DRAKE v. OBAMA Nos. 09-56827, 10-55084.
664 F.3d 774 (2011)
Wiley S. DRAKE; Markham Robinson, Plaintiffs-Appellants, and Ambassador Alan Keyes, Ph.D.; Captain Pamela Barnett; Lieutenant Colonel Richard Norton Bauerbach; Captain Robin D. Biron; Colonel John D. Blair; Mr. David L. Bosley; Ms. Loretta G. Bosley; Captain Harry G. Butler; Representative Glenn Casada, Tennessee; Jennifer Leah Clark; Representative Timothy Comerford, New Hampshire; Charles Crusemire; Representative Cynthia Davis, Missouri; Chief Warrant Officer Thomas S. Davidson; Matthew Michael Edwards; Lieutenant Jason Freese; Mr. Kurt C. Fuqua; Officer Clint Grimes; Julliett Ireland; D. Andrew Johnson; Israel D. Jones; State Representative Timothy Jones, Esq., Missouri; Commander David Fullmer Laroque; Gail Lightfoot; MIL Officer Lita M. Lott, U.S. Army; Major David Grant Mosby; MSGT Steven Kay Neuenschwander; State Representative Frank Niceley, Tennessee; Retired Senator Jerry O'Neil, Montana; SFC E7 Robert Lee Perry; Colonel Harry Riley; Sergeant Jeffrey Wayne Rosner; MSGT Jeffrey Schwilk; Captain David Smithey; Lieutenant Commander John Bruce Steidel; Commander Douglas Earl Stoeppelwerth; Thomas J. Taylor; Representative Eric Swafford, Tennessee; Captain Neil B. Turner; Richard E. Venable; LCDR Jeff Graham Winthrope; Lieutenant Colonel Mark Wriggle, Plaintiffs, v. Barack Hussein OBAMA; Michelle L.R. Obama; Hillary Rodham Clinton, Secretary of State; Robert M. Gates, Secretary of Defense; Joseph R. Biden, Vice President and President of the Senate, Defendants-Appellees. Pamela Barnett, Captain; Alan Keyes, Ph.D., Ambassador; Richard Norton Bauerbach, Lieutenant Colonel; Robin D. Biron, Captain; John D. Blair, Colonel; David L. Bosley, Lt. Col.; Loretta G. Bosley; Harry G. Butler, Captain; Glenn Casada, Representative, Tennessee; Jennifer Leah Clark; Timothy Comerford, Representative, New Hampshire; Charles Crusemire; Cynthia Davis, Representative, Missouri; Thomas S. Davidson, Chief Warrant Officer; Matthew Michael Edwards; Jason Freese, Lieutenant; Kurt C. Fuqua, Mr.; Clint Grimes, Officer; Julliett Ireland; D. Andrew Johnson; Israel D. Jones; Timothy Jones, State Representative; David Fullmer Laroque, Commander; Gail Lightfoot; Lita M. Lott, MIL Officer, U.S. Army; David Grant Mosby, Major; Steven Kay Neuenschwander, MSGT; Frank Niceley, State Representative, Tennessee; Robert Lee Perry, SFC E7; Harry Riley, Colonel; Jeffrey Wayne Rosner, Sergeant; David Smithey, Captain; John Bruce Steidel, Lieutenant Commander; Douglas Earl Stoeppelwerth, Commander; Eric Swafford, Representative, Tennessee; Neil B. Turner, Captain; Richard E. Venable; Jeff Graham Winthrope, LCDR; Mark Wriggle, Lieutenant Colonel, Plaintiffs-Appellants, v. Barack Hussein OBAMA; Michelle L.R. Obama; Hillary Rodham Clinton, Secretary of State; Robert M. Gates, Secretary of Defense; Joseph R. Biden, Vice President and President of the Senate, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Filed December 22, 2011.
Gary G. Kreep , Ramona, CA, and Orly Taitz , Rancho Santa Margarita , CA, for the plaintiffs-appellants.
David A. DeJute and Roger E. West , Assistant United States Attorneys, Los Angeles, CA, for the defendants-appellees.
Before: HARRY PREGERSON, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.
PREGERSON, Circuit Judge:
Plaintiffs-Appellants contend that Barack Obama is constitutionally ineligible to be President of the United States. United States District Court Judge David O. Carter dismissed Plaintiffs' constitutional claims, as well as their claims for declaratory and injunctive relief, for lack of standing. We affirm the dismissal for lack of standing, albeit on somewhat different reasoning than that of the District Court.
Plaintiffs additionally appeal the District Court's dismissal of their quo warranto claims for improper venue; their Freedom of Information Act claims for failure to state a claim; and their Racketeer Influenced and Corrupt Organizations Act claims against defendants First Lady Michelle Obama, Secretary of State Hillary Clinton, Vice President Joe Biden, and former Secretary of Defense Robert Gates, for failure to state a claim. We affirm.
Plaintiffs filed their lawsuit on January 20, 2009, the day Barack Obama was sworn in and took office as President of the United States.
The Defendants include President Barack Obama, First Lady Michelle Obama, Vice President Joe Biden, Secretary of State Hillary Clinton, and former Secretary of Defense Robert Gates.
Plaintiffs claim that President Obama is ineligible for the presidency under Article II, Section 1 of the United States Constitution, which states that "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President." U.S. Const. art. II, § 1, cl. 4.
For ease of analysis, the District Court divided the plaintiffs into six categories: (1) active military personnel; (2) former military personnel; (3) state representatives; (4) federal taxpayers; (5) relatives of President Obama; and (6) political candidates in the 2008 election. The District Court concluded that the plaintiffs in the first five categories lacked standing, because they failed to show an injury-in-fact or showed only a generalized grievance insufficient to establish standing.
Concluding that no plaintiff had standing to sue, the District Court dismissed Plaintiffs' declaratory relief, injunctive relief, and constitutional claims for lack of subject matter jurisdiction. The District Court further dismissed Plaintiffs' quo warranto claims for improper venue, concluding that the proper forum is the United States District Court for the District of Columbia. Plaintiffs' FOIA claims were dismissed for failure to state a claim because none of the Defendants is an agency; and their RICO claims, which were never filed, were dismissed for failure to state a claim.
We have jurisdiction to review the District Court's final decision pursuant to 28 U.S.C. § 1291. We review a district court's dismissal of an action for lack of subject matter jurisdiction de novo and may affirm on any basis supported by the record. Zuress v. Donley, 606 F.3d 1249, 1252 (9th Cir.2010). "A district court's findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error." Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). With regard to such jurisdictional questions, "[n]o presumptive truthfulness attaches to plaintiff's allegations. Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Id. (internal citations and quotation marks omitted).
CONSTITUTIONAL CLAIMS: STANDING
To establish Article III standing, a plaintiff must show: (1) "an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court"; and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (omissions in original) (internal quotation marks and citations omitted). Moreover, a litigant's interest cannot be based on the "generalized interest of all citizens in constitutional governance." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); see also United States v. Richardson, 418 U.S. 166, 173-78, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (taxpayer's generalized grievance insufficient for standing).
Because Plaintiffs must establish standing to bring this suit, we adopt the District Court's classification of the parties and
1. Active Military Personnel
The list of plaintiffs includes Lieutenant Jason Freese, who is on active military duty in Alaska. The complaint alleged that Freese "has standing to challenge and demand clear-and-convincing proof of the constitutional qualifications of the Commander-in-Chief and the legality of the current chain of command, and may qualify as a class representative on behalf of all currently active members of the United States Armed Forces." Plaintiffs allege that Freese and other active duty military personal have standing because they are required to take an oath in which they swear to support and defend the Constitution of the United States and obey the orders of the officers appointed over them. See 10 U.S.C. § 502. Freese argues that, were he to refuse to follow President Obama's orders, despite his ineligibility for the presidency, Freese would face disciplinary action by the military.
Freese's injuries are not sufficiently concrete to establish Article III standing, regardless of his military oath. We have addressed "oath taker standing" before. In South Lake Tahoe, city councilmembers alleged that land use regulations adopted by the state were unconstitutional and that voting to enforce the regulations would both violate their oaths of office to uphold the Constitution and expose them to civil liability. City of S. Lake Tahoe v. Cal. Tahoe Reg'l Planning Agency, 625 F.2d 231, 233 (9th Cir.1980). We considered the Supreme Court's decision in Board of Education v. Allen, which held in a footnote that the plaintiff oath takers had a "personal stake in the outcome" of the litigation because they would be punished for refusing to comply with a statute that they believed required them to violate their oath to uphold the Constitution. Id. (citing 392 U.S. 236, 241 n. 5, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968)). Citing to intervening Supreme Court precedent on the doctrine of standing, we determined that the holding of footnote 5 in Allen is not "properly . . . considered as binding Supreme Court precedent," and "therefore [held] that the councilmembers' desire not to violate their oaths of office does not confer standing." Id. at 237, 88 S.Ct. 1923 (citing Schlesinger, 418 U.S. at 217, 94 S.Ct. 2925). We stated that an oath taker's claims are, under contemporary jurisprudence, "abstract constitutional grievances" insufficient to meet the requirements of Article III. Id. at 238, 88 S.Ct. 1923.
Like the councilmembers in South Lake Tahoe, Freese has failed to assert any concrete injury. The notion that he will be disciplined by the military for obeying President Obama's orders is entirely speculative. He might be disciplined for disobeying those orders, but he has an "available course of action which subjects [him] to no concrete adverse consequences"—he can obey the orders of the Commander-in-Chief. S. Lake Tahoe, 625 F.2d at 237. In the absence of a concrete injury, Freese asserts nothing more than an abstract constitutional grievance that, far from being particularized to him, is shared by all citizens generally. See id. ("The fundamental premise of Schlesinger . . . is that a litigant's standing cannot be based on the `generalized interest of all citizens in constitutional governance.'" (quoting Schlesinger, 418 U.S. at 217, 94 S.Ct. 2925)). Thus, Freese and other active duty military personnel plaintiffs have no standing to bring this lawsuit.
2. Former Military Personnel
According to the complaint, "inactive or retired military personnel who are
The retired and inactive military personnel's assertion of standing is far too speculative and conjectural. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; see also Kerchner v. Obama, 612 F.3d 204, 208 (3d Cir.2010) (rejecting, as conjectural, a naval reserve officer's assertion of standing to challenge President Obama's qualifications for the presidency, where the officer asserted standing on the grounds that he might be required to serve the Commander-in-Chief in the case of an extreme national emergency). Plaintiffs' alleged injuries are neither actual nor imminent. Plaintiffs, moreover, rely on the same oath taker's standing we have rejected as too abstract and generalized. Like the active military personnel, this category of plaintiffs lacks standing.
3. State Representatives
Plaintiffs allege that state representatives have "unique standing" because they have a "special non-delegable constitutional right and responsibility to verify the qualifications of the Chief Executive Officer of the United States of America who is responsible for allocating large sums of [federal] funds, since receipt of funds from any officer without legal authority would be complicity in theft or conversion."
In South Lake Tahoe, we rejected as insufficient to establish standing a similar contention that a public official could conceivably be exposed to civil liability while carrying out his official duties. 625 F.2d at 238-39. We noted that whether the officials could in fact be subject to civil liability was dependent on "multiple contingencies," including the likelihood of any civil suit and the question whether the official would be immune from any such suit. Id. at 239. The alleged harm to the state representatives in this case is just as speculative and conjectural as in South Lake Tahoe, for similar reasons. This group of plaintiffs therefore fails to establish standing. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.
4. Federal Taxpayers
Plaintiffs also do not have standing as federal taxpayers because, as they concede, Supreme Court precedent precludes taxpayer standing in this situation.
In Flast v. Cohen, the Supreme Court held that federal taxpayers have standing to raise Establishment Clause claims. 392 U.S. 83, 88, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). A taxpayer would have standing "when he alleges that congressional power under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power." Id. at 106, 88 S.Ct. 1942. The Supreme Court, however, expressed a lack of confidence that standing could be established in cases "where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Id.; see also Ariz. Christian Sch. Tuition Org. v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1442, 179 L.Ed.2d 523 (2011) ("Absent special circumstances. . ., standing cannot be based
We agree with the District Court that "Plaintiffs' dispute against the President is a generalized grievance, not tied to a specific spending measure in violation of the Constitution." A taxpayer must demonstrate a nexus between the challenged spending and the constitutional right in order to establish taxpayer standing. See Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 605, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007). Plaintiffs have shown no such nexus between the constitutional requirement that the President be a natural born citizen and any challenged spending provision or action. In fact, Plaintiffs have not challenged any spending action at all.
Plaintiffs did not show anything but a "generalized grievance" insufficient to establish standing. And they challenge only the President's executive actions generally, not any discrete expenditure allegedly banned by a particular constitutional provision. Therefore, this group also fails to establish standing.
5. Relatives of President Obama
Plaintiff Kurt Fuqua also lacks standing because he has not alleged an injury-in-fact. Despite Fuqua's alleged family relationship with President Obama, his claim is no more specific to him than to any other citizen. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. Nor did Fuqua assert more than a "generalized interest of all citizens in constitutional governance" which is insufficient to satisfy the requirements of standing. Schlesinger, 418 U.S. at 217, 94 S.Ct. 2925. Even as a voter, Fuqua has no greater stake in this lawsuit than any other United States citizen. The harm he alleges is therefore too generalized to confer standing. See Berg v. Obama, 586 F.3d 234, 239 (3d Cir.2009) (holding that the plaintiff's status as a voter in the 2008 election did not give him standing to challenge Obama's candidacy on grounds similar to those here alleged). Thus, the District Court did not err in holding that Fuqua, regardless of his alleged relation to President Obama, does not have standing.
6. Political Candidates
The remaining plaintiffs were political candidates and a certified elector during the 2008 general election. Plaintiffs Alan Keyes and Wiley S. Drake were the Presidential and Vice Presidential candidates, respectively, of the American Independent Party on the California ballot in the 2008 Presidential Election. Plaintiff Gail Lightfoot, a member of California's Libertarian Party, was an official write-in Vice Presidential candidate in California in 2008. Plaintiff Markham Robinson was a certified California elector for, and Chairman of, the American Independent Party.
These plaintiffs argue that they have standing because, as candidates running against Obama in the 2008 election, they had an interest in having a fair competition for the positions they sought to obtain. If Obama entered the presidential race without meeting the requirements for the office, they contend, the candidates did not have a fair opportunity to obtain votes in their favor. Plaintiffs further argue that Robinson, as an elector, also had an interest in a fair competition between eligible candidates, including those for whom he had pledged to vote.
Plaintiffs cite a case from the District of New Hampshire, Hollander v. McCain, for the proposition that "a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election." 566 F.Supp.2d 63,
We, too, have upheld the notion of "competitive standing." In Owen v. Mulligan, we held that the "potential loss of an election" was an injury-in-fact sufficient to give a local candidate and Republican party officials standing. 640 F.2d 1130, 1132-33 (9th Cir.1981). In that case, the candidate for local office sued the Postal Service for giving his rival a preferential mailing rate, in violation of its own regulations and of its representations to the court regarding procedures implemented in response to a previous injunction. Id. at 1132. The candidate and party officials sought "to prevent their opponent from gaining an unfair advantage in the election process through abuses of mail preferences which arguably promote his electoral prospects." Id. at 1133 (internal quotation marks and citations omitted). We rejected the Postal Service's argument that the potential loss of an election due to an unfair advantage for the opponent was an "injury [that was] too remote, speculative and unredressable to confer standing." Id. at 1132 (internal quotation marks omitted).
Here, the District Court assumed, without deciding, that only those plaintiffs who were political candidates in 2008 could potentially satisfy the injury-in-fact requirement of standing because they had a competitive interest in running against a qualified candidate. The District Court then turned to the redressability requirement of standing.
The District Court was mistaken in assuming, however, that the political candidates still had an interest in a fair competition at the time the complaint was filed. The original complaint was filed on January 20, 2009, at 3:26 p.m. Pacific Standard Time, after President Obama was officially sworn in as President. The First Amended Complaint was filed on July 14, 2009.
For the foregoing reasons, the political candidates failed to establish redressability sufficient to establish standing. They cannot claim competitive standing because they were no longer candidates when they filed their complaint.
Black's Law Dictionary 1374 (9th ed.2009) defines quo warranto as a "common-law writ used to inquire into the authority by which a public office is held or a franchise is claimed." Section 16-3501 of the District of Columbia Code states:
D.C.Code § 16-3501 (emphasis added). Under § 16-3502, only the Attorney General of the United States or the United States Attorney for the District of Columbia can initiate a proceeding for issuance of a writ of quo warranto "on his own motion or on the relation of a third person," and if the writ is brought on behalf of a third person, it may only issue by leave of the District Court for the District of Columbia. D.C.Code § 16-3502. "If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued." D.C.Code § 16-3503.
Plaintiffs concede that the District Court for the District of Columbia is the proper venue to issue a writ of quo warranto under D.C.Code § 16-3503, but argue that their efforts to file there have been frustrated because the Attorney General and the United States Attorney for the District of Columbia have not responded to their requests.
The District Court properly dismissed Plaintiff's quo warranto claims under D.C.Code § 16-3503, because the proper venue to file such claims against the President of the United States would be the District of Columbia. See D.C.Code § 16-3501; see also U.S. ex rel. State of Wis. v.
Plaintiffs do not predicate their quo warranto claim on any plausible legal basis other than the D.C.Code.
Under 5 U.S.C. § 552(a)(4)(B), "[o]n complaint, the district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." (emphasis added). The statute defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia." 5 U.S.C. § 551(1).
We agree with the District Court that FOIA does not apply to any of the Defendants because they are all individuals, not agencies. Cf., e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure
Plaintiffs sought a declaratory judgment and injunctive relief to determine "whether certain crimes of fraud relating to identity or fraudulent use of sensitive individually identifying information . . . have been committed and concealed by some of the defendants, acting jointly or severally whether or not in formal conspiracy, which would constitute predicate acts of racketeering within the meaning of 18 U.S.C. § 1961 et seq." Plaintiffs did not, however, plead any RICO allegations and only stated that they "have accumulated several dossiers of evidence against [Obama] which suggest . . . that the President and his allies and some of the co-defendants in this case may have committed, or still be in the process of committing, some fairly serious violations of U.S. law." Plaintiffs instead expressly reserved, in their First Amended Complaint, pleadings under RICO for their Second Amended Complaint due to the "complexity of RICO pleading."
The District Court dismissed these claims against Defendants Michelle Obama, Hillary Clinton, Joe Biden, and Robert Gates for failure to state a claim under Rule 12(b)(6), noting that Plaintiffs had six months between the original complaint and the amended complaint to attempt to set forth civil RICO allegations. The District Court found Plaintiffs' "failure to do so inexcusable." Given Plaintiffs' express statements reserving their RICO allegations, the District Court was justified in finding that Plaintiffs had "failed to state any claim whatsoever" against any defendants other than President Obama.
Thus, the District Court did not err by dismissing the complaint as against Defendants First Lady Michelle Obama, Vice President Joe Biden, Secretary of State Hillary Clinton, and Secretary of Defense Robert Gates for failure to state a claim upon which relief could be granted.
* * *
The District Court properly dismissed the plaintiffs' constitutional claims for lack of Article III standing. Moreover, the District Court did not err in dismissing Plaintiffs' quo warranto, FOIA, or RICO claims. Accordingly, the dismissal by the District Court is
Appellants' emergency petition for writ of mandamus, filed November 8, 2011, is
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