Attorney Daniel A. Horwitz also doesn't have standing to sue four of the district's judges over claims that the court's use of Local Rule 83.04 violates his free speech rights, Sixth Circuit Judge Julia S. Gibbons said in her order dismissing Horwitz's challenge to the rule.
Horwitz, who brings public interest cases against the government and its contractors in the district, sued Tennessee's Middle District and all four of its district judges in September over Local Rule 83.04, which bars lawyers who litigate in the district from making "any extrajudicial statements (other than a quotation from or reference to public records)" that could be disseminated publicly and has a "substantial likelihood of materially prejudicing an adjudicative matter."
Horwitz claimed in his suit that the use of that rule to impose a gag order on him in a past case has chilled his ability to speak about other cases since.
But his suit is barred by sovereign immunity, at least against the court, Judge Gibbons said Tuesday.
"The doctrine of sovereign immunity bars federal courts from hearing all suits against the federal government, except where sovereign immunity has been waived. Claims brought against a federal district court, as part of the judicial branch of the United States government, are brought against the United States," explained Judge Gibbons, who heard the case by designation.
"Horwitz makes no attempt to demonstrate that there has been a waiver of sovereign immunity and, therefore, fails to meet his burden of establishing that the United States has waived its sovereign immunity," the judge added.
The rule dispute stems from a prisoners' rights case Horwitz brought against private prison contractor CoreCivic of Tennessee LLC. After Horwitz spoke about the case with media outlets and posted about it on social media, CoreCivic filed a "Motion for Compliance with Local Rule 83.04," claiming that Horwitz's "public commentary" prejudiced CoreCivic's right to a fair trial.
Horwitz claimed in his suit that the gag order imposed on him by a magistrate judge in 2022 in response to CoreCivic's motion has chilled his speech and stopped him from speaking publicly about other cases he's brought against CoreCivic since.
While sovereign immunity sinks Horwitz's case against the court, it doesn't bar his suit against the district's four judges, because he's seeking prospective relief from alleged ongoing constitutional violations against federal officials in their official capacities, Judge Gibbons ruled.
But Horwitz doesn't have Article III standing to sue the jurists, according to the judge, who said she raised the issue of Article III standing sua sponte since it concerns the court's subject matter jurisdiction.
That's because Horwitz's suit is based on the possibility that the rule may be invoked against him in the future, according to Judge Gibbons.
"Even assuming the truth of Horwitz's allegations, without further factual enhancement, they amount to mere some-day intentions and are exactly the kind of 'hypothetical' and 'conjectural' sources of injury that cannot establish Article III standing," Judge Gibbons said.
And past enforcement of the rule doesn't currently infringe Horwitz's First Amendment rights, since harm that occurred three years ago can't establish an immediate threat that that harm will occur in the future, according to the judge, who dismissed the case for lack of jurisdiction.
"Judge Gibbons' decision, one she reached without the benefit of briefing, misapplied the law. Daniel does not need to violate the court's rules before he has standing to bring a pre-enforcement challenge," an attorney for Horwitz, Jared McClain of the Institute for Justice, told Law360 Pulse Tuesday. "We'll be filing our appeal in the morning."
Attorneys for the U.S. District Court for the Middle District of Tennessee did not respond to requests for comment Tuesday.
Horwitz is represented by Braden H. Boucek of the Southeastern Legal Foundation and Benjamin A. Field and Jared McClain of the Institute for Justice.
The Middle District of Tennessee is represented by Timothy Thompson and Jason Snyder of the U.S. Attorney's Office for the Western District of Kentucky.
The case is Horwitz v. U.S. District Court for the Middle District of Tennessee et al., case number 3:24-cv-01180, in the U.S. District Court for the Middle District of Tennessee.
--Editing by Robert Rudinger.
Update: This story has been updated with comment from Horwitz's attorney.
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