dc - sibley - appeal - 2012-10-11 - appellees motion for summary affirmance

7/31/2019 DC - Sibley - Appeal - 2012-10-11 - Appellees Motion for Summary Affirmance

1/45

[ORAL ARGUMENT NOT SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MONTGOMERY BLAIR SIBLEY,

Petitioner/Plaintiff-Appellant,

v.

BARACK OBAMA, et al.,

Respondents/Defendants-Appellees.

No. 12-5198

APPELLEES MOTION FOR SUMMARY AFFIRMANCE

Appellees respectfully move for summary affirmance of the district courts

order dismissing an amended petition and complaint filed bypro se appellant

Montgomery Blair Sibley. See Memorandum Opinion (Op.), Sibley v. Obama,

No. 12-CV-1 (D.D.C. June 6, 2012) (attached as Exhibit A). Summary affirmance

is appropriate where, as here, the merits of a case are so clear that expedited action

is justified and no benefit will be gained from further briefing or argument of the

issues presented. Gray v. Poole, 243 F.3d 572, 575 (D.C. Cir. 2001); Taxpayers

Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98 (D.C. Cir. 1987) (per curiam).

STATEMENT

1. Sibley filed thispro se action in district court in January 2012 seeking

issuanceof a writ quo warranto compellingPresident Barack Obama to show cause

USCA Case #12-5198 Document #1398780 Filed: 10/09/2012 Page 1 of 13

(Page 1 of To


2/45

2

why he should not be ousted from office and declared ineligible for future

presidential service. Sibley contends that President Obama is not qualified to be

president, now or in the future, because he is not a natural born Citizen within

the meaning of Article II, 1 of the U.S. Constitution. See Amended Certified

Petition and Complaint (Pet.) 1, 10-14, 19-23 (attached as Exhibit B). He also

petitions for writs of mandamus against the Attorney General and United States

Attorney directing them to address his request for a writ quo warranto against the

President, id. 24-25, and compelling the United States Attorney to inform a

grand jury that President Obama may have committed fraud in disseminating his

birth certificate, id. 26-29. Additionally, Sibley seeks a declaration that 18

U.S.C. 1504 and Rule 6 of the Federal Rules of Criminal Procedure are

unconstitutional insofar as they prevent him from communicating directly with the

grand jury. Id. 30-35. Finally, Sibley asserts unrelated damages claims against

various defendants concerning an occasion in September 2009 when a deputy U.S.

marshal allegedly escorted him while he visited the Clerks Office. Id. 9, 36-39.

2. Shortly after filing suit, in February 2012, Sibley petitioned this Court

for a writ of mandamus or, alternatively, a writ procedendum ad justicium to

compel the district court to address his complaint and miscellaneous procedural

motions. SeeIn re Sibley, No. 12-5040 (D.C. Cir.). This Court denied Sibleys

petition in March 2012, and later denied panel and en banc rehearing. Sibley also


(Page 2 of To


3/45

3

petitioned the Supreme Court for a writ of certiorari, which was denied. See Sibley

v. U.S. Dist. Court for D.C., 132 S. Ct. 2735 (2012) (No. 11-1185).

3. Appellees then moved to dismiss this action, explaining (1) that Sibley

lacked standing to challenge the Presidents eligibility for office; (2) that he could

not compel the Attorney General or U.S. Attorney to inquire into the Presidents

citizenship; (3) that he lacked standing to require the U.S. Attorney to institute

grand jury proceedings; (4) that 18 U.S.C. 1504 and Rule 6 of the Federal Rules

of Criminal Procedure are not unconstitutional; and (5) that Sibleys damages

claims lacked merit. In June 2012, the district court granted Appellees motion in

its entirety. Sibley has timely appealed that decision to this Court.1

ARGUMENT

No substantial question is presented by this appeal, and summary disposition

is warranted as to each of Sibleys claims.

I. Sibley Lacks Standing To Seek A Writ Quo Warranto.

As the district court correctly held, Sibley lacks standing to compel issuance

of a writ quo warranto.2

Op. at 2-6. Among other things, Article III standing

1After this appeal was docketed, Sibley sought expedited briefing. That motion

was denied.

2A writ quo warranto is a writ used to inquire into the authority by which a

public office is held or a franchise is claimed. Drake v. Obama, 664 F.3d 774,


(Page 3 of To


4/45


5/45

5

an interest in the office itself that is peculiar to the applicant. Newman v.

United States ex rel. Frizzell, 238 U.S. 537, 550 (1915) (internal quotation marks

omitted).

In his amended petition, Sibley asserts that he has standing because he is a

self-declared write-in candidate in the upcoming presidential election. Pet. 18.

But as the district court correctly concluded, Sibley does not have a particularized

interest in the Presidents current term of office. See Op. at 4 (Since Sibley was

not a candidate in the 2008 presidential election, the injury he faces from President

Obamas current tenure in office is generalized.). And although Sibley also seeks

to challenge President Obamas eligibility to serve as President in the future, quo

warranto is not a valid mechanism for challenging candidacy in an upcoming

election. Op. at 5; see, e.g., D.C. Code 16-3501 (writ quo warranto may issue

against a person who . . . usurps, intrudes into, or unlawfully holds or exercises

the office); cf. Shannon v. Jacobowitz, 394 F.3d 90, 97 n.4 (2d Cir. 2005)

(recognizing that New York statutory writ quo warranto may be used only after

the alleged usurper has taken office (internal quotation marks omitted)).

Before the district court, Sibley also relied upon a D.C. statute providing that

where the Attorney General or U.S. Attorney refuses to institute a quo warranto

proceeding on the request of aperson interested, the interested person may apply


(Page 5 of To


6/45

6

to the court by certified petition for leave to have the writ issued.4

D.C. Code

16-3503 (emphasis added). But Sibley is not an interested person within the

meaning of the statute because, as noted, he has no claim to the Presidents current

term in office. Moreover, this Court has concluded that even under D.C. Code

16-3503, actions against public officials (as opposed to actions brought against

officers of private corporations) can only be instituted by the Attorney General.

Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (emphasis in original).

Thus, even if [Sibleys] request were formally refused, D.C. Circuit precedent

bars his bringing a quo warranto action himself. Op. at 6; see also id. at 4.

In any event, the Constitution vests in Congress the sole Power to remove

the President from office. See U.S. Const. art. I, 2, 3; art. II, 4. Given the

exclusive constitutional commitment of this power to Congress, Sibleys attempt to

invoke the jurisdiction of this Court to oust President Obama from office is

inconsistent with separation of powers principles. Cf. Nixon v. United States, 506

U.S. 224, 234-35 (1993) (observing that Framers considered, and rejected, any

role in impeachments for the federal courts, and concluding that [j]udicial

4Sibleys purported common law quo warranto claim fails because except as

otherwise specifically provided by statute, there is no original jurisdiction in the

federal district court to entertain an information in the nature of quo warranto.

Drake, 664 F.3d at 784-85 (quoting U.S. ex rel. State of Wis. v. First Fed. Sav. &

Loan Assn, 248 F.2d 804, 809 (7th Cir. 1957)).


(Page 6 of To


7/45

7

involvement in impeachment proceedings . . . would eviscerate the important

constitutional check placed on the Judiciary by the Framers).

II. Sibleys First Mandamus Claim Fails Because The Attorney General

And U.S. Attorney Do Not Owe Him Any Nondiscretionary Duty.

The district court also correctly dismissed Sibleys mandamus claim seeking

to compel the Attorney General or United States Attorney to act upon his request

to seek a writ quo warranto against the President. As this Court and the Supreme

Court have long recognized, a writ of mandamus may issue against Executive

officials only where they have failed to exercise some mandatory duty owed to the

petitioner. See, e.g.,Heckler v. Ringer, 466 U.S. 602, 616 (1984);Baptist Meml

Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) (recognizing that court may

grant mandamus relief only if [] the plaintiff has a clear right to relief [and] the

defendant has a clear duty to act (internal quotation marks omitted)).

D.C. law does not charge the Attorney General and United States Attorney

with any such clear duty to acknowledge and respond to individual requests by

private citizens under that statute. And Sibley does not and cannot dispute that the

decision to issue a writ quo warranto is discretionary. See D.C. Code 16-3502

(providing that [t]he Attorney General . . . or the United States attorney may

institute a [quo warranto] proceeding) (emphasis added);Andrade, 729 F.2d at

1498 (recognizing broad discretion of these officials to decide whether to bring


(Page 7 of To


8/45

8

quo warranto action under D.C. law). As a result, Sibleys mandamus claim

seeking to compel these officials action on his quo warranto request must fail.

III. Sibley Lacks Standing To Compel Presentation Of Evidence To

The Grand Jury, And His Related Constitutional Claims Fail.

Sibleys other mandamus claim, seeking to direct the U.S. Attorney to allow

Sibley to communicate with the grand jury, fails for lack of standing. See Op. at 6.

This Court has repeatedly held that a private citizen ordinarily lacks standing to

force presentation of his alleged evidence to a grand jury under 18 U.S.C.

3332(a). Wagner v. Wainstein, No. 06-5052, 2006 U.S. App. LEXIS 16026, at

*2 (D.C. Cir. June 22, 2006) (unpublished), cert. denied, 127 S. Ct. 316 (2006); see

Sargeant v. Dixon, 130 F.3d 1067, 1069-70 (D.C. Cir. 1997) (holding that

petitioner lacked standing to compel presentation of evidence to grand jury); see

alsoBanks v. Buchanan, 336 F. Appx 122, 122-24 (3d Cir. 2009) (unpublished)

(same). This conclusion follows from the general principle that a private citizen

lacks a judicially cognizable interest in the prosecution or nonprosecution of

another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

Similarly, the district court also properly declined to strike down 18 U.S.C.

1504 and Rule 6 of the Federal Rules of Criminal Procedure as unconstitutional


(Page 8 of To


9/45

9

insofar as they bar Sibley from communicating freely with the grand jury.5 See,

e.g., In re Wood, 833 F.2d 113, 116 (8th Cir. 1987) (generally affirming that an

individual cannot bring accusations before a grand jury unless invited to do so by

the prosecutor or the grand jury). Neither the First nor Fifth Amendments, cf. Pet.

30-33, invest Sibley with any right or responsibility for instructing the grand

jury in the exercise of its functions. As the district court correctly observed, the

purpose of the Fifth Amendment grand jury guarantee is to protect those accused

from oppression by the prosecutor or court, notto allow [private] individuals to

present material to that body at will. Op. at 7 (citing Gaither v. United States, 413

F.2d 1061, 1065 (D.C. Cir. 1969)); see also, e.g.,In re Mayer, No. 05-33, 2006

WL 20526, at *1-4 (D.N.J. Jan. 4, 2006) (rejecting similar claims and collecting

authorities).

IV. Sibleys Damages Claims Lack Merit.

Finally, the district court properly dismissed Sibleys damages claims arising

from his September 2009 courthouse visit. Op. at 8-9. Sibley principally alleges

that his access to the courts was wrongfully chilled when he was escorted to and

from the Clerks Office by a Deputy U.S. Marshal, Pet. 38, and that his First

5Fed. R. Crim. P. 6 governs grand jury proceedings. Title 18, Section 1504 of the

United States Code makes it a federal misdemeanor to attempt[] to influence the

action or decision of any grand or petit juror . . . upon any issue or matter pending

before such juror . . . by writing or sending to him any written communication, in

relation to such issue or matter.


(Page 9 of To


10/45

10

Amendment rights were thereby violated. Sibleys claims fail because it is

undisputed that the U.S. Marshals Service is empowered to take reasonable

security precautions in order to protect the safety of courthouse personnel and

visitors. See, e.g., United States v. Heldt, 668 F.2d 1238, 1273 (D.C. Cir. 1981)

(refus[ing] to second-guess . . . the Marshal[s] [S]ervice in their decision to

institute security); see also Klarfeld v. United States, 944 F.2d 583, 587 (9th Cir.

1991) (upholding governmental interest in protection of the Courthouse and

rejecting constitutional challenge to courthouse security measure).

In any event, Sibley has failed to demonstrate that this incident has caused

him any injury. Even assuming that a deprivation of the right of access to the

courts were actionable underBivens or the Federal Tort Claims Act, cf. Pet. 39,

Sibley cannot show that he was prevented or hindered from presenting his

claims. Lewis v. Casey, 518 U.S. 343, 351 (1996). To the contrary, Sibleys

substantial record of litigation in this and other tribunals belies any assertion of

interference with his ability to access the courts. As the district court observed,

Sibley was never denied the ability to come into the courthouse and conduct his

business, and he has therefore suffered no harm. Op. at 8.

Sibley also asserts that he was subjected to retaliation or excessive

force. Pet. 38. But his complaint alleges no basis for concluding that the U.S.

Marshals Services performance of its duties constituted retaliation for any speech


(Page 10 of To


11/45

11

by Sibley. Nor has Sibley alleged that any force was used against him, much less

excessive force. And even if there were any doubt about the lawfulness of the

Deputy U.S. Marshals actions, they would be entitled to qualified immunity on

Sibleys purportedBivens claims. See, e.g.,Reichle v. Howards, 132 S. Ct. 2088,

2094 (2012) (affording qualified immunity on First Amendment retaliation claim

where law was not clearly established).

Nor are Sibleys damages claims actionable under the Federal Tort Claims

Act. As the district court concluded, Sibley has alleged no facts showing that the

U.S. Marshals Service acted wrongfully or negligently in any way. Op. at 8; cf.

28 U.S.C. 1346(b) (waiving sovereign immunity for tort claims founded upon the

negligent or wrongful act or omission of a government employee).6

6Additionally, the district court did not abuse its discretion in denying Sibleys

various procedural motions, including motions to expedite the case, conduct pre-

service discovery, issue a CM/ECF password, hold oral argument, and convene a

grand jury. The courts dismissal of the case rendered these issues moot.

Additionally, although Sibley also seeks to appeal the alleged denial of his

purported motion to disqualify Judge Bates, see Appellants Statement of Issues To

Be Raised, 11, No. 12-5198 (D.C. Cir. Sept. 12, 2012), no such motion appears

on the district court docket. Sibley moved to disqualify Judge Jackson, but that

motion was denied as moot after the case was transferred to Judge Bates.


(Page 11 of To


12/45

12

CONCLUSION

For the foregoing reasons, the district courts judgment should be summarily

affirmed.

Respectfully submitted,7

STUART F. DELERY

Acting Assistant Attorney General

MARK B. STERN

/s/ Jeffrey E. Sandberg

JEFFREY E. SANDBERG

(202) 532-4453

Attorneys, Appellate Staff

Civil Division, Room 7261

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellees

OCTOBER 2012

7The Department of Justice gratefully acknowledges the assistance of Douglas C.

Dreier, a third-year student intern from Duke Law School, in preparing this filing.


(Page 12 of To


13/45

13

CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2012, I electronically filed the foregoing

motion with the Clerk of Court by using the appellate CM/ECF system. I also

certify that a copy of the foregoing motion has been served on appellant by email

to [email protected]. Appellant has consented to service by electronic means

pursuant to Fed. R. App. P. 25(c)(1)(D).

/s/ Jeffrey E. SandbergJeffrey E. Sandberg

Counsel for Appellees


(Page 13 of To


14/45

Exhibit A


(Page 14 of To


15/45

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MONTGOMERY BLAIR SIBLEY,

Plaintiff,

v. Civil Action No. 12-cv-1 (JDB)

BARACK HUSSEIN OBAMA, II, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff is a United States citizen who has filed with the District of Columbia Board of

Elections and Ethics to qualify as a write-in candidate for the office of United States President.

Plaintiff asserts so-called birther claims against President Barack Obama, aiming to have him

ousted from office and to have his name removed from the ballot in November 2012 because he

supposedly was not born in the United States. Plaintiff also sues Attorney General Eric Holder

and United States Attorney for the District of Columbia Ronald Machen. Finally, plaintiff sues

the United States Department of Justice, its sub-agency the United States Marshals Service, and

two John Doe marshals who once escorted him around the federal courthouse in Washington,

DC. Plaintiff claims these marshals chilled his rights to access court and petition the

government, retaliated against him, and used excessive force.

Now before the Court are miscellaneous motions filed by plaintiff, as well as a motion to

dismiss filed by defendants. In addition to seeking to oust President Obama from office and to

bar him from the ballot, plaintiff has also petitioned for two writs of mandamus: the first

Case 1:12-cv-00001-JDB Document 19 Filed 06/06/12 Page 1 of 10USCA Case #12-5198 Document #1398780 Filed: 10/09/2012 Page 2 of 32

(Page 15 of To


16/45

2

requiring that Attorney General Holder and U.S. Attorney Machen answer his quo warranto

request, and the second requiring that the grand jury be informed that President Obama may have

committed wire fraud in disseminating his allegedly falsified birth certificate. Plaintiff seeks a

declaratory judgment that 18 U.S.C. 1504 and Rule 6 of the Federal Rules of Criminal

Procedure are unconstitutional, so that he can write directly to sitting grand jurors about

Obamas alleged federal crime. Plaintiff also moves to be granted a CM/ECF password and the

opportunity for pre-service discovery to identify the unnamed deputy marshals, and requests to

present his case by oral argument. Finally, plaintiff seeks damages against the Department of

Justice and its agents the U.S. Marshals Service and the two deputies for their alleged

violations of his rights.

For the reasons described below, the Court will deny plaintiffs motions. The Court will

also grant defendants motion to dismiss with respect to each of plaintiffs myriad unmeritorious

claims. As Chief Judge Lamberth recently stated with respect to a similar suit, [t]his Court is

not willing to go tilting at windmills. Taitz v. Obama, 707 F. Supp. 2d 1, 3 (2011).

I. Petition for Writs Quo Warranto

Plaintiff has filed a petition for writs quo warranto to remove President Obama from

his current office and, also or alternatively, to bar him from running for the office of president

again in the upcoming November election. Quo warranto is a common-law writ used to inquire

into the authority by which a public office is held. Blacks Law Dictionary 1371 (9th ed. 2009).

Plaintiff claims President Obama is not qualified to serve as president, now or in the future,

because he is not a natural born Citizen of the United States per Article II, 1 of the

Constitution. That assertion is based mainly on alleged indications of fraud in the Certificates of

Live Birth that President Obama released publicly to prove he was born in Hawaii. See Pl. Pet.,


(Page 16 of To


17/45

3

Ex. F (Jan. 31, 2012) [Docket Entry 5].

Before this Court may evaluate the merits of his claims, plaintiff must demonstrate that

he has the requisite standing to bring this lawsuit, and that the Court may grant the relief he

seeks. Federal courts have jurisdiction over a case or controversy under Article III of the U.S.

Constitution only if the plaintiff has standing to sue. Kerchner v. Obama, 612 F.3d 204, 207 (3d

Cir. 2010) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

180-81 (2000)). Standing under Article III requires: (1) violation of a legally protected interest

that is personal to the plaintiff and actual or imminent, not conjectural or hypothetical; (2) a

causal relation between the injury and the defendants challenged conduct; and (3) likelihood

that a decision for the plaintiff will compensate for the injury. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992). A generalized interest of all citizens in constitutional governance

does not suffice to confer standing on one such citizen. Drake v. Obama, 664 F.3d 774, 779 (9th

Cir. 2011) (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)).

To establish standing in a case, the plaintiff must show that he has a personal stake in the

alleged dispute, and that the injury is particularized as to him. Raines v. Byrd, 521 U.S. 811,

819 (1997).

Plaintiff lacks standing to challenge President Obamas current tenure in office, just as

others who have made similar claims contesting President Obamas eligibility for the presidency

were found to lack standing. The injury plaintiff asserts is notparticular to him. See Kerchner,

612 F.3d at 207 (citing Berg v. Obama, 586 F.3d 234, 238-39 (3d Cir. 2009)).

Self-declaration as a write-in candidate in the upcoming presidential election does not

enable plaintiff to challenge President Obamas present position. See Pl.s Pet., Ex. A (Jan. 31,

2012) [Docket Entry 5]. A public officials title to office is an injury particularized to an


(Page 17 of To


18/45

4

individual only if that individual has an interest in the office itself if he or she sought the

office at the same time as the current officeholder. Newman v. United States ex rel. Frizzell, 238

U.S. 537, 550 (1915). Since Sibley was not a candidate in the 2008 presidential election, the

injury he faces from President Obamas current tenure in office is generalized. It seek[s] relief

that no more directly and tangibly benefits him than it does the public at large [, so] does not

state an Article III case or controversy. Lujan, 504 U.S. at 573-74. The Court will dismiss

plaintiffs claim for lack of standing, because the defect of standing is a defect in subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1);Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).

Furthermore, as a matter of statute, plaintiff is not entitled to institute a quo warranto

proceeding himself. Under Chapter 16, 3503 of the District of Columbia Code, an interested

person may institute such a proceeding only if the Attorney General and the United States

Attorney for the District of Columbia refuse to institute one on his request. Plaintiff submitted a

request to Holder and Machen for them to begin a quo warranto action in November 2011, but he

has not received an answer from them. Plaintiff has cited no law to support his assertion that a

lack of response in this context should be considered a refusal. Since the refusal condition of

D.C. Code 16-3503 has not been met, plaintiffs quo warranto petition is not ripe.

Second, the scope of D.C. Code 16-3503 has been interpreted narrowly by the D.C.

Circuit, which has concluded that onlythe Attorney General or the United States Attorney has

standing to bring a quo warranto action challenging a public officials right to hold office. See

Taitz, 707 F. Supp. 2d at 3 (citing Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984)).

This Court is bound by the D.C. Circuits decisions, which are based on the notion that

challenges to a public officials authority concern a right of the entire public that only a public

representative can protect. See Taitz, 707 F. Supp. 2d at 3 (citing United States v. Carmody, 148


(Page 18 of To


19/45

5

F.2d 684, 685 (D.C. Cir. 1945)). Therefore, this Court cannot grant plaintiff a writ of quo

warranto to challenge President Obamas current presidency.

The 9th and 10th Amendments also do not entitle plaintiff to bring such a claim against a

president in federal court. See Smith v. Anderson, 2009 U.S. Dist. LEXIS 108220, at *6 (D. Col.

2009). The separation of powers doctrine expressed in the Constitution places the duty to select

and remove the President not with individual citizens, but rather with the Electoral College and

with the Congress, respectively. See U.S. Const. art. II, 1, 4; id. amend. XII. The judiciary is

not empowered to implement or review such actions, as has been noted in prior opinions

responding to the same challenge. See Kerchner, 612 F.3d at 208;Barnett v. Obama, 2009 U.S.

Dist. LEXIS 101206, at *40, *48 (C.D. Cal. 2009).

Plaintiff also seeks a writ of quo warranto preventing President Obama from appearing

on the 2012 ballot. Yet quo warranto is not a valid mechanism for challenging candidacy in an

upcoming election. Courts have permitted the writ of quo warranto to be used to challenge only

currenttenures in office, lest a suit arise contrary to the doctrine of standing from a future

potential injury rather than a real, imminent one. Broyles v. Commonwealth, 309 Ky. 837, 839

(1949) ([W]hen a quo warranto proceeding is commenced [t]he term must have begun and

the defendant have assumed, usurped or taken possession of the office.) The statutory authority

for the writ also limits its scope to challenges regarding a current officeholder. A quo warranto

writ may only be issued against a person who within the District of Columbia usurps, intrudes

into, or unlawfully holds or exercises, a franchise conferred by the U.S. or a public office of the

U.S. D.C. Code 16-3501 (emphasis added).

Hence, the Court will deny plaintiffs petition for writs quo warranto, as it has no

jurisdiction to evaluate the merits of plaintiffs claim regarding President Obamas eligibility


(Page 19 of To


20/45

6

now or in the future for the presidency.

II. Mandamus Requests

Plaintiffs first mandamus request is for Attorney General Holder and U.S. Attorney

Machen to be compelled to respond by either instituting a quo warranto proceeding or refusing to

do so. The Court will dismiss this request for failure to state a claim upon which relief may be

granted. Mandamus is an overly severe remedy for the situation at hand; it is to be utilized only

for duties that are indisputable and ministerial, and plaintiff cites no legal requirement for

Holder and Machen to answer his request. See 13th Regional Corp. v. U.S. Dept of Interior,

654 F.2d 758, 760 (D.C. Cir. 1980). Moreover, granting mandamus would have no bearing on

the outcome of plaintiffs effort: even if his request were formally refused, D.C. Circuit

precedent bars his bringing a quo warranto action himself. Andrade, 729 F.2d at 1498.

Citing 18 U.S.C. 1332, Sibley also seeks mandamus to require Machen to inform the

grand jury of plaintiffs identity and President Obamas alleged wire fraud, as well as to reveal

what action or recommendation was taken regarding this entreaty. The Court will deny the

mandamus request, in keeping with prior decisions that 18 U.S.C. 1332 cannot be enforced by

private individuals. See, e.g., Wagner v. Wainstein, 2006 U.S. App. LEXIS 16026, at *2 (D.C.

Cir. June 22, 2006). Per 1332, an individual may request that the U.S. Attorney present

evidence of alleged offenses to the grand jury; but that does not directly benefit plaintiff, so it

does not create Article III standing to enforce particular action by the U.S. Attorney. Sargeant v.

Dixon, 130 F.3d 1067, 1069-70 (D.C. Cir. 1997).

III.Demand for Declaratory Relief

Plaintiff seeks a declaration that he may communicate directly with members of the grand


(Page 20 of To


21/45

7

jury regarding alleged criminal behavior by President Obama and other federal actors. He

contends that 18 U.S.C. 1504 and Rule 6 of the Federal Rules of Criminal Procedure, by

forbidding his doing so, violate his First Amendment right to petition and his Fifth Amendment

right to present evidence to the grand jury in an effort to seek an indictment or presentment.

Controlling precedent forecloses plaintiffs request. The grand jurys independence in

the American legal system is intended not to allow individuals to present material to that body at

will, but rather to protect those accused from oppression by the prosecutor or court. Gaither v.

United States, 413 F.2d 1061, 1065 (D.C. Cir. 1969). The submission of evidence to a grand

jury is at the discretion of the prosecuting attorney, and without his or the judges approval,

private individuals have no right to communicate with a federal grand jury. In re New Haven

Grand Jury, 604 F. Supp. 453, 460 (D. Conn. 1985);Baranoski v. United States Atty Office,

2006 U.S. Dist. LEXIS 2240, at *9 (D.N.J. 2006). The First Amendment right to petition the

Government for a redress of grievances, U.S. Const. amend. I, does not inherently include a

right to communicate directly with the grand jury, and the Fifth Amendment right to

presentment or indictment of a Grand Jury prior to being punished for a serious crime, U.S.

Const. amend. V, simply does not mean (as plaintiff alleges) that any individual must be entitled

to bring related accusations before that body.

There is, moreover, nothing unconstitutional about the federal rule or the statute at issue.

Rule 6 eliminates the role of historical presentments, in line with judicial practice in this circuit.

Gaither, 413 F.2d at 1065. And 18 U.S.C. 1504, in conjunction with Rule 6, criminalizes

direct communication of accusations by individuals to the grand jury. As described above,

protection of the rights of those accused of crimes firmly justifies these measures; they are

consistent with, not violative of, our constitutional structure. Plaintiffs argument that long-


(Page 21 of To


22/45

8

established federal rules and statutes are unconstitutional merely because they prevent him from

accomplishing his aims is unavailing.

IV. Request for Damages

Plaintiffs request for damages for alleged violations of his constitutional rights during

his September 2009 visit to the federal courthouse in Washington, DC, will also be denied.

Plaintiff suffered no harm, as his constitutional freedoms were not actually violated. Standing to

support a claimed violation of an individuals right to access court requires demonstration of

actual injury.Lewis v. Casey, 518 U.S. 343, 351-52 (1996). Yet plaintiff was merely required

to be accompanied during his time in the building. See Pl.s Compl. 9. He was never denied

the ability to come into the courthouse and conduct his business, so there was no abrogation of

any constitutional rights.

Moreover, plaintiffs citation of the Federal Tort Claims Act, 28 U.S.C. 1346(b),

2401(b), 2671, et seq., in support of his claim is misguided, as there is no evidence that the

marshals acted wrongfully or negligently in their actions during the incident at issue. The

marshals were executing their established duty to protect the security of the federal building, for

which they are permitted to impose restrictions on members of the public as necessary. See

United States v. Heldt, 668 F.2d 1238, 1273-74 (D.C. Cir. 1981). Plaintiff citesBivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 388-90 (1971), in support of

his claim for damages, but the marshals have discretion to act reasonably in order to ensure the

security of the courthouse. See Klarfeld v. United States, 944 F.2d 583 (9th Cir. 1992). That

plaintiffs escort was armed does not constitute use of excessive force; the weapon is a necessary

implement of the deputy marshals job and was kept holstered in plaintiffs presence. Plaintiff

simply fails to state a claim upon which relief can be granted based on the fairly routine actions


(Page 22 of To


23/45

9

alleged, which caused plaintiff no apparent injury. Hence, the Court agrees with the

administrative decision of the U.S. Marshals to deny plaintiffs request for damages.

V. Motion for Pre-Service Discovery and Password

Plaintiffs motion for pre-service discovery to identify the John Doe deputy marshals

involved in the September 2009 incident at the courthouse will also be denied. As discussed

above, plaintiff has failed to state a claim against these defendants upon which relief can be

granted, so there is no legal justification for pursuing such discovery.

As this Court has previously held, the Clerks decision not to provide plaintiff with a

password for the Courts CM/ECF system will be respected. Plaintiff is able to submit his filings

in person, and has given no good reason why he must do so electronically (which requires the

password). See Sibley v. Obama, 819 F. Supp. 2d 45, 51 (D.D.C. 2011). In any event, this

decision terminates plaintiff's action in this Court.

VI. Request for Oral Hearing

Because plaintiffs claims will be dismissed for lack of standing and failure to state a

claim, there is no need for and in any event no right to oral argument. There are no

justiciable issues of fact or law warranting further consideration here, so plaintiffs insistence on

a hearing is unpersuasive.

VII. Conclusion

For the reasons stated above, defendants motion to dismiss will be granted and plaintiffs

motions will be denied. A separate order has been issued on this date.


(Page 23 of To


24/45

10

/s/

JOHN D. BATES

United States District JudgeDated: June 6, 2012


(Page 24 of To


25/45

Exhibit B


(Page 25 of To


26/45


(Page 26 of To


27/45


(Page 27 of To


28/45


(Page 28 of To


29/45


(Page 29 of To


30/45


(Page 30 of To


31/45


(Page 31 of To


32/45


(Page 32 of To


33/45


(Page 33 of To


34/45


(Page 34 of To


35/45


(Page 35 of To


36/45


(Page 36 of To


37/45


(Page 37 of To


38/45


(Page 38 of To


39/45


(Page 39 of To


40/45


(Page 40 of To


41/45


(Page 41 of To


42/45


(Page 42 of To


43/45


(Page 43 of To


44/45


(Page 44 of To


45/45


dc - sibley - appeal - 2012-10-11 - appellees motion for summary affirmance

Documents