People of the United States of America v. Trump et al
Filing
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ORDER DISMISSING COMPLAINT. Signed by Judge James Donato on 2/1/2017. (jdlc2S, COURT STAFF) (Filed on 2/1/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PEOPLE OF THE UNITED STATES OF
AMERICA, et al.,
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United States District Court
Northern District of California
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Plaintiffs,
Case No. 17-cv-00451-JD
ORDER DISMISSING COMPLAINT
v.
DONALD J. TRUMP, et al.,
Defendants.
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Attorney Andrew W. Shalaby filed this case on behalf of plaintiffs, “the People of the
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United States of America and the State of California,” to enjoin and invalidate as unconstitutional
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an executive order issued by President Donald Trump on January 27, 2017 for “Protecting the
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Nation from Foreign Terrorist Entry into the United States.” Dkt. No. 1. Shalaby also filed an
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application to proceed in forma pauperis (“IFP”), which is pending before the Court. Dkt. No. 4.
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Because the complaint makes clear that federal subject matter jurisdiction is lacking here, the
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Court dismisses it without prejudice under Federal Rule of Civil Procedure 12(h)(3) and 28 U.S.C.
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§ 1915(e)(2)(B), and denies the IFP application as moot.
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BACKGROUND
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The challenged executive order suspends immigrant and non-immigrant entry into the
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United States of all aliens from certain designated countries, and also suspends the U.S. Refugee
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Admissions Program. See Dkt. No. 1-1 (the “Order”). Shalaby filed the complaint the day after
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the Order was signed “for the protection of all persons in the United States in their civil rights and
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for their vindication pursuant to . . . 42 U.S.C. § 1988.” Dkt. No. 1 ¶ 1. It alleges two claims.
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Injunctive relief is sought on the basis that the Order “violates the separation of powers doctrine
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without statutory exception,” will “damage U.S. reputation,” and was issued without statutory or
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other authority. Id. ¶¶ 4-6. The complaint also asks the Court to strike the Order as an
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“unconstitutional infringement on [the] Establishment Clause.” Id. ¶ 7.
DISCUSSION
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A fundamental rule of federal practice is that the Court “must dismiss” an action if it
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“determines at any time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3); see also
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Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil Procedure
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12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at
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any time during the pendency of the action”). In addition, a complaint filed by a civil plaintiff
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seeking to proceed in forma pauperis is subject to sua sponte screening and dismissal if the
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complaint is frivolous or fails to state a claim upon which relief may be granted. 28 U.S.C.
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United States District Court
Northern District of California
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§ 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th. Cir. 2001); Lopez v. Smith, 203 F.3d
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1122, 1126-27 (9th Cir. 2000).
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The complaint fails to establish that the Court has subject matter jurisdiction over this case.
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It does not allege a concrete and particularized “injury in fact” caused by the Order, which is a
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core requirement for Article III standing. Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1146-47
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(2013); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It does not even allege a
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specific person who might have sustained an injury in fact, and instead names as plaintiffs “the
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People of the State of California and United States.” Dkt. No. 1 at 1. Article III does not permit
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the Court to ignore the concrete injury requirement and act on a generalized grievance alleged to
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be common to all members of the public. See Lujan, 504 U.S. at 576 (“‘The province of the
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court,’ as Chief Justice Marshall said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed.
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60 (1803), ‘is, solely, to decide on the rights of individuals.’ Vindicating the public interest
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(including the public interest in Government observance of the Constitution and laws) is the
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function of Congress and the Chief Executive.”) (emphasis in original); Drake v. Obama, 664 F.3d
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774, 779 (9th Cir. 2011) (“generalized interest of all citizens in constitutional governance”
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insufficient to establish Article III standing) (internal citations omitted).
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The fact that the complaint invokes 42 U.S.C. § 1988 as the basis for the suit, see Dkt.
No. 1 ¶ 1, makes no difference on the question of standing. Section 1988 does not create an
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independent federal cause of action for the violation of federal civil rights, let alone carve out an
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exception to the standing requirement under Article III of the Constitution. Moor v. County of
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Alameda, 411 U.S. 693, 702-04 (1973); see also Drake, 664 F.3d at 785 n.5 (Ҥ 1988 does not
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create an independent cause of action for the violation of federal civil rights, but ‘instructs federal
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courts as to what law to apply in causes of actions arising under federal civil rights acts’”).
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CONCLUSION
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Consequently, the complaint is dismissed without prejudice for lack of subject matter
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jurisdiction, and the IFP application is denied as moot. Although the Court has doubts that any
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amendment could cure the standing problem inherent in the complaint in its present form, Shalaby
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will have an opportunity to amend, in a manner consistent with this order, by February 15, 2017.
United States District Court
Northern District of California
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IT IS SO ORDERED.
Dated: February 1, 2017
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JAMES DONATO
United States District Judge
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