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Saturday, March 07, 2009

They found a plaintiff and it still didn't work

During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds. Heading the charge was a lawyer in Pennsylvania named Philip Berg, who was the named plaintiff in an unsuccessful action in the Eastern District of Pennsylvania that drew a lengthy, careful opinion denying standing. It seems that Berg, along with an Arizona attorney named Lawrence Joyce, have been behind the scenes for other, similarly unsuccessful claims.

One question at the time was how anyone could have standing, given the undifferentiated interests at stake--my argument was no one would have standing. Guess I was wrong.

In a decision last week, Judge Robertson of the District of the District of Columbia held that Gregory Hollister did have standing. Hollister is a former Air Force officer who claims that, because he could be called back to active duty and because he owes a duty of fealty to the Commander-in-Chief, he needs to be certain that Obama is a properly eligible President whose orders must be obeyed. Hollister asked the court to treat this as an interpleader action (an action in which a stakeholder facing multiple competing claims deposits the stake with the court for resolution of the competing claims). The argument was that Hollister's potential military duties to obey orders were a valuable res that could be "deposited" with the court for a determination as to where (or with whom) those duties lay.

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

Three things I liked about the decision. First, although the court found the claim frivolous, it nonetheless found jurisdiction and rejected the claim on the merits, rather than (as too many courts do) holding that frivolousness deprived the court of jurisdiction.

Second, the court issued an order requiring attorney-of-record John D. Hemenway to show cause why he should not be sanctioned under Rule 11 for filing a claim for an improper purpose and for filing a claim not warranted by existing law. Although I generally am not a big fan of Rule 11 sanctioning activity, especially against civil rights and constitutional plaintiffs, at some point courts need to try to deter politically-motivated-but-obviously-legally-defective lawsuits such as this one. I was surprised not to see a move for sanctions against Berg in his initial suit, given that the lack of standing should have been obvious to anyone who has taken Fed Courts. Maybe this will put an end to this nonsense (at least until 2012).

Third, it is notable that the court aimed its sanctions at the Hemenway (a member of the D.D.C. bar), but not at Berg or Joyce. Although both are lawyers and both signed filings in the case, neither was admitted pro hac vice. The court said that "[t]hey are agents provocateurs –- and any attempt to sanction them for misuse of the public and private resources that have had to be devoted to this case would only give them a forum to continue their provocation." In contrast, the court went after the attorney they needed to get into court, thus (hopefully) deterring members of the Bar who would like to keep their reputations from taking on cases such as this. We only can hope.

Posted by Howard Wasserman on March 7, 2009 at 06:50 PM in Civil Procedure, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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Howard, why wouldn't this plaintiff have standing? You mention something in passing about his having an undifferentiated interests, but you don't elaborate, and I don't really see why that would matter in the case of this military plainiff. Indeed, it seems to me that this is the perfect plaintiff for such a suit -- precisely because he is someone who can put himself in the position of a defendant in an enforcement action somewhere down the pike. If he disobeys an order issued by Obama, he'll be subject to a disciplinary proceeding, and the result will turn on his defense that Obama is a Pretender, not the President. In that specific way, he's not like you, me, or the man behind the tree. Am I missing something? Doesn't the outcome of this case necessarily depend, then, on the political question doctrine, rather than standing (i.e., the matter is committed to Congress when it accepts or rejects electoral votes, so even a specifically injured plaintiff can't raise the point)?

Posted by: Fed Courts Prof. | Mar 8, 2009 12:35:20 AM

I didn't say he lacked standing; I said there might be an argument against it (it was a throwaway point and not something I thought all the way through or intended to get into in any detail. But two reasons why it may be an open question: First, I am not sure Hollister is different than any of the how-many-hundreds-of-thousands (or more) current or former military personnel faced with the same concern, making his "harm" held in common with all other personnel. The question then is how many people must share an interest before it becomes undifferentiated--is 250,000 enough? Second, is the duty of a military officer to obey the orders of the CIC greater than the duty of ordinary individuals to obey laws signed by the President? If not, then Hollister's "duty" is undifferentiated from the obligation of everyone to act as if this person is the President, even if he might not be eligible.

Posted by: Howard Wasserman | Mar 8, 2009 1:15:18 AM

I think you're right, Howard. It all depends on how seriously one takes the undifferentiated interest line. To Breyer and company, it doesn't matter how many people share an interest. See Akins v. FEC. To Scalia's crew, that makes all the differences in the world. And reading Justice Kennedy, well, law and palm reading is one interdisciplinary field that hasn't made it to the legal academy yet!

Posted by: Fed Courts Prof. | Mar 8, 2009 7:04:38 PM

"The question then is how many people must share an interest before it becomes undifferentiated--is 250,000 enough? Second, is the duty of a military officer to obey the orders of the CIC greater than the duty of ordinary individuals to obey laws signed by the President?"

The analogy of laws signed by the President and applied to the populace vs. orders given by the President to the military is not a good one, since it doesn't compare the situations of civilians and military officers with respect to presidential authority in a sensible way. The relationships are very different.

In the case of ordinary individuals, there's no expectation that the president (or any other government official) can command them to take an action that puts them obviously in harm's way, even by law.

The mayor of Cleveland, for example, could not command an average 20-year-old citizen to defend him from a gun-wielding attacker (or any attacker), whereas the President routinely gives similar orders to military personnel.

Additionally, even if constitutional protections failed to prevent the enactment of such a law, there's a huge difference in the time factor involved in passing and signing a bill into law and in giving an order.

Posted by: Adrian | Mar 11, 2009 10:50:42 AM

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