Notice of Intent to File Judicial Misconduct Complaint

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA Gordon Warren Epperly P.O. Box Juneau, Alaska Tel: (907) Gordon Warren Epperly, ) ) Petitioner, ) Case No. 1:12-CV-0011-TMB. ) vs. ) Judge Timothy M. Burgess ) Barack Hussein Obama II, ) Nancy Pelosi, ) Mead Treadwell, ) Notice of Intent Gail Fenumiai, ) to File ) Judicial Misconduct Complaint Respondents. ) ============================================================== Notice of Intent to File Judicial Misconduct Complaint To: Judge Timothy M. Burgess The Petitioner (Gordon Warren Epperly) of the above entitled proceeding that was filed with the Alaska Superior Court at Juneau, Alaska does hereby gives Notice to all that a Judicial Misconduct Complaint will be filed with the U.S. Court of Appeals, Ninth Circuit under Judicial Conduct and Disability Act, 28 U.S.C if Judge Timothy M. Burgess continues to refuse to issue a sua sponte Order to move the above named proceeding back into the Alaska Superior Court at Juneau, Alaska for want of subject matter and in propria persona jurisdiction. Said misconduct trespasses upon the sovereign authority of a State (Alaska) to determine the qualifications of Office Page 1 of 6

2 of Presidential Candidates and my Rights to be a Complainant of an Administrative Complaint that is before the Alaska Division of Elections. With such misconduct, the Judge of this U.S. District Court abuses his Office for the purpose of obstructing U.S. Presidential Ballot Elections of the State of Alaska and other States of the Union. Jurisdictional Challenges No Standing of Petitioner From the very outset of the purported transfer of the above entitled Proceeding from the Alaska Superior Court into the U.S. District Court for the District of Alaska, the Petitioner did question the jurisdictional authority of the Judge Timothy M. Burgess to transfer a proceeding involving Office Qualifications of a Presidential Candidate or even a sitting President into the U.S. District Court for the District of Alaska. The Judge of the U.S. District Court was notified that the Petitioner had no Standing to entertain such proceedings before a U.S. Constitution, Article III, U.S. District Court, a position that has been upheld by every Appellate Court of every Federal Judicial District. (e.g. Keyes, Drake, et.al. vs. Obama, ( D.C., No. 8:09-CV DOC-AN) Attached as Exhibit A ). Want of Jurisdiction to Determine Presidential Office Qualifications This U.S. District Court was given notice that it had no subject matter jurisdiction over Office Qualifications of Presidential Candidates. Several Federal Appellate Courts and the Legal Affairs and Policy Staff Office of the Federal Register [as ed to every Secretary of State and Directors of Elections on June 3, 2012] have ruled that such determination of Office Qualifications of Presidential Candidates is with the States of the Union. (see Exhibit B ) Page 2 of 6

3 This U.S. District Court was also given notice that it had no subject matter jurisdiction over Office Qualifications of a sitting President for such qualifications of Office is an issue of Quo Warranto which can only be brought into the U.S. District Court for the District of Columbia either by the U.S. Attorney General or by the U.S. Attorney for the District of Columbia: Section 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. (emphasis added). D.C. Code Under , 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 State of Alaska s Motion to Dismiss This U.S. District Court was in receipt of a Motion to Dismiss by the State of Alaska wherein the Assistant Attorney General for the State challenges the authority of Gordon Warren Epperly to entertain a Case or Controversy before a U.S. Constitution, Article III Judicial Court. As there were no U.S. Constitution Article III Judicial Court Cases or Controversies brought into this U.S. District Court for the District of Alaska by Gordon Warren Epperly, the Motion to Dismiss by the State of Alaska must be construed to be a Jurisdictional Challenge questioning the Standing of the Petitioner before an U.S. Constitution, Article III Judicial Court, a position which the Petitioner, Gordon Warren Epperly, is in full agreement with. But as this Motion to Dismiss by the State of Alaska applies only to a U.S. Constitution, Article III Judicial Court, the Judge of this U.S. District Court has no authority to dismiss any pending Proceeding(s) that were filed with the Superior Court for the State of Alaska as the two jurisdictions are not the same. Page 3 of 6

4 The Office of U.S. Attorney brought into Question The Constitutional authority for a Woman to represent the United States as U.S. Attorney was brought into question with no opposition made to such Allegations. As Karen L. Loeffler has admitted by her silence that she has no U.S. Constitutional authority to hold the Office of U.S. Attorney, she had no authority to move the Proceedings of Petitioner, Gordon Warren Epperly, from the Superior Court for the State of Alaska into the U.S. District Court for the District of Alaska. As there is no lawful move of a Civil Action from the Alaska Superior Court into the U.S. District Court, there is no authority for a Federal Judge to entertain any such Proceedings initiated by a defacto (unlawful) Office holder of U.S. Attorney. The [purported] U.S. Attorney and her Assistant U.S. Attorney has not establish any jurisdictional authority that would allow this U.S. District Court to move forward with Gordon Warren Epperly having Standing as a Plaintiff nor for this U.S. District Court to determine the Office Qualifications of Presidential Candidates or Office Qualifications of sitting Presidents. Conclusion As time is running short to determine the Office Qualifications of Presidential Candidate hopeful, Barack Hussein Obama II, it is imperative for Judge Timothy M. Burgess to sua sponte Order the above named Proceeding(s) back to the Alaska Superior Court for the First Judicial District at Juneau, Alaska for the purpose of overseeing the Administrative Proceedings of the Alaska Division of Elections. It should be noted that the obstruction of the Alaska Superior Court has nothing to do with the Administrative Complaint that has been pre-filed with the Alaska Division of Elections. It would be an absurdity to say that Barack Hussein Obama II is not now aware of an Administrative Complaint that questions his Candidate Office Page 4 of 6

5 Qualifications with all the delay tactics that he has brought before the Alaska Superior Court and this U.S. District Court for the District of Alaska by his Attorneys. The effective filing date of the pre-filed Administrative Complaint is the date that the Director of the Alaska Division of Elections is in receipt of a Official Certificate of Nomination Form from the Democrat National Committee in which the Democrat Political Party has declared Barack Hussein Obama II to be the Presidential Candidate of their choice. At the time the Certificate of Nomination Form is received by the Director of Elections, the Clock starts to run and under the Election Laws of the State of Alaska, the Director of Elections has only Thirty (30) Days to determine the Qualifications of Office of Barack Hussein Obama II as founded upon the preponderance of evidence of the Administrative Record. / 1 At this time, the only preponderance of evidence that may be reviewed is what has been provided in the Administrative Record by Gordon Warren Epperly. Each day that passes by wherein the Attorneys for Barack Hussein Obama II delays Judicial Proceedings is one less day that Barack Hussein Obama II has to prepare an Administrative Record with the Alaska Division of Elections. Unlike a Court of Law, the Burden of Proof of Eligibility of Office is with the Candidate, not with the Complainant of an Administrative Complaint. The People of the State of Alaska will be waiting for Barack Hussein Obama II to come forward and establish an Administrative Record wherein he has Established and Documented his Office Qualifications for his name to appear on the Alaska Election Ballots. 1 / AS Eligibility of a Candidate. (a) If the director receives a complaint regarding the eligibility of a candidate for a particular office, the director shall determine eligibility under regulations adopted by the director. ** The director shall determine the eligibility of the candidate within 30 days of the receipt of the complaint. (b) Except as provided in (c) of this section, the director shall determine the eligibility of the candidate by a preponderance of the evidence. ** Note: The Director of Elections has failed to adopt regulations that address candidates for offices of the United States government as required by law, but as such, that is not a license for the Director to place undocumented Aliens upon the Alaska Election Ballots without qualifications of Office. Page 5 of 6

6 You may view the Administrative Record of the Alaska Division of Elections and all the Proceedings of the Alaska Superior Court and this United States District Court on the Internet at: Look for the heading State of Alaska about a third of the way down the page. What constitutes a reasonable time frame for Judge Timothy M. Burgess to issue forth a sua sponte Order to return the above entitled Proceeding back into the Alaska Superior Court, I don t know. But I believe a week from the filing date of this Document would be an adequate time frame to preserve the process of Presidential Ballot Elections. Dated this Twenty-Fourth day of the month of August in the year of our Lord Jesus Christ, Two-Thousand and Twelve. Page 6 of 6

7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA Gordon Warren Epperly P.O. Box Juneau, Alaska Tel: (907) Gordon Warren Epperly, ) ) Petitioner, ) Case No. 1:12-CV-0011-TMB. ) vs. ) Judge Timothy M. Burgess ) Barack Hussein Obama II, ) Nancy Pelosi, ) Mead Treadwell, ) Gail Fenumiai, ) Certificate of Mailing ) Respondents. ) ============================================================== Certificate of Mailing COMES NOW Petitioner, Gordon Warren Epperly, hereby certifies under penalties of perjury that true and correct copies of Notice of Intent to File Judicial Misconduct Complaint with Exhibits has been mailed to: Karen L. Loeffler United States Attorney Federal Building & U.S. Courthouse 222 West 7 th Avenue, #9, Room 253 Anchorage, Alaska Elizabeth M. Bakalar Department of Law State of Alaska P.O. Box Juneau, Alaska Certificate of Mailing - Page 1 of 2

8 Thomas M. Daniel Perkins Cole, LLP 1023 W. 3rd Avenue Anchorage, Alaska E. Bryan Wilson Assistant U.S. Attorney Federal Building & U.S. Courthouse 222 West 7 th Avenue, #9, Room 253 Anchorage, Alaska Philip Pallenberg Judge Alaska Superior Court P.O. Box Juneau, Alaska by depositing said Notice of Intent to File Judicial Misconduct Complaint and Exhibits with the U.S. Postal Service, Mendenhall Station, at Juneau, Alaska. Dated this Twenty-Fourth day of the month of August of the year of our Lord Jesus Christ, Two-Thousand and Twelve. Certificate of Mailing - Page 2 of 2

9 FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC Page 1 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WILEY S. DRAKE; MARKHAM ROBINSON, and Plaintiffs - Appellants, No D.C. No. 8:09-cv DOC-AN 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

10 Page 2 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, v. Plaintiffs, 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; No D.C. No. 8:09-cv DOC-AN

11 Page 3 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, v. Plaintiffs - Appellants, BARACK HUSSEIN OBAMA; MICHELLE L.R. OBAMA; HILLARY

12 Page 4 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

13 Page 5 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 1 sworn in and took office as President of the United States. 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, 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 and 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 et seq., for their Second Amended Complaint, which was never filed. 5

14 Page 6 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. 2 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. 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

15 Page 7 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

16 Page 8 II. We have jurisdiction to review the District Court s final decision pursuant to 28 U.S.C 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

17 Page 9 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, (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, (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

18 Page 10 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 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

19 Page , 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

20 Page 12 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-andconvincing 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 ; 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

21 Page 13 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 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

22 Page 14 as in South Lake Tahoe, for similar reasons. This group of plaintiffs therefore fails to establish standing. See Lujan, 504 U.S. at 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

23 Page 15 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 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

24 Page 16 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 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

25 Page 17 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, & 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

26 Page 18 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, (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 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

27 Page 19 remote, speculative and unredressable to confer standing. Id. at 1132 (internal 3 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 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

28 Page 20 First Amended Complaint was filed on July 14, 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 Plaintiffs competitive interest in running 4 against a qualified candidate had lapsed. 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

29 Page 21 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 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 (emphasis added). Under , 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 If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a 21

30 Page 22 person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. D.C. Code 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 , 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 , 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 ; 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 to 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

31 Page 23 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 ( 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, and 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 5 basis other than the D.C. Code. 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 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

32 Page 24 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, (1992) ( Out of respect for the separation of 5 (...continued) U.S. 598, (1821)); Moor v. Cnty. of Alameda, 411 U.S. 693, & 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

33 Page 25 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

34 Page 26 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 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 6 pleading. 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

35 Page 27 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

36 Page , is DENIED. 28

37 Page 29 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

38 Exhibit "B" IN THE OFFICE OF DIRECTOR FOR DIVISION OF ELECTIONS STATE OF ALASKA Gordon Warren Epperly P.O. Box Juneau, Alaska Tel: (907) Gordon Warren Epperly ) Objector ) Case No. ) vs. ) (Amended) ) Barack Hussein Obama II ) NOMINATION PETITION OBJECTION Aka Barack Hussein Obama ) Aka Barack H. Obama ) Year 2012 General Election Candidate ) =============================================================== Message To Be Included In Administrative Record COMES NOW Gordon Warren Epperly, the Objector to the above entitled Nomination Petition Objection does hereby insert the attached message that was sent to every Member listed on the NASED Roster on June 3rd, 2012 by the Legal Affairs and Policy Staff of the Office of the Federal Register into the Administrative Record of this above entitled proceeding. Page 1 of 2

39 Exhibit "B" The purpose of the attached message shows that the Alaska Division of Elections has the responsibility to verify the Office qualifications of Presidential Candidates before their names appear on the Election Ballots of the States. Barack Hussein Obama II needs to verify his Office Qualifications with supporting Documents. Dated this Twenty-Third day of the month of July in the year of our Lord Jesus Christ Two-Thousand and Twelve. Page 2 of 2

40 Page 1 of 3 Gordon Epperly Exhibit "B" From: To: Cc: Sent: Subject: <Electoral.College@nara.gov> "Epperly, Gordon" <enter69@usa-the-republic.com> "Aaron Lorenzen, South Dakota Director of Elections" <Aaron.Lorenzen@state.sd.us>; "Amy Chan, Arizona Election Director" <achan@azsos.gov>; "Angie Rogers, Louisiana Commissioner of Elections" <Angie.rogers@sos.louisiana.gov>; "Becky Glazier, Illinois Executive Assistant to the Director" <bglazier@elections.il.gov>; "Bobbi Shearer, New Mexico Director Bureau of Elections" <Bobbi.Shearer@state.nm.us>; "Brad Bryant, Kansas Deputy Assistant for Elections" <Brad.Bryant@sos.ks.gov>; "Brad King, Co-Director Indiana Election Division" <bking@iec.in.gov>; "Cliff Tatum, Executive Director DC Board of Elections & Ethics" <ctatum@dcboee.org>; "Dave Nichols, West Virginia Manager of Elections" <dnichols@wvsos.com>; "Donald Palmer, Virginia Secretary State Board of Elections" <Don.palmer@sbe.virginia.gov>; "Dr. Gisela Salas, Florida Director of Elections" <Gisela.Salas@dos.myflorida.com>; "Elaine Manlove, Delaware State Election Commissioner" <elaine.manlove@state.de.us>; "Elizabeth S. Bolin, Mississippi Senior Attorney" <elizabeth.bolin@sos.ms.gov>; "Gail Fenumiai, Alaska Director Division of Elections" <gail.fenumiai@alaska.gov>; "Gary Bartlett, North Carolina Executive Director State Board of Elections" <gary.bartlett@ncsbe.gov>; "Gary Poser, Minnesota Director of Elections" <Gary.poser@state.mn.us>; "Jana Lean, California Chief of Elections" <jana.lean@sos.ca.gov>; "Janice McDonald, Alabama Elections Director" <janice.mcdonald@sos.alabama.gov>; "Jim Silrum, North Dekota Deputy Secretary of State" <jsilrum@nd.gov>; "Josh Waters, Georgia Deputy Director of Elections" <gaelections@sos.ga.gov>; "Judd Choate, Colorado Director of Elections" <Judd.Choate@sos.state.co.us>; "Julie L. Flynn, Maine Deputy Secretary of State" <Julie.Flynn@maine.gov>; "Kathy Scheele, Vermont Director of Elections and Campaign Finance" <kscheele@sec.state.vt.us>; "Katie Blinn, Washington State Co-Director of Elections" <Katie.blinn@sos.wa.gov>; "Kay Dinolfo, Missouri Director of Elections" <kay.dinolfo@sos.mo.gov>; "Keith Ingram, Texas Director of Elections" <kingram@sos.state.tx.us>; "Kevin J. Kennedy, Wisconsin Director and General Counsel" <Kevin.Kennedy@wi.gov>; "Linda Lamone, Maryland Administrator of Elections" <llamone@elections.state.md.us>; "Lisa Kimmet, Montana Deputy for Elections" <lkimmet@mt.gov>; "Marci Andino, South Carolina Executive Director State Election Commission" <marci@elections.sc.gov>; "Mark Goins, Tennessee Coordinator of Elections" <Mark.Goins@tn.gov>; "Mark Thomas, Utah Director of Elections" <mjthomas@utah.gov>; "Maryellen Allen, Kentucky Acting Executive Director" <maryellen.allen@ky.gov>; "Matt Damschroder, Ohio Deputy Assistant SOS" <mdamschroder@ohiosecretaryofstate.gov>; "Michelle Tassinari, Massachusetts Director of Elections Legal Counsel" <Michelle.Tassinari@sec.state.ma.us>; "Nathaniel E. Robinson, Wisconsin Elections Division Administrator" <Nat.Robinson@wi.gov>; "Neal Erickson, Nebraska Deputy Secretary of State" <neal.erickson@nebraska.gov>; "Paul Ziriax, Oklahoma Secretary State Election Board" <pziriax@elections.ok.gov>; "Peggy Nighswonger, Wyoming Director of Elections" <pnighs@state.wy.us>; "Peggy Reeves, Connecticut Director of Elections" <Peggy.reeves@ct.gov>; "Robert A. Brehm, New York Co-Director State Board of Elections" <rbrehm@elections.state.ny.us>; "Robert F. Giles, New Jersey Director Division of Elections" <njelections@sos.state.nj.us>; "Robert Kando, Rhode Island Executive Director State Board of Elections" <elections@elections.ri.gov>; "Rupert Borgsmiller, Illinois Executive Director" <rborgsmiller@elections.il.gov>; "Sarah Reisetter, Iowa Director of Elections" <sarah.reisetter@sos.state.ia.us>; "Scott Gilles, Nevada Deputy Secretary of State" <sosmail@sos.nv.gov>; "Scott Nago, Hawaii Chief Election Officer" <elections@hawaii.gov>; "Shane Hamlin, Washington State Co-Director of Elections" <shane.hamlin@sos.wa.gov>; "State, Anthony Stevens. New Hampshire Assistant Secretary of" <astevens@sos.state.nh.us>; "Stephen Trout, Oregon Director of Elections" <steve.trout@state.or.us>; "Susie Stormes, Director Arkansas Board of Election Commissioners" <susie.stormes@sos.arkansas.gov>; "Tim Hurst, Idaho Chief Deputy" <thurst@sos.idaho.gov>; "Todd Valentine, New York Co-Director State Board of Elections" <tvalentine@elections.state.ny.us>; "Trent Deckard, Co-Director Indiana Election Division" <tdeckard@iec.in.gov>; "W. Heath Hillman, Mississippi Assistant Secretary of State for Elections" <heath.hillman@sos.ms.gov>; "Waylene Hiles, Missouri Interim Deputy Secretary of State for Elections" <Waylene.hiles@sos.mo.gov> Monday, June 04, :51 AM Re: Presidential Qualification Challenges The Office of the Federal Register at the National Archives and Records Administration administers the Electoral College process, which takes place after the November general election. The Office of the Federal Register does