Rockefeller v. Bingaman ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 17, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TOD N. ROCKEFELLER,
Plaintiff-Appellant,
v. No. 06-2332
(D.C. No. CIV-06-198 JB/RLP)
JEFF B INGAM AN, in his official (D . N.M .)
capacity as U .S. Senator; TH E
U.S. SENATE; STEVE PEARCE,
in his official capacity as
U.S. Representative; and TH E U .S.
HOUSE O F REPRESEN TA TIVES,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
In the pro se complaint that he filed in the district court, Tod N.
Rockefeller asserted claims against two members of the U nited States Congress
acting in their official capacities, the United States House of Representatives, and
*
After examining the briefs and 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the United States Senate, alleging that he “has suffered injury from Defendants
due to their enactment of laws which have deprived him of his civil and
Constitutional rights.” R., Doc. 1 at 2. M r. Rockefeller further alleged that:
(1) “Defendants w ere served with a ‘Demand for the Introduction of a Bill
Restoring the Right of Direct Appeal to the Supreme Court for Constitutional
Violations,’” id. at 3; and (2) “Defendants had the authority to prevent and/or
remedy the injuries inflicted upon Plaintiff, but refused to do so,” id. at 2-3.
Defendants filed a motion to dismiss M r. Rockefeller’s complaint under Fed. R.
Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The district court granted
the motion, concluding that “Defendants are protected by sovereign immunity, the
Plaintiff is without standing to bring his claims, and the Plaintiff’s claims are
barred by the Speech and Debate Clause.” R., Doc. 15 at 1. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
In its thorough and well-reasoned order, the district court summarized the
background of this case and M r. Rockefeller’s claims as follow s:
Plaintiff Tod N . Rockefeller, proceeding pro se, alleges that he
is a former environmental scientist in the Carlsbad Area Office of the
United States D epartment of Energy who was terminated from his
position. See Complaint, Caption, Prayer, at 1, 11, filed M arch 15,
2006 (Doc. 1). Following his termination, Rockefeller challenged his
dismissal administratively and in the courts, bringing suit against
various federal defendants. See id. ¶¶ 16-23, at 5-6. In three prior
lawsuits, federal district courts ruled against Rockefeller. See id.The Court of A ppeals affirmed each of those district court decisions,
and the Supreme Court denied certiorari. See id.-2-
In this action, Rockefeller asserts that 28 U.S.C. § 1254, which
eliminated direct appeal to the Supreme Court from adverse courts of
appeals decisions, and 28 U.S.C. § 2284, which limited grounds for
convening a three-judge district court panel, are unconstitutional.
See id. ¶¶ 24-42, at 6-10. Rockefeller maintains that these laws
violate the Constitution’s separation-of-powers doctrine and Article
III. See id. Rockefeller further alleges that he notified the
Defendants of the unconstitutionality of §§ 1254 and 2284, and that
the Defendants did not take any action to remedy the two laws. See
id. ¶¶ 8-10, at 3. Rockefeller contends that the operation of these
laws and the Defendants’ failure to address them have injured him.
See id. ¶ 43, at 10. As such, Rockefeller demands that a three-judge
panel decide his suit for an injunction halting the operation of
§ 1254. See id. ¶¶ 42, 44, at 10.
R., Doc. 15 at 1-2.
“W e review a district court’s dismissal for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) de novo.” Tsosie v. United States,
452 F.3d 1161, 1163 (10th Cir. 2006). Having conducted the required de novo
review, we agree with the district court that it lacked subject matter jurisdiction
because “Defendants are protected by sovereign immunity, . . . and the Plaintiff’s
claims are barred by the Speech and Debate Clause.” R., Doc. 15 at 1. W e
therefore do not need to address the district court’s alternative jurisdictional
ruling that M r. Rockefeller lacked standing to bring his claims. See Ruhrgas AG
v. M arathon Oil Co., 526 U.S. 574, 584 (1999) (“W hile [Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83 (1998)] reasoned that subject-matter
jurisdiction necessarily precedes a ruling on the merits, the same principle does
not dictate a sequencing of jurisdictional issues.”).
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“It is elementary that the United States, as sovereign, is immune from suit
save as it consents to be sued, and the terms of its consent to be sued in any court
define that court’s jurisdiction to entertain the suit.” United States v. M itchell,
445 U.S. 535, 538 (1980) (quotation omitted). “The United States consents to be
sued only when Congress unequivocally expresses in statutory text its intention to
waive the United States’ sovereign immunity.” United States v. Richm an (In re
Talbot), 124 F.3d 1201, 1206 (10th Cir. 1997). M oreover, “the existence of
consent is a prerequisite for [subject matter] jurisdiction.” United States v.
M itchell, 463 U.S. 206, 212 (1983).
“In general, federal agencies and officers acting in their official capacities
are also shielded by sovereign immunity.” M erida Delgado v. Gonzales, 428 F.3d
916, 919 (10th Cir. 2005). “Federal courts generally deem a suit for specific
relief, e.g., injunctive or declaratory relief, against a named officer of the United
States to be a suit against the sovereign.” Wyoming v. United States, 279 F.3d
1214, 1225 (10th Cir. 2002). Thus, it is well established that the U nited States’
sovereign immunity “extends to [claims for] injunctive relief.” United States v.
M urdock Mach. and Eng’g Co. of Utah, 81 F.3d 922, 929 (10th Cir. 1996). The
Supreme Court has recognized, however, that “[t]wo narrow exceptions to the
general bar against suits seeking specific relief from the United States exist.”
Wyoming, 279 F.3d at 1225. As we have explained:
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A court may regard a government officer’s conduct as so “illegal” as
to permit a suit for specific relief against the officer as an individual
if (1) the conduct is not within the officer’s statutory powers or, (2)
those powers, or their exercise in the particular case, are
unconstitutional.
Id. (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 702
(1949)).
W e agree with the district court that “[s]overeign immunity forecloses
Rockefeller’s claims against the House of Representatives and Senate as
institutions, and Representative Pearce and Senator Bingaman as individuals
acting in their official capacities.” R., Doc. 15 at 5 (citing Keener v. Cong. of the
U.S., 467 F.2d 952, 953 (5th Cir. 1972)). As the district court pointed out,
“[b]ecause an ‘official capacity’ suit is treated as a suit against a government
entity, see Kentucky v. Graham, 473 U.S. 159, 166 (1985), Representative Pearce
and Senator Bingaman, acting in their official capacities, enjoy the envelope of
the Congress’ sovereign immunity, see Travelers Ins. Co. v. SCM Corp.,
600 F. Supp. 493, 497 (D .D.C. 1984).” R., Doc. 15 at 5.
W e also agree with the district court that the Speech or Debate Clause of
the United States Constitution, U.S. Const. art. I, § 6, cl. 1, 1 “protects the acts
with which Rockefeller takes issue in this case – Congress’ enactment of certain
1
The Speech or Debate C lause states that “for any Speech or D ebate in
either House, [Senators and Representatives] shall not be questioned in any other
Place.” U.S. Const. art. I, § 6, cl. 1.
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legislation and the decision of individual Congressmen not to take legislative
action in response to Rockefeller’s prompts.” R., Doc. 15 at 7; see also Doe v.
M cM illan, 412 U.S. 306, 311, 312-13 (1973) (stating that Speech or Debate
Clause “protects M embers [of Congress] against prosecutions that directly
impinge upon or threaten the legislative process,” and that “Congressmen and
their aides are immune from liability for their actions within the legislative
sphere, even though their conduct, if performed in other than legislative contexts,
would in itself be unconstitutional”) (quotations and citations omitted). As a
result, the district court correctly determined that it did not have subject matter
jurisdiction over the claims asserted against Senator Bingaman and Representative
Pearce. See Fields v. Office of Eddie Bernice Johnson, Employing Office, U.S.
Cong., 459 F.3d 1, 13 (D.C. Cir. 2006) (“The Speech or Debate Clause operates
as a jurisdictional bar when the actions upon which a plaintiff sought to predicate
liability were legislative acts.”) (quotation omitted).
In light of the above rulings, we reject M r. Rockefeller’s arguments to the
effect that: (1) “the United States has no immunity when only injunctive relief is
sought,” Aplt. Opening Br. at 7; and (2) “[t]he Speech or Debate Clause does not
preclude judicial review of enacted legislation to determine said legislation’s
constitutionality,” id. at 3. First, although “the 1976 amendments to § 702 of the
Administrative Procedure A ct, 5 U.S.C. § 702, eliminated the [United States’]
sovereign immunity defense in virtually all actions for non-monetary relief
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against a U.S. agency or officer [thereof] acting in an official capacity,” Clark v.
Library of Cong., 750 F.2d 89, 102 (D.C. Cir. 1984), “the [U nited States]
Congress is not an ‘agency’ as defined under the Administrative Procedure Act.”
Id. (citing 5 U.S.C. § 701(b)(1)(A) (excluding Congress from the definition of
agency)); see also Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 187 (D.C.
Cir. 2006) (stating that § 702 “refer[s] to a claim against an ‘agency’ and hence
waives immunity only when the defendant falls within that category”).
Consequently, the waiver of sovereign immunity contained in § 702 does not
apply to this case.
Second, to the extent M r. Rockefeller is attempting to invoke the “[t]wo
narrow exceptions to the general bar against suits seeking [injunctive] relief from
the United States,” Wyoming, 279 F.3d at 1225, his attempt must fail. In the
context of a suit for injunctive relief against individual members of Congress, the
exceptions for ultra vires and unconstitutional conduct would in effect nullify the
legislative immunity provided to members of Congress by the Speech or Debate
Clause. W e thus conclude that the exceptions are not available here.
Finally, our holding in this case does not mean that “[t]he Speech or Debate
Clause . . . preclude[s] judicial review of enacted legislation to determine said
legislation’s constitutionality.” Aplt. Opening Br. at 3. To the contrary, we have
determined only that M r. Rockefeller is foreclosed from obtaining judicial review
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of the subject legislation by means of a lawsuit filed directly against the United
States Congress and individual members thereof in their official capacities.
The judgment of the district court is AFFIRMED.
Entered for the Court
M ichael W . M cConnell
Circuit Judge
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