David H. Penny v. Nancy Pelosi

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2021*
Decided December 23, 2021
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 21-2039
DAVID H. PENNY,
Plaintiff-Appellant,
v.
NANCY PELOSI, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 20-CV-2047
Colin S. Bruce,
Judge.
O R D E R
David Penny, a private citizen, sued the 230 members of the United States House
of Representatives who voted in 2019 to impeach then-President Donald J. Trump.
Penny alleged that President Trump had not committed an impeachable offense and
that the defendants therefore violated the Constitution by voting to impeach. The
district court dismissed the complaint on jurisdictional grounds based on a lack of
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2039 Page 2
standing and the defendants’ absolute immunity. We affirm the dismissal for lack of
jurisdiction.
In their motion under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure, the defendants raised a host of grounds for dismissing Penny’s complaint.
They argued, among other things, that Penny had suffered no concrete injury and
therefore lacked Article III standing and that the Speech or Debate Clause, U.S. C ONST.
art. I, § 6, cl. 1, bars suits against them for their legislative acts. The district court agreed
with both of these arguments and dismissed the action for lack of jurisdiction, without
giving plaintiff an opportunity to amend his complaint.
In our de novo review of the jurisdictional dismissal, see Democratic Party of
Wisconsin v. Vos, 966 F.3d 581, 584–85 (7th Cir. 2020), we need look no further than
Article III standing. Penny argues on appeal that he suffered an injury-in-fact because
the impeachment eroded constitutional norms and threatened to remove from office a
President for whom he voted. To meet his burden, however, Penny had to show that he
personally suffered an injury that was “concrete and particularized,” not “conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations
omitted). Taking his allegations at face value, Penny’s concerns are rooted in “his and
every citizen’s interest in proper application of the Constitution and laws” and are
precisely the sorts of widely shared grievances about government that the Supreme
Court has long held insufficient to generate a case or controversy under Article III.
Id. at 573; Warth v. Seldin, 422 U.S. 490, 499 (1975) (no Article III standing based on
“generalized grievance shared … by all or a large class of citizens”). Insofar as Penny
also argues that his vote for the impeached President supplies a particularized injury,
this argument fails for the same reason.
Penny also argues that the district court should have allowed him to amend his
complaint. Ordinarily he would be correct, see Runnion v. Girl Scouts of Greater Chi. &
Nw. Ind., 786 F.3d 510, 518 (7th Cir. 2015), but any attempt to amend would be futile
here because he could allege no injury sufficient to establish standing. See Access Living
of Metro. Chicago v. Uber Techs., Inc., 958 F.3d 604, 614 (7th Cir. 2020). Indeed, the
proposed amended complaint that he submits with his appellate brief describes no
particularized or concrete injury. See id.
Because Penny lacks standing, we need not address his other arguments. The
judgment of the district court is AFFIRMED with the clarification that the dismissal is
for lack of subject-matter jurisdiction.

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