F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 7 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
BILL LOVING,
Plaintiff-Appellant,
v. No. 97-6086
DAVID BOREN, President of the
University of Oklahoma,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 96-CV-657)
Submitted on the briefs: *
Bill Loving, Pro Se.
Joe Harroz, Jill Bush Raines, Fred Gipson, Lisa Millington, Kurt Ockershauser,
Susan Seamans, University of Oklahoma Legal Counsel, Norman, Oklahoma,
for Defendant-Appellee.
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
KELLY, Circuit Judge.
Plaintiff, a professor at the University of Oklahoma, brought this action for
declaratory and injunctive relief against David Boren, president of the University
of Oklahoma. Plaintiff alleged that defendant violated his rights under the First
Amendment by blocking access through the University’s news server to certain
news groups. After a bench trial, the district court entered judgment in favor of
defendant. The district court’s published opinion contains a thorough statement
of the facts relevant to this appeal, and we will not repeat them here. See Loving
v. Boren, 956 F. Supp. 953 (W.D. Okla. 1997).
The district court set forth several alternative bases upon which it entered
judgment for defendant. We review the district court’s determination that
plaintiff lacked standing de novo, see Committee to Save the Rio Hondo v.
Lucero, 102 F.3d 445, 447 (10th Cir. 1996), and we affirm on that basis. Thus,
we neither address nor express an opinion as to the alternative bases for the
district court’s decision.
Article III of the Constitution limits the jurisdiction of federal courts to
actual cases or controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
559 (1992). Embodied in that limitation is the requirement that a plaintiff have
standing. See Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997). “To
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meet this requirement at an ‘irreducible constitutional minimum,’ a plaintiff must
demonstrate that (1) he or she has suffered an injury in fact; (2) there is a causal
connection between the injury and the conduct complained of; and (3) it is likely
that the injury will be redressed by a favorable decision.” Id. (quoting Lujan, 504
U.S. at 560). The “injury in fact” is defined as “an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations and quotations
omitted). A particularized invasion of a legally protected interest requires “that
the injury must affect the plaintiff in a personal and individual way.” Id. n.1.
These elements are an indispensable part of plaintiff’s case, upon which he
bears the burden of proof. See id. at 561. Plaintiff must support each element
“with the manner and degree of evidence required at the successive stages of the
litigation.” Id. The district court entered judgment in this case after trial, and,
thus, the facts related to the standing elements “must be supported adequately by
the evidence adduced at trial.” Id. (quotation omitted).
We recognize that “a lessening of prudential limitations on standing” may
be justified in the First Amendment context; even then a plaintiff must satisfy the
injury-in-fact requirement. See Phelps, 122 F.3d at 1326. Plaintiff did not testify
at trial. The only trial evidence he presented was the testimony of defendant and
the University’s Director of Computing and Telecommunications Services.
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Nowhere did plaintiff adduce evidence that he suffered any injury in fact as a
result of the University’s new policy conditioning access to the full service news
server on the bases of age and academic purpose. 1 Plaintiff simply presented no
evidence that he ever attempted to access news groups through the full service
news server and was denied access because his purpose was something other than
academic or educational, or that he intended to attempt access. He did not
establish that he was injured by defendant’s actions, let alone that the injury
affected him in a personal and individual manner. Thus, plaintiff failed to
establish standing. The judgment of the United States District Court for the
Western District of Oklahoma is AFFIRMED.
1
Neither did he present evidence that he was injured in fact because
he was denied access under the previous total access block of certain news
groups. However, even if he had presented such evidence, because the new
policy was in effect by the time of trial, evidence of injury resulting from the
previous policy would not have satisfied his burden.
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