UNITED STATES COURT OF APPEALS
Filed 7/26/96
TENTH CIRCUIT
WILLIAM (BILL) D. PETERSON, II,
Plaintiff-Appellant,
No. 96-4023
v.
(D.C. No. 95-CV-352 S)
(D. Utah)
ORRIN G. HATCH, Senator, Congress
of the United States of America,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and HENRY, Circuit Judges.**
Plaintiff-Appellant William (Bill) D. Peterson II appeals the district court's
dismissal with prejudice of his complaint. We exercise jurisdiction under 28 U.S.C. §
1291.
Appellant filed the present action against United States Senator Orrin G. Hatch of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
**
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Utah. Appellant alleged that Senator Hatch's economic policies, specifically his failure to
take legislative action to eradicate the country's deficit/trade imbalance and his support of
a balanced budget constitutional amendment, violate Art. I, § 8, cls. 1, 2, 3 and 5 of, and
the Fourth, Fifth and Seventh Amendments to, the United States Constitution.
Appellant's complaint also asserts that Senator Hatch's actions have cost him "his job, his
income, his family, home, and business, his savings, security and his future." Complaint
¶ 28. To compensate for his losses, Appellant sought $16.2 million in damages from
Senator Hatch.
Pursuant to 28 U.S.C. § 636(b), the district court referred the case to a magistrate.
Senator Hatch filed a motion to dismiss. Three days later, plaintiff filed a response to the
motion, and he also filed a motion to amend his complaint, in which he sought to add a
claim of treason against all members of Congress. After reviewing the pleadings, the
magistrate issued a Report and Recommendation in which he recommended, first, that
Appellant's complaint be dismissed for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1), and second, that Appellant's motion to amend be denied. The magistrate
concluded that subject matter jurisdiction was lacking over the complaint, as Appellant's
claim against Senator Hatch was barred by the Speech and Debate Clause of the United
States Constitution.1 The magistrate also denied Appellant's motion to amend the
1
"[F]or any Speech or Debate in either House, [members of Congress] shall not be
questioned in any other Place." U.S. Const., art. I, § 6, cl. 1.
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complaint, concluding that any claims against the other members of Congress also would
be barred by the Speech and Debate Clause. The district court adopted the
recommendation of the magistrate, and dismissed the complaint under Fed. R. Civ. P.
12(b)(1).2
On appeal, Appellant renews his complaints against Senator Hatch's economic
policies and contends that the district court's summary action denied him his right to jury
trial as guaranteed by the Seventh Amendment. Appellant also contends that the district
court erred in not ruling on his claim that the government took his property for public use
without just compensation in violation of the Fifth Amendment. We affirm.
First, we agree that the Speech and Debate Clause deprived the district court of
jurisdiction over Appellant's claim against Senator Hatch. The Supreme Court has
interpreted the Speech and Debate Clause as erecting an absolute bar against all lawsuits
challenging a Senator or Representative's legitimate legislative activities--i.e., those
activities that are "an integral part of the deliberative and communicative processes by
which Members participate in committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation or with respect to other
matters which the Constitution places within the jurisdiction of either House." Gravel v.
United States, 408 U.S. 606, 625 (1972). "In so shielding the legislative branch from
2
The district court also adopted the magistrate's alternative recommendation that
the complaint be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
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judicial scrutiny, the clause seeks to protect legislators 'not only from the consequences of
litigation's results, but also from the burden of defending themselves.'" Browning v.
Clerk, United States House of Representatives, 789 F.2d 923, 927 (D.C. Cir.) (quoting
Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)), cert. denied, 479 U.S. 996 (1986).
Thus, "once 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. 491, 503 (1975) (quoting Doe v. McMillan,
412 U.S. 306, 314 (1973)). The essence of the complaint in this case is that Appellant
disagrees with Senator Hatch's legislative judgment concerning the nation's economic
policies. Choices about economic policies, however, are matters well within a Senator's
"legitimate legislative sphere." Id. Because the Speech and Debate Clause precludes
judicial reexamination of those legislative policy choices, Appellant's claim against
Senator Hatch was properly dismissed for lack of subject matter jurisdiction.3 See
Browning, 789 F.2d at 931 (dismissing claim barred by Speech and Debate Clause for
3
For the same reason, we find no error in the denial of Appellant's motion to
amend his complaint to add a claim of treason against the members of Congress.
Appellant seeks to hold the other members of Congress liable for the same perceived
legislative shortcomings alleged to have been perpetuated by Senator Hatch. See Br. of
Aplt. at 9 ("The [C]ongress appears to neither understand nor is taking appropriate action
to correct the estranged economic situation of the American economy."). Although the
Speech and Debate Clause does not insulate a member of Congress for acts of treason,
see U.S. Const., art. I, § 6, cl. 1, Appellant cannot create a justiciable claim against
members of Congress simply by labeling it "treason." Choices about economic policies,
even if they are poor choices, do not amount to treason against the United States.
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lack of subject matter jurisdiction). Moreover, because we hold that the district court
properly dismissed this claim under Fed. R. Civ. P. 12(b)(1), Appellant's contention that
the district court deprived him of his right to a jury trial is without merit.
Second, we affirm the dismissal of Appellant's Fifth Amendment takings claim.
Although the district court did not explicitly address the takings claim, we need not
remand this issue to the district court, as the sufficiency of the allegations underlying the
claim is a legal question, see Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir.), cert.
denied, 115 S. Ct. 107 (1994), and as such may be resolved on this appeal. See Griess v.
Colorado, 841 F.2d 1042, 1047 (10th Cir. 1988). Appellant argues that he provided
equipment and technology to the United States government in order to remove and
transport uranium tailings from the Salt Lake Valley area. He further contends he was
never paid for his work and thus his property was "taken for public use without just
compensation" in violation of the Fifth Amendment. Br. of Aplt. at 4. Even assuming
that Appellant's takings claim against the government is viable--a question we do not
address--the proper defendant to such a claim is not Senator Hatch, but the United States
government. Appellant fails to state a Fifth Amendment claim against Senator Hatch and
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thus we dismiss this claim under Fed. R. Civ. P. 12(b)(6).
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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