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Barnett v. Obama

October 29, 2009


The opinion of the court was delivered by: David O. Carter United States District Judge


Before the Court is Defendants President Barack H. Obama ("Obama" or "President"), Michelle Obama, Hillary Clinton ("Clinton"), Joseph Biden ("Biden"), and Robert Gates' ("Gates") (collectively, "Defendants") Motion to Dismiss. After considering the moving, opposing, reply, and sur-reply papers, as well as the parties' oral argument, the Court hereby rules as follows.


A. Introduction

On January 20, 2009, the day on which Barack Obama was sworn in as President and took office, Plaintiffs brought this suit. The action was filed at 3:26 p.m. Pacific standard time, following President Obama's formal assumption of office. The suit alleges, in pertinent part, that President Obama does not meet the qualifications required for the Office of the President, as specified by Article II, Section 1, Clause 5 of the United States Constitution, which reads, "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." More specifically, Plaintiffs allege that the President has not shown that he is a "natural born citizen" of the United States and assert that he should have to establish his citizenship by "clear-and-convincing evidence." Plaintiffs argue that despite the fact that President Obama has produced a birth certificate from the state of Hawaii, there is evidence to show that the President was actually born in Kenya, thus making him ineligible to be President. Plaintiffs also argue that, even if the President was a natural born citizen, he abandoned his citizenship while living in Indonesia and has not gone through the proper immigration procedures to regain his United States citizenship.

Plaintiffs are third party candidates from the American Independent Party for president and vice president in the 2008 presidential election, inactive and active military personnel, and state representatives. The third party candidate plaintiffs are Alan Keyes, Gail Lightfoot, and Reverend Wiley Drake. Keyes and Drake received a total of four-hundredth of one percent of the popular vote for President.

Because Plaintiffs failed to bring their claims in this Court until after President Obama was sworn into office, the Court has been presented with much more than an action against a political candidate asking the Court to interpret the candidate's qualifications to run for office. Instead, Plaintiffs ask this Court to declare that the current President of the United States is illegitimate and fails to meet the constitutional requirements to hold office. In their Motion to Dismiss, Defendants challenge the ability of the Court to hear Plaintiffs' claims and redress their alleged injuries through the removal of the sitting President.

B. First Amended Complaint

Plaintiffs have since filed a First Amended Complaint ("Complaint"), which adds to the original complaint and which is the subject of this Motion to Dismiss. Plaintiffs allege that declaratory judgment is proper pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B), and through a civil rights action pursuant to 42 U.S.C. §§ 1983, 1988. First Am. Compl. ("Compl.") ¶ 60, July 14, 2009. Plaintiffs' Complaint sets forth ten questions for which they request declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202. Id. ¶¶ 11-21. The questions all relate to the meaning of the Constitution's natural born citizen clause and the appropriate recourse should a sitting president not meet the "natural born citizen" requirement. Plaintiffs frame these questions as seeking "an answer to the simple question of constitutional qualifications . . . [and seeking] a declaratory judgment confirming their fundamental civil or constitutional right to ask and know the constitutional qualifications of any person elected or appointed to public office in the United States of America." Id. 3:8-12.Beyond this "simple question," however, Plaintiffs make a significantly more expansive request. Plaintiffs seek "injunctive relief against all four office-holding defendants [the President, Secretary of State, Secretary of Defense, and Vice President] to limit their powers to order new deployments or assignments of any armed forces of the United States outside of the territorial limits of the United States without express Congressional approval, and further to limit the execution of certain orders of the President of the United States relating to the conduct of foreign policy by and through the use of currently deployed and assigned military force, as well as the appointment of judges or justices and the ratification or modification of treaties during the pendency of this lawsuit until and unless Defendant Barack Hussein Obama's constitutional qualifications are established in this court by clear-and-convincing evidence." Id. 3:13-22. In other words, Plaintiffs do not propose succession by Vice President Biden but instead seek a complete shutdown of the government by enjoining it from acting while holding a new presidential election.

Plaintiffs also request that the Court order the production of documents pursuant to FOIA. Id. ¶¶ 60-109. Plaintiffs further allege a violation of civil rights pursuant to 42 U.S.C. §§ 1983, 1988(a). Id. ¶¶ 110-122. Finally, Plaintiffs make a request for a writ quo warrantor, in which Plaintiffs state, "This Court has the power to order Barack Hussein Obama to appear and to show cause all the relief sought by this complaint should not be upheld (or entered) against him." Id. ¶ 121; see also id. 4:3-19. The prayer for relief states the resolution sought in the action as:

This Court should issue an order to Barack Hussein Obama to show cause why the full measure of relief requested by the Plaintiffs in this case should not be granted, and should in particular order that the contours of the final judgment under 42 U.S.C. § 1988(a), including the extension or modification of common and statutory law to protect the civil rights of the people of the United States to demand clear-and-convincing evidence of the constitutional qualifications, elegibility [sic], and competence of their elected (as well as their non-elected [sic]) officials, representatives, and executive agents.

Id. ¶ 126.


Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed if the Court lacks subject matter jurisdiction to adjudicate the claims. Once subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)(holding that "the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists."). Accordingly, the Court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673 (1994).

Defendants assert that the Court lacks subject matter jurisdiction in this action on five bases: (1) Plaintiffs have failed to demonstrate Article III standing; (2) the issues in this action present non-justiciable political questions; (3) this Court is not the appropriate forum for Plaintiffs' quo warrantor claims; (4) this Court does not have subject matter jurisdiction pursuant to 42 U.S.C. §§ 1983, 1988; and (5) Plaintiffs have failed to state a claim with respect to their Freedom of Information Act claims and all claims against Defendants Clinton, Gates, Michelle Obama, and Biden.


The Court must establish that it has jurisdiction before it may reach the question of interpreting the natural born citizen clause of the Constitution. "[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466 (1936) (Brandeis, J. concurring) (citing Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191, 29 S.Ct. 451 (1909); Light v. United States, 220 U.S. 523, 538, 31 S.Ct. 485 (1911)).

A. Jurisdiction Under Article III

Rule 12(b)(1) mandates that the Court dismiss claims for which it lacks subject matter jurisdiction. Standing is an element of subject matter jurisdiction. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). To establish standing under Article III of the Constitution, a plaintiff must demonstrate: "(1) an 'injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized," meaning that the injury must "affect the plaintiff in a personal and individual way," and (b) "'actual or imminent,' not 'conjectural' or 'hypothetical;'" (2) "there must be a causal connection between the injury and the conduct complained of -- the injury has to be 'fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court;'" (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, 112 S.Ct. 2130 (1992) (internal citations omitted). Each element of standing is "an indispensable part of the plaintiff's case," and accordingly "must be supported in the same way as any other matter on which the plaintiff bears the burden, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561.

The caption of the Complaint in this matter lists forty-four (44) plaintiffs. The Complaint does not individually identify the bases for standing for each of these plaintiffs, but alleges generally, "The Plaintiffs are all American citizens, the majority with military service backgrounds (retired or inactive but subject to recall), a number of former and possible or prospective political candidates, including a number of state legislators and third-party candidates for President and Vice-President." Compl. 3:5-8.

Plaintiffs are comprised of six groups which claim standing: (a) active military personnel; (b) former military personnel; (c) state representatives; (d) federal taxpayers; (e) relatives of President Obama; and (f) political candidates. The Complaint identifies eleven plaintiffs who fall within these groups. Thirty-two of the named plaintiffs are not identified in the Complaint with any particularity. The Court must assume that the remainder of the plaintiffs fall into one of the aforementioned six categories.

The majority of Plaintiffs are addressed through the first prong of Article III standing, which requires that Plaintiffs demonstrate the "invasion of a legally protected interest" which is both "concrete and particularized" and "actual or imminent." Lujan, 504 U.S. at 560-61.

a. Active Military Personnel

The Complaint alleges that Plaintiff Lieutenant Jason Freese ("Lieutenant Freese") has standing because he is on active military duty in Alaska. Compl. ¶ 6. The Complaint states that, because Lieutenant Freese is on active military duty, he 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." Id. Plaintiffs argue that Lieutenant Freese's standing stems from the oath that military officers are required to take in which they swear to support and defend the Constitution. Pl. P.B.'s Opp'n 9:12-13:19. The oath that all military personnel take when enlisting in the military states as follows:

I, _______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

10 U.S.C. § 502.

Plaintiffs rely primarily on Board of Education v. Allen for their argument that Plaintiff has standing as an oath taker. 392 U.S. 236, 88 S.Ct. 1923 (1968). In Allen, Plaintiffs who were serving on the Board of Education took an oath in which they pledged to uphold the Constitution. Id. at 241 n.5. Plaintiffs alleged that if pursuant to that oath they refused to follow a law requiring them to lend books to parochial schools on the basis that the law violated the Establishment Clause of the First Amendment to the Constitution, then they would face the injury of likely being expelled from office and having state funds to their school district reduced. Id. While the issue of standing was not before the Court, the Court observed in a footnote that it had no doubt that the plaintiffs had a personal stake in the outcome of the litigation. Id. Plaintiffs argue that this action is similar to Allen because Lieutenant Freese has taken an oath to support and defend the Constitution, and if pursuant to that oath he refused to follow the orders of President Obama on the basis that all orders from the President are unconstitutional because he does not satisfy the natural born citizen clause, then Freese would face the injury of likely disciplinary action within the military.

The footnote regarding standing in Allen is not binding Supreme Court precedent. In addition, the Supreme Court has significantly tightened standing requirements subsequent to the Allen ruling. City of South Lake Tahoe v. Calif. Tahoe Reg. Planning Agency, 625 F.2d 231, 236 (9th Cir. 1980). The Ninth Circuit has rejected the reasoning of the footnote in Allen on the basis that the real source of an oath taker's complaint is not sufficiently concrete to establish standing. The Ninth Circuit, discussing the standing of oath takers to bring an action for injunctive and declaratory relief regarding the constitutionality of an action, reasoned that oath takers hold merely an abstract objection to an unconstitutional act because they generally face only an abstract injury should they choose to object to the act. Id. at 237. The Court found that the oath takers' objection was insufficient to invoke standing because "the difficulty with abstract constitutional grievances is that they lack the specificity and adversarial coloration that transmute vague notions of constitutional principle into a form historically viewed as capable of judicial resolution." Id. at 237-38 (internal quotations and citations omitted). Pursuant to the reasoning under South Lake Tahoe, Plaintiff Lieutenant Freese fails to establish standing based on his military oath because his injuries are not sufficiently concrete to establish Article III standing.

The Complaint also requests that this Court enjoin the President's "powers to order new deployments or assignments of any armed forces of the United States outside of the territorial limits of the United States without express Congressional approval, and further to limit the execution of certain orders of the President of the United States relating to the conduct of foreign policy by and through the use of currently deployed and assigned military force." Compl. 3:14-19. This "cut and run" call to lay down arms and leave this country defenseless is an effort by Plaintiffs to emasculate the military.

Plaintiffs have inappropriately requested that this Court interfere with internal military affairs. See Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534 (1953) ("[J]udges are not given the task of running the Army."). Plaintiffs only seek to enjoin acts that the President takes as Commander-in-Chief internationally, not domestically. This peculiarity leads the Court to suspect that the constitutional objection is being used as a veil to avoid deployment to countries where the United States military is currently active, such as Iraq or Afghanistan. See Rhodes v. Thomas D. MacDonald et al., No. 4:09-CV-106 (CDL), 2007 WL 2997605 (M.D. Ga. Sept. 16, 2009) (Plaintiff objecting to President Obama's natural born citizen status "had no concerns about fulfilling her military obligation until she received orders notifying her that she would be deployed to Iraq in September 2009"). Furthermore, Lieutenant Freese's claims are based upon the notion that his duty to serve is based upon who is in office. The duty to defend is not dependent upon a political or personal view regarding the individual who serves as President and Commander-in-Chief. It is an unequivocal duty to defend our country.

This Court will not interfere in internal military affairs nor be used as a tool by military officers to avoid deployment. The Court has a word for such a refusal to follow the orders of the President of the United ...

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