The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
*fn1 Pursuant to Fed.R.Civ.P. 25(d), Attorney General Alberto
Gonzales is substituted as the party-defendant. For ease of case
administration, the case caption remains unchanged.
In this mandamus action, plaintiff seeks to invalidate the
oaths of office administered by Dexter W. Lehtinen in his
capacity as United States Attorney for the Southern District of
Florida. He asserts that Lehtinen was not authorized to
administer the oaths under 5 U.S.C. § 2903. In the alternative,
plaintiff seeks review of the Department of Justice's actions
under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
Defendant moves to dismiss the complaint pursuant to Federal Rule
of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction)
and 12(b)(6) (failure to state a claim upon which relief may be
granted). Upon consideration of the parties' submissions and the
entire record, the Court finds that plaintiff lacks standing to
sue and therefore will grant defendant's motion to dismiss for
lack of subject matter jurisdiction.
"[T]he defect of standing is a defect in subject matter
jurisdiction." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987). To establish standing under Article III of the
Constitution, plaintiff must demonstrate that: (1) he has
suffered an injury in fact; (2) the injury is fairly traceable to
the defendant's conduct; and (3) it is likely the injury will be
redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); National Treasury Employees Union v. United States,
101 F.3d 1423, 1427 (D.C. Cir. 1996). "The party invoking federal
jurisdiction bears the burden of establishing these elements."
Lujan v. Defenders of Wildlife, 504 U.S. at 561.
In his complaint, plaintiff alleges that "[t]he Defendant
authorized the criminal investigation and prosecution of the
Plaintiff which [led] to the castigation and incarceration of the
Plaintiff." Complaint at 7. In his opposition to defendant's
motion, plaintiff disclaims his only plausible injury by
insisting that he is not challenging his sentence and conviction.
See Plaintiff's Response in Opposition to Defendant's Motion to
Dismiss and Defendant's Memorandum of Points and Authorities in
Support of Defendant's Motion to Dismiss at 4. Rather, he asserts
that as a United States citizen, he "has a right to ensure that
all laws are followed by those [who] are entrusted to enforce the
laws." Id. at 3. He contends further that he and his fellow
"citizen[s] residing in the Southern District of Florida where
the appointed [assistant United States attorneys] . . . execute
their duties" have suffered "an injury in fact." Id.
A generalized grievance lawsuit about government action that
asserts no direct and tangible harm to the individual plaintiff
does not satisfy the actual injury requirement. See Lujan v.
Defenders of Wildlife, 504 U.S. at 573-77 (citing cases);
accord Allen v. Wright, 468 U.S. 737, 754 (1984) ("an asserted
right to have the Government act in accordance with law is not
sufficient, standing alone, to confer jurisdiction on a federal
court."). Plaintiff's asserted injury falls squarely within this
category of cases where standing has been found wanting.
Defendant's motion to dismiss for lack of subject matter
jurisdiction therefore is granted. A separate Order accompanies
this Memorandum Opinion.
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