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BOWMAN v. GOVERNMENT OF THE UNITED STATES

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 12, 1995

WILLIAM F. BOWMAN
v.
THE GOVERNMENT OF THE UNITED STATES OF AMERICA, et al

The opinion of the court was delivered by: POLLAK

MEMORANDUM

 Pollak, J.

 December 12, 1995

 In an order filed November 1, 1995, this court found that a sua sponte application of Federal Rule of Civil Procedure 12(b)(6) might be appropriate, and stated that the plaintiff "may, before November 20, 1995, submit a supplemental memorandum of law addressing the applicability of the standing and political question doctrines to his first group of claims." The plaintiff has now submitted that supplemental memorandum of law, and so I will now consider whether the plaintiff's first group of claims should be dismissed under Rule 12(b)(6).

 I will not summarize the complaint at the same length that I did in the November 1 memorandum. Readers wishing a detailed account of the complaint are referred to that document. See Bowman v. United States, 1995 U.S. Dist. LEXIS 16286, No. 95-5863 (E.D. Pa. Nov. 1 1995). The complaint's first group of claims all derive from Mr. Bowman's assertion that Ohio's admission to the Union in 1803 was performed illegally. *fn1" The complaint asserts that this flaw rendered ineffective the admission of all subsequent states into the Union, and rendered invalid most of the acts of the present (and, in the complaint's view, purported) federal government -- including, inter alia, its imposition of an income tax. *fn2"

  This court finds that it cannot decide the question of the legality of the process by which Ohio was admitted to the Union, because doing so would entail an impermissible encroachment upon the authority of the political branches of the Government. *fn3" The foundations of the doctrine that bars such encroachment, the political question doctrine, were laid by Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803) -- a case that was decided, coincidentally, in 1803, the year of Ohio's contested admission to the Union. In that case, the Chief Justice observed that:

 

The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers particularly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful, that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.

 

It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court, is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

 Id. at 169-70.

 The Court further explained the contours of this doctrine in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), in which Justice Brennan observed that:

 

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarous pronouncements by various departments on one question.

 Id. at 217.

 The question raised by Mr. Bowman would seem to have several of the features identified by Justice Brennan in Baker v. Carr. The legislative and executive branches evidently assumed, in 1803, that Ohio had been properly admitted to the Union, and they appear to have acted on that assumption ever since. *fn4" It is at least conceivable that it would have been within the judicial power to entertain a challenge to the legality of Ohio's admission to the Union had such a challenge been brought in 1803. *fn5" At that time, such a suit might have served to call attention to a defect in the admission process which could then have been easily remedied. Now, however, almost two hundred years have passed, during which time Ohio has been treated as a state. To treat Ohio otherwise at this stage would disturb expectations that have been settled for almost two centuries, and contradict a great many years of practice by the elected branches, demonstrating a considerable lack of respect for those branches. Moreover, it would do so in order to vindicate a right that is purely procedural in nature, if it exists at all. This question would thus seem to be "political" in nature, and so one which this court may not properly decide.

 An appropriate order follows.

 ORDER

 For the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

 1. The complaint's claims are DISMISSED except to the extent that they relate to the conduct of the Internal Revenue Service;

 2. The action is DISMISSED as to all defendants except the United States, the Internal Revenue Service, the Secretary of the Treasury, and the Director of the Internal Revenue Service.

 3. All pending motions by other defendants are DISMISSED as moot.

 December 12, 1995

 Pollak, J.


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