FILED

NOT FOR PUBLICATION

AUG 06 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROL COGHLAN CARTER, next No. 17-15839 friend of A.D., C.C., L..G. and C.R., minors next friend of A.D. next friend of D.C. No. 2:15-cv-01259-NVW C.C. next friend of L.G. next friend of C.R.; et al.,

MEMORANDUM*

Plaintiffs-Appellants,

v.

JOHN TAHSUDA, in his official capacity as Assistant Secretary of Bureau of Indian Affairs; et al.,

Defendants-Appellees,

GILA RIVER INDIAN COMMUNITY

and NAVAJO NATION,

Intervenor-Defendants- Appellees.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted June 13, 2018

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California

Before: SCHROEDER, EBEL,** and OWENS, Circuit Judges.

Plaintiffs-Appellants include Indian children, their adoptive parents and next

friends. They filed this action in the United States District Court in Arizona

against the Assistant Secretary of Indian Affairs for the Bureau of Indian Affairs,

the United States Secretary of the Interior, and the Director of the Arizona

Department of Child Safety, seeking to challenge the constitutionality of various

provisions of the Indian Child Welfare Act (“ICWA”), 25 U.S.C. § 1901 et seq.

The Gila River Indian Community and the Navajo Nation intervened to defend the

constitutionality of the Act. The district court concluded Plaintiffs lack Article III

standing. Plaintiffs appeal from this dismissal. We hold this action is now moot.

Adoption proceedings were pending at all times during the litigation in the

district court. Defendants moved to dismiss the action, contending that Plaintiffs

lacked Article III standing and could not state a constitutional claim upon which

relief could be granted. The district court examined the complaint with respect to

each of the challenged provisions and ruled that Plaintiffs lacked standing because

none had been harmed by any conduct traceable to ICWA.

** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 2 We do not reach the standing inquiry, however, because a subsequent

development has rendered this action moot. Plaintiffs have never suggested they

suffered any economic damages. Their original complaint sought only declaratory

and injunctive relief relating to ICWA’s application to their adoption proceedings.

While Plaintiffs’ appeal from the district court’s dismissal was going forward,

however, Plaintiffs’ adoptions all became final. The relief Plaintiffs sought to

redress their alleged injuries is no longer available to them.

Appellees argue, and we agree, that the case is therefore now moot. The

named plaintiffs are no longer subject to ICWA, and they do not allege that they

will be in the imminent future. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d

853, 864–68 (9th Cir. 2017). Plaintiffs counter that there will be members of a yet-

to-be-certified class that have redressable claims, but this argument is unavailing.

At least one named plaintiff must present a justiciable claim unless an exception

applies. See O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Lierboe v. State Farm

Mut. Auto. Ins. Co., 350 F.3d 1018, 1022–23 (9th Cir. 2003). None of these

Plaintiffs do, and no exception applies here, cf. Pitts v. Terrible Herst, Inc., 653

F.3d 1081, 1090 (9th Cir. 2011).

Plaintiffs’ suggestion that their belated addition of a claim for nominal

damages saves the case from mootness fails. While Plaintiffs were still in the

3 district court, they had seen the possibility that all their claims for injunctive and

declaratory relief could become moot, so they filed an amended complaint adding a

claim for nominal damages under Title VI of the Civil Rights Act against the

Director of Arizona’s Department of Child Safety. The Supreme Court has

admonished this Court that “a claim for nominal damages . . . asserted solely to

avoid otherwise certain mootness, b[ears] close inspection.” Arizonans for Official

English v. Arizona, 520 U.S. 43, 71 (1997).

Here the claim does not survive such inspection. Plaintiffs have never

alleged actual or punitive damages. They can cite no case supporting the

proposition that a claim for nominal damages, tacked on solely to rescue the case

from mootness, renders a case justiciable. See id. at 68–71. Plaintiffs cite

Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002), where, in

addition to mooted claims for injunctive relief, the original complaint alleged

claims for compensatory and punitive damages. Id. at 872. We said in Bernhardt

that the possibility of nominal damages avoided mootness of the entire case, see id.

at 872–73, but there was no belated claim asserted solely to avoid mootness as

there was in this case, and which the Supreme Court frowned upon in Arizonans

for Official English.

We vacate the district court’s judgment dismissing for lack of standing and

remand to the district court with instructions to dismiss the action as moot.

VACATED AND REMANDED.

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