Ward v. Santa Fe Independent School District

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 10, 2004
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 03-41096
______________________

ROBERT and MARJORIE WARD, individually and as next friend of
MARIAN WARD, a minor
Plaintiffs-Appellants
versus
SANTA FE INDEPENDENT SCHOOL DISTRICT
Defendant-Appellee
___________________________________________________
Appeal from the United States District Court for
the Southern District of Texas, Galveston Division

___________________________________________________

Before DeMOSS, DENNIS and CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:

This appeal concerns plaintiffs who sought and received an

injunction and nominal damages in an action brought against a school

district. Despite their status as prevailing parties, the

plaintiffs appeal from the district court judgment in their favor

alleging, among other things, that the district court improperly

failed to rule on the merits of their constitutional claim. We

conclude that the plaintiffs lack standing to appeal from the

judgment in their favor and, also, that the claims for which they

1
have standing lack merit. Accordingly, we affirm the judgment of

the district court.

I.

In 1999, this court determined, in Doe v. Santa Fe Independ.

School Distr., 168 F.3d 806 (5th Cir. 1999), that a Santa Fe

Independent School District (“School District”) policy that invited

and encouraged students to read religious messages from the stage

at graduation ceremonies and over the public address system at

football games violated the Establishment Clause of the First

Amendment to the United States Constitution. The School District

filed a petition for certiorari in the United States Supreme Court.1

Pending a decision on the petition, the School District adopted a

policy prohibiting students from including prayer or reference to

a deity in pre-game messages.

Following the adoption of the new policy, plaintiff Marian Ward

was selected as student speaker for the 1999 football season.

School officials informed Marian of the speaker policy and cautioned

her to follow it. On September 2, 1999, before the first football

game, Marian Ward’s parents, Robert and Marjorie Ward, individually

and as next friends of their daughter, brought an action alleging

that the new policy violated Marian Ward’s constitutional rights to

1
The Supreme Court granted the petition on November 15,
1999; Doe v. Santa Fe Independ. School Distr. 528 U.S. 1002
(1999); and ultimately affirmed this court’s decision. Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

2
free speech and free exercise of religion as guaranteed by the

Fourth and Fourteenth Amendments to the United States Constitution.

The plaintiffs2 also alleged violations of the Establishment Clause

of the First Amendment, certain provisions of the Texas state

constitution and the Texas Religious Freedoms Restoration Act. The

plaintiffs sought temporary and permanent injunctive relief,

declaratory relief, nominal damages and attorneys’ fees.

On September 3, 1999, the district court held a hearing on the

plaintiffs’ request for a temporary restraining order. At the

hearing, the School Board stated that it agreed with the arguments

presented by the plaintiffs and wanted to allow its students to

deliver unrestricted messages over the public address system. The

School Board, however, felt constrained by this court’s decision in

Doe, a decision the Board was seeking to reverse. The district

court issued a temporary restraining order prohibiting the School

Board from effectuating the policy or otherwise preventing Marian

Ward from praying or invoking a deity over the public address

system. Subsequently, the parties agreed to a preliminary

injunction to the same effect. Thus, Marian Ward was allowed to

deliver unrestricted messages at each 1999 home football game.

After the 1999 football season ended, Marian Ward graduated, and she

2
The district court dismissed Robert and Marian Ward as
parties in their individual capacities, a decision that we
affirm. Nevertheless, because Robert and Marian Ward remain in
the case as next friends of their daughter, we refer to
“plaintiffs” throughout this opinion rather than to the singular
“plaintiff”.
3
and her parents moved from the school district.

In July 2000, the School Board rescinded the enjoined speaker

policy challenged by the plaintiffs and discontinued the practice

of having student messages of any kind delivered at football games.

On August 4, 2000, at an initial scheduling conference with the

parties, the district court pronounced the plaintiffs’ case moot and

denied motions to amend the complaint to add a plea for actual

damages and to add additional parties. The plaintiffs’ filed a

motion for reconsideration and a motion for a new trial. The

district court issued a Memorandum and Order on March 23, 2001

upholding its prior rulings denying the motions, and dismissing

Ward’s parents as parties.

The plaintiffs appealed. A different panel of this court

decided that Marian Ward’s claims were moot. See Ward v. Santa Fe

Independent School District, No. 01-40634 (March 14, 2002). That

panel further concluded that the district court properly dismissed

the claims of Ward’s parents because, regardless of their standing,

their individual claims were also mooted by the School Board’s

recision of the policy. Finally, the panel concluded that the

district court correctly denied the plaintiffs’ request for leave

to amend the pleadings to include a claim for actual damages

because: (1) there had been undue delay in filing the request, and

(2) the complaint, as amended, failed to state a claim for actual

damages.

4
 The plaintiffs filed a petition for rehearing before the

appellate panel arguing that the case was not moot because they

sought the recovery of nominal damages. On rehearing, the panel

agreed that there remained a cognizable claim for nominal damages,

again affirmed the district court’s ruling denying leave to amend

the complaint and remanded the case to the district court without

reaching the issue of whether Ward’s parents were properly dismissed

as parties. See Ward v. Santa Fe Independent School District, No.

01-40634 (April 9, 2002).

Following the remand, the district court ordered counsel for

the parties to file, within two weeks, an agreed final judgment

awarding nominal damages. Alternatively, if the parties could not

agree upon the form of the final judgment and the amount of nominal

damages, the court ordered, counsel must file instead, within two

weeks, a memorandum of law, of five pages or less, stating their

positions and attaching a proposed final judgment. The plaintiffs

responded by filing a motion to reconvene the initial scheduling

conference, to schedule discovery and other pre-trial matters, and

to proceed to a trial on the merits. The plaintiffs also sought

reconsideration of the individual standing of Robert and Marjorie

Ward. Thereafter, the plaintiffs filed a thirty-four page proposed

final judgment. In a memorandum of law filed with the proposed

final judgment, the plaintiffs urged the court to proceed with

discovery and stated their intent to file another motion to amend

the complaint to allege actual damages.
5
 The defendant filed a response to the court’s order offering

to pay one dollar in nominal damages as well as reasonable

attorney’s fees. Subsequently, the defendant made a Rule 68 offer

of judgment, offering to pay the plaintiffs thirty-six dollars in

nominal damages, with each plaintiff receiving one-third, and

reasonable attorney’s fees in an amount to be decided by the court.

The plaintiffs did not accept the offer.

The district court denied the plaintiffs’ motions. The

plaintiffs filed further motions including two to amend the

pleadings, a motion to compel the defendant to provide Rule 26

disclosures and a request for findings of fact and conclusions of

law to be included in the final judgment. On May 1, 2003, the

district court issued a Memorandum and Order denying all of the

plaintiffs’ motions and rendering judgment awarding plaintiff Marian

Ward one dollar in nominal damages and $52,397.34 in attorneys’ fees

and costs. The Memorandum and Order of the district court included

an excerpt from its September 3, 1999 oral ruling on the plaintiffs’

request for a temporary restraining order stating: “Because the

court found that the [School District] had violated Marian Ward’s

First Amendment rights, Marian Ward is entitled to an award of

nominal damages.” The district court specifically declined to issue

findings of fact and conclusions of law and no other discussion of

the merits of the plaintiffs constitutional claims appears in the

Memorandum and Order.

On appeal, the plaintiffs argue that the district court
6
erroneously:(1) failed to address the merits of the plaintiffs’

constitutional claims and failed to issue findings of fact and

conclusions of law; (2) denied the plaintiffs’ motions for a

scheduling order, disclosures and discovery; (3) denied the

plaintiffs’ motion for leave to amend the complaint to include a

claim for actual damages; (4) dismissed Robert and Marjorie Ward as

parties without notice or opportunity for discovery; (5) failed to

address or to allow trial or judgment on the plaintiffs’ pendent

state claim; and (6) miscalculated attorney’s fees. We affirm the

judgment of the district court.

II.

The plaintiffs present two arguments regarding the substance

of the district court’s decision: (1) the district court erroneously

entered judgment without making findings of fact and conclusions of

law, and (2) the district court erroneously concluded that the

defendant’s offer to pay nominal damages prevented a ruling on the

merits. We sua sponte conclude that the plaintiffs lack standing

to appeal the judgment in their favor. See S.E.C. v. Forex Asset

Management LLC, 242 F.3d 325, 328 (5th Cir. 2001)(this court may

consider standing to appeal sua sponte.)

It is a central tenet of appellate jurisdiction that a party

who is not aggrieved by a judgment of the district court has no

standing to appeal it. Matter of Sims, 994 F.2d 210, 214 (5th Cir.

1993) (“It is more than well-settled that a party cannot appeal from

7
a judgment unless ‘aggrieved’ by it.”) Thus, a prevailing party

generally may not appeal a judgment in its favor. Lindheimer v.

Illinois Bell Tel. Co., 292 U.S. 151, 176 (1934) (“The Company was

successful in the District Court and has no right of appeal from the

decree in its favor”); See also In re DES Litig., 7 F.3d 20, 23 (2d

Cir. N.Y. 1993)(“Ordinarily, a prevailing party cannot appeal from

a district court judgment in its favor”); Armotek Indus., Inc. v.

Employers Ins., 952 F.2d 756, 759 n. 3 (3d Cir. 1991) (dismissing

defendant's appeal because defendant was not aggrieved by the

district court's judgment in its favor); Cochran v. M. & M. Transp.

Co., 110 F.2d 519, 522 (1st Cir. 1940)(concluding that it is “well

settled” that a plaintiff cannot appeal from a judgment that grants

him the full relief requested.) Rather, a prevailing party has

standing to appeal only if it can demonstrate an adverse effect

resulting from the judgment in its favor. See e.g. Aetna Cas. & Sur.

Co. v. Cunningham, 224 F.2d 478, 480-81 (5th Cir. 1955)(prevailing

party had standing to appeal where grounds for district court

judgment rendered it dischargeable in bankruptcy); In re DES

Litig., supra, 7 F.3d at 23 (a prevailing party may appeal if

aggrieved by the collateral estoppel effects of the district court’s

opinion.)

In the present case, the plaintiffs received all of the relief

they requested and cannot demonstrate any adverse effect resulting

from the judgment. Thus, the plaintiffs lack standing to appeal

insofar as their claims concern the district court’s award of
8
nominal damages.

The plaintiffs complain that the district court did not render

an opinion on the issues they raised. Federal appellate courts

review judgments, however, not opinions. See California v. Rooney,

483 U.S. 307, 311 (1987) (refusing to review pronouncement that

search of trash was unconstitutional, where state, which sought to

appeal, had won judgment that its search warrant nonetheless was

valid); Texas v. Hopwood, 518 U.S. 1033 (1996) (Ginsburg, J.,

concurring in denial of certiorari) (explaining denial of petition

for writ of certiorari by noting that petitioner did not challenge

lower court's judgment that university admissions procedure was

unconstitutional; petition challenged only rationale relied on by

court of appeals); See also Chathas v. Local 134 IBEW, 233 F.3d 508,

512 (7th Cir. 2000) (stating that “[j]udgments are appealable;

opinions are not"); In re O'Brien, 184 F.3d 140, 142 (2d Cir. 1999)

(holding that disagreement with reasons for a judgment in the

party's favor is insufficient to confer standing to appeal); United

States v. Accra Pac, Inc., 173 F.3d 630, 632 (7th Cir. 1999)

(observing that "one who seeks an alteration in the language of the

opinion but not the judgment may not appeal"). Thus, because the

plaintiffs are not seeking a modification of the judgment but only

a modification of the opinion, they have no standing to appeal.

Although the plaintiffs do not specifically brief the matter

of their standing to appeal, their argument suggests that they are

9
aggrieved by the district court’s judgment because they have not

received all of the relief they requested. See Forney v. Apfel, 524

U.S. 266, 271 (1998)(general rule that prevailing party lacks

standing to appeal is inapplicable where judgment grants only

partial relief.) According to the plaintiffs, “the nominal damages

construct is a fictional vehicle created by the Supreme Court to

allow the merits to be reached so that constitutional issues can be

decided.”3 Thus, they implicitly argue, plaintiffs who so plead

necessarily are aggrieved by a judgment in their favor if it does

not articulate the court’s reasons and conclusions with respect to

the constitutional issues raised. The cases on which the plaintiffs

rely, however, do not support the position they argue and we are

unable to find any authority for it either.4

As the Seventh Circuit stated in Chathas v. Local 134 IBEW, 233

F.3d 508, 512 (7th Cir. 2000), “[a] winning party cannot appeal

merely because the court that gave him his victory did not say

things that he would have liked to hear, such as that his opponent

is a lawbreaker.” The court noted that a defendant is always free

3
Blue Br. at 41.
4
At oral argument, the plaintiffs cited Buckhannon Board
and Care Home v. West Virginia Dep’t of Health & Human Resources,
532 U.S. 598 (2001) in support of their alleged aggrievement by
the final judgment in their favor. Buckhannon is inapposite,
however, because it concerns whether a party is a “prevailing
party” entitled to attorney’s fees under 42 U.S.C. § 1988, not
whether a party has standing to appeal. There is no dispute in
the present case that the plaintiffs are prevailing parties under
§ 1988.
10
to default and have judgment entered against him. Id. In such a

case, the court would not review the merits of the plaintiff’s

claims and declare the defendant’s actions illegal because such a

ruling would be merely advisory. Id. The ruling that the plaintiffs

seek on appeal would similarly have no affect on the rights of the

parties. We cannot render such an advisory opinion, nor can we

direct the district court to do so. John Doe #1 v. Veneman, 380

F.3d 807, 814 (5th Cir. 2004)(federal courts do not have the power

to render advisory opinions nor to decide questions that cannot

affect the rights of the litigants.)

The plaintiffs’ brief further suggests that, without an express

ruling on the constitutionality of the speaker policy, Marian Ward’s

constitutional rights have not been vindicated. In a similar vein,

the plaintiffs suggest that the Civil Rights Acts would be rendered

ineffective if a person could not appeal from the rationale of a

judgment in his favor. According to the plaintiffs, pursuant to

such a holding, “school districts could have won the battle against

integration by purchasing the constitutional deprivations [one

dollar] at a time.”5 Of course, the plaintiffs neglect to note that

an award of nominal damages satisfies only a claim for nominal

damages. Such a judgment would not satisfy meritorious claims for

injunctive, compensatory or other relief. The plaintiffs further

neglect to note that as a result of their litigation they received,

5
Blue Br. at 46.
11
in addition to nominal damages, a temporary restraining order, a

preliminary injunction, a rescission of the speaker policy,

attorney’s fees and a judgment in their favor. Although, arguably,

the district court’s decision does not specifically state how the

plaintiffs’ constitutional rights were violated, Marian Ward

exercised her constitutional rights and won her case. Thus, by any

standard, her rights have been thoroughly vindicated. Concluding

that the plaintiffs are not aggrieved by a failure of the district

court to state the reasons for its entry of judgment in their favor

does not weaken civil rights jurisprudence.

III.

The plaintiffs make several claims relating to discovery and

other procedural rulings and orders. This court will reverse a

district court’s discovery or procedural ruling if the appellant

demonstrates both that the district court abused its discretion and

that the appellant was prejudiced by the ruling. See HC Gun & Knife

Shows, Inc. v. City of Houston, 201 F.3d 544, 549 (5th Cir. 2000)

citing Hastings v. North East Indep. School Dist., 615 F.2d 628, 631

(5th Cir. 1980). As the plaintiffs received all the relief they

requested in their complaint, they cannot establish that they

suffered any prejudice as a result of the district court’s rulings.

In other words, assuming, arguendo, that the district court abused

its discretion in any of the challenged rulings or orders, the

plaintiffs were not prejudiced because they prevailed in spite of

the erroneous rulings.
12
 IV.

The plaintiffs also contend that the district court improperly

denied leave to amend the complaint to add a claim for actual

damages. In the plaintiffs’ previous appeal in this case, a

different panel of this court affirmed the district court’s denial

of leave to amend due to undue delay and because the complaint, as

amended, did not state a claim. After the case was remanded, the

plaintiffs again moved for leave to amend and the district court

again denied their motion.

In the present appeal, the plaintiffs argue, inter alia, that

the district court erred in finding that their delay in seeking

leave was unreasonable. Because this court has already affirmed

that particular finding by the district court, we will not revisit

the matter. "Under the law of the case doctrine, an issue of fact

or law decided on appeal may not be reexamined . . . by the

appellate court on a subsequent appeal. United States v. Matthews,

312 F.3d 652, 657 (5th Cir.2002) (quoting Tollett v. City of Kemah,

285 F.3d 357, 363 (5th Cir.2002)).

V.

The plaintiffs further contend that the district court

improperly dismissed Marjorie and Robert Ward (“the Wards”) as

parties without warning and without discovery. According to the

plaintiffs, the district court dismissed the Wards for a failure to

develop facts supporting standing while simultaneously denying the

13
plaintiffs the opportunity to do so. We are not persuaded.

Article III of the United States Constitution requires that a

litigant have standing to invoke the power of a federal court. “To

demonstrate standing, the plaintiff must show an injury in fact, a

requirement assuring that the court will not pass upon ... abstract,

intellectual problems, but will adjudicate concrete, living

contest[s] between adversaries. The injury alleged must be actual

or imminent and not abstract, conjectural, or hypothetical.” Doe v.

Beaumont Independent School Dist., 240 F.3d 462, 466 (5th Cir. 2001)

quoting Federal Election Comm'n v. Akins, 524 U.S. 11, 20(1998)

(internal quotations omitted). Furthermore, “[t]o have standing,

a plaintiff must allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be redressed

by the requested relief." (emphasis added) National Park Hospitality

Ass'n v. Department of Interior, 538 U.S. 803, 815 (2003) quoting

Allen v. Wright, 468 U.S. 737, 751 (1984). Finally, the United

States Supreme Court has developed prudential limitations on

standing, including a requirement that a litigant generally must

assert his or her own legal rights and interests and cannot rest a

claim to relief on the legal rights or interests of third parties.

Warth v. Seldin, 422 U.S. 490, 499 (1975).

The Wards complain on appeal only of the lack of notice and

opportunity for discovery preceding the district court’s dismissal

of the suit they filed in their own behalf. The Wards, however,

14
never alleged to have suffered any injury as individuals resulting

from an infringement on their own legal rights and interests. Thus,

although the Wards had standing to sue as next friends of Marian

Ward, they do not have standing individually because they failed to

assert an injurious deprivation of their own legal rights or

interests. Except for the Establishment Clause claim, the complaint

only asserts the legal rights and interests of Marian Ward. As

Marian Ward was a party to the action, through the Wards as next

friends, the Wards did not have standing to also pursue her legal

rights individually.

The only legal right or interest of the Wards even vaguely

asserted in the complaint is their right, as taxpayers, to make

certain that public entities do not use tax revenue to support

unconstitutional acts. Such a claim must, however, be “a good-faith

pocketbook action.” Doremus v. Board of Educ. of Hawthorne, 342 U.S.

429, 434 (1952). “In order to establish state or municipal taxpayer

standing to challenge an Establishment Clause violation, a plaintiff

must not only show that he pays taxes to the relevant entity, he

must also show that tax revenues are expended on the disputed

practice.” Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408

(5th Cir. 1995) The complaint in the present case does not allege

that any tax revenue was expended on the 1999 speaker policy.6

6
The plaintiffs argued, in a motion to vacate the judgment
and for a new trial filed after the district court’s dismissal of
the Wards as parties, that tax revenue was expended on the
disputed policy. The plaintiffs provided the following examples
15
Thus, the complaint does not allege facts supporting the Wards’

standing as taxpayers. See Doremus, 342 U.S. at 433 (dismissing

appeal for lack of jurisdiction because the plaintiffs’ complaint

did not allege that the challenged activity was “supported by any

separate tax or paid for from any particular appropriation or that

it adds any sum whatever to the cost of conducting the school.”)

Because the Wards failed to allege facts sufficient to support

their standing, the district court did not abuse its discretion by

dismissing them as parties without first permitting them to conduct

discovery. “The rules of standing, whether as aspects of the

[Article] III case-or-controversy requirement or as reflections of

prudential considerations defining and limiting the role of the

courts, are threshold determinants of the propriety of judicial

intervention. It is the responsibility of the complainant clearly

to allege facts demonstrating that he is a proper party to invoke

judicial resolution of the dispute and the exercise of the court's

remedial powers." Bender v. Williamsport Area School Dist., 475 U.S.

534, 546 n.8 (1986). In other words, the burden is on the plaintiff

to allege facts sufficient to support standing. See Warth v.

of such expenditures: (1) payment by the defendant to its
attorneys to draft the guidelines; (2) payment by the defendant
to its attorneys to send a letter to the plaintiffs’ attorney
discussing the guidelines; (3) long distance toll charges spent
faxing the guidelines to the plaintiffs’ attorney; and (4) the
cost of the paper on which the guidelines were printed and the
cost of the staff time involved. The plaintiffs, however, never
filed a complaint containing these or any other allegations
regarding tax revenue expenditures on the disputed policy.
16
Seldin, supra, 422 U.S. at 501-02. Thus, because the Wards did not

clearly allege facts sufficient to support standing, the district

court did not err by dismissing them as parties at the pleading

stage. See Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th

Cir. 2001)(dismissal for lack of standing appropriate at pleading

stage when plaintiff fails to set forth specific facts demonstrating

personal injury.) Moreover, if a plaintiff fails to allege

sufficient facts to support standing, it is not an abuse of

discretion to deny discovery. See United Presbyterian Church v.

Reagan, 738 F.2d 1375, 1383 (D.C. Cir. 1984.)

Finally, the Wards’ argument that their suit was dismissed

without warning is not meritorious. The defendant raised their lack

of individual standing as a defense in its September 22, 1999 answer

to the plaintiffs’ complaint. The plaintiffs, however, did not seek

leave to amend the complaint to allege specific personal injury

suffered by the Wards due to a violation of their constitutional

rights. Thus, there is no indication that the Wards were surprised

or prejudiced in their advocacy by the court’s ruling based on their

lack of standing. For these reasons, we disagree with the

plaintiffs’ contentions.

VI.

The plaintiffs next argue that their complaint contains a claim

for monetary damages under the Texas Religious Freedoms Restoration

Act and that the trial court improperly failed to address this

17
claim. The district court did not separately rule on the

plaintiffs’ state claims when it dismissed the plaintiffs’ case

prior to the first appeal. The plaintiffs, however, failed to brief

the state claim in their initial appeal to this court.7 We have

held that a party cannot raise an issue on appeal that could have

been raised in an earlier appeal in the same case. See Brooks v.

United States, 757 F.2d 734, 739 (5th Cir. 1985). This rule "serves

judicial economy by forcing parties to raise issues whose resolution

might spare the court and parties later rounds of remands and

appeals." United States v. Castillo, 179 F.3d 321, 326 (5th Cir.

1999) (quoting Hartman v. Duffey, 88 F.3d 1232, 1236 (D.C. Cir.

1996)). Thus, because the district court failed to rule separately

on the pendent state claims when it dismissed the case before the

first appeal, and the plaintiffs did not argue in their initial

appeal that the state claims were distinct from their federal

claims, the plaintiffs cannot raise the issue in their second

appeal.

7
The plaintiffs’ brief in their previous appeal mentions
the state claims only twice: once in the fact section, and once
in the conclusion to a section entitled: “The plea for nominal
damages kept the case from being moot.” At the end of the
nominal damages argument, the plaintiffs state that “the Court
should remand both the claims for damages under § 1983 and also
the state law claims for damages under the Texas Constitution and
the Texas Religious Freedom Restoration Act.” Plaintiffs Brief at
23, Ward v. Santa Fe Indep. School Dist., No. 01-40634. The
plaintiffs, however, did not provide any argument or analysis
concerning the state claims. Thus, these claims were waived by
the plaintiffs during the previous appeal in this case.

18
 VII.

The plaintiffs’ remaining claims concern the district court’s

fee and expense analysis. The plaintiffs filed a fee application

after the remand requesting $319,952.07 in attorneys’ fees and

costs. The district court awarded $52,396. We affirm the district

court’s fee award for essentially the reasons given by the district

court.

For these reasons, the district court judgment is AFFIRMED.

19