MICHEL v. MCCONNELL et al

Filing 20

MEMORANDUM OPINION granting 16 Defendants' Motion to Dismiss and denying 12 Plaintiff's Motion for a Preliminary Injunction. See document for details. Signed by Judge Rudolph Contreras on 11/17/2016. (lcrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN S. MICHEL,

:
:
Plaintiff,
:
:
v.
:
:
ADDISON MITCHELL MCCONNELL, et al., :
:
Defendants.
:

Civil Action No.:

16-1729 (RC)

Re Documents No.:

12, 16

MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS, DENYING PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION
I. INTRODUCTION
In this 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.

II. FACTUAL BACKGROUND
Mr. 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 homestate 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.

III. ANALYSIS
Defendants 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

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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 (1998)).
Article 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.

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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”).
Cases 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).
Mr. 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

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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 judiciary.

IV. CONCLUSION
For 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 this Memorandum Opinion is separately and contemporaneously issued.
Dated: November 17, 2016

RUDOLPH CONTRERAS
United States District Judge

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