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Mark Whitney v. Barack Obama

February 27, 2012

MARK WHITNEY, PLAINTIFF,
v.
BARACK OBAMA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

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 Resolution*fn1 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 the exception to the mootness doctrine, the complaint will be dismissed.*fn2

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 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 controversy*fn3 . . . 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 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).*fn4

Whitney sought to enjoin the defendants from continuing U.S. 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.

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. ΒΆ 4.) Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,]" Bhd. of 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 ...


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