                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0332n.06

                                        Case No. 17-6448

                          UNITED STATES COURT OF APPEALS
                                                                                         FILED
                                                                                    Jul 09, 2018
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


JOSEPH T. HOWARD,                                   )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )
                                                    )       ON APPEAL FROM THE UNITED
STATE OF TENNESSEE; TENNESSEE                       )       STATES DISTRICT COURT FOR
DEPARTMENT          OF      SAFETY       &          )       THE MIDDLE DISTRICT OF
HOMELAND SECURITY; DAVID W.                         )       TENNESSEE
PURKEY, in his official capacity as                 )
Commissioner of the Tennessee Department of         )
Safety and Homeland Security,                       )
                                                    )
       Defendants-Appellees.                        )



       BEFORE: COOK and DONALD, Circuit Judges; HALE, District Judge. *

       COOK, Circuit Judge. Joseph Howard sued after a bureaucratic snafu nearly prevented

him from voting in the November 2016 federal election. Although Tennessee registered him in

time to vote, Howard contests the State’s “motor-voter” registration scheme’s legality. The district

court granted the State summary judgment, deciding that Howard’s successful registration mooted

his initial claim and that he lacked standing to continue his challenge. We AFFIRM.




       The Honorable David J. Hale, United States District Judge for the Western District of
       *

Kentucky, sitting by designation.
Case No. 17-6448
Howard v. Tennessee

                                       I. BACKGROUND

                                            A.     Facts

       Congress passed the National Voter Registration Act of 1993 (the “NVRA” or the “Act”)

to “reinforce the right of qualified citizens to vote by reducing the restrictive nature of voter

registration requirements.” Ass’n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 835 (6th

Cir. 1997). The Act requires states to link their driver’s license application and voter registration

procedures, such that “[e]ach State motor vehicle driver’s license application (including any

renewal application) . . . shall serve as an application for voter registration.”          52 U.S.C.

§ 20504(a)(1).     The application and registration processes must be simultaneous.                Id.

§ 20503(a)(1).

       Tennessee provides multiple avenues to apply for or renew a driver’s license, or to notify

the State’s Department of Safety and Homeland Security of an address change. Residents may

appear in-person at a driver services center or remotely use a self-service kiosk or an online system.

A first-time license applicant must appear in-person, although he may fill out and print an online

application to speed his visit. Whether completed in-person, online, or at a kiosk, each form

includes a check box for an applicant to indicate that he would like to update his voter registration.

Each form also cautions that marking “yes” does not actually register an applicant to vote. Instead,

once the applicant marks “yes,” the Department provides him a separate voter registration form.

The NVRA expressly contemplates such a procedure, permitting states to employ a distinct “voter

registration application portion of an application for a State motor vehicle driver’s license.” Id.

§ 20504(c)(2). 1


       1
          See also H.R. Rep. No. 103-9, at 9 (1993) (the NVRA “is so drafted to describe an
application process that permits the use of two forms, one for the motor vehicle driver’s license
application and one for the voting registration application”); S. Rep. No. 103-6, at 5–6 (1993) (the
                                                 -2-
Case No. 17-6448
Howard v. Tennessee

       Remote applicants receive this form in the mail several days after their driver’s license

transaction. For in-person applicants, however, Department policy requires the examiner to “print

the motor voter form,” which “must be completed and signed by the applicant in the office.” Once

the examiner certifies the form, Department staff send it to the local election commission.

       Howard’s examiner allegedly failed to follow this protocol. Having recently moved to

Tennessee, Howard completed and printed an online application for his October 6, 2016, in-person

visit. On the form, he indicated that he would like to register to vote, but his examiner neglected

to provide him with the necessary voter registration form. Instead, Howard received it in the mail,

along with his driver’s license, on October 26—after the registration deadline for the 2016 election.

                                   B.      Procedural History

       Howard sued on November 2, seeking to compel the State to register him and allow him to

vote. The parties agreed that Howard should have been registered and the State promptly

registered him. Howard voted in the November election without further incident.

       He nonetheless persisted with his case, pursuing declaratory and injunctive relief to force

the State to—in his view—bring its motor-voter procedures into compliance with the NVRA. He

challenged not only the in-person registration system, but the online and kiosk systems, too, along

with the State’s address change procedures.

       The State moved for summary judgment, contending that Howard’s successful registration

and voting mooted his case and that he lacked standing to pursue his other claims. Howard cross-

moved for summary judgment, requesting an injunction barring what he characterized as the




NVRA gives states discretion to use “separate application forms to be completed as part of a single,
simultaneous application process”).
                                                -3-
Case No. 17-6448
Howard v. Tennessee

State’s ongoing NVRA violations. The court granted the State’s motion and denied Howard’s.

He appeals both decisions.

                                       II. DISCUSSION

       We review de novo grants of summary judgment for both mootness and lack of standing.

McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016); Brandywine, Inc. v. City of Richmond,

359 F.3d 830, 836 (6th Cir. 2004) (“We review the district court’s conclusions of law with regard

to mootness de novo.”).

              A.      Whether Howard’s In-Person Registration Claim is Moot

       We first tackle the alleged mootness of the issue that sparked this litigation: that the

Department’s processing of in-person driver’s license transactions violates the NVRA. As an

initial matter, the State argues Howard forfeited any challenge to the district court’s mootness

determination because he didn’t include mootness in his “statement of the issues presented” at the

beginning of his primary brief, even though he otherwise adequately argues the question. Pursuant

to the Rules of Appellate Procedure, an appellant’s brief “must contain . . . a statement of the

issues presented for review.” Fed. R. App. P. 28(a)(5) (emphasis added). We have held that

noncompliance triggers forfeiture of any un-listed issues. Barrett v. Detroit Heading, LLC, 311 F.

App’x 779, 796 (6th Cir. 2009); see also Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 461–

62 (6th Cir. 2003) (holding appellant forfeited consideration of an issue where he failed to include

it in his statement of issues presented for review and only cursorily mentioned it in his brief).

       Howard responds that he did not need to include mootness in his statement of issues

because he explicitly listed standing, nested his mootness arguments within his broader standing

claims, and because mootness and standing are closely related doctrines. See Arizonans for

Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (“Mootness has been described as ‘the


                                                -4-
Case No. 17-6448
Howard v. Tennessee

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).’”

(quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980))).

        Assuming—without deciding—that this issue is properly before us, we agree that by

registering him to vote the State mooted Howard’s claim that the Department’s in-person

application procedures violate the NVRA. Federal courts “may only adjudicate actual, ongoing

controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “A case is moot ‘when the issues

presented are no longer live or the parties lack a legally cognizable interest in the outcome.’”

Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 429 (6th

Cir. 2013) (quoting Hodges v. Schlinkert Sports Assocs., Inc., 89 F.3d 310, 312 (6th Cir. 1996)).

Therefore, “[i]f events occur during the pendency of a litigation which render the court unable to

grant the requested relief, the case becomes moot and . . . falls outside our jurisdiction.” Demis v.

Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (internal quotation marks and citation omitted); see

also Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (“The test for mootness is whether the relief

sought would, if granted, make a difference to the legal interests of the parties.” (internal quotation

marks and citation omitted)). Because Howard is registered to vote, and because Department

policy applicable to similarly-situated applicants complies with the NVRA, we cannot offer him

any relief on this score.

        Nevertheless, he argues his claim isn’t moot because it is “capable of repetition but evading

review.” To qualify for this exception to the mootness doctrine, Howard must show that, first,

“the challenged action is too brief to be litigated fully before it concludes,” and second, that “there

is a reasonable expectation that the same complaining party will be subject to the same action

again.” Barry v. Lyon, 834 F.3d 706, 715 (6th Cir. 2016) (internal quotation marks and citation


                                                 -5-
Case No. 17-6448
Howard v. Tennessee

omitted). The second requirement “is somewhat relaxed in election cases”—Howard need not

show that he will run into the same issue himself; it is enough if “the controversy almost invariably

will recur with respect to some future potential . . . voter.” Lawrence v. Blackwell, 430 F.3d 368,

372 (6th Cir. 2005).

       Although the State does not contest that Howard satisfies the first prong, we, like the

district court, are unpersuaded that he meets the second. As the court noted, “Howard is unlikely

to need to repeat Tennessee’s process for new driver’s license applicants.” He counters that the

likelihood that he will encounter problems in a variety of other transactions, such as changes-of-

address, precludes mootness because “[i]t is more than plausible that [he] will be subjected to the

Department’s wrongful conduct again.”

       The problem with this position is that these other transactions are not the “same action”

that occasioned Howard’s suit. An in-person application for a new driver’s license is different

from, for example, a remote change-of-address transaction. In the district court’s words, “the

challenged action for which Howard must show a reasonable expectation of repetition is the

Department’s failure to include an opportunity to register to vote at some point before the

conclusion of his in-person transaction.”

       He cannot do so. The Department’s existing protocols require examiners to provide in-

person applicants with voter registration forms during their visit, an NVRA-compliant practice.

See 52 U.S.C. § 20504(c)(2). Thus, for Howard—or anyone else similarly situated—to have “a

reasonable expectation that [he] will be subject to the same action again,” he must “reasonabl[y]

expect[]” the Department to flout its own procedures. See Barry, 834 F.3d at 715 (quoting Fed.

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)). Howard might have a




                                                -6-
Case No. 17-6448
Howard v. Tennessee

colorable argument if he had evidence of widespread noncompliance, but he presents none.

Accordingly, his in-person registration claims are moot.

      B.      Standing to Contest Alleged Violations Relating to Remote Transactions

       The issue that spurred this litigation may be moot, but Howard also challenges other motor-

voter practices. Procedures for remote (i.e., online and kiosk) transactions violate the NVRA, he

claims, because they only provide an applicant with a voter registration form several days later via

mail. This, he asserts, defies the NVRA’s requirement that states “establish procedures to register

to vote in elections for Federal office . . . by application made simultaneously with an application

for a motor vehicle driver’s license.” 52 U.S.C. § 20503(a)(1) (emphasis added).

       The district court decided that Howard lacked standing to contest any of the State’s remote

transaction motor-voter protocols. Standing is a fundamental prerequisite for any federal case.

Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). At a minimum, “[t]he plaintiff must have (1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136

S. Ct. 1540, 1547 (2016). The “injury in fact” must be both “concrete and particularized” and

“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (quoting Whitmore, 495 U.S. at 155). Therefore, a plaintiff must allege more than

“a generally available grievance about government”; his injury must go beyond “his and every

citizen’s interest in proper application of the Constitution and laws.” Id. at 573.

       The court reasoned that Howard’s injury—not being simultaneously registered to vote

when he applied for a driver’s license in-person—“cannot be traced to any flaws in the

Department’s online-only or kiosk-only procedures.” It follows that even if there are problems

with those practices, “none of those alleged deficiencies is responsible for the injuries that


                                                -7-
Case No. 17-6448
Howard v. Tennessee

differentiate Howard from a member of the general public,” and he accordingly lacks standing to

challenge them.

       Howard argues that the district court reached the wrong result for three reasons. None

persuades.

                        1. Howard’s Transaction as a “Remote Transaction”

       Howard believes that the district court’s differentiating in-person from remote transactions

represents a “false dichotomy.” He claims the fact that he completed an online application, printed

it, and brought it with him to his in-person driver’s license visit means that his application was

really an online transaction. Because his injury is traceable to the Department’s practice of mailing

remote applicants their voter registration forms, the argument goes, he has standing to challenge

other remote transaction procedures.

       We disagree. As the district court pointed out, “Howard’s transaction . . . was not remote

in any meaningful sense of the word.” True, he filled out some preliminary paperwork online, but

he still completed his application in-person, as required. Howard’s own brief belies his argument:

he admits that the “transaction giving rise to the present suit was consummated during his October

6, 2016 in-person visit.” The in-person procedure that injured him is distinct from the remote

transaction procedures he targets.

                              2. Later Change-of-Address Application

       After filing his complaint, Howard completed a change-of-address transaction on the

Department’s website. He says that in addition to updating his driving record, he meant for the

transaction to update his voter registration. But he claims that it did not, and that the Department




                                                -8-
Case No. 17-6448
Howard v. Tennessee

therefore violated the NVRA, “open[ing] the door to him challenging all online and remote

transactions.”

       Not so. Any challenge to the Department’s change-of-address procedures cannot confer

standing because it is not a proper part of this litigation. As the district court noted, the NVRA

imposes distinct obligations on states regarding driver’s license applications, see 52 U.S.C.

§ 20504(a)–(c), and changes-of-address, see id. § 20504(d). Howard raised his change-of-address

claim when he moved for summary judgment. But his complaint only alleges that the Department

failed to comply with the NVRA’s license application provisions, not its change-of-address

requirements. We have recognized that plaintiffs cannot raise new claims in their summary

judgment briefing and should instead request leave to amend their complaint. See Guiffre v. Local

Lodge No. 1124, No. 90-3540, 1991 WL 135576, at *5 (6th Cir. July 24, 1991) (holding claims

first asserted in summary judgment briefing were not properly before the court because defendants

had “no opportunity to investigate them when they conducted their own discovery”); see also

Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 787–88 (6th Cir. 2005);

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004); Franks v. Salazar,

816 F. Supp. 2d 49, 58 n.5 (D.D.C. 2011) (“[P]laintiffs cannot use their summary judgment

briefing to press claims not raised in their . . . complaint.”). “To permit a plaintiff to do otherwise

would subject defendants to unfair surprise.” Tucker, 407 F.3d at 788.

                            3. Concrete and Particularized Injury-in-Fact

       Finally, Howard maintains the district court overlooked his standing to contest the remote

transaction procedures despite his suffering a concrete and particularized injury when he was not

registered to vote during his in-person visit. He relies on the Supreme Court’s recent decision,

Spokeo, Inc. v. Robins, “for the proposition that a plaintiff must suffer a concrete injury particular


                                                 -9-
Case No. 17-6448
Howard v. Tennessee

to him or her, no more and no less.” Thus, he insists that even if his injury is limited to his in-

person visit, the mere fact of this injury suffices for standing and “should have ended the District

Court’s analysis.”

       But to have standing, Howard must show injury-in-fact, traceability, and redressability.

See Part II.B, supra. Spokeo does not hold otherwise; although it focuses on injury-in-fact, it

reiterates that all three elements form the “‘irreducible constitutional minimum’ of standing.” 136

S. Ct. at 1547 (quoting Lujan, 504 U.S. at 560). As the State notes, that Howard suffered a

qualifying injury is a necessary, but not sufficient, condition of standing. See id.

       True, the Department’s failure to register him during his in-person visit injured Howard.

Yet as we have already discussed, his claims arising from that injury are moot, see Part II.A, supra,

and he has traced no causal link between his injury and the Department’s motor-voter procedures

for remote transactions. Regardless of whether those procedures comply with the NVRA, they

have not injured him in any way that distinguishes him from a member of the general public.

                                     III. CONCLUSION

       For these reasons, we AFFIRM.




                                                - 10 -
Case No. 17-6448
Howard v. Tennessee

        BERNICE BOUIE DONALD, Circuit Judge, concurring in the judgment. I concur in

the majority’s decision to affirm the district court’s grant of summary judgment to the State on

both mootness and standing grounds. However, I write separately to express my concern about

the fact that Joseph Howard was compelled to bring a lawsuit against his State to ensure he could

exercise his right to vote in an upcoming election. This case exemplifies the risks to the voting

franchise, and to our democracy, should states not strictly comply with applicable law in ensuring

that citizens can exercise their right to vote.

        As the majority notes, the National Voter Registration Act of 1993 (the “NVRA” or the

“Act”) was passed to “reinforce the right of qualified citizens to vote by reducing the restrictive

nature of voter registration requirements.” Ass’n of Cmty. Orgs. for Reform Now v. Miller,

129 F.3d 833, 835 (6th Cir. 1997). In a recent NVRA case, Justice Breyer highlighted the historical

context in which the NVRA was enacted, stating that the among the goals of the Act was to

“increase the number of eligible citizens who register to vote in elections for Federal office.”

Husted v. A. Philip Randolph Inst., No, 16–980, ––– U.S. ––––, ––– S. Ct. ––––, ––– L. Ed. 2d –

–––, 2018 WL 276766118, at *17 (June 11, 2018) (Breyer, J., dissenting) (internal quotation marks

omitted) (quoting 52 U.S.C. § 20501(b)). The House Report for the NVRA highlighted the many

methods states had historically used to prevent citizens from exercising their constitutional

franchise, including poll taxes, literacy tests, residency requirements, selective purges, elaborate

administrative procedures and annual reregistration requirements—all “developed to discourage

participation.” H.R. Rep. No. 103–9, at 2 (1993). It is against this backdrop that I express my

concern for the extraordinary measures the plaintiff had to take in this case to exercise his right to

vote.




                                                  - 11 -
Case No. 17-6448
Howard v. Tennessee

        Relevant in this matter, one of the Act’s requirements is that state motor vehicle

applications serve as voter registration applications. Crawford v. Marion Cty. Election Bd.,

553 U.S. 181, 192 (2008) (citing 52 U.S.C. § 20501). Here, as the majority notes, State procedure

required that Howard be provided with a voter application form when he applied in-person for his

driver’s license—but this procedure was not followed. In order to become registered in time to

cast a ballot in the November 2016 election, Howard was compelled to bring suit against the State.

Though Howard was able to vote timely, he only succeeded in exercising his right after bringing

a federal lawsuit against the State to enforce the State’s compliance with the NVRA.

        It is self-evident that filing a lawsuit should not be a prerequisite for exercising one’s right

to vote. It is also self-evident that not every citizen has the financial means, nor should be required,

to bring a lawsuit to ensure she can vote in an upcoming election. Beyond the burden to the

individual citizen, were this systematic failure to allow a citizen to register to vote to go unchecked,

the requirement to seek relief through the courts hundreds of times would place an inordinate and

unnecessary burden on the court system and tax citizen resources. Perhaps it is the rare case that

this will occur. And indeed, the State asserts that it is. But it is not entirely clear that the State of

Tennessee is in compliance with the NVRA, which requires that “[e]ach State shall include a voter

registration application form for elections for Federal office as part of an application for a State

motor vehicle driver’s license.” 52 U.S.C. § 20504(c)(1) (emphasis added). Whether the State’s

inclusion of an additional voter registration form—which a clerk must print and provide to an in-

person driver’s license applicant—satisfies the statutory requirement that the voter registration

application be included “as part of” the driver’s license application, is a question we do not reach

today. I agree with the majority, however, that on the facts of this case, Howard’s claim was




                                                 - 12 -
Case No. 17-6448
Howard v. Tennessee

mooted, and he does not have standing to challenge other procedures. Therefore, I concur in the

judgment.




                                            - 13 -
