United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-5164 September Term, 2021
1:21-cv-00448-DLF
Filed On: January 4, 2022
Robert L. Schulz and Anthony Futia, Jr., and
all others similarly situated,
Appellants
v.
Congress of the United States, Each member
of the Senate and House of Representatives,
Appellee
------------------------------
Consolidated with 21-5232
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Rogers, Pillard, and Walker, Circuit Judges
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the briefs filed by the appellants. See Fed. R. App.
P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing, the motions for
leave to file a supplemental appendix, and the motion to govern further proceedings, it
is
ORDERED that the motions for leave to file a supplemental appendix be denied.
The documents are not part of the record on appeal. See Fed. R. App. P. 10(a)(1)
(defining contents of record on appeal). It is
FURTHER ORDERED AND ADJUDGED that the district court’s October 1, 2021
order be affirmed. The district court properly dismissed the case without prejudice for
lack of subject matter jurisdiction, because appellants failed to establish their standing
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-5164 September Term, 2021
to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992) (“[A] plaintiff
raising only a generally available grievance about government – claiming only harm to
his and every citizen’s interest in proper application of the Constitution and laws, and
seeking relief that no more directly and tangibly benefits him than it does the public at
large – does not state an Article III case or controversy.”). Appellants do not challenge
the district court’s conclusion that they did not establish standing based on their status
as taxpayers and have therefore forfeited this argument. See United States ex rel.
Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004). Although appellants
continue to assert they possess standing based on the facts that they voted in the 2020
election and that they took an oath to support and defend the Constitution in connection
with their prior military service, they have not identified any particularized injury
sufficient to confer standing. See Lance v. Coffman, 549 U.S. 437, 442 (2007) (per
curiam) (an allegation that the law has not been followed is “precisely the kind of
undifferentiated, generalized grievance about the conduct of government” that cannot
serve as a basis for standing). Appellants also argue they have demonstrated a high
level of personal commitment and have invested significant personal resources, but
“standing is not measured by the intensity of the litigant’s interest or the fervor of his
advocacy.” Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 485 (1982). Finally, the district court correctly
determined the complaint did not challenge Congress’ alleged failure to respond to
appellants’ petition because the complaint does not set forward such a claim nor seek
any relief in connection with the alleged failure to respond. Thus, this argument need
not be considered here. See Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir.
2017) (“It is well settled that issues and legal theories not asserted at the District Court
level ordinarily will not be heard on appeal.” (citation and internal quotation marks
omitted)).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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