In the
United States Court of Appeals
For the Seventh Circuit
No. 05-2749
JOAN L ASKOWSKI and D ANIEL M. C OOK,
Plaintiffs-Appellants,
v.
M ARGARET S PELLINGS, in her official capacity as
Secretary of the United States Department of Education,
Defendant-Appellee,
and
U NIVERSITY OF N OTRE D AME,
Defendant-Intervenor-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 1810—Larry J. McKinney, Judge.
A RGUED N OVEMBER 5, 2007—D ECIDED O CTOBER 14, 2008
Before P OSNER, E VANS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. This case returns to us following the
Supreme Court’s order granting certiorari, vacating our
2 No. 05-2749
prior judgment, and remanding for further consideration
in light of Hein v. Freedom from Religion Foundation, Inc.,
551 U.S. ___, 127 S. Ct. 2553 (2007). Univ. of Notre Dame v.
Laskowski, 127 S. Ct. 3051 (2007). The issue is whether the
plaintiff-taxpayers have standing under Flast v. Cohen, 392
U.S. 83 (1968), to maintain an Establishment Clause
challenge to a congressional grant after the funds have
been fully paid and the grant has expired.
The taxpayers sued the Secretary of Education to
enjoin payment of the money but did not seek a prelimi-
nary injunction. The grant recipient, the University of
Notre Dame, intervened to protect its interest in the
funds—$500,000 designated for a teacher-training program.
While the suit was pending, however, the grant expired
and the district court dismissed the case as moot. The
taxpayers appealed and this panel split; the majority
reversed, holding that although the claim against the
Secretary of Education was moot, the suit was not.
Laskowski v. Spellings, 443 F.3d 930, 933 (7th Cir. 2006). This
conclusion flowed from the majority’s view that
restitutionary relief could be obtained against Notre
Dame in the form of an order to repay the grant to the
U.S. Treasury. Id. at 934-35.
That ruling has been called into question by the Supreme
Court’s decision in Hein, another Establishment Clause
case from this circuit involving the issue of taxpayer
standing—specifically, the question whether the Flast
exception to the rule against taxpayer standing extended
to suits challenging Executive Branch programs funded
by general appropriations. Hein answered this question
No. 05-2749 3
“no,” leaving the Flast exception in place but narrowly
confining it to its facts.
After Hein, taxpayers continue to have standing to sue
for alleged Establishment Clause violations wrought by
specific congressional appropriations under the Article I,
Section 8 taxing and spending power, but this standing
extends only to suits to enjoin the violation. As circum-
scribed by Hein, the Flast exception does not extend to
suits for retrospective monetary relief against private
parties such as the restitutionary remedy envisioned
against Notre Dame here. This case was properly dis-
missed as moot.
I. Background
In appropriating money for the Department of Educa-
tion for fiscal year 2000, Congress earmarked $500,000 for
a grant to the University of Notre Dame to support a
teacher quality initiative. Consolidated Appropriations
Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501, 1501A-262
(Nov. 29, 1999). At the Department’s request, Notre Dame
submitted a grant application to receive the money,
indicating that it would be used to fund its Alliance for
Catholic Education (“ACE”), a teacher-training program
aimed at training and placing teachers in underserved
Catholic schools in poor neighborhoods. Notre Dame
planned to replicate the ACE program in partnership with
four other colleges and universities. The Department of
Education awarded Notre Dame the grant.
Joan Laskowski and Daniel Cook, both federal tax-
payers who had no connection to the grant, believed the
4 No. 05-2749
earmark violated the Establishment Clause and sued the
Secretary of the Department of Education to enjoin pay-
ment. Notre Dame intervened as a defendant. Laskowski
and Cook did not seek a preliminary injunction, however,
and by the time the district court heard their case, the
grant money had already been fully paid to Notre Dame
and the one-time-only earmark expired. The district court
dismissed the case as moot.
On appeal, the taxpayers conceded that their request
for injunctive relief was moot. But they argued that
another form of relief was available to save their suit
from dismissal: the district court could order the Secretary
of Education to seek recoupment of any wrongfully
disbursed funds from Notre Dame. This panel unani-
mously rejected that argument, noting that the court has
no authority to order the Secretary to seek recoupment
from Notre Dame because an agency’s decision not to
take an enforcement action is within the discretion of the
agency and is not reviewable. See Laskowski, 443 F.3d at
934 (citing Heckler v. Chaney, 470 U.S. 821, 831-33); id. at
940 (Sykes, J., dissenting).
But our panel was divided on whether the entire suit
was moot. The majority concluded that it was not because
the district court could directly order Notre Dame to pay
back any wrongfully disbursed money as restitution to
the U.S. Treasury for the government’s Establishment
Clause violation. Id. at 934-35. This alternative form of
relief, the majority concluded, forestalled mootness and
permitted the taxpayers’ suit to proceed on the merits. Id.
at 935-36. The Supreme Court granted certiorari, vacated
No. 05-2749 5
our judgment, and remanded for reconsideration in
light of Hein.
II. Discussion
We note at the outset that this case differs from Hein in
that the taxpayers here brought an Establishment Clause
challenge to a specific congressional earmark, not (as in
Hein) a challenge to an Executive Branch program sup-
ported by general appropriations. The issue in Hein was
whether the taxpayers had standing from the start; the
issue here is mootness, a subset of standing doctrine. That
doesn’t change the analysis. Mootness is “the doctrine of
standing set in a time frame: The requisite personal interest
that must exist at the commencement of the litigation
(standing) must continue throughout its existence
(mootness).” Friends of the Earth, Inc. v. Laidlaw Evtl. Servs.,
Inc., 528 U.S. 167, 189 (2000) (internal quotations and
citations omitted). The taxpayers “must demonstrate
standing separately for each form of relief sought.” Id.
at 185.
Everyone agrees that the expiration of the grant moots
the taxpayers’ claim against the Secretary of Education. See
Burke v. Barnes, 479 U.S. 361, 363 (1987) (a challenge to
the validity of a statute is mooted when the statute
expires by its own terms); Diffenderfer v. Cent. Baptist
Church of Miami, Fla., Inc, 404 U.S. 412, 414-15 (1972); Fed’n
of Adver. Indus. Representatives, Inc. v. City of Chicago, 326
F.3d 924, 929 (7th Cir. 2003). The concrete adversity that
once supported standing to sue is gone; the prospective
6 No. 05-2749
injunctive relief sought against the Secretary is no longer
available—more precisely, is pointless because there is
nothing to enjoin. The question now is whether, in light
of Hein, the taxpayers have standing to pursue the
remedy proposed by our earlier panel opinion—restitution
of the grant money by Notre Dame to the U.S. Treasury.
We conclude the answer to this question must be “no.”
The general rule is that a plaintiff has standing to sue
only for injuries to his own interests that can be remedied
by a court order. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). This is because the “federal courts sit
‘solely, to decide on the rights of individuals.’ ” Hein, 127
S. Ct. at 2562 (quoting Marbury v. Madison, 1 Cranch 137,
170 (1803)). “Article III of the Constitution limits the
judicial power of the United States to the resolution of
‘Cases’ and ‘Controversies,’ and ‘Article III standing . . .
enforces the Constitution’s case-or-controversy require-
ment.’ ” Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 342 (2006) (internal quotation marks omitted)). Estab-
lished standing doctrine requires the party invoking the
court’s authority to demonstrate a “personal injury fairly
traceable to the defendant’s allegedly unlawful conduct
and likely to be redressed by the requested relief.” Allen
v. Wright, 468 U.S. 737, 751 (1984).
A corollary is the rule that a plaintiff’s payment of taxes
is generally insufficient to establish standing to challenge
the constitutionality of a government program or activity.
Hein, 127 S. Ct. at 2562; DaimlerChrysler, 547 U.S. at 342-44;
Bowen v. Kendrick, 487 U.S. 589, 618-20 (1988); Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State,
No. 05-2749 7
Inc., 454 U.S. 464, 477-80 (1982); Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 215 (1974); United
States v. Richardson, 418 U.S. 166, 171-73 (1974); Flast,
392 U.S. at 101-06; Doremus v. Bd. of Educ., 342 U.S. 429, 433-
34 (1952); Frothingham v. Mellon, 262 U.S. 447, 486-89 (1923).
The reason: taxpayers have no direct, personal interest in
the money in the Treasury simply by virtue of having
paid taxes and therefore suffer no redressable injury
when the federal government puts money to unconstitu-
tional use. See Hein, 127 S. Ct. at 2559 (“In light of the size
of the federal budget, it is a complete fiction to argue
that an unconstitutional federal expenditure causes an
individual federal taxpayer any measurable economic
harm.”). The interest of individual taxpayers is shared
in common with all other taxpayers and is therefore “too
generalized and attenuated to support Article III stand-
ing.” Id. at 2563.
Dating to Frothingham, decided with Commonwealth of
Massachusetts v. Mellon, 262 U.S. 447, 488 (1923), the rule
against taxpayer standing has resisted exceptions, for
good reason: “[I]f every federal taxpayer could sue to
challenge any Government expenditure, the federal courts
would cease to function as courts of law and would be
cast in the role of general complaint bureaus.” Hein, 127
S. Ct. at 2559. Standing requirements, including the bar
against taxpayer standing, “ ‘are an essential ingredient of
separation and equilibration of powers,’ ” id. at 2570
(quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 101
(1998)), and the “ ‘[r]elaxation of standing requirements is
directly related to the expansion of judicial power,’ ” id.
8 No. 05-2749
(quoting Richardson, 418 U.S. at 188 (Powell, J., concur-
ring)).
This case concerns the lone exception to the rule
against taxpayer standing. In Flast, the Supreme Court
held that taxpayers have standing to raise Establish-
ment Clause challenges to specific congressional exercises
of the Article I, Section 8 taxing and spending power. Flast,
392 U.S. at 102-03. The plaintiff-taxpayers in Flast sued to
enjoin federal appropriations made to religious schools
under the Family and Secondary Act of 1965. Id. at 85. The
Court permitted their Establishment Clause claim to
proceed because they had challenged specific appropria-
tions made pursuant to Congress’s Article I, Section 8
taxing and spending power, and the Establishment
Clause limits the exercise of that power. Id. at 103-04.
While taxpayers generally suffer no injury from the
depletion of the federal Treasury, the injury supporting
standing under Flast derives from “the very ‘extract[ion]
and spen[ding]’ of ‘tax money’ in aid of religion.”
DaimlerChrysler, 547 U.S. at 348 (quoting Flast, 392 U.S. at
106). Flast did not, however, create an exception to the
taxpayer-standing bar for all Establishment Clause cases.
Only when a taxpayer challenges a specific congressional
appropriation—not a government program or activity
funded from general appropriations—will the link to
the Article 1, Section 8 taxing and spending power be
sufficient to support standing under Flast. Hein, 127 S. Ct.
at 2569; Flast, 392 U.S. at 102-03.
This panel previously disagreed over whether the Flast
exception was elastic enough to permit an otherwise moot
No. 05-2749 9
Establishment Clause claim to proceed against a private
grant recipient for restitution to the U.S. Treasury. The
majority implicitly concluded that it was, reasoning that
the taxpayers had standing when the case was filed and
it would make little sense to hold that the disbursement
of the money and expiration of the grant divested them
of the authority to recover the money for the Treasury
via an order of restitution against Notre Dame. Laskowski,
443 F.3d at 934-35. The dissent disagreed, noting that
restitution from a private party is not a known remedy
for an Establishment Clause violation and that taxpayer
standing under Flast is not, in any event, premised upon
injury to the Treasury. Id. at 943-44. (Sykes, J., dissenting).
Our respective positions are amply explained in our
prior decision and need not be explored further here.
After Hein, the issue is no longer whether Flast might
logically be expanded to include standing to pursue
the restitutionary relief posited by our prior panel
majority; the Supreme Court has now made it abundantly
clear that Flast is not to be expanded at all.
Hein involved an Establishment Clause challenge to
conferences conducted by the President’s Faith-Based and
Community Initiatives program. A divided panel of this
court concluded that the plaintiff-taxpayers had standing
under Flast even though the conferences were funded
out of general Executive Branch appropriations rather
than a specific congressional exercise of the taxing and
spending power. See Hein, 127 S. Ct. at 2561 (discussing this
court’s opinion, appearing under the name Freedom from
Religion Found., Inc. v. Chao, 433 F.3d, 989, 994 (7th Cir.
10 No. 05-2749
2006)). The Supreme Court reversed, although the Court
was divided on the rationale.
Writing for a three-justice plurality, Justice Alito first
reiterated the Court’s adherence to the Frothingham rule
against taxpayer standing, id. at 2562-63, and then
moved on to the Flast exception and the Court’s subse-
quent taxpayer-standing jurisprudence. Tracing the Court’s
post-Flast case law, the plurality found it “significant that,
in the four decades since its creation, the Flast exception
has largely been confined to its facts.” Id. at 2568-69.
Because “Flast focused on congressional action,” the
plurality “decline[d] th[e] invitation to extend its holding
to encompass discretionary Executive Branch expendi-
tures.” Id. at 2568.
The Court in Hein had been asked to overrule rather
then simply limit Flast, and Justice Scalia, in a con-
currence joined by Justice Thomas, would have done so.
Id. at 2573-74 (Scalia, J., concurring). The plurality
withheld judgment on this question. Because this court’s
opinion had expanded rather than applied Flast, the Hein
plurality thought reconsideration of Flast was not strictly
necessary to a decision in the case. Id. at 2571. Nonetheless,
the plurality warned against extending Flast “to the limit
of its logic.” Id. The plurality noted that the Court’s post-
Flast taxpayer-standing jurisprudence had effectively
come to rest on the position taken by Justice Powell in
his concurrence in United States v. Richardson, 418 U.S. at
180: that the Flast exception should be limited “ ‘to an outer
boundary drawn by the results in Flast.’ ” Hein, 127 S. Ct. at
2569 (quoting Richardson, 418 U.S. at 196) (emphasis in
Hein).
No. 05-2749 11
On the present vitality of Flast, therefore, the Hein
plurality essentially declared a truce with the concurring
justices: “We do not extend Flast, but we also do not
overrule it. We leave Flast as we found it.” Id. at 2571-72.
This is not a ringing endorsement. The Court is plainly
disinclined to entertain any remedial innovations that
depend upon an expansive interpretation of Flast.
We have previously held that Justice Alito’s plurality
opinion in Hein “is controlling because it expresses the
narrowest position taken by the Justices who concurred
in the judgment.” Freedom from Religion Found., Inc. v.
Nicholson, 536 F.3d 730, 738 n.11 (7th Cir. 2008) (citing
Marks v. United States, 430 U.S. 188, 193 (1977)). The
import of the plurality opinion is that the reach of Flast
is now strictly confined to the result in Flast. And the
result in Flast was that the taxpayers had standing to
seek an injunction to halt a specific congressional appro-
priation alleged to violate the Establishment Clause.
Accordingly, we read Hein to mean that taxpayers
continue to have standing to sue for injunctive relief
against specific congressional appropriations alleged to
violate the Establishment Clause, but that is all. Permitting
a taxpayer to proceed against a private grant recipient
for restitution to the Treasury as a remedy in an
otherwise moot Establishment Clause case would extend
the Flast exception beyond the limits of the result in Flast.
After Hein, such an extension is unwarranted. See generally
Nicholson, 536 F.3d at 739 (describing Hein’s refusal to
expand Flast); Chaplaincy of Full Gospel Churches v. U.S.
Navy (In re Navy Chaplaincy), 534 F.3d 756, 762 (D.C. Cir.
12 No. 05-2749
2008) (Hein “forcefully emphasized the [Flast] exception’s
extremely limited contours”); Hinrichs v. Speaker of the
House of Representatives of the Ind. Gen. Assembly, 506
F.3d 584, 598 (7th Cir. 2007) (emphasizing that Hein
reinforced that the Flast exception to the rule against
taxpayer standing “is a narrow one”).
The only form of relief the taxpayers here had standing
to seek—an injunction against the Secretary’s disbursement
of the allegedly unconstitutional grant—is no longer
available because the grant was not a continuing one
and it expired while the suit was pending in the district
court. That claim is moot, and there is no residual standing
to pursue a claim for restitutionary relief against Notre
Dame, a private party, for reimbursement of the Treasury.
The district court properly dismissed this case as moot.
A FFIRMED.
10-14-08