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1 GEORGE S. CARDONA
Acting United States Attorney
2 LEON W. WEIDMAN
Assistant United States Attorney
3 Chief, Civil Division
ROGER E. WEST (State Bar No. 58609)
4 Assistant United States Attorney
First Assistant Chief, Civil Division
5 DAVID A. DeJUTE (State Bar No. 153527)
Assistant United States Attorney
6 Room 7516, Federal Building
300 North Los Angeles Street
7 Los Angeles, California 90012
Telephone: (213) 894-2461/2574
8 Facsimile: (213) 894-7819
Email: roger.west4@usdoj.gov
9 david.dejute@usdoj.gov
10 Attorneys for Defendants
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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CAPTAIN PAMELA BARNETT, et al., ) No. SACV 09-00082 DOC (ANx)
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Plaintiffs, )
16 ) DEFENDANTS’ REPLY MEMORANDUM TO
v. ) OPPOSITION TO DEFENDANTS’ MOTION
17 ) TO DISMISS FILED BY ALL
BARACK H. OBAMA, et al. ) PLAINTIFFS EXCEPT DRAKE AND
18 ) ROBINSON
Defendants. )
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1 City of Helena, 791 F.2d 744 (9th Cir. 1986); Aspenlind v. America’s
2 Servicing Co., 2008 WL 686596 (E.D. Cal. 2008). The Ninth
3 Amendment is “not a source of rights as such; it is simply a rule
4 about how to read the Constitution.” San Diego County Gun Rights
5 Committee v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (quoting
6 Laurence H. Tribe, American Constitutional Law, 776 n. 14 (2nd
7 Edition 1998).
8 III.
9 This Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Quo
10 Warranto Claims
11 In their Opposition, Plaintiffs devote several pages to their
12 proposition that this Court should exercise some form of Quo
13 Warranto jurisdiction herein. Conspicuously lacking from this
14 discussion is even one case to support this proposition. For the
15 reasons set forth in Defendants’ Motion, this Court lacks subject
16 matter jurisdiction over Plaintiffs’ Quo Warranto claims herein.
17 IV.
18 Plaintiffs Lack Standing Herein
19 In their Motion to Dismiss, Defendants established that no
20 Plaintiff in this case can establish standing, and, therefore, this
21 Court lacks subject matter jurisdiction of this case. In their
22 Opposition, Plaintiffs2 argue that they can satisfy the “injury-in-
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24 At page 9, line 21 of the Opposition, Plaintiffs’ counsel states
that there are “currently 46 Plaintiffs in this case.” The caption
25 of the First Amended Complaint, filed herein on or about July 14,
2009, reveals that it contained a total of 44 Plaintiffs. On August
26 18, 2009, Plaintiffs filed a “First Amended Motion for Issuance of
Letters Rogatory, etc. et al.” The caption of that Motion contained
27 46 Plaintiffs, 3 of whom were simply added by Plaintiffs’ counsel,
without leave of Court, in clear violation of all rules. Those
28 Plaintiffs were: Representative Casey Guernsey, Captain Connie Rhodes,
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1 V.
2 This Case Presents Non-Justiciable Political Questions
3 Plaintiffs’ Opposition does not satisfactorily address the
4 argument that this case presents non-justiciable political
5 questions which are committed, by the very terms of the
6 Constitution, to the Electors and to the Legislative Branch. The
7 Opposition is infused with the notion that Plaintiffs, and others
8 similarly situated, constitute some sort of “insular minority” who
9 have no voice whatever other than that which could be provided to
10 them by this Court. Nothing could be further from the truth. As
11 set forth in Defendants’ Motion, the Constitution makes a textual
12 commitment of the power to review whether or not a sitting
13 President should continue to serve to Branches other than the
14 Judicial Branch. In their pleadings and other moving papers in
15 this case, Plaintiffs have repeatedly, if somewhat obtusely,
16 mentioned that a resolution of this case could involve the
17 impeachment of President Obama. As outlined in Defendants Motion,
18 questions of impeachment or removal from Office of a President are
19 political questions because they are textually committed by the
20 Constitution to branches of the government other than the
21 Judiciary. See, e.g., United States Constitution Article I, § 2,
22 cl. 5; Article I, § 3, cl. 6; U.S. Constitution Amendment XXV.
23 As outlined above, in previous filings with this Court,
24 Plaintiffs have recognized the jurisdiction of Congress over issues
25 which they seek to raise herein. Specifically, on August 20, 2009,
26 Plaintiffs filed their “First Amended Motion for Issuance of
27 Letters Rogatory, etc. et al.” At page 3 thereof, Plaintiffs
28 argued that granting of their Motion “might lead to an early
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1 submitted that any FOIA claims made by her in this case must be
2 dismissed for improper venue. As can be seen from the
3 correspondence from the Department of State to Plaintiff Barnett
4 regarding her FOIA request, attached as Exhibit A to Plaintiffs’
5 Opposition, Ms. Barnett lives in Sacramento, California, which is
6 not within the jurisdiction of the Central District of California.
7 Moreover, Plaintiffs have not alleged, nor could they allege, that
8 any documents sought by them are within the jurisdiction of the
9 Central District of California. Accordingly, venue does not lie
10 for Plaintiff Barnett’s claims. See 5 U.S.C. § 552(a)(4)(B).
11 VII.
12 Defendants’ Motion As To Secretaries Clinton And Gates, First Lady
13 Michelle Obama, And Vice President Joseph Biden Should Be Granted
14 For Lack Of Opposition
15 Defendants’ Motion to Dismiss argued that, as to Secretaries
16 Clinton and Gates, the action should be dismissed for lack of
17 subject matter jurisdiction and failure by Plaintiffs to state a
18 claim for relief. Additionally, the Motion argued that, with
19 respect to First Lady Michelle Obama and Vice President Joseph
20 Biden, the action must be dismissed for failure to state any claim
21 for relief whatever. Plaintiffs have not seen fit to set forth any
22 opposition to these portions of Defendants’ Motion. Accordingly,
23 they should be granted for lack of opposition.
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1 VIII.
2 Conclusion
3 For the reasons set forth above, as well as those contained in
4 Defendants’ Motion, this action must be dismissed, in its entirety,
5 for lack of subject matter jurisdiction and failure by Plaintiffs
6 to state a claim for relief.
7
8 Respectfully submitted,
9 DATED: September 25, 2009
10 GEORGE S. CARDONA
Acting United States Attorney
11 LEON W. WEIDMAN
Assistant United States Attorney
12 Chief, Civil Division
13 /s/ Roger E. West
ROGER E. WEST
14 Assistant United States Attorney
First Assistant Chief, Civil Division
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/s/ David A. DeJute
16 DAVID A. DeJUTE
Assistant United States Attorney
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Attorneys for Defendants
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