Taitz v. Obama ( 2010 )

UNITED STATES DISTRICT COURT
FoR THE DISTRICT oF CoLUMBIA § E
§ i\P-E § 2913
oRLY TAITZ, § _
plaintiff § &B..$»; USTRM GO%M
§
v. § Civil Acti0n 10-151 (RCL)
§
BARACK HUSSEIN oBA1v1A, §
Defendant. §
§
MEMORANDUM OPINION
Before the Court is the defendant’s motion [18] to dismiss the first
amended complaint and Christopher Strunk’s motion [6] to intervene, Also
pending before the Court is the plaintiffs motion [17] to consolidate this case
with an action currently pending in the United States District Court for the
Northern District of Florida. Upon consideration of the motion to dismiss,
the applicable laW, and the entire record herein the motion will be granted
for the reasons set forth below. After consideration of the motion to
intervene, the opposition, the applicable law, and the entire record herein the
motion will be denied for the reasons set forth below. After consideration of
the motion to consolidate, the opposition, and the applicable laW, the motion
shall be denied without prejudice as this Court lacks jurisdiction to hear it.
I. The Government’s Motion to Dismiss
A. Quo Warranto Claims
Orly Taitz has filed suit seeking this Court to issue a writ of quo
warranto against the President of the United States to determine his
eligibility for office. See D.C. CODE § 16-3501. A writ of quo warranto is a
"common-law writ used to inquire the authority by which a public office is
he1d." BLAoK’s LAw DICTIoNARY 1371 (9th ed. 2009). The District of
Columbia Code has two statutes regarding the initiation of a quo warranto
proceeding. The first provides that the Attorney General of the United States
or the United States Attorney may institute such an action on their own
motion or on the relation of a third person. D.C. CODE § 16-3502. If the
Attorney General or U.S. Attorney does so on the relation of a third person,
they must first seek leave of court. Id. The Code also provides that if the
Attorney General or U.S. Attorney "refuse[] to institute a quo warranto
proceeding on the request of a person interested, the interested person may
apply to the court by certified petition for leave to have the writ issued." Id. §
16-3503. Ms. Taitz, having contacted the U.S. Attorney for the District of
Columbia and the Attorney General of the United States, and not having
received an answer to her satisfaction, has elected to seek the writ on her
own. Shortly after she filed suit, the government moved to dismiss.
This is one of several such suits filed by Ms. Taitz in her quixotic
attempt to prove that President Obama is not a natural born citizen as
required by Constitution. See U.S. CONST. art. II, § 1. This Court is not
willing to go tilting at windmills with her.
The Court of Appeals for this Circuit has held that a quo warranto
action against a public official may be brought only by the Attorney General
or the U.S. Attorney. Andrade u. Lauer, 729 F.2d 147 5, 1498 (D.C. Cir. 1984)
(Wright, J.) (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir.
1945)). The Court of Appeals reasoned that this must be the case because
challenges to authority by which a public office is held "involve a right
belonging to the whole body of the public which can be protected only by a
public representative." Carmody, 148 F.2d at 685.
That holding of the Court of Appeals is rooted in the doctrine of
standing. To bring a case in federal court a plaintiff must establish that he
or she has standing to do so, which is essentially a question of whether "the
litigant is entitled to have the court decide the merits of the dispute. . . ."
Warth v. Seldin, 422 U.S. 490, 498 (1975). There are three elements that
form the "irreducible constitutional minimum of standing." Lujcm v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (Scalia, J.). lf any one of these
three requirements is not met, a plaintiff does not have standing.
The first of these is that the plaintiff must suffer an injury in fact. Id.
That is an injury must be concrete and particularized and actual or
imminent, rather than conjectural or hypothetical. Id. injuries which are
general, rather than particularized, are not sufficient to create standing.
Indeed, the Supreme Court has "consistently held that a plaintiff raising only
a generally available grievance about government-claiming only harm to his
and every citizen’s interest in proper application of the Constitution and
laws, and seeking relief that no more directly and tangibly benefits him than
it does the public at large-does not state an Article lII case or controversy."
Id. at 573-74. This is precisely the sort of injury that Ms. Taitz alleges and
as such she does not have standing to pursue her claim. Because Ms. Taitz is
neither the Attorney General of the United States nor the United States
Attorney for the District of Columbia, she does not have standing to bring a
quo warranto action challenging a public official’s right to hold office.l
Accordingly Ms. Taitz’s quo warranto claims are dismissed for lack of
standing.? See FED. R. CIV. P. 12(b)(1).
B. Qui Tam Claims
To bring a claim under the False Claims Act, it must be filed under
seal on behalf of the United States and not served on the defendant until
ordered by the court. 31 U.S.C. § 3730(b)(2). Failure to comply with these
filing procedures results in dismissal of the relator’s suit with prejudice.
United States ex rel. LeBlanc u. ITT In.dus., 492 F. Supp. 2d 303, 305
(S.D.N.Y. 2007) (citing United States ex rel. Pilon v. Martin Marietta Corp.,
60 F.3d 995, at 999-1000 (2d Cir. 1995)). Ms. Taitz attempts to excuse her
failure to file under seal by stating that "[i]n this case the facts are widely
known." [Dkt. 21 at 6.] But the qui tam statute provides no exception to the
‘ Even if the Court of Appeals’ precedent did not firmly preclude Ms. Taitz from bringing suit to challenge
President Obama’s right to hold office, the one case that discusses the circumstances under which a private
person might be able to challenge a public official’s title to office despite the refusal of the Attorney
General or the United States Attorney to act, suggests that the "interested person" bringing the action would
have had to be actually entitled to the office herself. Newman v. United States ex rel Frizzell, 238 U.S. 537,
547 (1915). Ironically enough, Ms. Taitz could never establish such an injury because-as far as the Court
is aware-she was not elected president nor could she be as she is not a natural born citizen herself.
2 Because Ms. Taitz lacks standing to pursue her quo warranto action her motion for a preliminary
injunction is denied as moot.
requirement a complaint be filed under seal. As Ms. Taitz did not file her
complaint under seal as required by section 3730(b)(2), her qui tam claims
are dismissed.
C. Freedom of information Act Claims
Ms. Taitz has also made a claim under the Freedom of Information
Act, alleging that she requested "information from the Social Security
Administration seeking explanation, why the defendant is using Social
Security numbers of other individuals and numbers that were never assigned
and what action is Social Security Administration is taking to prosecute this
conduct." She also asks that this Court issue a mandamus directing Social
Security Administrator Michael J. Astrue to release an application for a
Social Security number "submitted in the state of CT to an individual born in
1890" and directing an investigation into "how Obama was able to obtain a
social security belonging to an individual born in 1890" and "how Obama was
able to use 39 different social security numbers."
The FOIA claim fails for several reasons. The first and most important
of which is that she has failed to exhaust her administrative remedies. As
the government notes, Ms. Taitz appealed the Social Security
Administration’s denial of her request on March 15, 2010 and the Social
Security Administration has twenty business days from the date it received
her notice to consider the administrative appeal. See 5 U.S.C. §
552(a)(6)(A)(ii). Even if the SSA received her appeal on the 15th of March,
the period cannot have run until at least April 9th. A plaintiff must exhaust
her administrative remedies prior to seeking judicial review of a FOIA claim.
Wilbur v. Central Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004).
Because Ms. Taitz has failed to exhaust her administrative remedies,3 her
claim will be dismissed.
Mandamus is an extraordinary remedy. The writ will only issue to
compel performance of a “clear nondiscretionary duty." Pittston Coal Group.
v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler u. Ringer, 466 U.S. 602,
612 (1984)). Ms. Taitz has neither identified any clear nondiscretionary duty
that the Social Security Administrator has failed to perform nor one that is
owed to her. See 28 U.S.C. § 1361. Furthermore, her mandamus claim
merely rehashes the claim she made under FOIA, and as another judge of
this Court has noted, "[t]he exclusive nature of the FOIA precludes
mandamus relief." Strunk v. U.S. Dep’t of State, 2010 WL 931197, at *1 n.1
(D.D.C. March 15, 2010) (Leon, J.). As such, Ms. Taitz has failed to state a
claim upon which relief may be granted. Accordingly, Ms. Taitz’s claims for
mandamus relief shall be dismissed. See FED. R. CIV. P. 12(b)(6).
D. Remaining Claims
i. Common Law Fraud
Federal Rule of Civil Procedure 9(b) requires that a plaintiff who
alleges fraud or mistake must state with particularity the circumstances
3 Ms. Taitz would be well advised to review the Social Security Administration’s FOIA Regulations, in
particular 20 C.F.R. § 402.100. See also 5 U.S.C. § 552(b)(6); see generally Sherman z). U.S.
Dep’t of the Army, 244 F.3d 357 (5th Cir. 2001).
6
surrounding the fraud or mistake. A plaintiff must still, of course, comply
with Rule 8’s requirements as well. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954
(2009). Ms. Taitz has failed to adequately plead fraud because she has not
alleged that (1) that she relied on the defendant’s allegedly fraudulent
statements and (2) that she was harmed by any such reliance. Aktiselskabet
AF21. November 2001 z). Fame Jeans Inc., 525 F.3d 8, 22-23 (D.C. Cir. 2008)
(citing Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med.
Servs., Inc., 878 A.2d 1226, 1237-38 (D.C. 2005)). As such her claims for
common law fraud shall be dismissed for failure to state a claim upon which
relief may be granted. See FED. R. CIV. P. 12(b)(6).
ii. Section 1983 and Section 1985 Claims
Plaintiff has failed to state a claim against the defendant under 42
U.S.C. § 1983 because he is a federal officer, and section 1983 does not apply
to officers of the federal government. Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1104 (D.C. Cir. 2005). As such Ms. Taitz has failed to state a claim
upon which relief can be granted. To the extent that Ms. Taitz is attempting
to state a claim against Debra Bowen, the Court notes that Ms. Bowen is not
a party to this action.
The plaintiffs claims under 42 U.S.C. § 1985 likewise fail to state a
claim upon which relief can be granted. As the Supreme Court observed
recently, while Rule 8 does not require detailed factual allegations, "it
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Iqbal, 129 S. Ct. at 1949. it must contain sufficient factual
allegations that when accepted as true, "state a claim to relief that is
plausible on its face." Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544,
570 (2007)).
iii. RICO Claims
Ms. Taitz’s claims under the Racketeer influenced and Corrupt
Organization Act (RICO) are also defective. in order to bring a claim under
18 U.S.C. § 1962 a civil plaintiff must allege:
(1) That the defendant (2) through the commission of two or more acts
(3) constituting a "pattern" (4) of “racketeering activity" (5) directly or
indirectly invests in, or maintains an interest in, or participates in (6)
an "enterprise" (7) the activities of which affect interstate or foreign
commerce. . . . [P]laintiff must [also] allege that he was "injured in his
business or property by reason of [the] violation of § 1962."
Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983).
The Court first addresses the predicate acts Ms. Taitz has alleged.
First of all, neither violations of 42 U.S.C. § 1983 nor 42 U.S.C. §1985 are
"racketeering activities" which could be the basis for Ms. Taitz’s RICO claim.
See 18 U.S.C. § 1961(a) (defining which offenses are racketeering activities).
They thus are not actionable as violations of section 1962. With respect to
the various allegations of fraud_and fraud indeed is a predicate act for
purposes of RICO liability-Ms. Taitz has failed to sufficiently plead her
claims. To the degree a RICO complaint sounds in fraud, the plaintiff must
meet Rule 9(b)’s particularity requirements. See Farlow z). Peat, Marwick,
Mitchell & Co., 956 F.2d 982, 989 (10th Cir. 1992). As the Court observed
earlier, Ms. Taitz’s fraud claims fail to even meet the standards of Rule 8,
much less the heightened requirements of Rule 9(b). Iqbal, 129 S. Ct. at
1954. As such, she has failed to state a claim upon which relief may be
granted and her RICO claims will be dismissed. FED. R. CIV. P. 12(b)(6).
iv. Commerce Clause Claims
Ms. Taitz has also asks this Court to declare that the recently enacted
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, violates the
commerce clause and/or is unconstitutional because President Obama has not
proved that he is a natural born citizen and thus cannot legitimately sign the
bill into law. As this Court has already decided, the latter claims presented
by Ms. Taitz are generalized grievances about the proper administration of
the government for which she does not have standing. See Lujan, 504 U.S. at
573-74.
At the time that Ms. Taitz filed her amended complaint, President
Obama had not yet signed the Patient Protection and Affordable Care Act
into law. Standing is measured, however, at the time of filing. See, e.g.,
Johnson v. Bcl. of Regents of Univ. of Ga., 263 F.3d 1234, 1267 (11th Cir.
2001). As the Patient Protection and Affordable Care Act was not signed into
law until after her amended complaint was filed, at the time of filing Ms.
Taitz did not have an injury that was concrete and particularized and actual
or imminent, rather than conjectural or hypothetical. See Lujan, 504 U.S. at
560. As such she does not have standing to pursue her claims that the
Patient Protection and Affordable Care Act, and they will be dismissed.
Even if Ms. Taitz could establish standing on this point, she has still
failed to state a claim upon which relief may be granted as she has done
nothing more than provide "an unadorned, the-defendant-unlawfully-
harmed-me accusation." Iqbal, 129 S. Ct. at 1949. Her failure to state a
claim upon which relief can be granted would prevent her from proceeding
here had she established standing.
il. Motion to intervene
Christopher Strunk has filed a motion to intervene in this suit, which
is opposed by the government. The government’s opposition was filed out of
time and the government has asked for leave to file their opposition, which
the prospective intervenor has not objected to. Counsel for the government
has met the standard for excusable neglect and the filing shall be permitted.
See Wilson u. Feldman, 1991 WL 197025, at *1 (D.D.C. Sep. 18, 1991)
(Lamberth, J.).
in order to intervene, the prospective intervenor must establish that he
too has standing. Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5, 9 (D.D.C.
2007) (Lamberth, J.). All of the reasons that preclude the plaintiff in this
case from bringing a quo warranto action against the President, similarly
apply to the intervenor. As such the motion to intervene shall be denied.
l0
Iil. Motion to Consolidate
28 U.S.C. § 1407 requires that any motion to consolidate must be filed
with the Judicial Panel on l\/lultidistrict Litigation. Section 1407 also states
that "[s]uch transfers shall be made by the judicial panel on multidistrict
57
litigation. . . . Given that this decision is committed to the panel, rather
than this Court, the Court is bound to deny the motion without prejudice as it
lacks the jurisdiction to consider it. Accordingly, the motion will be denied.
iV. Conclusion
For the reasons set forth in this opinion the government’s motion to
dismiss shall be granted, the plaintiffs motion for a preliminary injunction
will be denied as moot, Christopher Strunk’s motion to intervene shall be
denied, and the plaintiffs motion to consolidate is denied for want of
jurisdiction.
A separate order shall issue today.
April 14, 2010.
mizell/zia
RO CE C. LAMBERTH
Chief Judge
United States District Court
ll