In the

United States Court of Appeals

For the Seventh Circuit

No. 05-2749

JOAN LASKOWSKI and DANIEL M. COOK,

Plaintiffs-Appellants,

v.

MARGARET SPELLINGS, in her official capacity as

Secretary of the United States Department of Education,

Defendant-Appellee,

and

UNIVERSITY OF NOTRE DAME,

Defendant-Intervenor-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 03 C 1810—Larry J. McKinney, Judge.

ARGUED NOVEMBER 5, 2007—DECIDED OCTOBER 14, 2008

Before POSNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. This case returns to us following the

Supreme Court’s order granting certiorari, vacating our
2 No. 05-2749

prior judgment, and remanding for further consideration

in light of Hein v. Freedom from Religion Foundation, Inc.,

551 U.S. ___, 127 S. Ct. 2553 (2007). Univ. of Notre Dame v.

Laskowski, 127 S. Ct. 3051 (2007). The issue is whether the

plaintiff-taxpayers have standing under Flast v. Cohen, 392

U.S. 83 (1968), to maintain an Establishment Clause

challenge to a congressional grant after the funds have

been fully paid and the grant has expired.

The taxpayers sued the Secretary of Education to

enjoin payment of the money but did not seek a preliminary injunction. The grant recipient, the University of

Notre Dame, intervened to protect its interest in the

funds—$500,000 designated for a teacher-training program.

While the suit was pending, however, the grant expired

and the district court dismissed the case as moot. The

taxpayers appealed and this panel split; the majority

reversed, holding that although the claim against the

Secretary of Education was moot, the suit was not.

Laskowski v. Spellings, 443 F.3d 930, 933 (7th Cir. 2006). This

conclusion flowed from the majority’s view that

restitutionary relief could be obtained against Notre

Dame in the form of an order to repay the grant to the

U.S. Treasury. Id. at 934-35.

That ruling has been called into question by the Supreme

Court’s decision in Hein, another Establishment Clause

case from this circuit involving the issue of taxpayer

standing—specifically, the question whether the Flast

exception to the rule against taxpayer standing extended

to suits challenging Executive Branch programs funded

by general appropriations. Hein answered this question
No. 05-2749 3

“no,” leaving the Flast exception in place but narrowly

confining it to its facts.

After Hein, taxpayers continue to have standing to sue

for alleged Establishment Clause violations wrought by

specific congressional appropriations under the Article I,

Section 8 taxing and spending power, but this standing

extends only to suits to enjoin the violation. As circumscribed by Hein, the Flast exception does not extend to

suits for retrospective monetary relief against private

parties such as the restitutionary remedy envisioned

against Notre Dame here. This case was properly dismissed as moot.

I. Background

In appropriating money for the Department of Education for fiscal year 2000, Congress earmarked $500,000 for

a grant to the University of Notre Dame to support a

teacher quality initiative. Consolidated Appropriations

Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501, 1501A-262

(Nov. 29, 1999). At the Department’s request, Notre Dame

submitted a grant application to receive the money,

indicating that it would be used to fund its Alliance for

Catholic Education (“ACE”), a teacher-training program

aimed at training and placing teachers in underserved

Catholic schools in poor neighborhoods. Notre Dame

planned to replicate the ACE program in partnership with

four other colleges and universities. The Department of

Education awarded Notre Dame the grant.

Joan Laskowski and Daniel Cook, both federal taxpayers who had no connection to the grant, believed the
4 No. 05-2749

earmark violated the Establishment Clause and sued the

Secretary of the Department of Education to enjoin payment. Notre Dame intervened as a defendant. Laskowski

and Cook did not seek a preliminary injunction, however,

and by the time the district court heard their case, the

grant money had already been fully paid to Notre Dame

and the one-time-only earmark expired. The district court

dismissed the case as moot.

On appeal, the taxpayers conceded that their request

for injunctive relief was moot. But they argued that

another form of relief was available to save their suit

from dismissal: the district court could order the Secretary

of Education to seek recoupment of any wrongfully

disbursed funds from Notre Dame. This panel unanimously rejected that argument, noting that the court has

no authority to order the Secretary to seek recoupment

from Notre Dame because an agency’s decision not to

take an enforcement action is within the discretion of the

agency and is not reviewable. See Laskowski, 443 F.3d at

934 (citing Heckler v. Chaney, 470 U.S. 821, 831-33); id. at

940 (Sykes, J., dissenting).

But our panel was divided on whether the entire suit

was moot. The majority concluded that it was not because

the district court could directly order Notre Dame to pay

back any wrongfully disbursed money as restitution to

the U.S. Treasury for the government’s Establishment

Clause violation. Id. at 934-35. This alternative form of

relief, the majority concluded, forestalled mootness and

permitted the taxpayers’ suit to proceed on the merits. Id.

at 935-36. The Supreme Court granted certiorari, vacated
No. 05-2749 5

our judgment, and remanded for reconsideration in

light of Hein.

II. Discussion

We note at the outset that this case differs from Hein in

that the taxpayers here brought an Establishment Clause

challenge to a specific congressional earmark, not (as in

Hein) a challenge to an Executive Branch program supported by general appropriations. The issue in Hein was

whether the taxpayers had standing from the start; the

issue here is mootness, a subset of standing doctrine. That

doesn’t change the analysis. Mootness is “the 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).” Friends of the Earth, Inc. v. Laidlaw Evtl. Servs.,

Inc., 528 U.S. 167, 189 (2000) (internal quotations and

citations omitted). The taxpayers “must demonstrate

standing separately for each form of relief sought.” Id.

at 185.

Everyone agrees that the expiration of the grant moots

the taxpayers’ claim against the Secretary of Education. See

Burke v. Barnes, 479 U.S. 361, 363 (1987) (a challenge to

the validity of a statute is mooted when the statute

expires by its own terms); Diffenderfer v. Cent. Baptist

Church of Miami, Fla., Inc, 404 U.S. 412, 414-15 (1972); Fed’n

of Adver. Indus. Representatives, Inc. v. City of Chicago, 326

F.3d 924, 929 (7th Cir. 2003). The concrete adversity that

once supported standing to sue is gone; the prospective
6 No. 05-2749

injunctive relief sought against the Secretary is no longer

available—more precisely, is pointless because there is

nothing to enjoin. The question now is whether, in light

of Hein, the taxpayers have standing to pursue the

remedy proposed by our earlier panel opinion—restitution

of the grant money by Notre Dame to the U.S. Treasury.

We conclude the answer to this question must be “no.”

The general rule is that a plaintiff has standing to sue

only for injuries to his own interests that can be remedied

by a court order. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992). This is because the “federal courts sit

‘solely, to decide on the rights of individuals.’ ” Hein, 127

S. Ct. at 2562 (quoting Marbury v. Madison, 1 Cranch 137,

170 (1803)). “Article III of the Constitution limits the

judicial power of the United States to the resolution of

‘Cases’ and ‘Controversies,’ and ‘Article III standing . . .

enforces the Constitution’s case-or-controversy requirement.’ ” Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 342 (2006) (internal quotation marks omitted)). Established standing doctrine requires the party invoking the

court’s authority to demonstrate a “personal injury fairly

traceable to the defendant’s allegedly unlawful conduct

and likely to be redressed by the requested relief.” Allen

v. Wright, 468 U.S. 737, 751 (1984).

A corollary is the rule that a plaintiff’s payment of taxes

is generally insufficient to establish standing to challenge

the constitutionality of a government program or activity.

Hein, 127 S. Ct. at 2562; DaimlerChrysler, 547 U.S. at 342-44;

Bowen v. Kendrick, 487 U.S. 589, 618-20 (1988); Valley Forge

Christian Coll. v. Ams. United for Separation of Church & State,
No. 05-2749 7

Inc., 454 U.S. 464, 477-80 (1982); Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 215 (1974); United

States v. Richardson, 418 U.S. 166, 171-73 (1974); Flast,

392 U.S. at 101-06; Doremus v. Bd. of Educ., 342 U.S. 429, 433-

34 (1952); Frothingham v. Mellon, 262 U.S. 447, 486-89 (1923).

The reason: taxpayers have no direct, personal interest in

the money in the Treasury simply by virtue of having

paid taxes and therefore suffer no redressable injury

when the federal government puts money to unconstitutional use. See Hein, 127 S. Ct. at 2559 (“In light of the size

of the federal budget, it is a complete fiction to argue

that an unconstitutional federal expenditure causes an

individual federal taxpayer any measurable economic

harm.”). The interest of individual taxpayers is shared

in common with all other taxpayers and is therefore “too

generalized and attenuated to support Article III standing.” Id. at 2563.

Dating to Frothingham, decided with Commonwealth of

Massachusetts v. Mellon, 262 U.S. 447, 488 (1923), the rule

against taxpayer standing has resisted exceptions, for

good reason: “[I]f every federal taxpayer could sue to

challenge any Government expenditure, the federal courts

would cease to function as courts of law and would be

cast in the role of general complaint bureaus.” Hein, 127

S. Ct. at 2559. Standing requirements, including the bar

against taxpayer standing, “ ‘are an essential ingredient of

separation and equilibration of powers,’ ” id. at 2570

(quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 101

(1998)), and the “ ‘[r]elaxation of standing requirements is

directly related to the expansion of judicial power,’ ” id.
8 No. 05-2749

(quoting Richardson, 418 U.S. at 188 (Powell, J., concurring)).

This case concerns the lone exception to the rule

against taxpayer standing. In Flast, the Supreme Court

held that taxpayers have standing to raise Establishment Clause challenges to specific congressional exercises

of the Article I, Section 8 taxing and spending power. Flast,

392 U.S. at 102-03. The plaintiff-taxpayers in Flast sued to

enjoin federal appropriations made to religious schools

under the Family and Secondary Act of 1965. Id. at 85. The

Court permitted their Establishment Clause claim to

proceed because they had challenged specific appropriations made pursuant to Congress’s Article I, Section 8

taxing and spending power, and the Establishment

Clause limits the exercise of that power. Id. at 103-04.

While taxpayers generally suffer no injury from the

depletion of the federal Treasury, the injury supporting

standing under Flast derives from “the very ‘extract[ion]

and spen[ding]’ of ‘tax money’ in aid of religion.”

DaimlerChrysler, 547 U.S. at 348 (quoting Flast, 392 U.S. at

106). Flast did not, however, create an exception to the

taxpayer-standing bar for all Establishment Clause cases.

Only when a taxpayer challenges a specific congressional

appropriation—not a government program or activity

funded from general appropriations—will the link to

the Article 1, Section 8 taxing and spending power be

sufficient to support standing under Flast. Hein, 127 S. Ct.

at 2569; Flast, 392 U.S. at 102-03.

This panel previously disagreed over whether the Flast

exception was elastic enough to permit an otherwise moot
No. 05-2749 9

Establishment Clause claim to proceed against a private

grant recipient for restitution to the U.S. Treasury. The

majority implicitly concluded that it was, reasoning that

the taxpayers had standing when the case was filed and

it would make little sense to hold that the disbursement

of the money and expiration of the grant divested them

of the authority to recover the money for the Treasury

via an order of restitution against Notre Dame. Laskowski,

443 F.3d at 934-35. The dissent disagreed, noting that

restitution from a private party is not a known remedy

for an Establishment Clause violation and that taxpayer

standing under Flast is not, in any event, premised upon

injury to the Treasury. Id. at 943-44. (Sykes, J., dissenting).

Our respective positions are amply explained in our

prior decision and need not be explored further here.

After Hein, the issue is no longer whether Flast might

logically be expanded to include standing to pursue

the restitutionary relief posited by our prior panel

majority; the Supreme Court has now made it abundantly

clear that Flast is not to be expanded at all.

Hein involved an Establishment Clause challenge to

conferences conducted by the President’s Faith-Based and

Community Initiatives program. A divided panel of this

court concluded that the plaintiff-taxpayers had standing

under Flast even though the conferences were funded

out of general Executive Branch appropriations rather

than a specific congressional exercise of the taxing and

spending power. See Hein, 127 S. Ct. at 2561 (discussing this

court’s opinion, appearing under the name Freedom from

Religion Found., Inc. v. Chao, 433 F.3d, 989, 994 (7th Cir.
10 No. 05-2749

2006)). The Supreme Court reversed, although the Court

was divided on the rationale.

Writing for a three-justice plurality, Justice Alito first

reiterated the Court’s adherence to the Frothingham rule

against taxpayer standing, id. at 2562-63, and then

moved on to the Flast exception and the Court’s subsequent taxpayer-standing jurisprudence. Tracing the Court’s

post-Flast case law, the plurality found it “significant that,

in the four decades since its creation, the Flast exception

has largely been confined to its facts.” Id. at 2568-69.

Because “Flast focused on congressional action,” the

plurality “decline[d] th[e] invitation to extend its holding

to encompass discretionary Executive Branch expenditures.” Id. at 2568.

The Court in Hein had been asked to overrule rather

then simply limit Flast, and Justice Scalia, in a concurrence joined by Justice Thomas, would have done so.

Id. at 2573-74 (Scalia, J., concurring). The plurality

withheld judgment on this question. Because this court’s

opinion had expanded rather than applied Flast, the Hein

plurality thought reconsideration of Flast was not strictly

necessary to a decision in the case. Id. at 2571. Nonetheless,

the plurality warned against extending Flast “to the limit

of its logic.” Id. The plurality noted that the Court’s postFlast taxpayer-standing jurisprudence had effectively

come to rest on the position taken by Justice Powell in

his concurrence in United States v. Richardson, 418 U.S. at

180: that the Flast exception should be limited “ ‘to an outer

boundary drawn by the results in Flast.’ ” Hein, 127 S. Ct. at

2569 (quoting Richardson, 418 U.S. at 196) (emphasis in

Hein).
No. 05-2749 11

On the present vitality of Flast, therefore, the Hein

plurality essentially declared a truce with the concurring

justices: “We do not extend Flast, but we also do not

overrule it. We leave Flast as we found it.” Id. at 2571-72.

This is not a ringing endorsement. The Court is plainly

disinclined to entertain any remedial innovations that

depend upon an expansive interpretation of Flast.

We have previously held that Justice Alito’s plurality

opinion in Hein “is controlling because it expresses the

narrowest position taken by the Justices who concurred

in the judgment.” Freedom from Religion Found., Inc. v.

Nicholson, 536 F.3d 730, 738 n.11 (7th Cir. 2008) (citing

Marks v. United States, 430 U.S. 188, 193 (1977)). The

import of the plurality opinion is that the reach of Flast

is now strictly confined to the result in Flast. And the

result in Flast was that the taxpayers had standing to

seek an injunction to halt a specific congressional appropriation alleged to violate the Establishment Clause.

Accordingly, we read Hein to mean that taxpayers

continue to have standing to sue for injunctive relief

against specific congressional appropriations alleged to

violate the Establishment Clause, but that is all. Permitting

a taxpayer to proceed against a private grant recipient

for restitution to the Treasury as a remedy in an

otherwise moot Establishment Clause case would extend

the Flast exception beyond the limits of the result in Flast.

After Hein, such an extension is unwarranted. See generally

Nicholson, 536 F.3d at 739 (describing Hein’s refusal to

expand Flast); Chaplaincy of Full Gospel Churches v. U.S.

Navy (In re Navy Chaplaincy), 534 F.3d 756, 762 (D.C. Cir.
12 No. 05-2749

2008) (Hein “forcefully emphasized the [Flast] exception’s

extremely limited contours”); Hinrichs v. Speaker of the

House of Representatives of the Ind. Gen. Assembly, 506

F.3d 584, 598 (7th Cir. 2007) (emphasizing that Hein

reinforced that the Flast exception to the rule against

taxpayer standing “is a narrow one”).

The only form of relief the taxpayers here had standing

to seek—an injunction against the Secretary’s disbursement

of the allegedly unconstitutional grant—is no longer

available because the grant was not a continuing one

and it expired while the suit was pending in the district

court. That claim is moot, and there is no residual standing

to pursue a claim for restitutionary relief against Notre

Dame, a private party, for reimbursement of the Treasury.

The district court properly dismissed this case as moot.

AFFIRMED.

10-14-08