United States Court of Appeals

For the Eighth Circuit

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No. 17-1055

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Christopher S. McDaniel,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Anne Precythe,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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Submitted: November 14, 2017

Filed: July 27, 2018

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Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES, District 1

Judge.

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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

The Honorable P.K. Holmes, III, Chief Judge, United States District Court for

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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 court denied the motion, and the Director

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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 witnessesisleft to the unfettered discretion

of the Director. 

Director George Lombardi employed certain proceduresin 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

The Honorable Nanette K. Laughrey, United States District Judge for the

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Western District of Missouri.

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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, McDanielsubmitted 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 wasseeking 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 wasimmune from suit under the Eleventh Amendment. 

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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 reassertsthat McDaniel lacks standing and thatshe isimmune 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).

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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), McDanielstill 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 ofstanding,” Defs. of Wildlife, 504 U.S. at 562-63, and we see no reason

why McDaniel’s interest in viewing an execution for professional purposesis 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.

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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 isfor 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 claimthat 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

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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

applicantssharing his particular viewpoint are sufficient to give himstanding 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 proceduresthat 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

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the district court will consider whether evidence shows that Director Precythe will

adopt different policies or customs fromthose 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

officialsin their official capacitiesfor 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, demonstratesthat

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 suitseeking to enjoin enforcement of a state statute may proceed against a state

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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 specialsovereign 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

“specialsovereignty 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-

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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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