App.

1
Appellate Case: 224007 Document 010110749788 FILED
Date Filed 10/06/2022 United States Court Of
Appeals
Tenth Circuit
October 6, 2022
Christopher M. Wolpert
Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RALAND BRUNSON, No. 22-4007

(D.C. No. 1:21-CV-00111-NP)
Plaintiff — Appellant, (D. Utah)

v.

ALAMA S. ADAMS, et al.,

Defendants.

ORDER AND JUDGMENT*

Before TYMKOVICH, BALDOCK and CARSON, Circuit

Judges.

* After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request of a decision on
the briefs without oral argument. See Fed R. App, P. 34(f); 10th Cir. R.
34.1(G). The case is therefore submitted without argument. This order
and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppels. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P 32.1
and 10th Cir. R. 321..
 App. 2

Raland Brunson appeals the district court’s dismissal

of his action for lack of jurisdiction. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Mr. Brunson filed a pro se civil action in Utah state

court against hundreds of members of Congress,

President Joseph Biden, Vice President Kamala Harris,

and former Vice President Michael Pence. He alleged

that before accepting the electoral votes on January 6,

2021, defendants intentionally refused to investigate

evidence that the November 2020 presidential election

was fraudulent. Mr. Brunson likened defendants’ conduct

to an act of war against the United States Constitution

that violated their oath to uphold the Constitution and

his right to participate in an honest and fair election. He

advanced constitutional, tort, and promissory estoppel

claims and sought almost three billion dollars in damages.

He also asked for injunctive relief including removal of

 App. 3

defendants from office and reinstatement of Donald

Trump as President of the United States.

Defendants removed the case to federal district court

and filed a motion to dismiss under Federal Rules of

Civil Procedure 12(b)(1) (lack of jurisdiction) and 12(b)(6)

(failure to state a claim). Mr. Brunson filed an

opposition to the motion to dismiss. A magistrate judge

issued a report and recommendation (Recommendation)

that the action be dismissed for two independent

reasons: (1) Mr. Brunson lacked constitutional standing

because his claimed injury was not concrete and

personal to him but only the same as any citizen, and

(2) Eleventh Amendment sovereign immunity barred the

claims against the defendants, who were sued in their

official capacity only, and Mr. Brunson failed to identify

any statute or other express provision that unequivocally

waives that immunity for his claims.

1 The magistrate judge provided various alternative grounds for

dismissal, but we need not consider them in this appeal.
 App. 4

Mr. Brunson filed a timely objection to the

Recommendation, arguing only that the magistrate judge

did not address the arguments in his opposition to the

motion to dismiss and thereby deprived him of due

process. The district court overruled the objection,

concluding there was no authority for Mr. Brunson’s

proposition “that, a reviewing court must specially address

arguments made in a brief,” and finding he “was afforded

procedural due process by receiving notice of the motion to

dismiss and having a reasonable opportunity to respond to

it.” R. at 510. Because Mr. Brunson did not assert any

objections to the magistrate judge’s conclusions that he

lacked standing or that the defendants were entitled to

sovereign immunity, the district court determined he had

“waived any objections to [those] conclusions.” Id. The

court then adopted the Recommendation in full,

dismissed the action without prejudice for lack of

jurisdiction, and entered a separate judgment. This

appeal followed.
 App. 5

II. Discussion

We review de novo a district court’s dismissal of an

action under Rule 12(b)(1). Chance v. Zinke, 898 F.3d

1025, 1028 (10th Cir. 2018). We construe Mr. Brunson’s

pro se filings liberally, but we may not act as his

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.l (10th

Cir. 2008).

Mr. Brunson first argues that the district court’s

separate judgment is invalid because it fails to set forth

the legal basis for the judgment.2 This argument is

frivolous. Federal Rule of Civil Procedure 58 requires a

district court to set out its judgment in a document

separate from the court’s explanation of the reasons for

the disposition. See Taumoepeau v. Mfrs. & Traders Tr.

Co. (In re Taumoepeau), 523 F.3d 1213, 1217 & n.4 (10th

Cir. 2008). The district court’s judgment did just that, and

the reasons for the dismissal were thoroughly explained in

2 The body of the judgment states: “IT IS ORDERED AND

ADJUDGED that plaintiff Raland Brunson’s action is dismissed
without prejudice.” Rat 512.
 App. 6

the Recommendation and the district court’s order adopting

it.

Mr. Brunson next contests the merits of the

magistrate judge’s standing analysis. But as noted, in

his objection, he did not address the standing analysis;

he only faulted the magistrate judge for not discussing

the arguments he raised in his opposition to the motion

to dismiss. This court has “adopted a firm waiver rule”

with regard to objections to a magistrate judge’s findings

and recommendations. United States v. 2121 E. 30th St.,

73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation

marks omitted). To avoid waiving appellate review of

factual and legal questions, “a party’s objections to [a]

magistrate judge’s report and recommendation must be

both timely and specific.” Id. at 1060 (emphasis added).

This means the objection must be “sufficiently specific to

focus the district court’s attention on the factual and

legal issues that are truly in dispute.” Id.

 App. 7

Although Mr. Brunson’s objection was timely, he did

not specifically challenge the magistrate judge’s standing

analysis. The firm waiver rule therefore applies unless

the interests of justice dictate otherwise.3 “[Fjactors this

court has considered in determining whether to invoke

the [interests-of-justice] exception” are “a pro se litigant’s

effort to comply, the force and plausibility of the

explanation for his failure to comply, and the importance of

the issues raised.” Morales-Fernandez v. INS, 418 F.3d

1116, 1120 (10th Cir. 2005).

Mr. Brunson makes no effort to explain why he failed

to specifically challenge the magistrate judge’s standing

analysis. The first two factors therefore weigh against

invoking the exception.

In considering the third factor, “the importance of the

issues raised,” we conduct an analysis akin to plain-error

3 This rule also does not apply when “a pro se litigant has not been
informed of the time period for objecting and the consequences of
failing to object.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119
(10th Cir. 2005). But Mr. Brunson received the proper warning in
this case.
 App. 8

review. See id. “Plain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”

Id. at 1122-23 (internal quotation marks omitted). We

cannot say the district court’s conclusion that Mr.

Brunson lacked standing is plainly erroneous. As the

magistrate judge explained, the relevant Article III

standing inquiry is “‘whether the party seeking relief has

alleged such a personal stake in the outcome of the

controversy as to assure concrete adverseness.’” R. at

395 (ellipsis and emphasis omitted) (quoting United

States v. Richardson, 418 U.S. 166, 173 (1974)). And a

plaintiff like Mr. Brunson, who

raise [s] only a generally available grievance about

government—claiming only harm to his and every
citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no
more directly and tangibly benefits him than it does
the public at large—does not state an Article III case
or controversy.
 App. 9

Lujan v. Defs. of Wildlife, 504 U.S. 555, 573—74 (1992).

Thus, the district court did not plainly err in concluding

Mr. Brunson lacked standing.

Mr. Brunson’s argument does not persuade us otherwise.

Essentially, he contends that because he alleged the

defendants acted fraudulently, and because “‘fraud

vitiates whatever it touches,”’ Aplt. Opening Br. at 5

(quoting Est. of Stonecipher v. Est. of Butts, 591 S.W.2d

806, 809 (Tex. 1979)), he has an “unfettered right to sue

the Defendants,” id. at 2, and any federal law or case

law is inapplicable if it “support[s] treason, acts of war

or the violation of Brunson’s inherent unalienable (God-

given) rights,” id. at 8. But none of his supporting

authorities suggests that allegations of fraud, acts of

war, or the violation of allegedly “inherent unalienable

(God-given) rights,” id., relieve a plaintiff from

demonstrating Article III standing.

Finally, Mr. Brunson briefly mentions the magistrate

judge’s Eleventh Amendment sovereign immunity

 App. 10

analysis, but he develops no argument addressing the

magistrate judge’s reasoning other than to direct us to

his opposition to the motion to dismiss. That is

insufficient to meet this court’s requirements for

developing an argument on appeal. See United States v.

Patterson, 713 F.3d 1237, 1250 (10th Cir. 2013). Thus,

setting aside the antecedent inquiry whether the firm

waiver rule precludes our review of this aspect of the

dismissal, we conclude Mr. Brunson has waived appellate

review of the sovereign-immunity basis for dismissal due

to insufficient argument. See id. 4

III. Conclusion

The district court’s judgment is affirmed.

Entered for the Court

Bobby R. Baldock
Circuit Judge

4 And even if we were to overlook this obstacle to review, Mr.

Brunson’s lack of success on the merits of his arguments relating to
standing is, by itself, a sufficient basis for affirming the district court’s
judgment regardless of the merits of his argument relating to
sovereign immunity. See Murrell v. Shalala, 43 F.3d 1388, 1390
(10th Cir. 1994).
 App. 11

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RALAND J BRUNSON, APPELLANT’S OPENING

BRIEF
Appellant,
Case No. 22-4007
vs.
ALMA S. ADAMS; et al., Trial Court Case No. l:21-cv-
00111-CMR
Appellees

APPELLANT’S OPENING BRIEF

1. Statement of the case.

The trial court granted Appellees’ (Defendants) motion

to dismiss. Raland J Brunson (“Brunson”) appellant now

appeals the order granting Defendants’ motion to dismiss.

1. Statement of Facts Relevant to the Issues

Presented for Review.

Defendants timely filed a motion to dismiss (‘Motion”)

Brunson’s complaint. Brunson timely filed his opposition

(“Opposition”) (ECF 20), Defendants timely filed their

reply. The trial court filed their report and

recommendation (“R&R”) on January 06, 2022 (ECF 23)

 App. 12

granting Defendants’ motion to dismiss under Fed. R. Civ.

P. 12(b)(1), and then Brunson timely filed his objection to

this report and recommendation, and then the court

entered a judgment on February 2nd, 2022 (“Judgment”)

wherein all that it states is “IT IS ORDERED AND

ADJUDGED that plaintiff Raland Brunson’s action is

dismissed without prejudice.”

2. Statement of Issues.

a. First issue: The Judgment failed to give a

legal basis for its judgment and as such must be remanded

for a legal analysis of its decision.

b. Argument and Authorities:

The full language of the Judgment states ““IT IS

ORDERED AND ADJUDGED that plaintiff Raland

Brunson’s action is dismissed without prejudice.” Without

giving a legal basis for its Judgment it becomes subject to

remand on appeal. “Similarly, in Neerings v. Utah State

Bar, we stated that, "[wjhile it may be instructive for [a]

trial court to inform the litigants of the legal basis for its
 App. 13

decision, we are not persuaded that failure to do so

constitutes reversible error." Instead, we concluded that

"failure to state the grounds for [a] decision. . . . may only

justify remand to the trial court." State v. Ruiz, 2012 UT

29, 282 P.3d 998. Also the Utah State Supreme Court

stated in the case of Determination Of Rights To Use Of

Water, 2008 UT 25 182 P.3d 362 that “While we are

comfortable with granting deference to factual findings of a

district court, we are less eager to simply defer to a ruling

that contains no declaration of the legal test used to reach

the result. In this setting, we do not hesitate to state the

legal test the district court should have applied and require

it to do so on remand.”

c. Second Issue: The R&R committed an error by

stating that Brunson does not have standing. In so doing it

did not address Brunson’s Opposition on the subject of

fraud, instead it agreed with Defendant’s Motion while

adding its own additional language in support of

Defendants, thus helping Defendants to Brunson’s demise.

 App. 14

Argument and Authorities:

Brunson does have standing and subject matter

jurisdiction as stated below.

The R&R’s failure to address Brunson’s Opposition on

the subject of fraud requires remand as stated above to

address this argument raised in Brunson’s Opposition.

Brunson’s unfettered right to sue the Defendants in the

trial court is governed by the following.

Article III Courts have a tie to the first and second

clauses of the Declaration of Independence which states:

“When in the Course of human events, it becomes

necessary for one people to dissolve the political
bands which have connected them with another, and
to assume among the powers of the earth, the
separate and equal station to which the Laws of
Nature and of Nature’s God entitle them, a decent
respect to the opinions of mankind requires that they
should declare the causes which impel them to the
separation.

We hold these truths to be self-evident, that all men

are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.
That to secure these rights, Governments are
instituted among Men, deriving their just powers
from the consent of the governed,—That whenever
any Form of Government becomes destructive of
 App. 15

these ends, it is the Right of the People to alter or to

abolish it. .

These two clauses of the Declaration of Independence is

also connected to Amendment IX of the Constitution of the

USA which states “The enumeration in the Constitution, of

certain rights, shall not be construed to deny or disparage

others retained by the people.” Therefore the purpose of

the Constitution was written to protect our self evident

unalienable rights. The Constitution cannot be construed

by any means, by any legislative, judicial and executive

bodies, by any court of law to deny or disparage our

unalienable rights. This is the supreme law of the land.

“This Constitution, and the Laws of the United States

which shall be made Pursuance thereof; . . .shall be the

supreme Law of the land; and the Judges in every State

shall be bound thereby.” Article VI of the Constitution.

Furthermore, the Utah State Supreme court has

recognized that legislative bodies along with courts of law

are not creator of your rights, nor are they the interpreter

of your rights especially when force is used. American

 App. 16

Bush v. City Of South Salt Lake, 2006 UT 40 140 P.3d.l235

states . . In considering State constitutions we must not

commit the mistake of supposing that, because individual

rights are guarded and protected by them, they must also

be considered as owing their origin to them. These

instruments measure the powers of the rulers, but they do

not measure the rights of the governed. ... [A state

constitution] is not the beginning of a community, nor the

origin of private rights; it is not the fountain of law, nor the

incipient state of government; it is not the cause, but

consequence, of personal and political freedom; it grants

no rights to the people, but is the creature of their

power, the instrument of their convenience. Designed for

their protection in the enjoyment of the rights and

powers which they possessed before the constitution

was made, it is but the framework of the political

government, and necessarily based upon the pre-existing

condition of laws, rights, habits, and modes of thought.

There is nothing primitive in it: it is all derived from a

 App. 17

known source. It presupposes an organized society, law,

order, property, personal freedom, a love of political liberty,

and enough of cultivated intelligence to know how to guard

it against the encroachments of tyranny.” (Bold emphasis

added)

Article III Courts are a platform wherein a person may

use to protect their self evident unalienable rights against

any attack or violation.

The First Amended of the Constitution states that

Congress shall make no law prohibiting the right of the

people to petition the Government for a redress of

grievances. Brunson’s complaint is also a petition for a

redress of grievances colored under his causes of actions.

The legislative body of the U.S., or the Constitution,

legally cannot protect fraud or violations of the Oath of

Office or acts of treason nor deprive an individual from

petition for a redress of grievances as alleged in Brunson’s

complaint. These acts cannot be protected in such a way

that the technical nuances of the law and legal procedure

 App. 18

reach such a high standard that that a laymen cannot

reach or they become highly discouraged from seeking

redresses in a court of law. This is self evident as it ties to

the Amendment IX and the First and Second clause of the

Declaration of Independence.

The R&R dismissed Brunson’s complaint based upon

subject matter jurisdiction because Brunson did not satisfy

FTCA nor did Brunson get consent to sue in order to

overcome “sovereign immunity” claims. As it sets,

Brunson’s complaint is already riddled with strong

technical nuances of the law and legal procedures that

adding requirements of the FTCA and seeking consent to

sue Defendants, which Brunson might not get, protects

Defendants in violation of Brunson’s right to seek a redress

against them. Again, the legislative and judicial body of

the U.S., or the Constitution, legally cannot protect fraud or

violations of the Oath of Office or acts of treason, or deprive

an individual from petition for a redress of grievances by

 App. 19

creating the FTCA and giving “sovereign immunity” to the

Defendants in this matter.

Brunson’s complaint alleges fraud, violation of the Oath

of Office and touches treason against the Defendants.

These are serious offenses which need to be addressed

immediately with the least amount of technical nuances of

the law and legal procedures because these offenses are

flowing continually against Brunson’s liberties and life to

which Patrick Henry stated “Give me liberty or give me

death.”

Brunson’s claim against the Defendants for fraud is on a

scale like never before seen. To this fraud claim “Our

courts have consistently held that fraud vitiates whatever

it touches, Morris v. House, 32 Tex. 492 (1870)”. Estate of

Stoneciyher v. Estate of Butts, 591 SW 2d 806. And “"It is a

stern but just maxim of law that fraud vitiates everything

into which it enters." Veterans Service Club v. Sweeney, 252

S.W.2d 25, 27 (Kv.1952).” Radioshack Cory, v. ComSmart,

Inc., 222 SW 3d 256.

 App. 20

Vitiate; “To impair or make void; to destroy or annul,

either completely or partially, the force and effect of an act

or instrument.” West's Encyclopedia of American Law,

edition 2.

The Defendants in the course of their duties have no

business committing fraud on the large scale that they did

as alleged in Brunson’s complaint. They cannot enjoy a

shield of defense found under the FTCA or sovereign

immunity claims which stands in the way of Brunson’s

absolute right to bring legal action against them in the trial

court as stated above.

“Common-law courts traditionally have vindicated

deprivations of certain "absolute" rights that are not shown

to have caused actual injury through the award of a

nominal sum of money. By making the deprivation of such

rights actionable for nominal damages without proof of

actual injury, the law recognizes the importance to

organized society that those rights be scrupulously

observed; but at the same time, it remains true to the

 App. 21

principle that substantial damages should be awarded only

to compensate actual injury or, in the case of exemplary or

punitive damages, to deter or punish malicious

deprivations of rights.” Carey v. Piphus, 435 US 247

“Courts must be cautious in applying Article III standing

requirements in procedural due process cases. When

asserting procedural rights, Article III standing does not

require plaintiffs to demonstrate that they would obtain

concrete relief from the desired process. Lujan, 504 U.S. at

573 n. 7, 112 S.Ct. 2130; see also Catron County Bd. of

Comm'rs v. United States Fish & Wildlife Serv., 75 F.3d

1429, 1433 (10th Cir.1996) . . . Parties may suffer injury in

fact from defective procedures even if, at the end of the day,

they would not have prevailed on the merits. The Court has

observed that "the right to procedural due process is

'absolute' in the sense that it does not depend upon the

merits of a claimant's substantive assertions." Carey v.

Piphus, 435 U.S. 247. 266, 98 S.Ct. 1042. 55 L.Ed.2d 252

(1978) (citations omitted). In cases where the procedural

 App. 22

due process rights of a person have been violated but the

outcome was unaffected because the claim was not

meritorious, the Court has held that plaintiffs are entitled

to nominal damages. Id.” Rector v. City and County of

Denver, 348 F. 3d 935

The R&R claims that Brunson does not have standing

because one of the remedies Brunson seeks is to have the

Defendants removed from office which is beyond the

authority of the courts power.

Courts do have authority to remove a sitting

congressman as shown in 18 U.S. Code § 2381 which states

“Whoever, owing allegiance to the United States, levies war

against them or adheres to their enemies, giving them aid

and comfort within the United States or elsewhere, is guilty

of treason and shall suffer death, or shall be imprisoned not

less than five years and fined under this title but not less

than $10,000; and shall be incapable of holding any office

under the United States.” A court adjudicating that a

 App. 23

sitting congressman is incapable of holding his office is a

removal of his office.

In addition to Brunson’s unfettered right to sue the

Defendants in the trial court as described above, Brunson’s

fraud claims against the Defendants does not sit under

their legislative, judicial or executive duties, they sit under

their administrative acts which are not protected under any

sovereign immunity claims. See Brunson’s Opposition.

Also as stated in Brunson’s Opposition, Brunson does

have a personal stake in the outcome of his Complaint, for

example, the Opposition states:

1. “Voting is the greatest power an individual can

exercise in a Republic; it is Brunson’s personal voice and

the way he can protect his personal constitutional protected

rights and the U.S. Constitution.” See 71 of the

Complaint.

2. That an honest and fair election can only be

supported by legal votes, this is sacred. It is the basis of

our U.S. Republican Form of Government protected by the

 App. 24

U.S. Constitution. The efforts made, as stated in the

complaint, that avoided an investigation of how Biden won

the election, is an act of treason and an act of levying war

against the U. S. Constitution which violated Brunson’s

unfettered right to vote in an honest and fair election and

as such it wrongfully invalidated his vote.

3. Acts of Congress, or case law like those cited in

Defendant’s motion cannot proceed or have merit when

they support treason, acts of war or the violations of

Brunson’s inherent unalienable (God-given) rights.

Complaint at If 18 & 19.

4. The only laws Congress has the power to enact are

those that protect Brunson’s unalienable rights. Complaint

at 1 20.

5. The plenary power of Amendment IX of the U.S.

Constitution nullifies any kind of legal protection that an

enemy against the U.S.

6. Constitution claims to have. Complaint at 29.

 App. 25

7. The plenary power of Amendment IX nullifies any

interpretation of Amendment XII that would keep

Defendants from investigating the claims of voter fraud.

Complaint at 30.

8. A rigged election is an attack against the U.S.

Constitution especially against the equal protection clause

of 14th Amendment of the U.S. Constitution. Complaint at

31.

9. Despite the claims of evidence that the November 3,

2020 U.S. Presidential general election was fraudulent,

affecting the President of the United States, the Vice

President of the United States and members of the United

States Congress, the Defendants intentionally voted

against investigating the claimed evidence and conspired to

cover up the "evidence" to fraudulently have Joseph

Robinette Biden Jr. (“Biden”) inaugurated as President and

Kamala Harris (“Harris”) inaugurated as Vice President.

Complaint at 32.
 App. 26

10. This act of conspiracy has the same end result as an

act of war; to place into power whom the Defendants want,

which in this case is Biden. Complaint at 33.

11. Brunson’s fifth cause of action against Defendants is

for fraud. And Paragraph 34 of Brunson’s complaint

alleges that “Fraud vitiates everything”. Defendants under

their sworn duty promised that they would protect

Brunson’s vote in the 2020 Presidential Election

(“Election”) which they fraudulently did not do as alleged in

the Complaint.

Brunson’s claims and remedies against the Defendants

gives Brunson standing.

3. Do you think the district court applied the

wrong law? If so, what law do you want to apply?

The district court should apply the 9th Amendment of the

• Constitution as it ties to the 1st and 2nd clause of the

Declaration of independence and Article VI of the

Constitution. For the reasons stated above.

 App. 27

4. Did the district court incorrectly decide the

facts? If so, what facts?

Brunson is not suing the United States of America.

5. Did the district court fail to consider the

important grounds for relief? If so, what grounds?

The grounds for relief pertaining to the issues stated

above were not considered.

6. Do you feel that there are other reasons why

the district court’s judgment was wrong. If so, what?

No.

7. What action do you want this court to take in

your case?

To reverse the Judgment with an order that the

Defendants are to answer Brunson’s complaint within 10

days of this court’s order.

8. Do you think the court should hear oral

argument in this case? If so, why?

No.
 App. 28

Humbly submitted this the 21st day of March 2022.

Is/ Raland J Brunson

Raland J Brunson, Appellant

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of March, 2022 I

personally placed in the United States Mail to the
individuals named below low a true and correct copy of
APPELLANT’S OPENING BRIEF.

Jennifer P. Williams
JOHN K. MANGUM
• 111 South Main Street, #1800
Salt Lake City, Utah 84111

Is/ Raland Brunson

Raland Brunson, Pro Se
 App. 29

Case 1:21 -cv-00111 -JNP Document26 Filed 02/02/22

PagelD.461 Page 1 of 1
FILED
2022 FEB 2 PM 3:55
CLERK
U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

RALAND BRUNSON,

Plaintiff, JUDGMENT
v.
Case No.
ALMA S. ADAMS; et al., l:21-cv-00111-JNP-JCB

Defendants. Judge Jill N. Parrish

IT IS ORDERED AND ADJUDGED that plaintiff

Raland Brunson’s action is dismissed without prejudice.

DATED February 2, 2022.

BY THE COURT:

Is/ Jill N. Parrish

JILL N. PARRISH
United States District Judge
 App. 30
Case l:21-cv-00111-JNP Document 25 Filed 02/02/22 PageID.458
FILED
2022 FEB 2 PM 3:55
CLERK
U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

ORDER ADOPTING
RALAND BRUNSON, REPORT AND
RECOMMENDATION
Plaintiff, AND DENYING
REQUEST TO AMEND
v. COMPMLAINT

ALMA S. ADAMS, et al.,

Case No. l:21-cv-00111-
Defendants. JNP-JCB

Judge Jill N. Parrish

Magistrate Judge Jared C. Bennett issued a Report and

Recommendation that the court grant the defendants’

. motion to dismiss for two independent reasons. ECF No. 23.

First, Judge Bennett reasoned that the court does not have

subject matter jurisdiction over plaintiff Raland Brunson’s

action because he lacks standing to assert his claims.

Second, Judge Benson determined that Brunson failed to

 App. 31

establish that the United States has waived sovereign

immunity for his claims.

Brunson filed an objection to the Report and

Recommendation. The objection has two main components.

First, Brunson argues that the court should not adopt the

Report and Recommendation because it does not specifically

address his response brief. Brunson contends that this

failure to address his arguments violates the Due Process

Clause of the Fourteenth Amendment and provisions of the

Utah Constitution. Second, Brunson requests leave of court

to file an amended complaint.

I. OBJECTION TO REPORT AND

RECOMMENDATION

The court reviews de novo the portions of the Report and

Recommendation to which Brunson has objected. FED. R.

CIV. P. 72(b)(3). Brunson raises only one objection. He

argues that the court should not adopt the Report and

Recommendation because it does not specifically address the

arguments made in his response brief. He contends that this

 App. 32

failure violates his rights under the Due Process Clause of

the Fourteenth Amendment and the Due Process and Open

Courts Clauses of the Utah Constitution.

The court overrules Brunson’s objection. He cites no

caselaw supporting his assertion that a reviewing court

must specifically address arguments made in a brief.

Brunson was afforded procedural due process by receiving

notice of the motion to dismiss and having a reasonable

opportunity to respond to it. See United States v. James

Daniel Good Real Prop., 510 U.S. 43, 48 (1993) (procedural

due process requires “notice and an opportunity to be

heard”). And the Open Courts Clause of the Utah

Constitution does not guaranty specific responses to

arguments in a response brief. See Berry ex rel. Berry v.

Beech Aircraft Corp., 717 P.2d 670, 675 (Utah 1985) (the

Open Courts Clause “guarantees access to the courts and a

judicial procedure that is based on fairness and equality”).

Brunson does not raise any objection to the Report and

Recommendation’s conclusions that Brunson lacks standing

 App. 33

to assert his claims and that the defendants are entitled to

sovereign immunity. Thus, Brunson has waived any

objection to these conclusions. See United States v. One

Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)

I. REQUEST TO AMEND

Brunson also requests leave of court to amend his

complaint. He states that the only proposed change to the

complaint is to recast his breach of duty claim as a

negligence claim. “Refusing leave to amend is generally

only justified upon a showing of undue delay, undue

prejudice to the opposing party, bad faith or dilatory

motive, failure to cure deficiencies by amendments

previously allowed, or futility of amendment.” Bylin v.

Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (citation

omitted)

The court finds that the requested amendments are futile.

Brunson does not argue that the changes to his complaint

would affect his lack of standing to bring his claims. And the

court is unable to discern any way in which the proposed

 App. 34

changes would affect his standing to sue members of Congress.

Accordingly, Brunson's request to file an amended complaint

is denied.

CONCLUSION AND ORDER

For the foregoing reasons, the court ORDERS as follows:

1 The Report and Recommendation, ECF No. 23, is

ADOPTED IN FULL.

2 The court GRANTS the defendants’ motion to

dismiss Brunson’s action. ECF No. 3. Because the

court lacks subject matter jurisdiction over this

action, dismissal is without prejudice.

DATED February 2, 2022.

BY THE COURT:

Is/ Jill N. Parrish

JILL N. PARRISH
United States District Judge
 App. 35

Case l:21-cv-00111-JNP-JCB Document 23

Filed 01/06/22 PageID.339

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

RALAND BRUNSON, REPORT AND

RECOMMENDATION
Plaintiff,
Case No. l:21-cv-00111-
v. JNP-JCB

ALMA S. ADAMS ; et al., District Judge Jill N.

Parrish
Defendants.
Magistrate Judge Jared
C. Bennett

District Judge Jill N. Parrish referred this case to

Magistrate Judge Jared C. Bennett under 28 U.S.C. §

636(b)(1)(B).5 Before the court is Defendants’6 motion to

dismiss this action for lack of subject matter jurisdiction,

pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative,

to dismiss the complaint for failure to state a claim,

5 ECF No. 16
G Defendants consist of 388 current or former federal officers which
include: 291 members of the United States House of Representatives, 94
Senators, President Biden, Vice President Harris, and former Vice
President Pence. ECF No. 2-1 at 1-3.
 App. 36

pursuant to Fed. R. Civ. P. 12(b)(6).7 For the reasons set

forth below, the court respectfully recommends that this

action be dismissed for lack of subject matter jurisdiction

BACKGROUND

Raland J. Brunson (“Mr. Brunson”), appearing pro se,

commenced this action on June 21, 2021, in the Second

District Court of the State of Utah against Defendants in

their official capacities. Mr. Brunson seeks redress for the

violation of his “constitutionally] protected right to

participate in an honest and fair election.”8 His claims are

based on, inter alia, the United States Constitution and

Defendants’ sworn oaths of office to “support and defend the

Constitution of the United States against all enemies,

foreign and domestic.”9 More specifically, Mr. Brunson

alleges that Defendants violated their oaths of office and

the Constitution by neither ensuring a fair election nor

investigating claims that the Presidential election was

^ ECF No. 3.
s ECF No. 2-1 tl 55, 57, 66.
 App. 37

“rigged’^and “fraudulent” prior to accepting the electoral

votes on January 6, 2021.10 According to Mr. Brunson, “the

plenary power of [the Ninth Amendment] of the U.S.

Constitution nullifies any interpretation of [the Twelfth

Amendment] that would allow Congress to accept and count

fraudulent votes.”11 Mr. Brunson asserts that Defendants’

conduct constituted “an attack against the U.S.

Constitution” that resulted in the fraudulent inauguration

of President Biden and Vice President Harris.12

Mr. Brunson’s Complaint sets forth six causes of action

that apply to all Defendants:

(1) Promissory estoppel - based on Defendants’ failure

to fulfill their respective oaths of office to ensure an

honest and fair election; (2) Promissory estoppel — for

giving “aid and comfort” to those whose sought to

wrongfully invalidate Mr. Brunson’s vote and his right to

9 Id. II 10. See generally id. m 9-23.

19 Id. THI 9-19, 31-34, 38-58, 62 & 66.
11 Id. mi 29-31.
12 Id. mi 31, 32, 55.
 App. 38

a fair election;

(3) Breach of Duty - for failing to protect Mr. Brunson’s

right to vote in an honest and fair election; (4) Intentional

infliction of emotional distress - because as a

consequence of Defendants’ wrongful conduct, Mr.

Brunson now fears Defendants are “on a course” to

destroy his liberties and violate other significant rights;

(5) Fraud - based on Defendants’ misrepresentations that

they would protect his vote and voting rights; and (6)

Civil conspiracy - because Defendants worked together to

“skirt any kind of investigation into whether or not the

election was indeed rigged.”13

According to Mr. Brunson, Defendants’ conduct has

damaged him to the extent of $484 million for each of the

six causes of action, for a total of $2,905 billion, which he

requests be provided tax free.14 Additionally, Mr. Brunson

requests: (1) the immediate removal of all Defendants from

13 Id. at 15-23
14 Id. at 23-28
 App. 39

office; (2) that they never be able to collect any further pay

from the United States for their official service in Congress

or as President or Vice President; (3) that they never be

able to again practice law or again serve as an elected

office-holder in this country; (4) that they each be

investigated for treason; and (5) that former president

Trump be immediately inaugurated as President.15

Defendants filed a motion to dismiss the Complaint

under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure.16 Defendants argue, alternatively, that

this court lacks subject matter jurisdiction over Mr.

Brunson’s claims because the United States has not waived

its sovereign immunity, and that Mr. Brunson has failed to

state a claim on which relief can be granted because his

claims fail to satisfy the plausibility requirement of Fed. R.

Civ. P. 8. After careful consideration of the written briefs,

relevant facts and law, the court concludes that this action

15 Id.
16 ECF No. 3.
 App. 40

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for

lack of subject matter jurisdiction. Because this court lacks

jurisdiction, it does not discuss whether Mr. Brunson’s

claims should be dismissed under Fed. R. Civ. P. 12(b)(6).

DISCUSSION

“Because the jurisdiction of the federal courts is limited,

there is a presumption against our jurisdiction, and the

party invoking federal jurisdiction bears the burden of

proof.”17 To establish jurisdiction, the asserting party “must

‘allege in [its] pleading the facts essential to show

jurisdiction,’ and ‘must support [those facts] by competent

proof.’”18 Applying these principles, the court finds that Mr.

Brunson’s claims should be dismissed because he cannot

satisfy his burden to show that subject matter jurisdiction

exists. Specifically, Mr. Brunson has failed to: (I) establish

17 Merida Delgado u. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005); see
also Kokkonen v. Guradian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (providing that the burden to establish jurisdiction rests upon
the party asserting that jurisdiction exists).
 App. 41

Article III or Prudential Standing and (II) that the United

States has waived its sovereign immunity for any of his

causes of action.19 Thus, this action should be dismissed.

I. Mr. Brunson Has Failed to Establish Standing

Although Defendants raise the issue in passing,20 the

court begins with the “threshold inquiry of standing.”21

“The issue of Article III standing implicates federal

jurisdiction.”22 Thus, the court is required to consider

standing, and may “consider the issue sua sponte” if

necessary, “to ensure there is an Article III case or

18 United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548,
551 (10th Cir. 1992) (quoting McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)).
19 Generally, pro se pleadings should “be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, it is
not “the proper function of the district court to assume the role of
advocate for the pro se litigant,” and even lay plaintiffs must satisfy the
jurisdictional, procedural, and factual standards for pleadings that
apply to other litigants. Id.; see also Ogden v. San Juan Cnty., 32 F.3d
452, 455 (10th Cir. 1994) (providing that pro se parties must comply
with the same requirements that govern all other litigants).
20 ECF No. 3 at 9.
21 Santa FeAll. for Public Health & Safety v. City of Santa Fe, 993 F.3d
802, 813 (10th Cir. 2021).
22 Id. at 813 n.5; Rector v. City and Cnty. of Denver, 348 F.3d 935, 942
(2003).
 App. 42

controversy” before it.23 Mr. Brunson, as the party invoking

the federal court’s jurisdiction, bears the burden of

establishing standing.24 Mr. Brunson has failed to show

that he has standing to bring his claims.

Article III of the Constitution limits the jurisdiction of

the federal courts to the resolution of actual cases and

controversies.25 One component of the case-or-controversy

requirement is standing.26 “The doctrine of standing is an

essential and unchanging part of the case-or-controversy

requirement of Article III. ”27 “ Standing doctrine embraces

several judicially self-imposed limits on the exercise of

federal jurisdiction, such as the general prohibition on a

litigant’s raising another person’s legal rights”28 “The gist of

the question of standing is whether the party seeking relief

has alleged such a personal stake in the outcome of the

23 Rector, 348 F.3d at 942.

24 Id.
25 See U.S. Const, art. Ill, § 2.
26 Lance v. Coffman, 549 U.S. 437, 439 (2007).
27 Comm. To Save the Rio Hondo v. Jucero. 102 F.3d 445, 447 (10th Cir.
1996) (citation and quotations omitted).
 App. 43

controversy as to assure . . . concrete adverseness”29 To

prove this “personal stake” in the outcome of this action,

Article III requires that Mr. Brunson s Complaint show,

among other things, that he has suffered an “injury in fact”

that was caused by Defendants.30 “To establish an injury in

fact, the plaintiff must show a distinct and palpable injury

to [himjself. An abstract injury is not enough . . .”31 Indeed,

the United States Supreme Court has “repeatedly held that

an asserted right to have the Government act in accordance

with law is not sufficient, standing alone, to confer

jurisdiction on a federal court.”32 To determine whether Mr.

Brunson has carried his burden to establish standing, the

court engages in “careful judicial examination of a

complaint’s allegations”33 on a “claim-by-claim basis.”34

28 Allen v. Wright 468 U.S. 737, 751 (1984).

29 United States v. Richardson, 418 U.S. 166, 173 (1974) (emphasis
added) (citations and quotations omitted).
30 Lucero, 102 F.3d at 477.
31 Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir. 1992)
(citations, quotations, and modifications omitted).
32 Allen, 468 U.S. at 754.
33 Id. at 752
 App. 44

Mr. Brunson has failed to establish standing under

Article III of the United States Constitution because all of

his causes of action plead generalized claims of legislative

nonfeasance arising out of the counting of electors’ votes.

Mr. Brunson’s purported injury is precisely the type of

undifferentiated and generalized grievance about the

conduct of government that courts have declined to consider

based on standing.35 The United States Supreme Court has

consistently held:

A plaintiff raising only a generally available grievance

about government — claiming only harm to his and
every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no
more directly and tangibly benefits him than it does
the public at large - does not state an Article III case
or controversy.36

The allegations in Mr. Brunson’s Complaint are insufficient

to show how or why the purported government wrongs pled

34 Santa FeAll. for Public Health & Safety, 993 F.3d at 813.
35 See Lance, 549 U.S. at 439 (dismissing for lack of Article III injury in
fact the voters’ challenge to redistricting plan); Cogswell v. United
States Senate, 353 F. App’x 175, 175-76 (10th Cir. 2009) (affirming
dismissal of generalized grievance alleging unconstitutional Senate
delay in filling two district court vacancies).
36 Lance, 549 U.S. at 439
 App. 45

in his causes of action show that he has suffered a “distinct

and palpable injury to [him]self.” Indeed, Mr. Brunson’s

only claimed injury is that the Defendants did not follow

the law, which is not enough for this court to have

jurisdiction under Article III over Mr. Brunson’s claims

even the in context of an election.37 Mr. Brunson’s failure to

plead an injury that is concrete and personal to him fails to

show that he has standing for any of his claims.38

Accordingly, his claims should be dismissed.

II. Mr. Brunson has failed to Established Waiver

of Sovereign Immunity

Even if Mr. Brunson has established standing, he cannot

show that the United States has waived its sovereign

37 See,e.g., Nolles u. State Comm, for Reorganization of Sch. Dists., 524

F.3d 892, 900 (8th Cir. 2008) (stating that voters lacked standing to
challenge legislative action because they brought a “generalized
grievance shared by all the voters” who voted for a certain issue).
38 In addition to failing to state an injury, Mr. Brunson lacks Article III
standing for the additional reason that the injuries he alleges may not
be redressed by the equitable relief he seeks. For example, courts lack
the authority to remove members of Congress from office, to disqualify
them from holding future office, or to require Congress to investigate
matters before them. Roudebush v. Hartke, 405 U.S. 15, 18-19 (1972);
see Wright v. Brady, 2006 WL 2371327, at*l (S.D. Tex. Aug. 15, 2006)
(“This court has no authority to order a sitting congressman removed
from Congress.”)
 App. 46

immunity as to any of his causes of action. “The United

States and its officers enjoy immunity from suit except in

instances where the United States has expressly

waived that protection.”39 “The policy behind this rule is

that the government should not be hampered in its

performance of activities essential to the governing of the

nation, unless it has given its consent.”40 “Thus, if the

government has not consented to suit, the courts have no

jurisdiction to either restrain the government from acting,

or to compel it to act.”41 Simply put, “the existence of

consent is a prerequisite for jurisdiction.”42

39 Flute v. United States, Flute v. United States, 808 F.3d 1234, 1239
(10th Cir. 2015); see also United States v. Mitchell, 463 U.S. 206, 212
(1983) (“It is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a prerequisite for
jurisdiction.”); Merida Delgado, 428 F.3d at 919 (“In general, federal
agencies and officers acting in their official capacities are also shielded
by sovereign immunity.”); Judicial Watch, Inc. v. Schiff, 474 F. Supp.
3d 305, 310 (D.D.C. 2020) (providing that sovereign immunity extends
to Congress when sued as a branch of government “and makes
members of Congress immune from liability for actions within their
legislative sphere”).
40 United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922,
930 (10th Cir. 1996).
41 Id. (internal quotation marks omitted).
42 Mitchell, 463 U.S. at 212.
 App. 47

“A waiver of sovereign immunity cannot be implied.”43

“The government consents to be sued only when Congress

unequivocally expresses its intention to waive the

government’s sovereign immunity in the statutory text.”44

Moreover, even where the United States has waived its

sovereign immunity via express and unequivocal statutory

language, the claim or cause of action must strictly comply

with the statute’s terms and requirements or be subject to

dismissal.45 In this case, Mr. Brunson has failed to identify

any statutory language or other express provision that

unequivocally waives sovereign immunity for his claims

against Defendants in his constitutional, tort, and

promissory estoppel claims, which are discussed in order

below.

First, Mr. Brunson has failed to establish a waiver of

sovereign immunity for his claims based on the United

43 Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990).

44 Murdock Mach., 81 F.3d at 930; see United States v. Mitchell, 445 U.S.
535, 538 (1980) (“If waiver is not unequivocal from the text, the
government retains its sovereign immunity.”
45 See United States v. Sherwood, 312 U.S. 584, 590-91 (1941).
 App. 48

States Constitution. The United States has not waived

sovereign immunity for it, its agencies, or its employees in

their official capacities, to be sued for damages for allegedly

violating the Constitution.46 Therefore, the court lacks

jurisdiction to hear any of Mr. Brunson’s constitutional

claims.

Second, to the extent some or all of Mr. Brunson’s causes

of action might be construed as tort claims, the relevant

waiver of sovereign immunity is the Federal Tort Claims

Act (“FTCA”).47 Although the FTCA provides a limited

waiver of the United States’ sovereign immunity, that

waiver does not apply to Mr. Brunson’s claims against

Defendants in this case. The FTCA’s limited waiver of

46 See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (“[T]he United
States simply has not rendered itself liable under § 1346(b) [of the
Federal Tort Claims Act] for constitutional tort claims.”); Martinez u.
Winner, 771 F.2d 424, 442 (10th Cir. 1985) (concluding that there was
no waiver of immunity to permit constitutional claims against the
Department of Justice or its employees to be sued in their official
capacities); Coulibaly v. Kerry, 213 F. Supp. 3d 93, 125-26 (2016)
(providing that the FTCA does not extend to constitutional tort claims);
see also Flute, 808 F.3d at 1239 (providing that sovereign immunity
extends to requests for injunctive relief).
47 See generally 28 U.S.C. §§ 2671-2680.
 App. 49

sovereign immunity makes the federal government liable to

the same extent as a private party for injuries caused by the

negligent or wrongful acts or omissions of government

employees acting within the scope of their employment.48

However, this limited waiver allows only the United States,

and not its officers - including the federal officer

defendants in this case - to be sued under the FTCA.49

Thus, all the causes of action against the individually

named defendants that sound in tort must be dismissed.

Even though the FTCA provides a limited waiver of

sovereign immunity against the United States, such waiver

applies only when the claimant has exhausted his

administrative remedies, which Mr. Brunson has failed to

do.50 To exhaust administrative remedies under the FTCA,

48 See United States v. Orleans, 425 U.S. 807, 813 (1976).

49 28 U.S.C. § 2679(a) & (b); Smith v. United States, 561 F.3d 1090,
1099 (10th Cir. 2009); Coulibaly, 213 F. Supp. 3d at 124 (providing that
because the FTCA accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the course
of their official duties, a plaintiff “may not bring tort claims against
federal officials in their official capacities or against federal agencies;
the proper defendant is the United States itself’).
50 28 U.S.C. § 2675(a).
 App. 50

Congress requires a plaintiff to first present the claim to

the agency whose employees allegedly committed the

negligent or wrongful act and wait six months for the

agency to act before filing suit.51 The failure to exhaust

administrative remedies precludes a court from exercising

subject matter jurisdiction over any alleged tort claim.52

Relevant here, “[bjefore initiating a lawsuit against a

United States Senator, a plaintiff is first required to file an

administrative tort claim with the United States Senate

under the FTCA.”53 Thus, even assuming, arguendo, that

Mr. Brunson had alleged claims falling within the limited

waiver of sovereign immunity under the FTCA, his failure

to exhaust administrative remedies would nonetheless

preclude this court from exercising jurisdiction over those

51 Id.
52 See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (“The
FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies. Because petitioner failed to
heed that clear statutory command, the District Court properly
dismissed his suit.”).
53 DeMasi u. Schumer, 608 F. Supp. 2d 516, 525 (S.D.N.Y. 2009).
 App. 51

claims.54 Therefore, the United States has not waived it

sovereign immunity to be sued under the FTCA for any of

Mr. Brunson’s claims sounding in tort.

Finally, Mr. Brunson has also failed to provide any basis

for waiver of sovereign immunity for the two causes of

action couched in terms of “promissory estoppel.”55 For

starters, the there is no independent cause of action against

the government founded on promissory estoppel.56 To the

extent the promissory estoppel causes of action are more

properly construed as tort claims, the court lacks

54 Id. (dismissing case against United States Senator for failure to

allege compliance with exhaustion requirement).
55 See ECF No. 2-1 at 15-18.
56 See, e.g., Jablon v. United States, 657 F.2d 1064, 1070 (9th Cir. 1981)
(dismissing promissory estoppel claim against government, stating
“[w]e have not discovered, and the parties have not cited, any precedent
in this circuit for an independent cause of action against the
government founded upon promissory estoppel. Neither have we
discovered a statute which would allow [plaintiff] to sue the United
States in this instance.”); see also, e.g., Santoni v. Fed. Deposit Ins.
Corp., 677 F.2d 174, 179 (1st Cir. 1982) (holding that claims based on
promissory estoppel sounded in tort for misrepresentation and therefore
were barred by the FTCA); Coulibaly, 213 F. Supp. 3d at 126-28
(dismissing promissory estoppel claims against federal government
employees, regardless of whether claims sounded in tort or contract);
Orleans Parish Communication Dist. u. FEMA, No. 11-209, 2011 2011
WL 4829887, at *8 n.5 (E.D. La. Oct. 12, 2011) (same).
 App. 52

jurisdiction over those claims for the reasons set forth

above.

To the extent the promissory estoppel causes of action

could somehow be read as contract claims, subject matter

jurisdiction would still be lacking. The Tucker Act provides

a limited waiver of sovereign immunity with respect to

certain claims “against the United States ... upon any

express or implied contract with the United States.”57

However, where a plaintiff seeks damages in excess of

$10,000, as Mr. Brunson does here, the jurisdiction of the

United States Court of Federal Claims is exclusive.58

Accordingly, Mr. Brunson cannot show that the United

States has waived its sovereign immunity for his estoppel,

tort, or constitutional claims. Therefore, the court lacks

57 28 U.S.C. § 1491(a)(1).
58 Id.; Greenhill v. Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007) (“If [the
plaintiff] explicitly or in essence seeks money damages in excess of
$10,000, jurisdiction rests exclusively with the Court of Federal
Claims.”); cf. 28 U.S.C. § 1346(a)(2) (stating that the United States
district courts exercise concurrent jurisdiction over “[a]ny ... claim
against the United States, not exceeding $10,000 in amount, founded ...
upon any express or implied contract with the United States” (emphasis
added))
 App. 53

subject matter jurisdiction over this action and should

dismiss it.59

CONCLUSION

Based on the foregoing analysis of sovereign immunity

and standing, the court lacks subject matter jurisdiction

over the causes of action set forth in Mr. Brunson’s

Complaint.

Therefore, the court recommends that the action be

dismissed, in its entirety, without prejudice under Fed. R.

Civ. P. 12(b)(1).
****■*■

59 Mr. Brunson’s claims against defendant members of Congress and

former Vice President Pence, alleging failure to investigate election
fraud prior to accepting the electoral college votes, are also likely
barred by absolute legislative immunity under the Speech or Debate
clause of the Constitution. Article I, section 6 of the Constitution
provides: “The Senators and Representatives ... for any speech or
Debate in either House, ... shall not be questioned in any other Place.”
This clause affords Members of Congress absolute immunity from all
claims arising out of their conduct in the legislative sphere. See, e.g.,
Rockefeller v. Bingaman, 234 F. App’x 852, 855 (10th Cir.) (holding that
Speech or Debate immunity barred suit challenging the “decision of
individual Congressmen not to take legislative action in response to
[plaintiffs] prompts”), cert, denied, 552 U.S. 1022 (2007); see also Rangel
v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (providing that the
“Supreme Court has consistently read the Speech or Debate Clause
‘broadly’ to achieve its purposes”)
 App. 54

Copies of this Report and Recommendation are being

sent to all parties, who are hereby notified of their right to

object.60 The parties must file any objection to this Report

and Recommendation within 14 days after being served

with a copy of it.61 Failure to object may constitute waiver

of objections upon subsequent review.

DATED January 6, 2022

BY THE COURT:

/s/ Jared C. Bennett

JARED C. BENNETT
United States Magistrate Judge.

60 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).

61 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
 App. 55

Raland J Brunson
4287 South Harrison Blvd., Apt 132
Ogden, Utah 84403
Phone: 385-492-4898
Email: thedreamofthecentury@gmail.com
for Se

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH
RALAND BRUNSON, OPPOSITION TO
MOTION TO DISMISS
Plaintiff, FOR LACK OF
JURISDICTION AND
vs. FAILURE TO STATE A
CLAIM FOR RELIEF
ALMA S. ADAMS ; et al.,
Case No. l:21-cv-00111-
Defendants. JNP-JCB

Judge: Jill N. Parrish

Magistrate Judge: Jared

C. Bennett

Plaintiff Raland J Brunson (“Brunson”) hereby moves

this court with his Opposition To Motion To Dismiss For

Lack Of Jurisdiction And Failure To State A Claim For

Relief and states:

As the Supreme Court explained in Bell Atl. Corp. v.

Twombly, Plaintiffs Complaint need not contain detailed

 App. 56

factual allegations, but it must plead “enough facts to state

a claim for relief that is plausible on its face.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955

(2007). And those allegations must be sufficient to create

more than a speculative right to relief — a claim is plausible

on its face “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555. Here, Plaintiff must

be required to frame a complaint with enough “factual

matter” to show that he is entitled to relief against

Defendant and to “nudge [his] claims across the line from

conceivable to plausible.” Ashcroft v. Iqbal, 129 S.Ct. 1937

(2009) The policy behind this plausibility standard is to

expose defects in a case early in the process, “at the point of

minimum expenditure of time and money by the parties

and the court.” Id. at Bell.

“A rule 12b(6) motion to dismiss admits the facts alleged

in the complaint but challenges the plaintiff s right to relief

 App. 57

based upon those facts.” St. Benedict’s Development Co. v.

St. Benedict’s Hosv., 811 P.2d 194, 1'96 (Utah 1991) (citing

61 A Am.Jur.2d Pleading § 227 (1981)). “Rule 12(b)(6)

concerns the sufficiency of the pleadings, not the

underlying merits of a particular case,” Alvarez v. Galetka.

933 P.2d 987, 989 (Utah 1997), and does not serve to

establish the facts or resolve the merits of a case, Whipple

v. Am. Fork Irrigation Co.. 910 P.2d 1218, 1220 (Utah

1996). The sufficiency of a complaint “must be determined

by the facts pleaded rather than the conclusions stated.”

Franco v. Church of Jesus Christ of Latter-Day Saints.

2001 UT 25, H 14, 65 P.3d 1184.

SUBJECT MATTER JURISDICTION

Defendant’s argue that this Court does not have subject

matter jurisdiction which is misplaced at best based upon

two doctrines; 1) fraud vitiates everything it touches, and 2)

administrative functions are not protected by any kind of

governmental immunity.
 App. 58

“Our courts have consistently held that fraud vitiates

whatever it touches, Morris v. House, 32 Tex. 492 (1870)”.

Estate of Stonecivher v. Estate of Butts, 591 SW 2d 806.

And “"It is a stern but just maxim of law that fraud vitiates

everything into which it enters." Veterans Service Club v.

Sweeney, 252 S.W.2d 25, 27 (Kv.1952).” Radioshack Corn.

v. ComSmart, Inc., 222 SW 3d 256.

Vitiate; “To impair or make void; to destroy or annul,

either completely or partially, the force and effect of an act

or instrument.” West's Encyclopedia of American Law,

edition 2.

Brunson’s fifth cause of action against Defendants is for

fraud. And Paragraph 34 of Brunson’s complaint alleges

that “Fraud vitiates everything”. Defendants under their

sworn duty promised that they would protect Brunson’s

vote in the 2020 Presidential Election (“Election”) which

they fraudulently did not do as alleged in the Complaint.

On January 6, 2021, the 117th Congress held a

proceeding and debate (“Proceeding”). This Proceeding was

 App. 59

for the purpose of counting votes for the President and Vice

President of the United States under Amendment XII. See

1 35 of the Complaint.

The Complaint alleges that during this Proceeding there

was, from certain members of congress, a strong plea to

investigate the election. This proceeding, including this

plea to investigate the election was witnessed by the entire

nation, because there was claims of fraud which included

claims of over 1,000 affidavits detailing that the Election

was rigged with fraud, and claims that there was massive

foreign interference in the Election by helping illegal

aliens, and other noncitizens vote in the Election, thereby

canceling the votes. The Defendants intentional act to vote

against this plea to investigate these claims of fraud

threatened the stealing of this Election from every single

legal vote cast in the Election.

The Complaint alleges that Defendants voted against

investigating these serious claims of a rigged Election.

Defendants voted against investigating the claims that

 App. 60

there are over 1,000 affidavits claiming voter fraud, and

against investigating the claim that there was massive

foreign interference in the Election by helping illegal aliens

and non noncitizens to vote thereby canceling the legal

votes, and Defendants voted against investigating claims

made by the main stream news media who at relevant

times almost on a daily basis discredited voter fraud

allegations, and Defendants voted against investigating the

social media giants who discredited and silenced

allegations of election and voter fraud, and Defendants

voted against investigating many members of the Executive

Branch of Government including State and Federal

prosecuting attorneys who allegedly covered up voter fraud,

and the Defendants voted against investigating members of

the Judicial Branch of Government—Article III courts who

allegedly covered up voter fraud. The Defendants voted

against investigating all the allegations from many sources

across this country in order to determine whether or not

the Election was fair and that there were no criminal

 App. 61

actions involved in the Election affecting the outcome of the

Presidential Election. See Complaint at t 57.

Defendant Steny H. Hoyer stated, “We, the Member of

Congress, who swore an oath before God to preserve and

protect the Constitution of the United States and our

democracy, must do so now. See t 61 of the Complaint.

The said serious allegation required Defendants to

investigate the allegations under their sworn duty to

protect Brunson’s vote along with every single legal voter

that voted in the Election. If there is ever a case where

there is an enemy to the Constitution, whether it be foreign

or abroad, the only way to determine if it is a threat it must

be investigated. Members of Congress who did cry out for

an investigation into whether or not there is an enemy

attacking the Constitution requires the action of every oath

bearing member of congress to execute their duty by

conducting such investigation. The Proceeding provides

proof that there were members of congress claiming that

the Presidential Election was rigged in every single State of

 App. 62

the United States of America giving Biden and Harris a

fraudulent win. See 1 54 of the Complaint.

In the Proceeding, certain members of congress claimed

that the said fraudulent win was accomplished by, but not

limited to, the illegal changing of both state and federal

election laws, the counting of fraudulent / illegal votes

favoring Biden wherein the number of submitted ballots

exceeded the number of registered voters, and the voting

machines fraudulently switched Trump votes to Biden. See

1 56 of the Complaint.

Defendant’s voluntary sworn duty as alleged in the

Complaint is paramount and guards Defendants from

committing any abuse of this duty by exposing them to

consequences when they commit fraud. Their acts of fraud,

as alleged in the Complaint, vitiates their claim of any kind

of immunity.

What happened during the Proceeding was the

intentional act of Defendants discrediting these claims of

voter fraud without an investigation proving otherwise.

 App. 63

And as such the 12th Amendment cannot be construed to

allow the discrediting of claims of voter fraud, otherwise it

stands in direct conflict with their oaths of office.

Defendants cannot be sworn protectors and defenders of

the U.S. Constitution and then be its enemy by discrediting

claims of voter fraud as stated above, otherwise they would

be giving aid and comfort to enemies of the United States

Constitution. See t 63 of the Complaint.

Furthermore, the 12th Amendment is not available for

exercise under any acts of fraud, so what took place was not

a 12th Amendment procedure, rather it was an

administrative act to complete a possible rigged Election.

Defendants vote against investigating the Election

aided and abetted an enemy at the gate- Election fraud.

See 79 of the Complaint.

It is not in the capacity of any of the Defendants to vote

against investigating the claims of a rigged Election, and as

such they are not protected under any claims of immunity.

 App. 64

The Complaint alleges that Defendants vote to not

investigate the claims of voter fraud during the Proceeding

turned the 12th Amendment Proceeding into an

administrative act to where they committed their fraud.

Again a 12th Amendment proceeding is not available under

acts of fraud.

Governmental administrative acts are not afforded

immunity. Under the case of Forrester v. White, 484 U.S.

219, 225, 108 S.Ct. 538, 543 it gives an example of how

Governmental administrative functions are not warranted

any kind of immunity. Forrester was suing a judge to

where it was ruled that “judicial immunity should protect

only adjudicative functions, and that employment decisions

are administrative functions for which judges should not be

given absolute immunity.”

Forrester also stated that “Administrative decisions

even though they may be essential to the very functioning

of the courts, have not similarly been regarded as judicial

acts. ... In the case before us, we think it clear that Judge
 App. 65

White was acting in an administrative capacity when he

demoted and discharged Forrester. Those acts — like many

others involved in supervising court employees and

overseeing the efficient operation of a court — may have

been quite important in providing the necessary conditions

of a sound adjudicative system. The decisions at issue,

however, were not themselves judicial or adjudicative.”

The Defendants when they committed their acts of fraud

were not acting under their capacities under a 12th

Amendment Proceeding, rather they turned the Proceeding

into a fraudulent administrative act in order to disavow

any claims of voter fraud that invariably completed the

success of a possible rigged Election. Again, a 12th

Amendment Proceeding is not available under acts of fraud.

For the said reasons, Defendants in this case have no

immunity of any kind, therefore this Court has subject

matter jurisdiction to hear this case.

BRUNSON CAUSES OF ACTIONS MUST STAND

 App. 66

On October 8, 2021, in case no. 2:21-cv-175 Loy

Arlan Brunson’s leave of court to file his Third Amended

Complaint was granted (ECF 33). This moots Defendants

argument that it wasn’t allowed to be filed.

What does fraud vitiate in this case? To this question

Defendants give no argument, instead they burden the

Court with over 55 cases in their motion in support of their

argument that Brunson failed to state a claim whereupon

relief can be granted, and that Brunson has no standing,

and that Defendants have sovereign immunity, and that

Brunson did not establish compliance with any waiver of

sovereign immunity, and that Brunson did not get any

waiver for Constitutional claims, no waiver for promissory

estoppels claims, no waiver for any tort claims, and that

Brunson lacks Article III standing, and that Brunson’s

claims are barred by absolute legislative immunity, and

that Brunson does not have personal jurisdiction over

members of congress not from Utah.

 App. 67

Defendants do not touch or disturb the following

irrefutable facts alleged in the Complaint;

1. The fact that Article IV Section IV of the U.S.

Constitution states, “The United States shall guarantee to

every State in this Union a Republican Form of

Government.” Voting is the greatest power an individual

can exercise in a Republic; it is their voice and the way

citizens protect their Constitutional rights and the U.S.

Constitution. See 71 of the Complaint.

2. That an honest and fair election can only be

supported by legal votes, this is sacred. It is the basis of

our U.S. Republican Form of Government protected by the

U.S. Constitution. The efforts made, as stated in the

Complaint, that avoided an investigation of how Biden won

the election, is an act of treason and an act of levying war

against the U. S. Constitution which violated Brunson’s

right to vote in an honest and fair election and as such it

wrongfully invalidated his vote.

 App. 68

3. Acts of Congress, or case law like those cited in

Defendant’s motion cannot proceed or have merit when

they support treason, acts of war or the violations of our

inherent (God-given) rights. Complaint at ^ 18 & 19.

4. The only laws Congress has the power to enact are

those that protect our inherent rights. Complaint at Tf 20.

5. The U.S. Constitution was written with honor,

respect and recognition of our Lord Jesus Christ as

memorialized in Article VII Clause 3 which states, “ ... in

the Year of our

Lord . . .”, and as such the Defendants have sworn an

allegiance to the author of our freedoms and liberties;

our Lord Jesus Christ. Complaint at 23.

6. The founders of The U.S. Constitution expressed that

this document, The U.S. Constitution was the very

instrument set up by God to protect our God-given

unalienable rights. Complaint at 28.

7. The plenary power of Amendment IX of the U.S.

Constitution nullifies any kind of legal protection that an

 App. 69

enemy against the U.S. Constitution claims to have.

Complaint at 29.

8. The plenary power of Amendment IX nullifies any

interpretation of Amendment XII that would keep

Defendants from investigating the claims of voter fraud.

Complaint at 30.

9. A rigged election is an attack against the U.S.

Constitution especially against the equal protection clause

of the 14th Amendment of the U.S. Constitution. Complaint

at 31.

10. Despite the claims of evidence that the November 3,

2020 U.S. Presidential general election was fraudulent,

affecting the President of the United States, the Vice

President of the United States and members of the United

States Congress, the Defendants intentionally voted

against investigating the claimed evidence and conspired to

cover up the "evidence" to fraudulently have Joseph

Robinette Biden Jr. (“Biden”) inaugurated as President and

 App. 70

Kamala Harris (“Harris”) inaugurated as Vice President.

Complaint at 32.

11. This act of conspiracy has the same end result as an

act of war; to place into power whom the Defendants want,

which in this case is Biden. Complaint at 33.

Defendants (Congress) would like this Court to believe

that their vote against investigating the claims of fraud of a

rigged Election does not vitiate their immunity claims

because they created and voted for their own immunity

claims.

Defendants promissory estoppel argument is

misleading at best. Defendants, out of context cited a small

fragment of the case of Heartland Biogas, LLC as though it

supports their argument as an apparent attempt to mislead

the Court when in fact the full context of the case supports

Brunson's claims for promissory estoppel. The case states

“Under Colorado law, "[t]he elements of a promissory

estoppel claim are: (1) the promisor made a promise to the

promisee; (2) the promisor should reasonably have expected

 App. 72

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of December, 2021 I

personally placed in the United States Mail to the
individuals named below a true and correct copy of
OPPOSITION TO MOTION TO DISMISS FOR LACK
OF JURISDICTION AND FAILURE TO STATE A
CLAIM FOR RELIEF.

ANDREA T. MARTINEZ
JOHN K. MANGUM
111 South Main Street, #1800
Salt Lake City, Utah 84111

/s/ Raland Brunson

Raland Brunson