SIBLEY v. ALEXANDER et al

Filing 24

MEMORANDUM OPINION. Signed by Judge John D. Bates on 1/8/2013. (lcjdb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MONTGOMERY BLAIR SIBLEY,
Plaintiff
v.

Civil Action No. 12-cv-1984 (JDB)

YVETTE ALEXANDER, et al.
Defendants.
MEMORANDUM OPINION
Plaintiff Sibley has returned to this Court with yet another case challenging President
Obama's eligibility to hold office. The case was filed in the Superior Court of the District of
Columbia, where Sibley sought to enjoin defendants from casting their votes as electors for
President Obama. Although a hearing was held on the preliminary injunction motion by the
Superior Court, the action was subsequently removed to this Court while the motion was taken
under advisement. Currently before the Court is that motion, several pending motions filed by
Sibley, and motions by defendants to dismiss, to stay all discovery, or, in the alternative, to
quash the various subpoenas, and for sanctions. For the reasons explained below, the Court will
grant defendants' motion to dismiss the complaint for lack of jurisdiction, deny Sibley's motion
for a preliminary injunction, and remand the case to the Superior Court of the District of
Columbia.
BACKGROUND
This case is similar to other ones brought by Sibley. See Sibley v. Obama, Civ. Action
No. 12-0001 (D.D.C. 2012); Sibley v. Obama, Civ. Action No. 12-1832 (D.D.C. 2012). In those

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actions, the Court rejected Sibley’s various challenges to President Obama’s eligibility to hold
the office of President. See Sibley v. Obama, 866 F. Supp. 2d 17, 19, 23 (D.D.C. 2012); Sibley v.
Obama, Civ. Action No. 12-1382, 2012 WL 6625813, at *1-2 (D.D.C. Dec. 19, 2012). While
slightly different, the current action is cut from the same cloth as his previous actions. Sibley
seeks to enjoin defendants Yvette Alexander, Don R. Dinan, and William Lightfoot from casting
their electoral votes for President Obama because "he is ineligible to hold the office of President
of the United States." Sibley also seeks "a declaratory judgment that Defendants as electors
cannot cast their Twelfth Amendment votes for . . . Obama . . . as he is not a 'natural born citizen'
. . . ." Compl. at 1-2. The Superior Court held a hearing on Sibley's motion for a preliminary
injunction and took the matter under advisement. Before the Superior Court issued a decision,
the case was removed to this Court. Sibley then filed several motions for an order to show cause
[ECF Nos. 5, 11, 16]; to remand the matter to Superior Court [ECF No. 6]; and for expedited
relief and discovery [ECF Nos. 7, 12]. Defendants have moved to dismiss on standing and
mootness grounds, as well as on the merits, and have also sought to stay discovery or
alternatively to quash the subpoenas, and for sanctions.
STANDARD OF REVIEW
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over
the subject matter or for failure to state a cause of action, the allegations of the complaint should
be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given
every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S.
at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the

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Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences
that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm’n,
456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), a court has an affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority. Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). "[A] court must dismiss a case when it lacks
subject matter jurisdiction." Randolph v. ING Life Ins. & Annuity Co., 486 F. Supp. 2d 1, 4
(D.D.C. 2007). '"[P]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in
resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim."
Grand Lodge, 185 F. Supp. 2d at 13-14 (omission in original) (quoting 5A Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Moreover, "[a] court
may appropriately dispose of a case under 12(b)(1) for standing," Randolph, 486 F. Supp. 2d at
5, or on mootness grounds, see Comm. in Solidarity with the People of El Salvador v. Sessions,
929 F.2d 742, 744 (D.C. Cir. 1991). A court may consider material other than the allegations of
the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts
the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
n.3 (D.C. Cir. 1997); Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
ANALYSIS
A.

Standing
"Because Article III limits the constitutional role of the federal judiciary to resolving

cases and controversies, a showing of standing 'is an essential and unchanging' predicate to any
exercise of our jurisdiction." Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir.

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2011) (citing and quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en
banc), and Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The "constitutional
minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3)
redressability." Ass'n of Flight Attendants–CWA v. U.S. Dep't of Transp., 564 F.3d 462, 464
(D.C. Cir. 2009) (quoting Lujan, 504 U.S. at 560–61 (quotation marks omitted)). Put another
way, a plaintiff must establish: (1) that he suffered an "injury in fact", (2) that the injury is "fairly
traceable" to the challenged action, and (3) that it is "likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision." Grocery Mfrs. Ass'n v. EPA, 693 F.3d
169, 174 (D.C. Cir. 2012) (citing and quoting Lujan, 504 U.S. at 560). "The party seeking to
invoke the jurisdiction of the federal court 'bears the burden of establishing these elements.'" Id.
(citing Lujan, 504 U.S. at 561).
Here, Sibley has suffered no injury in fact. The injury must be "concrete and
particularized" and "actual or imminent." In re Navy Chaplaincy, 697 F.3d 1171, 1175 (D.C.
Cir. 2012) (citing Lujan, 504 U.S. at 560-61). Moreover, where plaintiffs seek "'forward-looking
injunctive . . . relief, past injuries alone are insufficient to establish standing.'" Id. (quoting NB
ex rel. Peacock v. District of Columbia, 682 F.3d 77, 82 (D.C. Cir. 2012)). Instead, a plaintiff
must demonstrate "an imminent threat of future injury." Id. (citing City of Los Angeles v. Lyons,
461 U.S. 95, 101 (1983)). This latest attempt by Sibley to challenge the eligibility of President
Obama to hold office, as with his previous efforts and those of others, fails because he has not
shown any injury, much less a concrete or particularized one. See, e.g., Sibley, 866 F. Supp. 2d
at 20; Sibley, 2012 WL 6625813, at *1-2; see also Kerchner v. Obama, 612 F.3d 204, 207 (3d
Cir. 2010); Berg v. Obama, 586 F.3d 234, 238-39 (3d Cir. 2009); Taitz v. Obama, 707 F. Supp.
2d 1, 3 (D.D.C. 2010). Sibley claims he has standing as a registered voter in the District of

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Columbia or, alternatively, as a write-in candidate for the 2012 presidential election. He states
he "is in danger of suffering irreparable harm if the Defendants are forced and/or choose to cast
their Twelfth Amendment votes for an ineligible President as they thereby cannot vote for
Plaintiff for President." Compl. ¶ 26. But Sibley's status as a voter, standing alone, is
insufficient to confer standing. See, e.g., La Botz v. FEC, --- F. Supp. 2d ----, 2012 WL
3834865, at *3 (D.D.C. 2012) ("[V]oters cannot assert standing based on their generalized
interest in fair elections."); Warth v. Seiden, 422 U.S. 490, 499 (1975) ("[W]hen the asserted
harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of
citizens, that harm alone normally does not warrant exercise of jurisdiction."). And, as this
Court and other courts, including the D.C. Circuit, have previously explained, Sibley's status as a
write-in candidate is insufficient to confer standing because there is no evidence, nor authority,
that Sibley points to which would indicate that the electors would otherwise have cast their votes
for him. See Order at 1, Sibley v. Obama, App. No. 12-5198 (D.C. Cir. Dec. 6, 2012) (internal
citations and quotations omitted).
Nor can Sibley demonstrate that his purported injury is "fairly traceable" to the
defendants' conduct. See Urban Health Care Coalition v. Sebelius, 853 F. Supp. 2d 101, 105
(D.D.C. 2012) (quoting Humane Soc'y of U.S. v. Babbitt, 46 F.3d 93, 100 (D.C. Cir. 1995).
Sibley's complaint makes it abundantly clear that his challenge (as with his prior unsuccessful
attempts) is to the eligibility of President Obama to hold office for another term. Any claimed
injury arising out of President Obama's re-election is not fairly traceable to the casting of
defendants' mere three electoral votes for President Obama out of the 538 total votes available,
the 270 needed to elect President Obama, or the 332 votes that were cast for President Obama

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and verified.1 Relatedly, as defendants observe, even if the Court granted the requested relief,
Sibley would still fail to satisfy the redressibility element because enjoining defendants from
casting the District of Columbia's three electoral votes would not change the outcome of the
election.2 See Def.'s Mot. to Dismiss at 13; see also Newdow v. Roberts, 603 F.3d 1002, 1011
(D.C. Cir. 2010); Wilderness Soc'y v. Norton, 434 F.3d 584, 590 (D.C. Cir. 2006)); Babbitt, 46
F.3d at 100 (noting that redressibility inquiry often "melds into that of causation" and where a
challenged action is not "fairly traceable" to the claimed injury, there is "no possibility" that the
injury could be redressed through a favorable decision by the court) (internal quotations and
citations omitted). For all these reasons, Sibley's action must be dismissed for lack of standing.
B.

Mootness
Sibley's claims are also now moot. He sought to enjoin the electors from casting their

ballots, which has already occurred. See Newdow, 603 F.3d at 1008 (finding challenge to
religious elements in the 2009 inauguration ceremony moot after the inauguration occurred and
the prayers and oath were already spoken). "[T]his court has no power to alter the past." Herron
for Congress v. FEC, --- F. Supp. 2d ----, 2012 WL 5451811, at *3 (D.D.C. 2012). Sibley argues
that his claims are "capable or repetition, yet evading review" and hence survive dismissal on
mootness grounds. Pl.'s Response to Defs.' Mot. to Dismiss & Reply to Defs.' Omnibus
Response at 1-2 ("Pl.'s Response"). But Sibley cannot make the requisite showing of "'a

See "Congress Verifies: Obama, Biden Win Electoral College Vote," Reuters, Jan. 4, 2013,
http://www.reuters.com/article/2013/01/04/us-usa-congress-electoral-idUSBRE9030QP2013010
4.

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Sibley also makes "class action allegations," seemingly against defendants as "proper
representatives of a Class" which, according to Sibley, "consists of 538 persons – the total
number of electors . . . ." Compl. ¶¶ 6-12. However, Sibley has not alleged, nor can he
demonstrate, that any of these votes would have been cast for him.
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reasonable expectation' or a 'demonstrated probability' that 'the same controversy will recur
involving the same complaining party.'" Herron, 2012 WL 5451811 at *3 (citing and quoting
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)). Sibley merely claims that "it is a
reasonable expectation that he will be subjected once again in four years to Congressional
control of Electors whose vote is pre-ordained and made for ineligible candidates." Pl.'s
Response at 2. But these contentions are too vague, conjectural, and speculative. "When a claim
rests entirely on an unlikely chain of hypothetical occurrences, the court must conclude that the
controversy is not likely to reappear." Herron, 2012 WL 5451811 at *4. Accordingly, Sibley's
claims seeking injunctive and declaratory relief are moot.3
C.

Preliminary Injunction
Because Sibley lacks standing to bring his complaint and his claims are moot, his motion

for a preliminary injunction must be denied. See, e.g., Taitz v. Obama, 707 F. Supp. 2d 1, 4 n.2
(D.D.C. 2010) (denying preliminary injunction after concluding petitioner lacked standing to
pursue her quo warranto action against President Obama to determine his eligibility for office).
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008); see also Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). “A
plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the
merits,[2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Although Sibley seeks to amend his complaint to add new claims, inter alia, to prevent the
electoral votes cast by the District of Columbia from being counted, such an amendment would
be futile, and would not cure the other jurisdictional defects in this action, i.e., Sibley's lack of
standing. Moreover, because the votes have already been counted, these claims in the amended
complaint remain moot. Accordingly, his motion to amend the complaint will be denied.

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Winter, 555 U.S. at 20.
Sibley fails to establish any of these requirements here. As explained above, it is
inconceivable that he could succeed on the merits of his case because he lacks standing to bring
his complaint and because his claims are moot. And since Sibley has failed to demonstrate an
injury in fact sufficient to establish standing, he has also failed to demonstrate irreparable harm
warranting a preliminary injunction. See, e.g., Air Transport Ass'n of Am. v. Export-Import
Bank of the U.S., --- F. Supp. 2d ----, 2012 WL 2914442, at *14 (D.D.C. 2012) ("The
irreparable-harm standard requires a more significant showing than the injury-in-fact standard.");
In re Navy Chaplaincy, 534 F.3d 756, 766 (D.C. Cir. 2008) ("[T]o show irreparable harm '[a]
plaintiff must do more than merely allege . . . harm sufficient to establish standing.'") (quoting
Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410 (9th Cir.
1991)). The balance of equities and the public interest tip decidedly against Sibley because, as
defendants point out, "an injunction would substantially injure . . . the public's interest in an
orderly election process." Defs.' Mot. to Dismiss at 15; see also Hubbard v. United States, 496
F. Supp. 2d 194, 203 (D.D.C. 2007) ("'It is in the public interest to deny injunctive relief when
the relief is not likely deserved under law."') (quoting and citing Qualls v. Rumsfeld, 357 F.
Supp. 2d 274, 287 (D.D.C. 2005)).
D.

Remand
Because the Court concludes that Sibley's action must fail on standing and mootness

grounds, it need not pass on the merits of the issues, or on Sibley's various motions seeking
orders to show cause to expedite discovery. In any event, those motions are likely to be moot
since it appears that Sibley would not be able to satisfy any of the standing requirements in the
District of Columbia courts as well. See, e.g., Friends of Tilden Park, Inc. v. District of

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Columbia, 806 A.2d 1201, 1206-7 (D.C. 2002). Although there may be some futility in
remanding this case, the D.C. Circuit does not appear to have adopted a futility exception to the
remand requirement of 28 U.S.C. § 1447(c). Indeed, in Randolph v. ING Life Ins. & Annuity
Co., 486 F. Supp. 2d 1, 10 (D.D.C. 2007), the district court, in considering the issue, observed
that caselaw in this circuit suggests that there is no futility exception to remand, and that the
plain language of section 1447(c) requires remand once a federal court concludes that it lacks
subject matter jurisdiction over an action. See id. (citing Rep. of Venezuela v. Philip Morris
Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) ("When it appears that a district court lacks subject
matter jurisdiction over a case that has been removed from a state court, the district court must
remand the case."); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.") (emphasis
added).4 Other courts in this jurisdiction have also noted the mandatory nature of the directive in
section 1447(c). See, e.g., J.S.R. v. Wash. Hosp. Ctr., 667 F. Supp. 2d 83, 85 (D.D.C. 2009);
Queen v. Schmidt, Civ. Action No. 10-2017, 2011 WL 4101117, at * 1-2 (D.D.C. Sept. 14,
2011). Accordingly, the Court having concluded that there is no subject matter jurisdiction in
this Court, the case will be dismissed and remanded to the Superior Court of the District of

This result is not altered by the D.C. Circuit's opinion in Shaw v. Marriott Int'l, Inc., 605 F.3d
1039, 1044 (D.C. Cir. 2010), which discussed the Supreme Court's decision in Wisconsin Dep't
of Corrs. v. Schacht, 524 U.S. 381 (1998), holding that § 1447(c) did not require a district court
to relinquish its removal jurisdiction over a case with multiple claims simply because it lacked
subject matter jurisdiction over one of the claims. In Shaw, some (but not all) of the plaintiffs
lacked standing to bring their claims; therefore, the D.C. Circuit concluded that remand of the
entire case to state court was not required because jurisdiction was not lacking over the entire
case. Id. at 1044. Here, Sibley seeks injunctive and declaratory relief related to the purportedly
illegitimate casting of electoral votes for President Obama in the District of Columbia. Sibley's
other motions are related to the pursuit of that claim. Hence, the entirety of Sibley's action
cannot be maintained in this Court because the claim is moot and Sibley lacks standing, and
remand of the entire case is therefore appropriate.

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Columbia.5
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss the action for lack of subject
matter jurisdiction will be granted, the motion for a preliminary injunction will be denied, and
the case will be remanded to the Superior Court of the District of Columbia. A separate order
accompanies this memorandum opinion.

SO ORDERED.
/s/

JOHN D. BATES
United States District Judge
Dated: January 8, 2013

As defendants themselves observe, the numerous discovery-related motions filed by Sibley and
the motion to stay discovery, need not be resolved by this Court in light of the determination that
jurisdiction over the action is lacking. Moreover, in light of the remand to Superior Court, the
Court will not address the defendants' motion for sanctions. Finally, Sibley has moved for "an
order disqualifying the Honorable John D. Bates from further involvement in this matter."
Because the Court has determined that it lacks jurisdiction over Sibley's claims, that motion is
essentially moot and will therefore be denied. In any event, there is no merit to that motion.
Sibley claims that the Court is biased by focusing on the Court's prior rulings in a different case
involving Sibley, because it failed to provide him with a hearing and to rule on his motion for
remand, and because it refused to allow Sibley's "prompt presentation of evidence of Obama's
criminal behavior to the Grand Jury." Pl.'s Mot. to Disqualify at 4-5. A judge's rulings in cases
are not a proper ground for a recusal motion. See Liteky v. United States, 510 U.S. 540, 555
(1994). Moreover, these actions cited by Sibley do not suggest that "any reasonable and
informed observer" would question this Cou rt's impartiality, as Sibley is required to show under
28 U.S.C. § 455. See, e.g. SEC v. Loving Spirit Found., 392 F.3d 486, 493-94 (D.C. Cir. 2004).
In addition, Sibley fails to provide the requisite affidavit pursuant to 28 U.S.C. § 144.

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