Petition for Writ of Certiorari — Mercer County Board of Education, et al., Petitioners v. Elizabeth Deal, et al.

No. ____

IN THE

Supreme Court of the United States

____________________

MERCER COUNTY BOARD OF EDUCATION; MERCER

COUNTY SCHOOLS; DEBORAH S. AKERS, IN HER

INDIVIDUAL CAPACITY,

Petitioners,

v.

ELIZABETH DEAL; JESSICA ROE,

Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

KELLY SHACKELFORD

HIRAM S. SASSER III

FIRST LIBERTY INSTITUTE

Suite 1600

2001 West Plano Parkway

Plano, TX 75075

(972) 941-4447

GREGORY JACOB

(Counsel of Record)

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

gjacob@omm.com

Attorneys for Petitioners

i

QUESTIONS PRESENTED

In Summers v. Earth Island Institute, 555 U.S.

488 (2009), this Court held that a “vague desire to

return . . . without any description of concrete plans”

is insufficient to establish the requirement of “imminent injury” necessary to provide standing to seek

injunctive relief.

Jessica Roe stopped attending Mercer County

Schools before initiating litigation against it, and has

not stated any intention ever to return to the school

district in the future, even if an injunction is entered.

Did the Fourth Circuit err by finding Roe has

standing to seek to enjoin a school program to which

she has no ongoing exposure, and no non-speculative

prospect of exposure in the future?

ii

PARTIES TO THE PROCEEDING

Petitioners are Mercer County Board of

Education, Mercer County Schools, and Deborah S.

Akers in her individual capacity, defendantsappellees in the Fourth Circuit.

Respondents are Elizabeth Deal and Jessica Roe,

plaintiffs-appellants in the Fourth Circuit.

iii

TABLE OF CONTENTS

Page(s)

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................ 1

INTRODUCTION ..................................................... 2

STATEMENT OF THE CASE .................................. 3

REASONS FOR GRANTING THE WRIT................ 9

I.

THE FOURTH CIRCUIT’S

DECISION DIRECTLY

CONFLICTS WITH SUMMERS ............ 12

II.

THE FOURTH CIRCUIT’S NOVEL

“ONGOING INJURY”

DETERMINATIONS GROSSLY

DEPART FROM THIS COURT’S

INJUNCTIVE STANDING

DOCTRINE ............................................. 15

A. Past feelings of marginalization do

not create standing to seek an

injunction. .............................................. 16

B. A plaintiff’s past decision to remove

herself from exposure to a

challenged policy does not

constitute ongoing avoidance in the

absence of concrete plans. ..................... 19

iv

TABLE OF CONTENTS

(continued)

Page(s)

III.

IF LEFT TO STAND, THE

FOURTH CIRCUIT’S NOVEL

“ONGOING INJURY” TEST

WOULD CREATE A CIRCUIT

SPLIT ...................................................... 21

CONCLUSION ........................................................ 22

APPENDIX A:

Court of Appeals Opinion

(4th Cir. Dec. 17, 2018) ...................................... 1a

APPENDIX B:

District Court Opinion

(S.D. W. Va. Nov. 14, 2017) ............................. 17a

APPENDIX C:

Court of Appeals Order Denying Rehearing

(4th Cir. Jan. 28, 2019) .................................... 47a

v

TABLE OF AUTHORITIES

Page(s)

Cases

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .................................... 10, 17, 18

Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) ..............................................14

Funeral Consumers Alliance, Inc. v.

Serv. Corp. Int’l,

695 F.3d 330 (5th Cir. 2012)................................22

Golden v. Zwickler,

394 U.S. 103 (1969) ........................................10, 20

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..............................................13

Nat’l Ass’n of Home Builders v. EPA,

667 F.3d 6 (D.C. Cir. 2011) ..................................22

O’Shea v. Littleton,

414 U.S. 488 (1974) ........................................10, 18

Rizzo v. Goode,

423 U.S. 362 (1976) ........................................10, 18

Schlesinger v. Reservists Comm. to Stop

the War,

418 U.S. 208 (1974) ..............................................14

Summers v. Earth Island Institute,

555 U.S. 488 (2009) ...................................... passim

Warth v. Seldin,

422 U.S. 490 (1975) ..............................................14

vi

TABLE OF AUTHORITIES

Page(s)

ZF Meritor, LLC v. Eaton Corp.,

696 F.3d 254 (3rd Cir. 2012) ...............................22

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 1 .......................................1

Statutes

28 U.S.C. § 1254(1)......................................................1

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

Fourth Circuit is reported at 911 F.3d 183 and

reprinted in the Appendix to the Petition (“App.”) at

1a–16a.

The

district

court’s

unpublished

memorandum and order is reprinted at App. 17a–46a.

JURISDICTION

The U.S. Court of Appeals for the Fourth Circuit

issued its decision on December 17, 2018, and denied

Petitioner’s motion for panel rehearing on January

28, 2019. App. 47a. The Chief Justice extended the

time within which to file a petition for a writ of

certiorari to and including May 29, 2019. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, Section 2, clause 1 of the U.S.

Constitution provides as follows:

“The judicial power shall extend to all cases, in

law and equity, arising under this Constitution, the

laws of the United States, and treaties made, or which

shall be made, under their authority;—to all cases

affecting ambassadors, other public ministers and

consuls;—to all cases of admiralty and maritime

jurisdiction;—to controversies to which the United

2

States shall be a party;—to controversies between two

or more states;—between a state and citizens of

another state;—between citizens of different states;—

between citizens of the same state claiming lands

under grants of different states, and between a state,

or the citizens thereof, and foreign states, citizens or

subjects.”

INTRODUCTION

Jessica Roe left Mercer County Schools in 2016

and a few months later sued the school district,

seeking to enjoin its Bible in the School (“BITS”)

program. She did not allege she had any desire or

intention ever to return to Mercer County Schools,

even if the injunction she was seeking was granted.

Indeed, the complaint alleged nothing more than past

exposure, past injury, and a past decision to leave the

school district. The district court determined that

Jessica did not have Article III standing to seek to

enjoin BITS, because she left Mercer County Schools

in 2016 with no concrete plans ever to return. The

district court held that in the absence of such concrete

plans, Jessica failed to allege a present or future

injury giving rise to standing to seek an injunction,

and further failed to establish that whatever injury

she was claiming would be remedied by an injunction.

The Fourth Circuit reversed. The court rejected

as empty “formalism” this Court’s long-established

requirement that to have standing to seek an

injunction, a plaintiff challenging a government

policy must allege that the policy poses a nonspeculative impediment to the plaintiff’s concrete

present or future plans. The court acknowledged that

Jessica failed to plead any present or future plans

3

that BITS impeded; the complaint was limited to

pleading past exposure and past harm. The Fourth

Circuit nonetheless held that the complaint’s

allegations were sufficient to establish Jessica’s

standing to seek an injunction, because Jessica’s past

feelings of marginalization should be presumed to be

“ongoing” and “independently actionable,” and

because her past decision to leave Mercer County

Schools should be presumed to constitute ongoing

avoidance—even in the absence of any stated intent

or even desire ever to return.

The Fourth Circuit’s novel theory of a plaintiff’s

standing to seek prospective injunctive relief

contravenes numerous precedents of this Court, and

particularly Summers v. Earth Island Institute, 555

U.S. 488 (2009). This Court has repeatedly reiterated

that a plaintiff cannot have standing to seek an

injunction unless the plaintiff can show that a

challenged government policy poses a non-speculative

impediment to the plaintiff’s concrete present or

future plans. It is obvious that a student who has left

a school district with no stated intention ever to

return does not have standing to seek to enjoin a

portion of that school district’s curriculum. To ensure

a faithful application of this Court’s injunctive

standing doctrine and to avoid the creation of a circuit

split, the Fourth Circuit’s decision in this case should

be summarily reversed.

STATEMENT OF THE CASE

Between 2012 and 2016, Jessica Roe attended

kindergarten through third grade in Mercer County

Schools. DE21 ¶¶ 34, 43. Jessica enrolled in a

neighboring school district for fourth grade in the fall

4

of 2016, and she has remained there ever since. Id.

¶¶ 48–49.

During the years that Jessica was enrolled in

Mercer County Schools, the schools offered a Bible In

the School (“BITS”) program. Id. ¶¶ 34, 43. On

January 18, 2017, Freedom from Religion

Foundation, Inc., Jane Doe, and Jamie Doe filed the

underlying action alleging that BITS violated the

Establishment Clause and seeking both injunctive

relief and nominal damages. DE1. Respondents

Jessica and her mother, Elizabeth Deal, were added

to the case as plaintiffs in an amended complaint filed

on March 28, 2017. DE21. Of these five plaintiffs,

only Jessica and Deal are Respondents in this Court,

because the other plaintiffs did not appeal the district

court’s order dismissing the complaint.

Petitioners moved to dismiss the complaint for

lack of standing and failure to state a claim.

Petitioners acknowledged that Jessica alleged a

constitutionally cognizable past injury due to her

previous exposure to BITS. Petitioners argued that

Jessica nevertheless lacked Article III standing to

seek an injunction pertaining to the school curriculum

because she left Mercer County Schools in 2016 with

no stated intention ever to return.1

Petitioners also argued in their motion to dismiss that

Jessica lacked standing to seek declaratory relief concerning her

alleged past injury, because she failed to seek compensatory

damages in the Amended Complaint, and because a request for

nominal damages alone does not create a sufficiently concrete

interest to give rise to Article III standing. The district court

agreed with Petitioners. App. 32a–35a. That issue is not before

this Court in this petition, however, because the Fourth Circuit

1

5

The district court agreed. The district court

acknowledged that the Amended Complaint stated

that BITS was a “major reason” for Jessica’s removal

from Mercer County Schools in 2016. App. 21a. The

Amended Complaint does not state, however, that

Jessica would not have left Mercer County Schools

but for BITS. App. 31a (“[T]he Amended Complaint

does not allege that the Bible in the Schools program

was the only reason for sending Roe to a school

outside Mercer County.”). Nor did the Amended

Complaint allege that Jessica had any intention or

even desire ever to return to Mercer County Schools,

even if BITS was enjoined. App. 30a–31a. (“In the

stark absence of the contention that Roe intends to

return to [Mercer County Schools], Elizabeth Deal

and Jessica Roe are not entitled to prospective relief

because they do not have a concrete interest in the

resolution of those claims.”). The district court

concluded that Jessica did not have standing to

pursue injunctive relief because she had not

demonstrated a likelihood of repeated injury or future

harm, or that the prospective relief sought by Jessica

would redress her grievances. Id.

The district court’s ruling was further supported

by the admission of Jessica’s counsel at oral argument

that the complaint does not contain any allegation

that Jessica had any intention ever to return to

Mercer County Schools:

The Court: “Going back to Jessica Roe,

based its ruling that Roe has Article III standing entirely on her

request for injunctive relief and did not address the nominal

damages question.

6

you haven’t alleged in the complaint that

she would come back to Mercer County if

this program is done away with, have

you?

Mr. Schneider: We have not, Your Honor.

And I don’t think that’s necessary. . . . It’s

not realistic to, to require Elizabeth Deal

to consider every possible way in which

this case might be resolved to make a

decision preemptively on speculative

circumstances about whether Jessica

would return to the district. . . .

The Court: Well, the fact that that’s all

speculative cuts against you more than it

does your opponent here, doesn’t it?

Mr. Schneider:

Honor.

I don’t think so, Your

C.A. App. 287:1–288:9. Jessica thus admitted on the

record not only that her complaint contained no

allegation of any intention ever to return to Mercer

County Schools, but also that it was entirely

speculative whether she would return even if BITS

was enjoined.

The Fourth Circuit reversed and remanded. The

court held that Jessica had sufficiently alleged an

Article III injury entitling her to pursue injunctive

relief.

Specifically, the court found that Roe

“claim[ed] to suffer from two actual, ongoing injuries:

(1) near-daily avoidance of contact with an alleged

state-sponsored religious exercise, and (2) enduring

feelings of marginalization and exclusion resulting

therefrom.” App. 8a. The court explained that

7

“[u]nlike injuries that occurred in the past and may

no longer be imminent, ongoing injuries are, by

definition, actual injuries for purposes of Article III

standing.” App. 9a.

The Fourth Circuit based its description of

Jessica’s supposed “near-daily avoidance” injury

entirely on Paragraph 48 of the Amended Complaint,

which succinctly states that BITS was “a major

reason” that Deal removed Jessica from Mercer

County Schools in 2016.2 The Amended Complaint

does not state that Jessica would have remained in

Mercer County Schools but for the BITS program, or

that the continued existence of BITS was keeping

Jessica from attending Mercer County Schools, or

that Jessica would return to Mercer County Schools if

BITS was removed.3 But the Fourth Circuit labeled

the pleading of concrete future plans of this nature

“formalism” that “our standing jurisprudence does

not require.” App. 11a.

2 In its entirety, Paragraph 48 of the Amended Complaint

states: “Elizabeth removed Jessica from Mercer County Schools

this school year to send Jessica to a neighboring school district.

The Bible in the Schools program and the treatment Jessica

received as a result of not participating in the bible classes were

a major reason for her removal.” DE21 ¶ 48.

3 The Amended Complaint could not possibly assert any of

these things, because BITS ceased to exist in May 2017, and yet

Roe has not returned to Mercer County Schools. Mercer County

first suspended the BITS program on May 23, 2017. App. 21a.

The suspension of BITS was made permanent on January 3,

2019, when the Board adopted a resolution stating that “We, the

Board of Mercer County Schools, hereby RESOLVE that it

schools will never offer or employ the BITS program in any of its

schools.” C.A. DE 76-2.

8

The Fourth Circuit based its description of

Jessica’s

supposed

“enduring

feelings

of

marginalization and exclusion” injury on Paragraphs

45–47 of the Amended Complaint, which in fact do

nothing more than describe Jessica’s past experiences

and feelings. Those paragraphs state that “Jessica

was harassed by other students for not participating

in bible classes,” DE21 ¶ 45 (emphasis added);

“[b]ecause Jessica did not join her classmates during

bible classes, she felt excluded,” Id. ¶ 46 (emphasis

added); and “Elizabeth Deal felt that she and Jessica

were second-class citizens at the school,” Id. ¶ 47

(emphasis added). The Amended Complaint does not

assert that Jessica’s feelings from 2012–2016 in fact

endured after she transferred to a different school.

The Fourth Circuit also held that the Amended

Complaint adequately pleaded that Jessica’s two

purportedly ongoing injuries would be redressed by

the entry of an injunction. With respect to the alleged

“avoidance” injury, the Court held that “if the district

court were to enjoin the County from offering the

BITS program to students in the future, Deal would

no longer feel compelled to send Jessica to a

neighboring school district to avoid what Deal views

as state-sponsored religious instruction.” App. 10a.

Paragraph 48 of the Amended Complaint—which

states only that BITS was “a major reason” that Deal

removed Jessica from Mercer County Schools in

2016—once again provides the entire foundation for

this redressability analysis.

The Fourth Circuit further held that “an

injunction would also alleviate appellants’ ongoing

feelings of marginalization” by “eliminat[ing] the

9

source” of Mercer County Schools’ alleged message to

Jessica that she is an excluded outsider. App. 10a.

The court characterized Jessica’s feelings of

marginalization as an ongoing “obstacle” to her

possible future return to Mercer County Schools, and

found that the entry of an injunction would remove

these feelings of marginalization and thus give

Jessica an “opportunity” to return. The court held

that this improved “opportunity” to return to Mercer

County Schools was “surely a ‘tangible benefit’

sufficient to confer standing,” without regard to

whether Deal or Jessica had a concrete plan (or even

an intention) to reenroll Jessica in the event an

injunction was entered. App. 11a.

Petitioners moved for panel rehearing on

January 14, 2019, arguing that the court’s analysis of

Jessica’s standing to seek injunctive relief cannot be

reconciled with Supreme Court precedent, and ub

particular with Summers v. Earth Island Institute,

555 U.S. 488 (2009), which the panel decision neither

analyzed nor mentioned. Panel rehearing was denied

on January 28, 2019.

This petition followed, pursuant to a 30-day

extension of time to file—up to and including May 29,

2019—which The Chief Justice granted on April 18,

2019.

REASONS FOR GRANTING THE WRIT

The Fourth Circuit’s decision should be

summarily reversed because it is directly contrary to

numerous precedents of this Court establishing the

requirements a plaintiff must satisfy to have Article

III standing to seek injunctive relief. This Court has

10

consistently held that where a plaintiff has no

ongoing exposure to an offending government policy,

she does not have standing to seek to enjoin that

policy unless she can show she has concrete and nonspeculative present or future plans that are likely to

be directly impacted by the challenged policy. This

Court applied this principle to hold that plaintiffs

lacked standing to pursue injunctive relief in

Summers v. Earth Island Institute, 555 U.S. 488

(2009); City of Los Angeles v. Lyons, 461 U.S. 95

(1983); Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea v.

Littleton, 414 U.S. 488 (1974); and Golden v. Zwickler,

394 U.S. 103 (1969), among others.

Applying these precedents to this case, it is

inconceivable that Jessica could have standing to

pursue an injunction. She left Mercer County Schools

in 2016, and has not stated any intention or even a

desire ever to return. Simply put, a student who has

left a school district with no stated intention ever to

go back does not have standing to seek to enjoin that

school district’s curriculum.

The decision below, however, dismissed this

Court’s prescribed approach for determining standing

to seek an injunction as empty “formalism.” The

Fourth Circuit instead fashioned an entirely novel

approach to determining standing to seek an

injunction, holding that a plaintiff’s past exposure to

an offending government policy—even where the

exposure has entirely ceased—should be considered

an “ongoing injury” giving rise to standing if either of

two conditions are met. First, if the past exposure

caused “feelings of marginalization” at the time the

exposure occurred, a court should presume—even in

11

the absence of supporting pleadings—that the

feelings of marginalization continue and constitute an

“independently actionable” ongoing injury. App. 11a.

Second, if the plaintiff removed herself from all

continuing exposure to a government policy before

filing a lawsuit challenging it, a court should

nevertheless presume that the plaintiff is

“continu[ing] to avoid” it, even if the plaintiff has

made no such allegation, and has not alleged that the

policy is having any continuing effect on his or her

present or future plans. App. 7a.

The Fourth Circuit’s novel approach not only is at

odds with this Court’s own precedents, but it would

nullify the limitations this Court has repeatedly

articulated on a plaintiff’s standing to seek

prospective injunctive relief. Jessica’s pleadings focus

entirely on her past alleged injury: her past

attendance at Mercer County Schools (which she

departed in 2016); her past exposure to BITS (which

has not existed since a few months after she left); and

her past feelings of marginalization. By contrast,

Jessica has not pleaded any present or future plans or

intentions of any kind. By affording Jessica standing

to seek an injunction based solely on pleadings of past

injury, the Fourth Circuit has effectively created a

doctrine of perpetual standing, since a plaintiff’s past

exposure to a government policy and past decision to

leave are fixed events that will always remain true.

This Court should grant certiorari and summarily

reverse the Fourth Circuit’s determination that

purely past injuries can be deemed actionable

“ongoing injuries” that create standing to seek an

injunction without any pleading or demonstration

12

that the challenged government policy is having a

continuing, non-speculative impact on the plaintiff’s

present or future concrete plans.

I.

THE FOURTH CIRCUIT’S DECISION

DIRECTLY CONFLICTS WITH SUMMERS

In Summers v. Earth Island Institute, 555 U.S.

488 (2009), the Earth Island Institute sought

injunctive relief against a policy of the U.S. Forest

Service based on alleged harm to two of its members.

The first member, Ara Marderosian, alleged that he

“had repeatedly visited the Burnt Ridge site, that he

had imminent plans to do so again, and that his

interests in viewing the flora and fauna of the area

would be harmed” if an injunction was not entered. Id

at 494. The Court noted it was undisputed that this

concrete statement of intent imminently to return to

a specific, allegedly impacted forest site was sufficient

to establish Article III standing to seek injunctive

relief. Id. However, Marderosian lost his initial

standing to seek injunctive relief after the lawsuit

was filed, because he settled his claim and made no

further demonstration of “any concrete application

that threatens imminent harm to his interests.” Id.

The second member of the Earth Island

Institute, by contrast, alleged that “he had suffered

injury in the past from development on Forest Service

land,” and that “he has visited many national forests

and plans to visit several unnamed national forests in

the future.” Id. at 495. The Court held that this

second member, Jim Bensman, lacked standing to

pursue injunctive relief because his vague allegation

of a general intent to visit unspecified national forests

13

in the future did not constitute “a specific and

concrete plan of Bensman’s to enjoy the national

forests” that would be aided by an injunction. Id. The

Court further expressly rejected any possibility that

Bensman’s alleged past injury could suffice to create

standing to seek an injunction, stating that “it relates

to past injury rather than imminent future injury

that is sought to be enjoined.” Id.

In rejecting Bensman’s standing to seek an

injunction, this Court emphasized not only that a

plaintiff necessarily must demonstrate that a

challenged policy is directly impacting his present or

future plans, but also the quality of alleged impact

that is necessary to sustain standing to seek an

injunction.

The plaintiff must show that the

challenged policy “will impede a specific and concrete

plan.” Id. (emphasis added). Furthermore, the

plaintiff’s stated present or future intentions must be

“firm,” and not merely based on a vague statement

that the plaintiff “wants to” do something. Id. at 496.

“Such ‘some day’ intentions—without any description

of concrete plans, or indeed even any specification of

when the some day will be—do not support a finding

of the ‘actual or imminent’ injury that our cases

require.” Id. (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 564 (1992)). Moreover, the plaintiff

must show that the challenged policy’s asserted

impact on his or her concrete plans is based on a nonspeculative “likelihood,” and cannot be founded on “no

more than conjecture.” Id. at 495–96.

In articulating these specific requirements for

standing to seek an injunction, the Court reiterated

14

several well-established standing-doctrine principles

from which the Fourth Circuit’s decision departs. A

plaintiff must have “‘such a personal stake in the

outcome of the controversy’ as to warrant his

invocation of federal-court jurisdiction.” Id. at 493

(quoting Warth v. Seldin, 422 U.S. 490, 498–99

(1975)). A plaintiff “bears the burden of showing that

he has standing for each type of relief sought.” Id. “To

seek injunctive relief, a plaintiff must show that he is

under threat of suffering ‘injury in fact’ that is

concrete and particularized; the threat must be actual

and imminent, not conjectural or hypothetical; it

must be fairly traceable to the challenged action of the

defendant; and it must be likely that a favorable

judicial decision will prevent or redress the injury.”

Id. (citing Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

“This requirement assures that ‘there is a real need to

exercise the power of judicial review in order to

protect the interests of the complaining party.’ Id.

(quoting Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208, 221 (1974)).

Applying these standards, neither the

Supreme Court nor any Circuit Court has ever held

that a plaintiff who has been completely removed

from exposure to allegedly unconstitutional

government action has Article III standing to seek to

enjoin it absent a showing that the injunction would

directly impact the plaintiff’s “specific and concrete

plans.” Lacking any concrete plan whatsoever to

return to the school district if BITS was enjoined,

Jessica cannot possibly meet that standard. And

whereas Jim Bensman at least alleged that he

15

intended to visit national forests in the future, Jessica

has not alleged any intention ever to return to the

school district, even if BITS is enjoined. Certainly,

there is no basis in the pleadings for the Court to

conclude that Jessica is “likely” to return to the school

district if an injunction is granted, as Summers

expressly requires; indeed, Jessica’s counsel tellingly

refused to make any representation of such a

likelihood at oral argument of this matter below.

Under a faithful application of Summers,

Jessica’s pleadings cannot be construed to support her

standing to seek an injunction against Mercer County

Schools.

II. THE

FOURTH

CIRCUIT’S

NOVEL

“ONGOING INJURY” DETERMINATIONS

GROSSLY DEPART FROM THIS COURT’S

INJUNCTIVE STANDING DOCTRINE

The Fourth Circuit did not disagree that

Jessica’s pleadings were confined to the past. Indeed,

the court acknowledged that Deal failed to plead “in

the complaint that she would re-enroll her daughter

in a Mercer County school if the district court were to

issue an injunction.” App. 10a–11a. But the court

labeled the well-established requirement that a

plaintiff seeking to enjoin a government policy must

show that the challenged policy is impeding the

plaintiff’s concrete present or future plans an empty

“formalism” that “our standing jurisprudence does

not require.” Id. In reaching this conclusion, the

Fourth Circuit notably did not discuss or even cite

Summers.

16

The Fourth Circuit instead determined that it

could entirely dispense with this Court’s injunctive

standing requirements in this case, because the past

injury that Jessica pleaded should be understood to

have continuing, actionable effect. Critically, the

Fourth Circuit did not find that Jessica pleaded that

her past injury was having any continuing effect, or

that she had pleaded any concrete present or future

plans that were being impeded by the prospect BITS

might be reinstated in some form in the future. To the

contrary, the Fourth Circuit expressly held that such

pleading was unnecessary, because (1) Jessica’s past

feelings of marginalization should be presumed to be

“ongoing” and “independently actionable,” and (2)

Jessica’s past departure from Mercer County Schools

in 2016 should be assumed to constitute “near-daily

avoidance” of those schools, even in the absence of any

pleading of any intention or even desire ever to

return. App. 8a–11a. Neither of these rationales can

remotely be squared with this Court’s precedents.

A. Past feelings of marginalization do not

create standing to seek an injunction.

To be sure, a plaintiff who previously felt

marginalized because of a past alleged Establishment

Clause injury may have standing to seek

compensatory damages.

Past feelings do not,

however, give rise to Article III standing to seek

prospective injunctive relief against a policy to which

the plaintiff is no longer exposed. Notably, Jessica did

not plead that her feelings of marginalization

continued after she left Mercer County Schools. See

DE21 ¶ 45–47 (“Jessica was harassed”; “she felt

excluded”; “Deal felt that she and Jessica were second-

17

class citizens at the school.”) (emphasis added). Even

if she had pleaded continuing feelings of

marginalization, however, this Court’s precedents

make clear that asserted psychic impact of this kind

is properly the subject of a suit for compensatory

damages. Past trauma—even if its psychic effects

continue to endure—does not create standing to seek

injunctive relief, absent an impediment to concrete

present or future plans.

Thus, in Lyons, this Court held that a plaintiff

who alleged that he was previously “illegally choked

by the police” at a traffic stop “has a claim for

damages against the City that appears to meet all

Article III requirements,” but lacked standing to seek

an injunction against all future police chokeholds

because he failed to “meet[] the preconditions for

asserting an injunctive claim in a federal form.” 461

U.S. at 105, 108–09. Lyons pleaded that he had

continuing “justifiabl[e] fears that any contact he has

with Los Angeles police officers may result in his

being choked and strangled to death without

provocation, justification or other legal excuse.” Id. at

98. But the Court held that Lyons’ continuing fears

based on his past injury were insufficient to establish

standing to seek prospective injunctive relief.

Specifically, Lyons was unable to demonstrate any

non-speculative possibility that the City’s chokehold

policy would impact him in the future. Id. at 106. “If

Lyons has made no showing that he is realistically

threatened by a repetition of his experience of

October, 1976, then he has not met the requirements

for seeking an injunction in a federal court . . . .” Id.

at 109.

18

This Court’s other decisions are in accord. The

Court explained in Lyons that Rizzo v. Goode, 423

U.S. 362 (1976), stands for the proposition “that past

wrongs do not in themselves amount to that real and

immediate threat of injury necessary to make out a

case or controversy” with respect to prospective

injunctive relief. Lyons, 461 U.S. at 103. The Rizzo

plaintiffs alleged they had experienced “widespread

illegal and unconstitutional police conduct aimed at

minority citizens and against City residents in

general,” but such showings of past violations did not

create standing to seek an injunction absent a

showing of a “real and immediate threat” of present

or future injury. Id. Similarly, this Court held in

O’Shea that plaintiffs who alleged they were

previously subjected to discriminatory criminal law

enforcement did not have standing to seek injunctive

relief because “[p]ast exposure to illegal conduct does

not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by

any continuing, present adverse effects.” 414 U.S. at

495–96.

The Fourth Circuit’s holding that “feelings of

marginalization” arising purely from past exposure

give rise to “independently actionable” Article III

standing to seek an injunction is not only contrary to

these precedents but would produce absurd results.

Jessica has not attended Mercer County Schools, and

thus has not been exposed to BITS, for more than

three years, and she did not plead that the feelings of

exclusion she experienced between 2012 and 2016

continued after she left the schools. Even if she had,

however, the Fourth Circuit’s invention of injunctive

19

standing based on continuing psychic trauma arising

from past injuries must be wrong because it is entirely

limitless. Twenty years from now, Jessica might

theoretically continue to feel marginalized because of

her childhood experience. That certainly would not

give her standing to pursue an injunction against a

school curriculum she voluntarily left behind decades

before and to which she could not possibly return,

even if the vindication of a judicial ruling might, as

the Fourth Circuit put it, “alleviat[e] appellants’

ongoing feelings of marginalization.” App. 11a. The

Fourth Circuit’s theory of lifelong standing to pursue

an injunction based on past trauma is far more radical

than the theories of injunctive standing that this

Court rejected in Summers, Lyons, Rizzo, and O’Shea,

and accordingly the decision below should be

summarily reversed.

B. A plaintiff’s past decision to remove

herself from exposure to a challenged

policy does not constitute ongoing

avoidance in the absence of concrete

plans.

Jessica alleged that BITS was “a major reason”

for Jessica’s removal from Mercer County schools in

2016. DE21 ¶ 48. However, she did not allege that

BITS was the only reason that she left Mercer County

Schools or that she would not have left had BITS been

rescinded. And most significantly, she did not allege

that she had any desire or even any intention to

return to Mercer County Schools at any point in the

future, even if BITS was enjoined. The Fourth Circuit

nonetheless held that Jessica’s pleading concerning

her past removal decision should be construed to state

20

a present and ongoing harm of “continu[ing] to avoid

the BITS program,” App. 7a, even in the absence of

any allegation that such continued avoidance was in

fact occurring, or that Jessica and Deal had any

concrete plan to cease such avoidance and return to

Mercer County Schools in the event an injunction was

entered.

The Fourth Circuit clearly erred in deeming a

plaintiff’s previous voluntary removal from exposure

to a challenged government program to qualify as an

“ongoing injury” of continued avoidance in the

absence of any statement of concrete present or future

plans to return to Mercer County Schools. A person

may leave a school district motivated in part by the

quality of the teaching, or rampant bullying, or

concerns about the drug culture in the school. That

stated past motivation for leaving, however, cannot be

translated into “near-daily avoidance of contact” with

the school absent a further statement of a concrete

present or future plan to return to the school if the

offending aspect is favorably resolved. It makes no

linguistic sense to state that a plaintiff is “avoiding”

exposure to a program absent a showing that the

program is materially impacting the plaintiff’s

present or future plans.

Summers makes clear the absolute Article III

requirement that a plaintiff seeking to enjoin a

government program must show that the program

poses a non-speculative impediment to the plaintiff’s

concrete present or future plans. The Fourth Circuit’s

decision also cannot be reconciled with Golden v.

Zwickler, 394 U.S. 103 (1969), wherein this Court

21

held that a former Congressman did not have

standing to seek a declaratory judgment that a

handbilling policy was unconstitutional—even

though he had previously been criminally convicted

for violating it—because he had left Congress, he was

not then running for office, and he merely

speculatively asserted that he could someday be a

candidate for Congress again. Like Congressman

Zwickler, Jessica alleges that she was previously

injured by the challenged government policy, but she

acknowledges she is no longer exposed to it and has

stated no concrete present or future plans that the

challenged policy is impeding.

The Fourth Circuit’s novel theory of injunctive

standing, which holds that a plaintiff’s past removal

from exposure to a policy should automatically be

deemed actionable “continued avoidance”—even in

the absence of any pleaded impediment to the

plaintiff’s concrete present or future plans—cannot be

reconciled with this Court’s precedents and should be

summarily reversed.

III. IF LEFT TO STAND, THE FOURTH

CIRCUIT’S NOVEL “ONGOING INJURY”

TEST WOULD CREATE A CIRCUIT SPLIT

The decision below stands out as the only

published circuit court decision that has failed to

faithfully apply this Court’s well-established

requirement that in order to establish Article III

standing to seek an injunction, a plaintiff must plead

that a challenged government policy poses a nonspeculative impediment to the plaintiff’s concrete

present or future plans. See, e.g., ZF Meritor, LLC v.

22

Eaton Corp., 696 F.3d 254, 302 (3rd Cir. 2012)

(finding plaintiffs lack standing to seek an injunction,

where evidence established no more than a possibility

that the plaintiff might one day reenter the market);

Funeral Consumers Alliance, Inc. v. Serv. Corp. Int’l,

695 F.3d 330, 343 (5th Cir. 2012) (finding plaintiffs

lacked standing to sue for injunctive relief, in the

absence of evidence of concrete plans to purchase an

overpriced casket from the SCI or Alderwoods funeral

home); Nat’l Ass’n of Home Builders v. EPA, 667 F.3d

6, 12–13 (D.C. Cir. 2011) (finding trade association

lacked standing to seek declaratory and injunctive

relief, because it was speculative whether the

challenged determination would ultimately impact

any of the association’s members). To avoid creating

a circuit split, this Court should summarily reverse

the decision below.

CONCLUSION

This Court should summarily reverse the judgment of the Fourth Circuit. In the alternative, the

Court should grant the petition for a writ of certiorari,

set the case for full merits briefing, and reverse the

judgment below.

Respectfully submitted,

23

KELLY SHACKELFORD

HIRAM S. SASSER III

FIRST LIBERTY INSTITUTE

Suite 1600

2001 West Plano Parkway

Plano, TX 75075

(972) 941-4447

May 29, 2019

GREGORY JACOB

(Counsel of Record)

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

gjacob@omm.com