                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
MARK WHITNEY,                 )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 11-1409 (RWR)
                              )
BARACK OBAMA, et al.,         )
                              )
     Defendants.              )
_____________________________ )

                        MEMORANDUM OPINION

     Plaintiff Mark Whitney brought this action for declaratory

and injunctive relief against President Barack Obama and the

United States, challenging under the War Powers Resolution1 the

President’s authority to deploy United States armed forces to

Libya.   The defendants have filed a suggestion of mootness,

arguing that the military activity of which the plaintiff

complains ended in 2011.   Whitney opposes, contending that the

case still presents a live controversy due to the fact and

effects of the U.S. military’s continuing presence in Libya, and

the likelihood that the alleged violation will recur in both

Libya and Syria.   Because the case is moot and does not satisfy




     1
       “The War Powers Resolution requires that military actions
commenced by the President . . . be terminated if, after sixty
days, Congress has not declared war or authorized the use of
military forces.” Kucinich v. Obama, Civil Action No. 11-1096
(RBW), 2011 WL 5005303, at *12 n.3 (D.D.C. Oct. 20, 2011) (citing
50 U.S.C. § 1544).
                                                      -2-

the exception to the mootness doctrine, the complaint will be

dismissed.2

                                                 BACKGROUND

           On March 17, 2011, the United Nations Security Council

approved Resolution 1973 (2011), which imposed a no-fly zone over

Libya and authorized “all necessary measures” other than foreign

occupation to “end . . . the current attacks against civilians”

in that country.                 SECURITY COUNCIL SC/10200, available at

http://www.un.org/News/Press/docs/2011/sc10200.doc.htm.                                  NATO

“answered the call[]” by launching Operation Unified Protector.

“WE ANSWERED         THE   CALL” -   THE   END   OF   OPERATION UNIFIED PROTECTOR,

http://www.nato.int/cps/en/SID-50A86982-5F805C35/natolive/news_80

435.htm (last visited February 26, 2012).                            By March 28, 2011,

President Obama “commit[ted] U.S. forces to the U.N.-authorized

military mission in Libya[.]”                         OBAMA: NOT ACTING   IN   LIBYA ‘WOULD HAVE

BEEN   A       BETRAYAL   OF   WHO WE ARE,’

http://articles.cnn.com/2011-03-28/politics/us.libya_1_libya-miss

ion-libya-policy-libyan-leader-moammar-gadhafi? s=PM:POLITICS

(last visited Feb. 26, 2012).                         He announced that the U.S. would

“play ‘a supporting role -– including intelligence, logistical

support, search-and-rescue assistance, and capabilities to jam



           2
       This opinion assumes that Whitney had standing to sue in
the first instance. See Campbell v. Clinton, 203 F.3d 19, 28
(D.C. Cir. 2000) (“[W]e may assume standing when dismissing a
case as moot.”).
                                   -3-

regime communications[.]’”   Id.    (Accord Defs.’ Suggestion of

Mootness (“Suggestion”), Ex. 1, E. O. Joseph McMillan Declaration

(“McMillan Decl.”) ¶ 2.)   “[F]ollowing the death of [Libyan

leader] Muammar Qaddafi and the defeat of Qaddafi-regime forces”

on October 23, “the [U.S.] ceased air operations in support of”

Operation Unified Protector on October 31.       The U.S. military

personnel remaining in Libya are there to support the diplomatic

mission.   (McMillan Decl. ¶¶ 3-4.)

     Whitney’s complaint seeks an injunction directing the

President to terminate the use of U.S. armed forces in support of

the U.N.-authorized military mission in Libya.       The defendants

assert that the case is now moot and must be dismissed.

I.   THE MOOTNESS BAR

     “It is a basic constitutional requirement that a dispute

before a federal court be ‘an actual controversy3 . . . extant at

all stages of review, [and] not merely at the time the complaint

is filed.’”   Newdow v. Roberts, 603 F.3d 1002, 1008 (D.C. Cir.

2010) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10

(1974)) (alteration in original).        “‘[W]hat makes [a judicial

pronouncement] a proper judicial resolution of a “case or


     3
       The “‘controversy requirement means that, throughout the
litigation, the plaintiff must have suffered, or be threatened
with, an actual injury traceable to the defendant and [which is]
likely to be redressed by a favorable judicial decision.’”
Daskalea v. Wash. Humane Soc’y, 710 F. Supp. 2d 32, 39-40 (D.D.C.
2010) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) (emphasis
added).
                                  -4-

controversy” rather than an advisory opinion [] is in the

settling of some dispute which affects the behavior of the

defendant towards the plaintiff.’”      Nat’l Ass’n of Home Builders

v. Salazar, Civil Action No. 10–832 (GK), 2011 WL 6097988, at *6

(D.D.C. Dec. 8, 2011) (quoting Hewitt v. Helms, 482 U.S. 755, 761

(1987)) (emphasis in original).    If “‘the issues presented are no

longer “live” or the parties lack a legally cognizable interest

in the outcome[,]’” the case is considered moot.     Honeywell

Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C.

Cir. 2010) (quoting Cnty. of L.A. v. Davis, 440 U.S. 625, 631

(1979)).   Moot cases “must be dismissed[,]” id. (internal

quotation marks and citation omitted), where “events outrun the

controversy such that the court can grant no meaningful relief,”

Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 326

(D.C. Cir. 2009) (Sentelle, J., dissenting) (internal quotation

marks and citation omitted).

     The defendants, who bear the “heavy burden” of establishing

mootness, Honeywell, 628 F.3d at 576, describe how the actions

Whitney challenged in 2011 had ceased by 2012 (Suggestion at 2).4

Whitney sought to enjoin the defendants from continuing U.S.


     4
       For the defendants to establish mootness, it may not be
enough for them to claim that they voluntarily ceased the
challenged activity. “The President’s cessation of the [activity
in Libya] was not ‘voluntary[.]’ . . . [T]he [military mission]
ended because [NATO prevailed], not because the President sought
to avoid litigation.” Campbell v. Clinton, 203 F.3d 19, 34 n.14
(D.C. Cir. 2000) (Randolph, J., concurring).
                                       -5-

military participation in NATO Operation Unified Protector (Pl.’s

Mot. for a Prelim. Injunc. (“Pl.’s Mot.”) ¶ 2),              which was

undertaken to “protect civilians from attack or the threat of

attack in Libya[,]”    NATO   AND   LIBYA - OPERATION UNIFIED PROTECTOR,

http://www.nato.int/cps/en/natolive/71679.htm (last visited Feb.

26, 2012).    In October of 2011, President Obama recognized the

Libyan Transitional National Council’s declaration of liberation,

and NATO announced that the “Alliance’s job to protect civilians

from the threat of attack [wa]s done.”           (Suggestion at 2

(citations omitted).)    The United Nations Security Council

likewise terminated the “use-of-force provisions of resolution

1973 (2011),” effective October 31, 2011.            (Suggestion at 2

(quotation marks and citation omitted); id., McMillan Decl. ¶ 3.)

Since “the alleged ‘hostilities’ that formed the basis for

plaintiff’s challenges in his Complaint[] have ended[]” (Defs.’

Reply to Pl.’s Opp’n to Suggestion of Mootness at 1), the

defendants conclude that Whitney’s challenge to “[U.S.] support

for these international operations in Libya is moot[.]”

(Suggestion at 3.)

        The D.C. Circuit found a similar challenge to be moot in

1985.    Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985).                In

Conyers, eleven members of Congress challenged the military

invasion of Grenada in October of 1983 as violative of the War

Powers Clause of the United States Constitution.             Id. at 1125-26.
                                  -6-

The President, who “stated that he ordered the invasion to

protect innocent lives,” withdrew all combat troops by

December 15 of that year.    Id. at 1126.   However,

“[a]pproximately 300 United States military personnel remained in

Grenada to maintain order and assist in training the Grenadian

police force.”    Id.   By the time the case reached the D.C.

Circuit, “the actions complained of ha[d] long since ended[.]”

Id. at 1125.     Accordingly, the D.C. Circuit dismissed the appeal

as moot and remanded the case for the district court to vacate

its judgment.    Id. at 1127 (noting that the controversy

requirement applies equally to requests for declaratory and

injunctive relief), 1129.    The court also described as “dubious”

the plaintiffs’ “attempt to avoid mootness” by arguing “that the

mere presence of military personnel in Grenada, under peaceful

circumstances, continues to violate the War Powers Clause.”     Id.

at 1127.

     In light of Conyers, Whitney’s claims have become moot.

“[T]he [U.S.] ceased air operations in support of” NATO’s

Operation Unified Protector on October 31, 2011, and Whitney

cites no authority for the proposition that the War Powers

Resolution covers the continued presence of peaceful troops.

(McMillan Decl. ¶ 4.)    Because “[t]he clash . . . has subsided,

and what occurred during the dispute cannot be undone[,]” Bhd. of
                                 -7-

Maint. of Way Employees v. Atchison, Topeka and Santa Fe Ry.,

Civil Action No. 95-2031 (TFH), 1996 WL 435018, at *2 (D.D.C.

Apr. 11, 1996), “the court can grant no meaningful relief[.]”

Del Monte, 570 F.3d at 326 (Sentelle, J., dissenting) (internal

quotation marks and citation omitted).   The declaratory judgment

Whitney seeks would constitute an “improper advisory opinion”

since no live dispute remains.   Conservation Force v. Salazar,

715 F. Supp. 2d 99, 105 (D.D.C. 2010); Conyers, 765 F.2d at 1128

(“[A] request for declaratory relief [is] moot [if] . . . there

is [no] substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality[.]”)

(internal quotation marks and citation omitted).   Granting

injunctive relief likewise would prove ineffectual, as the

challenged actions have long since ceased.5   Accordingly,

Whitney’s claims are moot.

II.   THE EXCEPTION TO THE BAR

      The D.C. Circuit has recognized the “capable of repetition,

yet evading review” exception to the mootness doctrine, see,

e.g., Honeywell, 628 F.3d at 576, when “intervening events beyond



      5
       Whitney argues that an injunction would: 1) “allay[] [his]
concerns for his ability to criticize the President[,]” 2) show
“Qadaffi [sic] factions . . . that while the President may be
their enemy, the U.S. citizenry is not[,]” and 3) “restore the
proper balance of powers among the Legislative and Executive
Branches.” (Pl.’s Opp’n at 3-4.) These speculative assertions
in no way obviate the requirement that federal courts dismiss
cases posing no live controversy.
                                -8-

the [parties’] control . . . appear to have rendered the claims

moot.”   Conyers, 765 F.2d at 1128 n.9.   “[A] controversy is

capable of repetition, yet evading review where both of the

following two requirements are met: 1) the challenged action [is]

in its duration too short to be fully litigated prior to its

cessation or expiration, and 2) there [is] a reasonable

expectation that the same complaining party [will] be subjected

to the same action again.”   Habitat for Horses v. Salazar, No. 10

Civ. 7684, 2011 WL 4343306, at *4 (S.D.N.Y. Sept. 7, 2011)

(internal quotation marks and citation omitted).    Under the

evading review prong, courts must “determine whether the activity

challenged is ‘inherently’ of a sort that evades review[.]”

Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000) (citation

omitted) (Randolph, J., concurring).   Since “offensive wars

initiated without congressional approval are not in th[is]

category[,]” neither are mere military missions “inherently short

in duration.”   Id.; Conyers, 765 F.2d at 1128.    Whitney has not

demonstrated that this dispute evades review.

     Neither does Whitney satisfy the “capable of repetition”

prong, since there is no “reasonable expectation” that Whitney

will suffer the same alleged violation of the War Powers

Resolution again.   Honeywell, 628 F.3d at 576.    Though the War

Powers Resolution was enacted nearly forty years ago, Whitney

identifies only one instance in which any president arguably has
                                     -9-

ever violated it.     (Pl.’s Opp’n at 2.)     See also Campbell, 203

F.3d at 34 (Randolph, J., concurring) (“How likely is [such a

violation] to recur?        Not very, if history is any guide.”).

Whitney also states that “entire sovereign regimes with their own

developed military can be toppled in a matter of weeks or

months.”     (Pl.’s Opp’n at 3.)    “Accepting that prediction as

accurate dooms [his] case.”       Campbell, 203 F.3d at 34.

      It means that the likelihood of this President, or some
      other, violating the 60-day provision of the War Powers
      Resolution is remote, not only because we can expect
      other Presidents to obtain congressional approval for
      wars lasting more than 60 days, but also because most
      military actions in the future (as plaintiffs agree)
      will be over before the 60-day limit for undeclared or
      unauthorized wars has been exceeded.

Id.   Whitney has not demonstrated that the alleged harm is

“capable of repetition, yet evading review,” and has presented no

authority reflecting that the benefits he sees from an

injunction6 provide an exception to the mootness doctrine.          See

Honeywell, 628 F.3d at 576.

                                 CONCLUSION

      The military activities Whitney sought to enjoin have ended.

The case is moot, and Whitney has established no applicable




      6
          See n.5, supra.
                                 -10-

exception to the mootness bar.    Accordingly, the complaint will

be dismissed.   A final order accompanies this memorandum opinion.

     SIGNED this 27th day of February, 2012.



                                           /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
