Drake v. Obama

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILEY S. DRAKE; MARKHAM 

ROBINSON,

Plaintiffs-Appellants,

and

Ambassador ALAN KEYES, Ph.D.;

Captain PAMELA BARNETT;

Lieutenant Colonel RICHARD

NORTON BAUERBACH; Captain

ROBIN D. BIRON; Colonel JOHN D.

BLAIR; Mr. DAVID L. BOSLEY; Ms.

LORETTA G. BOSLEY; Captain

HARRY G. BUTLER; Representative

GLENN CASADA, Tennessee; 

JENNIFER LEAH CLARK;

Representative TIMOTHY

COMERFORD, New Hampshire;

CHARLES CRUSEMIRE;

Representative CYNTHIA DAVIS,

Missouri; Chief Warrant Officer

THOMAS S. DAVIDSON; MATTHEW

MICHAEL EDWARDS; Lieutenant

JASON FREESE; Mr. KURT C. FUQUA;

Officer CLINT GRIMES; JULLIETT

IRELAND; D. ANDREW JOHNSON;

ISRAEL D. JONES;



21397

21398 DRAKE v. OBAMA

State Representative TIMOTHY 

JONES, Esq., Missouri; Commander

DAVID FULLMER LAROQUE; GAIL

LIGHTFOOT; MIL Officer LITA M.

LOTT, U.S. Army; Major DAVID

GRANT MOSBY; MSGT STEVEN

KAY NEUENSCHWANDER; State

Representative FRANK NICELEY,

Tennessee; Retired Senator JERRY

O’NEIL, Montana; SFC E7 ROBERT

LEE PERRY; Colonel HARRY RILEY;

Sergeant JEFFREY WAYNE ROSNER;

MSGT JEFFREY SCHWILK; Captain

DAVID SMITHEY; Lieutenant

Commander JOHN BRUCE STEIDEL;

Commander DOUGLAS EARL No. 09-56827

STOEPPELWERTH; THOMAS J.

TAYLOR; Representative ERIC

 D.C. No.

8:09-cv-00082-

SWAFFORD, Tennessee; Captain DOC-AN

NEIL B. TURNER; RICHARD E.

VENABLE; LCDR JEFF GRAHAM

WINTHROPE; Lieutenant Colonel

MARK WRIGGLE,

Plaintiffs,

v.

BARACK HUSSEIN OBAMA; MICHELLE

L.R. OBAMA; HILLARY RODHAM

CLINTON, Secretary of State;

ROBERT M. GATES, Secretary of

Defense; JOSEPH R. BIDEN, Vice

President and President of the

Senate,

Defendants-Appellees.



DRAKE v. OBAMA 21399

PAMELA BARNETT, Captain; ALAN 

KEYES, Ph.D., Ambassador;

RICHARD NORTON BAUERBACH,

Lieutenant Colonel; ROBIN D.

BIRON, Captain; JOHN D. BLAIR,

Colonel; DAVID L. BOSLEY, Lt.

Col.; LORETTA G. BOSLEY; HARRY

G. BUTLER, Captain; GLENN

CASADA, Representative,

Tennessee; JENNIFER LEAH CLARK;

TIMOTHY COMERFORD,

Representative, New Hampshire;

CHARLES CRUSEMIRE; CYNTHIA

DAVIS, Representative, Missouri;

THOMAS S. DAVIDSON, Chief

Warrant Officer; MATTHEW

MICHAEL EDWARDS; JASON FREESE,

Lieutenant; KURT C. FUQUA, Mr.; 

CLINT GRIMES, Officer; JULLIETT

IRELAND; D. ANDREW JOHNSON;

ISRAEL D. JONES; TIMOTHY JONES,

State Representative; DAVID

FULLMER LAROQUE, Commander;

GAIL LIGHTFOOT; LITA M. LOTT,

MIL Officer, U.S. Army; DAVID

GRANT MOSBY, Major; STEVEN KAY

NEUENSCHWANDER, MSGT; FRANK

NICELEY, State Representative,

Tennessee; ROBERT LEE PERRY,

SFC E7; HARRY RILEY, Colonel;

JEFFREY WAYNE ROSNER, Sergeant;

DAVID SMITHEY, Captain; JOHN

BRUCE STEIDEL, Lieutenant

Commander;



21400 DRAKE v. OBAMA

DOUGLAS EARL STOEPPELWERTH, 

Commander; ERIC SWAFFORD,

Representative, Tennessee; NEIL B.

TURNER, Captain; RICHARD E.

VENABLE; JEFF GRAHAM

WINTHROPE, LCDR; MARK

WRIGGLE, Lieutenant Colonel, No. 10-55084

Plaintiffs-Appellants, D.C. No.

v.  8:09-cv-00082-

BARACK HUSSEIN OBAMA; MICHELLE DOC-AN

L.R. OBAMA; HILLARY RODHAM OPINION

CLINTON, Secretary of State;

ROBERT M. GATES, Secretary of

Defense; JOSEPH R. BIDEN, Vice

President and President of the

Senate,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

May 2, 2011—Pasadena, California

Filed December 22, 2011

Before: Harry Pregerson, Raymond C. Fisher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

21404 DRAKE v. OBAMA

COUNSEL

Gary G. Kreep, Ramona, California, and Orly Taitz, Rancho

Santa Margarita, California, for the plaintiffs-appellants.

David A. DeJute, Assistant United States Attorney, Los

Angeles, California, for the defendants-appellees.

OPINION

PREGERSON, Circuit Judge:

Plaintiffs-Appellants contend that Barack Obama is consti-

tutionally ineligible to be President of the United States.

United States District Court Judge David O. Carter dismissed

Plaintiffs’ constitutional claims, as well as their claims for

declaratory and injunctive relief, for lack of standing. We

affirm the dismissal for lack of standing, albeit on somewhat

different reasoning than that of the District Court.

Plaintiffs additionally appeal the District Court’s dismissal

of their quo warranto claims for improper venue; their Free-

dom of Information Act claims for failure to state a claim; and

their Racketeer Influenced and Corrupt Organizations Act

claims against defendants First Lady Michelle Obama, Secre-

tary of State Hillary Clinton, Vice President Joe Biden, and

DRAKE v. OBAMA 21405

former Secretary of Defense Robert Gates, for failure to state

a claim. We affirm.

I.

Plaintiffs filed their lawsuit on January 20, 2009, the day

Barack Obama was sworn in and took office as President of

the United States.1 The Plaintiffs are active, inactive, or

retired military personnel; state political representatives; pri-

vate individuals, including federal taxpayers and at least one

individual who claims to be a relative of Barack Obama; and

political candidates during the 2008 general election.

The Defendants include President Barack Obama, First

Lady Michelle Obama, Vice President Joe Biden, Secretary of

State Hillary Clinton, and former Secretary of Defense Robert

Gates.

Plaintiffs claim that President Obama is ineligible for the

presidency under Article II, Section 1 of the United States

Constitution, which states that “No Person except a natural

born Citizen, or a Citizen of the United States, at the time of

the Adoption of this Constitution, shall be eligible to the

Office of President.” U.S. Const. art. II, § 1, cl. 4.2

1

The Plaintiffs were later given leave to file a First Amended Complaint

subsequently filed on July 15, 2009. In their First Amended Complaint,

Plaintiffs alleged claims for declaratory judgment, claims for the produc-

tion of documents pertaining to President Obama, pursuant to the Freedom

of Information Act, 5 U.S.C. § 552(a)(4)(B), and civil rights claims pursu-

ant to 42 U.S.C. §§ 1983 and 1988. In addition, Plaintiffs petitioned for

a writ of quo warranto seeking to compel President Obama to show by

what authority he holds the office of President. Plaintiffs, in their First

Amended Complaint, also stated that they reserved their allegations under

the Racketeer Influenced and Corrupt Organizations Act or RICO, 18

U.S.C. § 1961 et seq., for their Second Amended Complaint, which was

never filed.

2

The Fourteenth Amendment to the Constitution, Section 1 states, “All

persons born or naturalized in the United States, and subject to the juris-

21406 DRAKE v. OBAMA

For ease of analysis, the District Court divided the plaintiffs

into six categories: (1) active military personnel; (2) former

military personnel; (3) state representatives; (4) federal tax-

payers; (5) relatives of President Obama; and (6) political

candidates in the 2008 election. The District Court concluded

that the plaintiffs in the first five categories lacked standing,

because they failed to show an injury-in-fact or showed only

a generalized grievance insufficient to establish standing.

The District Court assumed, without deciding, that plain-

tiffs who were political candidates in the 2008 election could

potentially show an injury-in-fact based on their claim that

they were denied a fair competition during the election

because they had to compete with someone who was ineligi-

ble to be President. But the District Court concluded that nei-

ther they nor any other plaintiffs could satisfy the

redressability requirement of standing, because the remedy

they sought—a determination that President Obama is ineligi-

ble to be President and, therefore, his removal from office—

would be beyond the power of the federal courts to grant, and

implicates the political question doctrine and separation of

powers.

Concluding that no plaintiff had standing to sue, the Dis-

trict Court dismissed Plaintiffs’ declaratory relief, injunctive

relief, and constitutional claims for lack of subject matter

jurisdiction. The District Court further dismissed Plaintiffs’

quo warranto claims for improper venue, concluding that the

proper forum is the United States District Court for the Dis-

trict of Columbia. Plaintiffs’ FOIA claims were dismissed for

failure to state a claim because none of the Defendants is an

diction thereof, are citizens of the United States . . . .” In United States v.

Wong Kim Ark, the Supreme Court held that the Citizenship Clause of the

Fourteenth Amendment conferred citizenship on anyone born in the

United States, regardless of his parents’ citizenship. 169 U.S. 649, 650

(1898).

DRAKE v. OBAMA 21407

agency; and their RICO claims, which were never filed, were

dismissed for failure to state a claim.

II.

We have jurisdiction to review the District Court’s final

decision pursuant to 28 U.S.C. § 1291. We review a district

court’s dismissal of an action for lack of subject matter juris-

diction de novo and may affirm on any basis supported by the

record. Zuress v. Donley, 606 F.3d 1249, 1252 (9th Cir.

2010). “A district court’s findings of fact relevant to its deter-

mination of subject matter jurisdiction are reviewed for clear

error.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir.

2009). With regard to such jurisdictional questions, “[n]o pre-

sumptive truthfulness attaches to plaintiff’s allegations. Once

challenged, the party asserting subject matter jurisdiction has

the burden of proving its existence.” Id. (internal citations and

quotation marks omitted).

A.

CONSTITUTIONAL CLAIMS: STANDING

[1] To establish Article III standing, a plaintiff must show:

(1) “an injury in fact—an invasion of a legally protected inter-

est which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical”; (2) “a causal con-

nection between the injury and the conduct complained of—

the injury has to be fairly . . . traceable to the challenged

action of the defendant, and not . . . the result of the indepen-

dent action of some third party not before the court”; and (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 (1992) (omis-

sions in original) (internal quotation marks and citations omit-

ted). Moreover, a litigant’s interest cannot be based on the

“generalized interest of all citizens in constitutional gover-

nance.” Schlesinger v. Reservists Comm. to Stop the War, 418

21408 DRAKE v. OBAMA

U.S. 208, 217 (1974); see also United States v. Richardson,

418 U.S. 166, 173-78 (1974) (taxpayer’s generalized griev-

ance insufficient for standing).

Because Plaintiffs must establish standing to bring this suit,

we adopt the District Court’s classification of the parties and

examine the standing of each category of plaintiffs in turn.

1. Active Military Personnel

The list of plaintiffs includes Lieutenant Jason Freese, who

is on active military duty in Alaska. The complaint alleged

that Freese “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, and may qualify as a class representative on behalf

of all currently active members of the United States Armed

Forces.” Plaintiffs allege that Freese and other active duty

military personal have standing because they are required to

take an oath in which they swear to support and defend the

Constitution of the United States and obey the orders of the

officers appointed over them. See 10 U.S.C. § 502. Freese

argues that, were he to refuse to follow President Obama’s

orders, despite his ineligibility for the presidency, Freese

would face disciplinary action by the military.

[2] Freese’s injuries are not sufficiently concrete to estab-

lish Article III standing, regardless of his military oath. We

have addressed “oath taker standing” before. In South Lake

Tahoe, city councilmembers alleged that land use regulations

adopted by the state were unconstitutional and that voting to

enforce the regulations would both violate their oaths of

office to uphold the Constitution and expose them to civil lia-

bility. City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning

Agency, 625 F.2d 231, 233 (9th Cir. 1980). We considered the

Supreme Court’s decision in Board of Education v. Allen,

which held in a footnote that the plaintiff oath takers had a

“personal stake in the outcome” of the litigation because they

DRAKE v. OBAMA 21409

would be punished for refusing to comply with a statute that

they believed required them to violate their oath to uphold the

Constitution. Id. (citing 392 U.S. 236, 241 n.5 (1968)). Citing

to intervening Supreme Court precedent on the doctrine of

standing, we determined that the holding of footnote 5 in

Allen is not “properly . . . considered as binding Supreme

Court precedent,” and “therefore [held] that the councilmem-

bers’ desire not to violate their oaths of office does not confer

standing.” Id. at 237 (citing Schlesinger, 418 U.S. at 217). We

stated that an oath taker’s claims are, under contemporary

jurisprudence, “abstract constitutional grievances” insufficient

to meet the requirements of Article III. Id. at 238.

[3] Like the councilmembers in South Lake Tahoe, Freese

has failed to assert any concrete injury. The notion that he will

be disciplined by the military for obeying President Obama’s

orders is entirely speculative. He might be disciplined for dis-

obeying those orders, but he has an “available course of action

which subjects [him] to no concrete adverse consequences”

— he can obey the orders of the Commander-in-Chief. S.

Lake Tahoe, 625 F.2d at 237. In the absence of a concrete

injury, Freese asserts nothing more than an abstract constitu-

tional grievance that, far from being particularized to him, is

shared by all citizens generally. See id. (“The fundamental

premise of Schlesinger . . . is that a litigant’s standing cannot

be based on the ‘generalized interest of all citizens in constitu-

tional governance.’ ” (quoting Schlesinger, 418 U.S. at 217)).

Thus, Freese and other active duty military personnel plain-

tiffs have no standing to bring this lawsuit.

2. Former Military Personnel

According to the complaint, “inactive or retired military

personnel who are Plaintiffs, subject to recall, have standing

to challenge and demand clear-and-convincing proof for the

same reasons [as Freese]—in that they are subject to recall

and service at any time under and subject to the de facto chain

of command.” Former military personnel could be on inactive

21410 DRAKE v. OBAMA

duty status. This category of plaintiffs bases its standing on

the possibility that they could be called back to active service

and would be subject to following the Commander-in-Chief’s

orders, thereby suffering injury for the same reasons asserted

by Freese.

[4] The retired and inactive military personnel’s assertion

of standing is far too speculative and conjectural. See Lujan,

504 U.S. at 560-61; see also Kerchner v. Obama, 612 F.3d

204, 208 (3d Cir. 2010) (rejecting, as conjectural, a naval

reserve officer’s assertion of standing to challenge President

Obama’s qualifications for the presidency, where the officer

asserted standing on the grounds that he might be required to

serve the Commander-in-Chief in the case of an extreme

national emergency). Plaintiffs’ alleged injuries are neither

actual nor imminent. Plaintiffs, moreover, rely on the same

oath taker’s standing we have rejected as too abstract and gen-

eralized. Like the active military personnel, this category of

plaintiffs lacks standing.

3. State Representatives

Plaintiffs allege that state representatives have “unique

standing” because they have a “special non-delegable consti-

tutional right and responsibility to verify the qualifications of

the Chief Executive Officer of the United States of America

who is responsible for allocating large sums of [federal]

funds, since receipt of funds from any officer without legal

authority would be complicity in theft or conversion.”

[5] In South Lake Tahoe, we rejected as insufficient to

establish standing a similar contention that a public official

could conceivably be exposed to civil liability while carrying

out his official duties. 625 F.2d at 238-39. We noted that

whether the officials could in fact be subject to civil liability

was dependent on “multiple contingencies,” including the

likelihood of any civil suit and the question whether the offi-

cial would be immune from any such suit. Id. at 239. The

DRAKE v. OBAMA 21411

alleged harm to the state representatives in this case is just as

speculative and conjectural as in South Lake Tahoe, for simi-

lar reasons. This group of plaintiffs therefore fails to establish

standing. See Lujan, 504 U.S. at 560-61.

4. Federal Taxpayers

Plaintiffs also do not have standing as federal taxpayers

because, as they concede, Supreme Court precedent precludes

taxpayer standing in this situation.

[6] In Flast v. Cohen, the Supreme Court held that federal

taxpayers have standing to raise Establishment Clause claims.

392 U.S. 83, 88 (1968). A taxpayer would have standing

“when he alleges that congressional power under the taxing

and spending clause is in derogation of those constitutional

provisions which operate to restrict the exercise of the taxing

and spending power.” Id. at 106. The Supreme Court, how-

ever, expressed a lack of confidence that standing could be

established in cases “where a taxpayer seeks to employ a fed-

eral court as a forum in which to air his generalized griev-

ances about the conduct of government or the allocation of

power in the Federal System.” Id; see also Ariz. Christian

Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)

(“Absent special circumstances . . . , standing cannot be based

on a plaintiff’s mere status as a taxpayer.”).

[7] We agree with the District Court that “Plaintiffs’ dis-

pute against the President is a generalized grievance, not tied

to a specific spending measure in violation of the Constitu-

tion.” A taxpayer must demonstrate a nexus between the chal-

lenged spending and the constitutional right in order to

establish taxpayer standing. See Hein v. Freedom From Reli-

gion Found., Inc., 551 U.S. 587, 605 (2007). Plaintiffs have

shown no such nexus between the constitutional requirement

that the President be a natural born citizen and any challenged

spending provision or action. In fact, Plaintiffs have not chal-

lenged any spending action at all.

21412 DRAKE v. OBAMA

[8] Plaintiffs did not show anything but a “generalized

grievance” insufficient to establish standing. And they chal-

lenge only the President’s executive actions generally, not any

discrete expenditure allegedly banned by a particular constitu-

tional provision. Therefore, this group also fails to establish

standing.

5. Relatives of President Obama

[9] Plaintiff Kurt Fuqua also lacks standing because he has

not alleged an injury-in-fact. Despite Fuqua’s alleged family

relationship with President Obama, his claim is no more spe-

cific to him than to any other citizen. See Lujan, 504 U.S. at

560-61. Nor did Fuqua assert more than a “generalized inter-

est of all citizens in constitutional governance” which is insuf-

ficient to satisfy the requirements of standing. Schlesinger,

418 U.S. at 217. Even as a voter, Fuqua has no greater stake

in this lawsuit than any other United States citizen. The harm

he alleges is therefore too generalized to confer standing. See

Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009) (holding

that the plaintiff’s status as a voter in the 2008 election did not

give him standing to challenge Obama’s candidacy on

grounds similar to those here alleged). Thus, the District

Court did not err in holding that Fuqua, regardless of his

alleged relation to President Obama, does not have standing.

6. Political Candidates

The remaining plaintiffs were political candidates and a

certified elector during the 2008 general election. Plaintiffs

Alan Keyes and Wiley S. Drake were the Presidential and

Vice Presidential candidates, respectively, of the American

Independent Party on the California ballot in the 2008 Presi-

dential Election. Plaintiff Gail Lightfoot, a member of Cali-

fornia’s Libertarian Party, was an official write-in Vice

Presidential candidate in California in 2008. Plaintiff Mark-

ham Robinson was a certified California elector for, and

Chairman of, the American Independent Party.

DRAKE v. OBAMA 21413

These plaintiffs argue that they have standing because, as

candidates running against Obama in the 2008 election, they

had an interest in having a fair competition for the positions

they sought to obtain. If Obama entered the presidential race

without meeting the requirements for the office, they contend,

the candidates did not have a fair opportunity to obtain votes

in their favor. Plaintiffs further argue that Robinson, as an

elector, also had an interest in a fair competition between eli-

gible candidates, including those for whom he had pledged to

vote.

Plaintiffs cite a case from the District of New Hampshire,

Hollander v. McCain, for the proposition that “a candidate or

his political party has standing to challenge the inclusion of

an allegedly ineligible rival on the ballot, on the theory that

doing so hurts the candidate’s or party’s own chances of pre-

vailing in the election.” 566 F. Supp. 2d 63, 68 (D.N.H.

2008). This notion of “competitive standing” has been recog-

nized by several circuits. See, e.g., Tex. Democratic Party v.

Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir. 2006) (politi-

cal party has standing because “threatened loss of [political]

power is still a concrete and particularized injury sufficient

for standing purposes”); Schulz v. Williams, 44 F.3d 48, 53

(2d Cir. 1994) (political party representative has standing

because his party may “suffer a concrete, particularized,

actual injury—competition on the ballot from candidates that

. . . were able to avoid complying with the Election Laws and

a resulting loss of votes”) (internal quotation marks omitted);

Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990) (third-

party presidential candidate had standing because the alleg-

edly improper placement of the major-party candidates on the

ballot resulted in “increased competition” that required “addi-

tional campaigning and outlays of funds” and resulted in lost

opportunities to obtain “press exposure” and win the elec-

tion).

[10] We, too, have upheld the notion of “competitive

standing.” In Owen v. Mulligan, we held that the “potential

21414 DRAKE v. OBAMA

loss of an election” was an injury-in-fact sufficient to give a

local candidate and Republican party officials standing. 640

F.2d 1130, 1132-33 (9th Cir. 1981). In that case, the candidate

for local office sued the Postal Service for giving his rival a

preferential mailing rate, in violation of its own regulations

and of its representations to the court regarding procedures

implemented in response to a previous injunction. Id. at 1132.

The candidate and party officials sought “to prevent their

opponent from gaining an unfair advantage in the election

process through abuses of mail preferences which arguably

promote his electoral prospects.” Id. at 1133 (internal quota-

tion marks and citations omitted). We rejected the Postal Ser-

vice’s argument that the potential loss of an election due to an

unfair advantage for the opponent was an “injury [that was]

too remote, speculative and unredressable to confer standing.”

Id. at 1132 (internal quotation marks omitted).3

Here, the District Court assumed, without deciding, that

only those plaintiffs who were political candidates in 2008

could potentially satisfy the injury-in-fact requirement of

standing because they had a competitive interest in running

against a qualified candidate. The District Court then turned

to the redressability requirement of standing.

3

Some cases hold that competitive standing continues beyond a given

election. See Owen, 640 F.2d at 1133 & n.8 (citing Schiaffo v. Helstoski,

492 F.2d 413, 417 (3d Cir. 1974) (holding that a rival candidate had stand-

ing to challenge an incumbent’s activities seeking to secure an unfair

advantage in future elections)). In those cases, however, the plaintiffs were

seeking to enjoin an ongoing practice that would have produced an unfair

advantage in the next election, the plaintiffs were likely rivals of the

incumbent in the next election and the plaintiffs were not using competi-

tive standing as a means of undoing a past election or ousting an elected

official from office. Here the plaintiffs have not asserted that they will run

against President Obama in the 2012 election (assuming President Obama

runs) and they are not seeking to enjoin an ongoing practice giving the

President a competitive advantage in the next election. They are instead

seeking to remove the President from office, a remedy unconnected to any

injury they hypothetically suffered in the 2008 election.

DRAKE v. OBAMA 21415

[11] The District Court was mistaken in assuming, how-

ever, that the political candidates still had an interest in a fair

competition at the time the complaint was filed. The original

complaint was filed on January 20, 2009, at 3:26 p.m. Pacific

Standard Time, after President Obama was officially sworn in

as President. The First Amended Complaint was filed on July

14, 2009. Whichever complaint is considered, the 2008 gen-

eral election was over when it was filed. Once the 2008 elec-

tion was over and the President sworn in, Keyes, Drake, and

Lightfoot were no longer “candidates” for the 2008 general

election. Moreover, they have not alleged any interest in run-

ning against President Obama in the future. Therefore, none

of the plaintiffs could claim that they would be injured by the

“potential loss of an election.” Owen, 640 F.2d at 1132. Plain-

tiffs’ competitive interest in running against a qualified candi-

date had lapsed.4 Similarly, Robinson’s interest as an elector

—derived from the competitive interest of his preferred

candidates—was extinguished by the time the complaint was

filed.

[12] For the foregoing reasons, the political candidates

failed to establish redressability sufficient to establish stand-

ing. They cannot claim competitive standing because they

were no longer candidates when they filed their complaint.

4

Defendants argue that “competitive standing” does not apply in this

case because Plaintiffs were not deprived of the ability to win. Drake and

Lightfoot ran only in California, while Keyes’s name appeared on the bal-

lot in only three states: California, Colorado, and Florida. Defendants

argue, and Plaintiffs do not contest, that none of the political candidate

plaintiffs were in any position to win a majority of the 270 electoral votes

required to win the election. We need not decide, however, on Defendants’

success-based line-drawing to conclude that Plaintiffs no longer had com-

petitive standing.

21416 DRAKE v. OBAMA

B.

QUO WARRANTO

[13] Black’s Law Dictionary 1374 (9th ed. 2009) defines

quo warranto as a “common-law writ used to inquire into the

authority by which a public office is held or a franchise is

claimed.” Section 16-3501 of the District of Columbia Code

states:

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 con-

ferred by the United States or a public office of the

United States, civil or military. The proceedings

shall be deemed a civil action.

D.C. Code § 16-3501 (emphasis added). Under § 16-3502,

only the Attorney General of the United States or the United

States Attorney for the District of Columbia can initiate a pro-

ceeding for issuance of a writ of quo warranto “on his own

motion or on the relation of a third person,” and if the writ is

brought on behalf of a third person, it may only issue by leave

of the District Court for the District of Columbia. D.C. Code

§ 16-3502. “If the Attorney General or United States attorney

refuses 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.”

D.C. Code § 16-3503.

Plaintiffs concede that the District Court for the District of

Columbia is the proper venue to issue a writ of quo warranto

under D.C. Code § 16-3503, but argue that their efforts to file

there have been frustrated because the Attorney General and

the United States Attorney for the District of Columbia have

not responded to their requests.

DRAKE v. OBAMA 21417

[14] The District Court properly dismissed Plaintiff’s quo

warranto claims under D.C. Code § 16-3503, because the

proper venue to file such claims against the President of the

United States would be the District of Columbia. See D.C.

Code § 16-3501; see also U.S. ex rel. State of Wis. v. First

Fed. Sav. & Loan Ass’n, 248 F.2d 804, 809 (7th Cir. 1957)

(“We hold, except as otherwise specifically provided by stat-

ute, that there is no original jurisdiction in the federal district

court to entertain an information in the nature of quo warran-

to.”). While D.C. Code §§ 16-3501 to 16-3503 do not explic-

itly provide that quo warranto claims under them must be

brought exclusively in the District of Columbia, the plain lan-

guage of the statute indicates that a writ based on the D.C.

Code provisions must be sought within the District of Colum-

bia, because such a claim is challenging the right of a person

within the District of Columbia to hold a public office of the

United States. See D.C. Code § 16-3501 (“A quo warranto

may be issued from the United States District Court for the

District of Columbia . . . against a person who within the Dis-

trict of Columbia . . . .”) (emphasis added)). More impor-

tantly, §§ 16-3502 and 16-3503 provide only for the District

Court for the District of Columbia to grant leave of court to

file the writ on the relation of a third person. Moreover, the

United States District Court for the District of Columbia has

now weighed in with respect to the reach of the D.C. Code

quo warranto provisions. In Taitz v. Obama, 707 F. Supp. 2d

1, 2-4 (D.D.C. 2010), the District Court for the District of

Columbia stated that “a quo warranto action against a public

official may be brought only by the Attorney General or the

U.S. Attorney.” Id. at 3 (citing Andrade v. Lauer, 729 F.2d

1475, 1498 (D.C. Cir. 1984)).

Plaintiffs do not predicate their quo warranto claim on any

plausible legal basis other than the D.C. Code.5 Thus, in this

5

Plaintiffs do briefly mention the All Writs Act, 28 U.S.C. § 1651, and

42 U.S.C. § 1988 as possible statutory bases for a quo warranto proceed-

21418 DRAKE v. OBAMA

case, the District Court did not err by dismissing Plaintiffs’

quo warranto claims, as premised on the D.C. Code, for

improper venue.

C.

FOIA CLAIMS

Under 5 U.S.C. § 552(a)(4)(B), “[o]n complaint, the district

court . . . has jurisdiction to enjoin the agency from withhold-

ing agency records and to order the production of any agency

records improperly withheld from the complainant.” (empha-

sis added). The statute defines “agency” as “each authority of

the Government of the United States, whether or not it is

within or subject to review by another agency, but does not

include—(A) the Congress; (B) the courts of the United

States; (C) the governments of the territories or possessions of

the United States; (D) the government of the District of

Columbia.” 5 U.S.C. § 551(1).

[15] We agree with the District Court that FOIA does not

apply to any of the Defendants because they are all individu-

als, not agencies. Cf., e.g., Franklin v. Massachusetts, 505

U.S. 788, 800-01 (1992) (“Out of respect for the separation of

powers and the unique constitutional position of the President,

we find that textual silence is not enough to subject the Presi-

dent to the provisions of the [Administrative Procedure Act

(APA)].”); see also Batton v. Evers, 598 F.3d 169, 173 n.1

(5th Cir. 2010) (“A FOIA plaintiff may not assert a claim

ing. Neither is viable. See, e.g., Lights of Am., Inc. v. United States Dist.

Court, 130 F.3d 1369, 1370 (9th Cir. 1997) (per curiam) (“[T]he Supreme

Court has long held that the All Writs Act is not itself a source of jurisdic-

tion.”) (citing McClung v. Silliman, 19 U.S. 598, 601-02 (1821)); Moor v.

Cnty. of Alameda, 411 U.S. 693, 703-04 & n.17 (1973) (recognizing that

§ 1988 does not create an independent cause of action for the violation of

federal civil rights, but “instructs federal courts as to what law to apply in

causes of actions arising under federal civil rights acts”).

DRAKE v. OBAMA 21419

against an individual federal official; the proper defendant is

the agency.”); Martinez v. Bureau of Prisons, 444 F.3d 620,

624 (D.C. Cir. 2006) (per curiam) (“[T]he district court prop-

erly dismissed the named individual defendants because no

cause of action exists that would entitle appellant to relief

from them under the Privacy Act or FOIA. Both statutes con-

cern the obligations of agencies as distinct from individual

employees in those agencies.”) (citations omitted); Motions

Sys. Corp. v. Bush, 437 F.3d 1356, 1359 (Fed. Cir. 2006) (per

curiam) (noting that the President is not an “agency” within

meaning of Administrative Procedure Act). Thus, the District

Court correctly dismissed Plaintiffs’ FOIA causes of action

for failure to state a claim.

D.

RICO CLAIMS

Plaintiffs sought a declaratory judgment and injunctive

relief to determine “whether certain crimes of fraud relating

to identity or fraudulent use of sensitive individually identify-

ing information . . . have been committed and concealed by

some of the defendants, acting jointly or severally whether or

not in formal conspiracy, which would constitute predicate

acts of racketeering within the meaning of 18 U.S.C. § 1961

et seq.” Plaintiffs did not, however, plead any RICO allega-

tions and only stated that they “have accumulated several dos-

siers of evidence against [Obama] which suggest . . . that the

President and his allies and some of the co-defendants in this

case may have committed, or still be in the process of com-

mitting, some fairly serious violations of U.S. law.” Plaintiffs

instead expressly reserved, in their First Amended Complaint,

pleadings under RICO for their Second Amended Complaint

due to the “complexity of RICO pleading.”6

6

Plaintiffs never filed a motion for leave of court to file a Second

Amended Complaint and only mentioned in passing such a request in their

motion for reconsideration, filed on November 9, 2009, after the District

Court granted Defendants’ motion to dismiss.

21420 DRAKE v. OBAMA

[16] The District Court dismissed these claims against

Defendants Michelle Obama, Hillary Clinton, Joe Biden, and

Robert Gates for failure to state a claim under Rule 12(b)(6),

noting that Plaintiffs had six months between the original

complaint and the amended complaint to attempt to set forth

civil RICO allegations. The District Court found Plaintiffs’

“failure to do so inexcusable.” Given Plaintiffs’ express state-

ments reserving their RICO allegations, the District Court was

justified in finding that Plaintiffs had “failed to state any

claim whatsoever” against any defendants other than Presi-

dent Obama.

[17] Thus, the District Court did not err by dismissing the

complaint as against Defendants First Lady Michelle Obama,

Vice President Joe Biden, Secretary of State Hillary Clinton,

and Secretary of Defense Robert Gates for failure to state a

claim upon which relief could be granted.

***

The District Court properly dismissed the plaintiffs’ consti-

tutional claims for lack of Article III standing. Moreover, the

District Court did not err in dismissing Plaintiffs’ quo war-

ranto, FOIA, or RICO claims. Accordingly, the dismissal by

the District Court is AFFIRMED.

Appellants’ emergency petition for writ of mandamus, filed

November 8, 2011, is DENIED.