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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.

APPELLEES MOTION FOR SUMMARY AFFIRMANCE

order dismissing an amended petition and complaint filed by pro 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

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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

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

issuance of a writ quo warranto compelling President Barack Obama to show cause

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Appellees respectfully move for summary affirmance of the district courts

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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

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

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

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

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

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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. See In 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 2
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various defendants concerning an occasion in September 2009 when a deputy U.S.

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

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

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

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

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

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

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

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

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of a writ quo warranto.2 Op. at 2-6. Among other things, Article III standing

After this appeal was docketed, Sibley sought expedited briefing. That motion was denied.
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A 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, 3
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ARGUMENT

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

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

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

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

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requires an alleged violation of a legally protected interest that is concrete and particularized, i.e., personal to the plaintiff. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It is well established that the generalized interest of all

citizens in constitutional governance does not suffice to confer standing. Ariz.

quotation marks omitted); see also Hein v. Freedom from Religion Found., Inc.,

repeatedly rejected, for lack of standing, attempts by individual citizens to seek a

the United States.3

Sibleys quo warranto claims similarly fail. Generally, a writ quo warranto may be brought only by the sovereign or its representative. See, e.g., Johnson v. Manhattan Ry. Co., 289 U.S. 479, 502 (1933); Country Club Estates, L.L.C. v.

citizen ever has standing to obtain such a writ, that person at a minimum must hold

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784 (9th Cir. 2011) (quoting Blacks Law Dictionary 1374 (9th ed. 2009)), cert. denied, 132 S. Ct. 2748 (2012).
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See, e.g., Drake, 664 F.3d at 779-84; Purpura v. Sebelius, 446 F. Appx 496, 49798 (3d Cir. 2011) (unpublished), cert. denied, 132 S. Ct. 1037 (2012); Kerchner v. Obama, 612 F.3d 204, 206-09 (3d Cir. 2010), cert. denied, 131 S. Ct. 663 (2010); Berg v. Obama, 586 F.3d 234, 238-42 (3d Cir. 2009); Cohen v. Obama, 332 F. Appx 640 (D.C. Cir. 2009) (unpublished); Taitz v. Obama, 707 F. Supp. 2d 1, 3-4 (D.D.C. 2010). 4
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Town of Loma Linda, 213 F.3d 1001, 1003 (8th Cir. 2000). To the extent a private

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declaration that Barack Obama is constitutionally ineligible to serve as President of

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551 U.S. 587, 600-01 & n.2 (2007) (collecting cases). Thus, courts have

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Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1441-42 (2011) (internal

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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

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

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

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

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

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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 a person interested, the interested person may apply

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

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

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

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

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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

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

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

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

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

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

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

Sibleys 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)). 6
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inconsistent with separation of powers principles. Cf. Nixon v. United States, 506

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

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

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

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

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involvement in impeachment proceedings . . . would eviscerate the important constitutional check placed on the Judiciary by the Framers).

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

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

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

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II. Sibleys First Mandamus Claim Fails Because The Attorney General And U.S. Attorney Do Not Owe Him Any Nondiscretionary Duty.

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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.

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

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

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

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III. Sibley Lacks Standing To Compel Presentation Of Evidence To The Grand Jury, And His Related Constitutional Claims Fail.

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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

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

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

from oppression by the prosecutor or court, not to allow [private] individuals to

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.

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

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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 Fed. 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. 9
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Finally, the district court properly dismissed Sibleys damages claims arising

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

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

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

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

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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

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

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

rejecting constitutional challenge to courthouse security measure).

him any injury. Even assuming that a deprivation of the right of access to the courts were actionable under Bivens 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

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

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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 10
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substantial record of litigation in this and other tribunals belies any assertion of

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

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

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

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

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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 purported Bivens claims. See, e.g., Reichle v. Howards, 132 S. Ct. 2088,

where law was not clearly established).

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

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

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Additionally, the district court did not abuse its discretion in denying Sibleys various procedural motions, including motions to expedite the case, conduct preservice 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. 11
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U.S. Marshals Service acted wrongfully or negligently in any way. Op. at 8; cf.

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Nor are Sibleys damages claims actionable under the Federal Tort Claims

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

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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

OCTOBER 2012

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The Department of Justice gratefully acknowledges the assistance of Douglas C. Dreier, a third-year student intern from Duke Law School, in preparing this filing. 12
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/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

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Counsel for Appellees

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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 mbsibley@gmail.com. Appellant has consented to service by electronic means pursuant to Fed. R. App. P. 25(c)(1)(D).

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/s/ Jeffrey E. Sandberg Jeffrey E. Sandberg Counsel for Appellees

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Exhibit A

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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Plaintiff, v. 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

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

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

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

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MONTGOMERY BLAIR SIBLEY,

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

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

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

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

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

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

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

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,

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

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others who have made similar claims contesting President Obamas eligibility for the presidency were found to lack standing. The injury plaintiff asserts is not particular 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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819 (1997).

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

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

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

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

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

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

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Circuit, which has concluded that only the 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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D.C. Code 16-3503 has not been met, plaintiffs quo warranto petition is not ripe.

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

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

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

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

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 current tenures 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

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

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

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

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warranto to challenge President Obamas current presidency.

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now or in the future for the presidency.

II. Mandamus Requests

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.

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

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

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

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

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

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.

to bring related accusations before that body.

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

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

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

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

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 cites Bivens v. Six

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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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IV. Request for Damages

accomplishing his aims is unavailing.

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

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

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

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

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V. Motion for Pre-Service Discovery and Password

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

Case 1:12-cv-00001-JDB Document 19 Filed 06/06/12 Page 10 of 10 USCA Case #12-5198 Document #1398780 Filed: 10/09/2012 Page 11 of 32

/s/

Dated: June 6, 2012

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JOHN D. BATES United States District Judge

USCA Case #12-5198

Document #1398780

Filed: 10/09/2012

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Exhibit B

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