Newdow v. Roberts , 603 F.3d 1002 ( 2010 )

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge:

Plaintiffs appeal the dismissal of their constitutional challenge to religious elements of the presidential inaugural ceremony. We affirm the dismissal because plaintiffs’ claims regarding the 2009 inaugural ceremony are moot and plaintiffs lack standing to challenge the 2013 and 2017 inaugurations.

I

Barack Obama was elected President of the United States on November 4, 2008. Prior to and following his election, organizations were formed to assist preparations for the January 20, 2009 ceremony that would mark his inauguration. The then President-elect created a private coordinating group, the Presidential Inaugural Committee (“PIC”), recognized by statute as “the committee appointed by the President-elect to be in charge of the Presidential inaugural ceremony and functions and activities connected with the ceremony.” 36 U.S.C. § 501(1). By concurrent resolution, Congress established the Joint Congressional Committee on Inaugural Ceremonies (“JCCIC”) and authorized it to “utilize appropriate equipment and the services of appropriate personnel of departments and agencies of the Federal Government” to “make the necessary arrangements for the inauguration of the President-elect.” S. Con. Res. 67, 110th Cong. (2008). The U.S. military services, pursuant to 10 U.S.C. § 2553, jointly formed the Armed Forces Inaugural Committee (“AFIC”) to assist the JCCIC and the PIC in “[planning and carrying out” security and safety measures, ceremonial duties, and other appropriate activities for the inauguration, id. § 2553(b).

Through the PIC, President Obama invited two private ministers- — Revs. Rick Warren and Joseph Lowery — to lead invocation and benediction prayers, respectively, at the inaugural ceremony. President Obama also communicated his wish to John Roberts, Jr., Chief Justice of the United States,¹ that the Chief Justice administer the presidential oath of office at the ceremony and append the phrase “So help me God” to conclude the oath. See Declaration of Jeffrey P. Minear, Counsel- or to the Chief Justice, Newdow v. Roberts, Civil Action No. 08-2248 (D.D.C. Jan. 8, 2009), App. for Appellants at 42.

While these preparations were ongoing, plaintiffs were also preparing themselves to attend or view President Obama’s inauguration. Plaintiffs — who individually describe themselves as atheist, see, e.g., App. for Appellants at 125, nonreligious and nontheistic, see, e.g., id. at 126, Secularist, see, e.g., id. at 128, or humanist, see, e.g., id. at 136 — were hoping President Obama would eschew the prayers and the “So help me God” phrase that have become traditional elements of the inaugural ceremony. However, upon learning these elements were scheduled to be part of the ceremony, plaintiffs sought declaratory and injunctive relief in the district court that would bar those elements for the 2009 as well as for future inaugurations as violations of the First and Fifth Amendments, and in particular the Establishment Clause of the First Amendment. See Complaint at 1, Newdow, Civil Action No. 08-02248 (D.D.C. Dec. 29, 2008). The complaint represented the third Establishment Clause lawsuit the lead plaintiff, Michael Newdow, has brought before federal courts against religious elements of presidential inaugural ceremonies.² Plaintiffs also moved for a preliminary injunction six days after filing their initial complaint.

The district court, after a hearing, denied plaintiffs’ preliminary injunction motion and ordered them to show cause as to why their complaint should not be dismissed for lack of standing and on grounds of issue preclusion related to Newdow’s prior challenges, which had been dismissed on standing grounds. See Order, Newdow, Civil Action No. 08-02248 (D.D.C. Jan. 16, 2009). Plaintiffs did not appeal the denial and the inaugural ceremony took place as planned. See Reply Br. for Appellants at 8. The district court then issued a second show cause order directing plaintiffs to explain why their complaint should not be dismissed as moot. See Show Cause Order, Newdow, Civil Action No. 08-02248 (D.D.C. Feb. 10, 2009). Plaintiffs responded to those orders and also moved to amend their complaint to add more plaintiffs as well as unnamed defendants and allegations concerning the 2013 and 2017 inaugural ceremonies.

Upon consideration of all parties’ responses to the show cause orders, the district court dismissed the complaint. It found plaintiffs lacked standing to challenge the 2009 inaugural ceremony and that Newdow was precluded from challenging the inaugural prayers. See Order at 3, Newdow, Civil Action No. 08-02248 (Mar. 12, 2009). While the district court did not consider plaintiffs’ amended complaint, it noted that the same standing issues afflicting the original complaint and the original plaintiffs would also afflict the new complaint and the new plaintiffs. See id. at 2 n, 1.

Plaintiffs appealed to this court under 28 U.S.C. § 1291, and request that we reverse the district court’s rulings on issue preclusion and standing and remand for a proceeding on the merits. We review the district court’s dismissal of plaintiffs’ suit de novo. See Young Am.’s Found, v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009).

II

The parties present three issues on appeal. The first is whether the lead plaintiff, Newdow, is precluded by the findings of prior cases from challenging inaugural prayers. The second is whether plaintiffs’ challenge to the 2009 inaugural ceremony is moot. The third is whether plaintiffs have standing to bring their claims concerning the 2013 and 2017 inaugurations. We consider each issue in turn.

A

Plaintiffs argue that despite prior cases in which Newdow was found to have lacked standing to challenge inaugural prayers, he is not precluded from challenging those prayers now because changes in circumstances and in the relevant law have cured or made obsolete the standing issues on which those prior challenges failed. Plaintiffs further argue that issue preclusion need not be considered because Newdow is not the only plaintiff in this ease and if any of the other plaintiffs has standing, then the status of Newdow’s standing is irrelevant. See Carey v. Population Servs. Int’l, 481 U.S. 678, 682, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (explaining that once one plaintiff has standing, there is “no occasion to decide the standing of the other [plaintiffs]”).

We agree with plaintiffs’ second argument, and therefore do not address the first. The question of preclusion with regard to Newdow is superfluous amidst other plaintiffs in the case whose standing has not been passed upon in prior cases. We put aside the issue of preclusion and move to the more relevant questions of mootness and standing.

B

The federal defendants and the PIC argue that plaintiffs’ challenge to the religious elements of the 2009 inaugural ceremony is moot. The brief for the federal defendants — -joined in frill by the PIC in its brief, see Br. for the PIC at 14 — -reasons that with the 2009 inauguration having already occurred and the prayers and the oath already spoken, the court is not in the practical or constitutional position to grant the declaratory and injunctive relief requested by plaintiffs. Br. for Fed. Defs. at 14-15.

This argument rings true. It is a basic constitutional requirement that a dispute before a federal court be “an actual controversy ... extant at all stages of review, [and] not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). This rule assures that “federal courts are presented with disputes they are capable of resolving,” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), and not mere opportunities to engage in spirited sophistry. Whether the 2009 ceremony’s incorporation of the religious oath and prayers was constitutional may be an important question to plaintiffs, but it is not a live controversy that can avail itself of the judicial powers of the federal courts. It is therefore moot.

At oral argument, plaintiffs conceded their claims regarding the 2009 inauguration would be moot under basic mootness doctrine. See Tr. of Oral Argument at 6, 27, 52. However, they contend their challenge is saved by an exception to mootness for cases that are capablé of repetition but evade review. Reply Br. for Appellants at 3-9. The first prong of that exception requires that resolution of an otherwise moot case must have “a reasonable chance of affecting the parties’ future relations.” Clarke v. United States, 915 F.2d 699, 703 (D.C.Cir.1990). The second prong requires that “the challenged action [be] in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

Plaintiffs cannot lay claim to this exception. Even if we assume plaintiffs’ challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court’s denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit — along with every other circuit to have considered the issue — has held that “a litigant who could have but did not file for a stay to prevent a counter-party from taking any action that would moot his case may not, barring exceptional circumstances, later claim his case evaded review.” Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C.Cir.2008) (citing consistent cases from other circuits).

We note that Armstrong’s language applies its rule to stays and does not specifically discuss preliminary injunctions or appeals from denials of preliminary injunctions. Plaintiffs seize on Armstrong’s silence regarding appeals from denials and suggest it means they fall under the exception. Reply Br. for Appellants at 8-9. That suggestion is incorrect. It is clear the principle of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot, an obligation that includes filing for preliminary injunctions and appealing denials of preliminary injunctions. See Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir.1999) (applying the rule to numerous avenues of preliminary relief, including appeals). First, the difference between stays and injunctions is of no moment. “Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined,” with the difference being that a stay “operates upon [a] judicial proceeding itself’ while an injunction acts upon a “party’s conduct.” Nken v. Holder, — U.S.-, 129 S.Ct. 1749, 1757-58, 173 L.Ed.2d 550 (2009). We see no reason why this distinction is relevant to the reasoning of Armstrong. Second, it is not logical to construe Armstrong’s principle as stopping short of requiring plaintiffs to pursue appeals of denials of injunctive relief. “[T]he capable-of-repetition doctrine applies only in exceptional situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), and the Armstrong rule ensures only situations that truly evade review in an exceptional way fall under the doctrine’s umbrella. The capable-of-repetition doctrine is not meant to save mooted cases that may have remained live but for the neglect of the plaintiff. We therefore find the exception inapplicable in this case.

C

We turn to the question of plaintiffs’ standing to challenge the 2013 and 2017 inaugurations.³ Standing is determined under the familiar test established in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), which states a plaintiff must: 1) have suffered an injury in fact; 2) that is fairly traceable to the challenged action of the defendant; and 3) that will likely be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130. The absence of any one of these three elements defeats standing. Id. at 561, 112 S.Ct. 2130.

Plaintiffs do not claim President Obama’s recitation of “So help me God” at the conclusion of his oath injured them. See Br. for Appellants at 38. The President cannot be denied the prerogative of making such a religious reference, they concede, because doing so would abrogate his First Amendment rights. See Tr. of Oral Argument at 10-11. For sure, if it were otherwise, George Washington could not have begun the tradition by appending “So help me God” to his own oath; Lincoln could not have offered a war-weary nation “malice toward none” and “charity for all [ ] with firmness in the right as God gives us to see the right”; Kennedy could not have told us “that here on earth God’s work” must be our own; nor could President Reagan have evoked “the shining city ... built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace” in his farewell address. Instead, plaintiffs claim they are injured because “God” was referenced by the Chief Justice and the prayer leaders in the course of the 2009 ceremony. These references, they argue, might have misled the uninformed to think the imprimatur of the state had been placed on the invocation of the Almighty and contributed to a social stigma against them as atheists. See Tr. of Oral Argument at 8-9. We will assume, without holding, that plaintiffs’ claimed injury is an injury in fact and that it can be fairly traced to the conduct of the defendants. It is in the third element, redressability, where we find two problems with plaintiffs’ ease for standing.

First, plaintiffs request relief with regard to unnamed defendants over whom this court has no jurisdiction. Plaintiffs’ amended complaint targets “Other Unknown Oath Administrators” “Other PIC Defendants” and “Other Unnamed Clergy” whom the President or President-elect⁴ may ask in the future to conduct and facilitate religious oaths and prayers at the 2013 and 2017 inaugurations. First Amended Complaint at 21-22, 24, Newdow, Civil Action No. 08-02248 (D.D.C. Mar. 10, 2009). It asks that we enjoin these defendants from taking part in those elements of the ceremony and to declare their possible actions in support of such religious elements unconstitutional. See id. at 55. It is impossible for this court to grant such relief. As a general matter, a court will not entertain a suit unless the defendant has been made a party by service of process. See Fed. R.Civ.P. 4(m); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). Courts do grant an exception to this rule for “John Doe” defendants, but only in situations where the otherwise unavailable identity of the defendant will eventually be made known through discovery.⁵ See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). This case is not such a situation. No amount of discovery will uncover the identities of the unnamed defendants. Therefore, by naming as defendants all persons the future President could possibly invite to administer an oath, lead a prayer, or help in the planning of these events, plaintiffs are essentially seeking a declaration of their rights accompanied by an injunction against the world. There is another name for that type of generally applicable relief: legislation. And that’s not within the power of the courts. See Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431, 436-37, 54 S.Ct. 475, 78 L.Ed. 894 (1934) (holding that general injunctions “violate [] established principles of equity jurisdiction and procedure”).

The second redressability problem is that declaratory and injunctive relief against the defendants actually named would not prevent the claimed injury. Plaintiffs have sued the Chief Justice for the injury inflicted by the utterance of the phrase “So help me God,” and they have sued the JCCIC, the PIC, AFIC, and the named clergymen for the injury inflicted by inaugural prayers. But while these defendants have had some role in facilitating the injury in the past and may again in the future, they possess no authority— statutory or otherwise — to actually decide whether future inaugural ceremonies will contain the offending religious elements. The defendants make clear (and plaintiffs do not contest) that the Chief Justice has no legal authority or duty to decide what may be added to the presidential oath. See Declaration of Jeffrey P. Minear, Counselor to the Chief Justice, Civil Action No. 08-2248 (D.D.C. Jan. 8, 2009), App. for Appellants at 42. It is also clear that the resolution and statute authorizing the JCCIC and the AFIC, respectively, do not confer on those entities the authority or duty to sponsor or determine the contents of the inaugural ceremony. The committees are only authorized — not obligated— to assist or make arrangements for a ceremony should one take place. See S. Con. Res. 67, 110th Cong. (2008); 10 U.S.C. § 2553. The PIC also has no authority or duty to sponsor or determine the contents of the inaugural ceremony. It is merely recognized by statute as a coordinating committee should a future President designate such a group. And, almost needless to say, the named clergymen do not have any authority or duty to institute inaugural prayers or lead them. Indeed, no law obligates the President or President-elect to utilize the services of the Chief Justice, the JCCIC, the AFIC, the PIC, or certain clergymen. To make the point clearer, there is no law mandating that the President or the President-elect even carry out an inaugural ceremony. The inaugural ceremony is a peculiar institution, the whole of which is subject to the President’s or President-elect’s discretion (as plaintiffs concede, see Tr. of Oral Argument at 53 (“[Ultimately it’s the President who makes all the decisions.”)). The named defendants are powerless to direct, say no to, or otherwise stop the future President if he wishes to have his ceremony contain the offending elements.

Therefore, issuing an injunction to prevent them from implementing the future President’s inaugural plan would be folly, akin to enjoining a sound technician from turning the Chief Justice’s microphone on when administering the oath. The defendants, like the sound technician, are not responsible for the offending conduct and the future President could simply find other willing assistants not subject to the injunction to carry out his wishes. In other words, he could find someone else to turn the microphone on. The future President is therefore a “third party not before the court” whose “independent action” results in the alleged injury, Lujan, 504 U.S. at 560, 112 S.Ct. 2130, and courts cannot “redress injury ... that results from [such] independent action,” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).⁶

Declaratory relief against the named defendants will also not provide redress since a declaration with regard to defendants’ conduct will have no controlling force on the President or President-elect. Plaintiffs dispute this, arguing that the possibility the future President will choose to abide by a declaratory judgment establishes the appropriate level of redressability to confer standing. For this proposition, they cite two cases, both of which are inapplicable to this case.

First, plaintiffs cite language in Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), stating that “traceability and redressability are easily satisfied [when] injury is traceable to the President’s [actions] and would be redressed by a declaratory judgment that the [actions] are invalid.” Id. at 433 n. 22, 118 S.Ct. 2091. We put aside the fact that plaintiffs in that case (unlike plaintiffs in this case) actually named the President in their suit. Instead, we highlight that Clinton was a challenge to the constitutionality of the Line Item Veto Act, and the declaratory judgment in that ease struck down that statute and nullified the statutory power of the President to wield a line item veto pen. See id. at 448-49, 118 S.Ct. 2091. It was, in other words, a basic ease of judicial review of legislation. This case, however, challenges no statutory power, but rather a decision committed to the executive discretion of the President or the personal discretion of the President-elect. A court — whether via injunctive or declaratory relief — does not sit in judgment of a President’s executive decisions. See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499, 18 L.Ed. 437 (1867) (“An attempt on the part of the judicial department ... to enforce the performance of [executive and political] duties by the President [is] ‘an absurd and excessive extravagance.’ ”) (quoting Chief Justice John Marshall); Swan v. Clinton, 100 F.3d 973, 976 n. 1 (D.C.Cir.1996) (identifying separation of powers issues raised by requests for declaratory relief against the President). And plaintiffs fail to cite any authority allowing this court to declare unlawful the personal religious expression of a private citizen like the President-elect.

The second case plaintiffs cite is Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), which contains language endorsing the idea that declaratory relief against an officer subordinate to the President — in that case, the Secretary of Commerce — made it “substantially likely that the President ... would abide by an authoritative interpretation” of the relevant law “even though [he] would not be directly bound by such a determination.” Id. at 803, 112 S.Ct. 2767. This citation is unpersuasive. First, that portion of the opinion did not garner the support of a majority of the Supreme Court and is therefore not controlling on this court. See id. at 789-90, 112 S.Ct. 2767 (listing only three Justices joining Part III of Justice O’Connor’s opinion containing its standing discussion); see also id. at 825, 112 S.Ct. 2767 (Scalia, J., concurring in part and concurring in the judgment) (“Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.”). Second, it is distinguishable. In that case, the Commerce Secretary was obligated by statute to provide the President with a report of the nation’s total population, see id. at 799, 112 S.Ct. 2767 (citing 13 U.S.C. § 141(a)), which the President consults before sending his own statutorily required report to Congress showing the population of each state for purposes of apportioning the number of representatives in the House of Representatives, see id. (citing 2 U.S.C. § 2(a)). In other words, the Commerce Secretary was legally responsible for providing the President with advice and information on which he would base his final decision. Therefore, a plurality of the Supreme Court thought declaratory relief applicable to the Secretary’s legal duty would make it “likely” the President would take the action desired by the plaintiffs, even if he was not obligated to do so. See id. at 803, 112 S.Ct. 2767. There is no corresponding advisory relationship between the named defendants and the President or President-elect in this case. The future President is free to use any decisionmaking process he desires when designing and staging an inaugural ceremony and is not obligated to consult anybody or take any cognizance of the opinions issuing from this court.

The only apparent avenue of redi'ess for plaintiffs’ claimed injuries would be injunctive or declaratory relief against all possible President-elects and the President himself. But such relief is unavailable. Beyond the fact that plaintiffs fail to name future President-elects or the President in them suit, plaintiffs cannot sue all possible President-elects for the same reason they cannot sue all possible inaugural participants; as discussed, general injunctions are outside the judicial power. With regard to the President, courts do not have jurisdiction to enjoin him, see Mississippi, 71 U.S. (4 Wall.) at 501, and have never submitted the President to declaratory relief, see Franklin, 505 U.S. at 827-28, 112 S.Ct. 2767 (Scalia, J., concurring in part and concurring in the judgment).

Ill

Plaintiffs’ claims regarding the 2009 inaugural ceremony are moot and plaintiffs do not have standing to bring their claims pertaining to the 2013 and 2017 ceremonies because their injury is not redressable by this court. The district court’s dismissal of their case is therefore

Affirmed.

1 . Both parties and the case heading refer to Chief Justice Roberts as "the Chief Justice of the United States Supreme Court.” If one is to be completely exact, however, the official title is simply "Chief Justice of the United States.” 28 U.S.C. § 1.

2 . Newdow’s first suit challenged President George W. Bush's sanctioning of a Christian prayer as part of the 2001 inaugural ceremony. The Ninth Circuit ultimately dismissed that suit for lack of standing "because [Newdow] d[id] not allege a sufficiently concrete and specific injury.” Newdow v. Bush, 89 Fed.Appx. 624, 625 (9th Cir.2004). Newdow’s second suit,' challenging President Bush’s second inaugural ceremony, was also dismissed for lack of standing, because the doctrine of issue preclusion prevented Newdow from relitigating the Ninth Circuit’s decision that he lacked standing, and because the issue was moot. See Newdow v. Bush, 391 F.Supp.2d 95, 99-101 (D.D.C.2005). Newdow did not appeal that decision. Br. for Appellants at 52.

3 . Plaintiffs' did not make claims regarding future inaugural ceremonies in their original complaint but did so in a proposed amended complaint. The district court, however, dismissed plaintiffs’ case without granting or denying their motion for leave to amend. See Order at 3, Newdow, Civil Action No. 08-02248 (D.D.C. Mar. 12, 2009). It would therefore appear the issue of plaintiffs’ standing to challenge future inaugurations is not before this court, since the complaint was not formally amended. That places plaintiffs in the peculiar position of requesting that this court “recognize" their proposed amended complaint, Br. for Appellants at 7, since they are not in the position to appeal the district court's non-action of refusing to rule on their motion for leave to amend. See 28 U.S.C. § 1291 (granting courts of appeals jurisdiction only over appeals from "final decisions of the district courts"). We observe that the district court considered in its order — but did not decide — whether the amended complaint exhibited standing to challenge future inaugurations, see Order at 2 n. 1, Newdow, Civil Action No. 08-02248 (Mar. 12, 2009), that both parties have fully briefed the standing issue, and that the motion for leave to amend should have been granted as of right under the version of the federal rules in effect at the time of plaintiffs' motion, see Fed.R.Civ.P. 15(a)(1) (2009) (superseded Dec. 1, 2009). In light of these observations and in the interests of judicial economy, we shall consider the standing issue. It would serve no purpose beyond mere slavish adherence to form to do otherwise.

4 . This section references both the President and President-elect because the 2013 and 2017 inaugurations may involve either sitting Presidents beginning a second term or a newly elected person who will not yet be President until after the inaugural ceremony.

5 . It is under this exception that plaintiffs might have been able to pursue “Other Governmental ‘Roe’ Defendants” who "along with or in addition to the other Defendants ... control access to the inaugural platform and to [broadcast] audio-visual systems,” had their complaint otherwise met standing requirements. First Amended Complaint at 23, Newdow, Civil Action No. 08-02248 (D.D.C. Mar. 10, 2009). It is conceivable discovery would have revealed other governmental actors that were made responsible for the security and logistical arrangements of the ceremony.

6 . The Lujan Court discussed "independent action" by a "third party” in reference to the causation prong of standing doctrine rather than redressability. However, the Supreme Court acknowledged in subsequent cases, such as Simon, that causation and redressability are closely related, and can be viewed as "two facets" of a single requirement, Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).