Fischer v. Cruz et al
MEMORANDUM & ORDER - The Court sua sponte DISMISSES this action without prejudice for lack of standing and Plaintiff's Order to Show Cause (Docket Entry 3) is TERMINATED AS MOOT. The Clerk of the Court is directed to mail a copy of this Memorandum & Order to the pro se Plaintiff and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 4/7/2016. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GREGORY JOHN FISCHER,
-againstRAFAEL EDWARD CRUZ, also known as
TED CRUZ, NYS BOARD OF ELECTIONS, and
SUFFOLK COUNTY BOARD OF ELECTIONS,
MEMORANDUM & ORDER
Gregory John Fischer, pro se
303 Southfield Road
Calverton, NY 11933
Rafael Edward Cruz
NYS Board of Elections
Daniel M. Sullivan, Esq.
Holwell Shuster & Goldberg, LLP
750 Seventh Ave., 26th Fl.
New York, NY 10019
Brian Lee Quail, Esq.
NYS Board of Elections
40 N. Pearl Street, Floor 5
Albany, NY 12207
Ralph Pernick, Esq.
New York State Attorney General
200 Old Country Road, Suite 240
Mineola, NY 11501
Suffolk County Board
Leonard G. Kapsalis, Esq.
Suffolk County Department of Law
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Pro se plaintiff Gregory John Fischer (“Plaintiff”)
commenced this action against defendants Rafael Edward (“Ted”)
Cruz (“Senator Cruz”), the New York State Board of Elections, and
the Suffolk County Board of Elections (collectively, “Defendants”)
“ineligible and disqualified to run/seek the Office of President
of the United States of America”; (2) a “more precise definition”
of the phrase “natural born citizen” as it appears in Article II,
Section 1, of the United States Constitution; and (3) an award of
costs, expenses, and attorneys’ fees. (See Compl., Docket Entry 1,
President must be a “natural born citizen.”
§ 1, cl. 5.
U.S. CONST. art. II,
Plaintiff alleges that Senator Cruz, who seeks to be
election, is not eligible to serve as president because he was
born in Canada and is not a “natural born citizen.” (Compl. ¶¶ 1315.)
Presently pending before the Court is Plaintiff’s Order to
Show Cause seeking a temporary restraining order and preliminary
injunction enjoining Defendants from placing Senator Cruz “on the
ballot for the public office of President of the United States of
America” during the pendency of this action.
Entry 3, at 1.)
(Pl.’s Mot., Docket
The New York State Board of Elections has opposed
Plaintiff’s motion and alleges that Plaintiff lacks standing and
The page numbers are those generated by the Electronic Case
is otherwise unable to satisfy the standards for a temporary
restraining order or preliminary injunction.
(Def.’s Ltr., Docket
Plaintiff’s motion as moot.
Standing is a jurisdictional question that concerns “the
power of the court to entertain the suit.”
Warth v. Seldin,
422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975).
“Because the standing issue goes to this Court’s subject matter
jurisdiction, it can be raised sua sponte.”
Plante v. Dake,
621 F. App’x 67, 69 (2d Cir. 2015) (internal quotation marks and
See also FED. R. CIV. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”).
To establish standing under Article III, a plaintiff
(1) [T]hat he suffered an injury-in-fact--an
invasion of a legally protected interest which
is (a) concrete and particularized . . . and
(b) actual or imminent, not conjectural or
hypothetical; (2) that there was a causal
connection between the injury and the conduct
complained of; and (3) that it is likely, as
opposed to merely speculative, that the injury
will be redressed by a favorable decision.
Carver v. City of N.Y., 621 F.3d 221, 225 (2d Cir. 2010) (ellipsis
in original) (internal quotation marks and citation omitted).
plaintiff suffers an injury-in-fact when he is injured in a
“personal and individual way.”
Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 n.1, 112 S. Ct. 2130, 2136 n.1, 119 L. Ed. 2d
ineligibility to run for president based on his birthplace of
See Wagner v. Cruz, No. 16-CV-055, 2016 WL 1089245 (D.
Utah Mar. 18, 2016), appeal filed, No. 16-4044 (10th Cir. Mar. 31,
2016); Librace v. Martin, No. 16-CV-0057 (E.D. Ark. Feb. 29, 2016)
(unreported)2; Booth v. Cruz, No. 15-CV-0518, 2016 WL 403153
(D.N.H. Jan. 20, 2016), report and recommendation adopted, 2016 WL
409698 (D.N.H. Feb. 2, 2016).
In each instance, the action was
dismissed for lack of standing.
The Wagner Court held that the plaintiff failed to
establish an injury in fact.
Wagner, 2016 WL 1089245, at *2.
particularized harm resulting from Senator Cruz’s campaign,” and
solely relied on his status as a citizen and registered voter.
Id. at *3 (Noting that “it is not enough for an individual to bring
a lawsuit based on his status as a ‘citizen’ or a ‘taxpayer.’”)
The Librace decision can be found at Docket Entry 9-1.
plaintiff’s alleged harms of Senator Cruz “potentially skew[ing]”
election results and “potentially . . . unlawfully serving as
President” were speculative rather than “actual and imminent.”
Id. (internal quotation marks and citation omitted).
the Librace Court held that the plaintiff’s claims regarding
Senator Cruz’s ineligibility were “not concrete and particularized
Librace, at 3 (noting that courts have consistently
held that voters are not afforded standing to file suit based on
the “birther” argument) (collecting cases).
The Booth Court also
plaintiff’s argument that Senator Cruz’s presence on the New
Hampshire Republican Primary ballot impeded his right to vote.
Booth, 2016 WL 403153, at *2.
The court held that Senator Cruz’s
inclusion on the ballot did not affect the plaintiff’s ability to
vote for the candidate of his choice and noted that “an individual
voter challenging the eligibility of a candidate for President
lacks standing to assert a claim based on the general interests of
the voting public.”
The Librace plaintiff also alleged that Senator Marco Rubio
similarly failed to satisfy the Constitution’s “natural born
citizen” requirement. Librace, at 1.
Here, Plaintiff “asserts his standing as a voter and
Presidential Candidate in the US general election in November
(Compl. ¶ 18; see also Pl.’s Br., Docket Entry 3-2, at 5
(alleging that if Senator Cruz is included on the ballot, “the
Plaintiff will (or may) suffer irreparable harm and an illegitimate
candidate would gain some unjust enrichment”).)
Even when the pro
se Complaint is “liberally construed,” Erickson v. Pardus, 551
U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007)
concurs with its sister courts that Plaintiff’s allegation that
Senator Cruz’s presence on the ballot will somehow damage his
rights as a voter does not constitute a sufficiently particularized
injury to establish standing under Article III.
Indeed, like the
plaintiff in Librace, Plaintiff shares this alleged injury with
every other voter in the State of New York.
See Lujan, 504 U.S.
at 573-74 (“[A] plaintiff raising only a generally available
grievance about government . . . and seeking relief that no more
directly and tangibly benefits him than it does the public at
large--does not state an Article III case or controversy.”); Crist
v. Comm’n on Presidential Debates, 262 F.3d 193, 195 (2d Cir. 2001)
(Concurring with other Circuit Courts that “a voter fails to
present an injury-in-fact when the alleged harm is abstract and
widely shared or is only derivative of a harm experienced by a
because his preferred candidate “may be forced to end his campaign”
(Pl.’s Aff., Docket Entry 3-3, at 2.)
notion that Senator Cruz may “siphon[ ]” votes away from other,
eligible candidates is also too speculative to establish standing.
2011 WL 4527327, at *5 (W.D.N.Y. Sept. 27, 2011) (Dismissing the
plaintiffs’ challenge to the inclusion of a candidate on absentee
ballots and holding that “[a]ny claimed injury based on the alleged
siphoning of other people’s votes away from [the plaintiffs’
desired candidate] is too attenuated to provide the basis for
(D.N.H. 2008) (“[V]oters have no standing to complain about the
participation of an ineligible candidate in an election, even if
candidate they prefer.”).
Moreover, Senator Cruz’s inclusion on
the ballot does not affect Plaintiff’s ability to vote for his
See Booth, 2016 WL 403153, at *2 (“[N]othing
in the complaint suggests that Sen. Cruz’s presence on the ballot
creates any such hindrance as [plaintiff] remains free to vote for
whichever candidate he chooses, decline to vote for Sen. Cruz or
any other individual on the ballot, or write in a candidate of his
(Pl.’s Br. at 2-5.)
Generally, taxpayer status “is insufficient
to confer . . . standing to bring a lawsuit seeking to hold a
government action or a statute unconstitutional in the absence of
an articulable injury-in-fact that is distinct from the injury
suffered by all such citizens or taxpayers.”
Schulz v. U.S. Fed.
Reserve Sys., 370 F. App’x 201, 202 (2d Cir. 2010).
Flast, the Supreme Court set forth an exception to this general
“(1) ‘establish a logical link between that status and the type of
legislative enactment attacked’ and (2) ‘establish a nexus between
Heghmann v. Sebelius, No. 09-CV-5880,
2010 WL 2643301, at *4 (S.D.N.Y. May 13, 2010) (quoting Flast, 392
U.S. at 102-103, 105-106).
Nevertheless, the Supreme Court has
Id. at *4 (citing DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 347, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006); Hein v.
Freedom From Religion Foundation, Inc., 551 U.S. 587, 609-10, 127
S. Ct. 2553, 2568-69, 168 L. Ed. 424 (2007) (internal quotation
While Plaintiff alleges that “this matter has an
Establishment Clause edge to it because it raises complex voting
rights questions,” (Pl.’s Br. at 5) the Court finds that this
action to effectively remove Senator Cruz from the ballot is not
analogous to actions asserting violations of the guarantee that
U.S. CONST. amend. I.
Putting aside the absence of any Establishment Clause
challenge, Plaintiff’s previously noted “generalized grievance”
fails to establish a link between a federal spending provision and
the Constitution’s “natural born citizen” requirement.
v. Obama, 664 F.3d 774 (9th Cir. 2011) (Holding that plaintiffs
did not establish taxpayer standing because they only asserted a
“generalized grievance” and failed to show a “nexus between the
constitutional requirement that the President be a natural born
citizen and any challenged spending provision or action.”).
affording the pro se Complaint its most liberal reading, the
directly attributable to each and every individual candidate that
appears on a Federal ballot or even seeks to appear on a Federal
ballot . . . [and] any ‘fraudulent’ or otherwise ineligible
candidate causes the waste and squandering of US Taxpayer monies”
does not suffice to demonstrate the requisite nexus for taxpayer
Accordingly, the Flast exception is not
applicable to this matter.
distinguishable from similar lawsuits filed across the nation
based on his status as “an endorsed 2016 NYS Senate Candidate, and
also an elected party official as a matter of public record.”4
Plaintiff’s failure include this unsupported assertion in the
Complaint, Plaintiff’s alleged status as a 2016 state senate
candidate and/or political party official does not create a basis
for standing in this action.
Several Circuit Courts, including the Second Circuit,
have recognized the principle of “competitor” or “competitive”
See Radford, 2011 WL 4527317, at *4 (collecting cases);
Drake, 664 F.3d at 782-83 (collecting cases; citing Schulz v.
Williams, 44 F.3d 48 (2d Cir. 1994)).
Indeed, “a candidate or his
political party has standing to challenge the inclusion of an
allegedly ineligible rival on the ballot, on the theory that doing
so hurts the candidate’s or party’s own chances of prevailing in
Hollander, 566 F. Supp. 2d at 68.
Plaintiff is not a candidate seeking to challenge the inclusion of
Plaintiff has not specified which political party he is
allegedly an elected official of, nor has he filed this action
in his capacity as an official of a political party.
a rival on the ballot. While Plaintiff and Senator Cruz may appear
on the same ballot, Plaintiff is, by his own account, running for
a different political office than Senator Cruz.
The Court finds
Plaintiff’s chances of prevailing in the state senate race.
Hollander, 566 F. Supp. 2d at 68 (Noting that competitive standing
has not been extended to a voter’s challenge to a candidate’s
competitor standing as he cannot “claim that [he] would be injured
by the potential loss of an election.”
Drake, 664 F.3d at 784
(internal quotation marks and citation omitted).
Cf. Gottlieb v.
Fed. Election Comm’n, 143 F.3d 618, 620-21 (D.C. Cir. 1998)
(Holding that the Political Action Committee (“PAC”) was not
campaign’s receipt of federal matching funds because “[the PAC]
was never in a position to receive matching funds itself.”).
Parenthetically, Plaintiff’s allegation that a “nationally known
Presidential Candidate” is seeking to join this lawsuit is highly
speculative and has no relevance to Plaintiff’s standing.
Reply at 2.)
Accordingly, the Court sua sponte DISMISSES this action
without prejudice and Plaintiff’s motion is TERMINATED AS MOOT.
See Wells Fargo Bank, N.A. v. Ullah, 13-CV-0485, 2014 WL 2117243,
at *3 (S.D.N.Y. May 21, 2014) (“Dismissals for lack of standing
are dismissals without prejudice because standing may ebb and
See also N.Y. Bankers Ass’n, Inc. v. City of N.Y.,
No. 13-CV-7212, 2014 WL 4435427, at *14, n.12 (S.D.N.Y. Sept. 9,
2014) (“[H]aving determined that Plaintiff lacks standing pursuant
to Rule 12(h)(3) of the Federal Rules of Civil Procedure, the Court
must sua sponte dismiss the Complaint as to the City.) (collecting
prejudice for lack of standing and Plaintiff’s Order to Show Cause
(Docket Entry 3) is TERMINATED AS MOOT.
The Clerk of the Court is
directed to mail a copy of this Memorandum & Order to the pro se
Plaintiff and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
7 , 2016
Central Islip, New York
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