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DRAKE v. OBAMA
664 F.3d 774 (2011)
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 2, 2011.
B.QUO WARRANTOBlack'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: A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action. 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.
First Fed. Sav. & Loan Ass'n, 248 F.2d 804, 809 (7th Cir.1957) ("We hold, except as otherwise specifically provided by statute, that there is no original jurisdiction in the federal district court to entertain an information in the nature of quo warranto."). While D.C.Code §§ 16-3501 to 16-3503 do not explicitly provide that quo warranto claims under them must be brought exclusively in the District of Columbia, the plain language of the statute indicates that a writ based on the D.C.Code provisions must be sought within the District of Columbia, because such a claim is challenging the right of a person within the District of Columbia to hold a public office of the United States. See D.C.Code § 16-3501 ("A quo warranto may be issued from the United States District Court for the District of Columbia. . . against a person who within the District of Columbia. . . .") (emphasis added)). More importantly, §§ 16-3502 and 16-3503 provide only for the District Court for the District of Columbia to grant leave of court to file the writ on the relation of a third person. Moreover, the United States District Court for the District of Columbia has now weighed in with respect to the reach of the D.C.Code quo warranto provisions. In Taitz v. Obama, 707 F.Supp.2d 1, 2-4 (D.D.C.2010), the District Court for the District of Columbia stated that "a quo warranto action against a public official may be brought only by the Attorney General or the U.S. Attorney." Id. at 3 (citing Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C.Cir.1984)).
1. The Plaintiffs were later given leave to file a First Amended Complaint subsequently filed on July 15, 2009. In their First Amended Complaint, Plaintiffs alleged claims for declaratory judgment, claims for the production of documents pertaining to President Obama, pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), and civil rights claims pursuant to 42 U.S.C. §§ 1983 and 1988. In addition, Plaintiffs petitioned for a writ of quo warranto seeking to compel President Obama to show by what authority he holds the office of President. Plaintiffs, in their First Amended Complaint, also stated that they reserved their allegations under the Racketeer Influenced and Corrupt Organizations Act or RICO, 18 U.S.C. § 1961 et seq., for their Second Amended Complaint, which was never filed.
2. The Fourteenth Amendment to the Constitution, Section 1 states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." In United States v. Wong Kim Ark, the Supreme Court held that the Citizenship Clause of the Fourteenth Amendment conferred citizenship on anyone born in the United States, regardless of his parents' citizenship. 169 U.S. 649, 650, 18 S.Ct. 456, 42 L.Ed. 890 (1898).
3. Some cases hold that competitive standing continues beyond a given election. See Owen, 640 F.2d at 1133 & n. 8 (citing Schiaffo v. Helstoski, 492 F.2d 413, 417 (3d Cir.1974) (holding that a rival candidate had standing to challenge an incumbent's activities seeking to secure an unfair advantage in future elections)). In those cases, however, the plaintiffs were seeking to enjoin an ongoing practice that would have produced an unfair advantage in the next election, the plaintiffs were likely rivals of the incumbent in the next election and the plaintiffs were not using competitive standing as a means of undoing a past election or ousting an elected official from office. Here the plaintiffs have not asserted that they will run against President Obama in the 2012 election (assuming President Obama runs) and they are not seeking to enjoin an ongoing practice giving the President a competitive advantage in the next election. They are instead seeking to remove the President from office, a remedy unconnected to any injury they hypothetically suffered in the 2008 election.
4. Defendants argue that "competitive standing" does not apply in this case because Plaintiffs were not deprived of the ability to win. Drake and Lightfoot ran only in California, while Keyes's name appeared on the ballot in only three states: California, Colorado, and Florida. Defendants argue, and Plaintiffs do not contest, that none of the political candidate plaintiffs were in any position to win a majority of the 270 electoral votes required to win the election. We need not decide, however, on Defendants' success-based line-drawing to conclude that Plaintiffs no longer had competitive standing.
5. Plaintiffs do briefly mention the All Writs Act, 28 U.S.C. § 1651, and 42 U.S.C. § 1988 as possible statutory bases for a quo warranto proceeding. Neither is viable. See, e.g., Lights of Am., Inc. v. United States Dist. Court, 130 F.3d 1369, 1370 (9th Cir.1997) (per curiam) ("[T]he Supreme Court has long held that the All Writs Act is not itself a source of jurisdiction.") (citing McClung v. Silliman, 19 U.S. 598, 601-02, 6 Wheat. 598, 5 L.Ed. 340 (1821)); Moor v. Cnty. of Alameda, 411 U.S. 693, 703-04 & n. 17, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) (recognizing that § 1988 does not create an independent cause of action for the violation of federal civil rights, but "instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts").
6. Plaintiffs never filed a motion for leave of court to file a Second Amended Complaint and only mentioned in passing such a request in their motion for reconsideration, filed on November 9, 2009, after the District Court granted Defendants' motion to dismiss.
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