Drake v Obama

FILED
FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILEY S. DRAKE; MARKHAM No. 09-56827
ROBINSON,
D.C. No. 8:09-cv-00082-DOC-AN
Plaintiffs - Appellants,
and OPINION
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 No. 10-55084
KEYES, Ph.D., Ambassador; RICHARD
NORTON BAUERBACH, Lieutenant D.C. No. 8:09-cv-00082-DOC-AN
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.
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
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Opinion by Judge 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.
4
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.
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; private
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.
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.
5
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
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.
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 (1898).
6
The District Court assumed, without deciding, that plaintiffs 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 ineligible to be President.
But the District Court concluded that neither they nor any other plaintiffs could
satisfy the redressability requirement of standing, because the remedy they
sought—a determination that President Obama is ineligible 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 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.
7
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 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).
A.
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 . . .
8
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 (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 (1974); see also United States v.
Richardson, 418 U.S. 166, 173-78 (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 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
9
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.
10
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 councilmembers’ 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.
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
11
constitutional governance.’” (quoting Schlesinger, 418 U.S. at 217)). 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
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 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.
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
12
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
13
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.
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 (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, 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, 131 S. Ct. 1436, 1442 (2011) (“Absent special circumstances
. . ., standing cannot be based on a plaintiff’s mere status as a taxpayer.”).
We agree with the District Court that “Plaintiffs’ dispute against the
President is a generalized grievance, not tied to a specific spending measure in
14
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
(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. 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. Even as a voter, Fuqua has no greater
15
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
16
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, 68 (D.N.H. 2008). This notion of “competitive
standing” has been recognized by several circuits. See, e.g., Tex. Democratic Party
v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir. 2006) (political 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
17
standing because the allegedly improper placement of the major-party candidates
on the ballot resulted in “increased competition” that required “additional
campaigning and outlays of funds” and resulted in lost opportunities to obtain
“press exposure” and win the election).
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
18
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.
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
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.
19
First Amended Complaint was filed on July 14, 2009. Whichever complaint is
considered, the 2008 general election was over when it was filed. Once the 2008
election 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 running 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. Plaintiffs’ competitive interest in running
against a qualified candidate 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.
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.
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.
20
B.
QUO WARRANTO
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 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
21
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
22
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)).
Plaintiffs do not predicate their quo warranto claim on any plausible legal
basis other than the D.C. Code.5 Thus, in this case, the District Court did not err by
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
(continued...)
23
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 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 (1992) (“Out of respect for the separation of
5
(...continued)
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”).
24
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 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 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 properly 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 concern 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
25
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.”6
The District Court dismissed these claims against Defendants Michelle
Obama, Hillary Clinton, Joe Biden, and Robert Gates for failure to state a claim
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.
26
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 AFFIRMED.
Appellants’ emergency petition for writ of mandamus, filed November 8,
27
2011, is DENIED.
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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.
29