Suing the feds in a 1983 suit?

If the House goes ahead with the Slaughter solution, radio host Mark Levin will sue on the defective theory that I criticized this morning. He has posted the draft complaint.

The complaint doesn't even bother to explain why Levin has standing, and the substantive legal claim is frivolous (see this post), but what really baffles me is the chosen vehicle. The case purports to be a 1983 action, but it can only maintain a straight face by misstating section 1983 ("Under color of law, the Defendants intend to collect taxes"; cf. 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia")). The need to misstate is telling: how can you sue federal officials for acts arising under federal law in a 1983 action? See Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998) ("federal agencies and officers are facially exempt from section 1983 liability inasmuch as in the normal course of events they act pursuant to federal law"), and, e.g., Lugar v. Edmondson Oil, 457 U.S. 922 (1983); Flamingo Industries v. USPS, 302 F.3d 985 (9th Cir. 2002), rev'd on other grounds, 540 U.S. 736 (2004); Calvert v. Sharp, 748 F.2d 861 (4th Cir. 1984). The plaintiffs don't even allege action under state law. Cf. Hindes, supra ("It is a well-established principle … that federal officials are subject to section 1983 liability when sued in their official capacity where they have acted under color of state law" (emphasis added) (citing cases)).

This filing is a press release on complaint paper, and 12(b)(6) bait.

Added: It's difficult to see how Levin has standing, either. What "injury" does he suffer from the bill, in abstracto? Taxpayer standing is allowed only in a very limited subset of Establishment Clause cases, see Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), and even that is a questionable exception from what is otherwise understood to be a requirement of Article III, see Winkler v. Gates, 481 F.3d 977 (7th Cir. 2007) (Sykes, J., concurring). Beyond that, the court has repeatedly held that "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." Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-4 (1992); see Lance v. Coffman, 127 S.Ct. 1194 (2007). So we have a trifecta: defective cause of action, frivolous claim, and no standing. This isn't just 12(b)(6) bait, it's rule 11 noodling.

Post facto
Just to be clear (3/19/10)