                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 23 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ROGER LIVERMAN, JR.,

          Plaintiff - Appellant,
                                                       No. 02-4049
 v.                                              D.C. No. 2:01-CV-393-B
                                                        (D. Utah)
 COMMITTEE ON THE JUDICIARY,
 U.S. HOUSE OF
 REPRESENTATIVES,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Plaintiff-Appellant Roger A. Liverman appeals the dismissal of his pro se

complaint seeking monetary and injunctive relief against the Committee of the

Judiciary of the United States House of Representatives (“the Committee”). Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

      *
        This order and judgment is not binding precedent, except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      In September 1997, Mr. Liverman filed a pro se Petition for a Redress of

Grievances and a Private Claim with the United States House of Representatives

(“the Petition”). Dissatisfied with the Committee’s lack of response and failure to

set a hearing on his Petition, Mr. Liverman filed Writs of Mandamus in November

1998 (“1998 Writ”) and August 1999 (“1999 Writ”) asking the district court to set

a time and date for a hearing before the Committee. Mr. Liverman voluntarily

dismissed the 1998 Writ, and in January 2000, the district court dismissed the

1999 Writ, which alleged that the Committee’s inaction violated his due process

and freedom of speech rights.

      We affirmed the district court’s January 2000 dismissal, citing Minnesota

State Bd. for Community Colleges v. Knight, 465 U.S. 271, 283-285 (1984),

holding that members of the public enjoy no constitutional right to be heard by

members of Congress. Aplee. Supp. App. 25-26. While that appeal was pending,

Mr. Liverman filed yet another action asserting substantially similar claims. The

district court dismissed sua sponte, holding that the judicial branch cannot compel

the legislative branch to hear his Petition. Aplee. Supp. App. 29-30.

      On May 29, 2001, Mr. Liverman filed the current action. In this latest

version, Mr. Liverman alleges that the manner employed by the Committee to

review and process his Petition was “plainly arbitrary, capricious, unequal and

standardless and is in violation of fundamental principles of Equal Protection and


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Due Process Clauses [sic] of the Fourteenth Amendment . . . .” Aplee. Supp. App.

33. On March 5, 2002, the district court dismissed Mr. Liverman’s complaint

pursuant to Fed. R. Civ. P. 12 (b)(6), holding that (1) sovereign immunity barred

the suit, (2) it lacked subject matter jurisdiction to order the Committee to

perform a legislative function, and (3) inasmuch as the Petition called for the

initiation of impeachment proceedings against various United States officials, Mr.

Liverman lacked a judicially cognizable interest in the prosecution of another. R.

Doc. 35 at 1-2.

      Our review is de novo. See Sutton v. Utah State Sch. for the Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir. 1999). A Rule 12 (b)(6) dismissal will be upheld

if, accepting the facts pleaded in the complaint as true, it appears “beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.” Id. (quoting GFF Corp. v. Associated Wholesale Grocers,

Inc., 130 F.3d 1381, 1384(10th Cir. 1997).

      On appeal, Mr, Liverman raises various procedural challenges. He argues

that (1) various local rules of the federal district court and the Tenth Circuit

violate equal protection because they treat pro se cases different than counseled

cases, (2) he did not receive the full benefit of the right to due process because (a)

the action was dismissed based upon the pleadings, (b) the district court dismissed

the action (i) without a report and recommendation from the assigned magistrate


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judge, (ii) when the factual contentions relied upon lacked evidentiary support,

and (iii) he was denied initial pretrial disclosures from the Defendant.

      As to Mr. Liverman’s equal protection argument, we note first that Mr.

Liverman did not raise this claim in the proceedings below. This Court has

consistently declined to consider arguments raised for the first time on appeal.

See McDonald v. Kinder-Morgan Inc., 287 F.3d 992, 999 (10th Cir. 2002).

Although we have at times exercised discretion to address such arguments, we do

so only under “extraordinary circumstances,” id., such as where resolution of an

issue is “beyond reasonable doubt, and the failure to address the issues would

result in a miscarriage of justice.” Petrini v. Howard, 918 F.2d 1482, 1483 (10th

Cir. 1990). Finding no reason to depart from our general rule, we decline to

address this argument.

      As to Mr. Liverman’s claim that the district court erroneously dismissed his

action on the pleadings without a hearing, we note that there is no right to an oral

hearing under Fed. R. Civ. P. 12(b)(6). See Greene v. WCI Holdings Corp., 136

F.3d 313, 315-316 (2d Cir. 1998). Whether to grant such a hearing is left to the

discretion of the district court judge. Id. at 316. The district court did not abuse

its discretion by dismissing Mr. Liverman’s action without a hearing. Cf. Geear

v. Boulder Community Hospital, 844 F.2d 764, 766 (10th Cir. 1988) (hearing

requirement for summary judgment motions satisfied by court’s review of


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documents submitted by parties).

      Mr. Liverman also claims that the district court deprived him of due

process by dismissing his action via an order containing “factual contentions” that

lacked evidentiary support. Applt. Br. at 18. Mr. Liverman takes issue with the

district court’s characterization of his current claim as “similar” to his other

lawsuits and with the court’s observation that he was “dissatisfied with the

committee’s response” to his Petition. Id. However, Mr. Liverman fails to

indicate how the court’s language in any way denied him of due process.

Moreover, the district court’s order in no way depended on the accuracy of the

benign introductory statements of which Mr. Liverman complains. Consequently,

this contention is meritless.

      Mr. Liverman’s claim that the district court erroneously dismissed his

action without a report and recommendation by the assigned magistrate judge is

similarly without merit. Implicit in a district court’s discretionary authority under

28 U.S.C. § 636(b)(1)(B) to refer a matter to a magistrate is the power to

withdraw a reference. Cf. 28 U.S.C. § 636(c)(4) (permitting withdraw of

reference by district court in consent cases). Moreover, nothing in Section 636

suggests that a district judge is constrained to act on a motion pending before the

court until the magistrate has issued a recommendation. Consequently, the

district court did not err in granting the Committee’s motion to dismiss without


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first awaiting a recommendation by the magistrate judge.

      Mr. Liverman also contends that the district court erred in staying discovery

pending resolution of the Committee’s motion to dismiss. We review district

court rulings on discovery motions for an abuse of discretion. See Diaz v. Paul J.

Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002). After a careful review of

the record we cannot say that the district court abused its discretion. This

conclusion is buttressed by the fact that the Committee raised sovereign immunity

and other immunity-based defenses in its motion to dismiss. The Supreme Court

has recognized where a defense of qualified immunity has been raised, “[u]ntil

[the] threshold immunity question is resolved, discovery should not be allowed.”

Siegert v. Gilley, 500 U.S. 226, 231 (1991). Finding no logical reason why this

rule should not apply where the defendant raises the defense of sovereign

immunity and the defense is primarily one of law, we conclude that the district

court did not abuse its discretion in staying discovery pending resolution of the

Committee’s motion to dismiss.

      On the merits, Mr. Liverman contends that the district court erred by

dismissing on the grounds of sovereign immunity and lack of subject matter

jurisdiction. Under the doctrine of sovereign immunity, the United States is

immune from suit unless it consents to be sued. See United States v. Sherwood,

312 U.S. 584, 586 (1941). Moreover, “the existence of consent is a prerequisite


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for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The

United States consents to suit only when Congress “unequivocally expresses in

statutory text its intention to waive the United States’ sovereign immunity.”

United States v. Richman (In re Talbot) 124 F.3d 1201, 1206 (10th Cir. 1997)

(citing United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)).

      As the district court recognized, Congress has not consented to the present

action. Aware of this jurisdictional hurdle to maintenance of his suit, Mr.

Liverman argues that by enacting 28 U.S.C. § 1331, which provides for federal

court jurisdiction of all civil actions “arising under the Constitution, laws, or

treaties of the United States,” Congress has effectively waived sovereign

immunity in all federal question cases. Mr. Liverman’s argument is without

merit. Obviously, acceptance of such an argument would necessarily eliminate

the doctrine of sovereign immunity as a jurisdictional bar to suits against the

United States. Moreover, this Court has specifically held that “[g]eneral

jurisdictional statutes such as 28 U.S.C. §1331 do not waive the Government’s

sovereign immunity.” Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir.

2002) (citing Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10th Cir. 1990).

AFFIRMED.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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