United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
case before the Court is an action for a writ of mandamus.
Plaintiff asks the Court to order the Attorney General of the
United States, the Director of the Office of Professional
Responsibility of the United States Department of Justice,
the Inspector General of the Department of Justice, and the
Director of the Federal Bureau of Investigation to
immediately undertake an investigation of leaks alleged to be
emanating from Special Counsel Robert Mueller and his staff.
See Compl. [Dkt. # 1] at 2; id ¶¶
11-12. The prayer for relief calls for:
A writ of mandamus compelling Defendants to conduct an
immediate, thorough investigation into torrent of leaks
[sic] coming from Mr. Mueller and his staff, as well
as unethical conflicts of interest, pertaining to the Mueller
Investigation and an order compelling Mr. Sessions and the
USDOJ to order the removal of Mr. Mueller and his staff from
the investigation when the investigation reveals that the
leaks did originate from Mr. Mueller and his staff.
Compl. at 13. Because the Court has found, for the reasons
set forth below, that plaintiff lacks standing to bring this
action, it will dismiss the complaint for lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil
courts are courts of limited jurisdiction and the law
presumes that "a cause lies outside this limited
jurisdiction." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); see also Gen. Motors
Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004)
("As a court of limited jurisdiction, we begin, and end,
with an examination of our jurisdiction."). Subject
matter jurisdiction may not be waived, and "courts may
raise the issue sua sponte" NetworkIP, LLC v.
FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting
Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989,
992 (D.C. Cir. 1982). Indeed, a federal court must raise the
issue because it is "forbidden . . . from acting beyond
[its] authority, and 'no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Id., quoting Akinseye v. Dist. of Columbia,
339 F.3d 970, 971 (D.C. Cir. 2003); see also Ins. Corp.
of Ireland Ltd v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982) ("Similarly, a court, including an
appellate court, will raise lack of subject-matter
jurisdiction on its own motion"). Therefore, Rule 12
provides that a district court must dismiss a complaint when
it is evident that it lacks subject-matter jurisdiction,
see Fed. R. Civ. P. 12(h)(3), and it may do so
sua sponte. See Evans v. Suter, No. 09-5242, 2010 WL
1632902, at *1 (D.C. Cir. Apr. 2, 2010), citing Hurt v.
U.S. Court of Appeals for the D.C. Cir., No. 07-5019,
2008 WL 441786 (D.C. Cir. Jan. 24, 2008).
state a case or controversy under Article III, a plaintiff
must establish standing." Ariz. Christian Sch.
Tuition Org. v. Winn, 563 U.S. 125, 133 (2011), citing
Allen v. Wright, 468 U.S. 737, 751 (1984); see
also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). Standing is a necessary predicate to any exercise of
federal jurisdiction, and if it is lacking, then the dispute
is not a proper case or controversy under Article III, and
federal courts have no subject-matter jurisdiction to decide
the case. Dominguez v. UAL Corp., 666 F.3d 1359,
1361 (D.C. Cir. 2012).
establish constitutional standing, a plaintiff must
demonstrate that (1) he has suffered an injury-in-fact; (2)
the injury is "fairly traceable to the challenged action
of the defendant"; and (3) it is "likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision." Lujan, 504
U.S. at 560-61, quoting Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 41-43 (1976) (internal quotation
marks and edits omitted); see also Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 180-81
(2000). The party invoking federal jurisdiction bears the
burden of establishing standing. Lujan, 504 U.S. at
8 of the complaint states the following about standing:
Plaintiff has standing to bring this action because it has
been directly affected and victimized by the unlawful conduct
complained herein [sic]. Its injuries are
proximately related to the conduct of Defendants, each and
every one of them, as it is a public interest watchdog which
investigates and prosecutes government corruption on behalf
of the American people and disseminates information to them.
Compl. ¶ 8. There are no other jurisdictional
allegations in the complaint.
November 27, 2017, the Court ordered plaintiff in this case
to show cause why it has alleged sufficient facts to
establish that it has suffered the injury-in-fact that is
necessary to confer standing to pursue this action. Order
[Dkt. # 4]. To allege the first element of standing,
injury-in-fact, a plaintiff must demonstrate that he has
"suffered 'an invasion of a legally protected
interest' that is 'concrete and particularized'
and 'actual or imminent, not conjectural or
hypothetical.'" Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1548 (2016), quoting Lujan, 504 U.S. at
560. To be "concrete, " the injury "must
actually exist, " meaning that it is real, and not
abstract, although concreteness is "not . . .
necessarily synonymous with 'tangible.'"
Id. at 1548-49. And to be "particularized,
" the injury must affect a plaintiff "in a personal
and individual way." Id. at 1548,
quotingLujan, 504 U.S. at 560 n.l.
problem in this case is that even if the allegations in the
complaint concerning bias or wrongdoing on the part of the
Special Counsel are accepted as true on their face, and even
if plaintiff is correct that these allegations "clearly
warrant thorough ethics investigation and discipline, "
PL's Resp. to Ct.'s Order [Dkt. # 10] ("PL's
Resp") at 9, plaintiff has not - neither in its
complaint nor in response to the order to show cause - set
forth any facts that would establish that it or any of its
members (assuming it is a membership organization, which is
not alleged in the complaint) has suffered an invasion of a
legally protected interest that is concrete and
particularized, and actual or imminent.
order to show cause, the Court pointed plaintiff to a
statement in Lujan that a "plaintiff raising
only a generally available grievance about government -
claiming only harm to his and every citizen's interest in
proper application of the Constitution and laws, and seeking
relief that no more directly and tangibly benefits him than
it does the public at large - does not state an Article III
case or controversy." Order at 2-3, quoting
Lujan, 504 U.S. at 573-74; see also Prisology,
Inc. v. Fed. Bureau of Prisons, 852 F.3d 1114, 1116-17
(D.C. Cir. 2017) (observing that the Bureau's alleged
failure to publish its records electronically would not be an
"injury" for purposes of Article III because it
would be a "harm common to everyone, " and it would
"not differentiate [plaintiff] from the public at
Court also emphasized in its order to show cause that in
order for an organizational plaintiff to allege
injury-in-fact, it must demonstrate "concrete and
demonstrable injury to the organization's activities -
with a consequent drain on the organization's resources -
constituting more than simply a setback to the
organization's abstract social interests." Order at
3, quoting Nat'l Taxpayers Union, Inc. v. United
States,68 F.3d 1428, 1433 (D.C. Cir. 1995); see
also Am. Legal Found. v. FCC,808 F.2d 84, 92 (D.C. Cir.
1987) (observing that such a showing requires "more than
allegations of damage to an interest in 'seeing' the
law obeyed or a social goal furthered"); Cmty.
Nutrition Inst. v. Block,698 F.2d 1239, 1253-54 (D.C.
Cir. 1983) (holding that a consumer organization could not