Larry E. Klayman v. Hillary Rodham Clinton, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14080
Non-Argument Calendar
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D.C. Docket No. 9:15-cv-80388-DMM
LARRY E. KLAYMAN,
Plaintiff - Appellant,
versus
HILLARY RODHAM CLINTON,
WILLIAM JEFFERSON CLINTON,
CLINTON FOUNDATION,
1271 Avenue of the Americans, 42nd Floor New York, New York 10020 Service:
Chairman Bruce Lindsey or Vice-Chairman Chelsea Clinton Mezvinsky
(nee’ Chelsea Victoria Clinton),
a.k.a. The William J. Clinton Foundation,
a.k.a. The Bill, Hillary and Chelsea Clinton Foundation,
CHERYL D. MILLS,
SIDNEY BLUMENTHAL,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 15, 2016)
Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Larry Klayman, an attorney proceeding pro se, filed this action asserting a
common law claim of misappropriation of chattel, several claims under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., and
two Bivens1 claims alleging violations of his First and Fifth Amendment rights.
All of his claims arose out of two requests for public documents lodged with the
United States Department of State pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Klayman alleged, among other facts, that the State
Department failed to respond adequately because the defendants, Hillary Rodham
Clinton, William Jefferson Clinton, and the Clinton Foundation, misappropriated
responsive documents. The district court dismissed Klayman’s amended
complaint under Federal Rule of Civil Procedure Rule 12(b)(1) for lack of Article
III standing and, in the alternative, under Federal Rule of Civil Procedure 12(b)(6)
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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for failure to state a claim. The district court also denied Klayman’s motion to file
a second amended complaint, concluding that allowing the proposed amendment
would be futile. This appeal followed.
We review de novo the dismissal of Klayman’s amended complaint for lack
of standing under Federal Rule of Civil Procedure 12(b)(1). See Stalley ex rel.
United States v. Orlando Regional Healthcare Sys., Inc., 524 F.3d 1229, 1232
(11th Cir. 2008). We also review de novo the district court’s determination that his
proposed amendment to the complaint would be futile. Cockrell v. Sparks, 510
F.3d 1307, 1310 (11th Cir. 2007).
We agree with the district court that Klayman failed to allege facts sufficient
to support Article III standing, and we adopt the district court’s reasoning on this
issue as set forth in its order entered on August 11, 2015. See Order Granting Mot.
to Dismiss, Klayman v. Clinton, et al., No. 9:15-cv-80388-DMM, slip op. at 5-9
(S.D. Fla. filed Aug. 11, 2015). In particular, we agree that under Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980), Klayman
has no general property interest in government records and FOIA does not provide
for “private actions to recover records wrongfully removed from Government
custody.” In addition, Klayman’s alleged economic injury is purely speculative
and thus insufficient to support Article III standing. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
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We also agree with the district court that Klayman’s proposed second
amended complaint failed to cure the standing deficiencies. Indeed, Klayman
concedes that the proposed second amended complaint is substantively no different
from the amended complaint. Like its predecessor, the proposed second amended
complaint contains no factual allegations that would show a concrete injury-in-fact,
as required for Article III standing. Moreover, it asserts the same FOIA-created
property interest that Kissinger rejected. We thus affirm the denial of his motion to
amend.
Because we affirm for lack of constitutional standing, we do not examine the
merits of Klayman’s claims. See Bochese v. Town of Ponce Inlet, 405 F.3d 964,
985 (11th Cir. 2005). Accordingly, we vacate the district court’s alternative
holdings, which purport to reach the merits, and remand with instructions to
dismiss this action without prejudice. See DiMaio v. Democratic Nat’l Comm.,
520 F.3d 1299, 1303 (11th Cir. 2008).
AFFIRMED.
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