UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEVEN S. MICHEL, : : Plaintiff, : Civil Action No.: 16-1729 (RC) : v. : Re Documents No.: 12, 16 : ADDISON MITCHELL MCCONNELL, et al. , : : Defendants. : MEMORANDUM OPINION G RANTING D EFENDANTS ’ M OTION TO D ISMISS , D ENYING P LAINTIFF ’ S M OTION FOR A P RELIMINARY I NJUNCTION I. INTRODUCTION In this case, the Court consider s whether a citizen has standin g to sue to compel the United States Senate to take act ion on a President’s Supreme Co urt nomination. Plaintiff Steven Michel seeks a preliminary injunc tion and writ of mandamus comp elling the Senate to take action on President Obama’s nomination of Merrick Garland to th e United States Supreme Court. He claims that Senators McConnell and Grassley have vio lated his Seventeenth Amendment right to elect his se nators by depriving his home-state senators of a voice in the Senate. Because Mr. Michel’s al leged injuries are not sufficie ntly individualized, his proper recourse is through the politic al process, not the judiciary. Accordingly, the Court grants Defendants’ Motion to Dismiss.

II. FACTUAL BACKGROUND Mr. Steven Michel seeks a prelim inary injunction and writ of mandamus compelling the United States Senate to “vote before the end of the 114th Congr ess on whether the Senate will2 provide its advice and consent to the nomination of [Chief] Jud ge Garland to the United States Supreme Court.” Mot. for P relim. Inj., at 4, ECF No. 12. He c laims that Senators McConnell and Grassley have taken steps to p revent the entire Senate from voting on President Obama’s nomination, neglecting their cons titutional duties to provide a dvice and consent on presidential nominations. See Emergency Pet. for Declaratory J . and Writ of Mandamus (“Emerge ncy Pet.”), at 5–7, ECF No. 1. Mr. Michel contends that a small group of s enators have deprived his homestate senators—Senators Tom Ud all 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” e lected 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 P l.’s Mot. for Prelim. Inj. a nd 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 i t operates as a limitation on the C ourt’s subject-matter jurisdic tion. See Gettman v. Drug Enf’t Admin. , 290 F.3d 430, 436 (D.C. Cir. 2002). If the Court does not ha ve 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). I t also “may not . . . ‘resolve3 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 in jury” that is “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61 (1992) (internal citation and quot ation marks omitted). The in jury must be “of individual concern;” it is not enough for a party to show an undifferentia ted, “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 proce ss, not the courts. See Lujan , 504 U.S. at 576; Mellon , 262 U.S. at 487–89. For a court t o rule on the constitutiona lity of the activities of another branch w ithout a uniquely injured individ ual “would be, not to decide a judicial controversy, but t o assume a position of authority ove r the governmental acts of another and coequal department, an authority which plainly we do not po ssess.” 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 ha ve standing as a citizen and member of the Supreme Court bar because for “a private individu al to invoke the judicial power to determine the validity of executive or leg islative action he must show that he has sustained . . . a direct injury as the result of that action and [not just] tha t 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 sim ilar reasoning to dismiss lawsuits seeking to compel the United States Senate to vote on apending Supreme Court appoint ment. See, e.g. , Raiser v.4 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 challen ge the Senate’s referral of judicial nominations to the Judic iary 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 wai ved its right to advise and cons ent with respect to the nomination of Merrick Garland, in part becau se he “fail[ed] to show he ha[ d] suffered injury in fact”). Cases predicated upon the “deri vative” 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 vot er 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. Cir cuit found a derivative-dilution injury “judicially cognizable, because it differed only in degree, not in kind, from a complet e denial of their representatives’ right to vote”). This is because “[i]t would be unwise to perm it the federal courts to become a higher legislature where a c ongressman who has failed to persua de 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-dilu tion 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 expe rt, the plaintiff s showed that a census practice would lead to vote dilution via redistricting). Mr. Michel has not shown that he has suffered an individualize d injury such that he can maintain this action. This alle ged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriat e for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state5 Senators have been frustrated by the rules and leadership of th e United States Senate. This is far from the type of direct, indivi dualized harm that warrants judi cial review of a “case or controversy.” It is i nstead a request for the Court to “assume a position of authority over the governmental acts of another and coequal department, an authori ty which plainl y [it] do[es] not possess.” Mellon , 262 U.S. at 489. This would not only r equire the Court to be come “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 requi re it to entertain suits from all citizens who feel that their representatives hav e been treated unfairly by the legislative process. Although s uch claims may at times be just ified, the Framers of the Constitution left their resolution to the political branches, n ot the judiciary.

IV. CONCLUSION For the foregoing reasons, Defenda nts’ Motion to Dismiss (ECF N o. 16) is GRANTED and Plaintiff’s Motion for a Pre liminary Injunction (ECF No. 12 ) is DENIED . An order consistent with this Memorandum Opinion is separately and conte mporaneously issued. Dated: November 17, 2016 RUDOLPH CONTRERAS United States District Judge