Cogswell v. United States Senate ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 2, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN MARSHALL COGSWELL,
Plaintiff-Appellant, No. 09-1134
v. (D.C. No. 08-CV-01929-REB-MEH)
UNITED STATES SENATE, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
In this case Plaintiff, an attorney admitted to the federal bar and acting pro
se, appeals the district court’s dismissal of his claims against the U.S. Senate.
Plaintiff originally filed an action against Richard Cheney, as President of the U.S.
Senate, alleging that the Senate’s failure to timely confirm the President’s judicial
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
nominees “denied [plaintiff] meaningful access to this Court and to the judicial
power of the United States.” (Doc. 1 at 8.) Plaintiff asked the court to issue a
declaratory judgment stating that the Senate must act on nominations within four
months and that any nominee not put to a vote in that time would be deemed
confirmed by the Senate “as a matter of law.” 1 (Doc. 1 at 10.) Upon the
government’s motion to dismiss, Plaintiff’s claim was referred to a magistrate
judge.
After reviewing the complaint, the magistrate judge recommended that the
government’s motion be granted. Specifically, the magistrate judge found that
Plaintiff had improperly asserted jurisdiction based on Bivens in bringing a suit
against a public official in his official capacity, see Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005), that Plaintiff’s claims did not meet
Article III’s standing requirements as laid out in Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992), and, additionally, that Plaintiff’s claims were
otherwise barred by the political question doctrine, see Schroder v. Bush, 263 F.3d
1169, 1174 (10th Cir. 2001).
1
In his original complaint, Plaintiff also alleged that Henry Paulson, as
Secretary of the Treasury, aided and abetted the Senate by paying U.S. Senators.
Plaintiff asked that the court grant an injunction enjoining Secretary Paulson from
making further payments to the Senate until it confirmed the nominees. However,
upon Plaintiff’s own motion, the court dismissed his claims against Secretary
Paulson. Additionally, the court substituted Joseph R. Biden, Jr., as President of
the U.S. Senate in place of Richard Cheney.
-2-
The day after the magistrate judge issued his recommendation, Plaintiff filed
an amended complaint substituting the U.S. Senate as the defendant in place of the
President of the U.S. Senate., and asserting standing “as a member of the
constituent power of the United States and all of its citizens.” (Doc. 23 at 6.) In
response, the magistrate judge issued a supplemental recommendation in which he
reiterated his prior “bases for dismissal” and sua sponte recommended dismissal of
the amended complaint, again based on subject matter jurisdiction. (Doc. 24 at 2.)
After reviewing Plaintiff’s objections, the district court approved and adopted both
recommendations. Plaintiff appeals the dismissal of his amended complaint. We
review all issues on this appeal de novo. See Kane County Utah v. Salazar, 562
F.3d 1077, 1085 (10th Cir. 2009) (subject matter jurisdiction); United States v.
Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009) (standing); Schroder, 263 F.3d at
1173 (political question doctrine).
After careful review of the briefs and the record on appeal, we conclude that
the district court correctly dismissed the complaint. Accordingly, for substantially
the same reasons set forth in the magistrate judge’s thorough and well-reasoned
recommendations, we AFFIRM.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-