Whitney v. Obama ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
MARK WHITNEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1409 (RWR)
)
BARACK OBAMA, et al., )
)
Defendants. )
_____________________________ )
MEMORANDUM OPINION
Plaintiff Mark Whitney brought this action for declaratory
and injunctive relief against President Barack Obama and the
United States, challenging under the War Powers Resolution1 the
President’s authority to deploy United States armed forces to
Libya. The defendants have filed a suggestion of mootness,
arguing that the military activity of which the plaintiff
complains ended in 2011. Whitney opposes, contending that the
case still presents a live controversy due to the fact and
effects of the U.S. military’s continuing presence in Libya, and
the likelihood that the alleged violation will recur in both
Libya and Syria. Because the case is moot and does not satisfy
1
“The War Powers Resolution requires that military actions
commenced by the President . . . be terminated if, after sixty
days, Congress has not declared war or authorized the use of
military forces.” Kucinich v. Obama, Civil Action No. 11-1096
(RBW), 2011 WL 5005303, at *12 n.3 (D.D.C. Oct. 20, 2011) (citing
50 U.S.C. § 1544).
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the exception to the mootness doctrine, the complaint will be
dismissed.2
BACKGROUND
On March 17, 2011, the United Nations Security Council
approved Resolution 1973 (2011), which imposed a no-fly zone over
Libya and authorized “all necessary measures” other than foreign
occupation to “end . . . the current attacks against civilians”
in that country. SECURITY COUNCIL SC/10200, available at
http://www.un.org/News/Press/docs/2011/sc10200.doc.htm. NATO
“answered the call[]” by launching Operation Unified Protector.
“WE ANSWERED THE CALL” - THE END OF OPERATION UNIFIED PROTECTOR,
http://www.nato.int/cps/en/SID-50A86982-5F805C35/natolive/news_80
435.htm (last visited February 26, 2012). By March 28, 2011,
President Obama “commit[ted] U.S. forces to the U.N.-authorized
military mission in Libya[.]” OBAMA: NOT ACTING IN LIBYA ‘WOULD HAVE
BEEN A BETRAYAL OF WHO WE ARE,’
http://articles.cnn.com/2011-03-28/politics/us.libya_1_libya-miss
ion-libya-policy-libyan-leader-moammar-gadhafi? s=PM:POLITICS
(last visited Feb. 26, 2012). He announced that the U.S. would
“play ‘a supporting role -– including intelligence, logistical
support, search-and-rescue assistance, and capabilities to jam
2
This opinion assumes that Whitney had standing to sue in
the first instance. See Campbell v. Clinton, 203 F.3d 19, 28
(D.C. Cir. 2000) (“[W]e may assume standing when dismissing a
case as moot.”).
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regime communications[.]’” Id. (Accord Defs.’ Suggestion of
Mootness (“Suggestion”), Ex. 1, E. O. Joseph McMillan Declaration
(“McMillan Decl.”) ¶ 2.) “[F]ollowing the death of [Libyan
leader] Muammar Qaddafi and the defeat of Qaddafi-regime forces”
on October 23, “the [U.S.] ceased air operations in support of”
Operation Unified Protector on October 31. The U.S. military
personnel remaining in Libya are there to support the diplomatic
mission. (McMillan Decl. ¶¶ 3-4.)
Whitney’s complaint seeks an injunction directing the
President to terminate the use of U.S. armed forces in support of
the U.N.-authorized military mission in Libya. The defendants
assert that the case is now moot and must be dismissed.
I. THE MOOTNESS BAR
“It is a basic constitutional requirement that a dispute
before a federal court be ‘an actual controversy3 . . . extant at
all stages of review, [and] not merely at the time the complaint
is filed.’” Newdow v. Roberts, 603 F.3d 1002, 1008 (D.C. Cir.
2010) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10
(1974)) (alteration in original). “‘[W]hat makes [a judicial
pronouncement] a proper judicial resolution of a “case or
3
The “‘controversy requirement means that, throughout the
litigation, the plaintiff must have suffered, or be threatened
with, an actual injury traceable to the defendant and [which is]
likely to be redressed by a favorable judicial decision.’”
Daskalea v. Wash. Humane Soc’y, 710 F. Supp. 2d 32, 39-40 (D.D.C.
2010) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) (emphasis
added).
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controversy” rather than an advisory opinion [] is in the
settling of some dispute which affects the behavior of the
defendant towards the plaintiff.’” Nat’l Ass’n of Home Builders
v. Salazar, Civil Action No. 10–832 (GK), 2011 WL 6097988, at *6
(D.D.C. Dec. 8, 2011) (quoting Hewitt v. Helms, 482 U.S. 755, 761
(1987)) (emphasis in original). If “‘the issues presented are no
longer “live” or the parties lack a legally cognizable interest
in the outcome[,]’” the case is considered moot. Honeywell
Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C.
Cir. 2010) (quoting Cnty. of L.A. v. Davis, 440 U.S. 625, 631
(1979)). Moot cases “must be dismissed[,]” id. (internal
quotation marks and citation omitted), where “events outrun the
controversy such that the court can grant no meaningful relief,”
Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 326
(D.C. Cir. 2009) (Sentelle, J., dissenting) (internal quotation
marks and citation omitted).
The defendants, who bear the “heavy burden” of establishing
mootness, Honeywell, 628 F.3d at 576, describe how the actions
Whitney challenged in 2011 had ceased by 2012 (Suggestion at 2).4
Whitney sought to enjoin the defendants from continuing U.S.
4
For the defendants to establish mootness, it may not be
enough for them to claim that they voluntarily ceased the
challenged activity. “The President’s cessation of the [activity
in Libya] was not ‘voluntary[.]’ . . . [T]he [military mission]
ended because [NATO prevailed], not because the President sought
to avoid litigation.” Campbell v. Clinton, 203 F.3d 19, 34 n.14
(D.C. Cir. 2000) (Randolph, J., concurring).
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military participation in NATO Operation Unified Protector (Pl.’s
Mot. for a Prelim. Injunc. (“Pl.’s Mot.”) ¶ 2), which was
undertaken to “protect civilians from attack or the threat of
attack in Libya[,]” NATO AND LIBYA - OPERATION UNIFIED PROTECTOR,
http://www.nato.int/cps/en/natolive/71679.htm (last visited Feb.
26, 2012). In October of 2011, President Obama recognized the
Libyan Transitional National Council’s declaration of liberation,
and NATO announced that the “Alliance’s job to protect civilians
from the threat of attack [wa]s done.” (Suggestion at 2
(citations omitted).) The United Nations Security Council
likewise terminated the “use-of-force provisions of resolution
1973 (2011),” effective October 31, 2011. (Suggestion at 2
(quotation marks and citation omitted); id., McMillan Decl. ¶ 3.)
Since “the alleged ‘hostilities’ that formed the basis for
plaintiff’s challenges in his Complaint[] have ended[]” (Defs.’
Reply to Pl.’s Opp’n to Suggestion of Mootness at 1), the
defendants conclude that Whitney’s challenge to “[U.S.] support
for these international operations in Libya is moot[.]”
(Suggestion at 3.)
The D.C. Circuit found a similar challenge to be moot in
1985. Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985). In
Conyers, eleven members of Congress challenged the military
invasion of Grenada in October of 1983 as violative of the War
Powers Clause of the United States Constitution. Id. at 1125-26.
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The President, who “stated that he ordered the invasion to
protect innocent lives,” withdrew all combat troops by
December 15 of that year. Id. at 1126. However,
“[a]pproximately 300 United States military personnel remained in
Grenada to maintain order and assist in training the Grenadian
police force.” Id. By the time the case reached the D.C.
Circuit, “the actions complained of ha[d] long since ended[.]”
Id. at 1125. Accordingly, the D.C. Circuit dismissed the appeal
as moot and remanded the case for the district court to vacate
its judgment. Id. at 1127 (noting that the controversy
requirement applies equally to requests for declaratory and
injunctive relief), 1129. The court also described as “dubious”
the plaintiffs’ “attempt to avoid mootness” by arguing “that the
mere presence of military personnel in Grenada, under peaceful
circumstances, continues to violate the War Powers Clause.” Id.
at 1127.
In light of Conyers, Whitney’s claims have become moot.
“[T]he [U.S.] ceased air operations in support of” NATO’s
Operation Unified Protector on October 31, 2011, and Whitney
cites no authority for the proposition that the War Powers
Resolution covers the continued presence of peaceful troops.
(McMillan Decl. ¶ 4.) Because “[t]he clash . . . has subsided,
and what occurred during the dispute cannot be undone[,]” Bhd. of
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Maint. of Way Employees v. Atchison, Topeka and Santa Fe Ry.,
Civil Action No. 95-2031 (TFH), 1996 WL 435018, at *2 (D.D.C.
Apr. 11, 1996), “the court can grant no meaningful relief[.]”
Del Monte, 570 F.3d at 326 (Sentelle, J., dissenting) (internal
quotation marks and citation omitted). The declaratory judgment
Whitney seeks would constitute an “improper advisory opinion”
since no live dispute remains. Conservation Force v. Salazar,
715 F. Supp. 2d 99, 105 (D.D.C. 2010); Conyers, 765 F.2d at 1128(“[A] request for declaratory relief [is] moot [if] . . . there
is [no] substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality[.]”)
(internal quotation marks and citation omitted). Granting
injunctive relief likewise would prove ineffectual, as the
challenged actions have long since ceased.5 Accordingly,
Whitney’s claims are moot.
II. THE EXCEPTION TO THE BAR
The D.C. Circuit has recognized the “capable of repetition,
yet evading review” exception to the mootness doctrine, see,
e.g., Honeywell, 628 F.3d at 576, when “intervening events beyond
5
Whitney argues that an injunction would: 1) “allay[] [his]
concerns for his ability to criticize the President[,]” 2) show
“Qadaffi [sic] factions . . . that while the President may be
their enemy, the U.S. citizenry is not[,]” and 3) “restore the
proper balance of powers among the Legislative and Executive
Branches.” (Pl.’s Opp’n at 3-4.) These speculative assertions
in no way obviate the requirement that federal courts dismiss
cases posing no live controversy.
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the [parties’] control . . . appear to have rendered the claims
moot.” Conyers, 765 F.2d at 1128 n.9. “[A] controversy is
capable of repetition, yet evading review where both of the
following two requirements are met: 1) the challenged action [is]
in its duration too short to be fully litigated prior to its
cessation or expiration, and 2) there [is] a reasonable
expectation that the same complaining party [will] be subjected
to the same action again.” Habitat for Horses v. Salazar, No. 10
Civ. 7684, 2011 WL 4343306, at *4 (S.D.N.Y. Sept. 7, 2011)
(internal quotation marks and citation omitted). Under the
evading review prong, courts must “determine whether the activity
challenged is ‘inherently’ of a sort that evades review[.]”
Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000) (citation
omitted) (Randolph, J., concurring). Since “offensive wars
initiated without congressional approval are not in th[is]
category[,]” neither are mere military missions “inherently short
in duration.” Id.; Conyers, 765 F.2d at 1128. Whitney has not
demonstrated that this dispute evades review.
Neither does Whitney satisfy the “capable of repetition”
prong, since there is no “reasonable expectation” that Whitney
will suffer the same alleged violation of the War Powers
Resolution again. Honeywell, 628 F.3d at 576. Though the War
Powers Resolution was enacted nearly forty years ago, Whitney
identifies only one instance in which any president arguably has
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ever violated it. (Pl.’s Opp’n at 2.) See also Campbell, 203
F.3d at 34 (Randolph, J., concurring) (“How likely is [such a
violation] to recur? Not very, if history is any guide.”).
Whitney also states that “entire sovereign regimes with their own
developed military can be toppled in a matter of weeks or
months.” (Pl.’s Opp’n at 3.) “Accepting that prediction as
accurate dooms [his] case.” Campbell, 203 F.3d at 34.
It means that the likelihood of this President, or some
other, violating the 60-day provision of the War Powers
Resolution is remote, not only because we can expect
other Presidents to obtain congressional approval for
wars lasting more than 60 days, but also because most
military actions in the future (as plaintiffs agree)
will be over before the 60-day limit for undeclared or
unauthorized wars has been exceeded.
Id. Whitney has not demonstrated that the alleged harm is
“capable of repetition, yet evading review,” and has presented no
authority reflecting that the benefits he sees from an
injunction6 provide an exception to the mootness doctrine. See
Honeywell, 628 F.3d at 576.
CONCLUSION
The military activities Whitney sought to enjoin have ended.
The case is moot, and Whitney has established no applicable
6
See n.5, supra.
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exception to the mootness bar. Accordingly, the complaint will
be dismissed. A final order accompanies this memorandum opinion.
SIGNED this 27th day of February, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge