FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHIRLEY-ANN LEU; HERBERT LEU, 

Plaintiffs-Appellees, No. 07-35949

v. D.C. No.

INTERNATIONAL BOUNDARY  CV-07-00510-MJP

COMMISSION, et al., OPINION Defendants-Appellants

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

May 5, 2010—Seattle, Washington

Filed May 19, 2010

Before: Cynthia Holcomb Hall, Kim McLane Wardlaw and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

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COUNSEL

J. David Breemer and Brian T. Hodges, Pacific Legal Foundation, Sacramento, California, for the plaintiffs-appellees.

Jill D. Bowman and Kenneth M. Odza, Stoel Rives LLP,

Seattle, Washington; Elliot J. Feldman (argued), Thomas D.

Warren, and Michael S. Snarr, Baker & Hostetler LLP, Washington, DC; Michael D. McKay, McKay Chadwell, PLLC,

Seattle, Washington, for defendant-appellant Dennis

Schornack.

Ronald J. Tenpas, David C. Shilton, and Mary Gabrielle

Sprague (argued), United States Department of Justice, Washington, DC, for defendant-appellant Kyle K. Hipsley. 

OPINION

GOULD, Circuit Judge:

Dennis Schornack appeals the district court’s order denying

cross motions by Schornack and David Bernhardt in which

each sought to have the other’s filings quashed or struck from

the case. The case arose out of a property dispute between

Shirley-Ann and Herbert Leu and the International Boundary

Commission (IBC), an organization tasked with defining,

marking, and maintaining the boundary between the United

States and Canada. The IBC is composed of just two commissioners, one from each country. The Leus brought a takings

LEU v. INTERNATIONAL BOUNDARY COMMISSION 7183
claim against the IBC and the United States Commissioner—

then Schornack—in his official capacity. While this suit was

pending, President George W. Bush, who had appointed

Schornack to the IBC in 2002, by letter explicitly purported

to remove Schornack from his post and to install Bernhardt in

his place. Schornack disagreed that the President could

remove him and sought to quash Bernhardt’s filings in the

district court. Schornack’s legal theory rested on the premise

that the President had no power to fire Schornack or appoint

Bernhardt under the terms of the treaties that created the IBC.

See Treaty Between the United States and Great Britain in

Respect of Boundary Between the United States and Canada,

U.S.-Gr. Brit., Feb. 24, 1925, 44 Stat. 2102; Convention

Between the United States and Great Britain Relating to the

Canadian International Boundary, U.S.-Gr. Brit., Apr. 11,

1908, 35 Stat. 2003. Schornack further argued that the Department of Justice had no business representing the IBC because

the IBC is an international organization and not a United

States agency. Bernhardt correspondingly asked the district

court to strike all of Schornack’s filings that were made

through private counsel. The district court denied the motions

to quash and strike, but held that Schornack had been “effectively removed” from the IBC, citing the President’s powers

under Article II of the Constitution and analyzing the treaties’

language. Schornack appeals that order. The fundamental

underlying question is whether Schornack, who has received

a termination letter from the President, can pursue this appeal

on behalf of the IBC after the President has said he is no longer on that Commission.

Schornack concedes that his argument is in the nature of a

request for declaratory relief. Schornack asks us to hold that

he was not lawfully terminated from his position and that

Bernhardt was not lawfully appointed to replace him. We conclude, however, that we do not have jurisdiction to so hold

because Schornack does not have Article III standing to seek

this relief. See Summers v. Earth Island Inst., 129 S. Ct. 1142,

1149 (2009) (holding that a party seeking relief “bears the

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burden of showing that he has standing for each type of relief

sought”). 

[1] To the extent that Schornack merely seeks to have

President Bush’s action in removing him declared unlawful,

that is “not an acceptable Article III remedy.” See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 106-07 (1998)

(holding that “psychic satisfaction,” seeing “that a wrongdoer

gets his just deserts,” or ensuring that another is “punished for

[his] infractions,” are not cognizable Article III remedies);

Fieger v. Mich. Supreme Court, 553 F.3d 955, 962 (6th Cir.

2009) (“In the context of a declaratory judgment action, allegations of past injury alone are not sufficient to confer standing.”). 

[2] Schornack fares no better if he seeks a declaration that

he was improperly removed along with an order instructing

current Acting Commissioner Kyle K. Hipsley to vacate the

IBC offices and allow Schornack to resume the Commissioner’s duties. Neither the President nor any high-ranking member of the executive branch is a party to this suit. Accordingly,

any judgment entered in this case would not bind executive

officials. See Restatement (Second) of Judgments §§ 34, 62

cmt. a (1982) (“It is a basic principle of law that a person who

is not a party to an action is not bound by the judgment in that

action.”). Where requested relief “depends on the unfettered

choices made by independent actors not before the courts”—

here, the President’s decision to voluntarily bind himself to an

otherwise non-binding judgment—the claim is not redressable

and this court lacks jurisdiction over it. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992). From the early days

of our Republic, the Supreme Court has consistently held that

federal courts are not here to give advisory opinions. See, e.g.,

Cohens v. Virginia, 19 U.S. 264, 399-402 (1821); Flast v.

Cohen, 392 U.S. 83, 96-97 (1968). It is not permissible under

Article III for us to give an essay-like lecture to the executive

branch in a decision that will not bind it because it is not a

party to this litigation. 

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[3] Without filing his own lawsuit, and while expressly

disclaiming that he is seeking to make any personal claim,

Schornack has elected to contest the lawfulness of the President’s attempt to remove him by filing motions in a suit in

which no executive-branch official is a party. Cf. Swan v.

Clinton, 100 F.3d 973, 979-81 (D.C. Cir. 1996) (concluding

that an injunction against the President was unnecessary

where enjoining “subordinate officials . . . could substantially

redress [the plaintiff ’s] injury”). We lack jurisdiction to

review Schornack’s non-redressable claim, whether presented

under the collateral-order doctrine or through a petition for a

writ of mandamus, and all claims here asserted by Schornack

against the executive branch are dismissed. We therefore

vacate the district court’s order and remand with instructions

to grant the motion to strike filed by the Department of Justice

with respect to all filings by Schornack on or after July 10,

2007. We express no view on the merits of the validity of

President Bush’s termination of Schornack’s tenure as Commissioner of the International Boundary Commission. Each of

the three parties shall bear its own costs.

VACATED and REMANDED. 

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