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[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
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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
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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,
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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
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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)).
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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
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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
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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.
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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
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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.
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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.
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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
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Exhibit A
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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
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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.,
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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
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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
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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
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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
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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-
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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
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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.
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/s/
JOHN D. BATES
United States District JudgeDated: June 6, 2012
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Exhibit B
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