Cohen v. Obama , 359 Fed. Appx. 40 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 31, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MURRAY COHEN,
Plaintiff-Appellant,
v. No. 09-6187
BARACK HUSSEIN OBAMA, (D.C. No. 5:09-CV-00704-F)
President of the United States, and the (W. D. Okla.)
Chief Executive,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
After examining the appellant’s brief and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, submitted without oral argument.
On July 8, 2009, Plaintiff-Appellant, Murray Cohen, appearing pro se, filed
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
a complaint against Defendant-Appellee, Barrack Hussein Obama, President of
the United States, in the United States District Court for the Western District of
Oklahoma seeking various forms of injunctive relief. On August 10, 2009, the
district court issued an order in which it dismissed the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1), concluding that Cohen lacks standing to
assert his claims and alternatively, that the claims against President Obama are
barred by absolute immunity. Cohen then filed two motions for reconsideration
on August 18, 2009 and August 31, 2009, which the district court rejected in
orders issued on August 19, 2009, and September 1, 2009. This timely appeal
followed. Because we conclude the district court correctly determined that Cohen
lacks standing to bring this suit, we AFFIRM the dismissal of Cohen’s complaint.
I
In his complaint, Cohen seeks various forms of injunctive relief related to
various official actions of President Obama that Cohen contends violate the
United States Constitution. Specifically, Cohen requests that the court: (1)
terminate the appointment of the President of General Motors and its board of
directors; (2) terminate the government’s and automotive unions’ ownership
interests in General Motors and Chrysler; (3) reverse all automotive franchise
cancellations; (4) direct the Bankruptcy Courts to reorder the priorities of the
bond holders and other secured creditors of General Motors; (5) terminate the
government takeover of any private or public companies and prevent the
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government from owning shares in such companies; (6) terminate without pay all
government appointed “mini-Czars” and their employees; (7) direct the
government not to pay foreign governments to house military prisoners; (8)
terminate all funds to ACORN and enjoin ACORN’s participation in the national
census; and (9) enjoin President Obama from introducing complicated legislation
without allowing sufficient time for Congress to read, study and inquire into such
legislation.
The district court concluded that Cohen lacks Article III standing to assert
such claims, noting that Cohen “has failed to show particularized injury . . . . He
simply argues that [President Obama’s] actions are unconstitutional.” Aplt. App.
at 38. The district court also concluded, alternatively, that President Obama has
absolute immunity from a suit seeking to enjoin the performance of his official
duties. On appeal, Cohen contends that the district court’s dismissal of his
complaint was in error because he argues that the petition clause of the First
Amendment, see U.S. Const. amend. I (“Congress shall make no law . . .
abridging . . . the right of the people . . . to petition the Government for the
redress of grievances.”), grants him a constitutional right to bring this action and
thereby renders any discussion of subject matter jurisdiction unnecessary and
improper.
“We review a district court’s dismissal for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) de novo.” Kane County Utah v. Salazar,
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562 F.3d 1077, 1085 (10th Cir. 2009). Cohen confuses a citizen’s First
Amendment right to petition the government with the limitation placed upon the
power of the federal courts to hear cases. More specifically, Cohen fails to
recognize that “Article III, Section 2 of the United States Constitution extends the
judicial power only to ‘Cases’ or ‘Controversies.’” Carolina Cas. Ins. Co. v.
Pinnacol Assur., 425 F.3d 921, 926 (10th Cir. 2005). And, “[a] dispute is an
Article III ‘Case’ or ‘Controversy’ only if the plaintiff can establish what is
known as ‘constitutional standing.’” Id.To demonstrate such standing, Cohen must establish that: (1) he has
suffered an “injury in fact”; (2) there is a causal connection between the injury in
fact and the complained of conduct; and (3) it is likely that the injury will be
redressed by a favorable decision. See D.L.S. v. Utah, 374 F.3d 971, 974 (10th
Cir. 2004). And, in order for Cohen to establish that he has suffered an “injury in
fact,” he must demonstrate the “invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not conjuectural or
hypothetical.” See ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1318 (quotation
and citation omitted). Because we conclude that the district court correctly found
that Cohen has failed to show a particularized injury, but rather has stated only
general disagreement with various government actions, we also agree with its
conclusion that Cohen lacks standing. Because Cohen’s lack of standing is fatal
to his case and this court’s jurisdiction to hear his case, see Carolina Cas. Ins.
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Co., 425 F.3d at 926 (“[C]onstitutional standing is necessary to the court’s
jurisdiction . . . .”), we need not address the district court’s conclusions with
respect to President Obama’s immunity.
II
We AFFIRM the district court’s dismissal of Cohen’s complaint.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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