Captain Pamela Barnett Law Suit Dismissed

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Captain Pamela Barnett, et al.,
Plaintiffs,
v.
Barack H. Obama, et al.,
Defendants.
________________________________
)))))))))))))))))
CASE NO. SACV 09-0082 DOC (ANx)
O R D E R REGARDING
DEFENDANTS’ MOTION TO
DISMISS
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.
I. BACKGROUND
A. Introduction
On January 20, 2009, the day on which Barack Obama was sworn in as President and
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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
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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 warranto, 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
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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 clearand-
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.
II. LEGAL STANDARD
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 warranto 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.
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III. DISCUSSION
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
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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
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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
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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 States, but it will leave the issue to the military to resolve.
Plaintiff Freese fails to meet the Article III standing requirements.
b. Former Military Personnel
The Complaint states that all inactive or retired military personnel “have standing to
challenge and demand clear-and-convincing proof . . . [because] they are subject to

recall and
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service at any time under and subject to the de facto chain of command.” Compl. ¶ 7.

In order
for Article III standing to be met, the Supreme Court requires that the injury be “actual

or
imminent, not ‘conjectural’ or ‘hypothetical,’” and that the injury must be likely, not

merely
speculative. Lujan, 504 U.S. at 560-61 (citations omitted). Currently, Plaintiffs are

inactive in
the military and therefore are not subject to any orders from the Commander-in-Chief,

President
Obama. Therefore, Plaintiffs base their standing on the possibility that they could be

called back
to service at any time and would at that point have to follow the Commander-in-Chief’s

orders.
Plaintiffs argue that following such orders would be injurious because they would have

to follow
the commands of someone who does not meet the requirements to hold the position

of
Commander-in-Chief. However, the chance that Plaintiffs would be called back to

active duty
fails to meet the requirement that the injury not be merely hypothetical or speculative.

Whether
or not Plaintiffs will be called back to active duty depends on future unknown events,

and is
thereby both hypothetical and speculative. See Bates v. Rumsfeld, 271 F. Supp. 2d

54, 62 (D.
D.C. 2002) (where plaintiff challenging the military’s policy of forcing personnel to

receive
anthrax vaccine was no longer on active duty and the vaccine was only being

administered to
select units, plaintiff did not meet requirement that injury be concrete and actual or

imminent).
As such, inactive or former military personnel fail to meet the Article III standing
requirements.
c. State Representatives
The Complaint additionally identifies a group of “Plaintiff State Representatives” as
having “unique standing.” Compl. ¶ 8. While the Complaint does not specifically

identify these
representatives serving in the state government, from the caption of the Complaint it

appears
they are Tennessee Representative Glen Casada; New Hampshire Representative

Timothy
Comerford; Missouri Representative Cynthia Davis; Missouri Representative Timothy

Jones;
Tennessee Representative Frank Niceley; and Tennessee Representative Eric

Swafford
(collectively, the “State Representatives”).
The Complaint alleges that the State Representatives have “a special non-delegable
constitutional right and responsibility to verify the qualifications of the Chief Executive

Officer
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of the United States of America who is responsible for allocating large sums of funds,

since
receipt of funds from any officer without legal authority would be complicity in theft or
conversion.” Id. Defendants argue that this allegation is “wholly insufficient to

constitute
injury-in-fact” because it is “neither actual or imminent” and is “highly speculative.” Mot.

8:13-
14. Morever, Defendants assert that the allegation fails to “withstand any logical

scrutiny”
because the causes of action of theft and conversion require intent. Id. Since

Plaintiffs state that
they do not know with certainty that President Obama was not born in the United

States, they do
not have the requisite intent to be held liable for theft or conversion. Id. 8:8-21.
In effect, Plaintiffs allege that the State Representatives have standing because they

could
be held liable for theft or conversion should they accept federal funds pursuant to an
unconstitutionally elected president. The threat of liability for theft or conversion

against these
representatives is highly speculative. See City of South Lake Tahoe, 625 F.2d at 238

(exposure
of plaintiffs to civil liability was wholly speculative where no lawsuit was currently

threatened);
see also O’Shea v. Littleton, 414 U.S. 488, 497, 94 S. Ct. 669 (1974) (“attempting to

anticipate”
whether respondent will be charged with a crime which will possibly lead to them

suffering a
constitutional violation takes the Court into “the area of speculation and conjecture”).

The State
Representatives’ liability for theft or conversion is speculative because it takes

multiple logical
leaps to assume that the representatives would be prosecuted criminally for theft and

conversion
for taking funds from the President who has been elected and sworn into office.

Because the
alleged harm faced by the State Representatives is highly speculative and conjectural,

this group
also fails to satisfy the standing requirements.
Moreover, to the extent that Plaintiffs allege State Representatives have standing

based on
an oath to uphold the Constitution, the allegation is insufficient to establish standing

under the
reasoning of City of South Lake Tahoe, as discussed above.
d. Federal Taxpayers
Plaintiffs argue that they have standing to challenge President Obama’s

unconstitutional
presidency as federal taxpayers. However, Plaintiffs concede that current Supreme

Court
precedent would not allow for standing in this situation and that the Court could only

find
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taxpayer standing should it expand the Supreme Court’s holdings. Pl. P.B.’s Opp’n

19:22-20:11.
As a basis for this standing, Plaintiffs encourage the Court to expand the Supreme

Court
holding in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942 (1968). In Flast, federal

taxpayers sought
to enjoin the expenditure of federal funds by Congress on the purchase of textbooks

and other
materials for use in parochial schools on grounds that it violated the Establishment

Clause of the
First Amendment. Id. at 85. The Supreme Court rejected the Government’s position

that
standing could never be established on the basis of taxpayer status and held that

taxpayer
standing could be established if the taxpayer demonstrates “that the challenged

enactment
exceeds specific constitutional limitations imposed upon the exercise of the

congressional taxing
and spending power and not simply that the enactment is generally beyond the

powers delegated
to Congress” by Article 1, Section 8. Id. at 103. The Court stated that it lacked

confidence that
the issues would be framed with the necessary specificity to establish standing 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. at 106.
Flast involved the challenge of congressional spending, whereas Plaintiffs in this case
appear to be challenging the President’s role in making any executive decisions,

presumably
including spending, even though Congress, not the President, is granted the taxing

and spending
power in Article I, Section 8 of the Constitution. Plaintiffs’ taxpayer standing argument

ties into
their universal argument that if the President has been elected without meeting the

Constitution’s
requirements, then every presidential order is unconstitutional. Plaintiffs’ dispute

against the
President is a generalized grievance, not tied to a specific spending measure in

violation of the
Constitution. Tellingly, Plaintiffs make no argument pertaining to a particular spending
provision, and their argument does not even relate to the limits of the congressional

taxing and
spending power as discussed in Flast.
Plaintiffs encourage the Court to expand standing grounds, arguing that the reasoning

of
Flast regarding the Establishment Clause is analogous to the natural born citizen

clause because
it is “an absolute limitation on the unconstitutional exercise of power by government

whose
effect (i.e. injury) will always be by definition diffuse rather than particularized.” Pl.

P.B.’s
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Opp’n 20:5-11. Even ignoring the fact that Flast’s holding was limited to Establishment

Clause
claims which are not present here, Flast clearly required that in order for taxpayer

status to
create standing, the taxpayer must demonstrate a nexus between the challenged

spending and the
constitutional right. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 605,

127 S. Ct.
2553 (2007) (requiring a “link” between congressional action and constitutional

violation).
Here, Plaintiffs do not show a nexus between any challenged spending provision

passed by
Congress and the constitutional requirement that the President be a natural born

citizen. See
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 228, 94 S. Ct. 2925

(1974)
(taxpayers did not have standing because they failed to establish a nexus between the

challenged
act and the constitutional violation where the challenged action was one of the

executive
branch).
Under Flast, Plaintiffs do not have standing as taxpayers to challenge the President’s
qualifications. Furthermore, expanding the Supreme Court’s holding in Flast to the

current
situation would be contrary to later Supreme Court jurisprudence reaffirming the

narrow
circumstances in which taxpayer status establishes standing. See, e.g., Hein, 551

U.S. at 615
(rejecting broad reading of Flast and affirming its application only to Congressional

action,
stating, “in the four decades since Flast was decided, we have never extended its

narrow
exception to a purely discretionary Executive Branch expenditure.”); Bowen v.

Kendrick, 487
U.S. 589, 618, 108 S. Ct. 2562 (1988) (reaffirming Flast and acknowledging that Flast

creates
only a “narrow exception” to the “general rule against taxpayer standing”). The

taxpayer
plaintiffs have failed to allege injury-in-fact.
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e. Relatives
The Complaint further alleges that Plaintiff Kurt Fuqua (“Fuqua”) has “traced his
genealogy to be common with Mr. Obama’s” and that he thereby has standing

because of
“family relationship” and “concerns of the family medical history.” Compl. ¶¶ 49, 52.

The
Court finds that Plaintiff Fuqua also fails to satisfy standing requirements based on his

alleged
familial ties to President Obama. The Complaint alleges that this family relationship,

as well as
purported concerns Plaintiff has regarding his family medical history, establish

standing. Id. ¶
52. The Court takes this to mean that Fuqua has a greater interest in finding out where

President
Obama was born than the average citizen. Plaintiff Fuqua’s injury from an allegedly

unqualified
president is not any greater than the common citizen’s injury simply because he is

allegedly
related to President Obama.
The “general right” of “every citizen, to require that the government be administered
according to law” is insufficient to establish standing. Fairchild v. Hughes, 258 U.S.

126, 129,
42 S. Ct. 274 (1922). Plaintiff’s stake in this controversy as a citizen is no greater than

the
millions of other United States citizens, and the harm he alleges is too vague. As such,

Fuqua
has not alleged an injury-in-fact because the grievance of a citizen in the alleged

violation of the
natural born citizen clause is too generalized. See Hollander v. McCain, 566 F. Supp.

2d 63 (D.
N.H. 2008); Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008).
f. Political Candidates
The Complaint alleges that Plaintiffs Wiley S. Drake (“Drake”), Alan Keyes (“Keyes”),
Gail Lightfoot (“Lightfoot”), and Markham Robinson (“Robinson”) have “unique political
standing” because they appeared on the California ballot as candidates for president

or vice
president in the 2008 national election. Compl. ¶ 5. Keyes was the presidential

nominee for the
American Independent Party (also called America’s Independent Party on some

ballots) in the
2008 Presidential election, and Plaintiff Drake was the vice presidential nominee for

the
American Independent Party in the 2008 Presidential election on the California ballot.

Pl.
W.D.’s Opp’n 1:6-13. Lightfoot was also a vice presidential nominee for the American
Independent Party. Plaintiff Robinson was “a pledged Presidential elector for the

American
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Independent Party in the 2008 Presidential election for the California ballot.” Id.
In order to establish injury-in-fact, the injury must “affect the plaintiff in a personal and
individual way.” Lujan, 504 U.S. at 560-61 n.1. Defendants argue that the political

candidate
plaintiffs have failed to establish injury-in-fact because they were not serious enough

contenders
for the presidency that another candidate’s alleged lack of qualifications for the

position could
cause them any harm. Notably, President Obama’s primary opponent for the

Democratic Party
nomination, Secretary Hillary Clinton, and President Obama’s Republican Party

opponent,
Senator John McCain, did not initiate any suits against President Obama regarding his

birth
status. These candidates, who were poised to benefit the most from the removal of

Obama as a
candidate, chose to refrain from bringing suit under the natural born citizen clause.
Defendants argue that because the third party political candidates would have lost the
election in any event, they have not been harmed by competing against a candidate

who did not
qualify. Defendants state that the Plaintiffs cannot meet the injury-in-fact requirement

because
they “cannot counter the argument that, from a simple mathematical analysis, . . . they

were not
on the ballot in enough states in the 2008 Presidential election to even hope that they

could gain
the requisite 270 electoral votes to win the Presidency or Vice Presidency of the

United States.”
Defs.’ Reply 3:6-11. If there should in fact be a dividing line for that is dependent on

the
likelihood of success in the election, then this is not a case which would hover on that

line as
Plaintiffs received only four-hundredth of one percent of the vote. The Court may have

already
met this entire group of voters at the hearings on this matter.
In this case, it does seem highly unlikely that the replacement of President Obama

with
another Democratic nominee such as Hillary Clinton would have resulted in a victory

for
Plaintiffs Keyes, Drake, or Lightfoot of the American Independent Party. However,

creating a
dividing line for standing according to chance of success in political elections is, by

the nature of
our political system, an especially difficult determination because political elections

lack
predictability and can be greatly affected by a single speech or action of a candidate.

At the
same time, perhaps it is precisely this unpredictability of political elections that makes

the claim
of a third party candidate, who received less than one percent of the popular vote in

the 2008
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national election that did take place, too speculative to establish standing.
In addition, Defendants’ arguments raise obvious slippery slope objections. Would a
candidate such as Ross Perot, who received nearly twenty percent of the popular vote

but no
electoral college votes in the 1992 election, have a sufficiently strong chance of

winning the
election to establish standing to challenge a major party candidate’s qualifications? At

the same
time, if every candidate has standing to challenge an opposing candidate, would that

include
write-in candidates who receive minimal votes? Where to draw the line between which

political
candidates have standing and which candidates do not have standing to challenge

their opposing
candidates’ qualifications is an amorphous determination that would need to take into

account, at
the very least, the number of states in which the candidate was on the ballot.
The Court is troubled by the idea that a third party candidate would not have standing

to
challenge a major party candidate’s qualifications, while the opposing major party

candidate
may be able to establish standing because he or she has a better chance of winning

the election.
Defendants’ argument encourages the marginalization of the voice of a third party in

what is a
dominantly two-party political system and would require the Court to pass judgment

that
Plaintiffs are such unlikely candidates that who they are running against would not

make a
difference. This argument also ignores the tremendous effect that a third-party

candidate can
have on the presidential election. In 2000, many political commentators opined that

should
Green Party candidate Ralph Nader not have run for presidential office and received

less than
three percent of the popular vote, Al Gore would have won the election instead of

President
George W. Bush. Even when third-party candidates themselves may not have a

chance of
winning, which candidates they compete against can certainly have an effect on the

election
results.
Plaintiffs Drake and Robinson argue that it is irrelevant that those candidates which

had
the most to gain by removing Obama as a candidate, Secretary Clinton and Senator

McCain, are
not the candidates challenging President Obama. Plaintiffs encourage the Court to

reject
Defendants’ success-based concept of standing. They make a qualitatively different

argument
regarding why they have suffered injury as political candidates, an argument that does

not
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require the Court to consider their likelihood of winning the election. Plaintiffs argue

that the
injury they suffered was the deprivation of the right to run for office on a fair playing

field
against only candidates who meet the constitutional requirements to serve as

President. Under
this theory, the injury is not that of being deprived the chance to win, but being

deprived the
chance to compete only against “legitimate” candidates. If the Court accepts this

concept of
injury, then all candidates would have standing to sue the President on the basis that

they were
all injured by having to compete against him in the national election.
Because the political candidate plaintiffs are the only category of plaintiffs who
potentially satisfy the injury-in-fact requirement, the Court will turn to whether the

political
candidates can satisfy the redressability requirement of the standing analysis and

whether the
political candidates can further clear the political question and separation of powers

hurdles of
justiciability.
B. Redressability, Political Question, and Separation of Powers
The third prong of Article III standing requires that the alleged injury be likely to be
“redressed by a favorable decision.” Lujan, 504 U.S. at 561 (citations omitted). The
redressability prong requires the court to “examine whether ‘the court has the power to

right or
to prevent the claimed injury.’” Railway Labor Executives Ass’n v. Dole, 760 F.2d

1021, 1023
(9th Cir. 1985) (quoting Gonzales v. Gorusch, 688 F.2d 1263, 1267 (9th Cir. 1985)).

While
standing generally focuses upon the potential plaintiff and his or her relationship to the

alleged
harm, the redressability prong of standing turns the focus upon the type of redress

that the court
is able to offer to the plaintiff. Courts will refrain from finding standing in cases where,
regardless of a showing of injury-in-fact, the court would be unable to offer redress

that would
cure plaintiff’s harm. See Railway Labor Executives Ass’n, 760 F.2d at 1023-24

(plaintiffs
failed to satisfy redressability prong where court did not have the power to “fashion[]

an
enforcement manual for an executive branch agency that was presumably

commissioned by
Congress to devise its own enforcement strategy”).
Ultimately, Plaintiffs’ alleged injury is having to respect the authority of a president who
does not meet the constitutional requirements to hold office. Therefore, Plaintiffs’

injury would
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only be redressed by the removal of President Obama from office. Plaintiffs thereby

ask this
Court to intervene and overthrow a president who was elected by “We the People”–

over sixtynine
million of the people. President Obama was popularly elected. He received the

requisite
votes from the Electoral College, which were received and counted by Congress with

no
objections. President Obama took office at noon on January 20, 2009 pursuant to the

Twentieth
Amendment. He was sworn in on January 20, 2009, and re-sworn in on January 21,

2009,
pledging the oath set forth in Article II, Section 1, cl. 8 of the Constitution: “I do

solemnly swear
(or affirm) that I will faithfully execute the Office of President of the United States, and

will to
the best of my Ability, preserve, protect and defend the Constitution of the United

States.” In
order for Plaintiffs’ alleged injury to be fully addressed, Plaintiffs would have the Court
intervene, upheave the results of a national election, declare the President illegitimate,

shut down
the functioning of the government of the United States, and leave this country

defenseless.
Furthermore, if the Court accepts Plaintiffs Drake and Robinson’s conceptualization of
their injury as the harm of being unable to compete in an election with only “legitimate”
candidates, redressing the injury of competing in an unfair election would require that

the Court
order a new national presidential election. Instead of impeachment, which would allow
succession by the Vice President and continuation of the order of a functioning

government,
Plaintiffs seek to shut down the government through an injunction and install a

replacement
government through a new election. In other words, if the political candidates’ harm is

based on
their inability to compete against constitutionally qualified candidates, in order to

redress that
harm the Court would not only have to remove the President, it would have to order a

new
national election.
The analysis of redressability and political question is significantly different in the
context of a sitting president than it would be for a presidential candidate. Therefore, it

is a
crucial distinction that Plaintiffs’ counsel waited to bring this action until after President
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1 Plaintiffs’ counsel Taitz admitted that the failure to bring a suit before this Court
previous to the President’s assumption of office was the fault of counsel due to in-

fighting
between plaintiffs and between her and counsel Kreep. As stated in the October 5

hearing on
this matter:
THE COURT: Just a moment. You didn’t answer my question.
Why didn’t you file this case?
MS. TAITZ: Because the plaintiffs wanted to wait for Mr. Kreep.
THE COURT: So that’s a conscious choice on the plaintiffs’ team,
then, that you acceded to at that time to put this case in the posture
and position of a duly sworn President.
MS. TAITZ: Well, again, Your Honor, not duly sworn President.
If one is sworn based on fraudulent information, then the word
“duly” wouldn’t. . .
Tr. of Oral Argument 52-53, Oct. 5, 2009.
18
Obama’s formal assumption into office.1 See Wilbur v. Locke, 423 F.3d 1101, 1107

(9th Cir.
2005) (quoting Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005))

(“‘As with
all questions of subject matter jurisdiction except mootness, standing is determined

as of the date
of the filing of the complaint . . .’”).
Because Plaintiffs did not file this action until the day President Obama took office

and
was sworn in, any action that this Court takes in this matter is not merely against

Senator Obama
as a political candidate but against President Obama, this country’s sitting president.

In this
case, the redressability prong of standing is intimately intertwined with and influenced

by
another justiciability concept–political question and the separation of powers. Any

action taken
by the Court would necessarily infringe upon, at the very least, the Executive branch

because it
would involve a declaration regarding the qualifications of the President. Because the
redressability analysis must consider what actions the Court may take against a sitting

President,
separation of powers concerns regarding the appropriate role of the judiciary sit at the

forefront
of the redressability analysis.
Plaintiffs have requested both an injunction and a declaratory judgment in the

Complaint.
Compl. ¶¶ 11-22. Plaintiffs would have the Court reverse the election of President

Obama by
the American people through a declaratory judgment or injunction that would result in

the
removal of the President from office. The power of this Court generally to issue an

injunction or
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2 The inclusion of the First Lady in this lawsuit, considering she holds no
constitutional office, is baffling.
19
declaratory judgment against the President is limited at best. The Supreme Court has

stated that
enjoining a President is an “extraordinary” action that should “raise[ ] judicial

eyebrows.”
Franklin v. Massachusetts, 505 U.S. 788, 802, 112 S. Ct. 2767 (1992) (plurality

opinion). It has
also stated that “in general ‘this court has no jurisdiction of a bill to enjoin the President

in the
performance of his official duties.’” Id. at 802-03 (quoting Mississippi v. Johnson, 71

U.S. 475,
501 (1866)).
In addition, Plaintiffs have requested that other officials, including Secretary of

Defense
Robert Gates, be enjoined. In their original complaint, Plaintiffs also included FBI

Director
Robert Mueller. While Plaintiffs removed Mueller in their First Amended Complaint

following
the Court’s suggestion that they narrow and focus their claims, they insisted upon the

continued
inclusion of the First Lady, Secretary of State, Secretary of Defense, and Vice

President as
Defendants.2 Plaintiffs’ cause of action is against the President and goes to the heart

of the
President’s ability to hold office. A remedy directed toward any subordinate officials

would not
redress Plaintiffs’ injury. Therefore, Plaintiffs’ injury could not be redressed through the
injunction of other subordinate executive officials which may be more properly within

the power
of this Court. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct.

863 (1952).
The case of Newdow v. Bush is instructive regarding the power of the Court to issue

an
injunction or declaratory judgment against the President. In Newdow, the court

considered
whether plaintiff had standing to seek a preliminary injunction against President Bush

restraining
him from inviting clergy to give a religious prayer at his inauguration. 355 F. Supp. 2d

265, 268
(D. D.C. 2005). The court observed that issuing an injunction against the President

“raises
serious separation of powers concerns” and further asserted that “[t]here is

longstanding legal
authority that the judiciary lacks the power to issue an injunction or declaratory

judgment against
the co-equal branches of the government–the President and the Congress.” Id. at

280. The court
rejected the argument that there should be an exception read into the President’s

immunity
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“where he is claimed to have violated the Constitution.” Id. at 282. Further, the court

found that
the same considerations foreclosing the possibility of issuing an injunction against the

President
foreclosed the possibility of issuing a request for declaratory judgment. Id. at 281.
In this case, Plaintiffs ask the Court to declare that President Obama is not a
constitutionally elected president. Plaintiffs do not ask the Court to enjoin the

President from
issuing a particular order; they request that President Obama be enjoined from issuing

any orders
whatsoever and be enjoined from holding the office of President. Plaintiffs make it

clear from
their briefing that they believe that any order issued by a president who does not

satisfy the
natural-born citizen clause is unconstitutional. Therefore, in order to cure Plaintiffs’

perceived
injury, the Court would need to wade deep into the waters of the President’s official

duties–in
fact, it would have to declare that the President could no longer perform any official

duties. The
separation of powers concerns implicated by this request are grave.
Beyond the general power of this Court to issue an injunction or declaratory judgment
against the President, the Court must consider its power to take any action removing

the
President from office. Defendants have argued that the Court cannot suitably redress

any injury
to Plaintiffs because the Court does not have the power to upseat the President. They

further
argue that because the Court lacks this power, any declaratory judgment issued by the

Court
finding that the President was not qualified to hold his office would be a nullity.
Removing the President would not only affect the Executive branch, it may also

infringe
upon the power of the Legislative branch granted by the Constitution in matters of

Presidential
impeachment and succession. Defendants argue that the Constitution grants

Congress the sole
power to remove a president through Article I, Sections 2 and 3, which address

impeachment,
and the Twenty-Fifth Amendment, which addresses the removal of the president

should he or
she be unfit to serve.
The non-justiciability of an action on political question grounds is “primarily a function
of the separation of powers” and pertains to “the relationship between the judiciary

and the
coordinate branches of the Federal Government.” Baker v. Carr, 369 U.S. 186, 210,

82 S. Ct.
691 (1962). The key inquiry is whether the matter has “in any measure been

committed by the
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Constitution to another branch of government.” Id. at 211. The Supreme Court has set

forth
factors indicating the existence of a political question:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.
Id. at 217.
Thus, the Court turns to the first factor set forth in Baker v. Carr–whether the Court

finds
a “textually demonstrable constitutional commitment of the issue to a coordinate

political
department.” Id. The natural born citizen clause is couched in absolute terms of

qualifications
and does not designate which branch should evaluate whether the qualifications are

fulfilled.
Therefore, the Court necessarily turns to a structural analysis of the Constitution

regarding the
role of the respective branches of government in deciding the qualifications of a

sitting president
to hold office.
Three provisions of the Constitution speak to which branch of government has the

power
to evaluate the qualifications of a president: the Twelfth Amendment, the Twenty-Fifth
Amendment, and the Twentieth Amendment to the Constitution. The Twelfth

Amendment
provides a role for Congress to make the ultimate determination of who shall be

president and
vice president through the counting of the electoral votes. The Twenty-Fifth

Amendment, which
addresses the succession to presidency and vice presidency in the case the

president is disabled,
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3 Plaintiffs presume that the words of Emmerich de Vattel, John Jay, and John
Armor Bingham alone empower this Court to define the natural born citizen clause.

The
Complaint conveniently chooses to ignore Congress’ long history of defining

citizenship,
whether naturalized or by birth. See Charles Gordon, “Who Can be President of the

United
States: The Unresolved Enigma,” 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150

years of active
Congressional legislation against judicial restraint).
22
including by death or resignation, directs that in the case where there is disagreement

as to
whether the President is able to discharge the powers and duties of his or her office,

“Congress
shall decide the issue.”
The Twentieth Amendment, known as the “Lame Duck Amendment,” addresses the

task
of ensuring that someone holds the office of president in the case of the death of a

president or
the failure of a president to be chosen or qualify by the beginning of his or her term.

The
Twentieth Amendment provides: “If, at the time fixed for the beginning of the term of

the
President, the President elect shall have died, the Vice President elect shall become

President. If
a President shall not have been chosen before the time fixed for the beginning of his

term, or if
the President elect shall have failed to qualify, then the Vice President elect shall act

as President
until a President shall have qualified; and the Congress may by law provide for the

case wherein
neither a President elect nor a Vice President elect shall have qualified, declaring who

shall then
act as President, or the manner in which one who is to act shall be selected, and such

person
shall act accordingly until a President or Vice President shall have qualified.”
Even though these provisions of the Constitution tend to suggest that, at least in some
circumstances, it is within the province of Congress to decide whether the President

meets the
qualifications to serve,3 the Court cannot reach the issue of whether in all cases the

interpretation
of the natural born citizen clause would present a political question. Instead, because

redress of
Plaintiffs’ alleged harm would require removal of President Obama, the key analysis is

whether
the power to remove a sitting president from office is textually committed to another

branch.
The Constitution grants to Congress the sole power of impeachment of the President.

The
Constitution reads, “The Senate shall have the sole Power to try all Impeachments.

When sitting
for that Purpose, they shall be on Oath or Affirmation. When the President of the

United States
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is tried, the Chief Justice shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.” U.S. Const. Art. I, § 3, cl. 6. In

Nixon v.
United States, when considering the issue of whether the Court could review the

manner in
which the Senate conducted impeachment proceedings, the Supreme Court focused

on the grant
of “sole” power to try impeachments to the Senate, noting that the definition of sole is
“‘functioning . . . independently and without assistance or interference.’” 506 U.S. 224,

231,
113 S. Ct. 732 (1993). The Court ruled that the text of the impeachment clause

indicated a
purposeful decision by the Framers to commit impeachment to the Legislative branch.

Id. at
235-36. Furthermore, the Twenty-Fifth Amendment sets forth the line of succession

“in case of
the removal of the president from office” or in case of his or her death, resignation, or

inability
to serve. The Amendment specifies a role for Congress in this process, but no role

for the
judiciary. The combination of Article I and the Twenty-Fifth Amendment leads the

Court to
conclude that there is a textually demonstrable constitutional commitment of the issue

of the
removal of a sitting president to a coordinate political department–the Legislative

branch.
In Nixon, the Court also discussed prudential considerations that counseled against
judicial review of Senate impeachment proceedings. 506 U.S. at 252 n.4. While Nixon

involved
the impeachment of a judge, the Court commented on the dangers of judicial review

of
impeachment of the President:
This lack of finality would manifest itself most dramatically if
the President were impeached. The legitimacy of any successor, and
hence its effectiveness, would be impaired severely, not merely
while the judicial process was running its course, but during any
retrial that a differently constituted Senate might conduct if its first
judgment of conviction were invalidated.
506 U.S. at 236. The potential upheaval to this country that would result from a branch

other
than Congress ruling on the removal of the President weighs heavily in this case as

well. The
founders of the Constitution created impeachment to allow an orderly process of

transition and
succession during which the country can continue to function. Plaintiffs’ request,

asking this
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Court to sweep away the votes of over sixty-nine million Americans with the stroke of a

pen and
order a new election during which the country would be in a state of turmoil, ignores

the
Constitution’s processes and separation of powers that were developed by the

founders.
Evaluation of the other Baker v. Carr factors confirms that refraining from taking
jurisdiction over this matter is appropriate. Specifically, the factors of (1) “the

impossibility of a
court's undertaking independent resolution without expressing lack of the respect due

coordinate
branches of government;” (2) “an unusual need for unquestioning adherence to a

political
decision already made;” and (3) “the potentiality of embarrassment from multifarious
pronouncements by various departments on one question” all support the impropriety

of
assuming jurisdiction. 369 U.S. at 217.
At oral argument, Plaintiffs Drake and Robinson encouraged the Court to find that the
redressability prong has been satisfied on the basis that President Obama’s removal

from office
would not require impeachment, which they agree is reserved by the Constitution for

Congress.
Because President Obama never met the constitutional requirements to run for

President, they
argue, he was never a valid candidate and could not be validly elected. Because he

does not
validly hold the office of President, he would not be subject to the Constitution’s

requirements
regarding the removal of a president from office through impeachment. Finally, they

reasoned
that, because whatever alternative process would be required to remove the

President is not set
forth in the Constitution, it is not clearly reserved for another branch and is therefore

within the
province of this Court.
There may very well be a legitimate role for the judiciary to interpret whether the

natural
born citizen requirement has been satisfied in the case of a presidential candidate

who has not
already won the election and taken office. However, on the day that President Obama

took the
presidential oath and was sworn in, he became President of the United States. Any

removal of
him from the presidency must be accomplished through the Constitution’s

mechanisms for the
removal of a President, either through impeachment or the succession process set

forth in the
Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of power to Congress

by
convincing the Court that it should disregard the constitutional procedures in place for

the
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removal of a sitting president. The process for removal of a sitting president–removal

for any
reason–is within the province of Congress, not the courts.
This case highlights the complicated relationship between the redressability prong of
standing and the political question doctrine in cases where the plaintiff’s injuries can

only be
addressed through a court taking action against another branch of the government.

Because the
Court finds that it does not have the power nor the right to redress the political

candidates’ injury
by removing a sitting President from office, the Court does not have jurisdiction as to

the
political candidates’ claims on the basis that they fail to satisfy the redressability

requirement of
Article III standing.
Therefore, the Court finds that it lacks jurisdiction because Plaintiffs have failed to
establish standing on injury-in-fact and redressability grounds. Plaintiffs’ declaratory

relief,
injunction, and Section 1983 claims are DISMISSED.
C. Quo Warranto Claims
Plaintiffs encourage the Court to issue a quo warranto writ against President Obama
challenging the President’s right to hold his office. The Complaint recognizes that the

District of
Columbia would be the appropriate district in which to bring this writ, but alleges that

bringing
this request to the United States District Court for the District of Columbia would be

futile
because the United States Attorney is biased and Judge Robertson within that district

had already
rejected a similar case in which President Obama’s qualifications were challenged.

Compl. ¶¶
32 - 35.
The writ of quo warranto must be brought within the District of Columbia because
President Obama holds office within that district. The quo warranto provision codified

in the
District of Columbia Code provides, “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.”
D.C. Code §§ 16-3501 - 16-3503. Should a person other than the Attorney General of

the
United States or the United States Attorney wish to bring a quo warranto claim, that

person must
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receive leave of court to do so. Id. at § 16-3502. This leave of court must be granted,

according
to the text of the statute, by the District Court for the District of Columbia.
At oral argument, Plaintiffs encouraged the Court to apply the District of Columbia’s

quo
warranto statute pursuant to California choice-of-law provisions because the District of
Columbia is the residence of Defendants. Plaintiffs’ contention is wholly misplaced

because,
while this Court can apply the law of other jurisdictions where appropriate, it is

precluded from
robbing the D.C. court of jurisdiction as to any quo warranto writ against President

Obama
because the D.C. Code grants exclusive jurisdiction to the District Court for the

District of
Columbia. Plaintiffs’ quo warranto demand is hereby DISMISSED for improper venue.
D. Discovery and Freedom of Information Act Claims
Plaintiffs argue that they have been ignored by several government agencies in their

quest
to receive Obama’s long-form Hawaiian birth certificate and other information such as

his
passport records. See Compl. ¶¶ 86 - 109. Plaintiffs have indicated that they plan to

seek
extensive discovery in this case, including the deposition and appearance in court of

President
Obama and the request through a letter rogatory to the government of Kenya for the

birth
certificate that they allege proves he was born in Kenya. See Mot. for Issuance of

Letters
Rogatory for Authentication of Kenyan Birth Certificate (Aug. 1, 2009); Special Mot.

For Leave
to Conduct Pre-R. 26(f) Discovery (Aug. 1, 2009) (“Plaintiffs . . . intend on taking the

following
depositions: a. Barack Hussein Obama; b. Cheryl Fukino; c. Speaker of the House of
Representatives, Congresswoman Nancy Pelosi; d. Commissioner of Social Security;

e. All other
Defendants . . .”). Plaintiffs appear to assume that should the Court receive a

document from
Kenya, the Court would give credence to this document over the American birth

records of the
President and the case would be resolved. Even should the Court permit the issuance

of a letter
rogatory to Kenya, the Court would still engage in a comparative exercise in which the

records
of America, which has historically maintained some of the most credible

recordkeeping practices
in the world, would be contrasted with the credibility of the records obtained from

Kenya. Such
an analysis would seemingly favor the records of the United States.
As support for their right to these documents, Plaintiffs purport to state a claim under

the
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Freedom of Information Act. The Complaint states, “The Plaintiffs as a group may not

have
adhered closely or precisely to the letter of FOIA in all of their approaches to the

current
administration for information, but this court has assured them that the present case

will be
decided on its legal merits and factual substance, and not on procedural

irregularities.” Compl. ¶
59. In Plaintiffs’ briefing, they state, “Plaintiffs can and do allege exhaustion of FOIA
requirements as a practical and substantive matter.” Pl. P.B.’s Opp’n 8:27-28.
However, even ignoring the fact that Plaintiffs appear to admit that they have not
complied with FOIA requirements in their requests for information, Plaintiffs’ claim fails
because FOIA does not apply to Defendants. FOIA only applies to entities qualifying

as an
“agency.” 5 U.S.C. § 552(a)(2). The statute defines “agency” as, “any executive

department,
military department, Government corporation, Government controlled corporation, or

other
establishment in the executive branch of the Government (including the Executive

Office of the
President), or any independent regulatory agency.” Id. at § 551(1). The Executive

Office of the
President is an agency within the Executive branch and is a body separate from the

President
himself. All of the Defendants–President Obama, Michelle Obama, Secretary Clinton,

Vice
President Biden, and Secretary Gates–are individuals, not agencies. Therefore,

Plaintiffs fail to
state a claim against these individuals under FOIA and the claim is hereby

DISMISSED.
E. Claims Against the Remaining Defendants
Plaintiffs have also named Michelle Obama, Hillary Clinton, Joseph Biden, and Robert
Gates as defendants. Plaintiffs made overtures at pleading a civil Racketeer

Influenced and
Corrupt Organizations Act (“RICO”) claim under 18 U.S.C. §§ 1961 et seq. against all
Defendants. However, the pleading only states that while Plaintiffs had “accumulated

several
dossiers of evidence” suggesting a civil RICO conspiracy, they were unable to

actually set forth
a RICO pleading “[b]ecause of the complexity of RICO.” Compl. ¶¶ 123-25. Plaintiffs
originally filed this action on January 20, 2009, and the First Amended Complaint at

issue was
filed on July 15, 2009. Nearly six months was more than sufficient time for Plaintiffs to

at least
attempt to set forth civil RICO allegations. The failure to do so is inexcusable, and as

Plaintiffs
have failed to state any claim whatsoever against Defendants Michelle Obama,

Clinton, Biden,
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and Gates, all claims against them are DISMISSED.
F. Conduct of Plaintiffs’ Counsel
The hearings have been interesting to say the least. Plaintiffs’ arguments through Taitz
have generally failed to aid the Court. Instead, Plaintiffs’ counsel has favored rhetoric

seeking
to arouse the emotions and prejudices of her followers rather than the language of a

lawyer
seeking to present arguments through cogent legal reasoning. While the Court has no

desire to
chill Plaintiffs’ enthusiastic presentation, Taitz’s argument often hampered the efforts

of her cocounsel
Gary Kreep (“Kreep”), counsel for Plaintiffs Drake and Robinson, to bring serious
issues before the Court. The Court has attempted to give Plaintiffs a voice and a

chance to be
heard by respecting their choice of counsel and by making every effort to discern the

legal
arguments of Plaintiffs’ counsel amongst the rhetoric.
This Court exercised extreme patience when Taitz endangered this case being heard

at all
by failing to properly file and serve the complaint upon Defendants and held multiple

hearings to
ensure that the case would not be dismissed on the technicality of failure to effect

service. While
the original complaint in this matter was filed on January 20, 2009, Defendants were

not
properly served until August 25, 2009. Taitz successfully served Defendants only after

the
Court intervened on several occasions and requested that defense counsel make

significant
accommodations for her to effect service. Taitz also continually refused to comply

with court
rules and procedure. Taitz even asked this Court to recuse Magistrate Judge Arthur

Nakazato on
the basis that he required her to comply with the Local Rules. See Order Denying Pls.’

Mot. For
Modification of Mag. J. Nakazato’s Aug. 6, 2009, Order; Denying Pls.’ Mot. to Recuse

Mag. J.
Nakazato; and Granting Ex Parte App. for Order Vacating Voluntary Dismissal (Sep. 8,

2009).
Taitz also attempted to dismiss two of her clients against their wishes because she

did not want
to work with their new counsel. See id.
Taitz encouraged her supporters to contact this Court, both via letters and phone calls.

It
was improper and unethical for her as an attorney to encourage her supporters to

attempt to
influence this Court's decision. Despite these attempts to manipulate this Court, the

Court has
not considered any outside pleas to influence the Court's decision.
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Additionally, the Court has received several sworn affidavits that Taitz asked potential
witnesses that she planned to call before this Court to perjure themselves. This Court

is deeply
concerned that Taitz may have suborned perjury through witnesses she intended to

bring before
this Court.
While the Court seeks to ensure that all interested parties have had the opportunity to

be
heard, the Court cannot condone the conduct of Plaintiffs’ counsel in her efforts to

influence this
Court.
IV. DISPOSITION
Plaintiffs have expressed frustration with the notion that this case could be dismissed

on
separation of powers, political question, or standing grounds, asserting that these are

mere
“technicalities” obstructing Plaintiffs from being able to resolve the case on the merits

of
President Obama’s birth and constitutional qualifications. As the Supreme Court has

stated, “It
is indeed a singular misconception of the nature and character of our constitutional

system of
government to suggest that the settled distinction . . . between judicial authority over

justiciable
controversies and legislative power as to purely political questions tends to destroy

the duty of
the judiciary in proper cases to enforce the Constitution.”

The Greenback Effect By WARREN E. BUFFETT

August 19, 2009
Op-Ed Contributor
The Greenback Effect
By WARREN E. BUFFETT

Omaha

IN nature, every action has consequences, a phenomenon called the butterfly effect. These consequences, moreover, are not necessarily proportional. For example, doubling the carbon dioxide we belch into the atmosphere may far more than double the subsequent problems for society. Realizing this, the world properly worries about greenhouse emissions.

The butterfly effect reaches into the financial world as well. Here, the United States is spewing a potentially damaging substance into our economy — greenback emissions.

To be sure, we’ve been doing this for a reason I resoundingly applaud. Last fall, our financial system stood on the brink of a collapse that threatened a depression. The crisis required our government to display wisdom, courage and decisiveness. Fortunately, the Federal Reserve and key economic officials in both the Bush and Obama administrations responded more than ably to the need.

They made mistakes, of course. How could it have been otherwise when supposedly indestructible pillars of our economic structure were tumbling all around them? A meltdown, though, was avoided, with a gusher of federal money playing an essential role in the rescue.

The United States economy is now out of the emergency room and appears to be on a slow path to recovery. But enormous dosages of monetary medicine continue to be administered and, before long, we will need to deal with their side effects. For now, most of those effects are invisible and could indeed remain latent for a long time. Still, their threat may be as ominous as that posed by the financial crisis itself.

To understand this threat, we need to look at where we stand historically. If we leave aside the war-impacted years of 1942 to 1946, the largest annual deficit the United States has incurred since 1920 was 6 percent of gross domestic product. This fiscal year, though, the deficit will rise to about 13 percent of G.D.P., more than twice the non-wartime record. In dollars, that equates to a staggering $1.8 trillion. Fiscally, we are in uncharted territory.

Because of this gigantic deficit, our country’s “net debt” (that is, the amount held publicly) is mushrooming. During this fiscal year, it will increase more than one percentage point per month, climbing to about 56 percent of G.D.P. from 41 percent. Admittedly, other countries, like Japan and Italy, have far higher ratios and no one can know the precise level of net debt to G.D.P. at which the United States will lose its reputation for financial integrity. But a few more years like this one and we will find out.

An increase in federal debt can be financed in three ways: borrowing from foreigners, borrowing from our own citizens or, through a roundabout process, printing money. Let’s look at the prospects for each individually — and in combination.

The current account deficit — dollars that we force-feed to the rest of the world and that must then be invested — will be $400 billion or so this year. Assume, in a relatively benign scenario, that all of this is directed by the recipients — China leads the list — to purchases of United States debt. Never mind that this all-Treasuries allocation is no sure thing: some countries may decide that purchasing American stocks, real estate or entire companies makes more sense than soaking up dollar-denominated bonds. Rumblings to that effect have recently increased.

Then take the second element of the scenario — borrowing from our own citizens. Assume that Americans save $500 billion, far above what they’ve saved recently but perhaps consistent with the changing national mood. Finally, assume that these citizens opt to put all their savings into United States Treasuries (partly through intermediaries like banks).

Even with these heroic assumptions, the Treasury will be obliged to find another $900 billion to finance the remainder of the $1.8 trillion of debt it is issuing. Washington’s printing presses will need to work overtime.

Slowing them down will require extraordinary political will. With government expenditures now running 185 percent of receipts, truly major changes in both taxes and outlays will be required. A revived economy can’t come close to bridging that sort of gap.

Legislators will correctly perceive that either raising taxes or cutting expenditures will threaten their re-election. To avoid this fate, they can opt for high rates of inflation, which never require a recorded vote and cannot be attributed to a specific action that any elected official takes. In fact, John Maynard Keynes long ago laid out a road map for political survival amid an economic disaster of just this sort: “By a continuing process of inflation, governments can confiscate, secretly and unobserved, an important part of the wealth of their citizens.... The process engages all the hidden forces of economic law on the side of destruction, and does it in a manner which not one man in a million is able to diagnose.”

I want to emphasize that there is nothing evil or destructive in an increase in debt that is proportional to an increase in income or assets. As the resources of individuals, corporations and countries grow, each can handle more debt. The United States remains by far the most prosperous country on earth, and its debt-carrying capacity will grow in the future just as it has in the past.

But it was a wise man who said, “All I want to know is where I’m going to die so I’ll never go there.” We don’t want our country to evolve into the banana-republic economy described by Keynes.

Our immediate problem is to get our country back on its feet and flourishing — “whatever it takes” still makes sense. Once recovery is gained, however, Congress must end the rise in the debt-to-G.D.P. ratio and keep our growth in obligations in line with our growth in resources.

Unchecked carbon emissions will likely cause icebergs to melt. Unchecked greenback emissions will certainly cause the purchasing power of currency to melt. The dollar’s destiny lies with Congress.

Warren E. Buffett is the chief executive of Berkshire Hathaway, a diversified holding company.

Troy Anthony Davis Wins Federal Hearing

Death Row Prisoner Wins Hearing
Supreme Court Orders Review of Evidence in Georgia Case

Troy Anthony Davis says evidence proves his innocence.
Troy Anthony Davis says evidence proves his innocence. (Savannah Morning News - AP)
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By Robert Barnes
Washington Post Staff Writer
Tuesday, August 18, 2009

The Supreme Court on Monday took the rare step of ordering a federal judge to consider the innocence claims of condemned Georgia prisoner Troy Anthony Davis, who has mounted a global campaign to declare he was wrongfully convicted of murder and barred by federal law from presenting the evidence that would prove it.
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Death Row Prisoner Wins Hearing
*
Full Coverage: Supreme Court

The court interrupted its summer recess to order a new hearing to determine "whether evidence that could not have been obtained at the time of trial clearly establishes" Davis's innocence.

Davis has come close to execution several times since he was convicted of the 1989 killing of off-duty Savannah police officer Mark Allen MacPhail. The case has spawned a national and international following, intense interest from Amnesty International and the NAACP, and support from Pope Benedict XVI, former president Jimmy Carter and Archbishop Desmond Tutu, among others.

Monday's court decision comes at a time when federal judges have complained that a law passed by Congress in 1996 to streamline the death penalty appeals process keeps them from getting to questions of innocence raised by condemned petitioners.

In Davis's case, liberal Judge Rosemary Barkett of the U.S. Court of Appeals for the 11th Circuit criticized the Antiterrorism and Effective Death Penalty Act's "thicket of procedural brambles," as well as her court's decision that the law barred Davis from presenting what he said is newfound evidence.

"AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed," Barkett wrote in dissent.

Davis's lawyers filed a petition directly with the Supreme Court after lower federal courts said that, because he could point to no constitutional defects in the trial he received, he could not present new evidence that would show his innocence. Davis says that since his trial, seven of Georgia's nine key witnesses have recanted their testimony against him. He claims that the man who was the key witness against him was the actual shooter.

Justice Antonin Scalia objected to the court's decision to order a new hearing, an "extraordinary step" he said the court had not taken in nearly 50 years. Joined by Justice Clarence Thomas, he called the action a "fool's errand" and a "confusing exercise that can serve no purpose except to delay the state's execution of its lawful criminal judgment."
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At the heart of the issue is what federal courts are to do with claims of innocence by those convicted in state courts, when there were no constitutional violations at trial.

"This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent," Scalia wrote. "Quite to the contrary, we have repeatedly left that question unresolved."

But Justice John Paul Stevens, who countered Scalia's dissent in an opinion joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, said the "substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

He suggested that it would be "arguably unconstitutional" for the federal law to not provide relief for a death row inmate who has established his innocence.

Newly installed Justice Sonia Sotomayor did not take part in the decision. The judgments of the other three justices -- Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr. -- were not indicated in the court's order, although presumably at least two of the three agreed with the decision to order the new hearing.

Deborah Denno, a death penalty expert at Fordham Law School, said the decision was "certainly significant" and shows that the court is "paying attention to cases on death row" in which inmates are claiming federal law restricts their ability to present new evidence.

Kent Scheidegger, a capital punishment proponent at the Criminal Justice Legal Foundation, said such claims "are quite rare," and that the court's "highly unusual action" posed no threat to the death penalty system.

Davis's lawyers believe they have established an impressive case for their client's innocence with the recantations and testimony from others that Davis was not the shooter. Scalia was not impressed, and he disputed the notion from Davis that no court has carefully considered his new claims.

"A state supreme court, a state board of pardons and paroles and a federal court of appeals have all considered the evidence Davis now presents and found it lacking," Scalia wrote.

But Stevens said that, under Scalia's argument, it would not matter how persuasive the evidence was. "Imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man," Stevens wrote. "The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The court correctly refuses to endorse such reasoning."

Letter from an Israeli Jail By Cynthia McKinney

Letter from an Israeli Jail
By Cynthia McKinney

This is Cynthia McKinney and I¹m speaking from an Israeli prison cellblock in Ramle. [I am one of] the Free Gaza 21, human rights activists currently imprisoned for trying to take medical supplies to Gaza, building supplies - and even crayons for children, I had a suitcase full of crayons for children. While we were on our way to Gaza the Israelis threatened to fire on our boat, but we did not turn around. The Israelis high-jacked and arrested us because we wanted to give crayons to the children in Gaza. We have been detained, and we want the people of the world to see how we have been treated just because we wanted to deliver humanitarian assistance to the people of Gaza.

At the outbreak of Israel¹s Operation ŒCast Lead¹ [in December 2008], I boarded a Free Gaza boat with one day¹s notice and tried, as the US representative in a multi-national delegation, to deliver 3 tons of medical supplies to an already besieged and ravaged Gaza.

During Operation Cast Lead, U.S.-supplied F-16¹s rained hellfire on a trapped people. Ethnic cleansing became full scale outright genocide. U.S.-supplied white phosphorus, depleted uranium, robotic technology, DIME weapons, and cluster bombs20- new weapons creating injuries never treated before by Jordanian and Norwegian doctors. I was later told by doctors who were there in Gaza during Israel¹s onslaught that Gaza had become Israel¹s veritable weapons testing laboratory, people used to test and improve the kill ratio of their weapons.

The world saw Israel¹s despicable violence thanks to al-Jazeera Arabic and Press TV that broadcast in English. I saw those broadcasts live and around the clock, not from the USA but from Lebanon, where my first attempt to get into Gaza had ended because the Israeli military rammed the boat I was on in international water ... It¹s a miracle that I¹m even here to write about my second encounter with the Israeli military, again a humanitarian mission aborted by the Israeli military.

The Israeli authorities have tried to get us to confess that we committed a crime ... I am now known as Israeli prisoner number 88794. How can I be in prison for collecting crayons to kids?

Zionism has surely run out of its last legitimacy if this is what it does to people who believe so deeply in human rights for all that they put their own lives on the line for someone else¹s children. Israel is the fullest expression of Zionism, but if Israel fears for its security because Gaza¹s children have crayons then not only has Israel lost its last shred of legitimacy, but Israel must be declared a failed state.

I am facing deportation from the state that brought me here20at gunpoint after commandeering our boat. I was brought to Israel against my will. I am being held in this prison because I had a dream that Gaza¹s children could color & paint, that Gaza¹s wounded could be healed, and that Gaza¹s bombed-out houses could be rebuilt.

But I¹ve learned an interesting thing by being inside this prison. First of all, it¹s incredibly black: populated mostly by Ethiopians who also had a dream ... like my cellmates, one who is pregnant. They are all are in their twenties. They thought they were coming to the Holy Land. They had a dream that their lives would be better ... The once proud, never colonized Ethiopia [has been thrown into] the back pocket of the United States, and become a place of torture, rendition, and occupation. Ethiopians must free their country because superpower politics [have] become more important than human rights and self-determination.

My cellmates came to the Holy Land so they could be free from the exigencies of superpower politics. They committed no crime except to have a dream. They came to Israel because they thought that Israel held promise for them. Their journey to Israel through Sudan and Egypt was arduous. I can only imagine what it must have been like for them. And it wasn¹t cheap. Many of them represent their family¹s best collective efforts for self-fulfilment. They made their way to the United Nations High Commission for Refugees. They got their yellow paper of identification. They got their cert ificate for police protection. They are refugees from tragedy, and they made it to Israel only after they arrived Israel told them ³there is no UN in Israel.²

The police here have license to pick them up & suck them into the black hole of a farce for a justice system. These beautiful, industrious and proud women represent the hopes of entire families. The idea of Israel tricked them and the rest of us. In a widely propagandized slick marketing campaign, Israel represented itself as a place of refuge and safety for the world¹s first Jews and Christian. I too believed that marketing and failed to look deeper.

The truth is that Israel lied to the world. Israel lied to the families of these young women. Israel lied to the women themselves who are now trapped in Ramle¹s detention facility. And what are we to do? One of my cellmates cried today. She has been here for 6 months. As an American, crying with them is not enough. The policy of the United States must be better, and while we watch President Obama give 12.8 trillion dollars to the financial elite of the United States it ought now be clear that hope, change, and Œyes we can¹ were powerfully presented images of dignity and self-fulfilment, individually and nationally, that besieged people everywhere truly believed in.

It was a slick marketing campaign as slickly put to the world and to the voters of America as was Israel¹s marketing to the world. It tricked all of us but, more tragically , these young women.

We must cast an informed vote about better candidates seeking to represent us. I have read and re-read Dr. Martin Luther King Junior¹s letter from a Birmingham jail. Never in my wildest dreams would I have ever imagined that I too would one day have to do so. It is clear that taxpayers in Europe and the U.S. have a lot to atone for, for what they¹ve done to others around the world.

What an irony! My son begins his law school program without me because I am in prison, in my own way trying to do my best, again, for other people¹s children. Forgive me, my son. I guess I¹m experiencing the harsh reality which is why people need dreams. [But] I¹m lucky. I will leave this place. Has Israel become the place where dreams die?

Ask the people of Palestine. Ask the stream of black and Asian men whom I see being processed at Ramle. Ask the women on my cellblock. [Ask yourself:] what are you willing to do?

Let¹s change the world together & reclaim what we all need as human beings: Dignity. I appeal to the United Nations to get these women of Ramle, who have done nothing wrong other than to believe in Israel as the guardian of the Holy Land, resettled in safe homes. I appeal to the United State¹s Department of State to include the plight of detained UNHCR-certified refugees in the Israel country report in its annual human rights report. I appeal once again to President Obama to go to Gaza: send your spec ial envoy, George Mitchell there, and to engage Hamas as the elected choice of the Palestinian people.

I dedicate this message to those who struggle to achieve a free Palestine, and to the women I¹ve met at Ramle. This is Cynthia McKinney, July 2nd 2009, also known as Ramle prisoner number 88794.