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MAHORNER v. BUSH

September 16, 2002

JAMES G. MAHORNER, PLAINTIFF,
V.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Walton, District Judge

MEMORANDUM OPINION

This matter comes before the Court upon plaintiff's Motion for Emergency Preliminary Injunction, filed August 27, 2002, to enjoin defendant President George W. Bush ("President Bush") "from causing or engaging in further military action [in Iraq] without a Congressional declaration of war, except in an immediate response to launched missiles or other imminent or occurring attacks directed to the territory of this country, until a final hearing and determination on the merits in the above-entitled action." Motion for Emergency Preliminary Injunction (Pl.'s Mot.") at 1. The plaintiff's underlying complaint requests that this Court: (1) issue a declaratory judgment that President Bush is unconstitutionally initiating war by ordering the United States military to attack countries without Congressional approval; (2) issue a declaratory judgment that the appropriation of funds to Israel by President Bush and defendant Secretary of the Treasury Paul H. O'Neill ("Secretary O'Neill") violates Article I, Section 8, Clause 11 of the Constitution's Establishment Clause; (3) enjoin President Bush from attacking Iraq or any other foreign nation without a declaration of war from Congress; and (4) enjoin President Bush and Secretary O'Neill from giving additional aid to Israel. Complaint ("Compl.") at 17-18. Upon consideration of the applicable legal principles and for the reasons set forth below, this Court must dismiss this case sua sponte because the plaintiff's claims are non-justiciable, as he lacks standing to bring them and they present political questions.

I. Non-Justiciability of the Plaintiff's Complaint

It is a fundamental axiom that pursuant to Article III of the Constitution, federal courts are vested with the power of judicial review extending only to "Cases" and "Controversies." U.S. Const. art. III, § 2. As a result of the Constitution's "case-or-controversy requirement, the courts have developed a series of principles termed `justiciability doctrines,' among which are standing[,] ripeness, mootness, and the political question doctrine." National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). An analysis of these "justiciable doctrines" reveals beyond all doubt that this Court lacks subject matter jurisdiction to entertain the plaintiff's complaint because he is unable to satisfy at least two of them, standing and the political question doctrine.*fn1

(A) Standing

For a plaintiff to have Article III standing to bring a claim in federal court, the plaintiff bears the burden of establishing that he has suffered "an (1) `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) which is `fairly traceable' to the challenged act, and (3) `likely' to be `redressed by a favorable decision.'" National Treasury Employees, 101 F.3d at 1427 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The District of Columbia Circuit has explained that "[w]ith respect to the `injury in fact' requirement . . . the injury alleged cannot be conjectural or hypothetical, remote, speculative, or abstract. Rather, it must be certainly impending." Id. (internal quotations and citations omitted).

(1) The Plaintiff's Requests for this Court to issue a Declaratory Judgment and Enjoin President Bush from Initiating Military Force in Foreign Countries

The plaintiff asserts that he has suffered an injury in fact because "[t]he action by the President of initiating war by . . . ordering [] military attacks against other countries with U.S. Armed Forces without Congressional authority, constitutes a major threat that Plaintiff will suffer loss of life in the response forthcoming from the country attacked . . ." Compl. at 15. Additionally, the plaintiff contends that such military action initiated by President Bush "has created a substantial threat to Plaintiff and others in Plaintiff's class of being vaporized by nuclear war . . ." Compl. at 3. Both positions fail to satisfy the injury in fact requirement necessary to establish standing. The plaintiff's allegation that he will suffer an increased chance of losing his life if President Bush initiates a military conflict with Iraq, amounts to nothing more than speculation about future events that may or may not occur. As the District of Columbia Circuit has stated, "[i]t is not enough . . . to assert that [the plaintiff] might suffer an injury in the future, or even that it is likely [he will] suffer an injury at some unknown future time. Such `someday' injuries are insufficient." J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 606 (D.C. Cir. 1996).

(2) The Plaintiff's Requests for this Court to issue a Declaratory Judgment and Enjoin President Bush and Secretary O'Neill from Sending Aid to Israel

While the plaintiff does not directly assert that he has sustained an injury in fact as a result of the financial assistance the United States government provides to Israel, even assuming arguendo that he has, plaintiff's status as a taxpayer does not afford him standing to advance a challenge to the granting of foreign aid by the federal government. This Court's analysis of whether a taxpayer has standing to contest governmental action must begin with the Supreme Court's opinion in Frothingham v. Mellon, 262 U.S. 447 (1923). In Frothingham, a taxpayer brought suit against the Secretary of the Treasury challenging the constitutionality of the Maternity Act of 1921. The plaintiff alleged that her injury was the burden of taxation arising from an unconstitutional statute that provided federal funds to the States to promote maternal and infant health. In rejecting the plaintiff's claim, the Supreme Court held that she lacked standing because her alleged injury, the tax burden, was "remote, fluctuating and uncertain." The Court explained that

[t]he party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that [she] has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that [she] suffers some indefinite way in common with people generally.

In Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982), the Supreme Court, applying the Flast test, rejected the plaintiff's challenge to the transfer of federal property by the Secretary of Health, Education, and Welfare to a religious organization. The Court concluded that the plaintiff lacked standing because the "source of their complaint is not a congressional action, but a decision by [the Executive Branch] to transfer a parcel of federal property. Flast limited taxpayer standing to challenges directed `only [at] exercises of congressional power.'" Id. at 479 (quoting Flast, 392 U.S. at 102).

The District of Columbia Circuit has also repeatedly held that "challenges to actions of the executive branch are not cognizable in a federal taxpayer action . . ." Swomley v. Watt, 526 F. Supp. 1271, 1274 (D.D.C. 1981) (citing American Jewish Congress v. Vance, 575 F.2d 939, 944 (D.C. Cir. 1978); Public Citizen, Inc. v. Simon, 539 F.2d 211, 216-17 (D.C. Cir. 1976)). In American Jewish Congress, the Circuit Court addressed a challenge by members of the American Jewish Congress seeking injunctive, declaratory and mandamus relief against several members of the President's Cabinet and other subordinate officials to prevent them from engaging in economic cooperation between the United States and Saudi Arabia. 575 F.2d 939. The Court held that the plaintiffs lacked standing on several grounds to assert their claims. First, the plaintiff could not demonstrate that it had sustained an injury in fact. The only potential injury suffered by the plaintiff's members as citizens was the "general unconstitutional conduct of the defendants." Id. at 944. "However, the proper observance of constitutional limitations by government officials is an interest shared by all members of the American public. Any injury to that interest is necessarily abstract and lacking in the concreteness required to confer standing." Id. (citations omitted). In addition, applying the Flast test, the Court also concluded that the plaintiffs lacked standing as citizen taxpayers. The Court reiterated that to establish standing as a taxpayer "the plaintiff must be challenging a congressional action under the taxing and spending power of article I, section 8, of the Constitution, and must allege contravention of a specific limitation on that power." Id. (citing Flast, 392 U.S. at 102-03; United States v. Richardson, 418 U.S. 166, 175 (1974)). The Court held that the plaintiffs lacked standing as taxpayers because the only action they were challenging was that of executive officials engaged in economic cooperative programs with Saudi Arabia. Id. Thus, "[s]uch allegations falter in the first stage of the Flast test, because they are directed at executive action rather than at a congressional enactment under article I, section 8." Id. (citation omitted). Similarly, in Public Citizen, the District of Columbia Circuit rejected a challenge by the plaintiff that sought a judicial ...


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