United States v. 2010-05-19 | 07-35949 | LEU V. INTERNATIONAL BOUNDR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SHIRLEY-ANN LEU; HERBERT LEU,
Plaintiffs-Appellees, No. 07-35949
v. D.C. No.
 INTERNATIONAL BOUNDARY CV-07-00510-MJP
COMMISSION, et al., OPINION
Defendants-Appellants
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
May 5, 2010—Seattle, Washington
Filed May 19, 2010
Before: Cynthia Holcomb Hall, Kim McLane Wardlaw and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
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COUNSEL
J. David Breemer and Brian T. Hodges, Pacific Legal Founda-
tion, Sacramento, California, for the plaintiffs-appellees.
Jill D. Bowman and Kenneth M. Odza, Stoel Rives LLP,
Seattle, Washington; Elliot J. Feldman (argued), Thomas D.
Warren, and Michael S. Snarr, Baker & Hostetler LLP, Wash-
ington, DC; Michael D. McKay, McKay Chadwell, PLLC,
Seattle, Washington, for defendant-appellant Dennis
Schornack.
Ronald J. Tenpas, David C. Shilton, and Mary Gabrielle
Sprague (argued), United States Department of Justice, Wash-
ington, DC, for defendant-appellant Kyle K. Hipsley.
OPINION
GOULD, Circuit Judge:
Dennis Schornack appeals the district court’s order denying
cross motions by Schornack and David Bernhardt in which
each sought to have the other’s filings quashed or struck from
the case. The case arose out of a property dispute between
Shirley-Ann and Herbert Leu and the International Boundary
Commission (IBC), an organization tasked with defining,
marking, and maintaining the boundary between the United
States and Canada. The IBC is composed of just two commis-
sioners, one from each country. The Leus brought a takings
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claim against the IBC and the United States Commissioner—
then Schornack—in his official capacity. While this suit was
pending, President George W. Bush, who had appointed
Schornack to the IBC in 2002, by letter explicitly purported
to remove Schornack from his post and to install Bernhardt in
his place. Schornack disagreed that the President could
remove him and sought to quash Bernhardt’s filings in the
district court. Schornack’s legal theory rested on the premise
that the President had no power to fire Schornack or appoint
Bernhardt under the terms of the treaties that created the IBC.
See Treaty Between the United States and Great Britain in
Respect of Boundary Between the United States and Canada,
U.S.-Gr. Brit., Feb. 24, 1925, 44 Stat. 2102; Convention
Between the United States and Great Britain Relating to the
Canadian International Boundary, U.S.-Gr. Brit., Apr. 11,
1908, 35 Stat. 2003. Schornack further argued that the Depart-
ment of Justice had no business representing the IBC because
the IBC is an international organization and not a United
States agency. Bernhardt correspondingly asked the district
court to strike all of Schornack’s filings that were made
through private counsel. The district court denied the motions
to quash and strike, but held that Schornack had been “effec-
tively removed” from the IBC, citing the President’s powers
under Article II of the Constitution and analyzing the treaties’
language. Schornack appeals that order. The fundamental
underlying question is whether Schornack, who has received
a termination letter from the President, can pursue this appeal
on behalf of the IBC after the President has said he is no lon-
ger on that Commission.
Schornack concedes that his argument is in the nature of a
request for declaratory relief. Schornack asks us to hold that
he was not lawfully terminated from his position and that
Bernhardt was not lawfully appointed to replace him. We con-
clude, however, that we do not have jurisdiction to so hold
because Schornack does not have Article III standing to seek
this relief. See Summers v. Earth Island Inst., 129 S. Ct. 1142,
1149 (2009) (holding that a party seeking relief “bears the
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burden of showing that he has standing for each type of relief
sought”).
[1] To the extent that Schornack merely seeks to have
President Bush’s action in removing him declared unlawful,
that is “not an acceptable Article III remedy.” See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 106-07 (1998)
(holding that “psychic satisfaction,” seeing “that a wrongdoer
gets his just deserts,” or ensuring that another is “punished for
[his] infractions,” are not cognizable Article III remedies);
Fieger v. Mich. Supreme Court, 553 F.3d 955, 962 (6th Cir.
2009) (“In the context of a declaratory judgment action, alle-
gations of past injury alone are not sufficient to confer stand-
ing.”).
[2] Schornack fares no better if he seeks a declaration that
he was improperly removed along with an order instructing
current Acting Commissioner Kyle K. Hipsley to vacate the
IBC offices and allow Schornack to resume the Commission-
er’s duties. Neither the President nor any high-ranking mem-
ber of the executive branch is a party to this suit. Accordingly,
any judgment entered in this case would not bind executive
officials. See Restatement (Second) of Judgments §§ 34, 62
cmt. a (1982) (“It is a basic principle of law that a person who
is not a party to an action is not bound by the judgment in that
action.”). Where requested relief “depends on the unfettered
choices made by independent actors not before the courts”—
here, the President’s decision to voluntarily bind himself to an
otherwise non-binding judgment—the claim is not redressable
and this court lacks jurisdiction over it. See Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 562 (1992). From the early days
of our Republic, the Supreme Court has consistently held that
federal courts are not here to give advisory opinions. See, e.g.,
Cohens v. Virginia, 19 U.S. 264, 399-402 (1821); Flast v.
Cohen, 392 U.S. 83, 96-97 (1968). It is not permissible under
Article III for us to give an essay-like lecture to the executive
branch in a decision that will not bind it because it is not a
party to this litigation.
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[3] Without filing his own lawsuit, and while expressly
disclaiming that he is seeking to make any personal claim,
Schornack has elected to contest the lawfulness of the Presi-
dent’s attempt to remove him by filing motions in a suit in
which no executive-branch official is a party. Cf. Swan v.
Clinton, 100 F.3d 973, 979-81 (D.C. Cir. 1996) (concluding
that an injunction against the President was unnecessary
where enjoining “subordinate officials . . . could substantially
redress [the plaintiff ’s] injury”). We lack jurisdiction to
review Schornack’s non-redressable claim, whether presented
under the collateral-order doctrine or through a petition for a
writ of mandamus, and all claims here asserted by Schornack
against the executive branch are dismissed. We therefore
vacate the district court’s order and remand with instructions
to grant the motion to strike filed by the Department of Justice
with respect to all filings by Schornack on or after July 10,
2007. We express no view on the merits of the validity of
President Bush’s termination of Schornack’s tenure as Com-
missioner of the International Boundary Commission. Each of
the three parties shall bear its own costs.
VACATED and REMANDED.
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