The opinion of the court was delivered by: John D. Bates United States District Judge
On January 14, 2005, this Court denied plaintiff Michael Newdow's motion for a preliminary injunction that sought to enjoin President George W. Bush from having prayers recited by invited clergy at the 2005 Presidential Inauguration. Although the Inauguration has come and gone -- with the inclusion of an invocation and benediction given by clergy -- the Court's earlier ruling on the preliminary injunction did not dispose of the case because Newdow's Complaint also sought a declaratory judgment and a permanent injunction against the inclusion of religious prayer at future Presidential Inaugurations, which he contends would violate the First Amendment. Now defendants President Bush, the Joint Congressional Committee on Inaugural Ceremonies ("JCCIC"), Senator Trent Lott, the Joint Task Force - Armed Forces Inaugural Committee ("JTF-AFIC"), and Galen Jackson (collectively "federal defendants"), as well as the Presidential Inauguration Committee ("PIC") and Greg Jenkins, have moved to dismiss Newdow's Complaint on the grounds that he is precluded by his previous litigation in 2001 from bringing this suit and he does not have standing to pursue this action.*fn1 For the reasons that follow, the Court will grant defendants' motions.
The facts of this case, as well as those of Newdow's 2001 suit against President Bush, Newdow v. Bush, No. CIV S-01-218 (E.D. Cal.) (hereafter referred to as "Newdow I"), are set forth in detail in the Court's January 14, 2005 Memorandum Opinion. See Newdow v. Bush, 355 F. Supp. 2d 265 (D.D.C. 2005). In 2001, Newdow challenged the constitutionality of the inclusion of religious prayers in the 2001 Inauguration. The Ninth Circuit affirmed the dismissal of Newdow's action, finding that he "lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury." Newdow v. Bush, 89 Fed. Appx. 624, 2004 WL 334438, at *1 (9th Cir. Feb. 17, 2004) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-86 (1982)). On December 16, 2004, Newdow filed his Complaint and motion for preliminary injunction in this case. After holding a motions hearing, this Court denied Newdow's motion for a preliminary injunction. His subsequent request for an emergency injunction and stay of this Court's decision was denied by the D.C. Circuit and the Supreme Court. See Newdow v. Bush, 2005 WL 89011 (D.C. Cir. 2005), application for injunction pending appeal denied, No. 04A623 S.Ct. (January 19, 2005). The Presidential Inauguration then occurred as planned on January 20, 2005, at which the Reverend Doctor Luis Leon and Pastor Kirby Jon Caldwell gave an invocation and benediction, respectively. See 151 Cong. Rec. S101-05 (daily ed. January 20, 2005) (transcript of inaugural ceremony). The parties subsequently provided supplemental briefing on defendants' motions to dismiss, focusing on the questions of issue preclusion and standing.
Under Fed. R. Civ. P. 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); see also Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'plaintiff[s'] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) should not prevail "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See St. Francis Xavier Parochial Sch., 117 F.3d at 624.
"Once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94 (1980). A prior ruling will preclude relitigation if: (1) the same issue now being raised was "contested by the parties and submitted for judicial determination in the prior case"; (2) the issue was "actually and necessarily determined by a court of competent jurisdiction in that prior case"; and (3) preclusion does not "work a basic unfairness to a party bound by the first determination." Id. In the case of a jurisdictional dismissal -- here, lack of standing -- a prior ruling will not have preclusive effect if the "curable defect" exception applies. See Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 1983). For this exception to apply, the jurisdictional deficiency from the prior litigation must be "remedied by occurrences subsequent to the original dismissal." Id. (emphasis in original).
In Newdow I, the Ninth Circuit affirmed the dismissal of plaintiff's complaint on the ground that he "lacks standing to bring this action because he does not allege a sufficiently concrete and specific injury." Newdow v. Bush, 2004 WL 334438, at *1. Hence, the issue of standing to bring this type of Establishment Clause claim against President Bush and others was clearly resolved in Newdow I by a court of competent jurisdiction. See Cutler v. Hayes, 818 F.2d 879, 889 (D.C. Cir. 1987) (issue preclusion applies to standing). Moreover, the question of standing was vigorously litigated at all stages by all parties, see PIC Mem., Exs. 1-3 (Newdow I court order discussing Newdow's standing), and therefore a finding that the issue is precluded from relitigation would not work a "basic unfairness." See Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (unfairness created when party did not have incentive to litigate issue in earlier action). The only reason that Newdow might not be precluded from relitigating standing would be that the jurisdictional defect in his standing in Newdow I has since been cured. See Dozier, 702 F.2d at 1192.
In his earlier action, Newdow alleged that the inclusion of religious prayers at the 2001 Presidential Inauguration made him feel like an "outsider" when he watched the inauguration on television. See 2001 Compl. ¶ 12-13; 28-30. Defendants contend that because Newdow is alleging essentially the identical injury in this case -- injury from viewing or not viewing the inauguration -- he is precluded by the outcome in Newdow I from establishing that he has standing before this Court. See Fed. Def. Mem. at 11-12. Newdow argues that there are two --albeit mutually exclusive -- differences between this case and Newdow I.First, Newdow alleges that physically attending an inauguration among thousands of his fellow citizens gives rise to a different injury. See Pl. Supp. Mem. at 1-3. Second, he contends that being forced to forgo attending the inauguration because of the religious prayers is a separate injury. Id. at 3. Newdow seems to recognize the inconsistency of these positions, and ultimately concedes that his alleged injury in this case is being forced to forgo attending the inauguration. Id. at 3 n.5 ("let it be stated here that Newdow's argument regarding his former injury [injury by attendance] was made because he hoped to obtain the injunction in which case he would have attended the inauguration. It was because he could not avoid the former injury [injury by attendance] that he 'chose,' instead, to suffer the latter [injury by forgoing the inauguration]."). This "choice" by Newdow is also consistent with the fact that he did not attend the 2005 Presidential Inauguration. Id., App. A, Declaration of Michael Newdow ("I did not attend the [inauguration]."). Accordingly, for purposes of defendants' motions, plaintiff's alleged injury is having to forgo the inauguration because of the inclusion of religious prayers at the ceremony.*fn2
Comparing the injuries alleged in this case with those in Newdow I, it is apparent they are essentially the same -- inclusion of religious prayer at the inauguration will make plaintiff feel like an "outsider," whether he chooses to attend or not. Compare 2001 Compl. ¶ 30 with Compl. ¶ 57. Even Newdow conceded in his brief before the D.C. Circuit in this case that he would be precluded from relitigating "the general 'offense' and 'political outsider' claims that stem from knowing that the President called in chaplains." Def. Supp. Mem., Tab A, "Motion of Plaintiff/Appellant Seeking Stay of Judgment and Granting Preliminary Injunction" at 4. The question now before the Court, however, is whether being forced to alter one's behavior and forgo actually attending the inauguration is a sufficiently different type of injury than that resulting from watching the inauguration on television so as to avoid the preclusive effect of Newdow I.*fn3
The Supreme Court in Abington School District v. Schempp, 374 U.S. 203, 224-25 (1963), noted that for purposes of assessing the standing of school children, there was no difference between children being exposed to the religious conduct or avoiding it. See also Valley Forge, 454 U.S. at 486-87 n.22 (noting that "the plaintiffs in Schempp had standing, . . . because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them"). Subsequently, many courts have followed this reasoning in assessing standing. See Suhre v. Haywood County, N.C., 131 F.3d 1083, 1086 (4th Cir. 1997); Doe v. County of Montgomery, Ill., 41 F.3d 1156, 1159 (7th Cir. 1994) (injury-in-fact can be established either by having to confront religious conduct or having to avoid it); Newdow v. Egan, 309 F. Supp. 2d 29, ...