Council on Religious Freedom v. the State of Maryland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 INTERNATIONAL COALITION FOR
RELIGIOUS FREEDOM; ALEX COLVIN;
HANALYN COLVIN; DAN FEFFERMAN;
SUSAN FEFFERMAN; MICHAEL
ROSCHUNI; LLOYD EBY,
Plaintiffs-Appellants,
and
NICHOLAS MILLER, President of the No. 00-1541 Council on Religious Freedom,
Plaintiff,
v.
THE STATE OF MARYLAND; BOARD OF
REGENTS OF THE UNIVERSITY OF
MARYLAND SYSTEM; PARRIS
GLENDENING; WILLIAM WOOD,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-99-2490-L)
Argued: December 6, 2000
Decided: February 7, 2001
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

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COUNSEL
ARGUED: David B. Goldstein, RABINOWITZ, BOUDIN, STAN-
DARD, KRINSKY & LIEBERMAN, P.C., New York, New York, for
Appellants. Mark Jason Davis, Assistant Attorney General, Balti-
more, Maryland, for Appellees. ON BRIEF: Eric M. Lieberman,
RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBER-
MAN, P.C., New York, New York; Kendrick Moxon, MOXON &
KOBRIN, Los Angeles, California, for Appellants. J. Joseph Curran,
Jr., Attorney General of Maryland, Andrew H. Baida, Assistant Attor-
ney General, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Maryland General Assembly created, through House Joint
Resolution 22 ("HJR 22"), and the Governor appointed, a Task Force
to Study the Effects of Cult Activities on Public Senior Higher Educa-
tion Institutions ("Task Force"). Appellants, the International Coali-
tion for Religious Freedom, its president, and six individuals who are
members of the Unification Church, instituted an action for injunctive
and declaratory relief, arguing that HJR 22 and the Task Force’s
activities violated their First Amendment rights.
After the action was filed, the Task Force completed its study, pre-
pared and published its Report, and ceased operations, whereupon
appellees, the State of Maryland and its officers, moved to dismiss
appellants’ complaint because the conduct alleged therein was no lon-
ger ongoing and the relief sought by appellants constituted retroactive
relief barred by the Eleventh Amendment. We agree with the district
court that appellants’ request for injunctive relief was mooted by issu-
ance of the Task Force’s Report and that a declaratory judgment
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would not serve a useful purpose. Moreover, we also conclude that
granting declaratory relief in this case would violate the Eleventh
Amendment. Accordingly, we affirm the judgment of the district
court dismissing appellants’ complaint.
I.
The Maryland General Assembly passed HJR 22, creating the Task
Force on May 21, 1998. HJR 22 concluded that "the State of Mary-
land has a right and a responsibility to examine the behaviors of mem-
bers of any group who violate State or local law or campus policies
regarding deception, harassment, or fraud, or who threaten the mental,
emotional, or physical well-being" of Maryland’s citizens or students
enrolled in its colleges. HJR 22 mentioned no particular cult, religious
beliefs, or religious practices.
HJR 22 directed the Task Force to,
[c]ommunicate with and obtain information from cult
awareness organizations, former cult members, college
administrators . . . and other interested parties regarding the
recruitment and organizational practices of cults, the extent
of cult activities . . . the response of college administrators
in Maryland and around the nation to cult activities, and the
effect of cult involvement on students.
J.A. 37. The Task Force was directed to submit its findings and rec-
ommendations to the Governor and the General Assembly no later
than September 30, 1999. The Task Force had no authority to imple-
ment its recommendations.
Though HJR 22 was passed in May 1998 and the Task Force held
public meetings between May 25, 1999 and September 15, 1999,
appellants waited until August 16, 1999, shortly before issuance of
the Task Force’s Report, to file a complaint. In their complaint, appel-
lants alleged, inter alia, that both HJR 22 and the Task Force violated
the Establishment and Free Exercise clauses of the First Amendment.
The relief asked for, in toto, was: (1) a declaration that HJR 22 was
facially unconstitutional and void; (2) a declaration that the conduct
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of the Task Force was unconstitutional; (3) preliminary and perma-
nent injunctions against implementation of HJR 22; (4) preliminary
and permanent injunctions prohibiting appellees from issuing any "re-
port" or "finding" in the name of the Task Force; and (5) reasonable
costs and fees arising out of the action.1
On September 7, 1999, appellees filed a motion under Fed. R. Civ.
P. 12(b)(6) to dismiss for failure to state a claim. Appellants then filed
an application in district court for a temporary restraining order
("TRO") on September 13, 1999, seeking to prevent the Task Force
from issuing its Report. The district court denied the application for
a TRO, and this court denied appellants’ petition for a writ of manda-
mus. J.A. 27-28.
The Task Force’s Report was publicly released on September 17,
1999,2 and, as appellants acknowledge, did not identify any specific
religion, cult, or group by name or mention religion or religious prac-
tices. Following release of the Report, appellees moved to dismiss
appellants’ complaint because of mootness, lack of standing, and the
Eleventh Amendment, arguing that issuance of the Report completed
the Task Force’s work. It is undisputed that neither HJR 22 nor the
Task Force are currently in operation; the sole purpose of HJR 22 was
to create the Task Force, and the sole function of the Task Force was
to conduct the requested study and issue its Report.
The district court granted appellees’ motion to dismiss on the
grounds that appellants’ request for injunctive relief was mooted once
the Task Force ceased operations. The district court also declined to
grant a declaratory judgment regarding the propriety of past govern-
mental conduct. This appeal followed.
1Appellants recognized in the district court that their claims for mone-
tary relief were barred by the Eleventh Amendment. J.A. 30.
2The Task Force agreed at its September 15, 1999, meeting that its
work was concluded and unanimously voted to forward its Report and
Executive Summary to the persons and offices mandated by HJR 22. J.A.
162.
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II.
From its inception, appellants’ suit against appellees sought to pre-
vent implementation of HJR 22 — though the Task Force had begun
operations pursuant to HJR 22 months prior to appellants filing their
complaint — and to suspend the operations of the Task Force, partic-
ularly issuance of its Report. Now, after the Task Force has ceased
operations, and after the Task Force’s Report has been published,
appellants seek relief in this court, though the actions it sought to pre-
vent have been completed.
Appellants do not claim that they are entitled to injunctive relief.
And, indeed, under the facts alleged in the complaint — aimed as it
was at the constitutionality of HJR 22 and cessation of the Task
Force’s activities with the goal of preventing publication of the Task
Force Report — injunctive relief was rendered nugatory by issuance
of the Report.
We thus agree with appellants that their claims for injunctive relief
are moot, and decline to address them. It is well settled that federal
courts have no authority to "give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it." Church of
Scientology of California v. United States, 506 U.S. 9, 12 (1992) (cit-
ing Mills v. Green, 159 U.S. 651, 653 (1895)). This is so even though
such case presented a justiciable controversy at an earlier point in
time and an intervening event rendered the controversy moot. Calde-
ron v. Moore, 518 U.S. 149, 150 (1996).
Although they agree that their claims for injunctive relief are
mooted, appellants nonetheless insist that their case is not moot
because they suffer ongoing harms from the Task Force and issuance
of the Task Force’s Report. Thus, they explain, though issuance of the
Task Force Report mooted their claims for injunctive relief, it did not
moot their claims for declaratory relief, which would be "an effectual,
albeit partial, remedy for the State of Maryland’s unconstitutional
activities and the ongoing stigma placed upon [them]." Appellants’
Brief at 36. This argument is specious, and fails for a variety of rea-
sons.
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We begin by placing appellants’ claim — that the availability of
declaratory relief saves their case from mootness — in perspective.
For, not long ago, appellants themselves believed that publication of
the Task Force’s Report mooted their case. Indeed, appellants
espoused this view in their September 16, 1999, petition for a writ of
mandamus, which sought to prevent appellees’ public issuance of the
Task Force’s Report. In that petition, appellants argued that failure to
enjoin publication of the Task Force’s Report would, "effectively
moot[ ] this action."3 Appellants’ Petition for Writ of Mandamus at
38. We agree with the candid assessment expressed by appellants at
that earlier point in the course of this litigation.
However, we need not rely on appellants’ earlier concession
because it is well settled that, under the circumstances present in this
case, a declaratory judgment would constitute retrospective relief and
is therefore barred by the Eleventh Amendment. See Green v. Man-
sour, 474 U.S. 64, 71-74 (1982) (Eleventh Amendment bars the fed-
eral courts from issuing declaratory judgments where the state is no
longer violating federal law); Manning v. South Carolina Dept. of
Hwy. and Pub. Trans., 914 F.2d 44, 48 (4th Cir. 1990) (same). Thus,
where, as here, the parties’ status implicates the Eleventh Amendment
a declaratory judgment — as much as injunctive relief — requires an
ongoing constitutional violation for which prospective relief is avail-
able.4 We are thus certain that a declaratory judgment that the state
violated — or did not violate — the law in the past cannot stand on
its own, and would be voided by the Eleventh Amendment, even if
it were useful to the parties in some sense.
This is so because the limited exception to Eleventh Amendment
immunity created by Ex parte Young, 209 U.S. 123 (1908), provides
only for prospective injunctive relief from a continuing violation of
federal law, and not for declaratory relief for a past violation of fed-
3And, "this action," contrary to appellants’ current assertion, clearly
referenced the case, and not the motion for a TRO.
4Appellants do not suggest in their brief that any of the Task Force’s
recommendations have been implemented to date. Neither did they
amend their complaint to either (1) claim that the Task Force’s Report
and recommendations were unconstitutional or (2) seek to enjoin imple-
mentation of any such recommendations.
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eral law. Green, 474 U.S. at 68. See also Lynn v. West, 134 F.3d 582,
588 (4th Cir. 1999) (relief from the constitutional violation in Ex
parte Young was prospective only); Booth v. Maryland, 112 F.3d 139,
142 (4th Cir. 1997) (requirement of ongoing violation sets a minimum
threshold for abrogation of state’s sovereign immunity). Of course
prospective relief, designed to end a continuing violation of federal
law by state officials, is "necessary to vindicate the federal interest in
assuring supremacy of that law," yet neither "compensatory [n]or
deterrence interests are [ ]sufficient to overcome the dictates of the
Eleventh Amendment," because the Court has "refused to extend the
reasoning of Young . . . to [such] claims for retrospective relief."
Green, 474 U.S. at 68.
Thus, while appellants seek to conflate the issue of mootness with
the availability of a declaratory judgment, we reject this effort out of
hand. Green stands for the clear proposition that because the Eleventh
Amendment would prohibit the award of money damages or restitu-
tion if that dispute were resolved against the State, no federal court
may issue a declaratory judgment on past state action, where the
action complained of is past and no other relief [i.e., injunctive relief]
is available. Id. at 74. As the Supreme Court explained:
The award of a declaratory judgment in this situation would
be useful in resolving the dispute over the past lawfulness
of respondent’s action only if it might be offered in state-
court proceedings as res judicata on the issue of liability . . .
but the issuance of a declaratory judgment in these circum-
stances would have much the same effect as a full-fledged
award of damages or restitution by the federal court, the lat-
ter kinds of relief being of course prohibited by the Eleventh
Amendment.
Id. at 73.
Here, there is no ongoing violation of federal law, no occasion to
issue an injunction because the state action is past and an injunction
would serve no purpose, and no threat that HJR 22 or the Task Force
will resume operational status: What remains is simply "a dispute
about the lawfulness of [appellees’] past actions." Id. at 73. Contrary
to appellants’ position then, where the defendant is a sovereign state
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and the constitutional violation is past, one cannot cure "mootness" by
claiming that a case is susceptible to relief in the form of a declaratory
judgment.
Nor do the cases relied upon by appellants support a contrary posi-
tion as, in each such case, the plaintiff in fact received prospective
injunctive relief to remedy ongoing constitutional violations. See
Papasan v. Allain, 478 U.S. 265, 282 (1986) (injunctive relief to com-
pel equalizing funding of a school district which had been and contin-
ued to be underfunded as a result of past unconstitutional action by
the State to remedy continuing equal protection violation); Milliken
v. Bradley, 433 U.S. 267, 289 (1977) (injunctive relief to compel state
funding of a remedial education plan to require state officials, held
responsible for the unconstitutional conduct, to eliminate ongoing de
jure system). Appellants’ request for declaratory judgment is simply
not of a piece with Papasan or Milliken.
Appellants’ reliance on Church of Scientology of California v.
United States, 506 U.S. 9 (1992), for the proposition that declaratory
relief is available here, is similarly misplaced. There, too, the Court
suggested that prospective relief was available: The continued unlaw-
ful possession of the taxpayer’s papers was an ongoing intrusion into
an area subject to constitutional protection that was itself susceptible
to remedy, and a partial remedy for an invasion of privacy in violation
of the Fourth Amendment could be effected by ordering that the
papers be destroyed or returned. Id. at 13. Further, since the United
States was the other party, the Eleventh Amendment was not impli-
cated.5
Though precedent thus makes clear that appellants must encompass
within their claim both an ongoing constitutional violation and truly
prospective relief in order to have recourse against state officials
5Of course, if appellants had alleged in their complaint that the Task
Force Report and recommendations were unconstitutional, the analytic
framework for appellants’ comparison to Church of Scientology would
be different. Yet, contrary to appellants’ suggestion that the district court
was obligated to grant leave for them to amend their complaint, at no
time prior to the district court’s dismissal of the case did appellants move
to amend their complaint.
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under Ex parte Young, appellants fail to meet these requirements.
Republic of Paraguay v. Allen, 134 F.3d 622, 628 (1998). For exam-
ple, while appellants claim that the stigma associated with, and stem-
ming from, the Task Force itself constitutes a "continuing
constitutional violation" redressable by prospective relief, they at best
assert in support of that claim the present consequences of past
actions.
For it is apparent that appellants’ complaint does not allege that the
Task Force’s Report or recommendations violate the First Amend-
ment — indeed, the Report was not yet published at the time the com-
plaint was filed — nor does it detail ongoing harms suffered after
issuance of the Report and cessation of Task Force activities. Rather,
the complaint is addressed solely to the present harms allegedly vis-
ited upon appellants by passage of HJR 22 and operation of the Task
Force. We will not consider claims not included in appellants’ com-
plaint nor can we simply overlook appellants’ failure to enumerate in
its complaint any present action or current putative constitutional vio-
lation by the appellees.6
Moreover, the claim for prospective relief is itself a chimera:
"when the essence is considered, the only presently effective relief
sought for the violations claimed [ ] is quintessentially retrospective:
the voiding [of a Resolution and Report]." Id. That "this could be
effectuated in an injunction or declaratory decree directed at state
officials does not alter the inescapable fact that its effect would be to
undo accomplished state action and not to provide prospective relief
against the continuation of the past violation." Id. (emphases added).
Further, de novo review of the district court’s disposition of appel-
lants’ claim for declaratory relief allows us to affirm its dismissal of
6The district court was under no obligation to consider claims not
raised in the complaint when ruling on appellees’ motion to dismiss for
mootness, lack of standing, and the Eleventh Amendment. We may not,
even were we so inclined, bypass basic procedural rules to address on
appeal claims for relief not pled in a complaint, let alone properly pres-
ented for consideration by the district court. See, e.g., Karpel v. Inova
Health Sys. Svcs., 134 F.3d 1222, 1227 (4th Cir. 1998) (issues raised for
the first time on appeal will generally not be considered) (citing cases).
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that request on an alternative ground as well. For the Declaratory
Judgment Act ("the Act"), 28 U.S.C. § 2201, provides that district
courts "may declare" the rights of interested parties, and permits a
"federal court to declare the rights of a party whether or not further
relief is or could be sought." Green, 474 U.S. at 72; see also United
Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th Cir. 1998).
That decision is a discretionary one, and of paramount importance
in the decision to exercise such discretionary authority is whether "the
judgment will serve a useful purpose in clarifying and settling the
legal relations in issue, and . . . [whether] it will terminate and afford
relief from the uncertainty, insecurity, and controversy giving rise to
the proceeding." Id. (internal citations and quotation marks omitted).
Additionally, in this circuit, it is well settled that other considerations,
such as federalism, efficiency, and comity, should also inform the dis-
trict court’s decision. See Aetna Casualty & Surety Co. v. Ind-Com
Elec. Co., 139 F.3d 419, 422 (4th Cir. 1998) (per curiam).
The district court concluded that a declaratory judgment would nei-
ther be useful in this case nor afford meaningful relief to the parties.
It further recognized the federalism concerns inherent in an advisory
opinion on the past actions of Maryland’s executive and legislative
branches. We too conclude that a declaratory judgment in this case
would not be useful to the parties and that it would be unable to avert
issues of federalism because it "would, in effect, be no more than an
abstract judicial pronouncement [by a federal court] that Maryland’s
General Assembly and Governor acted lawfully or unlawfully." J.A.
31.7 We affirm the district court’s dismissal of appellants’ request for
declaratory relief for these reasons also.
7We do not consider the question of standing, having reached our deci-
sion on other grounds, and we reject appellants’ suggestion that by
acknowledging publication of the Task Force’s Report — a matter of
public record — the district court was thereby required to treat the
motion to dismiss as one for summary judgment or somehow to intuit
that appellants needed or wanted to amend their complaint. See, e.g.,
McNair v. LendLease Trucks, Inc., 62 F.3d 651 (4th Cir. 1995) (consid-
ering facts of which a judge may properly take judicial notice in consid-
ering 12(b)(6) motion; no conversion); Cinel v. Connick, 15 F.3d 1338,
1343 n.6 (5th Cir.), cert. denied, 513 U.S. 868 (1994) (a court may per-
missibly refer to matters of public record in deciding a 12(b)(6) motion
to dismiss).
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CONCLUSION
For all of the reasons stated herein, we affirm the judgment of the
district court.
AFFIRMED
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