Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 08-cv-01929-REB-MEH
`
`JOHN MARSHALL COGSWELL,
`
`Plaintiff,
`
`v.
`
`JOSEPH R. BIDEN, JR., President of the United States Senate,
`
`Defendants.
`______________________________________________________________________________
`
`RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(1)
`______________________________________________________________________________
`
`Pending before the Court is Defendants’ Motion to Dismiss Complaint Pursuant to Fed. R.
`
`Civ. P. 12(b)(1) [filed November 14, 2008; docket #8]. The Motion has been referred to this Court
`
`for recommendation [docket #10]. See 28 U.S.C. § 636(b)(1)(A); D.C. Colo. LCivR 72.1.C. The
`
`matter is fully briefed, and the Court held a hearing regarding the Motion on February 5, 2009. For
`
`the reasons set forth below, the Court recommends that Defendants’ Motion to Dismiss Complaint
`
`Pursuant to Rule 12(b)(1) be granted.1
`
`1Be advised that all parties shall have ten (10) days after service hereof to serve and file any
`written objections in order to obtain reconsideration by the District Judge to whom this case is
`assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
`or recommendations to which the objections are being made. The District Court need not consider
`frivolous, conclusive or general objections. A party's failure to file such written objections to
`proposed findings and recommendations contained in this report may bar the party from a de novo
`determination by the District Judge of the proposed findings and recommendations. United States
`v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
`written objections to the proposed findings and recommendations within ten (10) days after being
`served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate
`Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985);
`Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d
`1159, 1164 (10th Cir. 1986).
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 2 of 12
`
`I.
`
`Background
`
`Plaintiff initiated this “Bivens type action” on September 9, 2008. (Docket #1.) In his
`
`original Complaint, Plaintiff named Henry Paulson, U.S. Secretary of the Treasury, and Richard
`
`Cheney, as President of the U.S. Senate, as defendants. Plaintiff requested the Court to issue an
`
`injunction enjoining Henry Paulson, the U.S. Secretary of the Treasury, from paying the salaries of
`
`the U.S. Senators until the U.S. Senate advises and consents to “the President’s nominated district
`
`court judges” by appointing two more judges to the bench of the U.S. District Court for the District
`
`of Colorado.2 (Id. at 1, 11.) Alternately, Plaintiff sought a declaratory judgment stating that the
`
`“unreasonable delay of the U.S. Senate in acting on the President’s nominations means consent to
`
`such nominations without advice.” (Id. at 1.) On February 5, 2009, the Court granted a motion
`
`submitted by Plaintiff to dismiss his request for an injunction and Henry Paulson as a party, and to
`
`substitute Joseph R. Biden, Jr., pursuant to Fed. R. Civ. P. 25(d), as a party in the stead of Richard
`
`Cheney. (See Docket #18.) Thus, this Recommendation pertains only to Plaintiff’s request for a
`
`declaratory judgment against Joseph R. Biden, Jr., as President of the U.S. Senate.
`
`Plaintiff submits that the delay of the United States District Court in awarding attorney’s fees
`
`in a case in which Plaintiff was named as a defendant and subsequently dismissed without prejudice
`
`creates an injury giving rise to his right to bring this suit. He also contends the “unreasonable” time
`
`taken by the U.S. Senate in filling the open district court seats in Colorado violate his “constitutional
`
`right to meaningful access to this Court.” (Id. at 6-7.) Plaintiff further presents to the Court that it
`
`can infer the Plaintiff, as a “member of the people’s constituent power,” also represents all other
`
`litigants “throughout the nation” who he alleges are affected with the same injury he asserts.
`
`(Docket #15 at 5.) Plaintiff reiterated these arguments at the February 5, 2009 hearing.
`
`2At the time Plaintiff filed his Complaint, three seats were vacant and one has since been
`
`filled.
`
`2
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 3 of 12
`
`In response, Defendants filed the Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
`
`presently before the Court. (Docket #8.) Defendants construe Plaintiff’s Complaint as a challenge
`
`to the Senate judicial confirmation process itself, not a true claim against the named defendants,
`
`which is therefore protected by the Speech or Debate Clause. (Id. at 3, 7-8.) Furthermore,
`
`Defendants contend Plaintiff lacks standing and the “political question doctrine deprive[s] this Court
`
`of subject matter jurisdiction.” (Id. at 1.)
`
`II.
`
`Standard for Dismissal under Fed. R. Civ. P. 12(b)(1)
`
`Fed. R. Civ. P. 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction
`
`over the subject matter.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a
`
`plaintiff’s case, but only a determination that the court lacks authority to adjudicate the matter. See
`
`Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of
`
`limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A
`
`court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes
`
`apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
`
`Cir. 1974). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in
`
`the complaint, without regard to mere conclusory allegations of jurisdiction.” Groundhog v. Keeler,
`
`442 F.2d 674, 677 (10th Cir. 1971).
`
`In a lawsuit against the United States or an agency of the United States, the United States
`
`must waive its sovereign immunity and consent to suit in order for a court to exercise subject matter
`
`jurisdiction over the case. See, e.g., U.S. v. Mitchell, 463 U.S. 206, 212 (1983); Lonsdale v. U.S.,
`
`919 F.2d 1440, 1442-44 (10th Cir. 1990). The burden of establishing subject matter jurisdiction is
`
`on the party asserting jurisdiction. See Basso, 495 F.2d at 909.
`
`A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less
`
`3
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 4 of 12
`
`stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not
`
`supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
`
`on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations
`
`and citations omitted). Although Plaintiff represents himself in this case, Plaintiff is a lawyer
`
`admitted in good standing in the U.S. District Court for the District of Colorado, therefore the Court
`
`holds Plaintiff to the standards expected from members of the Bar.
`
`III.
`
`Analysis
`
`The Court recommends Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
`
`be granted for three reasons.3 First, Plaintiff’s assertion of Bivens as the jurisdictional basis for his
`
`claim is improper; second, Plaintiff lacks standing; and third, the political question doctrine bars
`
`Plaintiff’s action. The Court addresses each grounds for dismissal in turn.
`
`A.
`
`Bivens
`
`The Court construes Plaintiff’s suit against Joseph R. Biden, Jr., to be in his official capacity
`
`as the President of the U.S. Senate. Official capacity suits against a federal officer are in actuality
`
`suits against the United States. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-
`
`capacity suits . . . generally represent only another way of pleading an action against an entity of
`
`which an officer is an agent”); Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989) (“when an
`
`3The Court emphasizes that Defendants’ Motion to Dismiss is pursuant to Fed. R. Civ. P.
`12(b)(1), which is evaluated by a standard different from that of Fed. R. Civ. P. 12(b)(6), contrary
`to what Plaintiff asserts in his Response. Plaintiff argues the Court should only grant the Motion
`to Dismiss “if, viewing the well-pleaded factual allegations in the complaint as true and in the light
`most favorable to the non-moving party, the complaint does not contain ‘enough facts to state a
`claim to relief that is plausible on its face.” (Docket #15 at 1 (citations omitted).) The cases
`Plaintiff cites to support this contention consider the standard for a motion to dismiss under 12(b)(6),
`not 12(b)(1). 12(b)(1) requires the Court determine its authority to adjudicate the case, not the value
`of the merits of the claim. The Court’s authority in this matter is precluded by subject matter
`jurisdiction and the justiciability doctrines of standing and political question, therefore the Court
`recommends dismissal for lack of jurisdiction.
`
`4
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 5 of 12
`
`action is one against named individual defendants, but the acts complained of consist of actions
`
`taken by defendants in their official capacity as agents of the United States, the action is in fact one
`
`against the United States.” (citations omitted)). “It is well settled that the United States and its
`
`employees, sued in their official capacities, are immune from suit, unless sovereign immunity has
`
`been waived.” Atkinson, 867 F.2d at 590 (citations omitted).
`
`In his Complaint, Plaintiff relies on Bivens v. Six Unknown Named Agents of Fed. Bureau
`
`of Narcotics in conjunction with 28 U.S.C. § 1331, commonly referred to as a Bivens action, to
`
`establish subject matter jurisdiction over his claims. 403 U.S. 388 (1971). In Bivens, the Supreme
`
`Court allowed suit for money damages against federal officers in their individual capacities who
`
`committed constitutional violations under color of federal law. Plaintiff himself identifies Bivens
`
`as authorizing a damages remedy; however, Plaintiff requests solely injunctive relief. (Docket #1
`
`at 1, n.1.) Moreover, the Tenth Circuit established,
`
`There is no such animal as a Bivens suit against a public official tortfeasor in his or
`her official capacity. Instead, any action that charges such an official with
`wrongdoing while operating in his or her official capacity as a United States agent
`operates as a claim against the United States.
`
`Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (quoting Farmer v. Perrill,
`
`275 F.3d 958, 963 (10th Cir. 2001)). Plaintiff’s pleading pursuant to Bivens bars his claim for
`
`injunctive relief against a federal agent in his official capacity, which is in fact, a claim for
`
`injunctive relief against the United States. Therefore, the Court recommends dismissal based on
`
`Plaintiff’s deficient assertion of proper subject matter jurisdiction.
`
`B.
`
`Standing
`
`Even if Plaintiff properly pled jurisdiction, the prerequisite of standing to bring a claim
`
`precludes Plaintiff’s action. Dismissal of a case for lack of standing is proper pursuant to Fed. R.
`
`Civ. P. 12(b)(1). See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004) (treating
`
`5
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 6 of 12
`
`appeal as reviewing dismissal pursuant to Rule 12(b)(1) because the district court determined
`
`plaintiffs lacked standing). At the hearing, Plaintiff requested the Court to apply a “liberal”
`
`construction of standing to this action, pursuant to Broadrick v. Oklahoma. 413 U.S. 601, 612
`
`(1973) (recognizing the Court’s alteration “of traditional rules of standing to permit - in the First
`
`Amendment area - ‘attacks on overly broad statutes with no requirement that the person making the
`
`attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite
`
`narrow specificity.’” (citation omitted)). However, the Supreme Court stated this doctrine regarding
`
`“facial overbreadth” of a statute “has been employed by the Court sparingly and only as a last
`
`resort.” Id. at 613. The Broadrick Court opined that principles of standing “reflect the conviction
`
`that under our constitutional system courts are not roving commissions assigned to pass judgment
`
`on the validity of the Nation’s laws.” Id. at 611. Accordingly, the Court refrains from extending
`
`the limited First Amendment exception in this matter. Thus, the Lujan Court’s traditional standing
`
`analysis applies and requires that, in order to satisfy the jurisdictional requirement of constitutional
`
`standing, Plaintiff “must allege (and ultimately prove) that [he has] suffered an ‘injury in fact,’ that
`
`the injury is fairly traceable to the challenged action of the Defendants, and that it is redressable by
`
`a favorable decision.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir.
`
`2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). (Docket #8 at 3; docket
`
`#15 at 2.) The Court concludes Plaintiff meets none of the three elements of standing, as set forth
`
`below.
`
`Plaintiff asserts his individual injury giving rise to proper standing in this matter stems from
`
`a Motion for Attorney’s Fees he filed on June 1, 2005, in a case in which he was named as a
`
`defendant and subsequently dismissed without prejudice as a party. Defs.’ Mot. for Att’y’s Fees,
`
`Ptasynski v. CO2 Claims Coal., LLC, No. 02-cv-00830-WDM-MEH (D. Colo. June 1, 2005). The
`
`6
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 7 of 12
`
`District Court granted in part and denied in part the Motion for Attorney’s Fees in a March 21, 2006,
`
`order. Order, Ptasynski, No. 02-cv-00830-WDM-MEH (D. Colo. Mar. 1, 2006). The Motion was
`
`granted in part “as to the entitlement of fees but denied in part as to the amount” of the fee award
`
`without “further submission,” because the Motion had been submitted without “an affidavit of an
`
`independent attorney . . . concerning the reasonableness of the hourly rates and hours claimed by
`
`the movant.” (Id. at 7.)
`
`Plaintiff (as a defendant in Ptasynski) submitted a response to the District Court’s order on
`
`April 14, 2006, purposed to satisfy the affidavit requirement. The Ptasynski plaintiff then submitted
`
`a response to the Motion for Attorney’s Fees, which was replied to by Plaintiff and the other relevant
`
`Ptasynski defendants on May 10, 2006. The case then proceeded as to the other defendants not
`
`dismissed without prejudice through jury trial which completed on April 20, 2007. See Ptasynski
`
`v. CO2 Claims Coal., No. 02-cv-00830-WDM-MEH, 2007 WL 1306492 (D.C. Colo. May 3, 2007).
`
`After the docket entry on May 10, 2006, no other activity on the Ptasynski docket relates to Plaintiff.
`
`The Court will not speculate why the amount of fees was not conclusively determined and awarded;
`
`however, the Court notes that neither Plaintiff, nor any of the other three defendants included in the
`
`original motion for fees, has ever filed a Motion for Order, or for Clarification, or for a Status
`
`Conference, in regards to the fees he alone asserts give rise to an injury conveying standing in this
`
`matter.
`
`In Lujan, the Supreme Court established an “injury in fact” must be “concrete and
`
`particularized . . . actual or imminent, not ‘conjectural’ or ‘hypothetical.’” 504 U.S. at 560 (citations
`
`omitted). Due to the fact that Plaintiff has taken no discernable steps to claim the fees in question
`
`(other than the filing of this lawsuit), and none of the other entitled Ptasynski defendants have either,
`
`the Court views this alleged injury as “conjectural” or “hypothetical.” Plaintiff is still free to move
`
`7
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 8 of 12
`
`the Court for consideration of the fee calculation, therefore the Court concludes Plaintiff’s alleged
`
`injury is not an injury-in-fact at all, but is merely a loose end from litigation that needs to be tied up,
`
`upon initiative by those to which it pertains.
`
`Plaintiff’s asserted injury also falls short of the remaining two elements required to satisfy
`
`standing. His injury must be “fairly traceable to the challenged action of the Defendants” and
`
`“redressable by a favorable decision.” Lujan, 504 U.S. at 560-61. “When the plaintiff is not himself
`
`the object of the government action or inaction he challenges, standing is not precluded, but is
`
`ordinarily ‘substantially more difficult’ to establish.” Id. at 562. A speculative connection between
`
`an indirect injury claimed and the challenged action does not fulfill causation for the purposes of
`
`standing. Allen v. Wright, 468 U.S. 737, 757-58 (1984).
`
`Plaintiff challenges Defendant Biden in his role as President of the U.S. Senate, but fails to
`
`allege with any particularity how this federal agent caused Plaintiff to not recover the attorney’s fees
`
`he claimed and was, in essence, granted, in 2006. In fact, Plaintiff describes no facts demonstrating
`
`with any concrete probability that the allegedly “delayed” judicial confirmation process had any
`
`effect on the calculation and award of attorney’s fees in the Ptasynski matter. Plaintiff seeks the
`
`Court to infer some causal connection by recognizing an “associated ripple effect;” however,
`
`concurrent with the Allen Court’s conclusion, it is entirely speculative whether two (or three) more
`
`judges appointed to the bench in Colorado would generate an award of attorney’s fees to Plaintiff
`
`in the Ptasynski matter any more or less timely than the status quo. The great causal leap Plaintiff
`
`requests is simply too far outside of the legal bounds defining standing.4
`
`4Additionally, in response to Plaintiff’s claim that “defendants have caused him injury by
`denying him meaningful access to the judicial power of the United States and that this injury is
`great, immediate and irreparable,” the Court points him to the rather expeditious resolution of the
`action he presently brings, which was filed on September 9, 2008, and recommended for dismissal
`not even six months later upon the Motion to Dismiss filed on November 14, 2008. (Docket #15
`at 2.) Such evidence directly contradicts Plaintiff’s assertion of “great, immediate and irreparable”
`
`8
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 9 of 12
`
`Moreover, Plaintiff’s contention that “the Court can also infer that Plaintiff does not stand
`
`alone and that his injury affects many other courts throughout the nation and the litigants therein,”
`
`thereby inspiring Plaintiff to act “as a member of the people’s constituent power,” violates the bar
`
`against asserting a “generalized grievance,” which is a well-settled rule in evaluating prudential
`
`standing. See, e.g., Bd. of County Comm’rs of Sweetwater County v. Geringer, 297 F.3d 1108, 1112
`
`(10th Cir. 2002) (reiterating that a plaintiff must also meet the requirements of prudential standing
`
`in addition to constitutional standing) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975) (“when the
`
`asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large
`
`class of citizens, that harm alone normally does not warrant exercise of jurisdiction.”)). (Docket #15
`
`at 5.) As mentioned by the Supreme Court in Allen, barring the “adjudication of generalized
`
`grievances” arises from the determination that such claims are “more appropriately addressed in the
`
`representative branches.” 468 U.S. at 751.
`
`Similarly, Plaintiff cannot meet the third constitutional standing requirement, that his
`
`asserted injury could be redressed by a favorable decision in this matter, because “‘a federal court
`
`is not the proper forum to press’ general complaints about the way in which government goes about
`
`its business.” Allen, 468 U.S. at 760 (citation omitted). Even if the Court were to do as Plaintiff
`
`suggests and issue a declaratory judgment that the U.S. Senate has somehow voided its
`
`Constitutional right and obligation to advise and consent to the appointment of federal judges,
`
`nothing in Plaintiff’s pleadings demonstrates a causal link between such order and Plaintiff
`
`recovering attorney’s fees from the Ptasynski matter. The Constitution clearly allocates the power
`
`to appoint “judges of the supreme court, and all other officers of the United States” to the Executive
`
`Branch upon the advice and consent of the Senate, and the judiciary lacks the power to restructure
`
`injury stemming from his allegations of “the U.S. Senate [refusing] to perform its duty.” (Id.)
`
`9
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 10 of 12
`
`the “apparatus established by the Executive Branch [and Legislative Branch] to fulfill [their] legal
`
`duties” as articulated by the Constitution. U.S. Const. art. II, § 2; see Allen, 468 U.S. at 761.
`
`“When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary
`
`court system, his case must contend with the well-established rule that the Government has
`
`traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs.’” 468 U.S.
`
`at 761. Based on this and the other binding legal precedent set forth herein, the Court is simply
`
`unable, by virtue of the separation of powers doctrine underlying constitutional standing, to
`
`recognize Plaintiff’s satisfaction of such jurisdictional requirement in this matter.
`
`C.
`
`Political Question
`
`In addition to the bars of improperly pled jurisdiction and standing, the political question
`
`doctrine precludes Plaintiff’s action. “Prudence, as well as separation-of-powers concerns, counsels
`
`courts to decline to hear ‘political questions.’” Schroder v. Bush, 263 F.3d 1169, 1173-74 (10th Cir.
`
`2001). The Court evaluates the political question doctrine on a case-by-case basis and considers the
`
`following:
`
`Prominent on the surface of any case held to involve a political question is found [1]
`a textually demonstrable constitutional commitment of the issue to a coordinate
`political department; or [2] a lack of judicially discoverable and manageable
`standards for resolving it; or [3] the impossibility of deciding without an initial
`policy determination of a kind clearly for nonjudicial discretion; or [4] the
`impossibility of a court's undertaking independent resolution without expressing lack
`of the respect due coordinate branches of government; or [5] an unusual need for
`unquestioning adherence to a political decision already made; or [6] the potentiality
`of embarrassment from multifarious pronouncements by various departments on one
`question.
`
`263 F.3d at 1174 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
`
`The Constitution commits the power of appointment of federal judges to the Executive
`
`Branch, upon the advice and consent of the Senate. U.S. Const. art. II, § 2. Similar to the Tenth
`
`Circuit’s analysis in Schroder, the Court recognizes that while the appointment power of the
`
`10
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 11 of 12
`
`Executive “expressly involves the participation of the Legislature, nowhere does the Constitution
`
`contemplate the participation by the third, non-political branch, that is the Judiciary,” in the
`
`appointment of “judges of the Supreme Court, and all other officers of the United States.” U.S.
`
`Const. art. II, § 2; 263 F.3d at 1174 (citation omitted).5 See U.S. Const. art. III. Furthermore,
`
`nothing in Article III indicates the Court should presume it has “judicially discoverable and
`
`manageable standards” to control the timeliness of actions explicitly delegated by the Constitution
`
`to the Executive and Legislative Branches. This leads naturally to the conclusion that the Court
`
`would have to make “initial policy determination[s] of a kind clearly for nonjudicial discretion,”
`
`given the Constitution’s clarity regarding the appointment power in this circumstance.
`
`Moreover, the Court believes that by granting Plaintiff’s request, the Court would engage
`
`in the utmost expression of a “lack of the respect due coordinate branches of government.” Plaintiff
`
`characterizes his requests for relief as a “desire[ ] to assign legal consequences to the delay and, in
`
`this respect, seeks to establish a rule that constitutional inaction is subject to the general rule that,
`
`when time is not mentioned, a reasonable time is implied.” (Docket #15 at 8.) The Constitution,
`
`in its plain text, bestows no such power onto the Judiciary to regulate the timing in which the
`
`Executive or Legislature exercises their Constitutional duties, and the Court cannot find an instance
`
`where such exercise of power took place. “Article III limits courts to adjudicating cases and
`
`controversies, thereby precluding the sort of judicial oversight of the political branches in which
`
`[Plaintiff] invite[s] [the Court] to engage.” Schroder, 263 F.3d at 1175. Plaintiff would do better
`
`to seek his requested relief, which is in essence a fully-appointed federal bench in the District of
`
`5In Schroder, the Tenth Circuit evaluated the power of the judiciary to review or regulate
`foreign policy and commerce activities as committed by the Constitution to the Executive and
`Legislative Branches. 263 F.3d at 1174-76. This Court can analogize the appointment power and
`process contested by Plaintiff in this matter to the treaty negotiation and confirmation process
`discussed by the Schroder Court, which concluded the Schroder plaintiffs’ action was indeed barred
`by the political question doctrine.
`
`11
`
`

`
`Case 1:08-cv-01929-REB-MEH Document 22 Filed 02/09/09 USDC Colorado Page 12 of 12
`
`Colorado, through the political, not legal, process. For these reasons, the Court concludes
`
`improperly pled subject matter jurisdiction, lack of standing, and the political question doctrine
`
`require dismissal of Plaintiff’s action.
`
`IV.
`
`Conclusion
`
`Accordingly, it is hereby RECOMMENDED that Defendants’ Motion to Dismiss Complaint
`
`Pursuant to Fed. R. Civ. P. 12(b)(1) [filed November 14, 2008; docket #8] be GRANTED.
`
`Dated at Denver, Colorado, this 9th day of February, 2009.
`
`BY THE COURT:
`
` s/ Michael E. Hegarty
`Michael E. Hegarty
`United States Magistrate Judge
`
`12