United States District Court, District of Columbia
STEVEN S. MICHEL, Plaintiff,
ADDISON MITCHELL MCCONNELL, et al., Defendants. Re Documents No. 12, 16
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO
DISMISS, DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY
RUDOLPH CONTRERAS United States District Judge.
case, the Court considers whether a citizen has standing to
sue to compel the United States Senate to take action on a
President's Supreme Court nomination. Plaintiff Steven
Michel seeks a preliminary injunction and writ of mandamus
compelling the Senate to take action on President Obama's
nomination of Merrick Garland to the United States Supreme
Court. He claims that Senators McConnell and Grassley have
violated his Seventeenth Amendment right to elect his
senators by depriving his home-state senators of a voice in
the Senate. Because Mr. Michel's alleged injuries are not
sufficiently individualized, his proper recourse is through
the political process, not the judiciary. Accordingly, the
Court grants Defendants' Motion to Dismiss.
Steven Michel seeks a preliminary injunction and writ of
mandamus compelling the United States Senate to “vote
before the end of the 114th Congress on whether the Senate
will provide its advice and consent to the nomination of
[Chief] Judge Garland to the United States Supreme
Court.” Mot. for Prelim. Inj., at 4, ECF No. 12. He
claims that Senators McConnell and Grassley have taken steps
to prevent the entire Senate from voting on President
Obama's nomination, neglecting their constitutional
duties to provide advice and consent on presidential
nominations. See Emergency Pet. for Declaratory J.
and Writ of Mandamus (“Emergency Pet.”), at 5-7,
ECF No. 1. Mr. Michel contends that a small group of senators
have deprived his home-state senators-Senators Tom Udall and
Martin Heinrich-of their constitutional prerogative to vote
on the advice and consent of a presidential appointee.
See Mot. for Prelim. Inj., at 8-9; Emergency Pet. at
6-7. Because his state's senators have been unable to
vote on Chief Judge Garland's nomination, Mr. Michel
contends that his own vote for United States senators has
been diminished as compared to those voters in states with
senators “with disproportionate power to control Senate
action.” See Mot. for Prelim. Inj., at 9-11.
This, he argues, violates the Seventeenth Amendment's
guarantee of senators with “one vote” elected by
the people of their states. See Id. at 10.
move to dismiss on the grounds that Mr. Michel lacks standing
to maintain this action. See Defs.' Mem. of P.
& A. in Opp. to Pl.'s Mot. for Prelim. Inj. and in
Supp. of Defs.' Mot. to Dismiss (“Defs.' Mot.
to Dismiss”), at 5-14, ECF No. 16. Even if they did
not, the Court would have a sua sponte obligation to
raise the issue of Article III standing because it operates
as a limitation on the Court's subject-matter
jurisdiction. See Gettman v. Drug Enf't Admin.,
290 F.3d 430, 436 (D.C. Cir. 2002). If the Court does not
have subject-matter jurisdiction, it cannot afford Plaintiff
any relief-injunctive or otherwise. See Zukerberg v. D.C.
Bd. of Elections & Ethics, 999 F.Supp.2d 79, 82
(D.D.C. 2013). It also “may not . . . ‘resolve
contested questions of law when its jurisdiction is in
doubt.'” Id. (quoting Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 101
III standing requires a “concrete and particularized
injury” that is “actual or imminent, not
conjectural or hypothetical.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (internal citation
and quotation marks omitted). The injury must be “of
individual concern;” it is not enough for a party to
show an undifferentiated, “general interest common to
all members of the public.” See Massachusetts v.
Mellon, 262 U.S. 447, 487 (1923); (internal citations
and quotation marks omitted); United States v.
Richardson, 418 U.S. 166, 176-77 (1974) (quoting Ex
parte Levitt, 302 U.S. 633, 636 (1937)). The proper
recourse for persons who have a generalized grievance is
through the political process, not the courts. See
Lujan, 504 U.S. at 576; Mellon, 262 U.S. at
487-89. For a court to rule on the constitutionality of the
activities of another branch without a uniquely injured
individual “would be, not to decide a judicial
controversy, but to assume a position of authority over the
governmental acts of another and coequal department, an
authority which plainly we do not possess.”
Mellon, 262 U.S. at 489. In Ex parte
Levitt, a plaintiff sued contending that Justice Hugo
Black's appointment violated the Ineligibility Clause of
the Constitution. See 302 U.S. at 633-34;
Lujan, 504 U.S. at 574. The Supreme Court concluded
that the plaintiff did not have standing as a citizen and
member of the Supreme Court bar because for “a private
individual to invoke the judicial power to determine the
validity of executive or legislative action he must show that
he has sustained . . . a direct injury as the result of that
action and [not just] that he has merely a general interest
common to all members of the public.” Ex parte
Levitt, 302 U.S. at 634; accord Lujan, 504 U.S.
at 575. Other courts have used similar reasoning to dismiss
lawsuits seeking to compel the United States Senate to vote
on a pending Supreme Court appointment. See, e.g.,
Raiser v. Daschle, 54 F. App'x 305, 307 (10th
Cir. 2002) (“The pendency of other litigation initiated
by [the plaintiff] is insufficient to give him standing to
challenge the Senate's referral of judicial nominations
to the Judiciary Committee.”); Kimberlin v.
McConnell, No. GJH-16-1211, 2016 U.S. Dist. LEXIS 72948,
at *3 (D. Md. June 3, 2016) (dismissing a citizen's
lawsuit seeking a declaration that the Senate waived its
right to advise and consent with respect to the nomination of
Merrick Garland, in part because he “fail[ed] to show
he ha[d] suffered injury in fact”).
predicated upon the “derivative” dilution of
voting power-where a voter sues because of the dilution of
his representative's voting power, see Michel v.
Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994)-require a
voter to show some form of actual structural denial of their
representative's right to vote. See Kardules v. City
of Columbus, 95 F.3d 1335, 1349 (6th Cir. 1996) (noting
that the D.C. Circuit found a derivative-dilution injury
“judicially cognizable, because it differed only in
degree, not in kind, from a complete denial of their
representatives' right to vote”). This is because
“[i]t would be unwise to permit the federal courts to
become a higher legislature where a congressman who has
failed to persuade his colleagues can always renew the
battle.” Melcher v. Fed. Open Mkt. Comm., 836
F.2d 561, 564 (D.C. Cir. 1987). The prototypical
vote-dilution cases involve a mathematical showing of the
loss of a representative voice. See Kardules, 95
F.3d at 1349-50; see also Dep't of Commerce v. U.S.
House of Representatives, 525 U.S. 316, 331-32 (1999)
(through an expert, the plaintiffs showed that a census
practice would lead to vote dilution via redistricting).
Michel has not shown that he has suffered an individualized
injury such that he can maintain this action. This alleged
diminution of his vote for United States Senators is the type
of undifferentiated harm common to all citizens that is
appropriate for redress in the political sphere: his claim is
not that he has been unable to cast votes for Senators, but
that his home-state Senators have been frustrated by the
rules and leadership of the United States Senate. This is far
from the type of direct, individualized harm that warrants
judicial review of a “case or controversy.” It is
instead a request for the Court to “assume a position
of authority over the governmental acts of another and
coequal department, an authority which plainly [it] do[es]
not possess.” Mellon, 262 U.S. at 489. This
would not only require the Court to become “a higher
legislature where a [Senator or Representative] who has
failed to persuade his colleagues can always renew the
battle, ” see Melcher, 836 F.2d at 564, but
would also require it to entertain suits from all citizens
who feel that their representatives have been treated
unfairly by the legislative process. Although such claims may
at times be justified, the Framers of the Constitution left
their resolution to the political branches, not the
foregoing reasons, Defendants' Motion to Dismiss (ECF No.
16) is GRANTED and Plaintiff's Motion for a Preliminary
Injunction (ECF No. 12) is DENIED. An order consistent with