IN THE DISTRICT OF COLUMBIA COURT OF APPEALS. No. 16-cv-41. BRIEF FOR APPELLEE THE HONO BLE MITCH McCONNELL

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1 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS No. 16-cv-41 MONTGOMERY BLAIR SIBLEY, V. THE HONORABLE MITCH McCONNELL, AND THE HONORABLE PAUL RYAN, Appellant, Appellees. BRIEF FOR APPELLEE THE HONO BLE MITCH McCONNELL APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CHANNING D. PHILLIPS United States Attorney R. CRAIG LAWRENCE PETER R. MATER Assistant United States Attorneys

2 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES Parties Appellant in this case is Montgomery Blair Sibley, plaintiff in the Superior Court. Appellee is the Honorable Mitch McConnell, defendant in the Superior Court. There are no amicus curiae. Rulings Under Review Appellant seeks to challenge the Order dismissing the First Amended Complaint issued by the Superior Court of the District of Columbia on January 7, Related Cases This case has not been before this Court previously, and counsel for the government is unaware of any related cases currently pending before this Court. The Honorable Paul Ryan, a co-defendant, has appealed an order of the United States District Court for the District of Columbia that remanded this action to the Superior Court for the District of Columbia to the United States Court of Appeals for the District of Columbia Circuit where it is pending. (D.C. Cir. No ).

3 Table of Contents CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1 STATEMENT OF THE CASE 2 Nature of the Case and Disposition Below 2 Statement of the Facts 3 SUMMARY OF THE ARGUMENT 5 I. SIBLEY LACKS STANDING 7 A. Sibley Presents Only a Generalized Grievance That Does 11 Not Show Injury In Fact B. Sibley Lacks Standing Because Congress's Failure 15 To Call a Constitutional Convention Is Not Traceable To the Two Named Defendants C. The Superior Court's Inability To Provide Redress For 18 Plaintiff's Claims Supports Dismissal II. THE SPEECH OR DEBATE CLAUSE BARS THIS SUIT 20 III. THIS ACTION IS NONJUSTICIABLE BECAUSE IT 26 PRESENTS A POLITICAL QUESTION IV. DETERMINING THE MOTION TO DISMISS WITHOUT 32 HOLDING ORAL ARGUMENT DID NOT VIOLATE DUE PROCESS CONCLUSION 35 CERTIFICATE OF SERVICE 36

4 TABLE OF AUTHORITIES FEDERAL CASES Allen v. Wright, 468 U.S. 737 (1984) Allied Chemical Corp. v. Daillon, Inc., 449 U.S. 33 (1980) Baker v. Carr, 369 U.S. 186 (1962) ,28 Bennett v. Spear, 520 U.S. 154 (1997) 6 Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014) 15, 28 DeGenes v. Murphy, 289 Fed. Appx 558 (3d Cir. 2008) 14 Doe v. McMillan, 412 U.S. 306 (1973) 21 *Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1975) 6, 21, 22 *Gravel v. United States, 408 U.S. 606 (1972) 22, 26 Greene v, WCI Holdings Corp., 136 F.3d 313 (2d Cir. 1998) 32 Hastings v. United States Senate, 716 F. Supp. 38 (1989), affd, Hastings v. United States Senate, Nos , , 1989 WL at 1-2 (D.C. Cir. Oct. 18, 1989) 20 Hearst v. Black, 87 F.2d 68 (D.C. Cir. 1936) 20 Hoffinan v. Jeffbrds, 175 F. Supp. 2d 49 (D.D.C. 2001), affd, 2002 WL (D.C. Cir. May 6,2002) 15 Keener v. Congress, 467 F.2d 952 (5th Cir. 1972) 15, 31 Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) 2, 16 Ex parte Levitt, 302 U.S. 633 (1937) 12, 13 Liberation News Service v. Eastland, 426 F.3d 1379 (2d Cir. 1970) 31 *Lujan v, Defenders of Wildlife, 504 U.S. 555 (1992) 5, 6, 12, 18 *Denotes authorities chiefly relied upon

5 MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856 (D.C. Cir. 1988) Magee v. Hatch, 26 F. Supp. 2d 153 (D.D.C. 1998) Mathews v. Eldridge, 424 U.S. 319 (1976) Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984) Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) 19, 25 Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986)?7 Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) 19 Nixon v. United States, 506 U.S. 224 (1993) 27,29 Northern States Power Co. v. United States Department of Energy, 128 F.3d 754 (D.C. Cir. 1997) 32 Pauling v. Eastland, 288 F.2d 126 (D.C. Cir. 1960) 20 Powell v. McCormack, 395 U.S. 486 (1969) 30 Raines v. Byrd, 521 U.S. 811(1997) 6 Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) 12, 13 Shade v. Congress, 942 F. Supp. 2d 43 (D.D.C. 2013), gird, 2013 WL (D.C. Cir. Oct. 15, 2013) 23 State of Rhode Island v. Palmer, 252 U.S. 350 (1920) 30 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) 7 Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980) 21 Trimble v. Johnson, 173 F. Supp. 651 (D.D.C. 1959) 32 United States v. Richardson, 418 U.S. 166 (1974) 13 Walker v. Members of Congress, Case No , 1-2 (W.D. Wash. Oct. 8, 2004), affd, 180 F. Appx 770, 771 (9th Cir. 2006) 22, 31 Warth v. Seldin, 422 U.S. 490 (1975) 12

6 We the People Foundation, Inc. v. United States, 485 F.3d 140 (D.C. Cir. 2007) 14 STATE CASES Banks v. Ferrell, 411 A.2d 54 (D.C. Ct. App. 1979) Cochran v. Couzens, 42 F.2d 783 (D.C. Ct. App. 1930) Community Credit Union Services, Inc. v. Federal Express Services Corp., 534 A.2d 331 (D.C. Ct. App.1987) *Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723 (D.C. Ct. App. 2011) 9 Dorsey v. District of Columba, 917 A.2d 639 (D.C. Ct. App. 2007) 23 *Friends of Tilden Park, Inc, v. District of Columbia, 806 A.2d 1201 (D.C. Ct. App. 2002) 9 *Grayson v. AT&T Corporation, 15 A.3d 219 (D.C. Ct. App. 2011) 9, 10 Hakki v. Zima Company, 2006 WL (Sup. Ct. 2006) 9 Lee v. District of Columbia Board of Appeals & Review, 423 A.2d 210 (D.C. Ct. App. 1980) 9 *Padou v. District of Columbia Alcoholic Beverage Control Board, 70 A.3d 208 (D.C. Ct. App. 2012) 9 *Sibley v. Alexander, No. 13-cv-1151 (D.C. Ct. App. Nov. 21, 2013) 9 FEDERAL CONSTITUTION AND STATUTES 28 U.S.C U.S.C. 1441(a) 3 U.S. Const. Art. I, 4, cl U.S. Const. Art. I, 6, cl. 1 6, 20 U.S. Const. Art III 5, 7 U.S. Const. Art. V 6, 22,

7 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS No. 16-cv-41 MONTGOMERY BLAIR SIBLEY, V. THE HONORABLE MITCH McCONNELL, AND THE HONORABLE PAUL RYAN, Appellant, Appellees. BRIEF FOR APPELLEE THE HONORABLE MITCH McCONNELL APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CHANNING D. PHILLIPS United States Attorney R. CRAIG LAWRENCE PETER R. MATER Assistant United States Attorneys

8 CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES Parties Appellant in this case is Montgomery Blair Sibley, plaintiff in the Superior Court. Appellee is the Honorable Mitch McConnell, defendant in the Superior Court. There are no amicus curiae. Rulings Under Review Appellant seeks to challenge the Order dismissing the First Amended Complaint issued by the Superior Court of the District of Columbia on January 7, Related Cases This case has not been before this Court previously, and counsel for the government is unaware of any related cases currently pending before this Court. The Honorable Paul Ryan, a co-defendant, has appealed an order of the United States District Court for the District of Columbia that remanded this action to the Superior Court for the District of Columbia to the United States Court of Appeals for the District of Columbia Circuit where it is pending. (D.C. Cir. No ).

9 Table of Contents CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1 STATEMENT OF THE CASE 2 Nature of the Case and Disposition Below 2 Statement of the Facts 3 SUMMARY OF THE ARGUMENT 5 I. SIBLEY LACKS STANDING 7 A. Sibley Presents Only a Generalized Grievance That Does 11 Not Show Injury In Fact B. Sibley Lacks Standing Because Congress's Failure 15 To Call a Constitutional Convention Is Not Traceable To the Two Named Defendants C. The Superior Court's Inability To Provide Redress For 18 Plaintiff's Claims Supports Dismissal II. THE SPEECH OR DEBATE CLAUSE BARS THIS SUIT 20 III. THIS ACTION IS 1TONJUSTICIABLE BECAUSE IT 26 PRESENTS A POLITICAL QUESTION IV. DETERMINING THE MOTION TO DISMISS WITHOUT 32 HOLDING ORAL ARGUMENT DID NOT VIOLATE DUE PROCESS CONCLUSION 35 CERTIFICATE OF SERVICE 36

10 TABLE OF AUTHORITIES FEDERAL CASES Allen v. Wright, 468 U.S. 737 (1984) Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) Bakery, Carr, 369 U.S. 186 (1962) ,28 Bennett v. Spear, 520 U.S. 154 (1997) 6 Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014) 15, 28 DeGenes v. Murphy, 289 Fed. Appx 558 (3d Cir. 2008) 14 Doe v. McMillan, 412 U.S. 306 (1973) 21 *Eastland v. US. Servicemen's Fund, 421 U.S. 491 (1975) 6, 21, 22 *Gravel v. United States, 408 U.S. 606 (1972) 22, 26 Greene v. WCI Holdings Corp., 136 F.3d 313 (2d Cir. 1998) 32 Hastings v. United States Senate, 716 F. Supp. 38 (1989), affd, Hastings v. United States Senate, Nos , , 1989 WL at 1-2 (D.C. Cir. Oct. 18, 1989) 20 Hearst v, Black, 87 F.2d 68 (D.C. Cir. 1936) 20 Hoffman v. Jeffords, 175 F. Supp. 2d 49 (D.D.C. 2001), ev, 2002 WL (D.C. Cir. May 6,2002) 15 Keener v. Congress, 467 F.2d 952 (5th Cir. 1972) 15, 31 Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987) 2, 16 Ex parte Levitt, 302 U.S. 633 (1937) 12, 13 Liberation News Service v. Eastland, 426 F.3d 1379 (2d Cir. 1970) 31 *Lif fan v. Defenders of Wildlife, 504 U.S. 555 (1992) 5,6, 12, 18 *Denotes authorities chiefly relied upon

11 MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856 (D.C. Cir. 1988) Magee v. Hatch, 26 F. Supp. 2d 153 (D.D.C. 1998) Mathews v. Eldridge, 424 U.S. 319 (1976) Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984) Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) 19, 25 Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986) 77 Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) 19 Nixon v. United States, 506 U.S. 224 (1993) 27, 29 Northern States Power Co. v. United States Department of Energy, 128 F.3d 754 (D.C. Cir. 1997) 32 Fouling v. Eastland, 288 F.2d 126 (D.C. Cir. 1960) 20 Powell v. McCormack, 395 U.S. 486 (1969) 30 Raines v. Byrd, 521 U.S. 811(1997) 6 Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) 12, 13 Shade v. Congress, 942 F. Supp. 2d 43 (D.D.C. 2013), affd, 2013 WL (D.C. Cir. Oct. 15, 2013) 23 State of Rhode Lsland v. Palmer, 252 U.S. 350 (1920) 30 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83(1998) 7 Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980) 21 Trimble v. Johnson, 173 F. Supp. 651 (D.D.C. 1959) 32 United States v. Richardson, 418 U.S. 166 (1974) 13 Walker v. Members of Congress, Case No , 1-2 (W.D. Wash. Oct. 8, 2004), affd, 180 F. Appx 770, 771 (9th Cir. 2006) 22, 31 Warth v. Seldin, 422 U.S. 490 (1975) 12 11

12 We the People Foundation, Inc. v. United States, 485 F.3d 140 (D.C. Cir. 2007) 14 STATE CASES Banks v. Ferrell, 411 A.2d 54 (D.C. Ct. App. 1979) Cochran v. Couzens, 42 F.2d 783 (D.C. Ct. App. 1930) Community Credit Union Services, Inc. v. Federal Express Services Corp., 534 A.2d 331 (D.C. Ct. App.1987) *Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723 (D.C. Ct. App. 2011) 9 Dorsey v. District of Columbia, 917 A.2d 639 (D.C. Ct. App. 2007) 23 *Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. Ct. App. 2002) 9 *Grayson v. AT&T Corporation, 15 A.3d 219 (D.C. Ct. App. 2011) 9, 10 Hakki v. Zima Company, 2006 WL (Sup. Ct. 2006) 9 Lee v. District of Columbia Board of Appeals & Review, 423 A.2d 210 (D.C. Ct. App. 1980) 9 *Padou v. District of Columbia Alcoholic Beverage Control Board, 70 A.3d 208 (D.C. Ct. App. 2012) 9 *Sibley v. Alexander, No. 13-cv-1151 (D.C. Ct. App. Nov. 21, 2013) 9 FEDERAL CONSTITUTION AND STATUTES 28 U.S.C U.S.C. 1441(a) 3 U.S. Const. Art. I, 4, cl U.S. Const. Art. I, 6, cl. 1 6, 20 U.S. Const. Art. III 5, 7 U.S. Const. Art V 6, 22,

13 STATE STATUTES D.C. Code (a) 10 MISCELLANEOUS Bryan A. Garner, Garner 's Modern American Usage 465 (2003) 10 iv

14 DISTRICT OF COLUMBIA COURT OF APPEALS No. 16-CV-41 MONTGOMERY BLAIR SIBLEY, V. THE HONORABLE MITCH MCCONNELL, AND THE HONORABLE PAUL D. RYAN Appellant, Appellees. APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA BRIEF FOR APPELLEE THE HONORABLE MITCH McCONNELL STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Does Sibley have standing to bring this action? 2. Does the Constitution's Speech or Debate Clause bar this action? 3. Does the political question doctrine bar the Superior Court from adjudicating Sibley's claims?

15 STATEMENT OF THE CASE A. Nature of the Case and Disposition Below Plaintiff-Appellant Montgomery Blair Sibley ("Sibley") brought this action for declaratory judgment and mandamus against the Honorable Mitch McConnell, Majority Leader of the United States Senate, and Paul D. Ryan, Speaker of the United States House of Representatives.1 Sibley alleged that, because the requisite number of states have purportedly applied for a Convention for proposing Amendments under Article V to the Constitution, the Superior Court should declare that two-thirds of the states have called for a Convention to propose amendments, hold that Congress has not called for such a Convention, and the Court, therefore, should issue a writ of mandamus to compel Senator McConnell and Speaker Ryan to call a Constitutional Convention. Defendants removed the action to the United States District Court for the District of Columbia. The District Court ultimately 1 The Complaint named as Defendant John A. Boehner, who served 2

16 determined that it did not have jurisdiction because Sibley lacked standing and remanded it back to the Superior Court. On January 7, 2016, the Superior Court granted Senator McConnell's Motion to Dismiss the action. Sibley appeals. B. Statement of the Facts On April 8, 2015, proceeding pro se, Sibley brought this action in the Superior Court for the District of Columbia. In conformity with 28 U.S.C. 1441(a), and 1442(a), on May 13, 2015, Senator McConnell removed the action to the United States District Court for the District of Columbia. In a Memorandum Opinion and Order issued October 13, 2015, the District Court held that, given Sibley's undisputed lack of Article III standing, the Court lacked jurisdiction, which required it to remand the action to the Superior Court of the District of Columbia. In the Superior Court, Sibley then filed a First Amended Complaint ("Complaint"), which is essentially the same complaint as Speaker of the House when the Complaint was filed. 3

17 that the United States District Court for the District of Columbia had dismissed for lack of standing.2 Sibley alleged that, because the requisite number of states have purportedly applied for a Convention for proposing Amendments under Article V to the Constitution, the Court should declare that two-thirds of the states have called for a Convention to propose amendments, hold that Congress has not called for such a Convention, and then issue a writ of mandamus to compel Senator McConnell and Speaker Ryan to call a Constitutional Convention. The Complaint named the Defendants in their official capacities only. Complaint at J 4-5. On November 20, 2015, Senator McConnell moved to dismiss the Complaint based on the same arguments he had relied upon in urging the District Court to take such action. In a January 11, 2016 Order, the Superior Court granted Senator McConnell's motion to dismiss "for all the reasons set forth in the Motion." 2 The First Amended Complaint added allegations seeking certification of the named defendants as representatives of all Members of Congress. 4

18 (Order at 1)3 SUMMARY OF THE ARGUMENT This Court should conclude as did the Superior Court that three reasons require dismissal of this action. First, Sibley lacks Article III standing because he does not allege injury in fact. Furthermore, Sibley concedes that he lacks standing. Moreover, the Complaint does not allege that Sibley has suffered any injury much less the kind of injury that Article III requires. Sibley also lacks standing because the failure to call a Constitutional Convention is not fairly traceable to the acts or omissions of the named defendants. In addition, Sibley lacks standing because the requested relief would not provide redress for his claimed injury. Apart from the separation of powers principles that preclude a court from ordering a Member of Congress to vote to call a 3 On February 11, 2016, the Superior Court adjudicated Sibley's Verified Motion To Maintain Case as Class Action, which it denied as moot in light of its January 7, 2016 order dismissing the action. 5

19 Constitutional Convention, such an order would not bring about a Convention absent affirmative action by both Houses of Congress. Second, the Speech or Debate Clause of the Constitution, Art. I, sec. 6, cl. 1, bars Sibley's claims because they arise out of an alleged failure to take legislative action. The Speech or Debate Clause gives Members of Congress absolute immunity from suits for damages, injunctions, and declaratory judgments for all conduct arising out of all "matters which the Constitution places within the jurisdiction of either House." Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 (1975). Because Article V of the Constitution assigns to Congress the responsibility to call a Convention, Speech or Debate Clause immunity bars this suit. Third, the political question doctrine also mandates dismissal of this action against Senator McConnell. Under the Constitution, Congress's exercise of its Article V power is a matter committed solely to the House and Senate, and there are no judicially 6

20 manageable standards for resolving this case. Therefore, the political question doctrine bars this action. ARGUMENT I. SIBLEY LACKS STANDING. "Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies." Allen v. Wright, 468 U.S. 737, 750 (1984). That restriction applies in the Superior Court, too. To meet this threshold jurisdictional requirement, a plaintiff must have standing to challenge the action he seeks to contest. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Sibley concedes that he lacks standing. Therefore, the Superior Court correctly dismissed the Complaint for lack of subject-matter jurisdiction. Any plaintiff must establish the elements of standing. First, he must show an "injury in fact," consisting of "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 7

21 actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. at 560 (citations and internal quotation marks omitted). Second, he must demonstrate the existence of "a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant and not.. th[e] result [of] the independent action of some third party not before the court." Id. (internal punctuation omitted). Third, "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision." Id. at 561 (citation omitted); accord Bennett v. Spear, 520 U.S. 154, 167 (1997). Standing is particularly important where another branch of government is a party. "[O]ur standing inquiry has been 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 v. Byrd, 521 U.S. 811, (1997). 8

22 This Court has "adopted the constitutional requirement of a case or controversy and the prudential prerequisites of standing applicable to federal courts under Article III." Sibley v. Alexander, No. 13-cv-1151 (D.C. Ct. App. Nov. 21, 2013) (summarily affirming dismissal.) Thus, in this jurisdiction, the courts examine standing under the analysis just described. See Padou v. District of Columbia Alcoholic Beverage Control Board, 70 A.3d 208, 211 (D.C. Ct. App. 2012) (in applying prudential prerequisites of standing, court will "look to federal standing jurisprudence"); Grayson v. AT&T Corporation, 15 A.3d 219, n. 8 (D.C. Ct. App. 2011) (en banc); Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723, 729 (D.C. Ct. App. 2011); Hakki v. Zima Company, 2006 WL , at * 2 (Superior Ct. 2006). Sibley urges this Court to disregard its governing precedents that require standing, including Sibley v. Alexander; Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. Ct. App. 2002); Community Credit Union Services, Inc. v. Federal Express 9

23 Services Corp., 534 A. 2d 331 (D.C. Ct. App.1987); Lee v. District of Columbia Board of Appeals & Review, 423 A.2d 210 (D.C. Ct. App. 1980). In his view, this Court may do so because these decisions are "intellectually dishonest" (Brief at 6), "intellectual rubbish," (Brief at 8) and "ridiculous." (Brief at 8) Sibley contends that the Superior Court has jurisdiction over "any civil action or other matter (at law or in equity) brought in the District of Columbia." D.C. Code (a). He implies that this language is a broader jurisdictional grant than the "case or controversy" language in the Constitution that forms the predicate for the requirement of standing. This argument, however, conflicts with settled law that the courts of the District of Columbia follow Article III's case or controversy requirement. See Grayson v. AT&T Corporation, 15 A.3d at 235 n. 8. Furthermore, the claim reflects nothing more than ipse dixit, "something said but not proved, a dogmatic statement."4 4Bryan A. Garner, Garner's Modern American Usage 465 (2003). 10

24 In the proceedings in the District Court for the District of Columbia after the Defendants removed the action, Sibley conceded that "this Court (the District Court for the District of Columbia) does not have subject-matter jurisdiction as Sibley does not have Article III 'standing." Motion To Remand at 7, Sibley v. McConnell at al., No , filed May 26, 2015 (ECF No. 7) (emphasis in original). Given Sibley's concession that he lacks standing, the Superior Court's "no standing" holding is correct. Sibley's concession assuredly constitutes sufficient grounds for affirming the dismissal of his action for lack of Article III injury. But, as shown below, even if Sibley had contested the standing issue, the Superior Court would have concluded that he lacked standing. A. Sibley Presents Only A Generalized Grievance That Does Not Show Injury In Fact. In challenging Defendants' failure to call a Constitutional Convention, Sibley presents a generalized grievance about the acts or omissions of the federal government that does not establish 11

25 injury in fact. "[A] plaintiff raising only a generally available grievance about government claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy." Lujan v. Defenders of Wildlife, 504 U.S. at Applying Lujan's analysis, the District Court held that Sibley lacked standing. Memorandum Opinion at 7, Sibley v. McConnell at al., No , filed October 13, 2015 (ECF No.38). Thus, "standing to sue may not be predicated upon an interest of the kind... which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share." Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220 (1974). See Warth v. Seldin, 422 U.S. 490, 499 (1975). By contrast, a particularized injury affects a party in a personal and individual way. Lujan v. Defenders of Wildlife, 504 U.S. at 560 n.1. "[T]o entitle a private individual to invoke the 12

26 judicial power to determine the validity of executive or legislative action, he must show that he is sustaining, or is immediately in danger of sustaining, a direct injury as a result of that action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam). The Supreme Court has rejected citizen suits based on generalized claims of unlawful governmental activity for lack of standing. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. at (holding that an anti-war group lacked standing to invoke the Incompatibility Clause, art. II, 6, cl. 2, to have members of Congress stricken from the Armed Forces Reserve List); United States v. Richardson, 418 U.S. 166, 179 (1974) (holding taxpayer lacked standing to obtain information about the expenditures of the Central Intelligence Agency under the Constitution's Accounts Clause, art. I, 9, cl. 7); Ex parte Levitt, 302 U.S. at 633 (holding that a citizen lacked standing to challenge appointment of Hugo Black to the Supreme Court under the 13

27 Constitution's Ineligibility Clause, art. I, 6, cl. 2). A citizen who requests that a Member of Congress call for a Constitutional Convention does not sustain a Constitutional injury-in-fact from the Member's failure to do so. See Minnesota Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984) ("Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues."); We the People Foundation, Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007) (individuals lack a "right to receive a government response to or official consideration of a petition for redress of grievances"). Thus, a citizen's disagreement with actions or inactions of Members of Congress does not provide injury in fact to establish standing to sue them. DeGenes v. Murphy, 289 Fed. Appx 558, 559 (3d Cir. 2008) (affirming dismissal of action that sought explanation from Member of Congress for failing to present legislation for lack of 14

28 Article III injury; "[n]either the Constitution nor any federal statute requires a citizen's elected representative to respond in writing to his requests"); Keener v. Congress, 467 F.2d 952 (5th Cir. 1972) (dismissal of action to compel Congress to take legislative action for lack of standing); Hoffman v. Jeffords, 175 F. Supp. 2d 49 (D.D.C. 2001), aff'd, 2002 WL *1 (D.C. Cir. May 6, 2002) (dismissal of complaint that Senator unlawfully switched parties after the election for lack of injury in fact). B. Sibley Lacks Standing Because Congress's Failure To Call a Constitutional Convention Is Not Traceable To the Two Named Defendants. Sibley also lacks Article III standing because the challenged conduct Congressional inaction is not "fairly traceable" to Senator McConnell and Speaker Ryan. The D.C. Circuit has affirmed dismissals of complaints arising from alleged congressional action or inaction where the named defendants could not provide the requested relief. For example, in Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014), the court affirmed the dismissal of a 15

29 constitutional challenge to the Senate cloture rule for lack of Article III standing because the complaint named only Senate officers as defendants. It explained that "the causation element requires that a proper defendant be sued," and noted that plaintiff's "injury was caused not by any of the defendants, but by an 'absent third party' the Senate itself," which was immune from suit under the Speech or Debate Clause. Id. at Likewise, in Kurtz V. Baker, 829 F.2d 1133 (D.C. Cir. 1987), the D.C. Circuit rejected a challenge to the refusal of the House and Senate Chaplains to invite a religiously unaffiliated person to deliver secular remarks during the period reserved for legislative prayer. None of the plaintiff's claimed injuries was fairly traceable to the defendants - - congressional chaplains and the Treasury Secretary - - because they had "no authority to compel either house to accede to appearances of a guest chaplain." Id. at 1144 (emphasis added). 16

30 Here, the challenged conduct - - a failure to call a Constitutional Convention - - is also not fairly traceable to Senator McConnell or Speaker Ryan because they lack authority to call a Constitutional Convention, acting individually or together. Although Sibley proposed to seek "class certification" of all 533 remaining Members of Congress as defendants (First Amended Complaint at 12), the Superior Court denied that motion, which left Senator McConnell and Speaker Ryan as the only named defendants. Because they could not provide the relief Sibley seeks, dismissal was appropriate. Sibley's counterarguments have little merit. Stripped of rhetorical excess (no mean feat), little remains of his argument. Sibley contends that the standing doctrine deprives persons who have suffered wrong of a remedy. Properly understood, however, standing serves to distinguish those persons who have suffered wrong from those who have not. 17

31 In urging that a plaintiff no longer be required to show standing, Sibley advocates a judicial system that few would recognize. If a plaintiff need not have standing, then anyone may sue any government or government component over any action it either takes or refrains from taking even if the act or omission has no direct effect on the plaintiff at all. For example, if Sibley believed that his neighbor's social services check from the District of Columbia was too high, he could sue the issuing agency to correct the error. Or, if Sibley believed that the District of Columbia improperly surveyed a property line separating two properties, he could sue to have the boundary corrected even if both property owners were perfectly content. After all, the requirement of standing poses the sole obstacle that bars any citizen from vindicating his "right" to have the government administered according to law. C. The Superior Court's Inability To Provide Redress For Plaintiff's Claims Supports Dismissal. The foregoing discussion also shows that a favorable Superior Court decision cannot redress Sibley's claims. See Lujan v. 18

32 Defenders of Wildlife, 504 U.S. at 560. An order directing Senator McConnell and Speaker Ryan to call a Constitutional Convention would not bring one about because it is speculative whether a sufficient number of the other Members of each body would vote their concurrence. Thus, "declaratory and injunctive relief against the defendants actually named would not prevent the claimed injury." Newdow v. Roberts, 603 F.3d 1002, 1011 (D.C. Cir. 2010) (emphasis added). Moreover, redress for the Complaint is also unavailable because no court can issue the declaratory and injunctive relief Sibley seeks without violating the principle of separation of powers. More than 150 years ago, the Supreme Court held that the courts lack authority under the Constitution to restrain the Senate: The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500 (1866) (emphasis added). 19

33 The D.C. Circuit has also recognized the constraints against enjoining the Senate in the performance of its constitutional functions. Hastings v. United States Senate, 716 F. Supp. 38, 41 (1989), aff'd, Hastings v. United States Senate, Nos , , 1989 WL at *1-.2 (D.C. Cir. Oct. 18, 1989) ("[c]ourts in this District have regularly rejected other petitions seeking judicial supervision of Congressional proceedings"); Pauling v. Eastland, 288 F.2d 126, 130 (D.C. Cir. 1960) (dismissing for lack of jurisdiction judicial challenge to Senate subpoena); Hearst v. Black, 87 F.2d 68, 72 (D.C. Cir. 1936) (refusing to issue relief against a Senate committee concerning its retention, use, or disclosure of allegedly unlawfully obtained information). Thus, the lack of redressability also supports affirmance. II. THE SPEECH OR DEBATE CLAUSE BARS THIS SUIT. The Speech or Debate Clause states that, for "any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. Const. art. I, 6, cl. 1. That 20

34 clause also bars Sibley's claims. It must be read "broadly to effectuate its purposes," which include insuring "that the legislative function the Constitution allocates to Congress may be performed independently." Eastland v. United States Servicemen's Fund, 421 U.S. at 502. Where applicable, the Speech or Debate Clause provides absolute immunity from actions for all forms of relief, whether for injunction, damages, or declaration. That immunity applies whenever a defendant invokes it in any suit that falls "within the 'sphere of legitimate legislative activity." Id. at 501. See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, n. 10 (1980). Thus, the Speech or Debate Clause bars a suit for virtually "anything 'generally done in a session of the House by one of its members in relation to the business before it." Doe v. McMillan, 412 U.S. 306, 311(1973) (citation omitted). Furthermore, it applies not just to "the deliberative and communicative processes" by which Members participate in the legislative process but also "with respect 21

35 to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625 (1972). "[O]nce it is determined that Members are acting within the 'legitimate legislative sphere,' the Speech or Debate Clause is an absolute bar to interference." Eastland v. United States Servicemen's Fund, 421 U.S. at 503. Because Article V of the Constitution expressly assigns to the Houses of Congress the legislative responsibility to "call a Convention for proposing Amendments," U.S. Const. Art. V, the exercise of that responsibility is a "matter H which the Constitution places within the jurisdiction of either House." United States v. Gravel, 408 U.S. at 625. Therefore, the absolute immunity afforded by the Speech or Debate Clause erects an absolute bar to any suit seeking Congressional action to call a Constitutional Convention. See Walker v. Members of Congress, Case No , *1-2 (W.D. Wash. Oct. 8, 2004), aff'd, 180 F. Appx 770, 771 (9th Cir. 2006) (show cause order) (in case seeking order compelling Congress to 22

36 call a Constitutional Convention, court lacked jurisdiction and complaint barred by Speech or Debate immunity); Shade v. Congress, 942 F. Supp. 2d 43, 48 (D.D.C. 2013), aff'd, 2013 WL (D.C. Cir. Oct. 15, 2013) (dismissing action against legislative defendants for alleged failure to appropriate funds sought by plaintiffs); Magee v. Hatch, 26 F. Supp. 2d 153, (D.D.C. 1998) (dismissing as frivolous complaint against Senator because the Speech or Debate Clause bars a suit against a Member of Congress based on his or her legislative vote); Dorsey v. District of Columbia, 917 A.2d 639, (D.C. Ct. App. 2007) (Speech or Debate immunity encompasses action challenging "voting by members"); Cochran v. Couzens, 42 F.2d 783, 784 (D.C. Ct. App. 1930) (affirming Speech or Debate Clause dismissal against Senator in slander action). Sibley contends (Brief at 13) that the obligation that he seeks to compel Senator McConnell and Speaker Ryan to satisfy - - to call for a Constitutional convention to be convened - - is "ministerial." 23

37 Because that duty is ministerial, their immunity under the Speech or Debate Clause of the Constitution is "inapposite." (Brief at 13). To begin with, even if the ultimate act of calling for a Constitutional convention were "ministerial," no authority suggests that "ministerial" legislative acts are excepted from Speech or Debate immunity. To the contrary, in MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, (D.C. Cir. 1988), relying on the Speech or Debate clause, the D.C. Circuit affirmed an order that quashed subpoenas for documents issued to a Congressional subcommittee. There, the District Court had "rejected the * * * argument that the purportedly ministerial act of recording testimony is unprotected by the Clause".) And it explained that "the proper inquiry is not whether an act can be labelled ministerial or discretionary, but whether the act falls within the legislative sphere." Id. at 858. In affirming that decision, the D.C. Circuit explained that "the critical inquiry, in determining questions of Constitutional [Speech or Debate Clause] immunity,is 24

38 whether the action at issue, whether legal or not, was undertaken within the legislative sphere." Id. at 860. (quotations marks omitted). Moreover, the determination by a Member of Congress whether the required conditions have been met to call for a Constitutional convention is hardly ministerial. As Sibley's authorities recognize, the responsibility to call for a Constitutional convention arises only "under conditions admitted or proved to exist." Mississippi v. Johnson, 71 U.S. 475, 498 (1866). Thus, the determination to call a convention necessarily involves complex underlying questions, including whether each legislature has made an "application" that a Constitutional convention be called, how each application is worded, and whether the applications have been made within an applicable time period. Even if calling for a Constitutional convention is a mandatory duty when all the necessary conditions exist, determining whether the conditions exist is not ministerial. 25

39 Finally, Sibley argues (Brief at 16) that, because his claim does not involve the passage of proposed legislation, the Speech or Debate Clause is not implicated. But what Sibley seeks to compel the defendants to perform arises in a "matter which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. at 625. Therefore, because the task falls within the responsibilities of Members of Congress, this suit against the defendants falls within the Speech or Debate Clause. III. THIS ACTION IS NONJUSTICABLE BECAUSE IT PRESENTS A POLITICAL QUESTION. In addition to these threshold barriers, the Complaint also presents a non-justiciable political question. The political question doctrine mandates dismissal because a Congressional determination to exercise power under Article V of the Constitution is committed exclusively to the House and Senate. Furthermore, there are no judicially manageable standards for resolving this case. See Baker v. Carr, 369 U.S. 186, 217 (1962) (listing six factors, the existence of any of which indicates a political question). 26

40 The political question doctrine applies in this Court. See Banks v. Ferrell, 411 A.2d 54, n. 8 (D.C. Ct. App. 1979). The Constitution assigns to the Congress the exclusive responsibility to "call a Convention for proposing Amendments." U.S. Const., Art. V. That commitment to the legislative branch does not differ materially from the power to try impeachments, see Nixon v. United States, 506 U.S. 224 (1993), or from the power to "Judge" the Elections, Qualifications, and Returns of its Members, see Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986). In Nixon, the Supreme Court found that a challenge to how the Senate conducted an impeachment trial is committed to the Senate and therefore was nonjusticiable. It reasoned that the word "try" in the Impeachment Trial Clause did not provide an identifiable textual limit on the Senate's authority to try impeachments. Nixon v. United States, 506 U.S. at 237. Here, the Constitution also contains no identifiable textual limits that constrain Congress's responsibility to determine the 27

41 subsidiary questions that govern whether to call a Constitutional Convention. Thus, any question involving the form and timing of a petition for a Constitutional Convention, any question about the intrinsic nature of such a proceeding, and all similar questions are matters entrusted exclusively to the legislative branch. For example, whether an amendment proposed by Congress loses its vitality after thirteen years elapsed presents a nonjusticiable question. See Coleman v. Miller, 307 U.S. 433, 451 (1939). In Baker v. Can-, the Supreme Court reaffirmed its Coleman holding: "the question[] of how long a proposed amendment to the Federal Constitution remained open to ratification... [is] committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp." 369 U.S. at 214. This case resembles Coleman and Baker in several key respects. Several constitutional provisions prescribe time requirements for actions by the House and Senate, see, e.g., U.S. 28

42 Const. art. I, 4, cl. 2; art. I, 5, cl. 4; amend. XX, 2, and Article V itself contains several precise restrictions, including a time restriction. See Art. V (barring an amendment concerning the slave trade or direct taxes, prior to 1808). The Constitution, however, provides no "identifiable textual limit," Nixon v. United States, 506 U.S. at 237, that defines how much time may elapse between the first and last applications of the requisite number of states for Congress to "call" a Constitutional Convention. Absent such an explicit limit, there is no manageable standard to govern judicial review. Furthermore, given that Article V does prescribe other aspects of the amendment process, the absence of other limits strongly suggests "that the Framers did not intend to impose additional limitations" on congressional consideration of the lapse of time between state applications. Nixon v. United States, 506 U.S. at 230 (inclusion of three requirements in the Constitution upon Senate's authority to try impeachments suggests absence of other 29

43 limitations). Moreover, notwithstanding the appearance of the word "shall" in the pertinent provision of the Constitution, the Complaint nonetheless presents a political question because there are no relevant "identifiable textual limits" that limit the exercise of discretion. Id. at 238. Sibley's authorities do not support his novel view of the political question doctrine. In Powell v. McCormack, 395 U.S. 486 (1969), the Court held that, where the Constitution establishes criteria governing when the House of Representatives must seat a member, the House must follow those criteria. Here, where the question involves whether the criteria for calling a Constitutional convention have been met, Powell has no applicability. As for State of Rhode Island v. Palmer, 252 U.S. 350 (1920), the Court addressed the meaning of the requirement for a two-thirds vote in each house in order to propose a Constitutional amendment. But determining whether a sufficient number of states have made "application" for a Constitutional convention within the applicable time period differs 30

44 markedly from the question presented in Palmer. In sum, the questions about the Constitutional amendment process Sibley poses are committed exclusively to Congress and there are no judicially manageable standards to answer them. Therefore, the Complaint presents a nonjusticiable political question. See Keener v. Congress, 467 F.2d 952 (5th Cir. 1972) (dismissing action seeking a judicial order that Congress adopt a uniform method of valuation for United States currency as an attempt "to compel Congress to exercise its discretion to legislate on a purely political question." See also Walker v. United States, No , slip op. at 2 (W.D. Wash. Mar. 19, 2001) (complaint seeking a judicial order to compel Congress to call a Constitutional Convention under Article V "raises political questions that are more properly the province of Congress.") Sibley's demand for mandamus relief also lacks merit. Members of Congress are not subject to 28 U.S.C. 1361, the federal mandamus statute. See Liberation News Service v. Eastland, 31

45 426 F.3d 1379, 1384 (2d Cir. 1970); Trimble v. Johnson, 173 F. Supp. 651, 653 (D.D.C. 1959). Nor does the Complaint satisfy the rigorous standards for invoking mandamus relief. See, e.g., Allied Chemical Corp. v. Daifion, Inc., 449 U.S. 33, 34 (1980); Northern States Power Co. v. United States Department of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997). IV. DETERMINING THE MOTION TO DISMISS WITHOUT HOLDING ORAL ARGUMENT DID NOT VIOLATE DUE PROCESS. Sibley also contends (Brief 21-22) that, in deciding Senator McConnell's motion to dismiss without holding oral argument, the Superior Court violated due process. But due process only requires providing a person notice and opportunity to be heard. See, e.g. Mathews v. Eldridge, 424 U.S. 319 (1976). Furthermore, "the circuit courts that have addressed the question of whether an oral hearing is required on motions to dismiss in civil cases have uniformly held that no oral hearing is required by the Due Process Clause." Greene V. WCI Holdings Corp., 136 F.3d 313, 316, (2d Cir. 1998) (citing 32

46 decisions of First, Sixth, Ninth, and D.C. Circuits). Due process required no oral hearing here. Because Sibley filed a brief in opposition to the motion to dismiss without objecting to being limited to a written response, there was no violation of due process. Sibley does not complain that being so limited hampered his ability to present his opposing arguments.5 Sibley also asserts (Brief at 23) that, by dismissing the action against both Senator McConnell and Speaker Ryan, the Superior Court "violated due process and/or the rules of procedure." (Brief at 22). As to the latter, Sibley does not identify the procedural rule that the Superior Court violated. As to the former, the order did not violate Sibley's due process rights. Sibley does not assert that his claim against Speaker Ryan differed in any respect from his claim against Senator McConnell. Because the rationale for the dismissal of the Complaint as to one 5 The authorities Sibley cites do not suggest that an opportunity to be heard orally is indispensable to due process. They only stand for the unremarkable proposition that what satisfies due process 33

47 defendant applied equally to both, the Superior Court's dismissal of his claims against both defendants did not abridge Sibley's rights. depends on the particular circumstances. 34

48 CONCLUSION For these reasons, the Court should affirm the Superior Court's Order dismissing the First Amended Complaint. Dated: March 21, 2016 Respectfully submitted, CHANNING D. PHILLIPS D.C. Bar # United States Attorney for The District of Columbia R. CRAIG LAWRENCE D.C. Bar # Assistant U.S. Attorney By: /s/ Peter R. Maier PETER R. MAIER D.C. Bar # Special Assistant United States Attorney 555 4th St., N.W. Washington, D.C Tel: (202) Fax: (202) Peter.maier2@usdoj.gov Counsel for Defendant-Appellee the Honorable Mitch McConnell 35

49 Certificate of Service I hereby certify that I caused a copy of the f9regoing Brief for Appellee to be served upon the following by first class mail addressed to: Montgomery Blair Sibley 402 King Farm Boulevard Suite Rockville, MD Kerry W. Kircher William Pittard Sarah Clouse Office of the General Counsel U.S. House of Representatives 219 Cannon House Office Building\ Washington, D.C on this 21st day of March, / s/ Peter R. Maier PETER R. MATER, D.C. Bar # Special Assistant United States Attorney 555 4th St., N.W. Washington, D.C (202) Peter.maier2@usdoj.gov 36