A Truly Frivolous Lawsuit

Alabama lawyer Austin Burdick's February 23, 2016 suit filed in a federal district court in Alabama, representing himself pro se, against the five U.S. Supreme Court justices who were in the majority of Obergefell v. Hodges ruling in June of 2015 (which held that same sex marriage bans are unconstitutional) is the epitome of a frivolous lawsuit.

The suit alleges that the justices violated the United States Constitution by incorrectly holding that same sex marriage bans are unconstitutional, and seeks damages in excess of $6 million and additional punitive damages for (1) violations of the 5th Amendment under Bivens, a legal theory that allows individuals to sue government employees who violate their civil rights personally for money damages in certain circumstances, (2) breach of contract or oath, (3) breach of fiduciary duty, and (4) declaratory relief.

What is wrong with it?

Let me list some of the more obvious problems.

1. Judges have absolute immunity from liability for their judicial decision-making.  This is an ancient doctrine, with very few exceptions, that squarely applies in these circumstances.

Ironically, this part of the Complaint is probably the only one that is not sanctionable for violating Rule 11 of the Federal Rules of Civil Procedure related to frivolous lawsuits, because the Complaint acknowledges that absolute judicial immunity bars the suit and makes a (presumably) good faith argument for a change in the law (at paragraphs 27-32).

2. The interpretation of the United States Constitution articulated by a U.S. Supreme Court majority is, by definition, the correct interpretation of the U.S. Constitution that binds all federal district court judges.  So, his allegation that the U.S. Supreme Court majority's ruling violated the United States Constitution is wrong as a matter of law.

3. Put another way, the U.S. District Courts do not have subject matter jurisdiction to review decisions of the U.S. Supreme Court.

4. Austin Burdick has no standing to sue, which is a matter of subject matter jurisdiction, because he cannot show any tangible injury from the fact that same sex couples are allowed to marry.  Similarly, the oath made by the Justices was to the United States of America, not to him personally, as are any fiduciary duties that they owe.

5. Alabama does not have personal jurisdiction over any of the Justices all of whom work exclusively in the District of Columbia and live in its geographic vicinity and were not even ruling on a case involving Alabama parties when they made their Obergefell v. Hodges ruling. Therefore, this is the wrong place in which to sue these Justices on any question.

The lawsuit as a whole is frivolous, not just because he is wrong, but also because he does not address in his Complaint the other problems with his suit, which are obvious and do not have any remotely plausible legal basis, when he has not articulated any good faith basis for arguing that they should be changed.

So, he should really be sanctioned for violating Rule 11 as well as having his suit dismissed with prejudice, and realistically, because his actions are so fundamentally at odds with the conduct of any legitimate attorney, he should forfeit his membership in the federal court bar (if he has one) and perhaps be sanctioned by the state court bar reciprocally as well (something that may not happen in practice with Chief Justice Moore, who is guilty of similar sins, presiding over the Alabama Supreme Court).

The federal judge assigned to his case would be well within his rights to raise these issues sua sponte, without waiting for a lawyer on behalf of the U.S. Supreme Court Justices in question to make these arguments.

Note that the people are not entirely without a remedy when they disagree with a majority of the U.S. Supreme Court regarding an interpretation of the United States Constitution or some other law.

* The United States Constitution can be amended.

* Justices of the United States Supreme Court may be impeached in a proceeding initiated by a majority of the United States House of Representatives, and leading to a conviction by two-thirds of the United States Senate.

* New judges can be appointed by the President and confirmed by the U.S. Senate in the future, and the new panel of U.S. Supreme Court judges that results can overturn prior U.S. Supreme Court precedents.

But, none of the legitimate means by which concern can be raised about a U.S. Supreme Court Justice's decision making can be appropriately raised in a civil action for money damages brought against a U.S. Supreme Court Justice by a random attorney in a random state effected by a ruling which national precedential effect who has no personal interest in the controversy.