az - llf appeal 9th cir - 2012-08-24 - dnc opposition to motion for injunction
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Case No. 12-16729
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIBERTY LEGAL FOUNDATION; JOHN DUMMETT;
LEONARD VOLODARSKY; CREG MARONEY,
Appellants,
v.
DEMOCRATIC NATIONAL COMMITTEE; AND
DEBBIE WASSERMAN-SCHULTZ,
Appellees.
Appeal from the United States District Court, District of Arizona
District Court No. 2:11-cv-02089
RESPONSE IN OPPOSITION TO APPELLANTS MOTION FOR
INJUNCTION PENDING APPEAL
Paul F. Eckstein
D. Andrew Gaona
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
At torneys for Appellees
Democratic National Commit tee and
Debbie Wasserman-Schultz
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Corporate Disclosure Statement
Pursuant to Fed. R. App. P. 26.1, Appellee Democratic National Committee
states that it is not aware of the existence of any parent corporation or any publicly
traded corporation that owns more than 10% of its stock.
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Introduction
Appellants Motion for Preliminary Injunction in this Court is yet another
step in a coordinated and politically-driven campaign to deprive the American
people of their right to vote for their candidate of choice in the 2012 presidential
election. The sweeping relief sought by Appellants which in effect would
preclude any state from including President Barack Obamas name on the ballot in
November is predicated entirelyon the frivolous notion that President Obama is
not a natural-born citizen of the United States, a legal theory that has been
rejected by each and every court and administrative agency to consider it. The
district court, however, found it unnecessary to reach this spurious contention, and
instead properly dismissed Appellants Second Amended Complaint because of its
failure to establish the courts personal jurisdiction over Appellees.
Appellants Motion should be denied because: (1) they are certain to fail on
the merits, (2) they will not sustain irreparable harm, (3) the balance of equities
weighs decidedly against them, and (4) the public interest most certainly does not
favor granting temporary equitable relief that will harm both President Obama and
the tens of millions of Americans who wish to cast a vote in his favor on
November 6, 2012. This Court should not entertain Appellants attempt to abuse
the judicial process in furtherance of their misguided political agenda.
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Background
On January 23, 2012, Appellants filed their Second Amended Complaint
(the SAC) against Appellees. [R. 10.] The gravamen of the SAC is that
President Obama is not a natural born citizen of the United States, and that he is
therefore not qualified to be placed on any ballot for the office of President in the
2012 general election. [Id. 13.] According to Appellants, this result is
mandated by Minor v. Happersett, 88 U.S. 162, 167 (1874), in which Appellants
allege that the United States Supreme Court defined natural-born citizens as all
children born in a country of parents who were its citizens. [Id. 12.] The SAC
alleged purported causes of action for negligent misrepresentation,
fraud/intentional misrepresentation, and declaratory relief, and asked that the
district court enjoin the Democratic Party from making any representation by [sic]
to any State official asserting, implying, or assuming that Mr. Obama is qualified
to hold the office of President. [Id. 5.]
Appellees filed a motion to dismiss pursuant to Rule 12(b)(1), (b)(2), and
(b)(6) of the Federal Rules of Civil Procedure. [R. 24.] That motion argued that:
(1) the district court lacked subject matter jurisdiction because the Appellants did
not have standing, (2) the district court lacked personal jurisdiction over Appellees
because of Appellants deficient pleading, and (3) the SAC failed to state a claim
upon which relief could be granted because the district court could not interfere
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with the Democratic Partys choice of presidential candidate, and more
importantly, because President Obama is unquestionably a natural-born citizen of
the United States and is eligible to stand for re-election. [Id.] On July 11, 2012,
the district court entered an order dismissing the SAC with prejudice. [R. 41.] It
concluded that Appellants failed to meet their burden of establishing [that the
court] has personal jurisdiction over [Appellees], and thus did not reach the other
grounds for dismissal raised. [Id. at 15.]
On August 6, 2012, Appellants filed a timely notice of appeal from the
district courts order of dismissal. [R. 43.] Nine days later, they filed a Motion
for Preliminary Injunction pending the disposition of their appeal (the Motion)
pursuant to Rule 8 of the Federal Rules of Appellate Procedure. [Doc. No. 4-1.]
The Motion asks this Court to enter an order
prohibiting the Defendant/Appellees from issuing any
letters, certificates, or other document to any Secretary of
State of any state, any agent thereof, or any other official
of any state, indicating that [President] Obama is
qualified to hold the office of President or that the
Democratic Party has selected [President] Obama as its
Presidential candidate, or requesting that any state place
the name of Mr. Obama on any ballot for the office of
President of the United States for the 2012 general
election.
[Id. at 20.]
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Argument
The entry of the broad and sweeping injunction requested by Appellants
would have no basis in fact or law, and the Court simply should not indulge
Appellants arguments to the contrary. Not only did the district court properly
dismiss the SAC because of Appellants failure to establish the courts personal
jurisdiction over Appellees, but also it could have properly dismissed the case for
any number of other fundamental deficiencies, most prominently the absurdity of
the legal theory on which the entire SAC rests. The Motion should be denied.
I. APPELLANTS ARE NOT ENTITLED TO AN INJUNCTIONPENDING APPEAL.
The standard for an injunction pending appeal is the same as that used by a
district court to determine whether to grant a preliminary injunction. See Natural
Res. Def. Council, Inc. v. Winter, 502 F.3d 859 (9th Cir. 2007) (applying this
standard to a stay application under FRAP 8). Appellants thus have the burden of
establishing: (1) a likelihood of success on the merits; (2) that irreparable harm is
likely to be suffered in the absence of preliminary relief; (3) that the balance of
equities tips in their favor; and (4) that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the instant
case, Appellants cannot meet their burden to establish any of these four factors.
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A. Appellants Are Not Likely to Succeed on the Merits.Although Appellants focus a great deal on their incorrect claim that the
judgment of the district court was clear error, that inquiry is one that this Court
will consider at a later time. The relevant question now before the Court is not
whether Appellants are likely to prevail on their appeal [Doc. 4-1 at 9], but rather
whether they are likely to succeed on the merits of their case in its entirety.
Viewed through this lens, Appellants Motion should be denied because Appellants
are not only unlikely to succeed on the merits of their claims, but are sure to fail.
1. The district court properly concluded that it lackedjurisdiction over Appellees.
Despite Appellants protestations to the contrary, the district court did not
err in concluding that Appellants failed to carry their burden to establish that the
court had personal jurisdiction over Appellees. The only disputed conclusion from
the order below is that the district court lacked specific personal jurisdiction.
Appellants do not contest the district courts holding that [n]othing in the record
supports a finding ofgeneraljurisdiction. [R. 41 at 5 (emphasis added).]
Where a defendant moves to dismiss a complaint for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is
appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th
Cir. 2004). Thus, Appellants carried the burden of demonstrating to the district
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court that the exercise of specific personal jurisdiction was proper by satisfying a
three-prong test:
(1) The non-resident defendant must purposefully direct
his activities or consummate some transaction with the
forum or resident thereof; or perform some act by which
he purposefully avails himself of the privilege of
conducting activities in the forum, thereby invoking the
benefits and protection of its laws;
(2) the claim must be one which arises out of or relates to
the defendants forum-related activities; and
(3) the exercise of jurisdiction must comport with fairplay and substantial justice, i.e. it must be reasonable.
Id. at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). This test
involves two related but separate inquiries; purposeful availment and purposeful
direction. Id. at 802-03.
After examining the allegations made in the SAC, the district court first
concluded that Appellants did not allege that [Appellees] have acted in any way to
purposefully avail themselves of the protections and privileges of Arizona.
Nowhere in the SAC do [Appellants] allege that [Appellees] made a contract,
engaged in business in Arizona, or established ongoing contacts in Arizona.
[R. 41 at 8.] Although Appellants claim that there was purposeful availment in a
heading [Doc. 4-1 at 6], they do not substantively address or attempt to refute this
conclusion of the district court.
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Appellants do, however, dispute the district courts holding that they failed
to allege activities directed at the State of Arizona. [Id. at 6-9.] The district court
concluded that Appellants: (1) did not allege that Appellees have completed any
act in connection with alleged misrepresentations about the 2010 presidential
election, (2) failed to establish that Appellees expressly aimed acts at Arizona in
any way as required byBancroft & Masters, Inc. v. Augusta Natl, Inc., 223 F.3d
1082, 1087 (9th Cir 2000), and (3) failed to establish anything more than an act
that is national in scope that does not target any particular person or place, which
cannot establish personal jurisdiction. [R. 41 at 9.]
Far from the clear error alleged by Appellants, the district court correctly
read the allegations in the SAC to refer to a general course of conduct that
Appellees will allegedly undertake that is aimed at all fifty states, and not at
Arizona (or any resident thereof) in particular. Appellants argument that the
Arizona Secretary of State is a specific person [Doc. 4-1 at 7] thus quite misses
the point, as the relief sought by the SAC is not specific to Arizona (or the Arizona
Secretary of State), but instead would apply as equally to Arizona as it would to
Illinois, Virginia, or any other state. [R. 41 at 9 ([Appellants] allege that
[Appellees] will make a representation to all fifty Secretaries of State . . . .).]
Based on these general allegations, Appellants did not establish that
Appellees expressly aimed any conduct toward the forum state, and the district
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court properly relied on case law holding that acts national in scope are
insufficient to support a finding of purposeful direction. See, e.g., Kransco Mfg.,
Inc. v. Markwitz, 656 F.2d 1376, 1379-80 (9th Cir. 1981).
2. Appellants are certain to fail on the merits because the legaltheory that colors the SAC has been met with wholesale
rejection.
At its heart, the Motion must be denied because there is no question as to
President Obamas status as a natural-born citizen of the United States, and thus
there is no legal basis on which Appellants could prevail on their claims for relief.
Despite Appellants arguments and those of each and every birther that
has preceded them in state and federal courts throughout the country President
Obama is a natural-born citizen by virtue of his birth in the United States. See
United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (holding that a person
born to non-citizens from China was a citizen of the United States because [e]very
person born in the United States, and subject to the jurisdiction thereof, becomesat
once a citizen of the United States) (emphasis added); see also Hollander v.
McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) (Those born in the United States,
and subject to the jurisdiction thereof have been considered American citizens
under American law in effect since the time of the founding and thus eligible for
the presidency.) (citations omitted);Ankeny v. Governor of Ind., 916 N.E.2d 678,
688 (Ind. Ct. App. 2009) (citing Wong Kim Ark, and holding that both President
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Obama and Senator John McCain were natural born citizen[s] because persons
born within the borders of the United States are natural born [c]itizens for Article
II, Section 1 purposes, regardless of the citizenship of their parents).1
Both the SAC and the Motion rely entirely on Minor v. Happersett. [R. 10
2; Doc. 4-1 at 10-14.] Notwithstanding Appellants erroneous characterizations,
Minordid not exclusively define natural-born citizens as all children born in a
country of parents who were its citizens. [R. 10 2; Doc. 4-1 at 10.] Indeed, the
Court expressly left open the question of whether a child born to alien parents is a
natural born citizen because it was not necessary to the disposition of the case.
See Minor, 88 U.S. at 167-68 (noting that it was not necessary to resolve existing
doubts as to whether a child born in the United States, without reference to the
citizenship of their parents, is a natural-born citizen[]).
That question was in effect resolved in Wong Kim Ark, which held that
[e]very person born in the United States, and subject to the jurisdiction thereof,
becomes at once a citizen of the United States, and not at a later time by
naturalization or some other means. 169 U.S. at 702 (emphasis added). The very
and not at some later time. Indeed, in discussing the English common law at the
1Appellees cited below a host of unreported federal, state, and administrative
decisions that reach the same result. [See R. 24 at 12 n.8 & Exs. A-C; R. 27 at
Exh. D; R. 37.]
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time of the adoption of the United States Constitution which was the law in force
in the English colonies and in the United States afterwards the Supreme Court
observed that every child born in England of alien parents was a natural-born
subject, unless the child of an ambassador or other diplomatic agent of a foreign
state, or of an alien enemy in hostile occupation of the place where the child was
born. Wong Kim Ark, 169 U.S. at 658 (emphasis added).
Because the legal theory on which both the SAC and the Motion are
predicated has been resoundingly rejected by each and every court and
administrative body to consider it, Appellants are not likely to succeed on the
merits.2
To the contrary, Appellants are sure to fail.
3. The Court lacks subject matter jurisdiction over this case.Even if this Court concludes that Appellants have made some showing that
would not require denial of the Motion because of a lack of either personal
jurisdiction or legal merit, Appellants are not likely to succeed on the merits
because the Court lacks subject matter jurisdiction over this case. Specifically: (1)
Appellants do not have standing to maintain this action, an issue already decided
adversely to these Appellants in a parallel proceeding in Tennessee, and (2)
2The district court recognized as much when, in its discussion of Appellees
motion for sanctions, warned Appellants counsel that knowingly continuing to
bring claims that have previously been dismissed may warrant sanctions in the
future. [R. 41 at 13.]
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because of the unique nature of presidential elections, any dispute over President
Obamas qualifications is not yet ripe.
a. Appellants do not have standing to maintain thisaction.
First, Appellants cannot succeed on the merits because they do not have
standing to pursue this case. As set forth in Appellees Motion to Dismiss [R. 24
at 5-7]:
Appellant Maroney alleges only that he is a United States Citizen. [R. 10 33] As a result, his alleged injury-in-fact derives solely from his status as
a citizen and as a voter. This alleged harm is neither concrete nor
particularized, and is thus insufficient to establish standing under Article III.
See Berg v. Obama, 586 F.3d 234, 240 (3d Cir. 2009) (Even if we assume
that the placement of an ineligible candidate on the presidential ballot
harmed Berg, that injury, including any frustration Berg felt because others
refused to act on his view of the law, was too general for the purposes of
Article III: Berg shared both his interest in proper application of the
Constitution and laws, . . .pari passu with all voters . . . .)
Appellants Dummett and Volodarsky, though allegedly candidates for theoffice of President of the United States [R. 10 21, 28], fail to allege an
injury-in-fact because they do not allege that any appellee has engaged in a
practice that would provide President Obama with an unfair advantage in
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the election process. Owen v. Mulligan, 640 F.2d 1130, 1133 (9th Cir.
1981) (concluding that a candidate had standing to challenge the Postal
Services preferential mailing rate afforded his opponent because such
abuses of mail preferences . . . arguably promote[d] . . . electoral
prospects) (internal quotation marks omitted). Above all, their presidential
prospects are theoretical at best, and any harm they may sustain in the
future is entirely speculative. Cf. Robinson v. Bowen, 567 F. Supp. 2d 1144,
1146 (N.D. Cal. 2008) (holding that the plaintiff, a mere candidate hoping
to become a California elector pledged to an obscure third-party candidate
whose presidential prospects are theoretical at best, lacked standing to
challenge Senator John McCains qualifications because he had no greater
stake in the matter than a taxpayer or voter).
Appellant Liberty Legal Foundation lacks standing because, inter alia, itfailed to show that one of its members would have standing to sue in his
own right. See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,
1105-06 (9th Cir. 2006) (setting forth the test for associational standing).
Though all of these arguments remain true today, the Court need not make
any determination as to Appellants likelihood of success on them because that
decision has already been made by a court of competent jurisdiction. On June 21,
2012, Judge S. Thomas Anderson of the United States District Court for the
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Western District of Tennessee entered an order dismissing identical claims
brought by Appellants against Appellees because Appellants failed to allege[]
specific facts to demonstrate their standing. Liberty Legal Found. v. Natl
Democratic Party of the USA, Inc., No. 2:12-cv-02143-STA-cgc, slip op. at 19-20
(W.D. Tenn. June 21, 2012) [R. 40, Ex. A.] Because of the existence of a final
judgment concluding that Appellants lack standing to bring the precise claims
advanced in the SAC, they are collaterally estopped from relitigating that question
here. See Offshore Sportswear, Inc. v. Vuarnet Intl, B.V., 114 F.3d 848, 850 (9th
Cir. 1997) (setting forth the conditions for the application of the doctrine of
collateral estoppel). It is therefore impossible for Appellants to succeed on the
merits.3
The Motion should be denied on these grounds alone.
b. This dispute is not yet ripe.Beyond Appellants lack of standing, no court has subject matter jurisdiction
over this matter because the dispute is not ripe for judicial review. See Principal
Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005) (If a case is not ripe
for review, then there is no case or controversy, and the court lacks subject-matter
jurisdiction.). Specifically, judicial review in this matter is not appropriate if at
3The fact that Appellants cannot relitigate their lack of standing to pursue
these claims is a ground on which this Court can and should dismiss this appeal.
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all until after the 2012 general election and the counting of electoral votes by
Congress.
As Judge William Alsup of the Northern District of California explained in
Robinson v. Bowen, a case in which the plaintiff sought to preclude Senator John
McCain from the 2008 ballot in California:
It is clear that mechanisms exist under the Twelfth
Amendment and 3 U.S.C. 15 for any challenge to any
[presidential] candidate to be ventilated when electoral
votes are counted, and that the Twentieth Amendment
provides guidance regarding how to proceed if apresident elect shall have failed to qualify. Issues
regarding qualifications for president are
quintessentially suited to the foregoing process.
Arguments concerning qualifications or lack thereof can
be laid before the voting public before the election and,
once the election is over, can be raised as objections as
the electoral votes are counted in Congress. The
members of the Senate and the House of Representatives
are well qualified to adjudicate any objections to ballots
for allegedly unqualified candidates.
567 F. Supp. 2d at 1147 (emphasis added). Because of these procedures already
set forth in federal law, the court held that [j]udicial review if any should
occur only afterthe electoral and Congressional processes have run their course.
Id. (emphasis added). What was true then is true now, and accordingly, Appellants
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are unlikely to succeed on the merits because the heart of their case is not ripe for
review.4
B. Appellants Will Not Sustain Irreparable Harm WithoutPreliminary Relief.
Appellants sole claim of irreparable harm absent the entry of an injunction
pending appeal is that Appellant Dummett is a candidate for the office of
President, and that the appearance of President Obamas name on ballots would
reduce the number of votes obtained by candidate Dummett for the same office,
and would call into question the validity of such an election. [Doc. 4-1 at 18.]
As a preliminary matter, the SAC is devoid of any allegations that Appellant
Dummetts name will appear on any state ballot alongside President Obamas.
Although the Ninth Circuit has acknowledged the existence of competitive
standing, see Drake v. Obama, 664 F.3d 774, 782-83 (9th Cir. 2011), cert. denied
sub nom. Keyes v. Obama, 132 S. Ct. 2748 (2012), that standing doctrine
presupposes actual and viable competition. It cannot be that any self-declared
presidential candidate has competitive standing to challenge President Obamas
qualifications (and, as requested here, obtain injunctive relief that would preclude a
4That this dispute is not currently ripe is further highlighted by the fact that
Appellants brought causes of action for negligent misrepresentation and
fraud/intentional misrepresentation for conduct that has yet to occur.
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sitting Presidents name from appearing on the ballot) despite the practical and
legal impossibility of that persons election to office.
Second, and beyond Appellant Dummetts lack of viability as a presidential
candidate, Appellants will not suffer irreparable harm without an injunction
pending appeal because although the election grows ever-closer Appellants will
not be without recourse to challenge President Obamas qualifications. As set
forth above, they would be free to bring an action if he is re-elected, and after the
votes of the Electoral College have been cast and counted by Congress. See
Robinson, 567 F. Supp. 2d at 1147 (holding that [j]udicial review if any
should occur only after the electoral and Congressional processes have run their
course) (emphasis added).
Finally, theonly true irreparable harm that would occur if the Court were
to grant an injunction pending appeal would be that sustained by President Obama,
the millions of members of Americans who wish to cast a vote in November giving
him another term in office, and public trust in our system of democracy. The
Motion completely disregards the interests of these individuals and that system,
and should thus be given no credence.
C. The Balance of Equities Does Not Favor Appellants.The relief sought by Appellants would prevent Appellees from making
representations about President Obamas nomination as the Democratic Partys
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candidate for President of the United States that are objectively (and legally) true.
See Section I.B, supra. It would hardly be equitable to enjoin Appellees in such a
way. The balance of equities in favor of Appellees requires the denial of the
Motion.
D. An Injunction Pending Appeal Is Not in the Public Interest.The public interest supports free democratic choice, and not an injunction
that would (1) keep President Obama off ballots throughout the country, and (2)
prevent millions of Americans from casting a ballot in favor of a candidate they
support. Appellants arguments to the contrary [Doc. 4-1 at 19-20] are quite
unavailing because, like the rest of the Motion, they are premised entirely on the
notion that at some indeterminate point in the future, Appellees will make
misrepresentations about President Obamas eligibility to serve as President of
the United States and stand for re-election. Because no such misrepresentation
can or will be made, see Section I.B, supra, the public interest strongly disfavors
the extraordinary and unprecedented relief sought in the Motion.
Conclusion
Because Appellants will not succeed on the merits, will not sustain
irreparable harm absent the entry of an injunction, the balance of equities weighs
strongly against precluding the name of the sitting President from the ballot, and
the public interest favors free democratic choice, the Motion should be denied.
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Dated: August 24, 2012. Respectfully submitted,
s/ D. Andrew Gaona
Paul F. Eckstein
D. Andrew Gaona
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Attorneys for Appellees
Democratic National Committee; and
Debbie Wasserman-Schultz
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Certificate of Service
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on August 24, 2012.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
Dated: August 24, 2012. s/ D. Andrew GaonaD. Andrew Gaona
63920-0001.0010/LEGAL24465657.1
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