U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T O F C O L U M B I A

MONTG OMERY BLAIR SIBL EY, P laintif

f

v. Civil Action No. 12-cv- 1984 (JDB) YVETTE AL EXANDER, et al. Defendan ts.

MEMORAN DUM OP INION Plaintiff Sibl ey

has re turned to this Court with y et another case challeng ing Pre sident Obama' s elig ibilit y

to hold office. T he ca se wa s filed in the Superior Court of the District of Columbi a, whe re Sibley

soug ht to enjoin defenda nts from ca sting their vote s as elec tors for President Obama . Although a hear ing w as held on the pr eliminary injunction moti on by

the Superior Court, the ac tion was subsequently remove d to this C ourt while the motion was take n under a dvisement. Currently befor e the Court is that motion, severa l pending motions filed by Sibley , and motions by

defe ndants to dismis s, to stay all discovery , or, in the alter native, to quash the va

rious subpoenas, a

nd for sa nctions. For the rea sons expl ained be low, the Court will g rant de fenda

nts' motion to dismis s the complaint for la ck of jurisdiction, deny Sibley ' s motion for a preliminary

injunction, and rema

nd the ca se to the Superior Court of the District of Columbi a. BACK GR OUND This case is simi lar to other one s broug ht by Sibley . See Sibley

v. Obama, Civ. Ac tion No. 12-0001 (D .D.C. 2012); Sibley v. Obama, Civ. Ac tion No. 12-1832 (D.D.C. 2012). I n those

1actions, the Court re jected Sibley ’s var ious challeng es to President Obama’s elig ibilit y to hold the offic e of Pre sident. See Sibley v. Obama, 866 F . Supp. 2d 17, 19, 23 (D.D.C. 2012); Sibley v. Obama, Civ. Ac tion No. 12-1382, 2012 WL 6625813, at *1-2 (D .D.C. Dec . 19, 2012). While slightly differ ent, the cur

rent a ction is cut from the same cloth as his previous ac tions. S ibley seeks to enjoin def

endants Yve tte Alexander, Don R. Dinan, a nd Wil liam L ightf

oot from ca sting their ele ctora l votes for Preside nt Obama be cause "he is ineligible to hold the off ice of President of the United States." Sibley also seeks " a dec lara tory judgme nt that Defe ndants as ele ctors cannot c ast their Twe lfth Amendment votes for . . . Obama . . . a s he is not a ' natura l born citizen' . . . ." Compl. at 1-2. The Superior Court held a he aring on Sibley ' s motion for a pre liminary injunction and took the matter unde r adviseme nt. Be fore the Superior Court issued a de cision, the ca se wa s removed to this Court. Sibl ey then filed seve ral motions for an or der to show c ause [EC F Nos. 5, 11, 16]; to remand the ma tter to Superior Court [ECF No. 6]; and for expedited relief and discove ry

[EC F Nos. 7, 12]. Def

endants have moved to dismiss on standing and mootness gr ounds, as well as on the merits, and have also soug ht to stay discovery

or alternatively

to quash the subpoena s, and for sanctions. STANDARD OF REVIEW “[I ]n passing on a motion to dismis s, whether on the g round of lac k of jurisdiction over the subject matter

or for failure to state a c ause of action, the a lleg ations of the complaint should be construe d favor ably

to the pleade r.” Sche uer v. Rhodes, 416 U .S. 232, 236 (1974); see a lso L eathe rman v. Ta

rra nt Cnty . Nar cotics I ntellige nce & Coordination Unit, 507 U.S. 163, 164 (1993). The ref

ore, the fac tual alleg ations must be presumed true , and plaintiffs must be g iven

ever y favor able infe renc e that may be dra wn from the a lleg ations of fa ct. See Sche uer, 416 U .S. at 236; Sparrow v. U nited Air L ines, I nc., 216 F .3d 1111, 1113 (D.C. Cir. 2000). Howe ver, the

2Court need not ac cept a s true “a leg al conc lusion couched a s a fa ctual alleg ation,” nor infe renc es that are unsupported by

the fa cts set out in the complaint. Trudea u v. Fe dera l Trade Comm’n, 456 F.3d 178, 193 ( D.C. Cir. 2006) (quoting Papasan v. A llain, 478 U.S. 265, 286 (1986)). Under Rule 12(b)(1) , a cour

t has an a ffirma tive obligation to ensure that it is acting within the scope of its jurisdictional authority . Gra nd L odg e of F rate rnal Or der of Police v. Ashcrof t, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). " [A] court must dismiss a ca se whe n it lacks subject matter jur isdiction." Randolph v. I NG L ife Ins. & A nnuity

Co., 486 F. Supp. 2d 1, 4 (D.D.C. 2007). ' "[P] laintiff’s fa ctual alleg ations in the complaint . . . will bear c loser scr utiny in resolving a 12(b) (1) motion' than in resolving a 12(b) (6) motion for f ailure to state a

claim." Gra nd L odg e, 185 F . Supp. 2d at 13-14 (omission in original) ( quoting 5A Cha rles Alan Wrig ht & A rthur R. Miller, Fe dera l Practice and Proce dure § 1350 ( 2d ed. 1987)) . Moreove r, " [a] court may appropr iately

dispose of a c ase unde r 12(b) (1) f or standing ," Ra

ndolph, 486 F. Supp. 2d at 5, or on mootness g rounds, see Comm. i n Solidarity with the People of El Salvador v. Sessions, 929 F.2d 742, 744 ( D.C. Cir. 1991). A cour t may consider material other

than the alleg ations of the complaint in deter

mining whe ther it has jurisdiction to hear the ca se, as long as it still acc epts the fa ctual alleg ations in the complaint as true. See J erome Stevens Pharm., I nc. v. F DA, 402 F.3d 1249, 1253 ( D.C. Cir. 2005); EEOC v. St. Franc is Xavier Par ochial Sch., 117 F .3d 621, 624 n.3 (D.C. Cir. 1997); Her bert v. Nat’l Aca d. of Scis., 974 F.2d 192, 197 ( D.C. Cir. 1992).

ANALYSIS A. Stand ing "B eca use Article I I Ilimit s the constitutional role of the f eder al judiciary

to resolving

case s and controve rsies, a showing of standing ' is an essential a nd unchang ing' predic ate to any exercise of

our jurisdiction." N at' l Ass'n of Home B uilders v. EPA, 667 F.3d 6, 11 ( D.C. Cir.

32011) (c iting and quoting Fla. Audubon Soc' y v. Be ntsen, 94 F.3d 658, 663 ( D.C. Cir. 1996) (en banc) , and L

ujan v. Def

ender s of Wildl ife, 504 U.S. 555, 560 (1992) ). The " constitutional minimum of standing contains three elements: (1) injury -in-fa ct, (2) c ausation, and ( 3) redr essability ." A ss'n of

Flig ht 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 suffe red a n "injury in fac t", ( 2) that the injury is "fa irly trac eable " to the c halleng ed ac tion, and (3) that it is "likely , as opposed to mer ely specula tive, that the injury

will be redr essed by

a fa vorable decision." Groc ery Mfrs. Ass' n v. EPA, 693 F.3d 169, 174 (D.C. Cir. 2012) (citingand quoting Lujan, 504 U.S. at 560). " The pa rty seeking to invoke the jurisdiction of the fe dera l court ' bear s the burden of establishing the se ele ments.' " I d. (citing Lujan, 504 U.S. at 561). Her e, Sibley

has suffe red no injury

in fac t. The injury

must be "c oncre te and particula rized" a nd "a ctual or imminent." In re N avy Chaplaincy , 697 F.3d 1171, 1175 ( D.C. Cir. 2012) (citing Lujan, 504 U.S. at 560-61). Mor eover , wher e plaintiffs see k "' forwa rd-looking injunctive . . . relief

, past injuries alone a

re insuff icient to establish standing .' " I d. (quoting NB ex rel. Peacoc k v. District of Columbia, 682 F.3d 77, 82 (D .C. Cir. 2012)). I nstead, a plaintiff must demonstrate " an imminent threat of f uture injury ." I d. (citing City of L os Ang eles v. Ly ons, 461 U.S. 95, 101 (1983)). This late st attempt by Sibley to challeng e the e ligibility of President Obama to hold off

ice, a s with his previous effor ts and those of other s, fails bec ause he has not shown any

injury , much less a c oncre te or pa rticularized one. See , e.g ., Sibley , 866 F. Supp. 2d at 20; Sibley , 2012 WL6625813, at *1-2; see also Ker chner v. Obama, 612 F .3d 204, 207 (3d Cir. 2010); Be rg v. Obama, 586 F .3d 234, 238-39 (3d Cir. 2009); Ta itz v. Obama, 707 F . Supp. 2d 1, 3 (D.D.C. 2010). Sibley claims he ha s standing a s a re g istered voter in the District of

4Columbi a or, a lternatively , as a w rite-in ca ndidate for

the 2012 pre sidential elec tion. He states he " is in dang er of

suffe ring irrepa

rable harm if the D efe ndants are forc ed and/or choose to c ast their Twe lfth Amendment votes for an inelig ible President as they there by cannot vote f

or Plaintiff for President." Compl. ¶ 26. But Sibley ' s status as a voter , standing alone, is insufficient to conf

er standing . See, e.g ., L a B otz v. FEC, --- F . Supp. 2d ----, 2012 WL 3834865, at *3 (D.D .C. 2012) (" [V] oters ca nnot assert standing based on the ir g ener alized interest in fa ir elec tions."); Warth v. Seiden, 422 U.S. 490, 499 (1975) (" [W ]hen the asserte d harm is a ' g ener alized gr ievanc e' share d in substantially equal mea sure by

all or a la rg e cla ss of citizens, that harm alone nor mally does not war

rant e x erc ise of jurisdiction.") . And, as this Court and other c ourts, including the D.C. Circuit, have pre viously explained, Sibl ey ' s status as a write-in c andidate is insuffic ient to confe r standing beca use there is no evidence , nor authority , that Sibley

points to which would indicate that the e lectors would other wise have cast their vote s for him. See Or der at 1, Sibl ey v. Obama, A

pp. No. 12-5198 (D .C. Cir. Dec. 6, 2012) ( internal citations and quotations omitted). Nor c an Sibley

demonstrate tha

t his purported injury

is "fa irly trac eable " to the defe ndants' conduct. See Urba n Hea lth Care Coalition v. Sebelius, 853 F. Supp. 2d 101, 105 (D.D.C. 2012) ( quoting Huma ne Soc' y of U.S. v. Ba

bbitt, 46 F.3d 93, 100 (D.C. Cir. 1995). Sibley ' s complaint makes it abundantly clea r that his challeng e (a s with his prior unsucce ssful attempts) is to the elig ibilit y of President Oba

ma to hold office for a

nother ter m. Any claimed injury arising out of President Obama' s re- elec tion is not fairly trac eable to the casting of defe ndants' mere three elec toral votes for President Obama

out of the 538 total votes ava ilable, the 270 nee ded to elec t President Obama, or the 332 votes that we re c ast for Pre sident Obama

5and ver ified. Relatedly , as def endants obser

ve, eve n if the Court g rante d the re quested re lief, 1 Sibley would still fail to satisfy

the re dressibility

element be cause enjoining de fenda nts from casting the District of Columbia' s three e lectora l votes would not chang e the outcome of the elec tion. See De f.' s Mot. to Dism iss at 13; see also Ne wdow v. Roberts, 603 F .3d 1002, 1011

2 (D.C. Cir. 2010); Wil derne ss Soc'y v. Norton, 434 F .3d 584, 590 (D.C. Cir. 2006)); B abbitt, 46 F.3d at 100 (noting tha t redre ssibili ty inquiry often " melds into that of causa tion" and where a challeng ed ac tion is not "f airly trac eable " to the c laimed injury , there is "no possibility " that the injury could be r edre ssed throug h a fa vorable decision by

the cour t) (interna l quotations and citations omitt ed). F or all these r easons, Sibley ' s action must be dismissed for lac k of standing

. B. Mootness Sibley ' s claims are also now moot. He soug ht to enjoin the elector s from ca sting their ballots, which has alr eady occur red. See Newdow , 603 F.3d at 1008 (finding challeng e to relig ious elements in the 2009 inaug uration ce remony moot after the inaug uration occ urre d and the pra y ers a nd oath wer e alr eady

spoken). " [T] his court has no powe r to alter the past." Her ron for Cong ress v. F EC, --- F . Supp. 2d ----, 2012 WL 5451811, at *3 (D.D .C. 2012). Sibley argues that his claims are "c apable or re petition, y et eva ding r eview" and henc e survive dismissal on mootness gr ounds. Pl.'s Response to De fs.' Mot. to Dismi ss & Reply to Defs.' Omnibus Response at 1-2 ( "Pl.' s Response" ). B ut Sibl ey cannot make the re quisite showing of "' a

See " Congr ess Ver ifies: Obama, B iden Win Electoral Colleg e Vote," Reuters, Jan. 4, 2013, 1 http:// www.r euter s.com/article/2013/01/04/us-usa-c ong ress-e lectora l-idUSBRE9030QP2013010 4. Sibley also makes " class ac tion alleg ations," se eming ly ag ainst defe ndants as " proper 2 repr esenta tives of a Class" which, ac cording to Sibl ey , "c onsists of 538 persons – the total number of e lectors . . . ." Compl. ¶¶ 6-12. Howeve r, Sibley has not alleg ed, nor c an he demonstrate, that any

of these vote s would have be en ca st for him.

6rea sonable e x pectation' or a ' demonstrated pr obability ' that ' the same c ontroversy will recur involving the same complaining party .' " H err on, 2012 WL 5451811 at *3 (c iting and quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (pe r cur iam)). Sibley mere ly claims that " it is a

rea sonable e x pectation that he will be subjected onc e ag ain in four y ear s to Congre ssional control of Ele ctors whose vote is pre- ordaine d and made for inelig ible candidates." Pl.'s Response at 2. B ut these conte ntions are too vague, conje ctura l, and spec ulative. " When a claim rests entire ly

on an unlikely

chain of hy pothetical occ urre nces, the court must conclude that the controve rsy

is not li kely

to rea ppear ." H err on, 2012 WL 5451811 at *4. Acc ording ly , Sibley ' s claims seekinginjunctive and dec lara tory relief are moot. 3 C. P relim inary Injun ction Be cause Sibley

lacks standing to bring his complaint and his claims are moot, his m otion for a preliminary

injunction must be denie d. See, e.g ., Taitz v. Obama, 707 F . Supp. 2d 1, 4 n.2 (D.D.C. 2010) ( denying pr eliminary injunction after c oncluding petitioner lac ked standing to pursue he r quo wa

rra nto action ag ainst President Obama to determine his elig ibilit y for of fice ). A pre liminary

injunction is “an extraordinary reme dy that may only be aw arde d upon a cle ar showing that the plaintiff is entitled to such re lief.” Winter v. Natural Res. De f. Council, I nc., 555 U.S. 7, 20 (2008); see also Sherley v. Sebelius, 644 F.3d 388, 392 (D .C. Cir. 2011). “A plaintiff see king a

preliminary

injunction must establish [1] that he is likely to succe ed on the merits,[2] that he is likely to suffer irrepa rable harm in the a

bsence of pre liminary

relief , [3] that the balanc e of e quities tips i n his favor, a nd [4] that an injunction is in the public interest.” Although Sibley

seeks to ame nd his complaint to add new c laims, inter alia, to pre vent the 3 elec toral votes ca st by

the District of Columbia from beingcounted, suc h an ame ndment would be futile, a

nd would not cure the other jurisdictional de fec ts in thi s action, i.e., Sibley ' s lack of standing . Moreove r, bec ause the votes have alre ady been c ounted, these c laims in the amended complaint rema in moot. According ly , his moti on to amend the c omplaint will be denied.

7Wint er, 555 U .S. at 20.

Sibley fails to establish any

of these r equire ments here . As explained above, it is inconce ivable that he c ould succe ed on the mer its of his case be cause he lac ks standing to br ing his complaint and bec ause his cla ims are moot. And since Sibley has fa iled to demonstrate a n injury in fac t sufficient to establish standing , he has a lso failed to demonstrate irrepa rable harm

war ranting a pre liminary

injunction. See, e.g ., Air Tra nsport Ass' n of Am. v. Export-I mport Ba nk of the U.S., -- - F . Supp. 2d ----, 2012 WL 2914442, at *14 (D.D .C. 2012) (" The irrepa rable -har m standard r equire s a more sig nificant showing than the injury -in-fa ct standar d.") ; I n re N avy

Chaplaincy , 534 F.3d 756, 766 ( D.C. Cir. 2008) (" [T] o show irre para ble har m '[a] plaintiff must do more than mer ely alleg e . . . har

m sufficient to establish standing .' ") (quoting Assoc. Ge n. Contractors of Cal., I nc. v. Coal. for

Econ. Equity , 950 F.2d 1401, 1410 ( 9th Cir. 1991)). The balanc e of e quities and the public intere st tip decidedly ag ainst Sibl ey

beca use, as defe ndants point out, "an injunction would substantially injure . . . the public' s interest in an order ly elec tion process." Def

s.' Mot. to Dismi ss at 15; see a lso Hubbard v. United States, 496 F. Supp. 2d 194, 203 (D.D .C. 2007) (" ' I t is in t he public intere st to deny injunctive relief

when the re lief is not likely

deser ved under law." ' ) (quoting and citingQualls v. Rumsfeld, 357 F. Supp. 2d 274, 287 (D.D.C. 2005)). D. Rem and Be cause the Court conclude s that Sibl ey ' s action must fail on standing and mootness g rounds, it need not pass on the me rits of the issues, or on Sibley ' s various motions seeking order s to show cause to expedite discovery . I n any event, those motions are likely to be moot since it appe ars that Sibley would not be able to sa tisfy any of the standing require ments in the District of Columbia courts as we ll. See, e.g ., Fr iends of Tilden Park, I nc. v. District of

8Columbi a, 806 A.2d 1201, 1206- 7 (D.C. 2002). Althoug h there may be some futility

in

rema nding this ca se, the D.C. Circuit does not appe ar to ha ve adopte d a futility

exception to the

rema nd require ment of 28 U.S.C. § 1447(c). I ndeed, in Randolph v. I

NG L ife Ins. & A nnuity Co., 486 F. Supp. 2d 1, 10 (D.D.C. 2007), the district c ourt, in considering the issue, observe d that case law in this circuit sug g ests that there is no futilit y exception to remand, a

nd that the plain lang uag e of se ction 1447(c) require s remand onc e a f eder al cour

t concludes tha t it lacks subject matter jur isdiction over an a ction. See id. (c iting Rep. of V enezuela v. Philip Morris I nc., 287 F .3d 192, 196 (D.C. Cir. 2002) (" When it appear s that a district court lac ks subject matter jurisdiction over a case that has bee n remove d from a sta te cour t, the district court must

rema nd the ca se." ); see a lso 28 U.S.C. § 1447(c) (" I f at a ny time before final judg ment it appear s that the district court lac ks subject matter jurisdiction, the c ase sha ll be rema nded." ) (e mphasis added)

. Other c ourts in this j urisdiction have a lso noted the mandatory nature of the dire ctive in 4 section 1447(c ). See, e .g ., J .S.R. v. W ash. Hosp. Ctr., 667 F. Supp. 2d 83, 85 (D .D.C. 2009); Quee n v. Schmidt, C iv. Action No. 10-2017, 2011 WL4101117, at * 1-2 (D .D.C. Sept. 14, 2011). Ac cording ly , the Court having conclude d that there is no subject matter jurisdiction in this Court, t he ca se will be dismissed and re manded to the Super ior Court of the District of

This result is not altered by the D.C. Circuit' s opinion in S haw v. Ma rriott I nt'l, Inc., 605 F .3d 4 1039, 1044 (D.C. Cir. 2010), which discusse d the Supreme Court' s decision in Wis consin Dep' t of Corrs. v. Scha cht, 524 U.S. 381 (1998), holding that § 1447(c) did not require a district court to relinquish its removal jurisdiction over a c ase w ith mult iple claims simply beca use it lacke d subject matter jur isdiction over one of the claims. I n Shaw, some (but not all) of the plaintiffs lacke d standing to bring their cla ims; t here fore , the D.C. Circuit conclude d that rema nd of the entire c ase to state c ourt was not re quired be cause jurisdiction was not lacking over the entire case . I d. at 1044. Her e, Sibley seeks injunctive a

nd decla ratory relief rela ted to the purporte dly illegitimate c asting of ele ctora l votes for Preside nt Obama in the District of Columbi a. Sibley ' s other motions are rela ted to the pursuit of that cla im. Hence , the entire ty of Sibley ' s action cannot be maintained in this Court because the claim is moot and Sibley lacks standing , and rema nd of the e ntire ca se is there fore appropr iate.

9Columbi a. 5 CONCLUSION

For the fore g oing r easons, de fenda nts' motion to dismis s the ac tion for lack of subject matter jurisdiction will be g rante d, the motion for a pr eliminary injunction will be denied, and the ca se will be re manded to the Super ior Court of the District of Columbia. A sepa rate order

acc ompanies this memorandum opinion.

SO ORDERED. / s / J OHN D. B ATES United States District J udg e Dated: January

8, 2013

As defe ndants themselves obser ve, the numer ous discovery -re lated motions filed by Sibley and 5 the motion to st ay

discovery , need not be resolved by this Court i n light of the deter mination that jurisdiction over the a ction is lacking . Moreove r, in light of the rema nd to Superior Court, the Court will not address the def endants' motion for sanctions. Fina lly , Sibley has moved for

"a n order disqualify ing the Honora ble J ohn D. B ates fr om further involvement in this m atter." Be cause the Court has dete rmined that it lacks jurisdiction over Sibley ' s claims, that motion is essentially

moot and will therefor e be de nied. I n any event, ther e is no merit to that motion. Sibley claims that the Court is biased by focusing on the Court' s prior ruling s in a diffe rent c ase involving Sibley , beca

use it failed to provide him with a hear ing a nd to rule on his motion for rema nd, and bec ause it re fused to allow Sibley ' s "pr ompt presentation of e vidence of Obama' s criminal beha

vior to the Gra

nd J ury ." Pl.' s Mot. to Disqualify at 4-5. A judg e' s rulings in c ases are not a prope r g round for a re cusal motion. See L iteky v. United States, 510 U.S. 540, 555 (1994). More over, the se ac tions cited by Sibley do not sugg est that " any

rea sonable a

nd informed obse rver " w ould question this C ou rt' s impartiality , as Sibley is require d to show under 28 U.S.C. § 455. S ee, e .g . SEC v. L oving Spirit Found., 392 F .3d 486, 493-94 (D.C. Cir. 2004). I n addition, Sibl ey

fails to provide the r equisite aff idavit pursuant to 28 U.S.C. § 144.

1 0