Drake v. Obama ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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;

21397
21398 DRAKE v. OBAMA
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 No. 09-56827
STOEPPELWERTH; THOMAS J.
TAYLOR; Representative ERIC
 D.C. No.
8:09-cv-00082-
SWAFFORD, Tennessee; Captain DOC-AN
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.

DRAKE v. OBAMA 21399
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;

21400 DRAKE v. OBAMA
DOUGLAS EARL STOEPPELWERTH, 
Commander; ERIC SWAFFORD,
Representative, Tennessee; NEIL B.
TURNER, Captain; RICHARD E.
VENABLE; JEFF GRAHAM
WINTHROPE, LCDR; MARK
WRIGGLE, Lieutenant Colonel, No. 10-55084
Plaintiffs-Appellants, D.C. No.
v.  8:09-cv-00082-
BARACK HUSSEIN OBAMA; MICHELLE DOC-AN
L.R. OBAMA; HILLARY RODHAM OPINION
CLINTON, Secretary of State;
ROBERT M. GATES, Secretary of
Defense; JOSEPH R. BIDEN, Vice
President and President of the
Senate,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
May 2, 2011—Pasadena, California
Filed December 22, 2011
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
21404 DRAKE v. OBAMA
COUNSEL
Gary G. Kreep, Ramona, California, and Orly Taitz, Rancho
Santa Margarita, California, for the plaintiffs-appellants.
David A. DeJute, Assistant United States Attorney, Los
Angeles, California, for the defendants-appellees.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs-Appellants contend that Barack Obama is consti-
tutionally 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 Free-
dom 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, Secre-
tary of State Hillary Clinton, Vice President Joe Biden, and
DRAKE v. OBAMA 21405
former Secretary of Defense Robert Gates, for failure to state
a claim. We affirm.
I.
Plaintiffs filed their lawsuit on January 20, 2009, the day
Barack Obama was sworn in and took office as President of
the United States.1 The Plaintiffs are active, inactive, or
retired military personnel; state political representatives; pri-
vate individuals, including federal taxpayers and at least one
individual who claims to be a relative of Barack Obama; and
political candidates during the 2008 general election.
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. 4.2
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 produc-
tion 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 pursu-
ant 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 juris-
21406 DRAKE v. OBAMA
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 tax-
payers; (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.
The District Court assumed, without deciding, that plain-
tiffs who were political candidates in the 2008 election could
potentially show an injury-in-fact based on their claim that
they were denied a fair competition during the election
because they had to compete with someone who was ineligi-
ble to be President. But the District Court concluded that nei-
ther they nor any other plaintiffs could satisfy the
redressability requirement of standing, because the remedy
they sought—a determination that President Obama is ineligi-
ble to be President and, therefore, his removal from office—
would be beyond the power of the federal courts to grant, and
implicates the political question doctrine and separation of
powers.
Concluding that no plaintiff had standing to sue, the Dis-
trict 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 Dis-
trict of Columbia. Plaintiffs’ FOIA claims were dismissed for
failure to state a claim because none of the Defendants is an
diction 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
(1898).
DRAKE v. OBAMA 21407
agency; and their RICO claims, which were never filed, were
dismissed for failure to state a claim.
II.
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 juris-
diction 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 deter-
mination 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 pre-
sumptive 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).
A.
CONSTITUTIONAL CLAIMS: STANDING
[1] To establish Article III standing, a plaintiff must show:
(1) “an injury in fact—an invasion of a legally protected inter-
est which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical”; (2) “a causal con-
nection 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 indepen-
dent 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 (1992) (omis-
sions in original) (internal quotation marks and citations omit-
ted). Moreover, a litigant’s interest cannot be based on the
“generalized interest of all citizens in constitutional gover-
nance.” Schlesinger v. Reservists Comm. to Stop the War, 418
21408 DRAKE v. OBAMA
U.S. 208, 217 (1974); see also United States v. Richardson,
418 U.S. 166, 173-78 (1974) (taxpayer’s generalized griev-
ance insufficient for standing).
Because Plaintiffs must establish standing to bring this suit,
we adopt the District Court’s classification of the parties and
examine the standing of each category of plaintiffs in turn.
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.
[2] Freese’s injuries are not sufficiently concrete to estab-
lish 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 lia-
bility. 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
DRAKE v. OBAMA 21409
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 (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 councilmem-
bers’ desire not to violate their oaths of office does not confer
standing.” Id. at 237 (citing Schlesinger, 418 U.S. at 217). 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.
[3] 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 dis-
obeying 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 constitu-
tional 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 constitu-
tional governance.’ ” (quoting Schlesinger, 418 U.S. at 217)).
Thus, Freese and other active duty military personnel plain-
tiffs have no standing to bring this lawsuit.
2. Former Military Personnel
According to the complaint, “inactive or retired military
personnel who are Plaintiffs, subject to recall, have standing
to challenge and demand clear-and-convincing proof for the
same reasons [as Freese]—in that they are subject to recall
and service at any time under and subject to the de facto chain
of command.” Former military personnel could be on inactive
21410 DRAKE v. OBAMA
duty status. This category of plaintiffs bases its standing on
the possibility that they could be called back to active service
and would be subject to following the Commander-in-Chief’s
orders, thereby suffering injury for the same reasons asserted
by Freese.
[4] The retired and inactive military personnel’s assertion
of standing is far too speculative and conjectural. See Lujan,
504 U.S. at 560-61; 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 gen-
eralized. 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 consti-
tutional 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.”
[5] 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 offi-
cial would be immune from any such suit. Id. at 239. The
DRAKE v. OBAMA 21411
alleged harm to the state representatives in this case is just as
speculative and conjectural as in South Lake Tahoe, for simi-
lar reasons. This group of plaintiffs therefore fails to establish
standing. See Lujan, 504 U.S. at 560-61.
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.
[6] In Flast v. Cohen, the Supreme Court held that federal
taxpayers have standing to raise Establishment Clause claims.
392 U.S. 83, 88 (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. The Supreme Court, how-
ever, expressed a lack of confidence that standing could be
established in cases “where a taxpayer seeks to employ a fed-
eral court as a forum in which to air his generalized griev-
ances about the conduct of government or the allocation of
power in the Federal System.” Id; see also Ariz. Christian
Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)
(“Absent special circumstances . . . , standing cannot be based
on a plaintiff’s mere status as a taxpayer.”).
[7] We agree with the District Court that “Plaintiffs’ dis-
pute against the President is a generalized grievance, not tied
to a specific spending measure in violation of the Constitu-
tion.” A taxpayer must demonstrate a nexus between the chal-
lenged spending and the constitutional right in order to
establish taxpayer standing. See Hein v. Freedom From Reli-
gion Found., Inc., 551 U.S. 587, 605 (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 chal-
lenged any spending action at all.
21412 DRAKE v. OBAMA
[8] Plaintiffs did not show anything but a “generalized
grievance” insufficient to establish standing. And they chal-
lenge only the President’s executive actions generally, not any
discrete expenditure allegedly banned by a particular constitu-
tional provision. Therefore, this group also fails to establish
standing.
5. Relatives of President Obama
[9] 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 spe-
cific to him than to any other citizen. See Lujan, 504 U.S. at
560-61. Nor did Fuqua assert more than a “generalized inter-
est of all citizens in constitutional governance” which is insuf-
ficient to satisfy the requirements of standing. Schlesinger,
418 U.S. at 217. 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 Presi-
dential Election. Plaintiff Gail Lightfoot, a member of Cali-
fornia’s Libertarian Party, was an official write-in Vice
Presidential candidate in California in 2008. Plaintiff Mark-
ham Robinson was a certified California elector for, and
Chairman of, the American Independent Party.
DRAKE v. OBAMA 21413
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 eli-
gible 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 pre-
vailing in the election.” 566 F. Supp. 2d 63, 68 (D.N.H.
2008). This notion of “competitive standing” has been recog-
nized by several circuits. See, e.g., Tex. Democratic Party v.
Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir. 2006) (politi-
cal party has standing because “threatened loss of [political]
power is still a concrete and particularized injury sufficient
for standing purposes”); Schulz v. Williams, 44 F.3d 48, 53
(2d Cir. 1994) (political party representative has standing
because his party may “suffer a concrete, particularized,
actual injury—competition on the ballot from candidates that
. . . were able to avoid complying with the Election Laws and
a resulting loss of votes”) (internal quotation marks omitted);
Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990) (third-
party presidential candidate had standing because the alleg-
edly improper placement of the major-party candidates on the
ballot resulted in “increased competition” that required “addi-
tional campaigning and outlays of funds” and resulted in lost
opportunities to obtain “press exposure” and win the elec-
tion).
[10] We, too, have upheld the notion of “competitive
standing.” In Owen v. Mulligan, we held that the “potential
21414 DRAKE v. OBAMA
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 quota-
tion marks and citations omitted). We rejected the Postal Ser-
vice’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).3
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.
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 stand-
ing 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 competi-
tive 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.
DRAKE v. OBAMA 21415
[11] The District Court was mistaken in assuming, how-
ever, 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. Whichever complaint is considered, the 2008 gen-
eral election was over when it was filed. Once the 2008 elec-
tion was over and the President sworn in, Keyes, Drake, and
Lightfoot were no longer “candidates” for the 2008 general
election. Moreover, they have not alleged any interest in run-
ning against President Obama in the future. Therefore, none
of the plaintiffs could claim that they would be injured by the
“potential loss of an election.” Owen, 640 F.2d at 1132. Plain-
tiffs’ competitive interest in running against a qualified candi-
date had lapsed.4 Similarly, Robinson’s interest as an elector
—derived from the competitive interest of his preferred
candidates—was extinguished by the time the complaint was
filed.
[12] For the foregoing reasons, the political candidates
failed to establish redressability sufficient to establish stand-
ing. They cannot claim competitive standing because they
were no longer candidates when they filed their complaint.
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 bal-
lot 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 com-
petitive standing.
21416 DRAKE v. OBAMA
B.
QUO WARRANTO
[13] 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:
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 con-
ferred 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 pro-
ceeding 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.
DRAKE v. OBAMA 21417
[14] 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 stat-
ute, that there is no original jurisdiction in the federal district
court to entertain an information in the nature of quo warran-
to.”). While D.C. Code §§ 16-3501 to 16-3503 do not explic-
itly provide that quo warranto claims under them must be
brought exclusively in the District of Columbia, the plain lan-
guage of the statute indicates that a writ based on the D.C.
Code provisions must be sought within the District of Colum-
bia, 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 Dis-
trict of Columbia . . . .”) (emphasis added)). More impor-
tantly, §§ 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)).
Plaintiffs do not predicate their quo warranto claim on any
plausible legal basis other than the D.C. Code.5 Thus, in this
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 proceed-
21418 DRAKE v. OBAMA
case, the District Court did not err by dismissing Plaintiffs’
quo warranto claims, as premised on the D.C. Code, for
improper venue.
C.
FOIA CLAIMS
Under 5 U.S.C. § 552(a)(4)(B), “[o]n complaint, the district
court . . . has jurisdiction to enjoin the agency from withhold-
ing agency records and to order the production of any agency
records improperly withheld from the complainant.” (empha-
sis 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).
[15] We agree with the District Court that FOIA does not
apply to any of the Defendants because they are all individu-
als, not agencies. Cf., e.g., Franklin v. Massachusetts, 505
U.S. 788, 800-01 (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 Presi-
dent to the provisions of the [Administrative Procedure Act
(APA)].”); see also Batton v. Evers, 598 F.3d 169, 173 n.1
(5th Cir. 2010) (“A FOIA plaintiff may not assert a claim
ing. 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 jurisdic-
tion.”) (citing McClung v. Silliman, 19 U.S. 598, 601-02 (1821)); Moor v.
Cnty. of Alameda, 411 U.S. 693, 703-04 & n.17 (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”).
DRAKE v. OBAMA 21419
against an individual federal official; the proper defendant is
the agency.”); Martinez v. Bureau of Prisons, 444 F.3d 620,
624 (D.C. Cir. 2006) (per curiam) (“[T]he district court prop-
erly dismissed the named individual defendants because no
cause of action exists that would entitle appellant to relief
from them under the Privacy Act or FOIA. Both statutes con-
cern the obligations of agencies as distinct from individual
employees in those agencies.”) (citations omitted); Motions
Sys. Corp. v. Bush, 437 F.3d 1356, 1359 (Fed. Cir. 2006) (per
curiam) (noting that the President is not an “agency” within
meaning of Administrative Procedure Act). Thus, the District
Court correctly dismissed Plaintiffs’ FOIA causes of action
for failure to state a claim.
D.
RICO CLAIMS
Plaintiffs sought a declaratory judgment and injunctive
relief to determine “whether certain crimes of fraud relating
to identity or fraudulent use of sensitive individually identify-
ing 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. § 1961et seq.” Plaintiffs did not, however, plead any RICO allega-
tions and only stated that they “have accumulated several dos-
siers 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 com-
mitting, 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.”6
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.
21420 DRAKE v. OBAMA
[16] 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 state-
ments 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 Presi-
dent Obama.
[17] 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’ consti-
tutional claims for lack of Article III standing. Moreover, the
District Court did not err in dismissing Plaintiffs’ quo war-
ranto, FOIA, or RICO claims. Accordingly, the dismissal by
the District Court is AFFIRMED.
Appellants’ emergency petition for writ of mandamus, filed
November 8, 2011, is DENIED.