                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              JAN 29, 2009
                               No. 08-14645                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket No. 08-00843-CV-T-23-TBM

STANLEY LOUIS KLOS,


                                                             Plaintiff-Appellant,

                                    versus

HENRY M. PAULSON, JR.,
in his capacity as Secretary
of the Treasury,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (January 29, 2009)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Stanley Klos filed a pro se complaint seeking a declaration, pursuant to 28

U.S.C. § 2201, that the term “Presidents of the United States” within the meaning

of the Presidential $1 Coin Act of 2005, Pub. L. No. 109-145, 119 Stat. 2664,

codified at 31 U.S.C. § 5112(n) (“the Coin Act”), includes the ten men who served

under the Articles of Confederation as the President of the United States in

Congress Assembled. Pursuant to the Mandamus Act, 28 U.S.C. § 1361, Klos’s

complaint also sought an order directing the Secretary of the Treasury to issue one

dollar coins bearing the names and likenesses of these ten men.

      The district court granted the government’s motion to dismiss for failure to

state a claim, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). The

district court concluded that the Coin Act does not require the Secretary to issue

such one dollar coins and, thus, Klos had no cognizable right to relief under § 1361

or § 2201.

      We agree with the government that the allegations in Klos’s complaint,

taken as true, do not establish Article III standing. See Stalley ex rel. United States

v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008)

(explaining that plaintiff’s complaint must allege, inter alia, “an injury in fact – a

harm suffered by the plaintiff that is concrete and actual or imminent, not




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conjectural or hypothetical” to establish Article III standing).1 Accordingly, we do

not address the merits of Klos’s claims. We vacate the district court’s July 14,

2008 dismissal order, however, with instructions to dismiss Klos’s complaint

without prejudice. See id. (explaining that a dismissal for lack of standing has the

same effect as a dismissal for lack of subject matter jurisdiction under Rule

12(b)(1) and thus is entered without prejudice).

       VACATED AND REMANDED.




       1
          Because standing is a jurisdictional requirement we must address sua sponte, the
government’s failure to raise the standing issue in the district court does not impede our ability
to consider the issue for the first time on appeal. See Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 807 n.9 (11th Cir. 1993). “[W]hen standing is questioned for
the first time by an appellate court, standing must affirmatively appear in the record.’” Id. at 806
(quotation marks omitted). In response to the government’s standing argument, Klos did not
move to supplement the record or amend his complaint (or even contend that he has standing).
Thus, the only allegations of standing in the record are found in Klos’s complaint.

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