                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1055
                         ___________________________

                             Christopher S. McDaniel,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                                   Anne Precythe,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                          Submitted: November 14, 2017
                              Filed: July 27, 2018
                                 ____________

Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,1 District
Judge.
                        ____________

COLLOTON, Circuit Judge.

      Christopher McDaniel sued the Director of the Missouri Department of
Corrections, alleging that the Director’s procedures for inviting citizens to witness

      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
executions violate McDaniel’s rights under the Due Process Clause of the Fourteenth
Amendment. The Director moved to dismiss McDaniel’s claim on the grounds that
McDaniel lacks standing and that the Director is immune from suit under the
Eleventh Amendment. The district court2 denied the motion, and the Director
appeals. We affirm.

                                            I.

       Because this appeal arises from the denial of a motion to dismiss, we accept as
true the well-pleaded allegations in the complaint. The following factual account is
derived from McDaniel’s complaint.

       Missouri law requires the Director of the Department of Corrections to invite
“at least eight reputable citizens,” in addition to the state attorney general, to witness
each Missouri execution. Mo. Rev. Stat. § 546.740. The relevant statute provides
that “no person under twenty-one years of age shall be allowed to witness the
execution,” but does not otherwise restrict the Director’s discretion. Id. The
Department of Corrections has no policy governing how the Director decides whom
to invite as witnesses, and the selection of witnesses is left to the unfettered discretion
of the Director.

       Director George Lombardi employed certain procedures in connection with the
selection of witnesses. A person who seeks to witness an execution must submit an
application form published by the Department. The form requests basic personal
information and criminal history, and then asks the applicant to “[e]xplain why you
are requesting to be a witness to an execution in the State of Missouri.” The form
also inquires as follows: “Are you, or have you ever been, a member of any group or


      2
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                           -2-
organization opposed to, or in support of, the death penalty?” If so, the applicant
must “list the names of the organization(s).”

       McDaniel is an investigative journalist who formerly reported for St. Louis
Public Radio and now works as a death penalty reporter for BuzzFeed News. As part
of his work, McDaniel has written several articles criticizing Missouri’s execution
practices. In January 2014, McDaniel submitted an application to witness a Missouri
execution as an employee of St. Louis Public Radio. In response to the form’s
instruction, McDaniel explained that he was seeking to witness a Missouri execution
“[t]o ensure that this solemn task is carried out constitutionally.” The Department of
Corrections never responded to McDaniel’s request, and the Director did not invite
McDaniel to witness any of Missouri’s seventeen subsequent executions.

       In August 2016, McDaniel sued Director Lombardi in his official capacity
under 42 U.S.C. § 1983. The complaint alleges that the Director violated the Due
Process Clause because his “policies and customs related to the selection of execution
witnesses” give the Director “unbridled discretion to deny an adult citizen the benefit
of serving as an execution witness based on the individual’s viewpoint, expressive
or press activity, or membership in a church or other organization.” In other words,
the complaint alleges that the Director’s policies “provide the opportunity for
discrimination based on viewpoint or retaliation for First Amendment protected
activity.” In support of this claim, the complaint alleges that “every applicant who,
like [McDaniel], expressed a desire to ensure that execution[s] were carried ou[t]
properly and constitutionally was denied the opportunity to witness an execution.”
The complaint seeks an injunction requiring the Director to establish a policy
governing the selection of execution witnesses.

      The Director moved to dismiss the complaint, arguing that McDaniel lacked
standing to bring his challenge, because he had not suffered an injury in fact. The
Director also asserted that he was immune from suit under the Eleventh Amendment.

                                         -3-
The district court denied the motion because it concluded that McDaniel had suffered
an injury and that the Director was not immune from a suit for injunctive relief under
the rule established in Ex parte Young, 209 U.S. 123 (1908).

       The Director filed notice of an interlocutory appeal on the question of
immunity under the Eleventh Amendment. Anne Precythe then succeeded Lombardi
as Director, and she was substituted as the appellant. See Fed. R. App. P. 43(c)(2).
The Director now reasserts that McDaniel lacks standing and that she is immune from
suit under the Eleventh Amendment. In addition, Director Precythe argues that the
case is moot because nothing in the record demonstrates that she intends to maintain
Director Lombardi’s allegedly unconstitutional policies.

                                           II.

       The court of appeals typically has jurisdiction to hear appeals only from final
decisions of the district court, see 28 U.S.C. § 1291, but we may hear an interlocutory
appeal raising a claim of Eleventh Amendment immunity when the district court has
rejected an immunity defense raised by a state defendant. P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). Our review is limited to the
immunity defense and other issues that are “inextricably intertwined” with it.
Entergy, Ark., Inc. v. Nebraska, 241 F.3d 979, 987 (8th Cir. 2001).

       Federal courts, however, must always ensure that a dispute presents a case or
controversy under Article III such that an assertion of jurisdiction is proper. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). Thus, before we can
reach the Director’s Eleventh Amendment argument, we must consider whether
McDaniel has standing and whether the appeal has become moot. Calderon v.
Ashmus, 523 U.S. 740, 745 & n.2 (1998). We review the district court’s conclusions
de novo. Heglund v. Aitkin County, 871 F.3d 572, 577 (8th Cir. 2017); Balogh v.
Lombardi, 816 F.3d 536, 544 (8th Cir. 2016).

                                          -4-
                                           A.

       Standing is an essential part of the case-or-controversy requirement of Article
III. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To demonstrate Article III
standing, a 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 Director disputes only whether McDaniel has suffered an injury
in fact.

      “To establish injury in fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Defs. of
Wildlife, 504 U.S. at 560). The Director argues that McDaniel has no legally
protected interest in witnessing an execution because there is no general right to
witness an execution.

       Although this court has not recognized a right to witness an execution, see Rice
v. Kempker, 374 F.3d 675, 678 & n.2 (8th Cir. 2004), McDaniel still has a cognizable
interest in serving as a witness. McDaniel’s work as a journalist has involved
extensive review of Missouri’s execution protocols. The opportunity to witness a live
execution undoubtedly would facilitate McDaniel’s work as a death penalty reporter
for BuzzFeed News; denying him that opportunity interferes with his ability to
maximize his professional well-being. We know that “the desire to use or observe an
animal species, even for purely esthetic purposes, is undeniably a cognizable interest
for purposes of standing,” Defs. of Wildlife, 504 U.S. at 562-63, and we see no reason
why McDaniel’s interest in viewing an execution for professional purposes is any less
cognizable. This is not to say that he is entitled to witness an execution, but only that
he is injured by his inability to do so.



                                          -5-
       Of course, if an injury is merely speculative or hypothetical, then it is
insufficient to satisfy the constitutional minimum. But as McDaniel’s challenge is
to the legality of the procedures used to select witnesses, he need not allege that he
inevitably would be selected to serve as a witness but for the allegedly unlawful
policies and customs of the Department. In an equal protection case, for example,
“[w]hen the government erects a barrier that makes it more difficult for members of
one group to obtain a benefit than it is for members of another group, a member of the
former group seeking to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish standing.” Ne. Fla.
Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 666 (1993). The inability to compete on equal footing is an injury in fact. Id.;
see Gratz v. Bollinger, 539 U.S. 244, 262 (2003). A religious organization likewise
satisfies the injury-in-fact requirement when it alleges that the government has
excluded the organization from an opportunity for government benefits based on its
religious character. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.
Ct. 2012, 2022 (2017).

       McDaniel’s allegations of injury are of a similar nature. He complains that the
Director enjoys “unbridled discretion” to select witnesses to executions. He claims
that the Director’s policies and customs for selecting witnesses allow for
discrimination based on viewpoint, retaliation for expressive activity, or exclusion
based on membership in a church or other organization. He asserts that the Director
requests information about an applicant’s association with groups that support or
oppose the death penalty. And he alleges that the Director has denied applications
from every person who expressed a desire to ensure that executions were carried out
constitutionally. These allegations and reasonable inferences made from them
support a plausible claim that an applicant’s viewpoint is a factor used by the Director
when considering whom to invite as a witness. Whether McDaniel’s claim has
merit—that is, whether the Due Process Clause really prevents the State from
retaining unbridled discretion to select execution witnesses or from considering an

                                          -6-
applicant’s viewpoint—is distinct from whether McDaniel has suffered an injury in
fact. See Carlsen v. GameStop, Inc., 833 F.3d 903, 909 (8th Cir. 2016). McDaniel’s
allegations that the Director’s policies provide an opportunity to exclude McDaniel
based on his viewpoint and that the Director has excluded McDaniel and all
applicants sharing his particular viewpoint are sufficient to give him standing to press
the claim.

                                          B.

       The Director contends that even if McDaniel has standing, his claim is moot.
To establish a case or controversy, McDaniel must show that there is an ongoing
controversy throughout appellate review. Iowa Prot. & Advocacy Servs. v. Tanager,
Inc., 427 F.3d 541, 543 (8th Cir. 2005). Director Precythe argues that McDaniel has
failed on this point, because he never alleged that she would continue Director
Lombardi’s policies and customs. The rules of civil procedure recognize that where
a successor official “does not intend to pursue the policy of [her] predecessor which
gave rise to the lawsuit,” the successor may “seek to have the action dismissed as
moot.” Fed. R. Civ. P. 25(d), advisory committee’s note to 1961 amendment.

        As the record stands before us, however, there is a continuing controversy.
McDaniel complains that the Director has violated the Due Process Clause by
applying customs and procedures that permit unbridled discretion to exclude persons
from witnessing executions based on viewpoint, expressive activity, or religious
affiliation. Director Precythe was appointed after this appeal was docketed, and she
has not announced new policies or represented to this court that she will depart from
the policies of her predecessor. McDaniel’s allegation is not personal to former
Director Lombardi, but rather a challenge to the standing policies and customs of the
Department. Cf. Spomer v. Littleton, 414 U.S. 514, 520-21 (1974). Given that there
has been no change to the status quo since Director Precythe’s appointment, we
conclude that the controversy continues. As the case proceeds, however, we trust that

                                          -7-
the district court will consider whether evidence shows that Director Precythe will
adopt different policies or customs from those of Director Lombardi or “will continue
the practices of [her] predecessor.” Mayor of Philadelphia v. Educ. Equal. League,
415 U.S. 605, 622 (1974).

                                           C.

       The Director’s appeal concerns immunity from suit under the Eleventh
Amendment. The Amendment bars a suit brought by a private individual against a
State. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997). Under
the exception established in Ex parte Young, however, a private party may sue state
officials in their official capacities for prospective injunctive relief. Verizon Md. Inc.
v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). “In determining whether the
doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need
only conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Id. (alteration in original) (quoting Coeur d’Alene, 521 U.S. at 296).

       McDaniel’s complaint alleges that the Director’s policies and customs for
selecting execution witnesses cause ongoing violations of the Due Process Clause.
McDaniel seeks prospective relief—that is, an injunction requiring the Director to
cease inviting people to witness executions until she has “established a policy for
selection of execution witnesses” that accords with the Due Process Clause. The
“straightforward inquiry” set forth by the Supreme Court, therefore, demonstrates that
McDaniel’s suit is not barred by the Eleventh Amendment.

        The Director responds by claiming that Ex parte Young is limited to
“enforcement actions” by state officials, and that decisions about whom to invite as
execution witnesses are outside that category. To be sure, Ex parte Young provides
that a suit seeking to enjoin enforcement of a state statute may proceed against a state

                                           -8-
officer only where the officer has “some connection with the enforcement of the act.”
209 U.S. at 157. But this does not mean that a suit may proceed only when it seeks
to enjoin an “enforcement action.” So long as a state official is giving effect to a state
statute in a manner that allegedly injures a plaintiff and violates his constitutional
rights, an action to enjoin implementation of the statute or for declaratory relief is
available against the state official. There need not be an enforcement proceeding.
See, e.g., Calzone v. Hawley, 866 F.3d 866, 869-70 (8th Cir. 2017); Mo. Prot. &
Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 807 (8th Cir. 2007); L.A. County
Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). The Director has authority to
implement the Missouri statute on execution witnesses, and she has implemented or
is likely to implement the statute. As such, Ex parte Young permits McDaniel’s suit
challenging the constitutionality of the Director’s implementation.

      Second, the Director argues that the Ex parte Young exception does not apply
to McDaniel’s suit because his claim “implicates Missouri’s special sovereign interest
in carrying out ministerial actions necessary to implement capital punishment.”
Coeur d’Alene held that the Eleventh Amendment barred an Indian Tribe’s suit for
prospective relief against state officials where the action implicated the State’s
“special sovereignty interests” in its land and waters, and was “close to the functional
equivalent” of a quiet title suit that was undisputedly barred by the Eleventh
Amendment. 521 U.S. at 281-82, 287-88.

       McDaniel’s effort to require the promulgation of a policy that cabins the
Director’s discretion to select execution witnesses does not implicate the same sort
of “unusual” situation involving “special sovereignty interests.” Id. at 281. Even if
McDaniel succeeds, the relief sought would not interfere with the State’s ability to
enforce its capital punishment statute or even affect its authority to regulate such
matters as the number of reporters present or the permissible behavior of witnesses
at executions. Again, we express no view on the merits of McDaniel’s claim, but we
conclude that a lawsuit seeking injunctive relief to bring the Director’s witness-

                                           -9-
selection process into compliance with the Constitution falls within the scope of Ex
parte Young and may proceed in federal court.

                                  *      *       *

      The order of the district court is affirmed. McDaniel’s motion to hold the case
in abeyance is denied.
                       ______________________________




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