F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           May 17, 2007
                             FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                           Clerk of Court

    TOD N. ROCKEFELLER,

                Plaintiff-Appellant,

    v.                                                     No. 06-2332
                                                  (D.C. No. CIV-06-198 JB/RLP)
    JEFF B INGAM AN, in his official                        (D . N.M .)
    capacity as U .S. Senator; TH E
    U.S. SENATE; STEVE PEARCE,
    in his official capacity as
    U.S. Representative; and TH E U .S.
    HOUSE O F REPRESEN TA TIVES,

                Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.


         In the pro se complaint that he filed in the district court, Tod N.

Rockefeller asserted claims against two members of the U nited States Congress

acting in their official capacities, the United States House of Representatives, and




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the United States Senate, alleging that he “has suffered injury from Defendants

due to their enactment of laws which have deprived him of his civil and

Constitutional rights.” R., Doc. 1 at 2. M r. Rockefeller further alleged that:

(1) “Defendants w ere served with a ‘Demand for the Introduction of a Bill

Restoring the Right of Direct Appeal to the Supreme Court for Constitutional

Violations,’” 

and (2) “Defendants had the authority to prevent and/or

remedy the injuries inflicted upon Plaintiff, but refused to do so,” 

Defendants filed a motion to dismiss M r. Rockefeller’s complaint under Fed. R.

Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The district court granted

the motion, concluding that “Defendants are protected by sovereign immunity, the

Plaintiff is without standing to bring his claims, and the Plaintiff’s claims are

barred by the Speech and Debate Clause.” R., Doc. 15 at 1. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

      In its thorough and well-reasoned order, the district court summarized the

background of this case and M r. Rockefeller’s claims as follow s:

             Plaintiff Tod N . Rockefeller, proceeding pro se, alleges that he
      is a former environmental scientist in the Carlsbad Area Office of the
      United States D epartment of Energy who was terminated from his
      position. See Complaint, Caption, Prayer, at 1, 11, filed M arch 15,
      2006 (Doc. 1). Following his termination, Rockefeller challenged his
      dismissal administratively and in the courts, bringing suit against
      various federal defendants. See 

at 5-6. In three prior
      lawsuits, federal district courts ruled against Rockefeller. See 

of A ppeals affirmed each of those district court decisions,
      and the Supreme Court denied certiorari. See 

this action, Rockefeller asserts that 28 U.S.C. § 1254, which
      eliminated direct appeal to the Supreme Court from adverse courts of
      appeals decisions, and 28 U.S.C. § 2284, which limited grounds for
      convening a three-judge district court panel, are unconstitutional.
      See 

at 6-10. Rockefeller maintains that these laws
      violate the Constitution’s separation-of-powers doctrine and Article
      III. See 

alleges that he notified the
      Defendants of the unconstitutionality of §§ 1254 and 2284, and that
      the Defendants did not take any action to remedy the two laws. See
      

at 3. Rockefeller contends that the operation of these
      laws and the Defendants’ failure to address them have injured him.
      See 

at 10. As such, Rockefeller demands that a three-judge
      panel decide his suit for an injunction halting the operation of
      § 1254. See 

44, at 10.

R., Doc. 15 at 1-2.

      “W e review a district court’s dismissal for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) de novo.” Tsosie v. United States,

, 1163 (10th Cir. 2006). Having conducted the required de novo

review, we agree with the district court that it lacked subject matter jurisdiction

because “Defendants are protected by sovereign immunity, . . . and the Plaintiff’s

claims are barred by the Speech and Debate Clause.” R., Doc. 15 at 1. W e

therefore do not need to address the district court’s alternative jurisdictional

ruling that M r. Rockefeller lacked standing to bring his claims. See Ruhrgas AG

v. M arathon Oil Co., 

, 584 (1999) (“W hile [Steel Co. v. Citizens for

a Better Environment, 

(1998)] reasoned that subject-matter

jurisdiction necessarily precedes a ruling on the merits, the same principle does

not dictate a sequencing of jurisdictional issues.”).



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      “It is elementary that the United States, as sovereign, is immune from suit

save as it consents to be sued, and the terms of its consent to be sued in any court

define that court’s jurisdiction to entertain the suit.” United States v. M itchell,

, 538 (1980) (quotation omitted). “The United States consents to be

sued only when Congress unequivocally expresses in statutory text its intention to

waive the United States’ sovereign immunity.” United States v. Richm an (In re

Talbot), 

, 1206 (10th Cir. 1997). M oreover, “the existence of

consent is a prerequisite for [subject matter] jurisdiction.” United States v.

M itchell, 

, 212 (1983).

      “In general, federal agencies and officers acting in their official capacities

are also shielded by sovereign immunity.” M erida Delgado v. Gonzales, 

, 919 (10th Cir. 2005). “Federal courts generally deem a suit for specific

relief, e.g., injunctive or declaratory relief, against a named officer of the United

States to be a suit against the sovereign.” Wyoming v. United States, 

, 1225 (10th Cir. 2002). Thus, it is well established that the U nited States’

sovereign immunity “extends to [claims for] injunctive relief.” United States v.

M urdock Mach. and Eng’g Co. of Utah, 

, 929 (10th Cir. 1996). The

Supreme Court has recognized, however, that “[t]wo narrow exceptions to the

general bar against suits seeking specific relief from the United States exist.”

. As we have explained:




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      A court may regard a government officer’s conduct as so “illegal” as
      to permit a suit for specific relief against the officer as an individual
      if (1) the conduct is not within the officer’s statutory powers or, (2)
      those powers, or their exercise in the particular case, are
      unconstitutional.

v. Domestic & Foreign Commerce Corp., 

, 702

(1949)).

      W e agree with the district court that “[s]overeign immunity forecloses

Rockefeller’s claims against the House of Representatives and Senate as

institutions, and Representative Pearce and Senator Bingaman as individuals

acting in their official capacities.” R., Doc. 15 at 5 (citing Keener v. Cong. of the

U.S., 

, 953 (5th Cir. 1972)). As the district court pointed out,

“[b]ecause an ‘official capacity’ suit is treated as a suit against a government

entity, see Kentucky v. Graham, 

, 166 (1985), Representative Pearce

and Senator Bingaman, acting in their official capacities, enjoy the envelope of

the Congress’ sovereign immunity, see Travelers Ins. Co. v. SCM Corp.,

, 497 (D .D.C. 1984).” R., Doc. 15 at 5.

      W e also agree with the district court that the Speech or Debate Clause of

the United States Constitution, U.S. Const. art. I, § 6, cl. 1, 1 “protects the acts

with which Rockefeller takes issue in this case – Congress’ enactment of certain




1
       The Speech or Debate C lause states that “for any Speech or D ebate in
either House, [Senators and Representatives] shall not be questioned in any other
Place.” U.S. Const. art. I, § 6, cl. 1.

                                           -5-
legislation and the decision of individual Congressmen not to take legislative

action in response to Rockefeller’s prompts.” R., Doc. 15 at 7; see also Doe v.

M cM illan, 

, 311, 312-13 (1973) (stating that Speech or Debate

Clause “protects M embers [of Congress] against prosecutions that directly

impinge upon or threaten the legislative process,” and that “Congressmen and

their aides are immune from liability for their actions within the legislative

sphere, even though their conduct, if performed in other than legislative contexts,

would in itself be unconstitutional”) (quotations and citations omitted). As a

result, the district court correctly determined that it did not have subject matter

jurisdiction over the claims asserted against Senator Bingaman and Representative

Pearce. See Fields v. Office of Eddie Bernice Johnson, Employing Office, U.S.

Cong., 

, 13 (D.C. Cir. 2006) (“The Speech or Debate Clause operates

as a jurisdictional bar when the actions upon which a plaintiff sought to predicate

liability were legislative acts.”) (quotation omitted).

      In light of the above rulings, we reject M r. Rockefeller’s arguments to the

effect that: (1) “the United States has no immunity when only injunctive relief is

sought,” Aplt. Opening Br. at 7; and (2) “[t]he Speech or Debate Clause does not

preclude judicial review of enacted legislation to determine said legislation’s

constitutionality,” 

First, although “the 1976 amendments to § 702 of the

Administrative Procedure A ct, 5 U.S.C. § 702, eliminated the [United States’]

sovereign immunity defense in virtually all actions for non-monetary relief

                                          -6-
against a U.S. agency or officer [thereof] acting in an official capacity,” Clark v.

Library of Cong., 

, 102 (D.C. Cir. 1984), “the [U nited States]

Congress is not an ‘agency’ as defined under the Administrative Procedure Act.”

U.S.C. § 701(b)(1)(A) (excluding Congress from the definition of

agency)); see also Trudeau v. Federal Trade Comm’n, 

, 187 (D.C.

Cir. 2006) (stating that § 702 “refer[s] to a claim against an ‘agency’ and hence

waives immunity only when the defendant falls within that category”).

Consequently, the waiver of sovereign immunity contained in § 702 does not

apply to this case.

      Second, to the extent M r. Rockefeller is attempting to invoke the “[t]wo

narrow exceptions to the general bar against suits seeking [injunctive] relief from

the United States,” 

, his attempt must fail. In the

context of a suit for injunctive relief against individual members of Congress, the

exceptions for ultra vires and unconstitutional conduct would in effect nullify the

legislative immunity provided to members of Congress by the Speech or Debate

Clause. W e thus conclude that the exceptions are not available here.

      Finally, our holding in this case does not mean that “[t]he Speech or Debate

Clause . . . preclude[s] judicial review of enacted legislation to determine said

legislation’s constitutionality.” Aplt. Opening Br. at 3. To the contrary, we have

determined only that M r. Rockefeller is foreclosed from obtaining judicial review




                                          -7-
of the subject legislation by means of a lawsuit filed directly against the United

States Congress and individual members thereof in their official capacities.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     M ichael W . M cConnell
                                                     Circuit Judge




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