Avignone v. National Railroad Passenger Corporation

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MARIO AVIGNONE, Plaintiff, v. Civil Action No. 25-2199 (RDM) NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants. MEMORANDUM OPINION Plaintiff Mario Avignone brings this case to challenge his termination by his former employer, the National Railroad Passenger Corporation (“Amtrak”), because of his refusal to comply with Amtrak’s COVID-19 safety measures. Originally proceeding pro se, Plaintiff filed a complaint, an amended complaint, and a second amended complaint. Although Plaintiff has now retained counsel, his second amended complaint remains the operative pleading. It asserts claims under the Occupational Safety and Health Act (“OSHA Act”), the Railway Labor Act (“RLA”), 42 U.S.C. § 1985, and the U.S. Constitution against Amtrak, a union that represents Amtrak employees, and former President Joe Biden. Plaintiff’s claims are premised on his contentions that Amtrak unlawfully discharged him for refusing to comply with the company’s COVID-19 vaccination and testing requirements, despite his stated religious objection to those policies; that the union breached its duty of fair representation by failing adequately to represent him in his wrongful discharge hearing and by failing to challenge Amtrak’s COVID-19 policies; that Defendants fraudulently concealed his right to refuse COVID-19 vaccination and testing; that former President Biden’s Executive Order and related guidance requiring federal contractors to adopt COVID-19 safety measures violated several constitutional provisions and the OSHA Act; and, finally, that Amtrak, the union, and President Biden conspired to deprive Plaintiff of his constitutional right to refuse to comply with Amtrak’s COVID-19 policies based on his religious beliefs. Plaintiff also seeks to bring class claims on behalf of “many other employees . . . terminated under the same set of facts.” Dkt. 10 at 67 (SAC ¶ 305). Amtrak and the union, Transportation Communications Union/IAM (“TCU/IAM”), each move to dismiss. 1 Amtrak posits that Plaintiff’s second amended complaint fails to comply with Rule 8, that each of Plaintiff’s claims against Amtrak fails as a matter of law or because Plaintiff has failed plausibly to plead facts from which to infer a violation occurred, and that Plaintiff’s class allegations should be stricken because Plaintiff failed to seek class certification within the 90-day window required by Local Rule 23.1. TCU/IAM, for its part, contends that Plaintiff lacks standing to bring his representation-related claims against TCU/IAM because TCU/IAM is not Plaintiff’s union and that any claims against Plaintiff’s union must be construed as claims for breach of the duty of fair representation, which are barred by the six-month statute of limitations applicable to such claims. TCU/IAM also argues that Plaintiff’s conspiracy claim is so preposterous that it fails to present a federal question and thus must be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction. After Defendants filed their motions to dismiss, Plaintiff formally retained counsel, see Dkt. 22, although some of Plaintiff’s earlier filings suggest that counsel assisted him in drafting 1 Former President Biden has not answered or moved to dismiss Plaintiff’s second amended complaint. Although Plaintiff now asserts that he intended to name Biden in both his individual and official capacity and that he intended to effect service on President Biden pursuant to Federal Rule of Civil Procedure 4(i), see Dkt. 42 at 2–3, Plaintiff’s second amended complaint names President Biden only in his individual capacity, see Dkt. 10 at 7, 13 (SAC ¶¶ 1, 16(b)). According to Plaintiff’s most recent filing, he has yet to serve President Biden in his individual capacity. See Dkt. 47 at 8. 2 his pro se pleadings, see Dkt. 14 (“I have a lawyer who is out of state helping me.”). Plaintiff, through counsel, then opposed the pending motions to dismiss and requested leave to file a third amended complaint, which maintains many of Plaintiff’s original allegations but seeks to add allegations against former President Biden in his official capacity and to add the union that both TCU/IAM and Plaintiff have identified as the correct union, UNITE HERE Local 23. See Dkt. 26 (seeking, among other things, leave to file an amended complaint to add the correct union as a defendant); see also Dkt. 36; Dkt. 44; Dkt. 47. After Plaintiff declined to drop TCU/IAM from the case despite acknowledging that he was a member of UNITE HERE, TCU/IAM moved for Rule 11 sanctions against Plaintiff’s counsel. TCU/IAM contends that counsel’s refusal to dismiss TCU/IAM, after conceding in a filing that TCU/IAM was not Plaintiff’s union, see Dkt. 26 at 2, constitutes intentional harassment under Rule 11(b)(1) and reflects a legal position that counsel knew or should have known was unsupported by fact or law and for which there is no nonfrivolous argument for changing the law in violation of Rule 11(b)(2). See Dkt. 39. Plaintiff’s counsel opposes the motion and argues that TCU/IAM’s Rule 11 motion is “misleading” about how Amtrak employees’ unions are structured and about the law governing Plaintiff’s claims. See Dkt. 40 at 19–20. TCU/IAM responds that Plaintiff’s arguments about the structure of the Amtrak unions reflect a new legal theory that is not properly advanced in an opposition to a Rule 11 motion. See Dkt. 41 at 4–5. For the following reasons, the Court will GRANT Defendants’ motions to dismiss, Dkt. 21 & Dkt. 32, and will DISMISS Plaintiff’s second amended complaint in its entirety without prejudice; will DENY Plaintiff’s motion for leave to file the proposed, third amended complaint, Dkt. 44, as futile; and will DENY TCU/IAM’s motion for sanctions, Dkt. 39, but will caution 3 Plaintiff’s counsel that any similar behavior in the future may, as appropriate, warrant the imposition of sanctions. I. BACKGROUND A. Statutory Background 1. Occupational Health and Safety Act Congress enacted the OSHA Act in 1970 to promote “safe and healthful working conditions” for “every working man and woman in the Nation.” 29 U.S.C. § 651(b). To achieve these goals, the Act authorizes the Secretary of Labor, acting through the Occupational Safety and Health Administration (“OSHA”), to promulgate rules establishing health and safety standards, id. § 655, with which employers must comply, id. § 654(a)(2). A corporation “engaged in a business affecting commerce who has employees” is an “employer” required to comply with OSHA’s health and safety standards. Id. § 652(5). If, after an inspection or investigation (which employees and their representatives may request, see id. § 657(f)(1)), the Secretary believes that an employer has violated its statutory obligations or any of the published health and safety standards, he may issue a citation to the employer. Id. § 658(a). If the employer contests the citation, the Occupational Health and Safety Review Commission (“the Commission”) must provide an opportunity for a hearing, after which the Commission must issue an order affirming, modifying, or vacating the citation or directing other appropriate relief. Id. § 669(c). Affected employees or representatives of affected employees may participate in these hearings. Id. When the Commission issues a final order related to a citation, “[a]ny person adversely affected or aggrieved by” that order may seek review by filing a petition either in a United States court of appeals for the circuit in which the violation allegedly occurred or in the Court of Appeals for the District of Columbia Circuit. Id. § 660(a). The Secretary may obtain review or enforcement of a final order by the Commission in the same manner. Id. § 660(b). 4  The OSHA Act prohibits employers from discharging or discriminating against employees because they have complained of health and safety violations or caused the initiation of any proceedings under the Act. Id. § 660(c)(1). If an employee believes that he has suffered a discriminatory discharge or other discrimination, he may file a complaint with the Secretary of Labor within 30 days of the violation. Id. § 660(c)(2). The Secretary must investigate any such complaint “as he deems appropriate” and, if he determines that a violation has occurred, “bring an action in any appropriate United States district court” against the person who committed the violation. Id. The provision says nothing about whether the employee who has suffered the allegedly discriminatory action may also bring a suit directly in federal district court. Separate from the provisions governing the promulgation and enforcement of health and safety standards, the OSHA Act authorizes the Secretary of Health and Human Services (“HHS”) to conduct research related to occupational safety and health, often in consultation with the Secretary of Labor. See id. § 669. The Secretary of HHS must also consult with the Secretary of Labor to develop research plans related to identifying the criteria on which the Secretary of Labor’s occupational health and safety standards will be based, including criteria for identifying toxic substances. Id. § 669(a)(2). To do so, the Act contemplates that the Secretary of HHS may need to prescribe regulations requiring employers to record and report on employees’ exposure to potentially toxic substances. See id. § 669(a)(5). The Act further authorizes the Secretary of HHS “to establish such programs of medical examinations and tests as may be necessary for determining the incidence of occupational illnesses and the susceptibility of employees to such illnesses.” Id. The provision limits the HHS Secretary’s authority to research toxic substances as follows: “Nothing in this or any other provision of this chapter shall be deemed to authorize or require medical examination, immunization, or treatment for those who object thereto on 5 religious grounds, except where such is necessary for the protection of the health or safety of others.” Id. The Act contains no provision expressly authorizing a private right of action against employers whose own policies require medical testing or immunization. 2. Railway Labor Act “The Railway Labor Act . . . governs labor relations in the railroad and airline industries.” Davenport v. Int’l B’hd of Teamsters AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999). Section 2 of the RLA gives employees “the right to organize and bargain collectively through representatives of their own choosing, and requires employers under the Act to bargain exclusively with the representatives so chosen.” Id. (citing 45 U.S.C. § 152). The Supreme Court has interpreted this provision and others in the statute to imply a duty of fair representation (“DFR”) owed by unions in these industries to their members. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 74–76 (1991); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 199–203 (1944). This duty of fair representation obligates unions “to serve the interests of all members without hostility or discrimination toward any, to exercise [their] discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). 3. 42 U.S.C. § 1985 Section 1985 provides a private right of action against those who engage in conspiracy to interfere with civil rights. See 42 U.S.C. § 1985. Subsection three provides that: [i]f two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. Id. § 1985(3). 6 B. Factual and Procedural Background For the purpose of resolving Defendants’ motions to dismiss, the following facts, which are taken from Plaintiff’s second amended complaint, are accepted as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation modified). The Court will also consider, as appropriate, documents “incorporated in the complaint and matters [subject to] judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Plaintiff Mario Avignone was a train attendant employed for many years by Amtrak at its Chicago station. Dkt. 10 at 12 (SAC ¶ 14). On August 11, 2021, Amtrak’s Chief Executive Officer Bill Flynn issued a companywide letter outlining a new COVID-19 vaccination and testing policy that Amtrak was adopting. Dkt. 10 at 26 (SAC ¶ 81); Dkt. 10-1 at 202 (SAC, Ex. 16 at 1). The policy mandated that all current employees be fully vaccinated by November 1, 2021, and further specified that anyone “who has not provided documentation of full vaccination by” that date would “be required to submit a negative COVID-19 test result weekly.” Dkt. 10-1 at 202 (SAC, Ex. 16 at 1). But the letter also provided that employees “with a valid medical reason that prohibits COVID-19 vaccination or testing” or with “religious reasons” for objecting to the policy could seek reasonable accommodations. Id. at 203 (SAC, Ex. 16 at 2). Employees with accommodations who submitted a negative COVID-19 test “weekly or more frequently, as required” would be permitted to continue working. Id. at 204 (SAC, Ex. 16 at 3). Unvaccinated employees who did not obtain approved accommodations would be permitted to participate in the testing option at least on a temporary basis. Id. Noncompliant employees would first be placed on a temporary leave of absence, but, the letter explained, “[p]rolonged failure to submit to testing [would] be considered insubordinate, potentially resulting in termination of employment.” Id. 7  On September 9, 2021, President Biden signed Executive Order 14042, which required federal executive departments and agencies to include in their contracts clauses requiring that federal contractors and subcontractors comply with COVID-19 safety guidance published by the Safer Federal Workforce Task Force. Dkt. 10 at 27 (SAC ¶ 82); Dkt. 10-1 at 223 (SAC, Ex. 18 at 1). The associated guidance directed contractors to require that covered employees be vaccinated for COVID-19 “unless legally entitled to an accommodation.” Dkt. 10-1 at 208 (SAC, Ex. 17 at 1); see also Dkt. 10 at 27 (SAC ¶ 82). The guidance further provided that employers may be required to provide accommodations to employees who are unvaccinated because of a disability or “sincerely held religious belief, practice, or observance.” Dkt. 10-1 at 212 (SAC, Ex. 17 at 5). On September 21, 2021, Amtrak “informed all employees that the option to test instead of providing evidence of . . . vaccination was eliminated and [that] all employees were mandated to vaccinate or be placed on leave without pay.” Dkt. 10 at 27 (SAC ¶ 84). Three days later, Plaintiff submitted to Amtrak a written notice that his religious faith required him to refuse the COVID-19 vaccine. Id. at 28 (SAC ¶ 85). On October 28, 2021, Amtrak sent Plaintiff a letter “approv[ing]” Plaintiff’s religious accommodation. Dkt. 10-1 at 228 (SAC, Ex. 19 at 1). The letter informed Plaintiff that he would be placed on a 90-day unpaid personal leave of absence, with benefits for a period of time, effective December 8, 2021. Id.; Dkt. 10 at 28 (SAC ¶ 86). On December 14, 2021, Amtrak announced that it would resume the COVID-19 testing option as an alternative to vaccination. Dkt. 10 at 28 (SAC ¶ 89). Six days later, Amtrak sent Plaintiff an email informing him of the testing alternative and offering him an opportunity to end his unpaid leave and return to work full time. Id. Plaintiff declined the offer on the grounds that both COVID-19 testing and vaccination violated his religious beliefs, instead seeking an 8 accommodation that allowed his return to work if he complied only with Amtrak’s requirements for masks and personal sanitation. Id. (SAC ¶ 90). Amtrak declined, and Plaintiff remained on unpaid leave. Id. (SAC ¶ 91). Throughout the following months, Amtrak continued to inform Plaintiff that he was required to comply with its COVID-19 testing program and that his refusal might lead to disciplinary action. Id. (SAC ¶ 92); Dkt. 10-2 at 6 (SAC, Ex. 21 at 2). Plaintiff continued to object to COVID-19 testing on religious grounds. Dkt. 10 at 29 (SAC ¶ 93). Amtrak sent Plaintiff a letter on June 10, 2022, informing him that he was noncompliant with the testing policy and that he had seven days to come into compliance before his noncompliance would be considered insubordination. Id. (SAC ¶ 94); Dkt. 10-2 at 23 (SAC, Ex. 22 at 1). On June 21, Amtrak sent Plaintiff a formal notice that he was being investigated for termination based on his noncompliance with the COVID-19 policy and directed him to attend a virtual hearing. Dkt. 10 at 29 (SAC ¶ 95); Dkt. 10-2 at 25 (SAC, Ex. 23 at 1). Plaintiff attended the hearing and was represented by his union representative. Dkt. 10-2 at 27 (SAC, Ex. 24 at 1). At the hearing, Plaintiff continued to object to the COVID-19 vaccination and testing policy on religious grounds. Dkt. 10 at 29 (SAC ¶ 96). Amtrak issued a written decision on July 11, 2022, outlining the Hearing Officer’s findings that Plaintiff had violated Amtrak’s COVID-19 vaccine and testing policy. Id. (SAC ¶ 97); Dkt. 10-2 at 28 (SAC, Ex. 24 at 2). Plaintiff’s employment was terminated on July 13, 2022. Dkt. 10 at 30 (SAC ¶ 98); Dkt. 10-1 at 2 (SAC, Ex. 1 at 1). On October 31, 2022, Amtrak sent Plaintiff a letter offering him “the opportunity to be reinstated to service on a leniency basis” with his “seniority and vacation rights restored” but without pay for time lost, conditioned on Plaintiff “accept[ing] responsibility” for the actions that led to his termination and waiving any 9 claim to damages as a result of his discharge. Dkt. 10 at 28 (SAC ¶ 87); Dkt. 10-2 at 2 (SAC, Ex. 20 at 1). Plaintiff declined the offer of reinstatement. Dkt. 10 at 28 (SAC ¶ 88). On May 12, 2023, President Biden rescinded Executive Order 14042 and the related guidance. Dkt. 10 at 30 (SAC ¶ 99). After he did so, Plaintiff unsuccessfully applied several times for new positions at Amtrak. Id. (SAC ¶ 100); see Dkt. 10-2 at 30, 31 (SAC, Ex. 25 at 1, 2). Plaintiff filed his first complaint in this action nearly three years after his termination, on July 1, 2025. See Dkt. 1. He has amended his complaint twice, each time adding additional defendants and allegations. See Dkt. 5 (FAC); Dkt. 10 (SAC). Plaintiff’s second amended complaint asserts claims under the OSHA Act, D.C. law governing fraudulent concealment, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), various federal constitutional provisions, and 42 U.S.C. § 1985(3). Plaintiff’s operative complaint also includes “class allegations” asserting that “many other employees may have been terminated under the same set of facts.” Dkt. 10 at 67 (SAC ¶ 305). The same day that he filed his second amended complaint, Plaintiff moved for summary judgment. See Dkt. 12. The Court denied that motion as premature because Defendants had not yet answered his complaint and because Plaintiff failed to comply with the Court’s standing order. See Min. Order (Dec. 23, 2025). Amtrak and TCU/IAM subsequently moved to dismiss all claims under Rules 12(b)(1) and 12(b)(6). See Dkt. 21; Dkt. 32. Amtrak argues that Plaintiff’s complaint should be dismissed in its entirety because he has failed to comply with Rule 8’s requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Amtrak further contends that Plaintiff’s claims fail as a matter of law or for failure to 10 plead sufficient factual allegations to state a plausible claim for relief. TCU/IAM contends that Plaintiff lacks standing to bring his claims against TCU/IAM because Plaintiff is not a member of TCU/IAM but rather a different union, UNITE HERE Local 23. TCU/IAM also argues that all of Plaintiff’s claims are repackaged claims for the breach of the duty of fair representation and are accordingly barred by the six-month statute of limitations applicable to such claims. After Amtrak moved to dismiss, Plaintiff retained counsel, see Dkt. 22, who sought reconsideration of the Court’s decision denying Plaintiff’s motion for summary judgment as premature and procedurally improper, see Dkt. 32, and who filed a consolidated brief in opposition to both pending motions for summary judgment, see Dkt. 26. In the first of these motions, Plaintiff’s counsel argued that the Court’s requirements outlined in its standing order violate the Federal Rules of Civil Procedure; counsel continued to press for summary judgment briefing and a hearing; and counsel sought leave to amend Plaintiff’s second amended complaint “to add UnitedHere [sic] union as a new defendant based on Plaintiffs [sic] inadvertent incorrect identification of TCU/IAM as his union when UnitedHere [sic] was actually the union to whom he paid his dues.” Id. at 2. The Court denied Plaintiff’s motion for reconsideration because Plaintiff’s attempt to address the merits of Plaintiff’s claims on summary judgment before the Court has determined whether the second amended complaint properly invokes the Court’s jurisdiction or states a claim was premature. And the Court denied Plaintiff’s motion for leave to amend because Plaintiff’s request to amend his complaint was procedurally improper (because Plaintiff failed to include a proposed and redlined amended complaint) and moot (because Plaintiff had filed a superseding motion for leave to amend). See Min. Order (July 14, 2026). TCU/IAM subsequently moved for the imposition of sanctions against Plaintiff’s counsel under Rule 11, asserting that counsel’s refusal to dismiss TCU/IAM as a defendant despite 11 conceding that Plaintiff’s complaint identified the wrong union constitutes intentional harassment under Rule 11(b)(1) and violates Rule 11(b)(2)’s requirement that attorneys submit filings containing claims that are either “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2). Plaintiff’s counsel opposes that motion on the grounds that Plaintiff’s claims are supported by law governing the scope of unions’ representative duties and that Plaintiff’s conspiracy claim is non-frivolous. See Dkt. 40. Plaintiff also seeks leave to file his third amended complaint to clarify that his claims against President Biden seek to hold him liable in both his official and his individual capacities and to add “UNITE HERE Local 43” as a defendant. See Dkt. 44. In its response, TCU/IAM contends that “Plaintiff’s motion should . . . be denied because—even after all of this time and after multiple filings identifying the correct union—Plaintiff is proposing to add another wrong defendant union to this case.” Dkt. 46 at 1. As TCU/IAM points out, its previous filings had identified UNITE HERE Local 23, rather than Local 43, as the union to which Plaintiff belonged. Id. at 1–2. Rather than dispute TCU/IAM’s assertion, Plaintiff in reply seeks leave “to correct that identification before filing an amended pleading,” Dkt. 47 at 5, and to add yet another defendant, the Amtrak Service Workers Council (“ASWC”), because Plaintiff had “recently discovered” a Seventh Circuit decision from 1993 in which ASWC was named as a union defendant, id.at 2. Plaintiff then filed yet another proposed third amended complaint, this time seeking to add both ASWC and UNITE HERE Local 23 as defendants. See Dkt. 48-1. Now pending before the Court are TCU/IAM’s and Amtrak’s motions to dismiss, Dkt. 21 & Dkt. 32; TCU/IAM’s motion for Rule 11 sanctions, Dkt. 39; and Plaintiff’s motion for leave to file a third amended complaint, Dkt. 44, all of which are ripe for the Court’s review. 12  II. LEGAL STANDARD A. Motions to Dismiss The Court may dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) upon a defendant’s motion or sua sponte, “where the claimant cannot possibly win relief.” Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (citation modified). A motion to dismiss brought under Rule 12(b)(6) is designed to “test[] the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim’ to relief, and then determine whether the plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level,” id. at 555–56. A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) seeking dismissal for lack of subject-matter jurisdiction may take one of two different forms. First, a Rule 12(b)(1) motion “may raise a ‘facial’ challenge to the Court’s jurisdiction.” Hale v. United States, No. 13-cv- 1390, 2015 WL 7760161, at *3 (D.D.C. Dec. 2, 2015). A facial challenge asks whether the complaint alleges facts sufficient to establish the court’s jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); see also Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 879 F.3d 339, 346–47 (D.C. Cir. 2018). In this posture, the Court must accept the factual allegations of the complaint as true and construe them in the light most favorable to the non-moving party. Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (collecting cases). 13  “Alternatively, a Rule 12(b)(1) motion may pose a ‘factual’ challenge to the Court’s jurisdiction.” Hale, 2015 WL 7760161, at *3. When a motion to dismiss is framed in this manner, “the [C]ourt may not deny the motion . . . merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant” but “must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). “The [C]ourt has considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,” so long as it “afford[s] the nonmoving party an ample opportunity to secure and present evidence relevant to the existence of jurisdiction.” Prakash v. Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984) (citation modified). Under both Rule 12(b)(6) and Rule 12(b)(1), the Court must review the sufficiency of Plaintiff’s second amended complaint under the standards applicable to pro se pleadings. A pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Naz v. Wright, 177 F.4th 1242, 1246 (D.C. Cir. 2026). “This benefit is not, however, a license to ignore the Federal Rules of Civil Procedure.” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted). A pro se complaint must “still ‘present a claim on which the Court can grant relief’ to withstand a Rule 12(b)(6) challenge.” Smith v. Scalia, 44 F. Supp. 3d 28, 36 (D.D.C. 2014) (citations omitted). Moreover, as with any other plaintiff, a pro se plaintiff must meet his burden of establishing subject-matter jurisdiction. See, e.g., Green v. Stuyvesant, 505 F. Supp. 2d 176, 176 (D.D.C. 2007). B. Leave to File Amended Complaint A plaintiff may amend his complaint once as a matter of right. See Fed. R. Civ. P. 15(a)(1). For subsequent amendments, the plaintiff must obtain either the opposing party’s 14 written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The Court should grant leave to amend “freely” in the absence of circumstances “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). C. Motion for Sanctions Rule 11 requires an attorney presenting “a pleading, written motion, or other paper” to certify “to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the material “is not being presented for any improper purpose, such as to harass;” that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;” and that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b). “If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Id. 11(c). In deciding whether to impose sanctions, the Court must consider “(1) whether each presenting attorney ‘conducted a reasonable inquiry,’ (2) whether each presenting attorney ‘determined that [the] papers filed with the court are well grounded in fact [and] legally tenable,’ and (3) whether the papers were ‘interposed for any improper purpose.’” Jordan v. U.S. Dep’t of Labor, 273 F. Supp. 3d 214, 241 (D.D.C. 2017) (alterations in original) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). “Rule 11 sanctions . . . are an extreme punishment for filing pleadings that frustrate judicial proceedings,” and, accordingly, they are 15 not to be imposed “lightly.” Id. “The test for sanctions under Rule 11 is an objective one that asks whether a reasonable inquiry would have revealed that there was no basis in law or fact for the asserted claim.” Hedgeye Risk Mgmt., LLC v. Heldman, 412 F. Supp. 3d 15, 34 (D.D.C. 2019); see Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 100 (D.D.C. 2007). The Court must also “take into consideration that Rule 11 sanctions are a harsh punishment, and what effect, if any, the alleged violations may have had on judicial proceedings.” Robinson-Reeder v. Am. Council on Educ., 626 F. Supp. 2d 11, 18 (D.D.C. 2009) (citation modified). When the Court determines that a Rule 11 violation has occurred, the Court has discretion to select the appropriate sanction necessary to “protect the court from frivolous and baseless filings that are not well grounded, legally untenable, or brought with the purpose of vexatiously multiplying the proceedings.” Cobell v. Norton, 211 F.R.D. 7, 10 (D.D.C. 2002) (citation modified). But “once the district court finds that a pleading is not well grounded in fact, not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, or is interposed for any improper purpose, Rule 11 requires that sanctions of some sort be imposed.” Rafferty v. NYNEX Corp., 60 F.3d 844, 852 (D.C. Cir. 1995) (emphasis in original and citation modified). III. ANALYSIS The crux of Plaintiff’s complaint is that Amtrak—in response to former President Biden’s COVID-19 Executive Order and the related guidance and without objection by TCU/IAM— mandated that Plaintiff either receive the COVID-19 vaccine or undertake weekly COVID-19 testing as a condition of his employment, despite Plaintiff’s asserted religious objection to vaccination and testing. Plaintiff’s operative complaint challenges Amtrak’s termination of his employment in response to his refusal to comply with its policy, TCU/IAM’s inadequate 16 representation of him during his hearing and its failure to challenge Amtrak’s COVID-19 policy, and President Biden’s COVID-19 Executive Order and related guidance, as well as President Biden’s public statements about COVID-19 vaccines. 2 In doing so, Plaintiff asserts claims under the OSHA Act, D.C. fraudulent concealment law, Bivens, the Railway Labor Act’s implied duty of fair representation, 42 U.S.C. § 1985(3), and various other constitutional provisions. Plaintiff also seeks to proceed on behalf of similarly situated Amtrak employees, although he has yet to seek class certification. The Court concludes that Plaintiff’s complaint must be dismissed in its entirety. With respect to Plaintiff’s claims against TCU/IAM, the Court concludes that Plaintiff lacks standing to sue TCU/IAM because the evidence put forth by the parties demonstrates that TCU/IAM was not the union that represented Plaintiff and thus owed him no duty of fair representation. Plaintiff’s fair representation claim, as well as his remaining claims against TCU/IAM that in substance merely repackage his fair representation claim, must therefore be dismissed under Rule 12(b)(1). Plaintiff’s claims against former President Biden also fail, and the Court will dismiss them sua sponte because the Court lacks jurisdiction over some and Plaintiff “cannot possibly win relief,” Baker, 916 F.2d at 726, on the rest. To the extent Plaintiff seeks to bring his claims against President Biden in his individual capacity for money damages, such claims are barred by President Biden’s absolute immunity for all actions taken within the scope of his official 2 Plaintiff’s second amended complaint also, at times, suggests that Defendants may have committed a felony under D.C. law by “prescrib[ing]” a “medical treatment” (the COVID-19 vaccine) despite being non-physicians who are unlicensed to do so. Dkt. 10 at 21 (SAC ¶¶ 53– 54). Because D.C. criminal law does not provide a basis for the Court to grant Plaintiff relief on his civil complaint, the Court will not consider these allegations. See Agarwal v. United States, No. 18-cv-03125, 2019 WL 2476613, at *3 (D.D.C. June 13, 2019); Anderson v. Wiggins, 460 F. Supp. 2d 1, 7–8 (D.D.C. 2006). 17 responsibility as President. And Plaintiff’s remaining constitutional and ultra vires claims seeking declaratory and injunctive relief based on President Biden’s Executive Order and guidance related to COVID-19 vaccination must be dismissed as moot because both the Executive Order and the related guidance were rescinded long ago. As for Plaintiff’s remaining claims against Amtrak, all must be dismissed under Rule 12(b)(6). Plaintiff lacks a private right of action to pursue his OSHA Act wrongful-discharge claim in federal court, and a Bivens remedy is unavailable against Amtrak for allegedly violating Plaintiff’s substantive due process right to refuse the COVID-19 vaccine. Plaintiff also fails plausibly to plead fraudulent concealment or conspiracy to deprive him of his civil rights in violation of § 1985(3). And, because all of Plaintiff’s individual claims must be dismissed, his putative class claims must be dismissed as well. The Court will also deny Plaintiff’s request to file a third amended complaint because filing the amended complaint would be futile. Plaintiff’s proposed amended complaint does not cure any of the defects in his second amended complaint. And, although Plaintiff proposes to add two other union defendants he alleges owed him a duty of fair representation, amending his complaint to bring these claims against those unions would be futile because any such claims would be time-barred. Finally, the Court will deny TCU/IAM’s motion for sanctions. Although counsel’s litigation conduct is troubling and reflects fundamental misunderstandings of law and lack of care, the Court concludes that the record is insufficient to demonstrate that counsel’s refusal to dismiss TCU/IAM constitutes intentional harassment or crosses the line from ill-advised to sanctionable conduct. The Court cautions Plaintiff’s counsel, however, that repeated attempts to pursue claims against concededly improper defendants—and to contrive novel and unsupported 18 justifications for doing so after the fact—frustrates the judicial process and will invite sanctions if, after fair warning, counsel continues to press such claims. A. TCU/IAM’s Motion to Dismiss At the outset, TCU/IAM argues that Plaintiff lacks standing to bring his claims against it because all of Plaintiff’s claims relating to TCU/IAM’s alleged actions are, in substance, claims for breach of the duty fair representation under the Railway Labor Act and must be treated as such. Plaintiff lacks standing to pursue those claims, TCU/IAM continues, because he was not a member of TCU/IAM; rather, Plaintiff concedes that he was a member of different union, which he now seeks to add as defendant. TCU/IAM frames its argument as a factual challenge to the Court’s jurisdiction under Rule 12(b)(1), which the Court must resolve not by accepting Plaintiff’s factual allegations as true but, instead, by considering the relevant jurisdictional fact—here, whether Plaintiff was a member of TCU/IAM or a different union. See Phoenix Consulting, Inc., 216 F.3d at 40. TCU/IAM further argues that, because it moves to dismiss for lack of Article III jurisdiction, the Court may consider materials outside the pleadings, including any undisputed facts established in the record. All. For Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); Conf. of State Bank Supervisors v. Off. of Comptroller of Currency, 313 F. Supp. 3d 285, 294 (D.D.C. 2018) (cit