Richard P. Loritz, II v. United States Court of Appeals for the Ninth Circuit

ORDER

Richard P. Loritz, II (“Loritz”) was sentenced to seventeen years in California state prison following his jury-trial convictions for attempted murder. The California Court of Appeals affirmed the sentence and conviction and the California Supreme Court denied Loritz’s petition for review.

Loritz subsequently filed a habeas corpus petition in the district court for the Southern District of California, raising a number of challenges to his convictions, and the district court denied that petition. Loritz appealed (“the habeas appeal”) and the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) affirmed in an unpublished memorandum disposition pursuant to Rule 36-3. See Loritz v. Terhune, 60 Fed.Appx. 1 (9th Cir.2002). Lor-itz filed a petition for en banc review of the decision and a motion for publication of the disposition pursuant to Rule 36-4; both were denied. The United States Supreme Court subsequently denied Loritz’s petition for a writ of certiorari.

In April 2003, Loritz filed a pro se civil action against the Ninth Circuit challenging as unconstitutional the Ninth Circuit Rules concerning non-publication of dispositions of appeals, Ninth Circuit Rules 36-1 through 36-4 (“the Rules”).1 The Ninth Circuit moved for dismissal of the action on the ground that Loritz lacked standing under Article III of the Constitution. The district court granted the motion and Lor-itz appealed. The Ninth Circuit moved for summary affirmance, and we now consider that motion.

This court reviews de novo the district court’s dismissal of an action for lack of standing, “accepting as true all material allegations in [the] complaint and construing the complaint in [the plaintiffs] favor.” Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir.2002). Article III of the Constitution requires a plaintiff attempting to invoke the jurisdiction of the federal courts to demonstrate that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing under Arti-*992ele III of the Constitution requires a showing that: (1) the plaintiff has suffered an injury-in-fact, (2) the injury is fairly traceable to the challenged action of the defendant, and (3) the injury is likely to be redressed by a favorable decision. Environmental Defense Center, Inc. v. EPA, 344 F.3d 832, 863 (9th Cir.2003).

Under the “injury-in-fact” prong, the injury alleged must be “actual or imminent, not conjectural or hypothetical.” Id. Moreover, a plaintiff filing an action in federal court has the burden of alleging specific facts sufficient to satisfy the standing elements. Schmier, 279 F.3d at 821. Loritz contends that he established standing by, inter alia, (1) citing to an unpublished decision in his complaint and by referring to two unpublished decisions in his opposition to the defendant’s motion to dismiss, (2) claiming that the panel adjudicating his habeas appeal would have decided differently if it had issued a precedential decision in his case, and (3) asserting that future litigants are injured because they cannot cite his case as precedent.

After reviewing the record, the motion for summary affirmance, and Lor-itz’s response, we conclude that there is no merit to Loritz’s claim that he has standing. First, a litigant’s mere desire to cite an unpublished disposition does not, by itself, establish standing because a litigant must show how he or she was actually injured by a particular Circuit rule. See Schmier, 279 F.3d at 821-22. Here, Loritz does not show that the outcome of his particular case could have been affected were he able to cite an unpublished disposition. To assume that the court adjudicating his habeas appeal would have ruled differently is wholly speculative and unfounded, and cannot form the basis for Article III standing. See Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d 1141, 1152 (9th Cir.2000) (noting that “the causal connection put forward for standing purposes cannot be too speculative or rely on conjecture”). Second, we note that Loritz does not have standing by simply contending that the Circuit Rules “prevent all future litigants from bringing the decision in [Loritz’s] appeal to [the court’s] attention.” See Schmier, 279 F.3d at 821-22 (stating that the plaintiff does not have standing when he did not allege a violation of a right personal to himself, but rather a violation of others’ rights).

Because Loritz does not have standing to pursue his claims, we grant the Ninth Circuit’s motion for affirmance of the district court’s order dismissing the action.

AFFIRMED.

. We note that this is not a habeas appeal. See Plaintiff Opposition to Defendant's Motion to Dismiss at 7 (conceding that”[t]his is a civil suit, not a habeas petition.”). Loritz seeks, inter alia, a declaratory judgment that Circuit Rule 36-3 is null and void as well as a declaratory judgment that the opinion on his appeal is precedent and citable by all courts within the Ninth Circuit. He does not challenge his conviction or sentence.