Case 2:10-cv-02216-FCD-DAD Document 22 Filed 10/08/10 Page 1 of 9

1 BENJAMIN B. WAGNER
United States Attorney
2 YOSHINORI H. T. HIMEL #66194
Assistant U. S. Attorney
3 501 I Street, Suite 10-100
Sacramento, California 95814
4 Telephone: (916) 554-2760
5 Attorneys for Federal Defendant, the U.S. ELECTION ASSISTANCE COMMISSION
6
7
8 IN THE UNITED STATES DISTRICT COURT FOR THE
9 EASTERN DISTRICT OF CALIFORNIA
10
PAMELA BARNETT, No. 2:10-cv-2216 FCD DAD
11
Plaintiff, FEDERAL DEFENDANT'S
12 OPPOSITION TO PLAINTIFF’S
v. MOTION FOR VOTING RIGHTS ACT
13 THREE-JUDGE DISTRICT COURT
DAMON JERRELL DUNN, etc.,
14 et al., Date: October 22, 2010
Time: 10:00 a.m.
15 Defendants. Judge: 27, 8th Fl. (DAD)
16
17 Federal defendant, the United States Election Assistance Commission, has moved
18 to be dismissed from this largely state-law action. At this writing federal defendant has
19 not received an opposition from plaintiff, who instead has moved to convene a three-
20 judge district court under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c.
21 Because plaintiff's motion attempts to argue claims that she did not plead, federal
22 defendant treats her motion as a request for leave to amend, and shows here that
23 amendment to allege violations of Section 5 would be futile. Because the complaint
24 poses primarily State law questions not involving a federal interest, the usual result –
25 remand – should occur here.
26 STATEMENT
27 The plaintiff, Pamela Barnett, filed her state-court First Amended Complaint
28 ("Amd. Compl.") on July 12, 2010, alleging that nonfederal defendants committed

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1 various California Election Code ("CEC") statutory violations and state-law torts such as
2 spoliation. See headings at pages 5 (CEC sections), 12 (spoliation), 18 (CEC sections),
3 21 (public interest), 27 (fiduciary duty), and 36 (unjust enrichment). The heading at page
4 24 ("Defendants Bowen and Kelley Acted with Undue Influence in that Defendant Dunn
5 Maliciously Violated CEC § 2150 (a) (10) / (b) with the NVRA / HAVA and related
6 law") refers mainly to two CEC provisions. See Amd. Compl. attached to removal notice
7 filed August 17, 2010.
8 Plaintiff also sued federal defendant, the United States Election Assistance
9 Commission (USEAC), an independent federal agency established by the Help America
10 Vote Act, 42 U.S.C. § 15301 et seq. She alleged nothing against federal defendant. See
11 Amd. Compl. Federal defendant's motion to dismiss, for lack of subject matter
12 jurisdiction and failure to state a claim, is pending.
13 Plaintiff has noticed for hearing a motion for a three-judge district court under
14 Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. The memorandum
15 supporting plaintiff's motion, Clerk's Record ("CR") 11, repeatedly argues that Orange
16 County or the State of California failed to preclear voting changes (some allegedly made
17 to implement the National Voter Registration Act) with the United States Attorney
18 General under Section 5. E.g., CR 11, pages 2, line 21; 3, lines 3, 5 and 19; 4, lines 4 and
19 24; 5, lines 13-14 and 20; 6, lines 4-6; and 9, lines 4-5.
20 ARGUMENT
21 As federal defendant's dismissal motion shows, a plaintiff suing the federal
22 government in federal court must show federal jurisdiction including an applicable
23 statutory waiver of federal sovereign immunity, and on the merits must show a violation
24 of law by the federal defendant. Although plaintiff has moved to convene a three-judge
25 district court under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the
26 complaint fails to mention the Voting Rights Act or its Section 5. Because the motion
27 seeks to advance to claims not pled in the complaint, the motion should be read as a
28 request that, if the complaint is dismissed, the dismissal be with leave to amend.

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1 I. AMENDING THE COMPLAINT TO SUE UNDER THE VOTING

RIGHTS ACT BEFORE A THREE-JUDGE DISTRICT COURT
2 WOULD BE FUTILE
3 Plaintiff's motion to convene a three-judge district court under Section 5 of the
4 Voting Rights Act of 1965, 42 U.S.C. § 1973c, can be understood, if at all, as an
5 argument that dismissal of the Amended Complaint, as requested by both the federal
6 defendant and the State of California defendants, should be with leave to amend to state a
7 Section 5 claim. The current amended complaint mentions nothing about the Voting
8 Rights Act, nothing about the Act's Section 5, and nothing about a Section 5 action in a
9 three-judge district court. Accordingly, only in the context of a request for leave to
10 amend the complaint would the three-judge district court argument become relevant.
11 Leave to amend a pleading is discretionary under Fed. R. Civ. P. 15(a)(2). It is
12 given "when justice so requires." Id. "In the absence of any apparent or declared reason
13 – such as . . . futility of amendment, . . . – the leave sought should, as the rules require, be
14 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).
15 Here, amending the complaint to allege that plaintiff is entitled to a three-judge
16 district court under Voting Rights Act Section 5(a), 42 U.S.C. 1973c(a), would be futile.
17 Section 5 requires that Section 5-covered jurisdictions obtain preclearance of their
18 proposed election changes through the U.S. Department of Justice. Section 5 gives rise to
19 three types of court claims. Allen v. State Bd. of Elections, 393 U.S. 544, 561 (1969).
20 They are a State's declaratory judgment action; a U.S. Attorney General's action; and an
21 individual's action claiming "that a state requirement is covered by § 5, but has not been
22 subjected to the required federal scrutiny." Id. For several reasons, the claim argued in
23 plaintiff's motion lacks jurisdiction and amendment to plead it would be futile.
24
A. The Pertinent Jurisdictions Are Not Covered under
25 Section 5
26 A Section 5 cause of action can exist only for a State or locality that is covered
27 under Section 5. That is, it must be "a State or political subdivision with respect to which
28 the prohibitions set forth in section 1973b(a) of this title based upon determinations made

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1 under the first sentence of section 1973b(b) of this title are in effect." 42 U.S.C.
2 § 1973c(a).
3 Section 5 does not cover the County whose action plaintiff challenges. The list of
4 covered jurisdictions is found at 28 C.F.R. Part 51 Appendix. Orange County is not on
5 this list and is not covered by Section 5. Likewise, the State of California is covered only
6 for voting changes that impact Kings, Merced, Monterey, or Yuba Counties, the only
7 covered jurisdictions in California. Since the facts raised in this case involve Orange
8 County and Mr. Dunn's contested residency in Orange County, Section 5 does not apply,
9 and amending the complaint to assert a Section 5 claim would be futile.
10
B. Section 5 Does Not Provide a Sovereign Immunity Waiver
11 to Sue a Federal Agency
12 Next, even were plaintiff to complain against a Section 5 covered jurisdiction, such
13 as South Carolina in Reaves v. U.S. Dep't of Justice, 355 F. Supp. 2d 510 (D.D.C. 2005),
14 there is no subject matter jurisdiction of a suit against federal defendant under Section 5
15 because, as shown in federal defendant's dismissal motion, there is no showing of a
16 waiver of federal sovereign immunity. Plaintiff has the burden of naming an applicable
17 sovereign immunity waiver. See Malone v. Bowdoin, 369 U.S. 643, 645 (1962). She has
18 not carried that burden.
19 C. Federal Section 5 Decisions Are Not Judicially Reviewable
20 Next, to the extent that plaintiff's Section 5 motion might suggest a challenge to
21 any federal government decision under Section 5, review of such decisions is beyond the
22 federal courts' subject matter jurisdiction. Federal government action or inaction under
23 Section 5 is "discretionary and unreviewable." E.g., Reaves, 355 F. Supp. 2d at 514.
24
D. Plaintiff Lacks Article III Standing to Sue the Federal
25 Government under Section 5
26 Finally, plaintiff lacks Article III standing to sue the federal government under
27 Section 5. To establish Article III standing, a plaintiff must plead three elements:
28 (1) "injury in fact," (2) a "causal connection" between the injury and the challenged act,

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1 and (3) that the injury "likely" would be "redressed by a favorable decision." Lujan v.
2 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal quotations
3 omitted). "The party invoking federal jurisdiction bears the burden of establishing these
4 elements." Id. at 561. In the standing context, the Supreme Court "presume[s] that
5 federal courts lack jurisdiction unless the contrary appears affirmatively from the record."
6 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary,
7 501 U.S. 312, 316 (1991)).
8 The first element, "injury in fact," means an "invasion of a legally protected
9 interest which is (a) concrete and particularized . . . and (b) actual or imminent, not
10 conjectural or hypothetical." Lujan, 504 U.S. at 560 (internal quotations and citations
11 omitted). That injury "must affect the plaintiff in a personal and individual way." Id. at
12 560 n.1. It is difficult to understand why a particular candidate's presence on the ballot
13 would affect the plaintiff in a personal and individual way.
14 Next, plaintiff must show she meets the second element of Article III standing:
15 that her injury is "fairly traceable to the defendant's allegedly unlawful conduct."
16 DaimlerChrysler, 547 U.S. at 333 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
17 Neither the complaint nor the three-judge district court motion identifies any unlawful
18 conduct by the U.S. Election Assistance Commission. Nor does it show that the
19 complained-of acceptance by local election authorities of Mr. Dunn as a resident is fairly
20 traceable to the USEAC's actions. Without a "causal connection" from the federal
21 defendant's actions to the alleged injury, the plaintiff lacks this necessary standing
22 element.
23 Finally, plaintiff fails to establish redressability – that the requested relief against
24 federal defendant will correct the alleged violation. Despite plaintiff's reference to EAC's
25 so-called "agents in each state responsible for conducting elections," CR 11 at 7, lines 7-
26 8, federal defendant has no role in the conduct or the administration of local elections in
27 California. Only local jurisdictions or the State are responsible for submitting voting
28 changes under Section 5.

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1 In Reaves, several individual citizens sued federal defendants, among others, over
2 the failure by local officials to submit a voting change for preclearance under Section 5.
3 In dismissing the claim against the federal officials, the Court explained that "[i]n this
4 case, it is not the allegedly unlawful conduct of the federal defendants but that of the State
5 of South Carolina that allegedly caused injury to plaintiffs." This is because, under
6 Section 5, "it is the responsibility of the 'state or subdivision' to obtain preclearance for
7 any change to voting procedures." Reaves, 355 F. Supp. 2d at 515.
8 Likewise, here the alleged conduct – the acceptance of Mr. Dunn as a resident
9 eligible to run for office – allegedly was by Orange County or State of California actors,
10 not the federal government. Any relief against the USEAC would not redress the alleged
11 injury. Because "[t]his Court could grant no relief vis a vis the federal defendants that
12 would redress plaintiffs' alleged injury," "no cognizable case or controversy exists with
13 respect to those defendants." Id. Because plaintiff has failed to establish injury in fact,
14 causation and redressability, the Section 5 contention in plaintiff's motion, if pled, would
15 fail for lack of subject matter jurisdiction.
16 Thus, any amendment of the Amended Complaint to allege the contentions in
17 plaintiff's motion to convene a three-judge district court would be futile under Fed. R.
18 Civ. P. 15(a)(2) and Foman. To the extent that plaintiff's motion seeks leave to amend,
19 leave to amend should be denied.
20
II. WHETHER OR NOT THE COURT HAS DISCRETION TO RETAIN
21 THE ACTION, IT SHOULD REMAND TO THE STATE COURT
22 After addressing the federal and State of California defendants' dismissal motions,
23 the Court will need to decide whether to entertain the remainder of the suit here or to
24 remand it to the Superior Court, Sacramento County. Two Ninth Circuit panel decisions
25 contradict each other on whether this Court can invoke another ground of subject matter
26 jurisdiction of the action after dismissing a federal defendant that removed the action
27 under 28 U.S.C. § 1442:
28

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1 1. One Ninth Circuit decision holds that because this is a Section 1442 removal
2 premised on the presence of a federal defendant, the Court lacks any jurisdiction once the
3 federal defendant is dismissed. See Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir.
4 1998) (affirming remand after 1442 removal and dismissal of the federal agency because
5 the dismissal "destroyed the court's subject matter jurisdiction over the entire case, as the
6 presence of a federal agency was what gave rise to its initial removability").
7 2. The other Ninth Circuit decision holds that a "federal court does have the power
8 to hear claims that would not be independently removable even after the basis for removal
9 jurisdiction is dropped from the proceedings." Watkins v. Grover, 508 F.2d 920, 921 (9th
10 Cir. 1974) (reversing dismissal of action premised on dismissal of federal defendants who
11 had removed under 1442, and instructing district court to decide remand as discretionary
12 question) (citing, inter alia, Murphy v. Kodz, 351 F.2d 163, 167 (9th Cir. 1965)).
13 If Nebraska is correct, then the Court has no discretion and must remand the action
14 upon dismissing the federal defendant. If Watkins is correct, then upon dismissing the
15 federal defendant the Court must exercise discretion whether to entertain the suit or to
16 remand it.
17 If the question is discretionary, the Court should exercise its discretion in favor of
18 remand. In the context of a section 1442(a)(1) removal of a state-law complaint, the D.C.
19 Circuit in District of Columbia v. MSPB, 762 F.2d 129 (D.C. Cir. 1985) observes that
20 "[i]n this context, federal courts in this circuit and elsewhere regularly remand cases
21 removed under section 1442(a)(1) once the federal party is eliminated." 762 F.2d at 133.
22 The instant complaint is based primarily on state law. See the recitation in the
23 Statement, above. Also, amendment to plead Section 5 of the Voting Rights Act would
24 be futile. See argument I above. Even though the Court could exercise its discretion (if
25 the discretion exists) to retain this state-law complaint under 28 U.S.C. § 1367
26 (supplemental jurisdiction), see District of Columbia, 762 F.2d at 132-33, there is no
27 reason to do so in this action. The complaint, to the extent it might have any colorable
28 merit, "implicates complex local law questions," 762 F.2d at 133, that a state court is at

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1 least as qualified as this Court to answer. Accordingly, if any claim remains after
2 decision of the dismissal motions and dismissal of federal defendant, it should be
3 remanded.
4 CONCLUSION
5 As shown in federal defendant's dismissal motion and above, subject matter
6 jurisdiction to sue federal defendant is lacking. Moreover, plaintiff's three-judge district
7 court motion facially shows that amending the complaint to sue anyone under Section 5
8 would be futile.
9 The complaint accordingly must be dismissed without leave to amend as against
10 the U.S. Election Assistance Commission. Also, a granting of the dismissals requested by
11 the State of California defendants should be without leave to amend. Because the
12 complaint involves primarily state-law interests, any claims against nonfederal defendants
13 that might remain after the hearing of the pending motions should be remanded to the
14 Superior Court, Sacramento County.
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Dated: October 8, 2010 BENJAMIN B. WAGNER
16 United States Attorney
17 By: /s/ Y Himel
YOSHINORI H. T. HIMEL
18 Assistant U. S. Attorney
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1 CERTIFICATE OF SERVICE BY MAIL

2 The undersigned hereby certifies that she is an employee in the Office of the
United States Attorney for the Eastern District of California and is a person of such age
3 and discretion to be competent to serve papers.
4 That on October 8, 2010, she served a copy of:
5 FEDERAL DEFENDANT'S OPPOSITION TO
PLAINTIFF’S MOTION FOR VOTING RIGHTS ACT
6 THREE-JUDGE DISTRICT COURT
7 by placing said copy in an envelope addressed to the persons hereinafter named, at the
places and addresses shown below, which are the last known addresses, and mailing said
8 envelope and contents in the U.S. Mail in Sacramento, California.
9 Addressees:
10 Ms. Pamela Barnett Nicholas S. Chrisos, County Counsel
2541 Warrego Way Wendy J. Phillips, Senior Deputy
11 Sacramento, CA 95826 333 W. Santa Ana Blvd, Ste. 407
P.O. Box 1379
12 Santa Ana, CA 93702-1379
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/s/ Janet Bain
15 JANET BAIN
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