the specific question by number. In addition to the specific solicitation of comments

throughout this ANPRM, general comment is invited on the current system of protections for

human research subjects as implemented through the Common Rule, the HIPAA Privacy and

Security Rules, and any other rules, regulations or guidance documents.”). A Notice of Proposed

Rulemaking (“NPRM”) was published on September 8, 2015 and sought additional public

comments. See 80 Fed. Reg. 53933 (September 8, 2015). The Common Rule was revised in 2017

and adopted by several federal agencies. See 82 Fed. Reg. 7149 (January 19, 2017).

B. Factual Background

As a general matter, Plaintiffs allege that Defendants’ actions as part of the Revised

Common Rule were arbitrary and capricious in violation of the APA. (See generally AC, ¶ 1.)

Specifically, Plaintiffs allege that the Revised Common Rule: (1) does not adequately protect

“citizens from non-consensual human research,” (id. at ⁋ 1(A)); (2) “does not address classified

human research protections which were found to be inadequate in the mid to late 1990s…,” (id. at

⁋ 1(B)); (3) was unreasonably delayed, (id. at ⁋ 1(C)); (4) “does not reasonably address the

rulemaking administrative record being filled with the preponderance of consistent allegations of

a yet-ongoing modern day ‘high tech’ Tuskegee experiment and which is larger in total number of

victims than ‘Tuskegee,’”4 (id. at ⁋ 1(D)); (5) enacted a “vicious Grandfather clause” … “which

enabled existing human research programs when an Agency of Department Head had waived

4 The “Tuskegee” experiment was a study conducted by the United States Public Health Service between 1932

and 1972. “The study was intended to observe the natural history of untreated syphilis. As part of the study,

researchers did not collect informed consent from participants and they did not offer treatment, even after it was widely

available. The study ended in 1972 on the recommendation of an Ad Hoc Advisory Panel, convened by the Assistant

Secretary for Health and Scientific Affairs, following publication of news articles about the study.” See

https://www.cdc.gov/tuskegee/about.html (last visited July 8, 2024).

of the hope and actuality that many victims might become freed from the cruel day and night non-

consensual testing…,” (id. at ⁋ 1(E)); and (6) “ignored numerous, rational and reasonable ‘Victim

Stakeholder’ Public Comments … to not be subjected to violations of the security of one’s person,

and the privacy of one’s internal bodily processes (including one’s thoughts) by high-tech

electromagnetic signals monitoring and assault/harassment of the human body and brain, typically

day and night.” (Id. at ⁋ 1(F)).

Plaintiffs refer to themselves as “alleged/actual” victims that “seek to attempt to represent

some of the interests of victims of [o]ngoing alleged and actual non-consensual human testing by

[the] U.S. Government. . . .[.]” (AC ⁋ 2.) More specifically, Plaintiffs allege that they are “victims

of many years of alleged and actual non-consensual human testing of hi tech surveillance,

monitoring, and assault technologies through advanced signals processing methods of aiming

customized-to-the-person’s-body electromagnetic signals at the person; obtaining the returning

signal(s); ‘micro-analyzing’ the return signal(s) for information; and, then, thereupon, to modulate

the next ‘second’ or ‘few seconds’ (or even faster) of monitoring and assault signals which are

desired to be deployed upon that person.” (Id. at ⁋ 20.)

Plaintiffs also claim to be in the “category of: interfered-with Pro Se[] Plaintiffs, who are

being physically afflicted by Harms” (Id. at ⁋ 3) and that “it is the actual Defendants (or their

contract workers) who are the human ‘actors’ who are conducting the constitutional and human

rights violations which the Federal rule plausibly serves to enable, and which the Federal rule

failed to carefully prevent.” (Id. at ⁋ 4.)

Plaintiffs claim that they participated in the public comment periods regarding the Revised

Common Rule, either in an oral presentation or a written submission for both the ANPRM and the

NPRM. (-Se-e- id-. at ⁋ 10.) Plaintiff Rabin alleges that, under a “not-quite complete” FOIA request,

comment that he made in 2011. (Id. at ⁋ 12.) Finally, Plaintiffs allege that the Revised Common

Rule included a “vicious grandfather” provision and that Defendants failed to provide notice of

this provision. (Id. at ⁋ 69.)

In the “Causes of Action” section of the Amended Complaint, Plaintiffs claim relief in part

because: (1) the Revised Common Rule regarding “[human subject protections federal policy]

which either do, or which may, enable human research involving physical interventions upon the

human body without consent; As such, those sub-parts are in violation of the APA, because they

are: Contrary to Constitutional Right(s)” (AC ⁋ 68) (brackets in original); (2) the “vicious

Grandfather clause” was enacted without notice and is “contrary to constitutional right[s],” (id. at

⁋ 69); (3) “Any part or parts of the Policy which individually, or in combination, enable Non-

consensual human testing is contrary to constitutional right(s),” (id. at ⁋ 70); (4) the Department

of Justice unreasonably delayed following up the NPRM with a final rule, (id. at ⁋ 73); (5) the

“Final Rule was arbitrary, capricious, and abused discretion, to not address, and discuss, that there

was an immediate need to protect citizens from Non-Consensual Classified human testing,” (id. at

⁋ 74); and (6) the “Rulemaking Agencies and OHRP have committed unreasonable delay to not

have conducted rulemaking concerning Classified Human Research,” (id. at ⁋ 75).5

Plaintiffs seek declaratory and injunctive relief to protect interests on behalf of others,

including “citizens,” “victims,” and “victim stakeholders” from the non-consensual human

research (AC ⁋⁋ 1, 2) and from the “vicious Grandfather clause” in the Revised Common Rule that

5 Plaintiff Joy Mack filed a nearly identical lawsuit in the United States District Court for the Northern District

of Mississippi alleging the same conduct against the same agencies named herein. See Mack v. United States of

America, et. al., Case No. 23-cv-0013 (N.D. Miss.). United States Magistrate Judge David A. Sanders filed a report

and recommendation recommending that Mack’s lawsuit be dismissed with prejudice. See Mack v. United States of

America, et. al., 2023 WL 5198780 (N.D. Miss. Jul. 5, 2023). Over multiple objections, United States District Court

Judge Glen H. Davidson adopted the report and recommendation in full. See Mack v. United States of America, et.

al., 2023 WL 5967556 (N.D. Miss. Sept. 13, 2023). The United States Court of Appeals for the Fifth Circuit affirmed

the dismissal with prejudice. See Mack v. United States of America, et. al., 2024 WL 1927942 (5th Cir. May 2, 2024.)

that many victims might become freed from the cruel day and night non-consensual testing….”

(Id. at ⁋ 1(E).)

II. DISCUSSION

A. Applicable Law

1. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1).

In discussing the relevant legal standards, the Court considers first its jurisdiction to hear

the case. Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a complaint

for “lack of subject-matter jurisdiction.” FED. R. CIV. P. 12(b)(1). “A case is properly dismissed

for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory

or constitutional power to adjudicate it.” Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211,

218 (S.D.N.Y. 2016) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

The Second Circuit has distinguished between two types of Rule 12(b)(1) motions: (i)

facial motions and (ii) fact-based motions. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56–

57 (2d Cir. 2016); see also Katz v. Donna Karan Co., 872 F.3d 114, 119 (2d Cir. 2017). A facial

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Rule 12(b)(1) motion is one “based solely on the allegations of the complaint or the complaint and

exhibits attached to it.” Carter, 822 F.3d at 56. A plaintiff opposing such a motion bears “no

evidentiary burden.” Id. Instead, to resolve a facial Rule 12(b)(1) motion, a district court must

“determine whether [the complaint and its exhibits] allege[ ] facts that” establish subject matter

jurisdiction. Id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.

2011) (per curiam)). And to make that determination, a court must accept the complaint’s

allegations as true “and draw[ ] all reasonable inferences in favor of the plaintiff.” Id. at 57

(internal quotation marks and citation omitted).

proffering evidence beyond the complaint and its exhibits.” Carter, 822 F.3d at 57; see also MMA

Consultants 1, Inc. v. Rep. of Peru, 719 F. App’x 47, 49 (2d Cir. 2017) (defining fact-based Rule

12(b)(1) motion as one where “the defendant puts forward evidence to challenge the factual

contentions underlying the plaintiff’s assertion of subject-matter jurisdiction”). “In opposition to

such a motion, [a plaintiff] must come forward with evidence of their own to controvert that

presented by the defendant, or may instead rely on the allegations in the[ir p]leading if the evidence

proffered by the defendant is immaterial because it does not contradict plausible allegations that

are themselves sufficient to show standing.” Katz, 872 F.3d at 119 (internal citations and

quotations omitted). If a defendant supports his fact-based Rule 12(b)(1) motion with “material

and controverted” “extrinsic evidence,” a “district court will need to make findings of fact in aid

of its decision as to subject matter jurisdiction.” Carter, 822 F.3d at 57. Here, Defendants bring a

facial Rule 12(b)(1) motion.

A related issue is that of standing. To bring a case or controversy within the subject matter

jurisdiction of federal courts, a plaintiff must have standing under Article III of the Constitution,

which requires “a ‘personal stake’ in the outcome ‘throughout the life of the lawsuit.’” Libertarian

Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 121 (2d Cir. 2020), cert. denied sub nom. Libertarian

Party v. Cuomo, 141 S. Ct. 2797 (2021) (quoting Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir.

1993)); see generally Thole v. U.S. Bank N.A., 590 U.S. 538, 540 (2020). The “Case” or

“Controversy” requirement means that only disputes that meet the “irreducible constitutional

minimum” of standing can be heard in a federal forum. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992); see also Warth v. Seldin, 422 U.S. 490, 498 (1975) (explaining that standing is a

“threshold question in every federal case, determining the power of the court to entertain the suit”).

To establish standing, a federal plaintiff must prove (i) an “injury in fact,” constituting an “invasion

not conjectural or hypothetical”; (ii) “a causal connection between the injury and the conduct

complained of”; and (iii) “it must be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.” Id. at 560–61 (internal quotation marks and citations

omitted).

Relevant here, “the United States, as sovereign, is immune from suit save as it consents to

be sued.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (internal quotation marks and citation

omitted). The United States, therefore, “cannot be sued at all without the consent of Congress,”

and “when Congress attaches conditions to legislation waiving the sovereign immunity of the

United States, those conditions must be strictly observed.” Block v. N.D. ex rel. Bd. of Univ. &

Sch. Lands, 461 U.S. 273, 287 (1983). “The doctrine of sovereign immunity is jurisdictional in

nature, and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall

within an applicable waiver.” See Makarova, 201 F.3d at 113 (citations omitted). “The shield of

sovereign immunity protects not only the United States but also its agencies and officers when the

latter act in their official capacities.” Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005) (citing

FDIC v. Meyer, 510 U.S. 471, 475 (1994)). That is because actions against federal officers in their

official capacities are “essentially a suit against the United States.” Robinson v. Overseas Mil.

Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

2. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6).

Defendant also argues that Plaintiffs’ claims are inadequately pleaded. Under Rule

12(b)(6), a defendant may seek dismissal of a plaintiff’s action for “failure to state a claim upon

which relief can be granted.” FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss

under Rule 12(b)(6), a court must “draw all reasonable inferences in [p]laintiff[‘s] favor, ‘assume

all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to

Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)); see also Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). A plaintiff is entitled to relief if the complaint contains “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly

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does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge

[plaintiff’s] claims across the line from conceivable to plausible.’” (quoting Twombly, 550 U.S. at

570)). Moreover, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s

liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

B. Analysis

Plaintiffs’ Amended Complaint seeks declaratory and injunctive relief and requests that the

Court: (1) find invalid the “vicious Grandfather clause,” (AC ⁋ 69); (2) declare portions of the

Revised Common Rule unconstitutional, (see id. at ⁋ 70); (3) modify the Revised Common Rule,

(see id. at ⁋ 72); (4) make a finding that the Department of Justice was unreasonably delayed in

following up the NPRM with a final rule, (see id. at ⁋ 73); (5) add new vocabulary terms to the

Revised Common Rule, (see id. at ⁋ 76); and (6) “[g]rant a temporary restraining order and/or

preliminary injunction upon the Final Rule,” (id. at 32, ⁋⁋ 1, 3). After considering its ability to

hear the case in the first instance, the Court proceeds to address the pleading issues raised by

Defendants seriatim.

1. The Court Grants Defendants’ Rule 12(b)(6) Motion.

a) Plaintiffs’ Lack Article III Standing to Bring this Lawsuit.

To begin with, Plaintiffs seek declaratory and injunctive relief to protect interests on behalf

of others, including “citizens,” “victims,” and “victim stakeholders” from the non-consensual

Rule that allows human research programs to continue, “thereby robbing victims of the hope and

actuality that many victims might become freed from the cruel day and night non-consensual

testing….” (Id. at ⁋ 1(E).) It is well settled, however, that pro se plaintiffs cannot bring an action

on behalf of other, unidentified individuals. See Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.

1998) (“[B]ecause pro se means to appear for one’s self, a person may not appear on another

person’s behalf in the other’s cause.”). Accordingly, to the extent allegations in the Amended

Complaint are brought on behalf of unidentified individuals or “seek to attempt to represent some

of the interests of victims of [o]ngoing alleged and actual non-consensual human testing,” the

Court dismisses those claims with prejudice. In any event, even assuming Plaintiffs seek to act on

their own behalf, they do not satisfy any of Article III’s standing components.

(1) Injury-in-Fact.

To demonstrate they have suffered an injury-in-fact, Plaintiffs’ affidavits seek to describe

“injuries from the alleged/actual non-consensual apparent human research related activities and

present the likelihood that the Defendant U.S. Government agencies or other agencies of

Defendant U.S.A. are conducting this activity.” (Pls.’ Opp. at 3.) For example, Plaintiffs allege

injuries of illegal interference with—and surveillance of—their bodily and mental functions. See,

e.g., Pls.’ Exs. 004, 011 (“In 2010 I had incidents of helicopters harassing or doing harm”... [On

April 3, 2010, while going for a walk,] “a very small helicopter appeared and was so close I was

able to see two men dressed all in black and the one closest to me aimed what looked similar to a

gun at me” … “another time a black helicopter came extremely close to my house…”); see also

Pls.’ Ex. 022 (“Since the beginning of experimentation on me, I have experienced unspeakable

violations of my bodily autonomy. And since, I have had round the clock voice to skull (V2K)

transmission into my head, while also being forced to involuntarily share every thought through

memories to trigger recall of more memories.”); id. (“I have been continually stalked, followed

and assaulted regularly with directed energy weapons of different types and results while living in

Missouri, Georgia, and Colorado, in seven different homes, while on vacations in other states, in

Mexico and Canada, in hotels, in my car, and on commercial airlines.”); Pls.’ Ex. 036 (“In 2002, a

surgeon informed me he was forced to place a bio-chip in my chest while I was under anesthesia…

Dr. James Sanger stated he was forced to put this chip in my body but refused to tell me who forced

him or the purpose of the chip.”); Pls.’ Ex. 045 (“Employees or agents of the U.S. Government

began to target me in an ‘overt’ manner on October 15, 1990, when they began using

electromagnetic-signals transmitted voice contents-clearly understandable and ascribable as such-

to my unequipmented head.”); Pls.’ Ex. 062 (“Another weapon I have endured for over two

decades is the military’s Voice to Skull (VSK) technology, which is mentally disruptive and

intimidate, threatens and tries to manipulate my life.”). In some cases, Plaintiffs provided

photographs to substantiate their alleged mental and physical injuries.6 In sum and substance,

Plaintiffs claim that they are being subjected to “violations of the security of one’s person, and the

privacy of one’s internal bodily processes (including one’s thoughts) by high-tech electromagnetic

signals monitoring and assault/harassment of the human body and brain, typically day and night.”

(AC ⁋ 1(F).)

Plaintiffs’ theory of harm does not suffice to plausibly allege an injury-in-fact. An “injury

in fact” must be an “invasion of a legally protected interest which is (a) concrete and particularized,

6 See Pls.’ Ex. 017 (photograph of an alleged burn mark on an arm from August 6, 2011); see also Pls.’ Exs.

018, 019 (photographs of a plane in the sky on August 23, 2009); Pls.’ Ex. 021 (photograph of a man wearing

sunglasses and driving a car on October 13, 2012).

quotations and citations omitted). Plaintiffs’ above-described allegations are entirely “conjectural”

and “hypothetical” rather than “actual” and “concrete.”8 Id. And as discussed below, Plaintiffs

allegations “rise to the level of the irrational or the wholly incredible” and can only be described

as the “product of delusion or fantasy,” not an injury-in-fact. Khalil v. United States, No. 17-cv-

2652, 2018 WL 443343, at *4 (E.D.N.Y. Jan. 12, 2018).

(2) Traceability and Redressability.

The requirements of traceability and redressability “often travel together.” Support

Working Animals, Inc. v. Governor of Fla., 8 F.4th 1198, 1201 (11th Cir. 2021) (citing 13A

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 3531.5 (3d ed. 2021)); see also Brooklyn Branch of Nat’l Ass’n for the

Advancement of Colored People v. Kosinski, 2024 WL 2846687, at *10 (S.D.N.Y. May 30, 2024).

Traceability requires that the injury is “fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not before the court.”

Lujan, 504 U.S. at 560 (alterations adopted). This requirement “does not create an onerous

standard.” Ateres Bais Yaakov Acad. of Rockland v. Town of Clarkstown, 88 F.4th 344, 352–53

(2d Cir. 2023). For example, “[a] defendant’s conduct that injures a plaintiff but does so only

indirectly, after intervening conduct by another person, may suffice for Article III standing.”

Carter, 822 F.3d at 55–56. Likewise, a plaintiff can show traceability where the injury suffered is

“produced by [the] determinative or coercive effect” of the defendant’s conduct “upon the action

7 “Concreteness” refers to an injury that is “real, and not abstract.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340

(2016) (internal quotation marks omitted).

8 Plaintiffs’ affidavits detailing covert or electromagnetic surveillance over a period of decades in numerous

locations highlight the entirely “conjectural and hypothetical” nature of their allegations, rather than an “actual” or

“concrete” injury. Lujan, 504 U.S. at 560.

“fairly traceable,” the plaintiff must demonstrate a causal nexus between a defendant’s actions and

the alleged injury. Lujan, 504 U.S. at 560 (alterations adopted).

To satisfy the redressability element of Article III standing, “a plaintiff must show that it is

‘likely, as opposed to merely speculative, that the alleged injury will be redressed by a favorable

decision.’” Soule v. Conn. Ass’n of Schs., Inc., 90 F.4th 34, 47 (2d Cir. 2023) (en banc) (quoting

Lujan, 504 U.S. at 561) (internal alteration omitted)). “A plaintiff makes this showing when the

relief sought ‘would serve to ... eliminate any effects of’ the alleged legal violation that produced

the injury in fact.” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–06

(1998)). Article III therefore requires only that a judgment for Plaintiff “‘would at least partially

redress’ the alleged injury.” Id. at 48 (quoting Meese v. Keene, 48 U.S. 465, 476 (1987)). In this

case, the traceability and redressability components of Article III standing are not satisfied either.

As for traceability, Plaintiffs fail to establish any link between Defendants’ adoption of the

Revised Common Rule and an alleged injury. (See generally AC.) Indeed, Plaintiffs fail to identify

which, if any, of the named Defendant government agencies are responsible for the claimed

monitoring and/or day and night surveillance. (See id. at ⁋ 4 (“AND additionally, we are in a rare

sub-category of ‘interfered-with Pro Se Plaintiffs where it is the actual Defendants themselves (or

their contract-workers) who are the human ‘actors’ who are conducting the constitutional and

human rights violations which the Federal rule plausibly serves to enable, and which the Federal

rule failed to carefully prevent.”).) Moreover, nothing in Plaintiffs’ affidavits suggest that alleged

surveillance is “fairly traceable to the challenged action of” any named defendant in this case.

Lujan, 504 U.S. at 560 (internal quotations and alterations omitted). Although Plaintiffs complain

that DOJ has not adopted “the amended/revised core policy for human subjects protections,” (see

Pls.’ Opp. at 15), none of the detailed affidavits attributed this alleged conduct to DOJ. Indeed,

defendant in this case.9 As a result, Plaintiffs fail to satisfy the traceability element of Article III

standing.

As for redressability, Plaintiffs’ claims of on-going, non-consensual human testing derive

from delusion or fantasy. As such, Plaintiffs cannot plausibly show a “substantial likelihood” that

their alleged injuries would be redressed by a favorable decision or by changes in the Revised

Common Rule. Duke Power Co. v. Carolina Environmental Study Grp., Inc., 438 U.S. 59, 74–75,

and n.20 (1978). Indeed, in an action with virtually identical allegations against the same

defendants—brought in the District Court for the Northern District of Mississippi by Plaintiff Joy

Mack (who was dismissed from this case)—the court dismissed the complaint as not “plausible.”

See Mack v. United States, et al., No. 23-cv-0013, 2023 WL 5198780, at *3 (N.D. Miss. Jul. 5,

2023), report and recommendation adopted, No. 23-cv-0013, 2023 WL 5967556 (N.D. Miss. Sept.

13, 2023) (“The plaintiff presented as a pleasant and sincere witness, but the story she told of a

shadowy, massive conspiracy, spanning multiple decades, and states, is nevertheless simply not

plausible. The undersigned must recommend that the complaint be dismissed. Neither in her

original or amended complaints with attached exhibits nor in her testimony, has Mack presented

plausible claims. Mack claims to have been monitored, harmed, and subjected to medical

procedures to implant and remove monitoring devices over multiple decades and states. . . she is

unable to provide any factual support to give substance to the shadowy, malign government

9 The only allegation that comes close is Plaintiff Vandergriff’s “belie[f]” that the FBI was involved (1)

because a friend told him about an experience that the friend had at an unspecified time and (2) also because Plaintiff

allegedly found a FBI “keystroke-logging” program on his computer at an unspecified time. Pls.’ Ex. 022. Even

though a plaintiff’s burden to allege traceability between the injury and the challenged act “is relatively modest” at

the pleading stage, Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013), superseded on other grounds by statute,

Twitter, Inc. v. Taamneh, 598 U.S. 471, 483 (2023) (quoting Bennett v. Spear, 520 U.S. 154, 171 (1997)) (internal

quotation marks omitted), Plaintiff Vandergriff’s “belie[f]” does not demonstrate a causal nexus between a defendant’s

actions and an alleged injury. See Lujan, 504 U.S. at 560.

fail to satisfy the redressability element of Article III standing too.

Because Plaintiffs do not satisfy any of Article III’s standing components, the Court can

dismiss the Amended Complaint with prejudice for lack of subject matter jurisdiction under Rule

12(b)(1) without going any further.

b) Sovereign Immunity.

Plaintiffs seem to suggest that Defendants violated their Fourth Amendment right to be free

from unreasonable search and seizure, “the Fifth Amendment’s proscription against depriving one

of life, liberty or property without due process, and the Eighth Amendment’s prohibition against

the infliction of cruel and unusual punishment.” (AC ⁋⁋ 49, 65, 70, 71.)

As mentioned, “the United States, as sovereign, is immune from suit save as it consents to

be sued.” Lehman, 453 U.S. at 160 (internal quotation marks and citation omitted). “Absent a

waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Meyer,

510 U.S. at 475. “The shield of sovereign immunity protects not only the United States but also

its agencies and officers when the latter act in their official capacities.” Dotson, 398 F.3d at 177

(citing Meyer, 510 U.S. at 475). That is because actions against federal officers in their official

capacities are “essentially a suit against the United States.” Robinson, 21 F.3d at 510. It is the

plaintiff’s burden to demonstrate that sovereign immunity has been waived. See Makarova, 201

F.3d at 113.

Here, the Amended Complaint names as defendants several federal agencies and the head

of each agency in an official capacity. Any constitutional claims brought against any of the named

agencies or the agency heads in an official capacity are dismissed on the grounds of sovereign

immunity. See Spinale v. USDA, 621 F. Supp. 2d 112, 120 (S.D.N.Y. 2009) (“The basic rule of

federal sovereign immunity is that the United States cannot be sued at all without the consent of

or federal officers acting in their official capacities, because an action against them is essentially a

suit against the United States.”) (internal citations, alterations, and quotations omitted); see also

Platsky v. C.I.A., 953 F. 2d 26, 28 (2d Cir. 1991) (“[J]urisdictional limitations permit a plaintiff to

sue only the federal government officials responsible for violating the plaintiff’s constitutional

rights; a plaintiff cannot sue the agency for which the officials work.”).

To the extent Plaintiffs allege that the Revised Common Rule is arbitrary and capricious

because it violates constitutional rights (see AC ⁋⁋ 69, 72), “the Second Circuit has rejected that

view of the APA.” Brezler v. Mills, 86 F. Supp. 3d 208, 219 n.9 (E.D.N.Y. 2015) (citing Furlong

v. Shalala, 156 F.3d 384, 394 (2d Cir. 1998) (failure to comply with the APA does not give rise to

due process claim, because “a statute that simply provides a standard for review of agency action

cannot furnish the substantive basis for a claim of entitlement to a property interest. The APA is

merely a procedural vehicle for review of agency action; it does not confer a substantive right to

be free from arbitrary agency action.”)

c) Plaintiffs Are Not Entitled to Jurisdictional Discovery.

Whether to allow jurisdictional discovery is “a decision as to which a district court enjoys

substantial discretion.” Reed Int’l, Inc. v. Afghanistan Int’l Bank, 657 F.Supp.3d 287, 298

(S.D.N.Y. Feb. 21, 2023); see also Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 446 (2d

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Cir. 2019) (“[T]he district court has considerable latitude in devising the procedures it will follow

to ferret out the facts pertinent to jurisdiction.” (quoting Foremost-McKesson, Inc. v. Islamic

Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990))). Yet, “a court ... does not abuse its discretion

in denying jurisdictional discovery ‘if the party seeking discovery cannot articulate a reasonable

basis for the court first to assume jurisdiction.’” Beierwaltes v. L’ Off. Federale De La Culture De

La Confederation Suisse, 999 F.3d 808, 828 (2d Cir. 2021) (quoting Arch Trading Corp. v.

jurisdictional discovery if the record shows that the requested discovery is not likely to produce

the facts needed to withstand a Rule 12(b)(1) motion.” Haber v. United States, 823 F.3d 746, 753

(2d Cir. 2016) (quoting Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009)); see also

Gualandi v. Adams, 385 F.3d 236, 244–45 (2d Cir. 2004) (affirming denial of jurisdictional

discovery at the motion to dismiss stage where plaintiffs “were unable to demonstrate that

additional discovery was needed in order to decide the jurisdictional issue”). Indeed, “a party

opposing a Rule 12(b)(1) motion cannot rest on the mere assertion that factual issues may exist.”

Exch. Nat. Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976). Moreover,

“[a] party seeking jurisdictional discovery, like a party seeking other kinds of discovery, bears the

burden of showing necessity.” Molchatsky v. United States, 778 F. Supp. 2d 421, 438 (S.D.N.Y.

2011), aff’d, 713 F.3d 159 (2d Cir. 2013) (internal quotation marks and citation omitted).

Plaintiffs here have not met that burden, so the Court denies their request that the Court

delay deciding Defendants’ motion to dismiss until after a period of discovery.10 (See Pls.’ Opp.

at 4.) Here, Plaintiffs seek: (1) “at least, admission or confirmation by Defendants: for each

Plaintiffs, that he/she has been a subject of U.S. Government conducted or sponsored non-

consensual human testing; hopefully further: that the testing upon him/her involves

electromagnetic-signals interventions upon their physical human body; further: approximately

how many citizens have been subjected to non-consensual, day and night, human testing within

the past year ...[,]” (Pls.’ Opp. at 5); (2) the “regulatory mechanisms by which informed consent

has been waived or omitted for this testing… to establish that the rulemaking enabled continuance

of harm (or degree of harm) [the 2nd component of Standing], as well as the likelihood that the

10 Plaintiff Rabin has apparently submitted requests to the government under the Freedom of Information Act.

5 U.S.C.§ 552 (“FOIA”), but he does not specify what, if any, documents or the number of documents he has received.

(See AC ¶ 12.)

government employee if she confirmed or attempted to confirm that the “non-consensual classified

human research alleged by victims was in fact taking place,” (id. at 7); (4) information from the

surgeon who allegedly told Plaintiff Waller that he was ordered to implant a biochip in her and

release that doctor from any “secrecy obligation” to the “U.S. Government concerning that matter,”

(id.); and (5) information about Office for Human Research Protections’ interpretation of two parts

of the Revised Common Rule, (id. at 7–8).

In the Court’s view, Plaintiffs’ allegations, as discussed below, are fanciful and delusional.

Moreover, no amount of discovery into the above suggested items—to the extent they even exist—

would lead to Plaintiffs’ ability to establish Article III standing. Indeed, Plaintiffs do not claim

that any of their requested discovery relates to alleged violations of rulemaking under the APA.11

Rather, Plaintiffs seek to prove their fanciful, delusional allegations that they are being covertly

monitored by some unnamed government entity. Plaintiffs are thus not entitled to jurisdictional

discovery because “the record shows that the requested discovery is not likely to produce the facts

needed to withstand a Rule 12(b)(1) motion.”12 Haber, 823 F.3d at 753 (internal quotations and

citations omitted).

2. The Court Would Also Grant Defendants’ Rule 12(b)(6) Motion.

Considering Plaintiffs cannot satisfy any of Article III’s standing components, the Court

need not proceed to the adequacy of their pleadings. For the sake of completeness, however, the

Court considers Defendants’ arguments in support of dismissal of Plaintiffs’ APA claim under Rule

11 Although Plaintiffs are not entirely clear about their request for OHRP’s interpretations of the Revised

Common Rule, they may access the public website for the United States Department of Health and Human Services

that contains a wealth of information about the Revised Common Rule.

12 Plaintiffs cite two cases for the proposition that this Court should allow discovery before it decides a motion

to dismiss. (See Pls.’ Opp. 8.) Neither case is binding on this Court nor involves the APA. See Ignatiev v. United

States, 238 F.3d 464 (D.C. Ct. App. 2001); -se-e -al-so- -Lo-p-es- v-. -Je-t S-e-tD-C-, -L-LC-, 4 F. Supp. 3d 238 (D.D.C. 2014)

Court agrees with Defendants’ arguments and would grant their motion to dismiss on the merits

too.

a) Plaintiffs Fail to State a Claim Under the APA.

The APA establishes the procedures federal administrative agencies use for “rule making,”

defined as the process of “formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5); see also

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 95 (2015). “Rule” is defined broadly to include

“statement[s] of general or particular applicability and future effect” that are designed to

“implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4); see also Perez, 575 U.S. at

95–96.

The APA requires agencies to publish proposed “rules” in the Federal Register and seek

public comment before settling on a final version. 5 U.S.C. §§ 553(b)–(c). Specifically, before

promulgating a “rule,” an agency must publish a “[g]eneral notice of proposed ... rule making ...

in the Federal Register” and provide the public with “an opportunity to participate in the rule

making through submission of written data, views, or arguments.”13 Id.; see also Saget v. Trump,

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375 F. Supp. 3d 280, 362 (E.D.N.Y. 2019). “An agency must consider and respond to significant

comments received during the period for public comment.” Perez, 575 U.S. at 96 (emphasis

added). Such “[c]omments must be significant enough to step over a threshold requirement of

materiality before any lack of agency response or consideration becomes of concern.” Vermont

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978). Indeed,

“the notice-and-comment provision of the APA … has never been interpreted to require an agency

13 Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step procedure for so-called “notice-and-comment

rulemaking.” Perez, 575 U.S. at 96. First, the agency must issue a “[g]eneral notice of proposed rule making,”

ordinarily by publication in the Federal Register. 5 U.S.C. § 553(b). Second, if “notice [is] required,” the agency must

“give interested persons an opportunity to participate in the rule making through submission of written data, views, or

arguments.” 5 U.S.C. § 553(c). Third, when the agency promulgates the final rule, it must include in the rule’s text

“a concise general statement of [its] basis and purpose.” 5 U.S.C. § 553(c).

matter how insubstantial.” Am. Mining Cong. v. U.S. EPA, 907 F.2d 1179, 1188–89 (D.C. Cir.

1990) (alterations adopted); see also New York v. U.S. Dep’t of Health & Hum. Servs., 414 F.

Supp. 3d 475, 556 (S.D.N.Y. 2019) (holding that a federal agency does “not have an obligation to

respond to every comment”) (internal quotation marks omitted).

Relevant here, HHS published an advanced notice of proposed rulemaking (“ANPRM”)

seeking public comments on seventy-four specific questions about revisions to the Common Rule.

See 76 Fed. Reg. 44512, 44529 (July 26, 2011). The ANPRM also specified that in addition to

responding to the specific questions, “general comment is invited on the current system of

protections for human research subjects as implemented through the Common Rule.” Id. Further,

HHS published a Notice of Proposed Rulemaking (“NPRM”), which sought additional public

comments. See 80 Fed. Reg. 53933 (September 8, 2015).

Even if Plaintiffs could establish standing, which they cannot, Plaintiffs’ allegations that

Defendants violated the APA are vague, conclusory, and simply mimic the statutory language. For

example, Plaintiffs claim that the “Final Rule does not reasonably address the rulemaking

administrative records being filled with a preponderance of consistent allegations of a yet ongoing

modern day ‘high tech Tuskegee experiment.’” (AC ⁋ 1(D).) They further allege—in a wholly

implausible allegation, which merely includes some of the APA’s language—that the “current ‘high

tech’ non-consensual Human-testing program conducts remotely-delivered interventions upon the

human body and neurological systems, and the human brain. [arbitrary, capricious, and an abuse

of discretion; and inconsistent with the legal history, whereby the National Research Act of 1974

was brought about in reaction to the abuses of the Tuskegee Experiments, and sought to make

protective human research policies to prevent related future abuses and to stop present abuses when

rulemaking or regulatory bodies learn of them;].” Id. (alterations and quotations in original).

procedures: notice and publication in the Federal Register, as well as soliciting public comments.

Indeed, Plaintiffs state that they actively participated in the rulemaking process. (See AC ⁋ 10)

(Plaintiff Rabin “submitted written public comment to a public comment period of the Presidential

Commission for the Study of Bioethical Issues. . . [.]”); see also id. at ⁋ 14 (“Plaintiff Catherine E.

Ryan. . . participated actively in the rulemaking and submitted Public Comments to each of the

ANPRM and NPRM”); id. at ⁋ 15 (“Plaintiff Lisa Waller … participated diligently in the

rulemaking, and submitted Public Comments to each of the ANPRM and the NPRM.”);14 id. at ⁋

16 (“Plaintiff Peter D. Rosenholm. . . participated actively in the NPRM stage of the rulemaking,

and submitted Public Comment to the NPRM.”); id. at ⁋ 17 (“Plaintiff J. Chad Vandergriff. . .

submitted a written Comment to the Bioethics Commission during their 2011 public comment

period, and submitted a Public Comment to the NPRM.”); id. at ⁋ 18 (“Joy N. Mack. . . participated

in the NPRM rulemaking with her NPRM Public Comment.”); id. at ⁋ 19 (“Additionally, Plaintiffs

Norman Rabin, Catherine Ryan, and Peter Rosenholm, were among approximately 5 victims who

attended the Dec. 3, 2015 meeting of SACHRP [“‘Sack-Harp’, the HHS Secretary’s Advisory

Committee on Human Research Protections] during the time of the Federal rulemaking, and each

delivered spoken and/or written comment to that meeting.”)).15

Seemingly in attempt to get around this reality, Plaintiffs ask this Court to determine

whether certain public comments were part of the Administrative Record. (See Defs.’ Mot. at 15.)

Confoundingly, however, Plaintiffs also assert in their Amended Complaint that the public

comments are part of the Administrative Record and are “findable online.” (AC ⁋⁋ 20, 52, 53.)

14 Plaintiff Lisa Waller is formerly known as Lisa Becker. (See AC ⁋ 15.) She spoke at two public hearings

under the name Lisa Becker. (See Defs.’ Mot. at 15 n.5.)

15 The videotaped public comments are available at

https://www.hhs.gov/ohrp/sachrpcommittee/meetings/2015-december-3-4/index.html with the meeting dates of

December 3 and December 4, 2015 (last visited, July 8, 2024).

comments was not part of the record. But this mere speculation does not require a review of the

entire record.

In any event, as reported in the Federal Register, thousands of public comments were

considered before the enactment of the Revised Common Rule. See 80 Fed. Reg. 53933, 54033

(“Public comments on the ANPRM initially were requested by September 26, 2011; however, in

response to public requests for an extension, the comment period was extended until October 26,

2011. A total of 1,051 comments were received, with many commenters responding to all 74

questions posed.”) (emphasis added); see also 82 Fed. Reg. 7149, 7151 (“The revisions to the

Common Rule are based on a variety of sources of public, stakeholder, and expert comments and

advice, including comments received on the 2011 ANPRM and the 2015 NPRM.”); 82 Fed. Reg.

7152 (“The NPRM received more than 2,100 public comments, the majority of which were from

people writing in their individual capacity.”) (emphasis added).

Plaintiffs allege that Defendants “ignored numerous, rational[,] and reasonable ‘Victim

Stakeholder’ Public Comments. . . to not be subjected to violations of the security of one’s person,

and the privacy of one’s internal bodily processes (including one’s thoughts) by hightech

electromagnetic signals monitoring and assault/harassment of the human body and brain, typically

day and night.”16 (AC ⁋ 1(F).) Plaintiffs refer to the transcripts of public comments made at public

hearings that are found at: (1) https://bioethicsarchive.georgetown.edu/pcsbi/node/203.html; and

(2) https://bioethicsarchive.georgetown.edu/pcsbi/node/225.html. (See id. at ⁋13; see also

Leonardo Decl., Exs. B, C.) After reviewing the transcripts, the Court concludes that many of the

16 Relatedly, Plaintiffs also allege that at least 75 people complained during the NPRM public comments about

being “experimented upon without consent.” (AC ⁋ 49.)

to “respond to every comment, or to analyse every issue or alternative raised by comments, no

matter how insubstantial.” Am. Mining Cong., 907 F.2d at 1187–88 (alterations adopted). Under

the APA, the only requirement is that the agency consider comments that are “significant.” Perez,

575 U.S. at 96. “Significant comments are those ‘which, if true, raise points relevant to the

agency’s decision and which, if adopted, would require a change in an agency’s proposed rule.’”

City of Portland v. EPA, 507 F.3d 706, 714–15 (D.C. Cir. 2007) (quoting Home Box Office, Inc.

v. FCC, 567 F.2d 9, 35 n.58 (D.C.Cir.1977) (emphasis omitted)). Assuming the public comments

here are even true, they are not rational, material, or “significant enough to step over a threshold

requirement of materiality before any lack of agency response or consideration becomes of

concern.” Vermont Yankee Nuclear Power Corp., 435 U.S. at 553. Simply put, the public

comments Plaintiffs cite––even if analyzed––would not have changed the provisions of the

proposed Revised Common Rule. Here, Defendants published notice of the proposed rulemaking

twice and allowed for public comments under the APA. Plaintiffs make no claims to the contrary.

17 See, e.g., Leonardo Decl., Ex. B at 4 (“I strongly believe that I have been targeted for the experimentation of

brain research since September 2008, without my consent. They are controlling my mind and using electronic remote

control device to send instruction. In the past two and a half years, I have been subjected to constant electric shock, a

sleep disturbance, a sleep deprivation, short breaths, severe localized pain into various parts of my body, telephone

and bell rings in my ears, heat waves through my body, horrifying dreams, creating sudden fear and worries in my

mind.”); see also id. at 5 (“I am a part of the group that is here today representing those who are receiving the

electromagnetic torture and even my daughter at five months old. . . [.] I believe she is also a victim of the

electromagnetic torture.”); id. at 6 (“I am an eight year victim survivor of assaults by directed energy weapons. The

torture I have experienced consists of body overheating, body extremely cold, seizures, heart pain, earaches, itching

behind eyes, burning behind eyes, swelling, headaches, involuntary movement of my limbs, exhaustion, speeding and

heart racing, hair coming out by the handfuls as if I have had chemotherapy, mind paralysis, being hypnotized or being

placed in a trance-type state, being tracked by a drone or satellite, controlled dreams, sleep deprivation, V2K which is

voice to skull, projected sound, extreme muscle spasms and extreme muscle cramps; being made to fall down; blue

circles around the pupils of my eyes and I am here and you can look at them if you like; low frequency noises in my

home; high frequency noises in my home; sexual stimulation.”); id. at 8–9 (Plaintiff Lisa Waller stated: “I speak for

many when I say we have suffered long enough. My personal experience has been ten years. I have been vilified. I

have been tortured. I have burns on my body.”); id. at 10 (Plaintiff Peter Rosenholm stated: “Like all the others, we

go through this every day, at least 14 years now of being tortured. It is nonconsensual human experimentation. It is

remote. It is covert. It is hard to prove it a lot of times. Many of my attacks were microwave weapons, MEDUSA is

one”); Ex. C, at 4 (“I’ve been a victim of ongoing nonconsensual human subject experimentation for my entire adult

life, and possibly may have been a victim since my childhood. I have been targeted with ongoing microwave weapons,

as well as drugging with neurotoxic contaminants covertly placed on articles of clothing, as well as on other personal

possessions.”).

and capricious, an abuse of discretion, or contrary to law.

Plaintiffs also allege that Defendants did not provide notice about the “grandfather”

provision. (See Defs.’ Mot. 18.) That is not true. Contrary to Plaintiffs allegations, a specific

reference to notice about the “grandfather” clause is in the ANPRM. See 76 Fed. Reg. 44512,

44524 (“Question 52: Should the new consent rules be applied only prospectively, that is, should

previously existing biospecimens and data sets be “grandfathered” under the prior regulatory

requirements? If so, what are the operational issues with doing so?”); -se-e- a-ls-o 80 Fed. Reg. 53933

(“Commenters noted concerns about imposing consent requirements on the use of biospecimens

already collected that is, not grandfathering in such resources––especially if these biospecimens

are non-identified.”). The NPRM also described the transition provisions including that: “(1)

Research initiated prior to the compliance dates. Ongoing human subjects research in which

human subjects (as defined by this policy) were involved prior to the compliance dates for the

cited provisions need not comply with the additional requirements...[.]” See 80 Fed. Reg. 54046

(September 8, 2015).

Plaintiffs also erroneously claim that there was no notice regarding the transition

provisions. (See AC ⁋ 69(5)). The Revised Common Rule specifically refers to public comments

received about the transition provisions. See 83 Fed. Reg. 28497, 28502 (“As with the comments

on the interim final rule, a few comments expressed concern with the waiver provision at §

___.101(i) allowing federal departments and agencies to waive some or all provisions of the

Common Rule (which could allow research to be conducted on people without their informed

consent.”).” The notice in the Federal Register refers to having received comments and also

explains:

We are not contemplating modifying the carve-outs from the definition of

research. Regarding the carve-out from the definition of research pertaining

the January 19, 2017 final rule preamble noted that “[t]hese authorized

operational activities, as determined by each agency, do not include research

activities as defined by the Common Rule, nor have they ever in the past

been considered regulated by the Common Rule. This category of activity

is removed from the definition of research to make explicit that the

requirements of the final rule do not apply to authorized operational

activities in support of national security missions. This clarification is not

intended to narrow the scope of the Common Rule.

83 Fed. Reg. 28497, 28502.

Finally, Plaintiffs allege “unreasonable delay” by: (1) DOJ in not “signing on” to the

Revised Common Rule and (2) by Defendants in not enacting a rule about Classified Human

Research. (AC ⁋ 75) (“By now, the Rulemaking Agencies and OHRP have committed an

unreasonable delay to not have conducted rulemaking concerning Classified Human Research.”).

Even assuming arguendo Plaintiffs could establish standing, which they cannot, 5 U.S.C. § 706(1)

does not allow private parties to seek wholesale improvements to agency programs. See Lujan v.

Natl. Wildlife Fed’n, 497 U.S. 871, 891 (1990) (noting that “programmatic improvements” must

be sought in Congress or at the agency and not through the courts under the APA). Further, a

“claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a

discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55,

64 (2004). Plaintiffs have not made any such allegations. Moreover, contrary to Plaintiffs’

allegations, the Revised Common Rule in fact addressed “Classified Human Research” and

contains a carve-out provision for such research. See 82 Fed. Reg. 7149, 7177 (January 19, 2017).

b) The Doctrine of Res Judicata Bars Plaintiff Rabin’s Claims.

The doctrine of res judicata, also known as claim preclusion, bars re-litigation if “(1) the

previous action involved an adjudication on the merits; (2) the previous action involved the same

parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or

could have been, raised in the prior action.” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 285

stemming from satellite surveillance, so he is barred from doing so again. Plaintiff Rabin’s prior

claims against the government stemming from the same alleged monitoring have been previously

considered and dismissed by this Court. See Rabin v. U.S. Dept. of State, C.I.A., 980 F. Supp. 116

(E.D.N.Y. 1997), aff’d Rabin v. United States, 210 F.3d 355 (2d Cir. 2000) (“The 1993 action, like

the present case, alleged constitutional violations resulting from ‘satellite(s) based signals-

assaults,’ ‘assaultive signal-monitorings,’ and ‘biofrequency voice-transmissions,’ and sought

money damages and a permanent injunction. The district court dismissed the 1993 action against

the United States for lack of subject matter jurisdiction based on federal sovereign immunity.”).

Indeed, the Second Circuit held that Plaintiff Rabin’s claims were barred by res judicata. See

Rabin, 210 F.3d at 355. Here too, Plaintiff Rabin’s attempts to relitigate his allegations of

constitutional violations stemming from satellite surveillance are barred.

c) There is No Private Right of Action Under the Revised Common

Rule.

Seeking declaratory and injunctive relief, Plaintiffs request that the Court, in part: (1)

declare portions of the Revised Common Rule unconstitutional, (see AC ⁋ 70); (2) modify the

Revised Common Rule, (see id. at ⁋ 72); and (3) add new vocabulary terms to the Revised

Common Rule, (see id. at ⁋ 76). Assuming arguendo again that Plaintiffs have standing to sue

(which they do not), there is no private right of action under the Revised Common Rule to directly

challenge and change its provisions. See Thomas v. Catlin, 141 F. App’x 673, 674 (9th Cir. 2005)

(“The district court properly held [plaintiff] failed to state a claim under 45 C.F.R. §§ 46.101, et

seq., the federal statute regulating research involving human subjects, because the statute does not

confer a private right of action.”) (citing Alexander v. Sandoval, 532 U.S. 275, 286 (2001)

(“[P]rivate rights of action to enforce federal law must be created by Congress.”).)

This Court can also dismiss Plaintiffs’ claims because they “rise to the level of the irrational

or the wholly incredible” and can only be described as the “product of delusion or fantasy.” Khalil,

2018 WL 443343, at *4 (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The Court may

have “no basis to doubt the sincerity of Plaintiff’s beliefs[, but] the allegations exhibit a level of

delusional paranoia that makes the continuation of this vexatious litigation an unjustified

expenditure of public and private resources.” Kraemer v. City of N.Y., No. 19-cv-6671, 2020 WL

1974204, at *4 (S.D.N.Y. Apr. 24, 2020). The Court has “no obligation to entertain pure

speculation and conjecture.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011). This Court may

dismiss a complaint “when the factual contentions are clearly baseless, such as when allegations

are the product of delusion or fantasy. Or, second, it may dismiss when the claim is based on an

indisputably meritless legal theory.” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (internal

citations and quotations omitted). “A finding of factual frivolousness is appropriate when the facts

alleged rise to the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33.

Here, Plaintiffs’ allegations are clearly frivolous and baseless, and the Court would dismiss

the Amended Complaint under 28 U.S.C. § 1915 (e)(2)(B) even if it concluded Plaintiffs had

Article III standing to sue. Plaintiffs’ claim that they are “subjected to violations of the security of

one’s person, and the privacy of one’s internal bodily processes (including one’s thoughts), by

high-tech electromagnetic signals monitoring and assault/harassment of the human body and brain,

typically day and night” and “are being physically afflicted by Harms which are taking place

plausibly due to the here alleged unjust enactments of the Final Rule” are certainly delusional.

(AC ⁋⁋ 1(F), 2.) Accordingly, the Amended Complaint could be dismissed with prejudice on this

alternative ground because it is “replete with fantastic and delusional scenarios.” Mecca v. United

States, 232 F. App’x 66, 66 (2d Cir. 2007).

For the above reasons, Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint is

GRANTED in its entirety. Plaintiffs’ Amended Complaint is DISMISSED with prejudice.

Plaintiffs’ Motion for Extension of Time to Re-File Their Late Affidavits is DISMISSED AS

MOOT. The Clerk of Court is respectfully directed to close ECF Nos. 31 and 40, enter judgment,

and close this case.

SO ORDERED.

Dated: July 9, 2024

Central Islip, New York

/s/ JMA

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE