The first of these assertions is mentioned in several posts. It is the assertion that `Lack of claim is an element of standing applied to the plaintiff, not an element of jurisdiction applied to the court. See post 95 above. A little bit of inquiry shows that this is not the law. Lack of claim under Rule 12 (b)(6) is separate from standing and standing is not an element of lack of claim since the two things, under the law, are distinct.
This can easily seen by examining the opinion of the Supreme Court in the well-known case of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37-38 (1976), at a point where it quotes on point regarding standing from the even better known case of Flast v. Cohen, 392 U.S. 83 (1968). Here is what it said about standing to distinguish it clearly from other doctrines such as failure to state a claim:
No principle is more fundamental to the judiciarys proper role in our system of government that the constitutional limitation of federal-court jurisdiction to actual cases or controversies. See Flast v. Cohen, 392 U.s. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.947, 958 (1968). The concept of standing is part of this limitation. Unlike other associated doctrines, for example, that which restrains federal courts from deciding political questions, standing focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. Id., at 99, 88 S.Ct. at 1952, 20 L.Ed.2d at 961.
In the Hollister case Judge Robertson, in his opinion of March 5, 2009, stated that he had jurisdiction because of the interpleader statute and then dismissed the case, he specifically stated, for failure to state a claim under Rule 12(b)(6). Thus, he focused on the issues that Colonel Hollister was seeking to focus the courts attention on and not on Colonel Hollister as a party. In order to dismiss for that reason he had to consider with the claim of Colonel Hollister was meritorious. As his opinion reveals his principal focus was on what he found to be a lack of tangible property as an interpleader stake. This preoccupation was with the merits of the interpleader claim of Colonel Hollister and not with any issue involving Colonel Hollister as a claimant. It was on the claim and not the party.
That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled. This is document 1204814 on the appellate docket in the case, filed September 9, 2009. On page 21 Bauer begins his argument that Colonel Hollister had no standing by claiming that Judge Robertson had assumed he had jurisdiction without analysis and thus, by necessary implication, had failed to analyze standing For Bauer then spends a good deal of argument claiming lack of Article III standing. Of course, any judge at any level may consider standing at any point. But that is not to say that standing is the same as the claim itself or is an element of it.
This distinction between a Rule 12(b)(6) failure to state a claim and standing or any other issue dealing with the claimant rather than the claims has been made in every court that has looked at the issue. There is no law supporting the idea that standing is an element of a claim. It is always addressed as an issue of the right of the claimant to pursue the claim because of the claimants status, not the content of his claim. In Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir.1995) for example, the 7th Circuit found that even if a Rule 12(b)(1) motion were an indirect attack on the merits of the claim it could be treated as a Rule 12(b)(6) motion for dismissal because of failure to state a claim. This emphasized that Rule 12(b)(6) failure to state a claim motions focus on the merits.
Similarly, in Reeves v. Guifridda, 756 F.2d 1141, 1143 (5th Cir.1985) the 5th Circuit found that a motion, because it went to the merits, had to be treated as a Rule 12(b)(6) motion about whether or not there was a failure to state a claim and considered the merits, finding that a claim had been stated. In an earlier case, Whiting v. Seyfrit, 203 F.2d 773, 774 (7th Cir.1953) the 7th Circuit treated a motion to dismiss a pro se complaint brought charging a conspiracy in violation of constitutional rights where the defendants dismissal motion was on the grounds that the complaint failed to state a cause of action under the Constitution or laws of the United States as a Rule 12(b)(6) motion to dismiss for failure to state a claim. The Supreme Court again emphasized the distinction between jurisdictional arguments such as lack of standing and claims a few years ago when it held that the statute of limitations defense is not jurisdictional but goes to the merits in the case of Day v. McDonough, 547 U.S. 198, 205 (2006).
For those who wish to see the man in the White House get away with trashing the Constitution and our system of law based on it, of course, the law does not matter, but for those who do claim to be concerned it is imperative that such errors of law not be spread abroad. It is only if judges believe that they are being watched to see if they choose to actually apply the law that we will see the Rule of Law have a chance of prevailing.
Bump for later review....
Thank you for the detailed post. Not being a lawyer myself, it helps to hear these details supported by case law. As we all “hash” this eligibility issue out...it is important for all of us to have accurate information if we are to succeed! Lets hope the court has the fortitude to do what’s right.
"That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled."
I totally disagree with your conclusion above that Roberson "was thus assuming standing". You are putting words in his mouth, in my view. Your case quote from Flast does not support your contention that Robertson found that Hollister had standing.
Your quote from Flast is a broader definition of jurisdiction over a particular case, which includes the requirements of standing for the plaintiff, as compared to jurisdiction of a court in general over types of cases without regard to particular plaintiffs, such as whether a court can hear quo warranto.
You are in fact making my point that Roberson found that Hollister lacked standing becasue Hollister failed to claim an actual controversy that the court could remedy.
To have an actual controversy that would justify standing, Hollister had to claim an "injury in fact" (an element of standing). To try to satisfy that requirement Hollister put before the judge his interpleader "stake" claiming potential damage to this "stake" if Obama is found to be ineligible.
Robertson denied the validity of Hollister's claim to an injury in fact and thus denied Hollister standing. Without an injury in fact, the court is unable to fashion a remedy for a nonexistent injury. So while Robertson got as far as finding that his court had a general standing to hear the matter, Robertson found that plaintif Hollister's specific claims for injury before the court failed to justify granting Hollister standing.
Thanks for your pings and information!