UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT WOOTEN, : : Plaintiff, : Civil Action No.: 20-3037 (RC) : v. : Re Document No.: 4 : UNITED STATES SENATE, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

In this case, the Court is presented the question of whether a private citizen can sue the

United States Senate to compel confirmation hearings on expired Supreme Court nominations

and, potentially, vacate the results of successful ones. The answer, unsurprisingly, is a

resounding no. Plaintiff Robert Wooten filed this petition pro se against the United States

Senate, Senator Mitch McConnell, and Senator Charles Grassley (collectively, “Defendants”).

Wooten’s amended complaint asks this Court to compel the Senate to initiate Supreme Court

confirmation hearings for Judge (now Attorney General) Merrick Garland. Defendants have

moved to dismiss this case, arguing that the Court lacks the subject-matter jurisdiction to hear

Wooten’s claim on both standing and mootness grounds, and that multiple separation of powers

principles bar the judicial interference he requests. For the reasons detailed below, the Court

grants their motion to dismiss. II. FACTUAL AND PROCEDURAL BACKGROUND

After the death of Justice Antonin Scalia on February 13, 2016, President Obama

nominated Judge Merrick Garland to the Supreme Court. Am. Compl. at 1, ECF No. 2. The

United States Senate did not act on the nomination and it was returned to President Obama. Id.

Judge Neil Gorsuch filled Justice Scalia’s seat on January 31, 2017, following his nomination by

President Trump and subsequent confirmation by the Senate. Mem. of P.’s & A.’s in Supp. of

Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 3, ECF No. 4-1.

On September 18, 2020, Justice Ruth Bader Ginsburg passed, leaving another vacancy on

the Supreme Court. One week later, President Trump nominated Judge Amy Coney Barrett to

fill the vacancy. Am. Compl. at 1. Three weeks after the nomination, on October 16, 2020, this

Court received Wooten’s “Petition for Redress Re: Article II.” Pl.’s Pet., ECF No. 1-1. While

Wooten’s complaint can be hard to follow, he broadly alleges that the Senate violated its

constitutional duties by not conducting hearings for Judge Garland’s nomination. Am. Compl.

¶ 32. Wooten’s challenge appears to originate from his reading of the procedures laid out in

Article II of the Constitution. Pl.’s Suppl. Reply to Impermissible Mot. to Dismiss (“Pl.’s Suppl.

Reply”) ¶¶ 18–23, ECF No. 6. Wooten also alleges a violation of his First Amendment rights to

free speech and petition because, he argues, the Senate failed to perform its “ministerial duties”

when it refused to hold a hearing for Judge Garland. Am. Compl. ¶ 23. At the time of the

original petition, Wooten asked the Court to order a pause on Judge Barrett’s confirmation

hearings until confirmation hearings were held for Judge Garland. Pl.’s Pet. ¶ 27. Later filings

imply that Wooten would now have the Court declare the confirmation hearings for Judge

Barrett null and void, at least until Judge Garland’s nomination is heard. Am. Compl. ¶ 32 (“that

these improper actions are, and ought to be, set aside and declared null and void.”).

2 On January 25, 2021, Defendants filed a motion to dismiss Wooten’s complaint. See

generally Defs.’ Mot. Defendants posit that Wooten lacks standing to bring his claim, that his

claim is moot, and that various separation of powers principles would be breached if the Court

resolved the case in Wooten’s favor. Id. at 2. This Court issued a Fox/Neal Order that same day,

advising Plaintiff to respond to Defendant's Motion to Dismiss on or before February 24, 2021,

and warning that a failure to respond or to move for an extension of time by that date might lead

the Court to treat the motion as conceded. See Fox/Neal Order, ECF No. 5. Wooten replied to

the Motion to Dismiss in a timely fashion. See generally Pl.’s Suppl. Reply; Pl.’s Reply to

Impermissible Mot. to Dismiss (“Pl.’s Resp.”), ECF No. 7. The motion is now fully briefed and

ripe for review.

III. LEGAL STANDARD

Federal courts are courts of limited jurisdiction. Home Depot U.S.A., Inc. v. Jackson,

(2019). Before addressing the merits of a case, a court must always confirm

that it has subject-matter jurisdiction. See James Madison Ltd. by Hecht v. Ludwig,

(D.C. Cir. 1996). Even if neither party asserts it, a court has a sua sponte obligation

to raise the issue of Article III jurisdiction because it implicates the Court’s subject-matter

jurisdiction. See Michel v. McConnell,

(D.D.C. 2016), aff’d,

(D.C. Cir. 2016) (citing Gettman v. Drug Enf’t Admin.,

(D.C. Cir.

2002)). If a court determines it does not have subject-matter jurisdiction, it cannot afford a

plaintiff any relief—injunctive or otherwise. See Zukerberg v. D.C. Bd. of Elections & Ethics,

(D.D.C. 2013). Courts also “may not . . . ‘resolve contested questions of

law when its jurisdiction is in doubt.’”

(quoting Steel Co. v. Citizens for a Better Env’t,

(1998)). If a district court determines at any time that it lacks subject-matter

3 jurisdiction, then it must dismiss the complaint. Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y&H

Corp.,

(2006).

To survive a motion to dismiss for lack of subject-matter jurisdiction, a plaintiff bears the

burden of establishing that a court has jurisdiction over their claim. See Moms Against Mercury

v. Food & Drug Admin.,

(D.C. Cir. 2007). Because Wooten has filed this

lawsuit pro se, his claim is, admittedly, held to a “less stringent standard than formal pleadings

drafted by lawyers.” Erickson v. Pardus,

(2007) (quoting Estelle v. Gamble,

(1976)). But pro se plaintiffs must still comply with the Federal Rules of Civil

Procedure and the Court need not assume the role of plaintiff’s advocate. See Jarrell v. Tisch,

(D.D.C. 1987); Sun v. D.C. Gov’t,

, 168 n.6 (D.D.C.

2015) (“[I]t is not the Court’s job to canvass the record for documents supporting a pro se party’s

position.”).

IV. ANALYSIS

Defendants begin by alleging that Wooten lacks the Article III standing necessary to

bring this case. See Defs.’ Mot. at 6–14. Subject-matter jurisdiction does not exist in the

absence of Article III standing. See Lujan v. Defs. of Wildlife,

, 560–561 (1992).

Article III standing, in turn, requires that the plaintiff have suffered a “concrete and

particularized injury” that is “actual or imminent, not conjectural or hypothetical.”

(internal

citation and quotation marks omitted). The injury must be “of individual concern”; it cannot be

an interest common to all members of the public. See Michel,

(quoting

Massachusetts v. Mellon,

(1923)). Standing also requires a showing of

redressability. Lujan,

. To establish redressability, a plaintiff must show that it is

“likely, as opposed to merely speculative, that the injury will be redressed by a favorable

4 decision.”

(internal quotation marks omitted). The redressability element requires more than

mere “speculation as to what third parties will do in response to a favorable ruling.” Renal

Physicians Ass’n v. U.S. Dep’t of Health & Hum. Servs.,

(D.C. Cir. 2007).

Defendants also contend that this case is constitutionally moot. “Federal courts lack

[subject matter] jurisdiction to decide moot cases because their constitutional authority extends

only to actual cases or controversies.” Larsen v. U.S. Navy,

(D.C. Cir. 2008)

(quoting Iron Arrow Honor Soc’y v. Heckler,

(1983)); see also Church of

Scientology v. United States,

(1992) (noting that a court has “no authority to give

opinions upon moot questions or abstract propositions, or to declare principles or rules of law

which cannot affect the matter in issue in the case before it.”) (citations omitted). A case

becomes constitutionally moot when “the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome,” Conservation Force, Inc. v. Jewell,

(D.C. Cir. 2013) (quoting Larsen,

), or when “intervening events make it

impossible to grant the prevailing party effective relief.” Lemon v. Geren,

(D.C. Cir. 2008) (quoting Burlington N. R.R. Co. v. Surface Transp. Bd.,

(D.C.

Cir. 1996)).

Given this background, Defendants argue that Wooten’s claim “presents a quintessential

generalized grievance that does not establish Article III injury in fact.” See Defs.’s Mot. at 7.

They posit that Wooten has suffered no actual injury, as he only “alleges an abstract injury

common to all members of the public.” Id. at 9. Article III’s redressability requirement,

Defendants argue, is also unmet because an order mandating that the Senate hold hearings for

Judge Garland “would not redress any alleged injury” because the position has been filled and

the hearings would have no purpose. Id. at 10–11. Defendants also contend that Wooten’s claim

5 is moot because there is no existing vacancy on the Supreme Court. Id. at 13. Any of these

arguments, standing alone, would be enough for this Court to determine it lacks the necessary

jurisdiction to adjudicate this dispute. Yet Wooten does not address any of the Defendants’

standing or mootness arguments in either of his replies to the Motion to Dismiss. See generally

Pl.’s Reply; Pl.’s Suppl. Reply. Instead, he devotes his attention to complaints about the federal

judiciary’s alleged misreading of the Constitution and the political maneuvers of Senator

McConnell. Pl.’s Suppl. Reply ¶¶ 3–6, 24.

The traditional approach to dropped arguments in this Circuit is to treat them as

conceded. “It is well understood in this Circuit that when a plaintiff files an opposition to a

dispositive motion and addresses only certain arguments raised by the defendant, a court may

treat those arguments that the plaintiff failed to address as conceded.” Xenophon Strategies, Inc.

v. Jernigan Copeland & Anderson, PLLC,

(D.D.C. 2017) (quoting

Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries,

(D.D.C. 2003));

see also Wannall v. Honeywell, Inc.,

(D.C. Cir. 2014) (“[Local Rule 7(b)] is

understood to mean that if a party files an opposition to a motion and therein addresses only

some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”);

Head v. Fed. Bureau of Prisons,

(D.D.C. 2015) (applying this principle to

dropped arguments in a pro se plaintiff’s brief). But given Wooten’s pro se status, the Court will

reach the merits.

The only relevant standing contention the Court can find in Wooten’s filings comes from

his Amended Complaint. In it, he argues that because he “proceeds directly under authority of

the Constitution itself . . . no allegation of ‘standing’ is required.” Am. Compl. ¶ 3. But saying

as much will not make it so. Courts must strictly adhere to the jurisdictional standing

6 requirement. See Raines v. Byrd,

(1997) (noting Article III standing is a

“bedrock requirement”); Hispanic Affairs Project v. Acosta,

(D.C. Cir. 2018)

(affirming that Article III standing is “[a]n indispensable component of federal court jurisdiction

in every case”) (citing Lujan,

). Furthermore, the inquiry into standing must be

“especially rigorous when reaching the merits of the dispute would force us to decide whether an

action taken by one of the other two branches of the Federal Government was unconstitutional.”

Raines, 521 U.S. at 819–20.

Here, the Court is asked to question both the legislative and executive branches. Did the

Senate appropriately wield its power to “advise and consent” to judicial nominees? U.S. Const.

art. II, § 2. Can the Court seize the President’s power to appoint individuals to the federal bench

and re-nominate a nominee from a past administration? Id. Special rigor is therefore required.

After weighing Wooten’s claim for standing with that requisite rigor, it is clear that Wooten has

not met his burden to show that the Court has jurisdiction to intervene in this dispute.

Specifically, Wooten’s generalized grievance, common to all members of the public, does not

suffice to meet the injury-in-fact requirement of Article III standing. Even if it did, the alleged

harms are both non-redressable and moot because this Court cannot compel Congress to take

steps to fill a vacancy that does not exist. Thus, this Court does not have subject-matter

jurisdiction and Wooten cannot maintain this action.

The appropriate recourse for those who have a generalized grievance against the political

branches is to seek redress through the political process, not the federal courts. See Lujan,

; Michel,

. For this court to address 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

7 and coequal department, an authority which plainly we do not possess.” Michel,

(quoting Mellon,

). Wooten asks this Court to act beyond its jurisdictional

grant of power and yet does nothing to address the Defendants’ counterarguments. His claim

therefore stalls at the threshold, and must be dismissed in full.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 4) is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: April 21, 2021 RUDOLPH CONTRERAS United States District Judge

8