Bird v. Brown et al

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/16/2018 RECOMMENDING that Defendants/respondents' 10 motion to dismiss be granted; action be dismissed for lack of jurisdiction; and the Clerk of the Court be directed to enter judgment; Referred to Judge Morrison C. England, Jr.; Objections due within 14 days after being served with these F & R's. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD M. BIRD, et al.,

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Plaintiffs,

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No. 2:18-cv-0974-MCE-CMK

vs.

FINDINGS AND RECOMMENDATION

BROWN, et al.,

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Defendants.

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Plaintiffs/petitioners, proceeding pro se, brings this civil action. Pending before

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the court is defendants’/respondents’ motion to dismiss (Doc. 10). Plaintiffs/petitioners filed an

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opposition to the motion (which they termed a motion to negate) (Doc. 13), and

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defendants/respondents filed a reply. A hearing on the motion to dismiss was held on August 15,

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2018, before the undersigned in Redding, California. Deputy Attorney General Nelson R.

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Richards appeared on behalf of defendants/respondents. There was no appearance by

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plaintiffs/petitioners or anyone on their behalf.

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I. BACKGROUND

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Plaintiffs/petitioners1 filed this action against California Governor Jerry Brown

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and California Attorney Xavier Becerra. Docketed as a Civil Rights action, the complaint filed is

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a petition for writ of mandamus. Petitioners seek to force the respondents to abide by their oath

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and “be ordered to support, defend and adhere to the United States Constitution . . . .”

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There are limited facts alleged in the petition. It appears the petitioners are

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attempting to force the respondents to enforce immigration laws. However, it is unclear what

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immigration laws the petitioners are referring to, or how the respondents are not abiding by their

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oath. From the responding papers, it also appears petitioners are referring to an old case Mr. Bird

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filed against Home Depot regarding the treatment of veterans in the store. It appears Mr. Bird

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may have filed grievances and requests for the Attorney General to investigate his allegations

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against Home Depot, and Mr. Bird was not satisfied with the Attorney General’s response to his

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requests.

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II. MOTIONS TO DISMISS

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Respondents brings this motion to dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(1) on the grounds that the court lacks jurisdiction over this matter because

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petitioners lack standing and because the petition raises a non-justiciable political question.

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In the response to the motion, petitioners seem to argue that they are not required

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to have standing because that term was not commonly used until the middle of the 19th century.

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In addition, they demand their issues be heard, including whether the oath taken by the Attorney

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General was the entire oath, the Attorney General has a duty to investigate all complaints, and the

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veracity of the Attorney General. They do not, however, actually address either the lack of

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jurisdiction or the justiciablity of a political question case.

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The undersigned will herein refer to the defendants/respondents as respondents
and plaintiffs/petitioners as petitioners as the original pleading in this matter is a petition for writ
of mandamus.
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Federal courts are courts of limited jurisdiction. That limited jurisdiction includes

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cases involving diversity of citizenship, a federal question, or to which the United States is a

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party. It is presumed that federal courts are without jurisdiction over civil actions “and the

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burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.

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Guardian Life Ins. Co, 511 U.S. 375, 376 (1994) (citing McNutt v. Gen. Motors Acceptance

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Corp., 298 U.S. 178, 182-83 (1936)). Jurisdiction must generally be determined prior to a federal

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court considering a case on its merits. See United States v. Larson, 302 F.3d 1016, 1019 (9th

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Cir. 2002) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).

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The federal courts’ authority to issue extraordinary writs, including writs of

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mandamus, derives from the All Writs Act, 28 U.S.C. § 1651(a). Under 28 U.S.C. § 1651(a), all

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federal courts may issue writs “in aid of their respective jurisdictions . . . .” In addition, the

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district court has original jurisdiction under 28 U.S.C. § 1361 to issue writs of mandamus. That

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jurisdiction is limited, however, to writs of mandamus to “compel an officer or employee of the

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United States or any agency thereof to perform a duty. . .” 28 U.S.C. § 1361 (emphasis added).

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It is also well-established that, with very few exceptions specifically outlined by Congress, the

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federal court cannot issue a writ of mandamus commanding action by a state or its agencies. See

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e.g. Demos v. U.S. Dist. Court for Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991).

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Here, it is clear that petitioners are requesting this court issue an order to compel a

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state officer to perform a duty. However, this court lacks the jurisdiction to issue such an order.

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This court is limited in its jurisdiction to grant writs of mandamus to compel officers of the

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United States to perform a duty. Petitioners offer no basis for this court to issue similar orders

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compelling state officers.

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In addition, as the respondents argue, cases which raise political issues similar to

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petitioners’ issues as to whether the defendants are violating their oaths of office and failing to

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enforce laws, have been dismissed for lack of jurisdiction. See Baker v. Carr, 369 U.S. 186, 217

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(1962); Sadowski v. Bush, 293 F.Supp.2d 15, 19-20 (D.D.C. 2003). The issues raised in this
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case are similar, and this court lack jurisdiction over these type of political question cases.

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IV. CONCLUSION

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Based on the facts alleged, and the discussion above, this court lacks jurisdiction

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to adjudicate petitioners’ claims.

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Based on the foregoing, the undersigned recommends that:

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Defendants/respondents’ motion to dismiss (Doc. 10) be granted;

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This action be dismissed for lack of jurisdiction; and

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The Clerk of the Court be directed to enter judgment and close this case.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 16, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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