Case 4:16-cv-00106 Document 36 Filed in TXSD on 04/13/16 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`CIVIL ACTION H-16-106
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`§§
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`§
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`NEWTON BORIS SCHWARTZ, SR.,
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`Plaintiff,
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`v.
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`TED CRUZ,
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`Defendant.
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`MEMORANDUM OPINION & ORDER
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`Pending before the court is defendant Ted Cruz’s motion to dismiss plaintiff Newton Boris
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`Schwartz, Sr.’s second amended complaint. Dkt. 14. Having considered the motion, response, reply,
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`the applicable law, and the arguments of counsel at a hearing held on April 13, 2016, the court is of
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`the opinion that the motion should be GRANTED.
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`I. BACKGROUND
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`Pro se plaintiff Newton Boris Schwartz, Sr. filed this lawsuit on January 14, 2016. Dkt. 1.
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`Schwartz amended his complaint once on January 19 (Dkt. 3) and again on February 3 (Dkt. 7). In
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`his second amended complaint, Schwartz asks the court to declare that defendant, United States
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`Senator Ted Cruz, is ineligible to serve as President of the United States. Id. Schwartz subsequently
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`filed two memoranda which purport to supplement his second amended complaint. Dkts. 8, 11.
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`Schwartz requests a “Declaratory Judgment adjudicating and deciding whether or not Defendant
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`Cruz is eligible to be elected and certified by the Electoral College vole [sic] and serve as President
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`of the United States per U.S. Constitution Article II, Section I, Clause 5.” Dkt. 7 at 11. Article II,
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`section 1 of the Constitution states: “No person except a natural born Citizen, or a Citizen of the
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`United States at the time of the Adoption of this Constitution, shall be eligible to the Office of
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`President.” U.S. Const. art. II, § 1, cl. 4 (emphasis added). Schwartz claims that because Cruz was
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`born in Canada, he is not a natural born citizen and therefore cannot serve as President. Dkt. 7 at
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`6. On February 22, 2016, Cruz filed a motion to dismiss Schwartz’s lawsuit pursuant to Federal
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`Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 14. On March 14, Schwartz filed a response
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`to the motion (Dkt. 24), to which Cruz filed a reply (Dkt. 25). On April 13, the court held a hearing
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`on Cruz’s motion to dismiss.
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`II. LEGAL STANDARD
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`A court may dismiss a complaint for “failure to state a claim upon which relief can be
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`granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
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`plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc.,
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`699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
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`Ct. 1955 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “Factual allegations must
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`be enough to raise a right to relief above the speculative level . . . on the assumption that all the
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`allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555.
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`Plaintiff “must allege in his pleading the facts essential to show jurisdiction. If he fails to
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`make the necessary allegations he has no standing.” McNutt v. Gen. Motors Acceptance Corp. of
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`Ind., 298 U.S. 178, 189, 56 S. Ct. 780 (1936). “[I]f the plaintiff does not carry his burden ‘clearly
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`to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute,’
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`then dismissal for lack of standing is appropriate.” Hotze v. Burwell, 784 F.3d 984, 993 (5th Cir.
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`2015) (quoting FW/PBS, Inc. v. City of Dall., 493 U.S. 215, 231, 110 S.Ct. 596 (1990)).
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`III. LAW & ANALYSIS
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`Cruz argues that Schwartz’s complaint must be dismissed for the following reasons: (1)
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`Schwartz lacks standing to challenge Cruz’s eligibility under Article II; (2) any challenge to Cruz’s
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`eligibility is not yet ripe; (3) this court is not the proper forum for challenging a presidential
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`candidate’s qualifications; and (4) Schwartz has failed to allege a cause of action. Dkt. 14 at 14. In
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`the event that the court does not dismiss Schwartz’s complaint, Cruz requests that the court find that
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`he is a “natural born citizen” and is therefore eligible for the office of President of the United States.
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`Id. at 26. Because the court finds that Schwartz’s lawsuit must be dismissed based on standing and
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`ripeness, the court does not reach the political question issue or the merits. See Lance v. Coffman,
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`549 U.S. 437, 440, 127 S. Ct. 1194 (2007) (per curiam) (“Federal courts must determine that they
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`have jurisdiction before proceeding to the merits.”).
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`A. Standing
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`Standing is a jurisdictional question that concerns “the power of the court to entertain that
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`suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197 (1975). “Article III of the Constitution
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`limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony List v.
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`Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting U.S. Const. art. III, § 2). The doctrine of standing
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`is used to determine whether a “case” or “controversy” exists by “identify[ing] those disputes which
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`are appropriately resolved through the judicial process.” Id. (quoting Lujan v. Defenders of Wildlife,
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`504 U.S. 555, 560, 112 S. Ct. 2130 (1992)). To establish Article III standing, Schwartz “must show
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`(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct
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`complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’”
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`Id. (quoting Lujan, 504 U.S. at 560–61). The burden to establish standing lies with the party seeking
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`to invoke the jurisdiction of a federal court. Id. at 2342. “An injury sufficient to satisfy Article III
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`must be concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at
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`2341 (citation and internal quotation marks omitted).
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`raising only a generally available grievance about
`[A] plaintiff
`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.
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`Lujan, 504 U.S. at 573–74.
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`Schwartz has not and cannot satisfy the injury in fact element of standing that “lies at the core
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`of article III concepts of the limits of the exercise of the federal judicial power.” White v. U.S. Pipe
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`& Foundry Co., 646 F.2d 203, 206 (5th Cir. 1981). Indeed, several courts have held that an
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`individual citizen does not have standing to challenge a candidate’s eligibility to serve as president.
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`See, e.g., Grinols v. Electoral Coll., No. 2:12-CV-02997-MCE, 2013 WL 2294885 at *14 (E.D. Cal.
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`May 23, 2013) (“Plaintiffs lack standing to bring this action.”), aff’d on other grounds, 622 F. App’x
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`624 (9th Cir. 2015); Reade v. Galvin, No. CIV.A. 12-11492-DJC, 2012 WL 5385683 at *3 (D.
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`Mass. Oct. 30, 2012) (“To the extent that Reade is attempting to bring a claim to remove President
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`Obama’s name from the presidential ballot on the ground that he is ineligible for that office, Reade
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`lacks standing.”), aff’d, No. 12-2406 (1st Cir. June 11, 2013).
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`To date, four other federal courts have rendered decisions with respect to actions seeking
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`declaratory or injunctive relief in connection with Cruz’s alleged ineligibility to run for President.
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`Fischer v. Cruz, No. 16-CV-1224(JS)(ARL), 2016 WL 1383493 (E.D.N.Y. Apr. 7, 2016); Wagner
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`v. Cruz, No. 2:16-CV-55-JNP, 2016 WL 1089245 (D. Utah Mar. 18, 2016); Librace v. Martin, No.
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`16-CV-0057 (E.D. Ark. Feb. 29, 2016); Booth v. Cruz, No. 15-CV-518-PB, 2016 WL 403153
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`(D.N.H. Jan. 20, 2016). All four cases were dismissed for lack of standing. In Wagner, the court
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`held that the plaintiff did not demonstrate “any particularized harm resulting from Senator Cruz’s
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`campaign” and that the plaintiff’s alleged harms of Senator Cruz “potentially skew[ing]” election
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`results and “potentially. . . unlawfully serving as President” were speculative rather than “actual and
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`imminent.” 2016 WL 1089245, at *3 (finding that the plaintiff’s status as a “a citizen of Utah,
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`registered to vote in Utah, and a long-time resident in Utah” did not confer standing on the plaintiff).
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`In Librace, the court held that the plaintiff’s claims regarding Cruz’s ineligibility were not “concrete
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`and particularized because he shares these injuries with every other voter in Arkansas.” Librace, at
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`3. In Booth, the court held that the plaintiff lacked standing and rejected the argument that Cruz’s
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`presence on the New Hampshire Republican Primary ballot impeded the plaintiff’s right to vote.
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`2016 WL 403153, at *2 (noting that “an individual voter challenging the eligibility of a candidate
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`for President lacks standing to assert a claim based on the general interests of the voting public”).
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`Most recently, in Fischer, the court held that the “[p]laintiff’s allegation that Senator Cruz’s presence
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`on the [New York] ballot will somehow damage his rights as a voter does not constitute a
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`sufficiently particularized injury to establish standing under Article III.” 2016 WL 1383493, at *2.
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`Like the other federal courts which have ruled on this question, this court finds that Schwartz lacks
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`standing to bring this lawsuit.
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`Schwartz does not cite any federal court cases that have held that an individual citizen has
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`standing to challenge a candidate’s eligibility to serve as President. Nor has the court been able to
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`locate any such case. The court will, however, briefly address Schwartz’s various arguments for
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`standing. In his second amended complaint, Schwartz frames his potential injury as an abstract harm
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`to the political process. For example, Schwartz claims that “it is politically beneficial to both
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`Defendant Cruz as well as the entire United States to do so politically, for this Court to decide
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`whether” Cruz is eligible. Dkt. 7 at 10. However, it is well settled that this type of general harm is
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`not a cognizable interest for purposes of Article III standing. See Schlesinger v. Reservists Comm.
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`to Stop the War, 418 U.S. 208, 220, 94 S. Ct. 2925 (1974) (holding that the plaintiffs lacked standing
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`to pursue a claim alleging that certain members of Congress were ineligible for office and stating that
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`“standing to sue may not be predicated upon an interest . . . which is held in common by all members
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`of the public”). Schwartz also claims that the court’s resolution is necessary “[i]n order to cast an
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`intelligible meaningful vote or votes (primary and national) now and on November 8, 2016.” Id. at
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`11. The “meaningful vote” theory for standing has also been rejected by numerous federal courts.
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`In Jones v. Bush, the court held that three Texas voters lacked standing to bring a suit alleging that
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`George W. Bush and Dick Cheney were ineligible to receive Texas’s electoral votes under the
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`Twelfth Amendment. 122 F. Supp. 2d 713, 717 (N.D. Tex. 2000) (“Plaintiffs’ assertion that a
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`violation of the Twelfth Amendment will harm them by infringing their right to cast a meaningful
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`vote also fails to satisfy the Article III requirement of a ‘distinct and palpable injury.’”).
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`The Fifth Circuit cases cited by Schwartz—In re Cao and Texas v. United States—are
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`unavailing because they involve cases where the plaintiffs had cognizable injuries. In In re Cao,
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`plaintiffs Anh Cao (a Republican Congressman) and the Republican National Committee of
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`Louisiana (RNCL) were found to have Article III standing to contest the Federal Election
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`Committee’s (FEC) decision under § 437 of the Federal Election Campaign Act of 1971. 619 F.3d
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`410, 421 (5th Cir. 2010) (en banc). The plaintiffs were challenging limits placed on political
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`spending that the plaintiffs themselves had reached. Id. (“[T]he RNC wanted to make additional
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`expenditures, and but for the $42,100 Party Expenditure Provision making it illegal to do so, the
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`RNC would have made these expenditures. This injury is not conjectural, but rather, is sufficiently
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`concrete to satisfy the requirements of Article III.”). Here, Schwartz cannot show a similar concrete
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`injury which he has suffered that would satisfy the requirements of Article III.
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`Schwartz also cites Texas v. United States, where the Fifth Circuit held that Texas was likely
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`to have standing to contest President Obama’s administrative ruling protecting eleven million illegal
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`persons from deportation. 787 F.3d 733, 754 (5th Cir. 2015) (holding that “[a]t least one
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`state—Texas—is likely to satisfy all three requirements, so the government’s challenge to standing
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`is without merit”). The court held that Texas had standing because it would be required to issue
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`drivers’ licenses to beneficiaries of the Deferred Action for Parents of Americans and Lawful
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`Permanent Residents program (“DAPA”), and the costs of doing so would constitute a cognizable
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`injury. Id. at 748 (noting that Texas would lose at least $130.89 on each license it issues to a DAPA
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`beneficiary). Schwartz cannot show any financial injury. Tellingly, Schwartz failed to address the
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`numerous cases cited by Cruz where courts dismissed lawsuits that were nearly identical to the one
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`at hand for lack of standing. See Dkt. 14, n. 3 (collecting cases). Accordingly, Schwartz has failed
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`to carry his burden of establishing that he is a proper party to invoke judicial resolution of this
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`dispute.
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`1 B
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`. Ripeness
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`The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication,
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`from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148
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`(1967). “The ripeness doctrine counsels against ‘premature’ adjudication by distinguishing matters
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`that are ‘hypothetical’ or ‘speculative’ from those that are poised for judicial review.” LeClerc v.
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`Webb, 419 F.3d 405, 413–14 (5th Cir. 2005) (quoting United Transp. Union v. Foster, 205 F.3d 851,
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`857 (5th Cir. 2000)). “Ripeness often overlaps with standing, ‘most notably in the shared
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`requirement that the injury be imminent rather than conjectural or hypothetical.’” Miss. State
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`At the oral hearing, Schwartz candidly admitted that if the court followed the many decisions on
`standing cited by Cruz, the court should dismiss the case.
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`Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008) (quoting Brooklyn Legal Servs.
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`Corp. v. Legal Servs. Corp., 462 F.3d 219, 225 (2nd Cir. 2006)).
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`This doctrine is especially important when the abstract disagreements of the parties implicate
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`constitutional questions. See Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138, 95 S. Ct. 335
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`(1974) (“[T]o the extent that questions of ripeness involve the exercise of judicial restraint from
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`unnecessary decision of constitutional issues, the Court must determine whether to exercise that
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`restraint and cannot be bound by the wishes of the parties.”). Even if Schwartz had standing to sue
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`Cruz, this case would not yet be ripe. Schwartz’s response to Cruz’s motion to dismiss points out
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`that primary season is still ongoing. Dkt. 24 at 11 (noting that about half the GOP primary delegates
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`were outstanding as of March 14). The Fifth Circuit has made it clear that “[a] controversy, to be
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`justiciable, must be such that it can presently be litigated and decided and not hypothetical,
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`conjectural, conditional or based upon the possibility of a factual situation that may never develop.”
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`Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (quoting Brown & Root, Inc. v. Big Rock
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`Corp., 383 F.2d 662, 665 (5th Cir. 1967)). Cruz has not yet been nominated as the Republican
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`Party’s candidate and may never be. He has not yet been elected President of the United States and
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`may never be. Therefore, it would be premature for the court to address this issue.
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`IV. CONCLUSION
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`For the foregoing reasons, the court GRANTS Cruz’s motion to dismiss (Dkt. 14).
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`Additionally, the court finds that any further amendments by Schwartz would be futile. Therefore,
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`Schwartz’s complaint is DISMISSED WITH PREJUDICE.
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`Signed at Houston, Texas on April 13, 2016.
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`___________________________________
` Gray H. Miller
` United States District Judge
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