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Filed Opinion (Harry Pregerson, Raymond C Wiley Drake, et al v. Barack Obama, et al Doc. 9123521331 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 1 of 29 FILED FOR PUBLICATION DEC 22 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS 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 Dockets.Justia.com Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 2 of 29 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; Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 3 of 29 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 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 4 of 29 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 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 5 of 29 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, 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 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 6 of 29 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 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 7 of 29 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 Case: 09-56827 12/22/2011 ID: 8009729 DktEntry: 58-1 Page: 8 of 29 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
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