Ballentine v. U.S.

• Decision Date: 10 May 2007
• Docket Number: No. 06-4800.,06-4800.
• Citation: 486 F.3d 806
• Parties: Krim M. BALLENTINE, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

486 F.3d 806

Krim M. BALLENTINE, Appellant v. UNITED STATES of America.

No. 06-4800.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) May 9, 2007.

Filed May 10, 2007.

Krim M. Ballentine, St. Thomas, V.I., Pro Se Appellant.

Michael J. Singer, United States Department of Justice, Civil Division, Matthew M. Collette, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, Jocelyn Hewlett, Office of United States Attorney, Charlotte Amalie, St. Thomas, USVI, for Appellee.

Before SLOVITER, STAPLETON, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Appellant Krim Ballentine, a citizen of the United States Virgin Islands, appeals the decision of the District Court of the Virgin Islands to grant Appellee United States' motion for dismissal under Federal Rule of Civil Procedure 12(b)(1) and (6). We will affirm the District Court's decision and adopt its well-reasoned opinion in full.

I.

The facts in this case are not in dispute. Pro se appellant Krim Ballentine was born in Missouri in 1936, and worked as a deputy United States Marshal in the continental United States for many years. In 1973, the Marshal Service transferred Ballentine to the United States Virgin Islands. In 1985, Ballentine retired from the Marshal Service and took permanent residence in the Virgin Islands.

On July 30, 1999, Ballentine brought an action against the United States in the District Court of the Virgin Islands asserting various constitutional claims stemming from (1) his inability, as a resident of the Virgin Islands, to vote in the election of the President of the United States or be represented by voting members of Congress and (2) the status of the Virgin Islands as an unincorporated territory. The United States moved to dismiss Ballentine's claims. In a memorandum dated October 15, 2001, District Court Judge Thomas K. Moore chronicled in detail the history of Virgin Islands governance from 1906, when the Islands were a colony of Denmark, to present. See Ballentine v. United States, No. 1999-130, 2001 WL 1242571 (D.V.I.2001). In so doing, Judge Moore clarified and expounded upon Ballentine's arguments. Ultimately, Judge Moore explained that he could not rule on the United States' motion without more information, and he ordered supplemental briefing on a variety of issues. See id. at *14. After the supplemental briefing, the District Court again considered the United States' motion. By this time, however, Judge Moore had retired, and Judge Anne E. Thompson had been assigned the case. On September 21, 2006, Judge Thompson granted the United States' motion. See Ballentine v. United States, No. 1999-130, 2006 WL 3298270, at *1 (D.V.I.2006).

On October 13, 2006, Ballentine filed a timely notice of appeal.

II.

We have jurisdiction over Ballentine's claims pursuant to 28 U.S.C. § 1291, and we review de novo a district court's grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir.2006). We also review de novo a district court's jurisdictional determinations. In re Phar-Mor, Inc. Securities Litigation, 172 F.3d 270, 273 (3d Cir.1999).

III.

On appeal, Ballentine asserts that (1) he has a right under the Constitution to vote in presidential elections, (2) he has the right to be represented in Congress by a regular voting member, (3) the Revised Organic Act of 1954 is unconstitutional, (4) Congress does not have the power to confer citizenship upon persons born in the Virgin Islands after 1917, and (5) the International Covenant on Civil and Political Rights provides residents of the Virgin Islands with substantive rights, including the right to vote for President of the United States.

The District Court did an excellent job explaining and addressing all five of Ballentine's claims, and we find its analysis complete and correct. Accordingly, we attach a copy of the District Court's opinion to this opinion and adopt that opinion as our own.

IV.

For the foregoing reasons, we will affirm the District Court's decision to grant the United States' motion to dismiss Ballentine's claims.

ATTACHMENT

OPINION AND ORDER

THOMPSON,^* District Judge.

This matter is before the Court on motion of Defendant United States of America to dismiss the complaint in the above-captioned matter pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The Court has decided this motion after reviewing the submissions of the parties and the transcripts of the oral arguments held before District Judge Thomas K. Moore on June 9, 2000 and March 21, 2002.¹ For the reasons set forth below. Defendant's motion is granted.

BACKGROUND

The political history of the relationship between the Virgin Islands and the United States was thoroughly discussed by Judge Moore in his Memorandum of October 15, 2001, it will not be reiterated here. See Ballentine v. United States, No. CIV.1999-130, 2001 WL 1242571, at *1-8 (D.Vi. Oct. 15, 2001). The facts underlying this case are clear and not in dispute. Plaintiff pro se Krim M. Ballentine was born in St. Louis, Missouri on October 22, 1936. After working for a number of years as a deputy United States Marshal in the continental United States, Mr. Ballentine was transferred in 1973 to the U.S. Virgin Islands, where he has remained ever since.

Mr. Ballentine brought the present action on July 30, 1999, claiming that he has been denied his constitutional right to vote in presidential elections, and his right to be represented in Congress by a regular voting member, because of his status as a United States citizen residing in an unincorporated territory of the United States. Mr. Ballentine asks the Court to strike down as unconstitutional the Revised Organic Act of 1954, 48 U.S.C. §§ 1541-1645, wherein Congress designated the Virgin Islands as an unincorporated territory pursuant to its power to "dispose of and make all needful Rules and Regulations respecting the Territory" under the Territory Clause, U.S. Const. art. IV, § 3, cl. 2. He further asks the Court to declare that Congress's Territory Clause power does not include the authority to grant citizenship to persons born in the Virgin Islands after it became a United States possession, and that such persons instead are citizens by direct operation of the Constitution. The present motion to dismiss followed soon thereafter.

STANDARDS OF REVIEW

A. Fed.R.Civ.P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a party may bring a motion to dismiss for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). A motion to dismiss for want of standing is also properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter. See St. Thomas-St. John Hotel & Tourism Ass'n v. Gov't of the U.S. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000) ("The issue of standing is jurisdictional."); Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 733 (3d Cir.1970) ("[W]e must not confuse requirements necessary to state a cause of action . . . with the prerequisites of standing.").

Pursuant to Rule 12(b)(1), the Court must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the nonmoving party. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003). On a motion to dismiss for lack of standing, the plaintiff "`bears the burden of establishing' the elements of standing, and `each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'" FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). However, "general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan, 504 U.S. at 561.

B. Fed.R.Civ.P. 12(b)(6)

The Court may grant a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) if, "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief." Oatway v. Am. Int'l Group, Inc., 325 F.3d 184, 187 (3d Cir.2003); see also Fed. R.Civ.P. 12(b)(6). Further, "[t]he issue is not whether a plaintiff will ultimately prevail but whether he or she is entitled to offer evidence to support the claims." Oatway, 325 F.3d at 187.

DISCUSSION

A. United States Citizens Residing in the Virgin Islands Have No Constitutional Right to Vote in Presidential Elections

Defendant first moves to dismiss Mr. Ballentine's claim that he is entitled under the Constitution to vote in presidential elections; a right, he argues, has been unconstitutionally denied because of his residency in an unincorporated territory. This claim must fail.

The Constitution does not grant the right to vote for President and Vice President to individual citizens, but to "Electors" appointed by "[e]ach State." U.S. Const. art. II, § 1; see also U.S. Const. amend. XII. Those electors, in turn, are selected in "such Manner" as the legislature of each state "may direct." U.S. Const. art. II, § 1. That manner need not be by popular vote. Indeed, in the country's early years, the legislatures of several states selected their electors directly. See Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (citing McPherson v. Blacker, 146 U.S. 1, 28-33, 13 S.Ct. 3, 36 L.Ed. 869 (1892)). Nonetheless, "[h]istory has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors." Id.

The Virgin Islands is not a state but, as Mr....