Opinion
No. C 00-4288 SI
January 8, 2001
ORDER DENYING MOTION FOR EXPEDITED HEARING AND DISMISSING COMPLAINT FOR LACK OF JURISDICTION
On November 27, 2000 plaintiff Marc Perkel filed a request for an expedited hearing on the issues he raised in his pro se complaint filed on November 16, 2000. Defendant, claiming not to have been properly served, entered a limited appearance on November 30, 2000 for the purpose of opposing plaintiff's expedited motion. Having considered the papers submitted, the Court hereby DENIES Mr. Perkel' s motion for an expedited hearing and consideration of the issues raised in his complaint and DISMISSES the complaint without prejudice.
1. Service
Federal Rule of Civil Procedure 4(c)(2) states that service of a summons and complaint may "be effected by any person who is not a party and who is at least 18 years of age." The government asserts that it has not properly been served as Mr. Perkel, a party to this action, personally served the complaint by bringing it to the United States Attorneys Office. Mr. Perkel, in reply, argues that since the defendant is the United States, Rule 4(i)(1) applies. Under Rule 4(i)(1) the United States can be served by delivering a copy of the summons and the complaint to a United States attorney, which is what Mr. Perkel did. The Court finds that while Rule 4(i)(1) describes how service can be effectuated against the United States, it does not change who can effectuate service as defined by Rule 4(c)(2). The complaint, therefore, has not properly been served.
However, as the government has entered a limited appearance for the purpose of opposing Mr. Perkel's expedited motion, the Court will address the expedited motion on its merits.
2. Expedited Motion
Mr. Perkel has moved for an "expedited hearing on the issues he presented to this court in his pleading and brief relating to issues involving the current election." See Expedited Motion at 1 ("Motion"). Mr. Perkel seeks to have the Court: (1) find that he has standing to bring this action and the Court has jurisdiction to grant relief, (2) review Mr. Perkel's pleading and brief and consider the issues raised therein; (3) schedule a hearing on those issues as soon as the Court feels is necessary; and (4) be prepared to address the issues as to what happens when the election methods in the 12th Amendment fail to produce a result. See Motion at 2. Mr. Perkel also asserts that "frankly, the Plaintiff doesn't know exactly what to ask for and leaves the appropriate remedy open to the wisdom and experience of the Judge." See Plaintiff's Argument Supporting Expedited Motion. The United States, in its limited appearance, notes that Mr. Perkel's motion seeks an adjudication of the merits of his complaint. The government also characterizes Mr. Perkel's motion as, in effect, a motion for a temporary restraining order ("TRO") and argues that Mr. Perkel has failed to satisfy the showing required to grant a TRO. Reviewing the expedited motion, the Court finds that Mr. Perkel has failed to demonstrate that adjudication of the merits of his complaint requires expedited treatment. While Mr. Perkel, at various points in his expedited motion and in his complaint, asserts that his suit relates to the presidential election and the "constitutional crisis in the making," Mr. Perkel denies that he is "challenging here this specific election." See Motion at 2. As Mr. Perkel's motion does not provide an adequate reason to justify expedited treatment, the Court DENIES Mr. Perkel's request for an expedited hearing and expedited treatment addressing the merits of his case.
3. The Complaint
The government, in its limited appearance, asks the Court to consider dismissing plaintiff's complaint on the ground that Mr. Perkel lacks standing to bring his suit. This Court is a court of limited jurisdiction, and as such has discretion to dismiss a complaint when no basis for federal jurisdiction appears on the face of the complaint or when it becomes apparent during the course of proceedings that the court lacks jurisdiction. See Southern Pacific Transportation Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990); Fed.R.Civ.P. 12 (h)(3). Moreover, "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.'" United States v. Hayes, 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990) (citations omitted)). For this reason, the Court will, taking all of the allegations in Mr. Perkel's complaint as true, address whether Mr. Perkel has standing to bring his constitutional challenge.
A plaintiff must demonstrate three elements to establish standing: (1) injury in fact; (2) causation; and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Mr. Perkel's complaint challenges the operation of the electoral college system and contends that the 12th Amendment, which governs the voting procedures for electors appointed by their states, violates the 14th Amendment guarantee of "one man one vote." See Complaint at 2. According to his complaint, Mr. Perkel's injury is the alleged nullification of his vote, cast in Missouri, by the operation of the electoral college in Missouri. See Complaint at 5.
The facts relied on by Mr. Perkel to support his complaint discuss alleged variances in the way states appoint and provide discretion to their electors. See Complaint at 3-4.
The government points out, based on Mr. Perkel's allegation, that Mr. Perkel's harm flows from Missouri's appointment of electors and those electors' subsequent votes for President and Vice President, and not from the actions of the United States. As the State of Missouri is not a party to this case, the government asserts that this Court lacks the power to redress plaintiff's injuries, and thus Mr. Perkel lacks standing to bring this case. The government also notes that the Constitution vests in the State of Missouri, as well as in the other states, broad discretion to appoint the electors whose votes will ultimately select the President and Vice President. See Constitution, Art. II; 12th Amendment; see also McPherson v. Blacker, 146 U.S. 1, 27 (1892).
Mr. Perkel, in reply, disputes that Missouri is a necessary party to this case, but does not provide any additional evidence of a harm that he has personally suffered that would be sufficient to confer standing on Mr. Perkel to allow him to bring his constitutional challenge against the United States. In the complaint, Mr. Perkel does allege that he "stands to be harmed if the State fails to implement procedures to ensure that it can determine the will of the people." Complaint at 5; see also Response at
2. However, as Mr. Perkel recognized, that potential harm flows from the actions of the state, not from the actions of the United States.
In the section of his complaint addressing standing, Mr. Perkel also asserts that he has been harmed by the possibility that the outcome of the presidential election may not reflect the will of the people, among other generalized grievances. These allegations, however, will not support Mr. Perkel's standing. See. e.g., Lujan, 504 U.S. at 574-75 ("We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen's interest proper application of the Constitution and laws, and see king 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.").
As Mr. Perkel has failed to allege facts that would demonstrate both that he has standing to bring this action against the United States and that this Court has power to redress Mr. Perkel's injuries given the identities of the parties to this suit, Mr. Perkel's complaint is DISMISSED without prejudice.
The Court has read Mr. Perkel's motion for summary judgment filed on December 27, 2000, arguing that the recent Supreme Court decision in George W. Bush. et al. v. Albert Gore. et al., 531 U.S. (20%) demonstrates the merit of the allegations contained in Mr. Perkel's complaint. However, the allegations contained in the motion for summary judgment do not save Mr. Perkel's complaint from dismissal for lack of standing.
4. Service to Mr. Perkel
Finally, Mr. Perkel asks the Court to order that service by the defendant and the Court be made on plaintiff by email. Mr. Perkel makes this request based upon his first amendment right to free exercise of religion. Mr. Perkel, as the founder and a member of the "Church of Reality, " asserts that he finds it religiously offensively to be served on paper when email is available.
The Court DENTES Mr. Perkel's request to order service by email.
CONCLUSION
Based on the foregoing discussion, the Court, accepting Mr. Perkel's factual allegations as true, finds that Mr. Perkel has failed to demonstrate that he has standing to pursue this action. For the reasons discussed, Mr. Perkel's request for an expedited hearing and expedited treatment of his allegations is DENIED and Mr. Perkel's complaint is DISMISSED without prejudice.
IT IS SO ORDERED.