Here we go again.
Like Orly and Phil Berg before him, on January 30, Leo Donofrio announced his epiphany that military Plaintiffs have standing in federal court to determine whether BO is a NBC. (“Ineligible POTUS best challenged by active military in Federal court.”) Only 2 ½ months after I first sent him the idea, in the 6-page memo I originally posted on this blog on November 14. Not surprisingly, he does not mention where he got the idea; he never even uses my name.
I posted a comment on his blog pointing out, ‘his’ idea sounded surprisingly like mine. Following is his response.
January 30, 2009 at 6:53 pm
Leo, I wrote that military Complaint obliquely referenced in the heading of your article, weeks ago. And it does not require any military personnel to disobey an order, before acquiring the standing to bring this suit. I even added in an additional fact among the FACTS section that de-bunks FactCheck, courtesy of BO’s latest non-response response in Hollister.
[Ed. Readers should take a look at his blog. But keep in mind, the concept requires a class action with MANY soldiers signing on. There’s power in numbers. And there’s standing.]
Now, Leo can use all the capital letters he wants but, he is just plain wrong that the “concept requires a class action with MANY soldiers signing on.” And he’s wrong to imply “numbers” confer “standing.” Obviously, he is opining without having done the research. Of course, I did the research before drafting the military Complaint. So, I wrote another comment on his blog, which was followed by another note from him.
January 31, 2009 at 10:44 am
Leo, the beauty of the Declaratory Judgment Act is that, Plaintiffs can act qua class without class certification or multiple Plaintiffs. This is part of the beauty of relying on this particular federal law. In other words, any decision that applies to the Plaintiff named, applies to all similarly situated potential Plaintiffs.
[Ed. That’s certainly interesting.]
A great source for research is the Federal Practice Manual for Legal Aid Attorneys. Here is the opening paragraph from the section on Declaratory Judgment.
The Declaratory Judgment Act offers a unique mechanism by which advocates may seek to remedy ongoing violations of statutory or constitutional law./115/ The Act may authorize broad, classwide declaratory and injunctive relief without resort to class action procedures./116/ Distinctive features of the Act:
• allow prospective defendants to sue to establish their nonliability/117/ and
• afford a party threatened with liability an opportunity for adjudication before its adversary commences litigation./118/
However, the statute on its face makes no express reference to, and creates no special preference for, the resolution of such “anticipatory” disputes. A party need not be a prospective defendant in order to bring an action under the Act./119/ Clearly, however, the unique declaratory form of relief created by the statute was intended to resolve pending or threatened controversies before the need for more coercive intervention was required.
Finally, let me emphasize that based on the legal theories and causes of action underlying the military Complaint I envisioned and drafted, establishing standing does not require insubordination. Thus, I never even hinted that any soldier seeking to become a Plaintiff in this military Complaint should disobey any orders. However, the Release Orly printed on her web site, and which several military have already signed, does this; and as you can read below, when I saw her Release, I pointed out this conflict between the language in that Release and, my Complaint, and asked her to amend her Release. As of this writing, she has not.
(Military, please read the TEMPLATE FOR THE MILITARY COMPLAINT AGAINST BARACK OBAMA and get back to me with your thoughts.)