Opinion
No. 09-5176 Consolidated with 09-5186.
Filed On: October 19, 2009.
BEFORE: HENDERSON, ROGERS, and TATEL, Circuit Judges.
ORDER
Upon consideration of the motion for partial summary affirmance, the response thereto, and the reply, it is
ORDERED that the motion for partial summary affirmance be granted in part. The merits of the parties' positions are so clear as to warrant partial summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court's order, filed March 17, 2009, dismissing appellant's "as applied" claims relative to 36 C.F.R. § 2.52, and dismissing appellant's Bivens claims emanating from those "as applied" challenges are hereby summarily affirmed. See 605 F. Supp. 2d 8, 13-14 n. 2 (D.D.C. 2009). Because appellant does not challenge or otherwise address, in his response to the motion for partial summary affirmance, the district court's dismissal — due to a pleading deficiency — of his first "as applied" claim, he has waived that argument on appeal. See Doe v. District of Columbia, 93 F.3d 861, 875 n. 14 (D.C. Cir. 1996) (appellant waived argument(s) not raised on appeal).
The district court properly dismissed appellant's second "as applied" challenge. Because appellant failed to demonstrate he sustained a "concrete," "actual or imminent injury" as a result of the action of which he complained,see Amer. Society for Prevention of Cruelty to Animals v. Ringling Bros, 317 F.3d 334, 336 (D.C. Cir. 2003) (in actions for injunctive relief, harm in the past is not enough to establish a present controversy), there was no "case or controversy."See Allen v. Wright, 468 U.S. 737, 750-51 (1984). As such, the claims were moot. See Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349-50 (D.C. Cir. 1997). And because the "as applied" claims were the foundation of appellant's damages claims against the individual appellees, the Bivens claims were properly dismissed as well. (This order does not address the dismissal of appellant's claims under the Religious Freedom Restoration Act, because appellant did not appeal that determination.) It is
FURTHER ORDERED that the motion for partial summary affirmance be denied in part because, based on the parties' pleadings before this court, the merits of their positions regarding the district court's grant of summary judgment for appellees on the "facial" challenges to 36 C.F.R. §§ 2.51 and 2.52 are not so clear as to warrant summary action. It is
FURTHER ORDERED, on the court's own motion, that the remaining issues, i.e., the facial challenges underlying the district court's grant of summary judgment in No. 09-5176 and the facial challenge underlying the district court's unconstitutionality determination in No. 09-5186, be referred to a merits panel.
The Clerk is directed to establish a briefing schedule for the remainder of the appeal in the normal course.
Pursuant to D.C. Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate in No. 09-5176 until resolution of the remainder of the appeal.